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Mahindra Prabu, Asst. Prof.

(Law)

21-11-2015

Workman

M. Mahindra Prabu
Asst. Professor (Law)
TNNLS

S. 2(s)
Any person (including an apprentice)
employed in any industry to do any
Manual
Unskilled
Skilled
Technical
Operational
Clerical or Supervisory work

For Hire or Reward

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Whether the terms of employment be express


or implied and
For the purposes of any proceeding under this
Act in relation to an industrial dispute,
includes any such person who has been
dismissed, discharged or retrenched in
connection with, or as a consequence of, that
dispute, or whose dismissal, discharge or
retrenchment has led to that dispute

But doesnt include any such person


Who is subject to the Air Force Act, 1950 or the
Army Act, 1950 or the Navy Act, 1957; or
Who is employed in the police service or as an
officer or other employee of a prison; or
Who is employed mainly in a managerial or
administrative capacity; or
Who being employed in a supervisory capacity,
draws wages exceeding Rs. 10,000 per mensem or
exercises, either by the nature of the duties
attached to the office or by reason of the powers
vested in him, functions mainly of a managerial
nature.

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Person
Person employed in any industry
any such person who has been dismissed,
discharged or retrenched in connection with,
or as a consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led
to that dispute

Employed
Engaged or Occupied
Master or Servant Relationship

Dharangadhara Chemical Works Ltd v. St of


Saurashtra, AIR 1957 SC 264
Justice Bhagwati Observed that there should be a
relationship between the employer and a person
as between employer and employee or master and
servant.

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

The determination of the relationship


between master and servant is the existence
of the right in the master to supervise and
control the work done by the servant not only
in the matter of directing what work the
servant is to do but also the manner in which
he shall do his work.
Contract of Service / Contract for Service
Excludes Independent contractors and
dependant entrepreneurs (renders them legal
orphans)

Hussainbhai v. Alath Factory,


(1978) 2 LLJ 397 (SC)
Justice Krishna Iyer
Where a worker or a group of workers labour to
produce goods or services and these goods or
services are for the business of another, that other
is in fact the employer.
He has economic control over the workers'
subsistence, skill, and continued employment.

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

If he, for any reason, chokes off the worker is,


virtually, laid off. The presence of intermediate
contractors with whom alone the workers have
immediate or direct relationship ex-contractu is
of no consequence when, on lifting the veil or
looking ;at the conspectus of factors governing
employment, Courts discern the naked truth,
though draped in different perfect paper
arrangement, that the real employer is the
management, not the immediate contractor.

Ram Singh v. Union Territory,


Chandigarh, (2004) 1 SCC 126
The SC held that though control is one of the
important tests in determining employer
employee relationship but it is not the sole

test.
All other relevant factors and circumstances
are also required to be considered including
the terms and conditions of contract.
The court also emphasized the importance of
an integrated approach in such matters.

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

The court held that whether a particular


relationship between employer-employees is
genuine or a smoke screen or a camouflage
through the mode of a contractor is
essentially a question of fact to be determined
on the basis of
Features of the relationship
The written terms of the employment, if any, and
The actual nature of employment

and these questions could be raised and


proved only before an industrial adjudicator.

General Manager (USD), Bengal Nagpur


Cotton Mills v. Bharat Lai,
2011 (10) SCALE 478
Whether the contract labourers are the direct
employees of the principal employer?
The SC laid down two tests, namely
Whether the principal employer pays the salary
instead of contractor and
Whether the principal employer controls and
supervises the work of the employee

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Dealing with the onus, the court added


It is for the employee to prove that he was paid
salary directly by the principal employer and not
the contractor and
To establish that he was working under the direct
control and supervision of the principal
employer.

International Airport Authority of India v.


International Air Cargo Workers Union,
(2009) 13 SCC 374
Contract is for supply of labour
Labour supplied by contractor will work
under the directions, supervision & Control of
the principal employer
If the salary is paid by contractor, the right to
regulate employment is with contractor then
ultimate supervision and control lies with the
contractor

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

The principal employer only controls and


directs the work to be done by a contract
labour but it is the contractor as employer
who chooses whether the worker is to be
assigned/allotted to the principal employer or
used otherwise.
Contract Labour Employer (Contractor)
Principal Employer

Part-time Employees: If Workman?


Div. Manager, New India Assurance Co., Ltd v.
A. Sankaralingam, (2008) 10 SCC 698
Devinder Singh v. Municipal Council, 2011
Lab. IC 2799
Definition of Workman does not make any
distinction between fulltime and part-time
employees or persons appointed on contract basis.

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Teacher: If Workman?
Miss A. Sundarmbal v. Govt of Goa, Daman &
Diu, (1989) 1 LLJ 62 (SC)
Amar Jyoti school v. Govt of NCT, (2009) 122
FLR 354
Imparting of Education is in the nature of a
mission or noble vocation

Trainees: If Workman?
Shri Vijay Kumar v. Presiding Judge, Labour
Court, (1983) 1 LLJ 30
Never offered employment after training, the
mere fact that wage slip mentioned that
petitioner has been confirmed will not make him
a confirmed employee. In order to become
workmen, there should be a separate order
confirming him on successful completion of
training

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Trambak Rubber Industries Ltd v. Nasik


Workers Union, (2003)6 SCC 416
>> Trainees Workman!!
All person employed were trainees and
there is no permanent workman. If there
were trainees then there should have been
trainers too.

Legal Assistant/ Legal Advisor: If


Workman?
Management of Sonepat Cooperative Sugar
Mills ltd v. Ajit Singh, (2005) LLR 309
Sonipat Central Co-operative Bank Ltd v.
Presiding Officer, Industrial Tribunal-cumLabour Court, 2012 LLR 26
Advocate, Legal Assistant & Legal Advisor cannot
come under the definition of Workman

10

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Recommendations of the 2nd National


Commission on Labour
Highly Paid Jobs
Raising wage ceiling limit to Rs 25000
Supervisors would be clubbed
managerial & administrative employees

with

Industrial Dispute Settlement


Mechanism (IDSM)

M. Mahindra Prabu
Asst. Professor (Law)
TNNLS

11

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Dispute Settlement Authorities


1.
2.
3.
4.
5.
6.
7.
8.

Works Committee
Conciliation Officers
Boards of Conciliation
Court of Inquiry
Labour Court
Industrial Tribunal
National Tribunal
Arbitration

Appellate and Superintending


Jurisdiction

12

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

The Supreme Court & High Courts have


appellate and Superintending Jurisdiction in
Labour matters under Articles 136, 226 &
227 of the Constitution of India.

Non-Statutory Machineries
Code of Discipline
Joint Management Council
Tripartite Machinery
Joint Consultative Machinery

13

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Works Committee

Why and Where?

14

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Why ?
To deal with day to day frictions between
management and workmen
Where ?
100 or more Workman

Constitution

Chairman
Vice Chairman
Secretary
Joint Secretary
Other Members

15

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Election

Trade Union
Role of Majority
Constituencies
Right to Know Employer (in writing)
Nominated Members?
Role of Assistant Labour Commissioner

Election
Union of India v. MTSSD Workers Union,
AIR 1988 SC 633
A) Where there is a Reg. TU having more than 50%
membership members of the works committee
will be elected without distribution of any
constituencies
B) If in an industry no TU regd. represents more
than 50% of workman, election will be held
between two i.e. Members of Reg TUs v. Nonmembers of TUs

16

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Functions
To reduce friction
Collective Bargaining?
Conditions of Service?

Decision
Award
Not an
Agreement
Compromise
Arbitrament

Not
Binding
Enforceable

17

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Assessment
Political Based TUs: Considers WC as Rivals
Division: [TU & Non TU]: Weakens Workmen
Strength
Non-Discussion No Bar to reference by the
Govt. [Decisions of Tribunals & Courts]

The ID (Central) Rules, 1957


Rule 39 42

18

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

GRM

20 or more
Equal representation
Members shall not exceed SIX
Women representation
Chairman shall be selected on rotational
basis

Conciliation
Persuasive Process
It a process by which a 3rd Party persuades
disputants to come to an equitable adjustment
of claims.
The 3rd Party is not himself a decision maker,
he who helps the disputants through
persuasion to amicably adjust their claims.
The Ultimate decision is of the disputants
themselves.

19

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Constitution
Conciliation Officer:
S.4
App. Govt
Either Permanently or for a limited period

BoC
S. 10(1)(a)
Ad hoc basis
Independent Chairman and one or two nominees
respectively of employers and workmen
Quorum 2/3 or 3/5
Proceedings Public In Camera

Powers of Conciliation Officer


Administrative Proceedings (not judicial or
quasi judicial)
Deemed to be a public servant u/s 21 of IPC
Call for attendance of any person
Call for inspection of documents
For the above purpose, he enjoys the powers
of the civil court

20

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Powers of BoC
Judicial Capacity
Judicial Proceeding u/s 193, 228 of IPC & s
345,346 & 348 of CrPC
Powers of Civil Court
More powers than C.O
Board can accept evidence

S.12 Duties of Conciliation Officer


Where an ID exists or apprehended
Notice - S. 22 w/r PUS
Submission of Report within 14 days of
commencement of proceedings

21

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

What will be the effect of the failure of a


conciliation officer to submit the report
within 14 days of the commencement of the
conciliation proceedings?
See State of Bihar v. Kripa Shankar Jaiswal, AIR
1961 SC 340

Whether a conciliation officer has jurisdiction


to initiate conciliation proceedings at a place
where the managements establishment is not
situated?
See M/s. Juggat Pharma (P) Ltd v. Deputy
Commissioner of Labour, Madras (1982) 2 LLJ 71

22

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Whether a conciliation officer could go into


the merit of the dispute and decide various
points in issue one way or the other?
See Madhavan Kutty v. UOI, (1982) 2 LLJ 212

BoC - Timelimit
Within 2 months or
Shorter time as fixed by the app. govt.
Time limit can be extended either by app.
govt. or by all parties to the dispute [S.13(5)]
Pendency of Conciliation Proceedings
S. 22(1) (d); 22(2) (d) and 33

23

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Settlement - CO

Must be in writing
Must be signed by the parties
Must be in the prescribed form
Termination agreed period or 6 months from
the date of signing until the expiry of 2 months
from the date of termination notice in writing
BoC Publication of Settlement within 30 days
from the date of receipt by app. govt. [S. 17(1)]

Court of Inquiry S.6(1)


Chairman & Members
One Independent Person or such no. of
Independent Persons as fixed by govt
Quorum
Less than 2 is 1;
2 or more but less than 5 is 2;
Five or more is 3.
Report to App. Govt. within 6 months Within
30 days publication Dissenting opinion allowed.

24

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

S.10 A Voluntary Arbitration


Conditions Precedent:
By Parties of an industrial dispute before the
reference u/s 10
Parties to arbitration are Er & Er or Er & Wm or
Wm & Wm
Only Industrial Dispute

Selection of Arbitrator
Any person
By Parties
Even Number then appointment of Umpire
must
Award of Umpire is final and shall prevail if
other arbitrators are equally divided

25

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Arbitration Agreement

Agreement must be in writing


Form C Rule 7 of IDCR, 1957
Signature of parties
Consent of arbitrators in writing
Submission of copy of arbitration agreement
to app. govt. and CO must.
Publication of arbitration agreement within 1
month from the date of receipt by app. govt.
in official gazette.

Assignment Qs
Whether the High Court has power of
superintendence over voluntary arbitrators
under Art. 226?
Whether an appeal would lie u/A 136 of the
Constitution from an arbitration award u/s
10A of ID Act?

26

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

S. 10 (1) Reference
Reference to BoC and CoI:
Where the appropriate government is of opinion
that any industrial dispute exists or is apprehended,
it may at any time, by order in writing refer the dispute to a Board for promoting a
settlement thereof; or [S.10(1)(a)]
(b) refer any matter appearing to be connected
with or relevant to the dispute to a court for
inquiry; or [S.10(1)(b)]

Reference to LC & IT
refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, if it
relates to any matter specified in the Second
Schedule, to a Labor Court for adjudication; or
[S.10(1)(c)]
refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute ,
whether it relates to any matter specified in the
Second Schedule or the Third Schedule, to a
Tribunal for adjudication [S.10(1)(d)]

27

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Provisos of S.10 (1)


PROVIDED that where the dispute relates to any
matter specified in the Third Schedule and is not likely
to affect more than one hundred workmen, the
appropriate government may, if it so thinks fit, make
the reference to a Labor Court under clause (c).
PROVIDED ALSO that where the dispute in relation to
which the Central Government is the appropriate
government, it shall be competent for that government
to refer the dispute to a Labor Court or an Industrial
Tribunal, as the case may be, constituted by the State
Government

Labour Court [S.7]


One Person Presiding Officer
By App. Govt.
Jurisdiction 2nd Schedule

Legality of order passed by Er u/SO


Application & Interpretation of SO
Discharge, Dismissal, Re-instatement
Strike or Lockout
Withdrawal of any privilege
All matters other than those specified by 3rd Schedule

28

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Qualification LC Judges
He is or has been
Judge of a HC or
DJ or ADJ (not less than 3 yrs) or
Any Judicial office (not less than 7 yrs) or
Presiding Off. of LC (not less than 5 yrs) or
Deputy Chief labour Comm. (Central) or Joint
Comm. of State labour dept having degree in law
& 7yr experience in Lab. Dept including 3 yr exp
as conciliation officer or
Officer of Indian legal Service in Grade III with 3
yrs experience in that grade

Award
Duty of the LC to submit its award to app.
Govt. within the specified time frame
mentioned in the reference order.
An award shall be in writing and signed by
P.O.
Publication of award by govt. (within 30 days
in such manner as the app. govt. thinks fit)

29

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Difference between Award,


Settlement, Order, Judgment & Decree
Award S.2(b) of ID Act
Settlement S. 2(p) of ID Act
Order S. 2(14) of CPC
Judgment S. 2(9) of CPC
Decree S. 2(2) of CPC

Industrial Tribunal (S.7A)

One Person Presiding Officer


By App. Govt.
Jurisdiction 2nd & 3rd Schedule
3rd Schedule
Wages, Compensatory & Other allowances, gratuity,
bonus, PF and profit sharing
Hrs of work, Intervals, shift working
Classification of Grades
Rules of Discipline
Retrenchment & Closure
Any matter that may be prescribed

30

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Qualification IT Judges
He is or has been
Judge of a HC or
DJ or ADJ (not less than 3 yrs) or
Deputy Chief labour Comm. (Central) or Joint
Comm. of State labour dept having degree in law &
7yr experience in Lab. Dept including 3 yr exp as
conciliation officer or
Officer of Indian legal Service in Grade III with 3 yrs
experience in that grade

Assessors:
By App. Govt
2 persons
To advise the IT in the proceedings before it

Reference to NT [S. 10 (1A)]


ID of National Importance (or)
ID involves more than one state
The Central Government may, whether or not it is
the appropriate government in relation to that
dispute,
whether it relates to any matter specified in the
Second Schedule or the Third Schedule
at any time, by order in writing, refer the dispute
to a National Tribunal for adjudication.

31

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

NT & JOA [S. 10 (6)]


Where any reference has been made under sub-section (1A)
to a National Tribunal, then notwithstanding anything
contained in this Act,
no Labor Court or Tribunal shall have jurisdiction to
adjudicate upon any matter which is under adjudication
before the National Tribunal.
if the matter under adjudication before the National
Tribunal is pending in a proceeding before a Labor Court
or Tribunal, the proceeding before the Labor Court or the
Tribunal, shall be deemed to have been quashed on such
reference to the National Tribunal; and
it shall not be lawful for the appropriate government to
refer the matter under adjudication before the National
Tribunal to any Labor Court or Tribunal for adjudication

National Tribunal [S.7(B)]

One or more National Industrial Tribunal [NIT]


One Person Presiding Officer
By App. Govt.
Jurisdiction
National Importance or
One or more States

Qualification
He is or has been a Judge of HC

Assessors (2) To advise NIT

32

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

NT and App. Govt [S.10(7)]


Where any industrial dispute, in relation to which the
Central Government is not the appropriate
government, is referred to a National Tribunal,
then, notwithstanding anything contained in this Act,
any reference in section 15, section 17, section 19,
section 33A, section 33B and section 36A to the
appropriate government in relation to such dispute
shall be construed as a reference to the Central
Government
but, save as aforesaid and as otherwise expressly
provided in this Act, any reference in any other
provision of this Act to the appropriate government in
relation to that dispute shall mean a reference to the
State Government.

S. 10 (2) - Reference by the request of


parties
S. 10 (2) - Where the parties to an industrial
dispute apply in the prescribed manner,
whether jointly or separately, for a reference
of the dispute to a Board, court, Labor Court,
Tribunal or National Tribunal, the
appropriate government, if satisfied that the
persons applying represent the majority of
each party, shall make the reference
accordingly.

33

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

S. 10 (2A) Time Limit


S. 10 (2A) - An order referring an industrial
dispute to a Labor Court, Tribunal or National
Tribunal under this section shall specify the
period within which such Labor Court,
Tribunal or National Tribunal shall submit its
award on such dispute to the appropriate
government.

Provisos of S. 10(2) & (2A)


PROVIDED that where such industrial dispute is
connected with an individual workman, no such
period shall exceed three months.
PROVIDED FURTHER that where the parties to an
industrial dispute apply in the prescribed manner,
whether jointly or separately, to the Labor Court,
Tribunal or National Tribunal for extension of such
period or for any other reason, and the presiding
officer of such Labor Court, Tribunal or National
Tribunal considers it necessary or expedient to extend
such period, he may for reasons to be recorded in
writing, extend such period by such further period as
he may think fit.

34

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Provisos of S. 10(2) & (2A) [Contd..]


PROVIDED ALSO that in computing any period
specified in this sub-section, the period, if any,
for which the proceedings before the Labor
Court, Tribunal or National Tribunal had been
stayed by any injunction or order of a civil court
shall be excluded:
PROVIDED ALSO that no proceedings before
a Labor Court, Tribunal or National Tribunal
shall lapse merely on the ground that any period
specified under this sub-section had expired
without such proceedings being completed

Prohibition of Strike or Lock-out


[S. 10 (3)]
Where an industrial dispute has been referred
to a Board, Labor Court, Tribunal or National
Tribunal under this section, the appropriate
Government may by order prohibit the
continuance of any strike or lock-out in
connection with such dispute which may be
in existence on the date of the reference.

35

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Framing of Adjudication Points


[S.10(4)]
Where in an order referring an industrial
dispute to a Labor Court, Tribunal or National
Tribunal under this section or in a subsequent
order, the appropriate government has
specified the points of dispute for
adjudication, the Labor Court or the Tribunal
or the National Tribunal, as the case may be,
shall confine its adjudication to those points
and matters incidental thereto.

Disqualification of P.O.
LC, IT or NIT
He is not an Independent person
(appointment)
He has attained the age of 65 years
(continuance)

36

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Powers
After giving reasonable notice, power to enter
premises C.O., BoC, P.O. [LC, IT, NIT]
BoC, LC, IT, NIT Powers of Civil Court
Judicial Proceedings
LC, IT, NIT Deemed to be a civil court
C.O., BoC, P.O. [LC, IT, NIT] Public Servants
LC, IT, NIT Award Costs
Awards of LC, IT & NIT = Decree of a civil court
and they should be executed under Order 21 of
the CPC.

Strike and Lockout

M. Mahindra Prabu
Asst. Professor (Law)
TNNLS

37

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Strike S. 2(q)
strike means
a cessation of work
by a body of persons employed in any industry
acting in combination or a concerted refusal, or a
refusal,
under; a common understanding of any number
of persons
who are or have been so employed to continue to
work or to accept employment;

Essential Requirements
Cessation of work:
Abandonment, stoppage, omission of performance of
duties of their posts, hampering or reducing normal
works, hindrance to the working or suspension of
work, refusing or failing to return or to resume
employment etc.
Must be Temporary & Voluntary
Length of time has nothing to do with S.2(q), Refusal
to work even for a few hours would amount to strike.
See State of Bihar v. Deodhar Jha, AIR 1958 Pat. 51.

38

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Concerted Action
The workers must act under a common
understanding i.e. the cessation of work by a body of
persons employed in any industry in combination is a
strike
In order to establish such a concert there need not be
any formal meeting, discussion or even interchange
of mutual consent or assent to a common purpose or
course of conduct. It may be deduced from similar
acts and course of conduct.
The expression concerted action indicates that it has
been planned, arranged, adjusted or agreed on and
settled between parties acting together pursuant to
some design or scheme. See Shamnagar Jute Factory v.
Their Workmen, (1950) LLJ 235 (IT)

Assignment
Discuss the Judicial Interpretation of
Combination, concert or common
understanding related to definition
of Strike under ID Act, 1947?

39

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Strike as a result of Industrial Dispute:


Cessation of work must be preceded by an
industrial dispute.
It is essentially a weapon of last resort being an
abnormal aspect of the employer-employee
relationship
The object of the strike must be connected with
employment,
non-employment,
terms
of
employment or terms and conditions of labour

Strikes in PUS
S. 22 - Prohibition of strikes and Lockouts
No person employed in a public utility service
shall go on strike in breach of contract (a) without giving to the employer notice of strike, as
hereinafter 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
proceedings before a conciliation officer and seven
days after the conclusion of such proceedings.

40

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Note:
Notice may be given by TU or representatives
of workmen
Notice of Strikes within 6 weeks before
striking is not necessary where there is
already a lock-out in existence
Notice of Strike shall not be effective after 6
weeks from the date it is given. So the strike
must be commenced within that period.

Strikes in Non-PUS
S. 23 General prohibition of strikes and Lockouts
No workman who is employed in any industrial
establishment shall go on strike in breach of contract
(a) during the pendency of conciliation proceedings
before a Board and seven days after the conclusion of such
proceedings;
(b) during the pendency of proceedings before a Labour
Court, Tribunal or National Tribunal and two months,
after the conclusion of such proceedings
(bb) during the pendency of arbitration proceedings
before an arbitrator and two months after the conclusion
of such proceedings, where a notification has been issued
under sub-section (3A) of section 10A; or
(c) during any period in which a settlement or award is in
operation, in respect of any of the matters covered by the
settlement or award.

41

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Types of Strikes

General Strikes
Stay-In Strikes
Hunger Strike
Lightning or Wildcat Strike
Sympathetic Strike
Go-Slow Strikes
Work to Rule

General Strike
GS is one where the workmen join together
for common cause and stay away from work
depriving the employer of their labour needed
to run his factory.
Two Phases:
Token Strike: For a day or a few hours or a
shorter duration to draw attention of employer
General Strike: For longer Period

42

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Stay-in or Sit-down or Pen-Down or


Tool-down Strike
Here the workmen report to their duties, occupy the
premises but do not work. The employer is thus prevented
from employing other labour to carry on his business.
Whether the above forms of strikes included under the
definition of S.2(q)?

Refusal under common understanding to continue to


work is a strike in pursuance of such common
understanding the employees entered the premises and
refused to take their pens in their hands, that would no
doubt be a strike under S.2(q)
See Punjab National Bank Ltd v. Their Workmen, (1959)
2 LLJ 666 (SC)

Hunger Strike
Hunger strike with fasting by some or all
strikers or even outsiders added to exert moral
force or perhaps what may be more aptly
described as coercion for acceptance of the
demands.
Hunger strike falls under the definition of
strike u/s 2(q) because it is accompanied by
cessation of work and there is demand related
to industrial dispute.

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Lightning or Wildcat Strike


It is a form of Strike wherein the workmen
suddenly withdraw their labour and bargain
afterwards.
Allowed in Non-PUS
Prohibited in PUS

Sympathetic Strike
It is resorted to in sympathy of other
striking workmen
No demand or grievance of their own
To extend moral support
Intention to use it against the management
is absent.

44

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Go Slow Strike
Workers deliberately slow down the
pace of production
Whether it comes under S. 2(q)?
What action can be initiated against the
workmen for go-slow strike activity?

Work-to-Rule
In the form of concerted activity, employees though
remaining on job, do the work literally in accordance
with the rules or procedure laid down for the purpose,
decline to do anything not mentioned therein, take all
permissible time of the job, and do the work in such a
manner that it results in dislocation of the work.
Harmonious working for maximizing production is
frustrated.
In these tactics, the workers literally work according
to rules but in spirit they work against them.

45

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Whether Right to Strike is a fundamental right


under Constitution?
Whether Right to Demonstrate is a
fundamental right under Constitution?
See Kameswar Prasad v. State of Bihar, (AIR
1962 SC 1166)

Right to Demonstrate
The freedom will come to an end as soon as
the right of someone else to hold his property
intervenes.
Restrain from holding demonstration within
100 m from the factory or residential
premises of the employer.
See Delhi Security Printer v. Hindustan Engg.
& General Mazdoor Union (1996) LLR 714

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Strikes & Government Servants

Meghraj v. State of Rajasthan, (1956) 1 LLJ 366


Essential Services Maintenance Act
TESMA
T.K. Rangrajan v. Govt of TN & Others, 2003 (6)
SCALE 84

Termination from service


Admn Tribunal or HC u/A 226
Statutory Prohibition
Moral/Equitable Justification to go on strike

Il-legal strikes and Lockouts


S. 24
(1) A strike or lock-out shall be illegal if (i) it is commenced or declared in contravention of section 22
or section 23; or
(ii) it is continued in contravention of an order made under
sub-section (3) of section 10 or sub-section (4A) of Section
10A.

(2) Where a strike or lock-out in pursuance of an


industrial dispute has already commenced and is in
existence at the time of the reference of the dispute to a
Board, an arbitrator, a Labor Court, Tribunal or National
Tribunal, the continuance of such strike or lock-out shall
not be deemed to be illegal, provided that such strike or
lock out was not at its commencement in contravention of
the provisions of this Act or the continuance thereof was
not prohibited under sub-section(3) of section 10 or subsection (4A) of section 10A.

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Contd..
S.24(3) A lock-out declared in consequence of
an illegal strike or a strike declared in
consequence of an illegal lock-out shall not be
deemed to be illegal.
S.10(3) Where an industrial dispute has been
referred to a Board, Labor Court, Tribunal or
National Tribunal under this section, the
appropriate Government may by order prohibit
the continuance of any strike or lock-out in
connection with such dispute which may be in
existence on the date of the reference.

Contd.,
S. 10A(4A) Where an industrial dispute has been
referred to arbitration and a notification has
been issued under sub-section (3A), the
appropriate government may, by order, prohibit
the continuance of any strike or lock-out in
connection with such dispute which maybe in
existence on the date of the reference

48

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Breach of Contract
Standing orders approved by Statutory authority,
govern the contractual relationship between the
workmen and employer
Breach of S.O = Breach of Contract of service.
For any strike to be illegal, mere breach of
contract of service is not enough to declare it as
illegal strike; the other conditions u/s 23 are also
required fulfilled. See Ballarpur Collieries Co. v.
Salim M. Merchant, (1967) II LLJ 201 (Pat).

Financial Aids
S. 25 - Prohibition of financial aid to illegal
strikes and Lockouts
S. 28 - Penalty for giving financial aid to
illegal strikes and Lockouts
6 months or Rs. 1000 or both

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Sanctions & Criminal Proceedings


S. 26 (1) Workman Illegal Strike - One
month or Rs. 50 fine or both
S. 27 Penalty for Instigation - 6 months or
Rs. 1000 or both
Criminal Court
Permission of Govt must
App. Govt.
Make a complaint or
Authorize someone else to file complaint

Assignment
Discuss the concept of Justified & Unjustifed
Strike and Lock-out?

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Punishments under ID Act

Dismissals
wages

Lock-Out [S. 2(l)]


Lock-out means the temporary closing of a
place of employment, or the suspension of
work, or the refusal by an employer to
continue to employ any number of persons
employed by him;
Kairbetta Estate Kotagiri v. Raja Manickam,
AIR 1963 SC 893
Lockout anti-thesis of the strike

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Ingredients of Lock-out
i.

Temporary closing of place of employment by


the employer or
ii. Suspension of work by the employer or
ii. Refusal by an employer to continue to employ
any number of persons employed by him
The above mentioned acts of the employer should
be motivated by coercion.
It must be in an industry as defined in the Act and
a dispute in such industry

Lock-Out in PUS [S.22]


No employer carrying on any public utility
service shall lock-out any of his workmen (a) without giving them notice of lock-out as
hereinafter provided, within six weeks before
locking-out; or
(b) within fourteen days of giving such notice; or
(c) before the. expiry of the date of lock-out specified
in any such notice as aforesaid. or
(d) during the pendency of any conciliation
proceedings before a conciliation officer and seven
days after the conclusion of such proceedings.

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

The notice of lock-out under this section shall not be


necessary where there is already in existence a strike
in the public utility service,
but the employer shall send intimation of such strike
on the day on which it is declared, to such authority as
may be specified by the appropriate government either
generally or for a particular area or for a particular
class of public utility services.
Penalty for Illegal Lock-out [S.26(2)]
Any employer who commences, continues, or
otherwise acts in furtherance of a lock-out which is
illegal under this Act, shall be punishable with
imprisonment for a term which may extend to one
month, or with fine which may extend to one
thousand rupees, or with both.

Wages & Lock-out

53

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Lay-off, Retrenchment, Transfer


of an Undertaking & Closure

M. Mahindra Prabu
Asst. Professor (Law)
TNNLS

S.2(kkk)
Lay-off means the
failure,
refusal or
inability of an employer
on account of
shortage of coal, power or raw materials or
the accumulation of stocks or
the break-down of machinery or
natural calamity or
for any other connected reason
to give employment to a workman whose name is
borne on the muster rolls of his industrial
establishment and who has not been retrenched;

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

LAY OFF

When a workman is said to be laid-off?


His/her name must be in muster rolls
He must present during normal working hrs
He has not been given employment by employer
within 2 hrs after reporting to duty.
If he is asked to present himself for second half
of the shift for the day and
employment is given then he has been laid-off only
for half of the day
Employment is not given, then he shall be entitled to
full basic wages and dearness allowances for that part
of the day

55

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Managements right to lay-off


Management has no right to lay-off its workman.
See Workmen of Dewan Tea Estate v. Their
Management, (1964) I LLJ 358
It is subject to
Standing Orders
Provisions under ID Act
S. 25M nlt100 Wm Permission for layoff
from App. Govt MUST No communication after
expiry of 60 days deemed to be granted

Chapter VA & VB
Layoff, Retrenchment, Transfer of an
undertaking & Closure
Chapter
VA

Ordinary
Industrial
Establishments
Chapter
VB

Special
Industrial
Establishments Applies to establishment not
less than 100 workmen

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

25C to E Layoff compensation


shall not applicable to industry which employed
less than 50 workmen on an average per working
day in the preceding month
Shall not applicable to seasonal industry

25Q Penalty for layoff without prior


government permission one month or
Rs.1000 fine or both

Compensation
As per Standing Orders and in the absence of
which, S.25C of ID Act says
50% of the total of the basic wage and
dearness allowance, provided he has
completed the service of one year or more

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Continuous Service S.25B


Uninterrupted Service
One year or Six months
One year
190 days (below ground i.e. mine)
240 days (above ground)

6 Months
95 days (below ground i.e. mine)
120 days (above ground)

The period of continuous service include


Sick leave
Maternity leave
Legal Strike
Leave with full wages
Lock-out

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Lay off to Retrenchment


If during any period of twelve months, a workman is
so laid-off for more than forty-five days, no such
compensation shall be payable in respect of any
period of the lay-off after the expiry of the first fortyfive days, if there is an agreement to that effect
between the workman and the employer.
It shall be lawful for the employer in any case falling
within the foregoing proviso to retrench the workman
in accordance with the provisions contained in section
25F at any time after the expiry of the first forty five
days of the lay off and when he does so, any
compensation paid to the workman for having been
laid off during the preceding twelve months may be
set off against the compensation payable for
retrenchments

Workmen not entitled to compensation


S.25E
No compensation shall be paid to a workman who has
been laid-off (i) if he refuses to accept any alternative employment in the
same establishment from which he has been laid off, or in any
other establishment belonging to the same employer situate in
the same town or village or situate within a radius of five miles
from the establishment to which he belongs, if, in the opinion
of. the employer, such alternative employment does not call. for
any special skill or previous experience and can be done by the
workman, provided that the wages which would normally have
been paid to the workman are offered for the alternative
employment also;
(ii) if he does not present himself for work at the establishment
at the appointed time during normal working hours at least
once a day;
(iii) if such laying-off is due to a strike or slowing-down of
production on the part of workmen in another part of the
establishment.

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Retrenchment

Retrenchment [S. 2(oo)]


Retrenchment means the termination by the
employer of the service of a workman for any
reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary
action

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21-11-2015

but does not include (a) voluntary retirement of the workman; or


(b) retirement of the workman on reaching the age of
superannuation if the contract of employment
between the employer and the workman concerned
contains a stipulation in that behalf; or
(bb) termination of the service of the workman as a
result of the non-renewal of the contract of
employment between the employer and the workman
concerned on its expiry or of such contract being
terminated under a stipulation on that behalf
contained therein; or
(c) termination of the service of a workman on the
ground of continued ill-health;

For any reason whatsoever


Barsi Light Railway Co., v. Joglekar (K N),
1957 SCR 121
SBI v. N. Sundara Money, AIR 1976 SC 1111
Krishna Iyer J

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Condition precedent to retrenchment of workmen


S. 25 F
Ordinary Industrial Establishments
S. 25 N
SIE [nlt]100 workmen
Conditions:
1. One month notice (w.r.)
2. Period of notice must expire or Wm must be paid in
lieu of notice, wages for the period of notice
3. Retrenchment Compensation
4. Wm Continuous Service < 1 year
5. Notice to App. Govt MUST
6. No communication after expiry of 60 days deemed
to be granted
7. Order of App. Govt 1 yr (in force)
8. App. Govt can review order on its own or by
application by Er or Wm

Procedure of Retrenchment
S. 25 G
LAST COME FIRST GO RULE
Q: whether a senior employee is retrenched,
retaining his juniors is valid?
See Madho Soru Land v. Chase Brigh Steel Ltd,
(1984) I LLJ 517 Bom.

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Illegal Retrenchment
Re- Instatement with back wages
Compensation in-lieu of re-instatement
S. 25 H: Re-employment of retrenched Wm
Opportunity & Preference
S. 25 Q: Penalty
1 Month or Rs. 1000 fine or both

ToU & Closure


Barsi Light Railway Co., v. Joglekar (K N), 1957 SCR
121
Termination of service as a result of
Real and Bonafide Closure
ToU
is not an retrenchment
S.25 FF 1956 Transfer Compensation
S.25 FFF 1957 Closure Compensation

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

S. 25FF Compensation to Wm in case of ToUs


Wm entitled to One month Notice and
Compensation
Either Compensation or Re-employment
Seller is liable to pay compensation
[New Horizon Sugar Mills Ltd v. Ariyur Sugar
Mill Staff Welfare Union, (2009) 3 CLR 682]

Closure
S.2(cc) - Closure means the permanent
closing down of a place of employment or
part thereof.
S. 25 FFF Wm 1 month notice +
Compensation
S. 25 FFA 60 Days Notice nlt 50 Wm

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Compensation
Compensation (same as R.C.)
Max Compensation: 3 months Salary
(unavoidable circumstances beyond the
control of the employer)

Unavoidable Circumstances beyond


the control of the employer
Following shall not be deemed as U.C.B.C.E
Financial Difficulties or
Accumulation of Undisposed Stocks or
Expiry of period of lease or
Exhaustion of Minerals or
Diff in Partnerships or
Shortage of Space or
Continued Losses or
Restrictions to Operate @ Night

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

What shall be considered as U.C.B.C.E?

Act of God
Enemy Action as in time of war
Action of State i.e Restraint on trade
When Wm create circumstances which lead
to closure
i.e. closure due to strike, threats, intimidation,
violent methods like stabbing and bomb throwing
by workers

Public Utility Services &


Unfair Labour Practices

M. Mahindra Prabu
Asst. Professor (Law)
TNNLS

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Public Utility Services

Public Utility Service [S. 2(n)]


public utility service means(i) any railway service or any transport service for the
carriage of passengers or goods by air;
(ia) any service in, or in connection with the working
of , any major port or dock;
(ii) any section of an industrial establishment, on the
working of which the safety of the establishment or
the workmen employed therein depends;
(iii) any postal, telegraph or telephone service;
(iv) any industry which supplies power, light or water
to the public;
(v) any system of public conservancy or sanitation;

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21-11-2015

(vi) any industry specified in the First Schedule


which the appropriate government may, if
satisfied that public emergency or public interest
so requires, by notification in the Official
Gazette, declare to be a public utility service for
the purposes of this Act, for such period as may
be specified in the notification.
PROVIDED that the period so specified shall not,
in the first instance, exceed six months but may,
by a like notification, be extended from time to
time, by any period not exceeding six months, at
any one time if in the opinion of the appropriate
government public emergency or public interest
requires such extension.

First Schedule
31 Industries
State Amendments
Ex: Banking, Cement, Coal, Cotton textiles, Food
stuffs, Iron and Steel etc.
Govt authorized to issue notification only in
respect of industries in 1st Schedule
Reasons: Public Interest or Public Emergency
Validity of Notification: 6 months (can be
extended further)

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Q: Whether Economic Processing Zones


(EPZ)/ Special Economic Zones (SEZ) are PUS
under Schedule I of IDA, 1947?
A: MEPZ SEZ in TN, vide State Amendment

M/s Saxby and Farmer (India) (P) Ltd.


v. Their Workmen, AIR 1975 SC 534
The SC held that, there should be more
concentration on increase of production and
efficiency than on enjoying the holidays if the
country is to march on the road to prosperity

69

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Management of Safdar Jung Hospital, New Delhi


v. Kuldeep Singh Sethi, AIR 1950 SC 1407
The SC held that,
Defn of PUS didnt intend that the entire concept of
industry in the Act could be ignored and anything
brought in. It is only industries which may be
declared to be PUS.
It is hardly to be thought that notifications can be
issued in respect of enterprises which are not
industries to start with.
All items in the 1st Schedule must first be
demonstrated to be industries and then the
notification will apply to them.

Unfair Labour Practice

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

S. 2 (ra)
unfair labor practice means any of the
practices specified in the Fifth Schedule.
5th Schedule:
Two Parts
Employer & TUs of Employer (16 Practices)
Interfere with right to form, assist or join TU
To recruit workmen during a legal strike etc.

Workmen & TUs of Workmen (8 Practices)


Wilful damage to employers property
Preventing other Wms from attending work etc.

History
1st Defined and Codified in Maharashtra
Recognition of Trade Unions and Prevention
of Unfair Labour Practices Act, 1971. [MRTU
& PULP]
Later in 1982, it was inserted into ID Act
along with 5th schedule and came into force
on 1984.
See Siemens Ltd v. Siemens Employees Union,
(2011)2 SCC (L&S) 593

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Difference Between MRTU & PULP and IDA:


Engage (MRTU&PULP) (Compre.)
Commit (IDA)
See Hindustan Lever Ltd v. Ashok Vishnu Kate,
1995 SCC (L&S) 1385

Concept of ULP
Arbitrariness and
Unreasonableness

Equality: Art. 14
Twin Objectives:
Industrial Peace and
Economic Justice

Victimisation
Not defined Dictionary Meaning
If a person is made to suffer by some exceptional
treatment it would amount to victimisation.
It may be victimisation in fact or law.
Major Misconduct dismissal or discharge based on
past records legal victimisation.
Ex: 10 Mazdoors 2 Operators Found asleep during
night shift Mazdoors let off with mere warning,
Operators dismissed Equated with Kill a fly with
sledge hammer Legal Victimisation ULP.
For an ULP there must be an allegation of
victimisation.
See Siemens Ltd v. Siemens Employees Union,
(2011)2 SCC (L&S) 593

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Prohibition & Penalty


S. 25 T Prohibits
S. 25 U 6 months imprisonment or Rs 1000
fine or both
Applicable to both parties Er & Wm and their
respective TUs.

Protection to workmen during


pendency of proceedings

M. Mahindra Prabu
Asst. Professor (Law)
TNNLS

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

S.33
S. 33(1) During Pendency of proceedings,
no employer shall
alter conditions of service to the prejudice of the
workmen or
Punish for misconduct connected with dispute
without express permission in writing from
authority before which proceeding is pending

S. 33 (2) During pendency of proceedings,


the Employer may in accordance with
S.O/Contract
Alter conditions of service immediately before
commencement of such proceeding in any matter
not connected with dispute
Punish Workman for misconduct not connected
with dispute, whether by dismissal or otherwise.
Provided no workman shall dismissed unless paid
with wages for one month and without any
approval by authority before which the
proceeding is pending

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Difference between S. 33(1) & (2)

S. 33(1)
Pending dispute
Service Conditions:
connected with dispute
Service Conditions
prejudicial to the workmen
concerned sought to be
altered
Service Conditions sought
to be altered affect
workmen concerned with
dispute

S. 33 (2)
Pending dispute
Service Conditions: not
connected with dispute
Any Service Conditions
whether prejudicial or not
to workmen sought to be
altered
Service Conditions sought
to be altered affect
workmen concerned with
dispute

Workman concerned with dispute?


Workman concerned with dispute cannot be
limited only to the workman who are directly
concerned with dispute but includes all
workmen on whose behalf the dispute has
been raised as well as those who would be
bound by the award.
See New India Motors Pvt Ltd v. Morris (K T),
(1960) 1 LLJ 551; Digwadih Colliery v. Ramji
Singh, (1964) 2 LLJ 551

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Whether pendency of proceedings before HC


comes under the purview of S.33 of IDA,
1947?
See Rajasthan State Transport Corporation v.
Abdul Hussain, 2010 LLR 490

S. 33 (3) & (4)


No Employer shall during pendency of
proceedings take any action against
protected workmen concerned in such
dispute by
Altering conditions of service prejudice to him
Punishing without express permission in writing
from authority before which proceeding is
pending

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Who is a Protected Workmen?


It means a workman who being an Officer of
Reg. TU connected with the establishment is
recognized as such in accordance with the rules
made in this behalf
Total no. of PWm shall be 1% of total workforce
Minimum: 5
Maximum: 100
App. Govt may make rules regarding manner in
which PWm may be chosen, recognized and
distributed among various TUs

S. 33 (5)
Where an Employer makes an application u/s
33(2) to concerned authority before which
proceeding is pending for approval of action
taken by him, the authority shall pass order
within 3 months but it may extend such
period with reasons recorded in writing.
No proceeding shall lapse merely on ground
that any period specified is expired.

77

Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Which of the following affects COS?


a)
b)
c)
d)

Lockout
Lay-off
Suspension
Transfer

a) Above all
b) Only a, b & c
c) Only d

See K Devender Reddy v. Singareni Collieries Co. Ltd,


(1999) LLR 242

Notice of Change
S. 9A
COS 4th Schedule
Employer can Change, provided 21 Days
Notice must be given to workmen prior
to change

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Mahindra Prabu, Asst. Prof. (Law)

21-11-2015

Remedy S. 33A
S.31 6 months imprisonment or Rs. 1000
fine or both
Make an application u/s 33A to concerned
authority before which proceeding is pending.

79