Beruflich Dokumente
Kultur Dokumente
RELATIONS
Structure
3.0
Objectives
3.1 .
Introduction
3.2
Trade Union
3.2.1
3.2.2
3.2.3
3.2.4
3.2.5
3.2.6
3.3
Collective Bargaining
3.3.1
3.3.2
3.3.3
3.3.4
3.4
Statutory Definition
Procedure for Registration
Cancellation of Registration of Trade Union
Immunity Against Criminal Conspiracy in Trade Disputes
Immunity from Civil Suits
Rights and Liabilities of Registered Trade Unions
3.5
3.6
General
Statutory Protection
3.7
3.8
Let Us Sum UP
3.9
3.10
Further Reading
3.0 OBJECTIVES
After going through this unit, you should be-able to:
8
define the trade union, explain the procedure for its registration, specify grounds
for cancellation, and describe the rights, liabilities and immunities of members and
officers of a registered trade union;
familiarise yourself about the concept, processes involved, advantages and
disadvantages of collective bargaining;
distinguish between strike and lock-out, describe the prohibitions on strikes and
lock-outs and specify the effect of illegality; '
apply the norms while terminating the services of workmen and holding domestic
enquiry; and
follow the guidelines to ensure prevention of sexual harassment of women.
3.1 INTRODUCTION
Union Management relations is a dynamic social process. It denotes the relationship
between employers and workers organisation or union. The main objective of Union
Management rel$.ions is to develop harmonious relations between them and to minimise
industrial conflicts. Conflicts may be generated over determination of bargaining agent
and on issues connected with employment, non-employment, terms of employment such
as wages and monetary and fringe benefits and condition of seryice such as working
hours, holidays, leave, method of work, introduction of new technology, health, safety
and welfare. Such conflict could lead to strikes and lock-outs. Be that as it may
industrial conflicts affect the functioning of the establishment. The dispute may be
resolved by collective bargaining and voluntary arbitration or through adjudication.
India cannot afford a type of collective bargaining for resolution of industrial disputes.
It has adopted an adjudication system.
In this unit you will study the regulation of trade unions collective bargaining, strikes
and lock-out, kedressal of disputes and disciplinary action by the employer, and sexual
harassment at work place.
-workmen
and employers, or
-workmen
and workmen; or
ii) any agreement between an employer and those employed by him as to such
employment; or
iii) any agreement in consideration of the sale of the goodwill of a business or
'instruction in any profession, trade or handicraft.
the names, occupation and addresses of the members making the applicatibn;
b) the name of the Trade Union and the address of its head office; and
C) the title, names, ages, addresses and occupations of the officer bearers.
The application for registration shall also accompany with a general statement of the
assets and liabilities of the trade union prepared in the prescribed form and containing
such particulars as may be required, if the trade union has been in existence for more
than one year before the making of an application for its registration.
The rule of a trade union must contain provisions relating to subjects mentioned in
Section 6 of the Act and unless it is complied with no registration can be allowed.
If after, examining appli'cation for registration the Registrar is not satisfied, he may call
for further information for the purpose of satisfying himself that the application
complies with the provisions of section 5 and 6 of the Act. Unless he is supplied with
the information demanded by him he may refuse to register the union (Section 7 (1)).
Where the name under which the trade union is proposed to be registered is identical
with any existing trade union or in the opinion of the Registrar, so nearly resembles
such name as to be likely to deceive the public or the members of either trade union.
he may require the applicants that the name of the Union should be altered and shall
refuse to register unless the name is altered (Section 7 (2)) .
The Registrar on being fully satisfied that the trade union has complied with all the
requirements needed for registration he shall register the trade union by entering in a
register maintained for this purpose in which the particulars relating to the trade union
contained in the statement accompanying the application for registration must be
entered into (Section 8). Once the condition for registration is complied with it is
obligatory on the Registrar to register b u n i o n . He will have no discretion in the
matter. Similarly where there is a rival group asking for registiation, he cannot decide
which is the real union for the purpose of registration.
After registering the trade union, the Registrar shall issue a certificate or registration
which shall be the conclusive evidence that the trade union has been registered.
(Section 9).
3.2.3
The registration of a trade union can be cancelled on its own application which is
approved by a general meeting of the Union or a majority of its members. It may also
be cancelled by the Registrar Trade Unions by a written notice of not less than two
months on any of the following grounds:
a) that the registration certificate has been obtained by fraud or mistake;
b) that the trade union has ceased to exist;
c) that it has willfully and after notice from the Registrar allowed any rule to
continue in force which is inconsistent with any provision of the Act.
d) that it has willfully and after notice from the Registrar contravened any provision
of the Act.
e) that it has rescinded any rule providing for any of the compulsory matters required
under the Act.
Where withdrawal or cancellation of the registration is to be effected it must be
preceded by a requisite notice as well an opportunity to show cause against the
proposed action.
Once the certificate of registration is cancelled the Registrar cannot withdraw his order
on the ground that the trade union has rectified its mistake. However he can withdraw
his order of cancellation if it was passed in violation of Statutory provisions.
offence under the criminal laws ox' the country no immunity would be available to
them.
In order to achieve their.objective or to enforce their demands more often the unions
have to resort to strike against employer. The collective action of the members of
trade union in this form amounts to interference with the trade or business of the
employer or with the employment of other workers and amounts to conspiracy. A
strike in furtherance of a trade dispute is protected under section 17 of the Act. But if
it is accompanied with wrongful confinement, assault, mischief or criminal trespass to
person or property of the employer it would not be protected.
Rights to spend general fund : A registered trade union has right to spend its
general funds for any or all of the purposes mentioned in section 15 of the Act.
This section enumerates as many as eleven times for which the funds may be
spent. But, if the fund is spent for any other purpose it will be illegal.
Right to acquire and dispose of property: A registered trade union can sue as a
pauper (having no capacity to pay court fee).
f) Right to acquire and dispose of property: A registered trade union has right to
acquire both movable and immovable property and to dispose of the same under its
registered name. The expenditures for this purpose shall be met from the fund of
the Union.
Liabilities
1) To spend its general funds only for the purposes mentioned in Section 15 of the
Act.
2) Not to compel any members of the trade union to contribute to the Political Fund;
and not to exclude any member who does not contribute to the said fund from any
benefits of the trade union or place him directly ,or indirectly under any disability
or disadvantage as compared to those who contribute to the political fund.
4) To give notice of the dissolution of a registered trade union within 14 days of the
dissolution to the Registrar.
..........................................................................................................................................
2) Can the Registrar refuse to register a trade union applying for registration is
identical or nearly resembles with the existing trade union?
.........................................................................................................................................
3) Can the Registrar of trade union cancel the registration for allowing any rule to
continue in violation of the provisions of the Act without giving any prior notice?
..........................................................................................................................................
..........................................................................................................................................
4)
Can the officers of a registered trade union be punished for criminal conspiracy for its
trade union activities?
COLLECTIVE BARGAINING
3.3
3.3.2
Processes
3.3.3 Advantages
This means of settling a dispute has the following advantages:
i)
ii) It is democratic
313.4 Disadvantages
This means of settling a disputes has the following disadvantages:
i)
ii) it flows more from power politics than from rational thoughts;
iii) in case of failure of negotiations unpredictable consequences may follow.
39
-- -- -
3.4
5) collective bargaining.
The Act primarily regulates the relations of employers and workmen. It draws a
distinction between the workmen as such and the managerial or supervisory staff, and
confers benefit on the former only.
It is necessary, therefore, to take the Act as a whole and examine its salient provisions.
The long title shows that the object of the Act is "to make provisions for the
investigation and settlement of industrial disputes, and for certain other purposes:'.
The Act extends to the whole of India, and is applicable to every "industry". It is,
therefore necessary to know the definition of industry. Section 2 (f) defines "industry"
to mean:
Any business, trade, undertaking, manufacture or calling of employers and includes any
calling, service, employment, handicraft or industrial occupation or avocation of
workmen.
The aforesaid definition raises an issue whether hospitals and dispensaries are industry.
We have yet to decide which are attributes the presence of which makes an activity
an undertaking within Section (j), on the ground that it is analogous to trade or
business. It is difficult to state these possible attributes definitely or exhaustively;
as a working principle it may be stated that an activity systematically or habitually
undertaken for the production or distribution of goods or for the rendering of
material services to the community at large or a part of such community with the
help of employees is an undertaking. Such an 'activity generally involves the cooperation of the employer and the employees and its object is the satisfaction of
material human needs. It must be organised or arranged in manner in which trade
or business is generally organised or arranged. It must not be casual nor must it be
for oneself nor for pleasure. Thus, the manner in which the activity in question is
organised or arranged, the condition of the co-operation between employer and the
employee necessary for its success and its object to render material service to the
community can be regarded as some of the features which are distinctive of
activities to which Section 2 (j) applies. Judged by this test there would be no
difficulty in holding that the State is carrying on an undertaking when it runs the
group of Hospitals in question.
In Lalit Hari Ayurvedic College Pharmacy v. Workers Union, AIR 1960 S.C. 126 the
Supreme Court applied the ratio of Hospital Mazdoor ~ a b k asupra. In this case Lalit
Hari Ayurvedic College was an educational institute in Indian indigenous medicines. It
was running a hospital for the practical training of its students and maintaining a
pharmacy where its students got some training in the preparation and manutacture of
medicines and organisation of Pharmacies. 30% of drugs produced by the Pharmacy
were consumed in the hospital and 70%of drugs worth about Rs. one lakh per annum
were sold in the market. The profits from the sale were apparently used in the
maintenance of the college and its other non profitable activities. On these facts, it was
held that the activity of the appellant in running the pharmacy and hospital was an
"undertaking" under Section 2(j) of the Industrial Disputes Act, 1947.
However, a larger Bench of the Supreme Court in Management of Safdarjung Hospital
v. Kuldip Singh Sethi, AIR 1970 SC 1407, disapproved the decision, in Hospital
.Mazdoor Sabha by holding that a hospital which was run and administered by the
Government was a part of its sovereign functions and, therefore, it was outside the
scope of "industry" and thereby unduly curtailed the scope of the t e n "industry". In
this case three appeals were heard toegether.
In the first appeal a dispute arose between the management of Safdarjung Hospital, a
Government owned and run hospital, and its employzes for the computation of amount
of salary due to workers consequent upon change in the grade. Thereupon the
employees made an application to the Labour Court under Section 33 C (2) of the
Industrial Disputes Act for the recovery of money due from the employer. The Labour
Court directed the hospitd to pay the money due to him. It is against this finding of
the Labour Court that an appeal was filed.
In the second appeal a dispute arose between the Tuberculosis Association of India, (a
research and training institution and its employees relating to pay scales and other
facilities of the employees. The Government referred the dispute to the Tribunal. The
Tribunal held that "neither the research carried out nor the training imparted nor the
existence of Tuberculosis Association of India with which the hospital is affiliated
makes any difference and the hospital is an industry within the meaning of the Act."
Against this order the appeal was filed to the Supreme Court.
In the third appeal the management of Kurji Holy Family Hospital, Patna (a wholly
charitable hospital maintaining some paid beds) took disciplinary action against two of
its employees. The dispute was referred by the State of Bihar to Labour Court under
Section 10 of the Act. The management raised the preliminary objection that they were
not engaged in "industry" and consequently Labour Court had no jurisdiction. Against
this a writ petition was made to the Patna High Court which held that it was an
"industry". It was against this decision that an appeal was filed to the Supreme Court.
The common question involved in all the three appeals was whether the activities
carried on by these hospitals were "industry"? The Court formulated the following test
to determine whether or not an activity is an "industry":
Unio"andManagementRe'atiom
i)
It is not necessary to view the definition in two parts. 'The definition read as a
whole denotes a collective enterprise in which employers and employees are
associated. It does not exist either by the employers alone or by employees alone.
It exists only when there is a relationship between employers a i d employees, the
former engaged in business, trade, undertaking, manufacture or calling of
employers and the latter engaged in any calling, service, employment, handicraft, or
industrial occupation or, avocation
ii) The word "Industry" in (the definition of 'workmen') must take its colour from the
definition (of industry) and discloses that a workman is to be regarded as one
employed in an "industry" if he is following one of the vocations mentioned in
conjunction with his employers engaged in the vocations mentioned in relation to
the employers.
iii)
... in the collocation of the terms and their definitions these terms have a definite
economic content of a particular type and on the authorities of this Court have
been uniformly accepted as excluding professions and are only concerned with the
production, distribution and consumption of wealth and the production and
availability of material services. Industry has thus been accepted to mean only trade
and business, manufacture, or undertaking analogous to trade or business for the
production of material goods or wealth and material services.
iv) Material services are not services which depend wholly or largely upon the
contribution of professional knowledge, skill or dexterity for the production of
result. Such services.. . are services no doubt but not material services. Material
services involve an activity carried on through co-operation between employers and
employees to provide the community with the use of something such as electric
power, water, transportation, mail delivery, and the like.. . the emphasis is.. . upon
the productivity of a service organised as an industry and commercially valuable. It
is the (commercial character of the activity and) the production of ... something (of
benefit to particular individuals rendered by all services) which is described as the
production of material services.
In the light of aforesaid test the court concluded that the Hospital Mazdoor Sabha
wrongly held: (i) that the "second part of the definition contained an extension of the
first part by including other items of industry", (ii) that economic activity was not an
essential part of the concept of industry; (iii) that an economic activity could not exist
without the presence of capital or profit making or both; (iv) that the test namely, "can
such activity be carried on by private individuals or group of individuals," applied to
the facts of the case.
The aforesaid principle was reiterated in Management of Hospital, Orissa v. Their
Workmen, 1971 Lab. I.C. 835. In this case a dispute arose regarding the conditions of
service of employees employed in hsopitals, sanatorium and infectious ward owned and
run by the government. The Government of Orissa made three references to the
Tribunal of adjudication. The Tribunal in all three cases held that the activities of the
hospitals, sanatorium and infectious ward were "industry". Against this finding the
management of the hospitals preferred an appeal before the Supreme Court. The
question arose whether the aforesaid activities run by the government were "industry"?
The Supreme Court following the decision in Safdarjung Hospital case held that the
aforesaid activities were not "industry" because it was being run as a part of the
functions of the Government and were being run as department. It further held that the
"mere fact that payment was accepted in respect of some beds.. . could not.. . (lead) to
the inference that the hospitals (were run as a business in a commercial way. Primarily,
the hospitals (were) meant as free service by the Government to the patient, without
any profit motive."
The principle enunciated in Safdarjung Hospital supra was once again followed and
applied by the Supreme Court in Dhanrajgiri Hospital v. Workmen, (1975) 2LLJ 409.
The hospital run by a Charitable Trust was engaged in imparting training in general
nursing and midwifery. There were good number of trainees in general nursing and
midwifery. There were also good number of trainqs beds in the hospital meant for
their practical training. The hospital was not distinct or separate from training nurses.
The patients were charged according to their financial conditions and there was no
42
regular charge fixed for a patient. On these facts the Supreme Court held that the
hospital was not engaged in any "industry" under the IDA.
The seven Judge bench of the Supreme Court in Bangalore Water Supply and
Sewerage Board v. Rajappa after careful consideration of expressions used in the
definition of 'industry', traditional attributes of trade or busines i.e. capital and profit
motive, statements of International Labour Organisation in respect of industry, purposes
and provisions of the legislation as a whole. Indian as well as foreign rulings, keeping
in view the directive principles of State policy the following tests to determine the
scope of "industry".
.
I.
b)
c)
The true focus is functional and the decisive test is the nature of the activity
with special emphasis on the employer-employee relations.
d)
11. Although Section 2 (j) uses words of the widest amplitude in its two limbs, their
meaning cannot be magnified to overreach itself.
a)
111. Application of these guidelines should not stop short of their logical reach in
invocation fo creeds, cults or inner sense of incongruity or outer sense of
motivation for or resultant of the economic operations. The ideology of the Act
being Industrial peace, regulation and resolution of industrial disputes between
employer and workmen, the range of this statutory ideology must inform the reach
of the statutory definition. Nothing less, nothing more.
a)
The consequences are (i) professions, (i3 clubs, (iii) educational institutions,
(iv) co-operatives. (v) research institutes. (vi) charitable projects, and (vii)
other kindred adventures, if they fulfil the triple tests listed in I (supra).
cannot be exempted from ths scope of Section 2 (i).
b)
c)
If, in a pious or altruistic mission many employ themselves, free or for small
honoraria or like return, mainly drawn by sharing iy, the prupose or cause.
such as lawyers volunteering to run a free legal service, clinic or doctors
serving in their spare hours in free medical centre or ashramites working at
the bidding of the holiness, divinity or like central personality. and the
services are supplied free or at nominal c o g and those who serve are not
43
b)
c)
i
iI
I
1
d)
On the basis of principles laid down in the case the Supreme Court has overruled the
cases whose ratio runs counter to the principles enumerated in this case. However, the
.
State of Bombay v. Hospital Mazdoor Sabha has been rehabilitated.
3.4.3 Coverage
The Industrial Disputes Act, 1947 covers all persons employed in any industry to do
any skilled, or unskilled, manual, technical, operational, clerical or supervisory work are
workmen within the meaning of this Act. It includes any apprentice. They may be
employed for hire or reward and their contract of employment may be express or
implied. It has been expressly provided that for the purposes of any proceeding under
this Act such as conciliation proceedings etc. in relation to an industrial dispute it
includes any such person who has been dismissed, discharged or retrenched in
connection with or as a consequence of that industrial dispute or. whose dismissal,
discharge or retrenchment has led to that dispute. However, persons employed in
managerial and administrative capacities and those employed In Army, Air Force, Navy,
Police, Prison and Civil Service are excluded.
The above definition covers only collective disputes or disputes supported by trade
unions or by substantial number of workmen. In Section 2A which came into force on
Under the Industrial Disputes Act, 1947 the following authorities are mentioned:
II
8) Voluntary Arbitration
I ) The Works Committee
In order to prevent industrial disputes the appropriate Government may, require the
employer employing one hundred or more workmen in the industrial establishment on
any day in the preceding twelve months to constitute a works committee. It consists of
the representatives of the employer and workman in the establishment who is required
to discuss the day to day matters in a cordial way. The duty of the works committee,
according to section 3 is to promote measures for securing and preserving amity and
good relations between the employer and his workmen. It can comment upon the
matter of common interest. Its primary duty, therefore, is to prevent the disputes.
2) Conciliation Officer
The appropriate Government is empowered to appoint as many conciliation officers as
it may think fit by a notification in the official Gazette. They shall be charged with
the duty of mediating in and promoting the settlement of Industrial Dispute. A
conciliation officer may be appointed for a specified area or for specified industries, in
a specified area for one or more industries. He may be appointed for a limited period
or permanently (Section 4). Where an Industrial Dispute exists or is apprehended
conciliation officer may, and if a dispute relates to a public utility service, in which a
notice of strike or lock-out has been given under Section 22, shall hold conciliation
proceeding in the manner prescribed without any delay. He will investigate the
dispute and all matters which may affect its merits. He may do all those things which
he may think proper for inducing the parties to come to a fair, and amicable settlement
of the dispute. He shall send a report to the appropriate Government if a settlement is
, arrived at;) He shall send a memorandum of the settlement, duly signed by him and by
the parties to the dispute. In the event of there being no settlement he shall forward a
full account in the shape of a report to the appropriate Government giving details of
the steps taken by him for bringing about a settlement thereof. He shall also state in
his report the facts and circumstances and the reasons on account of which the parties
could not come to a settlement. The report shall be submitted within fourteen days
from the'date of the commencement of the conciliation proceedings or within such
shorter period as may be fixed by the appropriate Government. Such period may be
extended by a written agreement between the parties. On receipt of such a report, the
appropriate government may make a reference to a Board, Court or ~ribunal.'~nthe
alternative, the Government shall record and communicate to the parties its reasons for
not making a reference.
3) Board of Conciliatiorr
The appropriate Government may by notification in the Official Gazette, constitute a
Board of Conciliation for promoting the settlement of an industrial dispute (Section 5).
The Board shall investigate the dispute and all matters affecting the matters and right
settlement thereof, It may do all such things as it thinks fit for the purpose of
inducing the parties to come to a fair and amicable settlement of the dispute. If a
settlement is arrived at, the Board shall send a report to the appropriate Government,
together with a memorandum of settlement, signed by the parties to the disputes. If a
settlement could not be reached, the Board shall send a report to the appropriate
Government, with full details of the steps taken by it and the facts and circumstances
and the reasons why a settlement could not be arrived at. He shall also forward his
recommendation for the settlement of the dispute. Such a report should be submitted
within 2 months or within such shorter period as may be fixed by the Government.
This time may be extended by the parties or by Government as and when necessary.
On receipt of the report of the Board, the appropriate Government may make a
reference to a Court or a Tribunal for enquiry and adjudication. If such a report of the
Board is about a Public Utility Service, and the appropriate Government does not make
a reference to a Labour Court, Tribunal or National Tribunal, it shall record its reasons
and communicate them to the parties to the dispute.
4) Court of Inquiry
The appropriate Government may constitute a Court of Inquiry as occasion arises, for
inquiring into any matter appearing to be connected with or relevant to an industrial
dispute (Section 6). A Court of Inquiry shall inquire into the matters referred to it and
report thereon to the appropriate Government ordinarily within a period of six months
from the commencement of its inquiry (Section 14).
5) Labour Court-Constitution
Under Section 7 the appropriate government is empowered to constitute one or more
Labour Court for the same area and in that case their powers and functions shall be
determined by the appropriate government itself.
A Labour Court consists of one person who is known as the presiding officer of the
Labour Court. A person is not qualified for appointment as the presiding officer of the
Labour Court unless:
i)
ii) has been for a period of not less than three years, been a district judge or an
Additional District Judge; or
iii) he has held any judicial office in India for not less than seven years; or
iv) he has been the presiding officer of a Labour Court constituted under any
Provincial Act or the State Act for not less than five years.
i)
ii) Perfornl such other functions as may be assigned to them under the Act.
iii) Adjudicate on matter incidental to the matters enumerated in the second schedule.
The matters specified in the second schedule are as follows:
01
privilege.
5)
6) All matters other than those specified in the third schedule of the Act.
6) Industrial Tribunal
Under Section 7A of the appropriate government may by notification in the official
Gazette constitute one or more Industrial Tribunals for the adjudication of disputes. A
tribunal shall consist of one person only to be appointed by the appropriate
government. An Industrial Tribunal may be appointed for a limited period on an
ad hoc basis or permanently. A person is not qudified for appointment as the presiding
officer of a Tribunal unless:
a) he is or has been a judge of a High Court, or
b) he has for a period of not less than three years been a District Judge or an
Additional District Judge, or
c) he has been a presiding officer of a Labour Court for not less than five years,
or
d) he has held an office not lower than that of an Assistant Labour Commissioner for
not less than ten years and holds degree in law.
The Industrial Tribunal may be assisted, if the appropriate government may deem fit,
by two persons to be known as assessors to advise the Tribunal in the proceeding
before it.
Functions
The Industrial Tribunal exercises the following functions:
i)
to adjudicate industrial disputes relating to any matter whether specified in the the
third schedule of the Act.
ii) to adjudicate matters which are in the form of new demands giving rise to an
industrial dispute affecting the working of the establishment and referred to it.
iii) to adjudicate upon matters incidental to the matters specified in the third schedule.
Matters mentioned in the third schedule:
i)
47
the second or in the third schedule of the Act. For the purpose of giving relief these
authorities can exercise the following powers:
i)
ii) the presiding officer for the purpose may, after giving reasonable notice, enter the
premises occupied by any establishment to which the dispute relates;.
iii) it can exercise the powers of a civil court in respect of the following matters
namely:
a)
b)
C)
d)
iv) it can appoint assessor or assessors to advise it in the proceeding before it.
7) National Tribunal
The powers to constitute a National Tribunal vest only with the Central Government
under Section 7 B. The pre-condition for co~stitutinga National Tribunal are two
namely: (i) the industrial dispute in question should involve questions of national
importance and (ii) the industrial dispute should be of such nature that industrial
establishments in more than one state are likely to be interested or affected bjr such
dispute. When a reference is made under Section 10, sub-section (7A) to a National
Tribunal, Labour Courts and Industrial Tribunals are barred from entertaining the
disputes and if any such dispute is pending before any Labour Court or Tribunal shall
be deemed to be quashed. Section 15 lays down that where an industrial dispute has
been referred by the Central Government to a National Tribunal for adjudication, it
shall hold its proceedings expeditiously and shall submit the award to appropriate
government as soon as possible.
The National Tribunal'is to consist of one person only 'to be appointed by the Central
Government. Under sub-section (4) of section 7B the power has been given to Central
Government in fit cases, to appoint two assessors to advise the National Tribunal in the
proceedings before it.
Qualifications for Appointment as Presiding Officer: A person who ;s or has been a
judge of a High Court is qualified to be appointed a presiding officer.
Disqualification: A person is disqualified to be appointed as presiding officer under
Section 7C, if:
a)
b)
8) Voluntary Arbitrator
Under Section 10 A the employer and employee may agree to refer before a voluntary
arbitrator. But such reference must be made before a reference is made by the
appropriate government to the Labour Court, Tribunal of National Tribunal.
3) Whether the law prescribes any time limit for submission of report by court
of inquiry7
3.5 STRIKES
AN^ LOCK-OUTS
Strike is most important weapon in the hands of the workmen to force the employers
to concede to their demands. It is a necessary safety value in industrial relations when
properly resorted.
Section 2 (q) of the Industrial Disputes Act, 1947 defines strike to mean:
a) Cessation of work by a body of persons employed in any industry acting in
combination; or
b) a coi~certedrefusal of any number of persons who are or have been employed in
industry to continue to work or to accept employment; or
c) a refusal under a common understanding of any number of persons who are or
have been employed in industry to continue to work or to accept employment.
Lock-out: The expression 'lock-out' is defined in Section 2 (1) of the Act. It means
the temporary closing of a place of establishment or the suspension of work or the
refusal by the employer to continue to employ any number of persons employed by
him.
a) without giving notice of strike to the employer as here in after provided within
six weeks before striking; or
b) within fourteen days of giving such notice; or
C) before the expiry of the date of strike specified in any such notice as aforesaid;
or
d) during the pendency of any conciliation proceeding before a conciliation officer
and seven days after the conclusion of such proceedings.
2) Similarly no employer carrying on any public utility service shall lock-out any of
his workmen:
a) without giving them notice of lock-out within six weeks before locking out; or
b) within fourteen days of giving such notice; or
c) before the expiry of the date of strike specified in any such notice as aforesaid; or
d) during the tendency of any conciliation proceedings before a conciliation officer
and seven days after the conclusion of such proceedings.
3) But no notice of strike or lock-out shall be necessary whexe there is in existence a
lock-out or strike in the public utility service establishment. But the employer shall
49
5) If on any day an employer receives from any person employed by him any such
notices or gives to any persons employed by him any such notices, he shall within
five days thereof report to the appropriate Government or to such authority as that
Government any prescribe the number of such notices received or given on that
day.
The conditions specified in Section 22 are mandatory and non-observance of them will
render the strike or lock-out illegal.
50
i)
ii)
1
I
1
4
I
2) Any person who instigates or incites others to take part in or acts in furtherance of
a strike or lock-out which is illegal under this Act shall be punishable with
imprisonment for a term which may extend to six months or with a fine which
may extend to one thousand rupees or with both (Section 27).
3)
Anv person who knowingly expends or applies any money in direct furtherance or
support of any illegal strike or lock-out shall be punishable with imprisonment or a
term which may extend to six months or with a fine which may extend to one
thousand rupees or with both (Section 28).
Check Yoi~rProgress 4
1) Is it necessary to give notice of strike in public utility services?
3)
What is the penalty prescribed for illegal strike under the-Industrial Disputes
Act, 1947?
51
Human ~ i s o u r c eManagement
month or two weeks pay, as the case may be, may be paid in lieu of notice.
2) No temporary workman whether monthly rated, weekly rated or piece-rated and
non probationer or badli shall be entailed to any notice or pay in lieu thereof if his
services are terminated, but the services of a temporary workman shall not be
terminated as a punishment unless he has been given an opportunity of explaining
the charges of misconduct alleged against him in the manner prescribed in
paragraph 14.
3) Where the employment of any workman is terminated, the wages earned by him
and other dues, if any, ihall be paid before the expiry of the second working day
from the day on which his employment is terminated.
Disciplinary action for misconduct
1) A workman may be fined up to two per cent of his wages in a month for the following
acts and omissions, namely: (The form here leaves blanks to be filled).
2) A workman may be suspended for a period not exceeding four days at a time, or
dismissed without notice or any compensation in lieu of notice, if he is found to be
guilty of misconduct.
3) The following acts and omissions shall be treated as misconduct:
Willful insubordination or disobediende, whether alone or in combination with
others, to any lawful and reasonable order of a superior,
Theft, fraud, or dishonesty in connection with the employer's business or
property.
Willful damage to or loss of employer's goods or property,
Taken or giving bribes or any illegal gratification,
Habitual absence without leave, or absence without leave for more than 10
days,
Habitual late attendance,
Habitual breach of any law applicable to the establishment,
Riotous or disorderly behaviour during working hours at the establishment or
any act subversive of discipline,
Habitual negligence or neglect of work,
Frequent repetition of any act or omission for which a fine may be imposed to
a maximum of 2 per cent of the wages in a month (see 14 (I) above).
Striking work or inciting other to strike work in contravention of the provision
of any law, or rule having the force of law.
Where a disciplinary proceeding against a workman is contemplated or is pending
or where criminal proceedings against him in respect of any offence are under
investigation or trial and the employer is satisfied that it is necessary or desirable
to place the workman under suspension, he may, by order in writing suspend him
with effect from such date as may be specified in the order. A statement setting
out in detail the reason for such suspension shall be supplied to setting out in
detail the reasons for such suspension shall be supplied to the workman within a
week from the date of suspension.
Provided that the period of three months may, for reasons to be recorded in
writing, be extended by such further period as may be deemed necessary by
the inquiry officer.
c)
If on the conclusion of the inquiry or, as the case may be, of the criminal
proceedings, the workman has been found guilty of the charges framed against
him and it is considered, after giving the workman concerned a reasonable
opportunity of making representation on the penalty proposed, that an order of
dismissal or suspension or fine or stoppage of annual increment or reduction in
rank would meet the ends of justice, the employer shall pass an order accordingly.
Provided that when an order of dismissal is passed under this clause the
workman shall be deemed to have been absent from duty during the period of
suspension and shall not be entitled to any remuneration for such period, and
the subsistence allowance already paid to him shall be recovered:
Provided further that where the period between the date on which the
workman was suspended from duty pending the inquiry or investigation or
trial and the date on which an order of suspension was passed under this
clause exceeds four days, the workman shall be deemed to have been
suspended only for four days, or for such shorter period as is specified in the
said order of suspension and for the remaining period he shall be entitled to
the same wages as he would have received if he had not been placed under
suspension, after deducing the subsistence allowance paid to him for such
period.
Provided also that where an order imposing fine or stoppage of annual
increment or reduction in rank is passed under this clause, the workman shall
be deemed to have been on duty during the period of suspension and shall be
entitled to the same wages as he would have received if he had not been
placed under suspension, after deducting the subsistence a)lowance paid to him
for such period.
Provided also that in the case of a workman to whom the provisions of clause
(2) or Article 311 of the Constitution apply, the provision of that article shall
be complied with.
a
d)
If on the conclusion of the inquiry, or as the case may be, of the criminal
proceedings, the workman has been found to be not guilty of any of the charges
framed against him, he shall be deemed to have been on duty during the period
of suspension and shall be entitled to the same wages as he would have received
if he had not been placed under suspension after deducting the subsistence allowance
paid to him for such period.
e)
The payment of subsistence allowance under this standing order shall be subject
to the workman concerned not taking up any employment during the period of
suspension.
5) In awarding punishn;ent under this standing order, the authority imposing the punishment
shall take into account any gravity or the misconduct, the previous record, if any, of
the workman and any other extenuating or aggravating circumstances, that may exist.
A copy of the order passed by authority imposing the punishment shall be supplied to
the workman concerned.
6) A workman aggrieved by an order imposing punishment may within twenty one days
from the date of receipt of the order, appeal to the appellate authority.
Industrial Disputes Act, 1947
Under Section 11A of the Act the Tribunal has power in cases wherever necessary to
set aside the order of discharge or dismissal and direct reinstatement of the workman
on such terms and conditions, if any, as it thinks fit or give such other relief to the
workman including the award of any lesser punishment in lieu of discharge or
dismissal as the circumstance of the case may require. The Supreme Court while
delineating the contour of Section 11A laid down the following principles to regulate
the management's power to take disciplinary action.
1) The right to take disciplinary action and to decide upon the quantum of punishment
are mainly managerial functions, but if a dispute is referred to a tribunal, the latter
has power to see if action of the employer is justified.
2) Before imposing the punishment, an employer is expected to conduct a proper
enquiry in accordance with the provisions of the Standing Orders, if applicable, and
principles of natural justice. The enquiry should not be an empty formality.
3) When a proper enquiry has been held by an employer, and the finding of
misconduct is plausible flowing from the evidence adduced at the said enquiry, the
Tribunal has no jurisdiction to sit in judgement over the decision of the employer
as an appellate body. The interference with the decision of the employer will be
justified only when the findings arrived at in the enquiry are perverse or the
management is guilty of victimisation, unfair labour practice or mala Ede.
4) Even if no enquiry has been held by an employer or if the enquiry held by him is
found to be directive, the Tribunal in order to satisfy itself about the legality and
validity of the order, had to give an opportunity to the employer and employee to
adduce evidence before it. It is open to the employer to adduce evidence for the
first time justifying his action, and it is open to the employee to adduce evidence
contra.
5) The effect of an employer not holding an enquiry is that the Tribunal would not
have to consider only where there was a prima facie caw. On the other hand, the
issue about the merits of the impugned order of dismissal or discharge is at large
before the tribunal and the latter, on the evidence adduced before it, has to decide
for itself whether the misconduct alleged is proved. In such cases, the point about
the exercise or managerial functions does not arise at all. A case of defective
enquiry stands on the same footing as no enquiry.
6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first
time in justification of the action taken only, if no enquiry has been held or after
the enquiry conducted by an employer found to be defective.
- '
7) It has never been recognised that the Tribunal should straight away, without
anything more, direct reinstatement or a dismissed or discharge employee, once it
is 'found that no domestic enquiry has been held or the said enquiry is found to be
defective.
8) An employer, who wants to avail himself of the opportunity of adducing evidence
for the first time before the Tribunal to justify his action, shohld ask for it at the
appropriate stage. If such an opportunity is asked for, the Tribunal has no power
to refuse. The giving of an opportunity to an employer to adduce evidence for the
first time before the Tribunal is in the interest of both the management and the
employee and to enable the Tribunal itself to be satisfied about the alleged
misconduct.
2) Is it necessary for the employer to follow the principles of natural justice before
taking disciplinary action?
.......................................................................................................................................
.) Whether Tribunal has power to allow the parties to adduce fresh evidence if no
1) Whether a man or woman would chair the complaint committee in case complaint
about sexual harassment is made?
.......................................................................................................................................
)
.) Is private employer also bound to follow the norms laid down by the Supreme
3.8
LET US SUM UP
From the above study, you may draw several conclusions. The Trade Unions Act,
1926, Industrial Disputes Act, 1947 and the Industrial Employment (Standing Orders)
Act, 1946 seek to regulate the union and management relations. Further the judicial
decisions seek to prevent sexual harassment of women workers.