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lOMoARcPSD|3417081 Labour Laws - Notes based on previous year question papers Labour Laws - Notes based

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Labour Laws

Notes by Praveen Kumar

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Contents

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UNIT 1

4

1.

What is Industrial Dispute? Explain the essential requisites of an Industrial Dispute?

4

2.

Causes/Essential requisites of industrial Disputes:

11

3.

Explain the factors which were responsible for departure from the old theory of “Master and

 

13

4.

Outline the impact of industrial jurisprudence on labour welfare

16

5.

Explain the provisions of the Industrial Disputes Act, 1947 relating to award

22

6.

Labour Policy in India

30

7.

Labour Problems

32

8.

“Industry is an organised or occupied activity carried on with the cooperation of employer

and employee to meet its object”. Justify with aid of Bangalore water supply vs Rajappa case

34

9. Principles of Labour Legislation

40

10. Strike and Lockout

 

44

11. Explain the term ‘workman’

48

12. Explain ‘Industrial Dispute’.

When does an individual dispute become an Industrial

Dispute?

 

54

13. Write a Note on Settlement

57

14. Lay Off

 

58

15. Explain the provisions relating to recovery of money due from the employer under

Industrial Dispute Act

 

60

16.

Explain the provisions relating to closure of an undertaking under Industrial Disputes Act,

1947

62

17.

Discuss briefly the Authorities set up for the investigation of Industrial

64

18.

Conditions of service, etc., to remain unchanged

71

19.

Termination of service of workman by the employer for any reason whatsoever amounts

to retrenchment. Explain with the help of decided

76

20. Unfair Labour Practice

80

21. Explain the role of arbitration in resolving industrial

85

22. Write note on notice of

87

23. Registration of Trade Unions under the Trade Union Act 1926

91

24. Discuss the liability of the employer to pay compensation under the Workmen

Compensation Act

99

25. Benefits under Employees State Insurance Act 1948

108

26. Contributions, Employees State Insurance Act

116

27. Pension

124

28. Discuss the mode of Recovery of Moneys due from the employer under the EPF Act, 1952

126

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29.

How to determine the contribution towards provident fund ?

128

30.

State the procedure of employees insurance claims under the Employees State Insurance

Act,

129

31.

Discuss the salient features of the various schemes formulated under the Employees

Provident Fund Act,

140

32. “All workmen are employees but all employees are not work men”. Explain with the help

of decided cases

146

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UNIT 1

1. What is Industrial Dispute? Explain the essential requisites of an Industrial Dispute?

According to Sec. 2(k) of the Industrial Dispute Act, 1947,

“Industrial dispute means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person”

The above definition of industrial disputes brings out the following essential ingredients:

1) There should be a disputes or difference; 2) The disputes or difference may be between:

a)

employer and employer, or

b)

employer and workman, or

c)

workman and workman.

3)

The disputes or difference may be connected with:

a)

employment, or

b)

non employment, or

c)

the terms of employment, or

d)

conditions of labour of any person, and

4) The disputes should relate to an industry.

The definition further shows that certain type of disputes can never fall within its ambit. For e.g. disputes between a government and an industrial establishment or between workmen and non- workmen.

Definitions of industry (section 2) Section 2(J) of the act defines industry as follows:

“industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or vocation of workmen. From the above definition, industry appears to mean:

1) A business, such as merchandising, 2) A trade, such as cutler, 3) A manufacture, such as flour milling 4) An undertaking, such as an electricity company, 5) A calling, such as architect, 6) A services, such as transporter, or 7) An employment, which is a general term covering. Perhaps, the rest of the vocations.

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Definition of workman section 2(s)

“workman” means 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, 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 does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison, or

(iii)

who is employed mainly in a managerial or administrative capacity, or

(iv)

who being employed in a supervisory capacity, draws wages exceeding one thousand six

hundred rupees 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.]

The definition of workman has three essential parts:

1. Statutory meaning of workman;

2. Legal fiction, and

3. Categories of persons excluded.

Broadly speaking, the definition of “Industrial Dispute” may be analysed under four heads:

1. Factum of Industrial dispute

2. Parties to the dispute

3. Subject matter of the dispute

4. Origin of the dispute

Factum of Industrial Disputes The expression ‘dispute or difference’ connotes a real and substantial difference having some elements of persistency and likely, if not adjusted, to endanger the industrial peace of the community.

In Workmen of Hindustan Lever Ltd v. Hindustan Lever Ltd (1984), the Court observed:

The expression “Industrial Dispute” has been so widely defined as not to leave anything out of its comprehension and purview involving the area of conflict that may develop between employer and the workmen and in respect of which a compulsory adjudication may not be possible.

When does an Industrial Dispute come into existence? When parties are at a variance, and the dispute or difference is connected with the employment or non-employment or the terms of the employment or with the conditions of labour, there comes into existence an Industrial Dispute.

There is divergence of opinion on the issue whether a mere demand to the appropriate government or to the Conciliation Officer without a dispute being raised by the workmen with the employer regarding such demand can be called an industrial dispute?

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1963:

In Bombay Union of Journalists v. The Hindu (1963) it was held that the Industrial dispute must be in existence or apprehended on the date of reference. The net effect of the principle is that even if the demand was not made earlier before the management and rejected by them and is raised at the time of reference or during conciliation proceedings, the dispute may be an “industrial dispute”.

1968:

In Sindhu Resettlement Corporation Ltd v. Industrial Tribunal (1968) the SC said that if there is no dispute raised by the workmen with the management, any request sent by them to the government would only be a demand. A mere demand to the government without a dispute being raised cannot become an industrial dispute.

1978:

In Shambhunath Goel v. Bank of Baroda(1978), The court observed:

….to read into the definition the requirement of a written demand for bringing into existence an industrial dispute would be tantamount to rewriting the section.

Summary:

1993:

In M/s Village Paper Pvt. Ltd v State of Himachal Pradesh (1993), the court made the following observations:

1. A mere demand made to the Government cannot become an Industrial dispute without it being raised by the workmen with their employer.

2. If such a demand is made to the Government, it can be forwarded to the management and if rejected, becomes an Industrial dispute.

3. Though it is apparent for a dispute to exist, there must be a demand by the workmen or the employer, this demand need not be in writing, unless the matter pertains to a public utility service, in view of the provisions of section 22 of the Industrial Dispute Act 1947.

4. The demand need not be sent directly to the employer nor is it essential for it to be made expressly. It can even be implied or constructive e.g., by way of filing an appeal or refusal of an opportunity to work when demanded, by the workmen. A demand can be made through the conciliation officer, who can forward it to the management and seek its reaction. If the reaction is negative or not forthcoming and the parties remain at loggerheads, a dispute exists and a reference can be made.

5. Whether a dispute exists has to be decided in each case and is dependent on the facts and circumstances of that case. The critical time for this examination is the date of making this reference; material which comes into existence after the reference has been made is not relevant.

6. Only that dispute which exists or is apprehended can be referred. If there is a different kind of demand made before the management and the reference pertains to some other demand, then the reference is incompetent, e.g., reference pertains to reinstatement whereas the demand pertains to retrenchment compensation.

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7. The jurisdiction of the labour court/Industrial Tribunal is limited to the points specifically referred and matters incidental thereto. Since the scope of its jurisdiction and power is circumscribed by the order of reference, it is not permissible for it to go beyond the terms of reference.

8. Thus, if a reference is made without any demand having been made on the employer either expressly or impliedly, there is no occasion for the employer to point out the nature of the dispute so as to facilitate the government for making an appropriate reference of the dispute.

Parties to Dispute S.2 (k) of the Act considered a dispute to be an industrial dispute only if it takes place between- Employers and Employers Employers and Workmen Workmen and Workmen

Employers and Employers The term ‘employers and employers’ have been included in the definition in the Industrial Disputes Act 1947 to widen its scope and ambit. The disputes between employers and employers may arise in respect of wage matters in an area where labour is scarce or disputes of similar character.

Employers and Workmen Bangalore WC and Mills Co v Their workmen (1968) Trade unions as such are not mentioned in the definition of Industrial Dispute because they act on behalf of the workmen and therefore, when a trade union raises a dispute, the workmen are deemed to be parties to the dispute.

Due to the absence of an employer-employee relationship between a contract worker and principal employer, a dispute between them regarding the regularization of the service of contract workers cannot be called an industrial dispute.

In Rajaji Nagar Co-op Bank Ltd v. PO, LC a Division Bench of Karnataka High Court held that a dispute between the employees of a Co-operative Society and the management of the society relating to their employment is clearly excluded from the purview of the definition of industrial dispute u/s 2(k).

Workmen and Workmen This includes the disputes between them directly or through their trade unions. Such a dispute may be a demarcation dispute for example.

Subject-matter of Disputes A dispute or difference must relate either to:

Employment or Non-employment or Terms of employment or The conditions of labour of any person.

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The legislature used these phrases in the definition of Industrial Dispute so that all aspects of labour problems may be resolved through the industrial relations machinery provided under the Industrial Disputes Act 1947.

Employment Employment brings in the contract of service between the Employer and Employed. The concept of employment involves three ingredients:

1. The employer

2. The employee and

3. The contract of employment

The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works on hire basis. The employment is the contract of service between the employer where under the employee agrees to serve the employer, subject to control or supervisions.

Unemployment Unemployment is the opposite of employment. It is the positive or negative act of the employer that leads to unemployment. It may relate to an existing fact of unemployment or a contemplated unemployment.

Four illustrations cited by the federal court in Western Indian Automobiles Association v Industrial Tribunal are:

With respect to Employment:

1. An employer has already employed a person and a trade union says “Please do not employ him”.

2. An employer gives notice to a union saying that he wishes two particular persons. The union says “No”

With respect to Unemployment:

1. An Employer may dismiss a man, or decline to employ him.

2. An Employer contemplates turning out those who are already in his employment.

The expression unemployment is sufficiently elastic to include all cases of

1. Termination of service either voluntarily or by act of parties. The instances of this kind are dismissal, discharge, retrenchment, compulsory retirement etc. It also includes temporary unemployment, e.g., suspension, layoff, compulsory leave, lockout, strike etc. Further, it would include within its scope the words arising out of unemployment, e.g., reinstatement, reemployment, compensation, and back wages for wrongful termination of service.

Terms of employment The expression Terms of employment generally cover basic wages, Dearness Allowances and other allowances, wages on promotion, wages on demotion, wages on transfer out of town, wages for overtime work, wages for work on holiday, payment of wages, recovery of wages, bonus, retiral benefits, e.g., pension, provident fund, gratuity, pension etc.

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Conditions of Labour The expression conditions of Labour is much wider in scope and refers to the conditions of service under which they work and the amenities provided or to be provided to them. This expression may include hours of work, holidays, leave, health, safety and welfare of labour.

Apart from above, the following are also included based on decided cases:

1. Alteration of conditions of service of employees

2. Demand for modification of standing orders

3. Disputes regarding Contract Labour

4. Dispute on Lockout in disguise of Closure

5. Dispute of workmen whose cases are left unsettled

6. Transfer of workmen from one place to another

Origin of Industrial Dispute /Meaning: “Any Person" The scope of the expression “Any Person” occurring in the last part of the definition of Industrial Dispute has been a subject matter of Controversy. If construed literally, it may mean and include both natural and artificial persons. On the contrary, if interpreted narrowly, the expression of any person may be equated with workmen.

Prior to the Supreme court decision in Dimakuchi Tea estate (1958), there was no unanimity of

opinion with regards to the scope of the expression “Any Person”. Three views were discernible:

1. The first view emphasised the literal meaning and held that employment or non- employment or terms of employment or conditions of labour of any person whether that person is a workman or not could form the subject matter of Industrial Dispute. According to them, if the intention of the legislature was to restrict the scope of the expression of Industrial Dispute as a dispute between employers and workmen relating to the terms of employment of workmen alone, there was no need to use the wider expression of “Any Person”.

2. The second view equated the word person with that of workman. According to the supporters of this view, unless the person was a workman within the meaning of section 2(s) of the Industrial Dispute Act 1947, a dispute concerning him could not be an Industrial Dispute under section 2(k).

3. The third view adopted a middle course namely that the concerned person need not necessarily be a workman within the meaning of the act; it was enough if the present workmen of the employer were interested in such a person and the employer had the capacity to grant the requested demand. The supporters of this view emphasised that merely because such a dispute would become an Industrial dispute, it did not follow that the demand would be accepted.

Case Law: Workmen Of Dimakuchi Tea Estate vs The Management Of Dimakuchi tea

February, 1958 The question for decision in this appeal was whether a dispute raised by the workmen' relating to a person who was not a workman could be an industrial dispute as defined by S. 2(k) of the Industrial Disputes Act, 1947, as it stood before the amendments Of 1956.

on 4

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The appellants, who were the workmen of Dimakuchi Tea Estate, espoused the cause of one Dr. K. P. Banerjee, Assistant Medical Officer, who had been dismissed unheard with a month's salary in lieu of notice but who had accepted such payment and left the garden and the dispute raised was

ultimately referred by the Government for adjudication under s. 10 of the Act. Both the Tribunal and the Appellate Industrial Tribunal took the view that as Dr. Banerjee was not a workman within the

meaning of

the Act, the, dispute was not an industrial dispute as defined by S. 2(k):

Held, (per Das, C. J., and S. K. Das, J., Sarkar, J., dissenting), that the expression 'any person' occurring in S. 2(k) of the Industrial Disputes Act, 1947, cannot be given its ordinary meaning and must be read and understood in the context of the Act and the object the Legislature had in view. Nor can it be equated either with the word 'workman' or 'employee'.

The two tests of an industrial dispute as defined by the section must, therefore, be - (1) the dispute must be a real dispute, capable of being settled by relief given by one party to the other, and (2) the person in respect of whom the dispute is raised must be one in whose employment, non- employment, terms of employment, or conditions of labour (as the case may be), the parties to the dispute have a direct or substantial interest, and this must depend on the facts and circumstances of each particular case.

“Can it be said that workmen as a class are directly or substantially interested in the employment, non-employment, terms of employment, or conditions of labour of persons who belong to the supervisory staff and are, under the provisions of the Act, non-workmen and for whose representation the act makes no provision? The answer is No”

Applying these tests, the dispute in the present case which was in respect of a person who was not a workman and belonged to a different category altogether, could not be said to be a dispute within the meaning of S. 2(k) of the Act and the appeal must fail.

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2. Causes/Essential requisites of industrial Disputes:

The phenomenon of industrial disputes is inherent in the industrial system. This is because of the nature of industrial work, i.e., it involves division of labour, it is group work, and it is carried under control.

As the late Dr. Radha Kamal Mukherjee observed, “The development of a capitalistic industry which means the control of the tools of production by a small entrepreneur class has brought to the force the acute problem of friction between management and labour throughout the world”.

Cause-wise Industrial Disputes in India

the world”. Cause-wise Industrial Disputes in India Compared to the situation prevailing in early 1980s, it

Compared to the situation prevailing in early 1980s, it is noted from Table 25.1 that causes like wages bonus and allowances, leave and hours of work are much less important now, while causes like indiscipline and violence have become more responsible for industrial sickness.

The important causes of industrial disputes in India are summarized below:

The percentage distribution of disputes by causes from 1973 onwards has been shown in Exhibit 2 reveals the following causes of industrial disputes:

1. Wages and Allowances:

Since the cost of living has generally showed an increasing trend, the workers have been fighting for

higher wages to meet the rising cost of living and to increase their standard of living. 34.1% of the industrial disputes in 1973 were due to demand for higher wages and allowances. This percentage was 36.1% in 1974. During 1985, 22.5% of the disputes were due to wages and allowances. Wages and allowances accounted for 25.7% of disputes in 1986, 26.6% in 1992, 25.0% in 1996 and 20.2% in

2000.

2. Personnel and Retrenchment:

Personnel and retrenchment causes have also been important. During 1973, 24.3% of the industrial disputes were because of dismissals, retrenchment, etc. as compared to 29.3% in 1961. In 1979, personnel and retrenchment topped the list of causes of industrial disputes with 29.9%. The number of disputes because of personnel and retrenchment was 32.0% in 1971, 23.1% in 1985 and 19.8% in 1996. In 2000, about 12.1% of the disputes occurred due to dismissals, layoffs, retrenchments, etc.

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3. Bonus:

Bonus has been an important factor in the industrial disputes, 10.3% of the industrial disputes in

1973 were because of bonus as compared to 6.9% in 1961. 13.8% and 15.2% of the disputes were

due to bonus during 1976 and 1977 respectively. It is worth noting that during 1982 only 4.7% of the disputes were due to bonus as compared to 7.3% in 1985. This percentage was 4.2 in 1992, 3.6 in

1996 and 8.5 in 2000.

4. Indiscipline and Violence:

The number of disputes because of indiscipline and violence among the workers has been significant. During 1987, 15.7% of the disputes were because of indiscipline and violence as compared to only 5.7% in 1973. During 1985, 16.1% of industrial disputes were caused by indiscipline and violence and during 1996, about 21.6% of the industrial disputes arose due to indiscipline and violence in industrial undertaking. This shows that indiscipline and violence have continued to be a serious problem in industry during the past two decades.

5. Leave and Hours of Work:

Leave and hours of work have not been so important causes of industrial disputes. During 1973, 1.5% of the causes were because of leave and hours of work. Their percentage share in the industrial disputes was 2.2% in 1977, 1.8% in 1985, 2.2% in 1996 and 0.9% in 2000.

6. Miscellaneous Causes:

Miscellaneous causes include modernisation of plant and introduction of computers and automatic machinery recognition of union political factors, etc. These factors have caused a significant number of industrial disputes in the country, 24.1% of the industrial disputes in 1973 were due to miscellaneous causes. They accounted for 19.5% of the industrial disputes in 1977, 29.2% in 1985, 27.8% in 1996 and 33.2% in 2000.

Miscellaneous causes of industrial disputes are as follows:

(a) Workers’ resistance to rationalisation, introduction of new machinery and change of place of

factory.

(b)

Non-recognition of trade union.

(c)

Rumours spread out by undesirable elements.

(d)

Working conditions and working methods.

(e)

Lack of proper communication.

(f)

Behaviour of supervisors.

(g)

Trade union rivalry etc.

Thus, industrial disputes do not arise only when workers are dissatisfied on economic grounds, they also arise over issues which are of non-economic nature. Instances may be quoted when strikes where successfully organised to protest against the management’s decision to change the location of the plant from one state to another. Similarly, even causes like behaviour of supervisor and trade union rivalries may give rise to industrial disputes. The whole concept of industrial relations revolves around the principle of friction dynamics which is the key to the establishment of harmonious relations between labour and management. We cannot think of any society completely oblivious of some sort of friction between labour and management.

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3. Explain the factors which were responsible for departure from the old theory of “Master and Servant”.

During the twentieth century a new branch of jurisprudence known as Industrial Jurisprudence has developed in our country. Industrial jurisprudence, is a development of mainly post-independence period although its birth may be traced back to the industrial revolution.

Before independence it existed in a rudimentary form in our country. The growth of industrial jurisprudence can significantly be noticed not only from increase in labour and industrial legislations but also from a large number of industrial law matters decided by the Supreme Court and High Courts.

It affects directly a considerable population of our country consisting of industrialists, workmen and their families. Those who are affected indirectly constitute a still larger bulk of the country's population.

This branch of law modified the traditional law relating to master and servant and had cut down the old theory of laissez faire based upon the 'freedom of contract' in the larger interest of the society because that theory was found wanting for the development of harmonious and amicable relations between the employers and employees.

Individual contracts have been in many respects substituted by a standard form of statutory contract through legislation and judicial interpretation. The traditional right of an employer to hire and fire his workmen at his will has been subjected to many restraints. Industrial Tribunals can by their award make a contract which is binding on both the parties creating new rights and imposing new obligations arising out of the award. There is no question of the employer agreeing to the new contract, it is binding even though it is unacceptable to him. The creation of new obligations is not by the parties themselves. Either or both of them may be opposed to it, nevertheless it binds them. Thus, the idea of some authority making a contract for the workmen and employer is a strange and novel idea and is foreign to the basic principle of the law of contract.

Similarly, there is change in the concept of master and servant. One who invests capital is no more a master and one who puts in labour is no more a servant. They are employer and employees, the former may hire the latter but he can no more fire them at his will. The interest of the employees is in many respects protected by legislation. Both are now parties in an enterprise without one yielding to the higher status of another but as co-sharers in a partnership. The right of labour participation in management has been given legislative recognition to the utter despair of the capitalist. Most of the benefits claimed by a workman are not part of his bargain with the employer when the latter employed him or are not due to them on account of any contract but of "status". The industrial society all over the world has been moving during the present century from contract to status and this status is a politico-socio-economic juristic status.

What were the factors that led to this departure from the old theories of the law of contract, and the law of Master and Servant? Industrialisation in India, as in other countries, brought with it some

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new socio-economic problems. Those who control the industry have a natural tendency of multiplying their wealth and if this tendency is not checked the rich grow richer and the poor become poorer day by day. The gap between the rich and the poor ultimately grows on to the extent that it develops into two distinct classes in any industrial society, a few of whom are 'Haves' and others are 'Have-nots'. This economic disparity leads to a struggle between 'Haves' and 'Have-nots', the latter exploited.

Although this situation continues for some time and it had continued to be so in our country too, but gradually the workmen realised that they could put a better fight if they get united. This realisation was closely followed by a period of industrial unrest leading to strikes and lock-outs. In conditions so disturbed, the world has witnessed the horrors of two world wars resulting in spiral rise in the cost of living. With the rise in the cost of living there has been consistent demand from labour for increase in wages. Democratic ideas have also grown simultaneously with the growth of industrialisation in our country. These democratic ideas have pleaded for and have also helped in mass awakening and consciousness for greater power amongst the working class. Out of the struggle between workers, demanding for better share in the production and profit of the industry and the employers' hesitation to part with it beyond a certain limit, have grown the recognition of certain principles which are considered to be fundamental in almost all developed countries of the world.

The basic principles are:

(1) The right of workmen to combine and form associations or unions. (2) The right of workmen to bargain collectively for the betterment of their conditions of service. (3) The realisation that economic struggle is inevitable because it is but natural that labour agitate for better conditions. (4) A shift from the doctrine of Laissez Faire to a Welfare State. (5) Tripartite Consultations i.e., solution of the industrial or labour disputes through the participation of the workers, employers and the Government. (6) The State can no more be a neutral onlooker but must interfere as the protector of the social good. (7) Minimum standards must be guaranteed through State Legislation.

The concept of industrial jurisprudence in our country only developed after independence. Until Independence the change in attitude of the government and the benevolent labour legislation only aimed at amelioration of the conditions of labour and it could hardly be said to be a deal in social justice to the working class. The birth of industrial jurisprudence in our country may be ascribed to the Constitution of India' which made more articulate and clear the industrial relations philosophy of the Republic of India. This philosophy has afforded the broad and clear guidelines for the development of our industrial jurisprudence and has thus taken India one step forward in her quest for industrial harmony.' The Parliament and the Supreme Court have helped in shaping industrial jurisprudence, the former through legislation and the latter as interpreter of the labour laws.

Industrial jurisprudence is of great importance to all developed or developing countries of the world because it is concerned with the study of problems relating to human relations arising out of a large scale development of a factory system which has emerged in consequence of industrial revolution.

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Proper regulation of employer-employee relationship is a condition precedent for planned, progressive and purposeful development of any society. As an instrument of social policy in the present day body-politic the role of industrial jurisprudence has still gained importance, Industrial workers and their families are directly concerned with it.

In spite of its widening scope it cannot be forgotten that its application is limited in certain respects. For example, there are still a vast majority of the people who in their relationship are still governed by the ordinary law of contract based on laissez faire doctrine. Industrial jurisprudence is a developing concept. It derives its main strength from social justice which is dynamic and changing. The concept of social justice itself changes with the social, economic and political changes in society. Therefore, it has yet to take its final shape.

Industrial jurisprudence cannot, with all its high ideals, displace general jurisprudence just as no amount of social justice can abrogate altogether the concept of legal justice. Even while dispensing social justice the Courts, tribunals and arbitrators, whoever it may be, cannot ignore the law. Therefore, it would be correct to say that industrial jurisprudence is a species of the same genus jurisprudence and industrial jurisprudence in relation to industrial society stands in the same way just as general jurisprudence in relation to the total society.

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4. Outline the impact of industrial jurisprudence on labour welfare legislations.

Introduction The requisites for an efficient working unit are:

An amicable environment, Cooperation between the workers and the employers, Reasonable remuneration and Proper working conditions. From the laissez faire to the ‘welfare state’, the socio-economic conditions have faced drastic changes, not only in India but also across the world.

The industrial position that prevailed in the pre-independence era of India was not pristine. The industrial revolution in India brought with it certain inhumane as well as unjust aspects of the colonial era.

To cope with these problems, industrial legislations were enacted in India. To keep pace with the changing socio-economic conditions in India, the Legislature as well as the Courts had to check the unfavourable growth of the industrial legislations.

Industrial legislation finds its origin from industrial jurisprudence, which is a development of the 20 th century world. In India, industrial jurisprudence prevailed before Independence, but it was in rudimentary form.

The Industrial revolution was the emanating factor behind the growth of the industrial jurisprudence. The Industrial revolution brought with it the most inhumane aspects of human life. It saw the exploitation of man by man. The maximization of profit, even at the cost of the lives of the labourers, was the paramount goal of the employer. ‘Freedom of contract’ was the evident result of laissez faire. The employer was free to fire an employee arbitrarily. Thus the employees were always at the loss. To protect the interest of the employees, the legislature and courts in India took a giant step forward to give birth to Industrial Jurisprudence in India – the former through enactments and the latter through judgments.

The scope of industrial jurisprudence not only covers the protection of interests of the employees but it also aims at securing a cordial relationship between the employers and employees in a working unit.

The evil impact of the industrial revolution on India. As per the economic policy of the British government, they never wanted to make India an industrial base, rather they wanted to make India a supplier of raw materials for their industries. Instead of promoting industries in India, they continued to de-industrialise and ruralise the Indian economy. Further with the advent of the industrial revolution in England, the British government revved up its efforts to further exploit the Indian economy. As a result, in 1947, when the British left, India represented a ruined economy, a sick society and the evil effects of neo-colonialism. However, the evil impact of industrial revolution can be classified into Social Evils and Economic Evils, which are discussed as below:

Economic Evils. 1.The artisans lost the psychological satisfaction that they derived in producing goods themselves. In the industries, they had to produce only a part of the finished goods.

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2.The labourers were underpaid. They could just earn from hand to mouth. The wages were sufficient to provide them with daily bread, but at the cost of other necessities of life.

3.The term of employment was not secure. The employers were free to exercise their arbitrariness in sacking the labourers. The factory workers had to suffer from the periodic unemployment and under-employment.

Social Evils. 1.The overcrowded cities, due to the large-scale immigration of the village population in the cities led to the industrial slums and acute housing problems. It had its adverse impact on the health of the workers and also led to the sanitation problems in the cities.

2.The working condition in the factories were hazardous. Moreover, the long hours of duty, with no rest and no facilities of recreation marred the welfare of the workers. The machines were taken care of by the factory owners, with little regard for the safety of the workers.

3.Workers were exposed to serious accidents caused by the improperly managed machines in the factory. These accidents were not taken seriously by the factory owners. The victims of such accidents did not have any right to compensation.

4.Due to the inadequate wages, the wives and children of the workers were exposed to the exploitation by the factory owners. They were employed at low wages without regard to their physical conditions.

Labour problems in India. The factory owners paid their sole attention towards the maintenance of the machines irrespective of the health and working conditions of the workers. The employers neglected the conditions of the workers as the manual labour was abundantly available to them. The workers were underpaid. They could not raise their voice. They were illiterate and poor, so were ignorant of their rights. Taking the advantage of this situation, the employers dictated their own terms. The government also did not interfere in the matter as it was deemed to be a freedom of contract. The situation worsened further. The government could not just see it as a neutral player and it had to interfere. Moreover, some of the philanthropic agencies like the Servants of India Society and Social Service League raised voice against these problems. Later some industrial social workers also raised their voices against these problems. Initially, they lacked the resources and bargaining power but they were successful in mobilising the public voice against these problems. Later, the factory owners also realised the seriousness of the problem and also that a contended worker will add to the productivity of the factory. Later the Government also, could not confine itself as a neutral spectator. The Government also realised that it was in the interest of the national economy as well as the labourers that constitute a bulk of population in India. Thus the drive for the welfare of the labourers and for the protection of the Indian economy compelled the Government to intervene in the situation.

Evolution of industrial jurisprudence in India. The evolution of Industrial Jurisprudence in India can be traced back to the period of post- Independence. Before the Independence, the industrial jurisprudence existed in a rudimentary form. The paramount concern of the Pre-independence industrial jurisprudence was the amelioration of the working conditions of the workers at the factories. There was hardly any deal with social justice to the working class. It was only after the commencement of our Constitution, that adequate provisions for social justice to the workers were inserted. Before Independence, India was not only a great agricultural country, but also a manufacturing country. But the British Government, as a matter of their policies always tended to discourage the Indian industries. This led to widespread

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nationalism in India, which laid emphasis on the boycott of foreign goods. Further a non-cooperation movement saw its birth called the swadeshi movement, which emphasized on the use of indigenous goods and boycott of foreign goods. The aspect of industrialization in India was based on the program of planning, which was accepted after thirties. It is important to take into consideration that the plantation industry of Assam was the first to attract industrial legislation. The situation there was that the employers exercised hard practices against the employees. The employees were not allowed to leave the tea gardens. A number of Acts were passed from 1863 onward, but they only protected the interests of the employers. But the Workmen’s Compensation Act, 1923 was a landmark Act protecting the interests of the Employees.

Indian constitution and social justice. Industrial Jurisprudence was not in a much developed form before the commencement of the Constitution of India. Before Independence, the paramount concern of the Government was to ameliorate the working conditions of factory workers. It was after the commencement of the Constitution that the paramount concern of the Government shifted towards social justice for the labourers, who constituted the bulk of the population.

The Indian Constitution enshrines the idea of social justice as one of the objectives of the State. Some of those provisions are as follows:

1. The State shall strive to promote the welfare of the people by securing and protecting as

effectively as it may, a social order in which justice; social, economic and political, shall prevail.

2. The State shall, in particular, strive to minimise the inequalities in income, and endeavour to

eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

3. The State shall, in particular, direct its policy towards securing -

a. That the citizens, men and women equally, have the right to an adequate means of livelihood;

b. That the ownership and control of material resources of the community are so distributed as best

to sub serve the common good;

c. That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

d. That there is equal pay for equal work for both men and women;

e. That the health and strength of workers, men and women, and the tender age of children are not

abused and that citizens are not forced by economic necessity to enter avocations unsuited to their

age or strength;

f. That children are given opportunities and facilities to develop in a healthy manner and in

conditions of freedom and dignity and that childhood and youth are protected against exploitation

and against moral and material abandonment.

Some important labour enactments in India. The salient features of the Central and State Labour Acts in force in the district are given hereunder:

1. The Indian Factories Act of 1948 provides for the health, safety and welfare of the workers.

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2. The Punjab Shops and Commercial Establishment Act, 1958, regulates the conditions of work and

terms of employment of workers engaged in shops, commercial establishments, theatres, restaurants, etc.

3. The Punjab Maternity Benefit Act, 1943, provides for the grant of cash benefits to women workers

for specified periods before and after confinements.

4. The Employment of Children Act, 1938, prohibits the employment of young children below the

age of 15 years in certain risky and unhealthy occupations.

5. The payment of wages Act, 1936, regulates the timely payment of wages without any

unauthorized deductions by the employers.

6. The Minimum Wages Act, 1948, ensures the fixation and revision of minimum rates of wages in

respect of certain scheduled industries involving hard labour.

7. The Industrial Disputes Act, 1947, provides for the investigation, and settlement of industrial

disputes by mediation, conciliation, adjudication and arbitration. There is scope for payment of

compensation in cases of lay-off and retrenchment.

8. The Industrial Employment (Standing Orders) Act, 1946, requires employers in Industrial

establishments to define precisely the conditions of employment under them and make them known to their workmen. These rules, once certified, are binding on the parties for a minimum period of six months.

9. The Workmen’s Compensation Act, 1923, provides for compensation to injured workmen of

certain categories and in the case of fatal accidents to their dependants if the accidents arose out of and in the course of their employment. It also provides for payment of compensation in the case of certain occupational diseases.

10. The Indian Trade Unions Act, 1926, recognizes the right of workers to organise into trade unions,

when registered, have certain rights and obligations and function as autonomous bodies.

11. The Employees’ State Insurance Act, 1948, provides for sickness benefit, maternity benefit,

disablement benefit and medical benefit.

12. The Employees’ Provident Fund Act, 1952, seeks to make a provision for the future of industrial

worker after he retires or in case he is retrenched, or for his dependents in case of his early death.

13. The Punjab Industrial Housing Act, 1956, provides for the administration allotment, realization of

rent, etc., in connection with quarters constructed under the Subsidized Industrial Housing Scheme.

Recent trends in labour law. The experience in India during the last 50 years has been that the Supreme Court of India, various High Courts, Industrial Tribunals and Labour Courts have enriched the country with a variety of precedents of labour demands by their sweat and toil and missionary research from almost a barren and fallow field of labour jurisprudence. They have handed down to the world community jurisprudence, as living as dynamic, as valid as sound, which has redeemed the lost faith of industrial masses in law and justice. Their contribution to the development of labour law and redemption of social values of law and justice, is unparalled in the world history of jurisprudence, far exceeding the contribution made by Equity in England. Adjudication of industrial demands being a complicated task, the Tribunals have to go into the merits of each issue which necessarily means examination,

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analysis and appreciation of the labour economics, the sociological approach and the relevant technical aspects of every issue. The demands concerning labour problems have often been subjected to expert studies and researches by high powered bodies of International Labour Organization, Indian Labour Conference, Labour Investigation Committees, Wage Boards, Pay Commissions and various Government bodies, etc. In fact, these Reports and Recommendations have often been adopted by the Supreme Court, High Courts and Industrial Tribunals as guidelines. According to Section 10 of the Industrial Disputes Act 1947, the appropriate government is empowered to refer a dispute to the Tribunal. This power of the appropriate government is independent of the fact whether conciliation proceedings have been held or not. However, in practice, a dispute is referred to the Tribunal/ Labour Court for adjudication by the appropriate government after considering the failure of conciliation report received from the conciliation officer.

Role of labour courts in settlement of industrial disputes. Adjudication has dug deep roots in the field of labour. Though collective bargaining caters to long- term peace and organised trade unions and established concerns prefer to bargain and amicably settle labour demands, failure to settle amicably often makes adjudication the preferred trial of strength. Except for a handful who resort to strikes and lockouts, exceptions which only prove the general rule, labour has come to cultivate the habit of adjudication. This confidence in adjudication has been inspired by the benefits earned by labour through this system. Employers in the country have found adjudication beneficial to them in as much as it not only curbs the habit of labour to direct action but also serves as a powerful check and control on the extravagances of the demands and costs of labour. The State can hardly find a better substitute for effecting social and economic justice through rule of law in the labour field. Industrial adjudication has, therefore, very much come to stay in our country. The technique of industrial adjudication is a dynamic and revolutionary process of transforming traditional jurisprudence — which has proved wholly ineffective and impotent in protecting the poor industrial masses from social injustice and economic exploitation (resulting from industrial revolution) — into a progressive and flexible legal institution of social regeneration and economic justice. It has, to some extent, redeemed the infamy of individualistic legal systems and demonstrated that with the injection of right doses of progressive social philosophy, law and jurisprudence can become potential agents of social and economic progress.

Competence and Jurisdiction of Labour Courts/Industrial Tribunals Under Section 7 of the Industrial Disputes Act 1947, a Labour Court constituted by the appropriate government is competent to adjudicate and render awards on the matters mostly relating to rights, such as:

1. Discharge or dismissal of workmen, including reinstatement of, or grant of relief to, workmen

wrongfully dismissed;

2. Withdrawal of any customary concession or privilege;

3. Illegality or otherwise of a strike or lockouts; and

4. All matters other than those specified in Schedule Ill.

Industrial tribunals. Industrial Tribunals under Section 7A of the Industrial Disputes Act 1947 have also been constituted to adjudicate upon the issues falling within Schedules II and III, i.e. rights disputes and interests disputes.

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Under Sections 7,8 of the Industrial Disputes Act 1947, the Central Government may also constitute

a

national Tribunal to adjudicate the disputes if it involves any question of national importance or it

is

of such nature that industrial establishments situated in more than one State are likely to be

interested or affected by such disputes whether or not it is the appropriate government in relation to that establishment. Labour courts or industrial tribunals are also competent to inquire into and investigate industrial disputes referred to them and upon adjudication, render awards which are binding on the parties. The Labour Courts and Industrial Tribunals also act as forum of appeal under Section 11A in the matter of discharge, dismissal or termination of employment.

Conclusion. Industrialisation creates a number of social and economic problems like employment of women and children, minimum wages, trade unions, unsanitary living quarters and deplorable working conditions in the factories, etc. Labour laws are, therefore, enacted to facilitate their solutions, as ordinary civil laws are inadequate to meet them. The State has adopted a progressive policy, and is keeping pace with the labour policy of the Government of India and the standard laid down by the International Labour Organisation. This has produced a plethora of legislation and their administration. These laws also deal with the regulation of industrial relations between the management and the workers. Both the Legislature as well as the Judiciary in India have played their due role in shaping the Labour Legislation in India.

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5. Explain the provisions of the Industrial Disputes Act, 1947 relating to award.

Award [Section 2(b)]

The expression 'Award' is a determination of -

An industrial dispute, or

A question related to an industrial dispute.

Award includes -

A Final as well as an Interim determination, or

An arbitration award made under Section 10-A (Voluntary reference of disputes to

arbitration.)

The awards are made by any Labour Court, Industrial Tribunal, National Industrial Tribunal or an Arbitrator/ Arbitrators.

Interim Award:

The legislature has not defined the word interim award occurring in Section 2(b) of the Industrial Disputes Act, 1947. The courts and the tribunals adopted the dictionary meaning of the term 'interim' in determining the interim award.

For instance, in Thakur Yugal Kishor Sinha v. State of Bihar the High Court of Patna adopted the meaning given in the Oxford Dictionary, a temporary or provisional arrangement, adopted in the “meanwhile”. The Court accordingly held that 'manifestly, the word 'interim' in such a context must mean provisional or temporary arrangements made in a matter of urgency and subject to a final adjustment or complete determination of the dispute, for example, a payment on account pending final settlement of the amount in the present case.

In this regard the following principles are noteworthy:

(1) An interim award is not the final determination of some of the points involved in an

industrial dispute. It is a provisional or temporary arrangement made in a matter of urgency

and subject to a final adjustment on the final determination of a dispute.

(2) Interim relief is granted in aid of the final relief to be granted. If final relief itself cannot be

granted no temporary relief of the same nature can be given. While awarding interim relief, the

final adjustment to be made at the time of the award must be kept in mind.

Limitation on power to make award.

The Court and Tribunal are to function within the limit imposed by the statute. The powers are exercised not in an arbitrary or absolute fashion. The Labour Tribunals should confine themselves to pleadings and issues and to ascertain the real disputes between the parties to narrow the area of conflict and to see where the two sides differed.

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Res Judicata Where an award in respect of an industrial dispute, has been given by a competent Tribunal, adjudicating on the dispute between the parties, the principle of res judicata as provided in Section 11 of the Civil Procedure Code does not apply, but it can definitely be said that reagitation of the same point is not in the interest of the industry and because the question has already been adjudicated upon there is no bona fide dispute for adjudication.

Power of the High Court to interfere with award.

In Workmen C.S. W.F.Mysore v. Ind. Tribunal the award given by the Tribunal on the basis of settlement arrived at between the management and one of the two rival groups of office-bearers of a registered trade union representing the workmen was challenged under Article 226 before the High Court. The office-bearers of the rival group though present when the settlement was filed and evidence was recorded took no part in the proceedings before the Tribunal. It was held on the particular facts and circumstances of the case that the High Court was justified in refusing to interfere with the award, particularly in view of the fact that the award was beneficial to a substantial body of workmen of the factory.

Power of Tribunal to grant interim relief.

Where the reference concerning several matters such as fixation of wage scales, classification, etc., was pending for a long time, the Tribunal has the power to grant interim relief to workmen without prejudice to the right of the parties to have their full say at the time of passing of final award.

Section 15. Submission of an award.

Section 15 enjoins the labour court, tribunal or national tribunal to

1. Hold its proceedings expeditiously and

2. As soon as practicable on conclusion thereof, submit its award to appropriate government.

The non-submission would render the award inoperative. The provisions of the Section are inadequate for several reasons:

First, a perusal of various reported decisions, however, reveals that despite the requirement of the Act to submit the award as soon as it is practicable on the conclusion of the proceedings, the time taken by the tribunal is quite long. Further, instances are not lacking where the tribunals have taken over 3 years.

Second, Section 23 prohibits strikes and lockouts during the pendency proceedings before an arbitrator, labour court, tribunal or national tribunals and 2 months after the conclusion of such proceedings.

Since the parties cannot exercise legal strike or lockout during the pendency of proceedings before a labour court, tribunal, national tribunal or an arbitrator, the need for the prescribed time limit within which the adjudication/arbitration authorities may submit their award is significant.

Third, under Section 33, the management is debarred from exercising its prerogative during the pendency of proceedings before a labour court, tribunal, national tribunal or arbitrator. This

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provision also requires that the time limit under section 15 should be certain.

Fourth, for industrial peace and harmony which is the avowed objective of the IDA 1947, it is essential that disputes must be settled at an early date. Under the circumstances, it is suggested that Section 15 should be amended and the-time limit should be prescribed for the submission of the award.

Section 16. Form of report and award.

The report of a Board of Conciliation or Court of Inquiry, or the award of any Labour Court, Industrial Tribunal or National Tribunal shall be in a writing.

The Board or Court may consist of more than one person. Therefore, the report of a Board or Court must be signed by all the members.

Proviso to Section 16(1) says that any member of the Board or Court may record any minute of dissent from a report or from any recommendation made therein. Even a dissenting member must put his signature over the report. Unless every member signs over the report, it shall not be valid.

The award of the Labour Court, Industrial Tribunal and National Tribunal should be signed by Presiding Officer.

Section 17, Publication of report and award Section 17 (1) of the Industrial Dispute Act, 1947 which deals with publication of the award by the appropriate government provides:

every arbitration award and every award of the labour court, tribunal or national tribunal shall, within a period of thirty days from the date of its receipt by the appropriate government, be published in such manner as the appropriate government thinks fit.

The aforesaid provisions raise several issues:

(i)

Whether the provisions of Section 17 are mandatory or directory?

(ii)

What will be the effect of withholding the publication of the award?

(iii)

Whether the publication of the award after the expiry of statutory period of 30 days would make the award invalid or unenforceable?

(iv)

Does the interim award need to be published?

(v)

Whether the award will be taken to have been published on the date of notification of

the government or on the date on which such notification appeared in the gazette?

(i) Section 17 is couched in mandatory form making it obligatory on the Appropriate Government to publish the award within thirty days.

The Judicial Response.

(ii)

Withholding the publication of industrial award. In Sirsilk ltd v . Government of Andhra Pradesh, the Supreme Court was faced with the problem as to what would happen in a situation where the settlement was arrived at between the parties to a dispute on which an award had been given by the industrial tribunal but was not published. The Supreme Court solved this problem by directing the government to withhold the publication of the award in view of the settlement.

(iii)

Effect of Non-publication of the Industrial Award within the Prescribed period

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The Supreme Court' decision in Remington Rand of India . v The WorkJmen, throws light on this question. In this case, the award was made by the industrial tribunal on October 1966. It was received by the appropriate government on 14 October 1966. But it was published in the Kerala Gazette on 15 November 1966. On these facts, the appeal was referred against the award of industrial tribunal. The appellant raised an objection, inter Alia, that the award was inoperative and unenforceable as it was published after the expiry of the period fixed by Section 17 (1) of the Industrial Disputes Act, 1947. The Supreme Court, it appears, in an attempt to justify the delay in the publication of the award overruled the objection. Speaking for the court, Justice Mitter observed:

Section 17(1) makes it obligatory on the government to publish the award. The limit of time has been fixed as showing that the publication of the award ought not to be held up. But the fixation of the period of 30 days mentioned therein does not mean that the publication beyond that time will render the award invalid

The court accordingly held that the provision as to the time limit in section 17(1) was merely directive and not mandatory.

(iv) Publication of Interim Award.

There is no provision in the Industrial Disputes Act, 1947, dealing specifically with the publication of an interim award. As already stated, Section 17 deals with the publication of the award and since the award has been defined to include an interim determination of any industrial dispute or a question relating thereto by the tribunal, the question arises whether the interim award should be published? This question has been the subject matter of controversy before tribunals and courts. In Allen Berry & Co. Ltd v . Their Workmen, the labour appellate tribunal was called upon to decide the question whether interim awards are required to be published under the Industrial Disputes Act 1947. The labour appellate tribunal answered the question in the negative. It rationalized:

Section 15 of the Act required the tribunal to submit its award to the appropriate government on the conclusion of the proceedings. The word 'proceedings' in this section, in our judgement, means the whole proceedings that is to say, all that had been referred to the tribunal by the appropriate government for adjudication. It is, therefore, in our judgement not obligatory on a tribunal to submit an interim award to the appropriate government before the final award is made and if it chooses not to submit it before that time a fortiori the question of publication of such an award by the appropriate government does not arise.

It accordingly held that the interim award need not be published under section 17.

Date of Award.

The question came up for consideration of the Supreme Court in Lloyds Bank Ltd v. Lloyds Bank Union Staff Association In this case, the award was published under Section 17 of the Industrial Disputes Act, 1947, by the appropriate government notification of the Ministry of Labour on 17 January i950, but the notification appeared in the Gazette on 28 January 1950 The question, inter alia, for the consideration of the Supreme Court was on which date the award will be taken to have been published. Answering question, the Supreme Court held that the award must be taken to have been published 17 January 1950 and not on 28 January 1950.

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Commencement of the Period. Section 17 A (4) of the Industrial Disputes Act, 1947, provides:

Subject to the provisions of Sub-section (1) and Sub-section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is specified, it shall come into operation on the date when the award becomes enforceable under Sub-section (1), or Sub-section (3), as the case may be.

The aforesaid provisions indicate that There is difference between 'enforceability' of award and its 'operation';

If for any reasons an award does not become 'enforceable', it can never come into 'operation'; and That the date on which an award comes into operation may, or may not be the date on which it becomes 'enforceable'.

A tribunal may direct the grant of the benefits of its award from a date:

A date anterior to the date on which the demand was first made (See Jhagrakhand Collieries (Pvt.)

Ltd v. Central Government Industrial Tribunal, (1960) 2 LLJ 71 (SC)).

A date On which the demand was first made. (Inder Singh & Sons Ltd v. Their Workmen, (1961) 2

LLJ 89 (SC). Sarua Shramik Sangh v. Indian Hume Pipe Co. Ltd, (1993) Lab, IC 8 0 (SC)).

A date Posterior to the date on which the demand was first made but anterior to the date of

reference. United Collieries Ltd v. Its Workmen, (~61) 2 LLJ 75 (SC)

A date On which the reference was made. (269Hindustan Times Ltd v. Their Workmen, (1%3) 1 LLJ

108 (SC))

A date Posterior to the date of refer nee but anterior to the date of the submission of the award.

(Raj Kamal Kalamandir (Pvt.) Ltd v. Indian Motion Picture Employees Union, (1963) 1 LLJ 318 (SC), Wenger & Co. Ltd v. Their Workmen, (196~ 2 LLJ 403 (SC).

vi) A date On which the award is submitted

vii) A date Posterior to the date of submission of the award but anterior to the date on which it becomes enforceable

(viii) A date On which the award becomes enforceable

(ix) A date Posterior to the date on which the award becomes enforceable

In a series of cases, the Supreme Court has emphasized that under section 17 A (4) the tribunal is

empowered to indicate the date an award Shall come into operation and that date can be any of the dates mentioned above. Where, however, a tribunal without specifying the date on which an award shall come into operation, directs grant of benefits from a specific date, the Supreme Court is of the view that an award comes into operation from that date.

Finality and Enforceability of Award Section 17 A provides:

1)

An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under Section 17:

Provided that:

(a)

if

the appropriate government is of opinion, in any case where the award has been given

by a labour court or tribunal in relation to an industrial dispute to which it is a party; or

(b)

if the Central Government is of opinion, in any case where the award has been given by

a national tribunal,

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that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate government or as the case may be, the Central Government may, by notification in the official gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.

(2)

Where any declaration has been made in relation to an award under the proviso to Sub- section (1), the appropriate government or the Central Government may, within ninety day from the date of publication of the award under Section 17, make an order rejecting or modifying the award and shall on the first available opportunity, lay the award together with a copy of the order before the legislature of the state, if the order has been made by a state Government, or before parliament, if the order has been made by the Central Government.

(3)

Where any award as rejected or modified by an order made under Sub-section (2) is laid before the legislature of a state or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid and where no order under Sub-section (2) is made in pursuance of a declaration under the proviso to Sub-section (I), the award shall become enforceable on the expiry of the period of ninety days referred to in sub-section (2),

(4)

Subject to the provisions of sub- section (1) and sub-section (3) regarding the enforceability of an

award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it hall come into operation on the date when the award becomes enforceable under sub- section (1) or sub-section (3), as the case may be.

Section 18. Persons on whom settlements and awards are binding.

Section 18 of the Act enumerates persons on whom settlements and awards are binding. For this purpose, settlements are classified in two categories,

namely-

(i) settlement arrived at otherwise than in the course of conciliation proceedings, i.e., without the

aid of statutory agency, and (ii) settlement arrived at in the course of conciliation proceedings, i.e., with the aid of statutory agency.

In the former case a settlement under Section 18(1) arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceedings shall be binding on the parties to the agreement. But any such settlement in order to be binding must be signed by the parties thereto in the manner prescribed by rule and a copy of it must also be sent to the Appropriate Government.

Section 18(2) which is made subject to the provisions of Section 18(3) provides that an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to the arbitration. Sub-section (3) provides that-

(i)

A settlement arrived at in the course of conciliation proceedings under this Act: or

(ii)

An arbitration award in a case where a notification has been issued under sub-section (3-A) of Section 10-A or

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(iii)

an award of a Labour Court, Tribunal or. National Tribunal which has become enforceable shall be binding on:

a)

all parties to the industrial dispute,

(b)

all other parties summoned to appear in the proceedings as parties to the dispute, unless the

Board, Arbitrator, Labour Court, Tribunal or National Tribunal as the case may be, record the opinion that they were so summoned without proper cause,

(c) where a party referred to is an employer, his heirs, successors or assigns in respect of the

establishment to which the dispute relates,

(d) where a party referred to in Clause (a) or Clause (b) is composed of workmen, all persons who

were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part thereof.

Section 19. Period of operation of settlements and awards. Section 19 of the Act deals with the period of operation of settlement and awards.

Sub-sections (1) and (2) deal with commencement and period of operation of settlements arrived at in the course of proceedings before a Conciliation Officer or Board.

Sub-sections (3) to (7) deal with the period of operation of award.

Period of operation of settlements For the purpose of operation, settlements are classified in two categories, namely:

(i)

Settlements in which the date of operation is fixed; and

(ii)

Settlements in which no date of operation is fixed.

In the former case, the settlement shall come into operation on the date agreed upon by the parties to the dispute. In the latter case, it shall come into operation on the date on which the memorandum of the settlement is signed by parties to the dispute.

Sub-section (2) says that the settlement shall be binding for such period as is agreed upon by the parties. If no period is agreed upon it shall be binding for a period of six months from the date on which the memorandum of settlement is signed by the parties to the dispute. The settlement shall continue to be binding after expiry of the entire period as aforesaid and until the expiry of further period of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement.

Period of operation of awards. Section 19(3) provides that an award shall remain in operation for a period of one year from the date

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on which the award becomes enforceable under section 17-A provided that this period may be reduced by the appropriate Government, which may fix the period of operation as it thinks fit. The said period of one year may also be extended by the appropriate Government. Any such extension must be made before the expiry of the period of operation. Extension shall be for a period of one year at a time. But in no case the total period of operation of any award shall exceed three years from the date on which it came into operation.

Sub-section (4) provides for those circumstances where there has been a material change in the circumstances in which the award was made. Where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that after the award was made, there has been material change in the circumstances on which the award was based, the appropriate Government may again refer the award, or part of it. If the previous award was made by a Labour Court a reference as aforesaid shall be made to Labour Court. If the previous award was made by an Industrial or National Tribunal, a fresh reference shall also be made to Tribunal. The reference shall be for decision whether the period of operation should be shortened because of the change in the circumstances. The decision of the Labour Court or the Tribunal on such reference shall be final.

Sub-section (5) provides that provisions of sub-section (3) dealing with the period of operation of an award shall not apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award.

Sub-section (6) lays down that the award, notwithstanding the expiry of the period of operation under sub-section (3), shall continue to be binding on the parties untill a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award. The overriding effect on the sub-section is that once an award is made, it shall continue to bind the parties so long as one of the parties does not decide, not to be bound by the award. In such a case the party deciding not to be bound shall give a notice to the party or parties of its intention to terminate the award and until after the expiry of two months from the date of notice, all the parties shall be bound by the award.

Sub-section (7) provides that no notice given under sub-section (2) or sub-section (6) shall have effect unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be.

Enforcement of an award (Bharat Bank Ltd vs their employees, 1950) An award may be enforced in the following ways:

(1) The aggrieved party may apply to the Appropriate Government for prosecuting the defaulting party under Section 29 or Section 31 of this Act. (2) Where any money is payable by the employer to a workman, the workman may move the Appropriate Government for recovery of the money due to him under the award. (3) The party in whose favour the award has been granted may file a suit and obtain a decree, which shall be enforced by execution under the provisions of the Civil Procedure Code.

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6. Labour Policy in India

After independence it was largely felt that the labour policy must emphasise upon self-reliance on the part of the workers. Since independence till 1954, the period when V.V. Girl was the Labour Minister, all official pronouncements emphasised that labour should become self-reliant.

An equally forceful view had been to prefer reliance upon the Government. This cross-current of approach to the labour policy gave place to a new approach known as "Tripartism". Thus 'Tripartism' became the central theme in the so-called "Nanda-period" that began in 1957. During this period the Government paid reliance on three party approach, namely the trade union representing the workers, the employers, and the Government. In this kind of approach, the representatives do not decide anything but their role is mainly advisory. They meet together, discuss the points in dispute and strive to reach a consensus and if they agree they make recommendations. Out of the three, the role of the Government is more important.

Annual Labour Conferences and the permanent standing Labour Comittees served as the chief instrument of Tripartism. These conferences advocated, amongst many things; workers' participation in management, workers' education, works committees, and minimum wage legislations.

At the sixteenth conference held in 1958 a momentous advancement was made by adopting a Code of Discipline in industry. The Code pledged the parties to avoid strikes and lock-outs without notice, and to eschew unilateral actions, and to rely on settlement of disputes by discussion by voluntary arbitration or by adopting to such measures as the law may provide. It also pledged them to avoid coercion and victimisation, to avoid partial strikes and lock-outs, and to follow grievance procedure.

Tripartism is an approach which lays stress on the identity of interests between labour and capital i.e., they are the partners in the maintenance of production and the building up of the national economy. The labour policy has proceeded on a realisation that the community as a whole, as well as individual employers are under an obligation to protect the welfare of workers and to secure to them their due share in the gains of economic development. This led to enacting of the Payment of Bonus Act, 1965 which aimed at providing for the payment of bonus 0n the basis of profits or on the basis of production or productivity.

The main postulates of labour policy may be summed up as follows:

(1)

(2)

(3)

(4)

(5)

(6)

Recognition of the State as the custodian of the interests of the community, as the catalyst of "change" and welfare programmes. Recognition of the right of workers to peaceful direct action if justice is denied to them. Encouragement to mutual settlement, collective bargaining and voluntary arbitration. Intervention by the State in favour of the weaker party to ensure fair treatment to all concerned. Primacy to maintenance of industrial peace. Evolving partnership between the employer and employees in a constructive endeavour to promote the satisfaction of the economic needs of the community in the best possible manner.

a constructive endeavour to promote the satisfaction of the economic needs of the community in the
a constructive endeavour to promote the satisfaction of the economic needs of the community in the
a constructive endeavour to promote the satisfaction of the economic needs of the community in the
a constructive endeavour to promote the satisfaction of the economic needs of the community in the
a constructive endeavour to promote the satisfaction of the economic needs of the community in the

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(7)

Ensuring fair wage standards and provisions of social security.

(8)

Co-operation for augmenting 'production' and increasing 'productivity' .

(9)

Adequate enforcement of legislation.

(10) Enhancing the status of the worker in industry. (11) Tripartite consultation.

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7. Labour Problems

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Labour problems constituted a serious menace to the society, and needed a solution, if not to eradicate then at least to mitigate them in the very beginning. Employers paid their sole attention to the maintenance of machines and the improvement of the technical know-how to the utter neglect of the human hands employed to man the machines because they were readily available and could be easily replaced. Workers were illiterate and poor and therefore unconscious of their rights. The socio-economic status of the workers was far below the status of their employers. As such they could not exercise their free will in negotiating with the employers for employment. The employers taking advantage of the poor condition of the workers dictated their own terms and conditions with regard to wages, hours of work, leave, etc. The workers were left with no choice but to accept such terms because service was the sole means of earning their livelihood.

Neither the Government nor the law courts took special notice of these problems because they laid too much emphasis on the policy of non-interference and freedom of contract, Thus, with the lapse of time the situation turned out to be so worse and the society became so much adversely affected that the Government was compelled to take some action to remedy these problems.

Ultimately some philanthropic agencies like Servants of India Society, Social Service League and some industrial social workers raised their voice against these problems. They were successful in mobilising the public opinion in support of their view point. Workers also started to form their own organisation to fight against exploitation at the hands of the industrialists. In the beginning the effort of the workers was not very successful because of their weak bargaining power and lack of resources on which they could rely for their livelihood in the absence of wages.

Some employers also realised the seriousness of the problem and the necessity of mitigating these evils for they affected the production of the industry, they felt that investment on labour welfare was a policy worth pursuing because a contended worker would produce better yields and would increase the efficiency.

The Govemrnent too later on realised the gravity of the problem and could not remain a spectator for the workers constituted a large section of the society. Moreover, the government had to intervene to settle the disputes in the interest of national economy and the welfare of the society at large. If some key industry is thrown out of gear, the whole system is paralysed. Frequent break downs of even a part of the economic system tend to impoverish the community. The prevention of industrial strife thus assumes an important role in national policy and the State, therefore, cannot afford to remain indifferent to the problems leading to industrial conflict.

After independence the national government paid much attention to the improvement of the conditions of labour in industry, for the prosperity of a country depends upon the development and growth of industry. No industry can flourish unless there is industrial peace and co-operation. Industrial peace is possible only with the co-operation of labour and capital. To ensure better co- operation the wage earner who is a partner in the production should be allowed to have his due share-of the profit for increased production. Therefore, we have to shape our economic policy in such a manner as to give a labourer his due status by offering him reasonable working conditions and due share in production. That means social justice and social security has to be restored to the labourer. Our Constitution guarantees social justice to the people of India. Social justice means

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achievement of socio-economic objectives. Labour legislation is one of the most progressive and dynamic instruments for achieving socio-economic progress. "There is no other branch of law which embraces such a wide and effective role in social engineering and social action. It is here that the industrial law distinguishes itself from other branches of law and awaits the development of wholly different jurisprudence to explain and expound it".

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8. “Industry is an organised or occupied activity carried on with the cooperation of employer and employee to meet its object”. Justify with aid of Bangalore water supply vs Rajappa case.

In the Bangalore Water Supply case, a seven-judge bench was constituted especially to examine the definition of “industry” and lay down the law on the subject. The Bench was presided over by Justice V. R. Krishna Iyer who assumed the role of a crusader-legislator and drafted a new definition of the term “industry”. Their ruling was a result of the various disputes arising in establishments that are not manufacturing industries but belong to categories of hospitals, educational and research institutions, Governmental departments, public utility services, professionals and clubs. The definition was accordingly expanded to cover those establishments which involved an employer- employee relationship, irrespective of the objectives of the organization in question.

2(j) Industry "Industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

This definition is in two parts. The first says that industry means any business, trade, undertaking, manufacture or calling of employers and the second part provides that it includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

"If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part takes in the different kinds of activity of employees mentioned in the second part. But the second part standing alone cannot define industry. By the inclusive part of the definition the labour force employed in any industry is made an integral part of the industry for the purpose of industrial disputes although industry is ordinarily something which employers create or undertake".

However, the concept that "industry is ordinarily something which employers create or undertake" is gradually yielding place to the modem concept which regards industry as a joint venture undertaken by employers, and workmen, an enterprise which belongs equally to both.

Further it is not necessary to view definition of industry under Section 2(j) in two parts. The definition read as a whole denotes a collective enterprise in which employers and employees are associated. It does not consist either by employers alone or by employees alone. An industry exists only when there is relationship between employers and 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. There must, therefore, be an enterprise in which the employers follow their avocations as detailed in the definition and employ workmen. Thus, a basic requirement of 'industry' is that the employers must be 'carrying on any business, trade, undertaking, manufacture or calling of employers'. There is not much difficulty in ascertaining the meaning of the words business, trade, manufacture, or calling of employers in order to determine whether a particular activity carried on with the co-operation of employer and

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employees is an industry or not but the difficulties have cropped up in defining the word 'undertaking'.

"Undertaking" means anything undertaken, any business, work or project which one engages in or attempts, or an enterprise. It is a term of very wide denotation. But all decisions of the Supreme Court are agreed that an undertaking to be within the definition in Section 2(j) must be read subject to a limitation, namely, that it must be analogous to trade or business. Some working principles have been evolved by the Supreme Court in a number of decisions which furnish a guidance in determining what are the attributes or characteristics which would indicate that an undertaking is analogous to trade or business. The first of such principles was stated by Gajendragadkar, J. in Hospital Mazdoor Sabha case" as follows:

"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 co-operation of the employer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be casual, nor must it be for one's self nor for pleasure. Thus the manner in which the activity in question is organised or arranged, the condition of the co-operation between the 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."

In Bangalore Water Supply v. A. Rajappa a seven Judges' Bench of the Supreme Court exhaustively considered the scope of industry and laid down the following tests which has practically reiterated the test laid down in Hospital Mazdoor Sabha case :

Triple Test.

Where there is

(i)

systematic activity,

(ii)

organised by co-operation between employer and employee (the direct and substantial element is chimerical),

(iii)

for the production and/or distribution of goods and services calculated to satisfy human wants and wishes, prima facie, there is an "industry" in that enterprise.

This is known as triple test.

The following points were also emphasised in this case:

(1) Industry does not include spiritual or religious services or services geared to celestial bliss, (2) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sectors. (3) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations. (4) If the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking.

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Therefore, the consequences of the decision in this case are that professions, clubs, educational institutions co-operatives, research institutes, charitable projects and other kindred adventures, if they fulfil the triple test stated above cannot be exempted from the scope of Section 2(j) of the Act.

Dominant nature test (a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi Case or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status.

Exceptions.

1. Casual activities (because they are not systematic).

2. Small clubs, co – operatives, research labs, gurukuls which have an essentially non-employee character.

3. Single door lawyer taking help from clerk (because there is no organized labour).

4. Selfless charitable activities carried on through volunteers e.g. free legal or medical service.

5. Sovereign functions – strictly understood, i.e., maintenance of law and order, legislative functions and judicial function.

Cases overruled The decisions of Supreme Court in Management of Safdarjung Hospital, Delhi v. Kuldip Singh, N.U.C. Employees v. Industrial Tribunal, Madras Gymkhana Club Employees Union v. Management, University of Delhi v. Ram Nath, Dhanrajgiri Hospital v. Workmen and such other rulings whose ratio runs counter to the principles enunciated in Bangalore Water Supply v. A. Rajappa case have been overruled.

Conclusion:

To sum up it can be said that the definition of “industry” for the purposes of the Industrial Disputes Act was expanded to cover those establishments which involved an employer-employee relationship including hospitals, educational and research institutions, Governmental departments, public utility services, professionals and clubs, irrespective of the objectives of the organization in question.

Charitable Institutions These fall into three categories –

(a)

Those that yield profit, but the profits are not siphoned off for altruistic purposes;

(b)

Those that make no profit but hire the service of employees as in any other business, but the

goods/ services which are the output, are made available at a low or no cost to the indigent poor; and

(c) Those that are oriented on a humane mission fulfilled by men who work, not because they are

paid wages, but because they share the passion for the cause and derive job satisfaction.

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The first two categories are industries, but not the third, on the assumption that they all involve co- operation between employers and employees.

Hospitals In State of Bombay v. Hospital Mazdoor Sabha, the Supreme Court held the State is carrying on an ‘undertaking’ within Sec. 2(j) when it runs a group of hospitals for purpose of giving medical relief to the citizens and for helping to impart medical education. The court observed as follows:

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.

It is the character of the activity in question which attracts the provisions of Sec. 2 (j), who conducts the activity and whether it is conducted for profit or not, do not make a material difference.

Thus, activities that have no commercial implications, such as hospitals carried on with philanthropic motives would be covered by the expression ‘undertaking’. The mere fact that Government runs such activity is immaterial.

In Management of Safdarjung Hospital v. Kuldip Singh, it was held that a place of treatment of patients run as a department of the government was not an industry because it was a part of the functions of the government. Charitable hospitals run by Government or even private associations cannot be included in the definition of industry because they have not embarked upon economic activities analogous to trade or business. If hospitals, nursing home or a dispensary is run as a business in a commercial way, there may be elements of industry.

In Dhanrajgiri Hospital v. Workmen, the main activity of the hospital was imparting of training in nursing and the beds in the hospital were meant for their practical training. It was held not to be an industry, as it was not carrying on any economic activity in the nature of trade or business.

In Bangalore Water Supply v A. Rajappa, the Supreme Court overruled Safdarjung Hospital and Dhanrajgiri Hospital cases, and approved the law laid down in Hospital Mazdoor Sabha case. It was held that hospital facilities are surely services and hence industries. The government departments while undertaking welfare activities cannot be said to be engaged in discharging sovereign functions and hence outside the ambit of Sec.2(j) of the Act.

Therefore, a charitable hospital run by a private trust, offering free services and employing a permanent staff is an industry as there is a systematic activity, a co – operation between employer and employees and rendering of services which satisfies human wants and wishes. Further, the services of employees are hired as in any other business.

Legal Firm In National Union of Commercial Employees v. M.R. Meher, it was held that a solicitor’s firm is not an industry, although specifically considered, it is organized as an industrial concern. The court held that a person following a liberal profession does not carry on his profession in any intelligible sense with the active co-operation of his employees, and the principal/sole capital which he brings into his profession is his special and peculiar intellectual and educational equipment. Subsidiary work which is purely incidental type and which is intended to assist the solicitor in doing his job has no direct relation to the professional service ultimately rendered by the solicitor. There is, no doubt, a kind of

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co-operation between the solicitor and his employees, but that co-operation has no direct or immediate relation to the advice or service which the solicitor renders to his client.

However, this was overruled by Bangalore Water Supply case, wherein it was held that in view of the infrastructure of the offices of professional persons, the contribution to the success of the institution comes not merely from the professional or specialist but from all those whose excellence in their respective spheres makes for total proficiency.

Thus functional cooperation between employer and employees is essential for the total quality of service. But in the categories of such and allied professions when such co-operation is missing they are not industries.

A legal consultant firm employing two law graduates’ stenographer and a peon is an industry.

Educational Institutions In University of Delhi v. Ram Nath the respondent Mr. Ram Nath was employed as driver by University College for women. Mr. Asgar Mashih was initially employed as driver by Delhi University but was later on transferred to the University College for women in 1949. The University of Delhi

found that running the busses for transporting the girl students of the women's college has resulted

in loss. Therefore, it decided to discontinue that facility and consequently the services of the above

two drivers were terminated. The order of termination was challenged on the ground that the drivers were workmen and the termination of their services amounted to retrenchment. They demanded payment of retrenchment compensation under Section 25-F of the Act by filing petitions before the Industrial Tribunal. The Tribunal decided the matter in favour of the drivers and hence the University of Delhi challenged the validity of the award on the ground that activity carried on by the University is not industry. It was held by the Supreme Court that the work of imparting education

is more a mission and a vocation than profession or trade or business and therefore University is not

an industry. But this case has been overruled by the Supreme Court in Bangalore Water Supply case and in view of the triple test laid down in Bangalore Water Supply case even a University would be an industry although such of its employees as are not workmen within the meaning of Section 2(s) of the Act, may not get the desired benefits to which a workman in an industry may be entitled to.

In Brahmo Samaj Education Society v. West Bengal College Employees' Association/ the society owned two colleges. A dispute arose between the society and non-teaching staff of the colleges. It was pleaded that the society was purely an educational institution and not an industry because there was no production of wealth with the co-operation of labour and capital as is necessary to constitute an industry. The Calcutta High Court observed that our conception of industry has not been static but has been changing with the passage of time. An undertaking which depends on the intelligence or capacity of an individual does not become an industry simply because it has a large establishment. There may be an educational institution to which pupils go because of the excellence of the teachers; such institutions are not industry. On the other hand, there may be an institution which is so organised that it is not dependent upon the intellectual skill of any individual, but is an organisation where a number of individuals join together to render services which might even have a profit motive. Many technical institutions are run on these lines. When again we find these institutions also do business by manufacturing things or selling things and thereby making a profit they certainly come under heading of "industry". These being the tests, it is clear that it will be a question of evidence as to whether a particular institution can be said to be an industry or not.

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In Osmania University v. Industrial Tribunal Hyderabad/ a dispute having arisen between the Osmania University and its employees, the High Court of Andhra Pradesh, after closely examining the Constitution of the University, held the dispute not to be in connection with an industry. The correct test, for ascertaining whether the particular dispute is between the capital and labour, is whether they are engaged in co-operation, or whether the dispute has arisen in activities connected directly with, or attendant upon, the production or distribution of wealth.

In Ahmedabad Textile Industry's Research Association v. State of Bombay, an association was formed for founding a scientific research institute. The institute was to carry on research in connection with the textile and other allied trades to increase efficiency. The Supreme Court held that "though the association was established for the purpose of research, its main object was the benefit of the members of the association, the association is organised, and arranged in the manner in which a trade or business is generally organised; it postulates co-operation between employers and employees; moreover the personnel who carry on the research have no right in the result of the research. For these reasons the association was held to be "an industry".

But a society which is established with the object of catering to the intellectual as distinguished from material needs of men by promoting general knowledge of the country by conducting research and publishing various journals and books is not an industry. Even though it publishes books for sale in market, when it has no press of its own the society cannot be termed even an 'undertaking' for selling of its publication was only an ancillary activity and the employees were engaged in rendering clerical assistance in this matter just as the employees of a solicitor firm help the solicitors in giving advice and service.

University of Delhi v. Ram Nath has been overruled by the Supreme Court in Bangalore Water Supply v. A. Rajappa the present position is that the: educational institutions including the university are an industry in a limited sense. Now those employees of educational institutions who are covered by the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947 will be treated as workmen of an industry.

It has been reaffirmed by the Punjab and Haryana high Court in Sumer Chand v. Labour Court, Ambala and Another that university is an industry and carpenters employed in the university are 'workmen'. The labour Court has jurisdiction to decide the dispute relating to the termination of such a person.

It has been held in Suresh Chandra Mathe v. Jiwaji University, Gwalior and others that a University is an industry and a clerk of the University is a workman.

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9. Principles of Labour Legislation

Labour legislation in any country should be based on the principles of social justice, social equity, international uniformity and national economy. Social justice Social justice implies two things. First equitable distribution of profits and other benefits of industry between industry owner and workers. Secondly, providing protection to the workers against harmful effects to their health, safety and morality.

In the beginning, the position of a worker was that of a daily wage-earner, which means he was paid only for the days he actually worked. A workman was expected to accept all the hazards connected with his work as incidental to his employment. Until the passing of Workmen's Compensation Act, 1923 no compensation was paid in case of an accident taking place in the course of employment. But the Workmen's Compensation Act 1923 guarantees to workmen compensation for any injury caused by an accident arising out of and in the course of employment. The Minimum Wages Act, the Factories Act and the Payment of Wages Act are a few other legislations based on the principle of social justice. These legislations fix the hours of work, make provision for payment of over-time, leave rules, safety, health and welfare of labour in industry. Labour welfare in our country has a special significance for our Constitution provides for the promotion of welfare of people, for humane conditions of work and securing to all workers full employment of leisure and social and cultural opportunities. The word 'social justice' is neither defined in any of the labour legislations nor does it occur in any of them except the Industrial Disputes Act, 1947.

The concept of social justice, according to Bhagwati, J., does not emanate from the fanciful notions of any particular adjudication but must be founded on a more solid foundation. In the opinion of Justice Gajendragadkar: "The concept of social and economic justice is a living concept of revolutionary import, it gives sustenance to the rule of law and meaning and significance to the idea of welfare State". The Indian Constitution enshrines the concept of social justice as one of the objectives of the State. Article 38 of the Constitution provides that "the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, social order in which justice, social, economic and political, shall inform all the institutions of the national life". Article 39 ordains that it shall be the duty of the State to apply certain principles of social justice in making laws.

Social justice is justice according to social interest. So far as the application of the doctrine of social justice in the sphere of adjudication is concerned, it is subordinate to the fundamental rights and law contained in the Constitution. Secondly, it is also subservient to the statutory Industrial law. Thirdly, social justice cannot be done in disregard of law laid down by the Supreme Court.

Social justice does not mean doing everything for the welfare of labour to the utter disregard of the employer. The balance of social justice leans neither side. The labour policy of a country should, in the national interest, prevail over the rival economic policies in cases of conflicts. "Social justice" is designed to undo the injustice of unequal birth and opportunity, to make it possible that wealth should be distributed as equally as possible and to provide that men shall have the

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material things of life should be guaranteed to each man. President Roosevelt has rightly said that "there are some whose adverse circumstances made them unable to obtain the mere necessities of existence without the aid of others. To these less fortunate men and women, aid must be given by government not as a measure of charity but as social duty". This duty is to be performed by the society through the State. Social Justice, therefore, is dealing equitably and fairly not between individuals but between classes of-society; the rich and the poor.

The concept of social justice has become an integral part of industrial law. It is founded on the basic idea of socio-economic equality and its aim is to assist the removal of socio-economic disparities and inequalities. The constitution of India has also assumed social and economic justice to all its citizens. Although a number of legislations have been passed with that end in view but still some more important measures need to be taken. Provisions relating to fundamental rights and Directive Principles of State Policy provide sufficient guarantee against exploitation. Social justice has thus been made object of State policy and governmental action. Social Justice though not declined in our Constitution, means attainment of the socio-economic objectives by removing existing evils and enacting new legislation to achieve these objectives.

The concept of social justice is not narrow or limited to a particular branch of legislation or adjudication although it is more prominent and conspicuous in industrial legislation and adjudication. Its sweep is comprehensive and is founded on the basic ideal of socio-economic equality and it aims at assisting the removal of socio-economic disparities and inequalities of birth and status and endeavours to resolve the competing claims especially between employers and workers by finding a just, fair and equitable solution to their human relation’s problems so that peace, harmony and co- operation of the highest order prevails amongst them which may further the growth and progress of nations.

Social justice is different from legal justice. The difference is not of objective but aim at dispensing justice. The difference is due to two reasons:

(i)

Social justice aims at doing justice between classes of society, and not between individual,

(ii)

The method which it adopts is unorthodox compared to the methods of municipal law. Justice dispensed according to the law of Master and Servant, based upon the principle of absolute freedom of contract and the doctrine of laissez faire, is legal justice. Social justice is something more than mere justice, it is a philosophy super-imposed upon the legal systems.

Social equity Any legislation which is based on social justice prescribes a definite standard for adoption in future. Such a standard is fixed after taking into account the past and present circumstances. Once a standard is so fixed by legislation it remains in force until it is changed or modified by another legislation passed in conformity with the legislative procedure. No discretion is given to change such law to the authority administering such law. However, where it is felt that the law should be flexible and should be changed as the circumstances and conditions change, the law empowers the Government to make such changes. This is generally done by giving the Government rule making power under the provisions of the Act. When power under the Act is given to the Government the rules may be modified to suit the changed conditions. Such legislation is said to be based on social equity.

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Social Security

The mutual conflict between the employer and the employees over the question of adequacy of their respective shares in social produce, constitutes the crux of the labour problem, of which collective bargaining and industrial conflict are the two most important aspects. As industrialisation advances the worker is increasingly alienated from his previous socio-cultural world and thus faces various insecurities with regard to income and employment in addition to the natural ones (i.e., sickness, maternity and old age) for which the new order does not have structural provision. This is how the problem of social security arises and revolution has meant urbanisation. In ancient times if a person was unable to work on a particular day, he was cared for by the village community or by the members of his family. But now urbanisation has so deeply uprooted these values that in times of sickness, unemployment, old age and other similar contingencies a worker has nothing to fall back upon. In modem times social security is influencing both social and economic policy. Social security is the security that the State furnishes against the risks which an individual of small means cannot, today, stand up to by himself even in private combination with his fellows.

"Social security envisages that the members of a community shall be protected by collective action against social risks causing undue hardship and privation to individuals whose private resources can seldom be adequate to meet them. It covers through an appropriate organisation, certain risks to which a person is exposed". "These risks are such that an individual of small means cannot effectively provide for them by his own ability or foresight alone or even in private combination with his colleagues".

The concept of social security is based on ideals of human dignity and social justice. The underlying idea behind social security measures is that a citizen who has contributed or is likely to contribute to his country's welfare should be given protection against certain hazards.

Social security means a guarantee provided by the State through its appropriate agencies, against certain risks to which the members of the society may be exposed. Social assistance scheme provides benefit for persons of small means granted as of right in amount sufficient to meet a minimum standard of need and financed from taxation, and social insurance scheme provides benefits for persons of small earnings granted as of right in amounts which combine the contributory effort of the insured with subsidies from the employer and the State.

Social security measures are significant from two viewpoints:

First, they constitute an important step towards the goal of a welfare State. Secondly, they enable workers to become more efficient and thus reduce wastage arising from industrial disputes. Lack of social security impedes production and prevents formation of a stable and efficient labour force. Therefore, social security measures are not a burden but a wise investment which yields good dividends.' According to the report of the National Commission on labour "social security has become a fact of life and these measures have introduced an element of stability and protection in the midst of the stresses and strains of modem life. It is a major aspect of public policy today and the extent of its prevalence is a measure of the progress made by a country towards the idea of a welfare State. It is an incentive for development, substituting as it does hope for fear in the process improving the

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efficiency of the working force". Freedom from want and security against economic fear is the minimum that has to be secured to its people in the country. Its importance has been expressed by the Universal Declaration of Human Rights in the following words:

"Everyone as a member of the society has the right to social security and is entitled to realisation through national efforts and international co-operation and in accordance with the organisation and resources of each state of economic, social and cultural rights indispensable for his dignity and the free development of his personality".

"Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood, or circumstances beyond his control. The role of International Labour Organisation in certain standards of social insurance has been significant. The Social Security (Minimum Standards) Convention adopted in 1952 embodies universally accepted basic principles and common standards of social security. The application of these principles has guarded developments of this field throughout the world.

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10. Strike and Lockout

Section: 2(q) IDA 1947

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Meaning Indian Iron and Steel Co. Ltd. v. Its Workmen, (1967) I LU 381 (pat).

Strike means the stoppage of work by a body of workmen acting in concert with a view to bring pressure upon the employer to concede to their demands during an industrial dispute. The workmen must be employed in any industry. Mere cessation of work does not come within the purview of strike unless it can be shown that such cessation of work was a concerted action for the enforcement of an industrial demand.

Thus a Strike means:

(1) Cessation of work by a body of persons employed in any industry acting in combination; or (2) A concerted refusal of any number of persons who are or have been employed in any industry to continue to work or to accept employment; or (3) 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.

Duration of cessation of work Patiala Cement Co. Ltd. v. Certain Workers, (1955) Il LU 57 (LAT).

As pointed out in this clause a cessation of work or refusal to work is an essential element of strike. There can be no strike if there is no cessation of work. However, the duration of cessation of work is immaterial. Cessation of work even for half an hour amounts to a strike.

Absence from work Ram Sarup and another v. Rex, AIR 1949 All 218.

What is required, therefore, is actual cessation of work for howsoever short a period it may be. Mere absence from work is not enough but there must be concerted refusal to work, to constitute a strike.'

Standard Vacuum Oil Co., Madras v. Gunaseelam, M.G., (1954) Il LU 1956

The workers of a company wanted to celebrate "May Day". They requested the employer of company to declare that day a holiday. They were also ready to compensate the loss of work by working on a

Sunday. On the Company's failure to declare 'May Day' as a holiday the workers enbloc applied for leave. It was held that there was no "cessation of work" or concerted refusal to work and the action

of the employees to apply for casual leave enbloc did not amount to strike.

Kinds of Strike

There are mainly three kinds of strike, namely, (1) General strike; (2) Stay-in-strike; and (3) Go slow.

(1) General Strike

A General strike is one, where the workmen join together for a common cause and stay away from

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work, depriving the employer of labour needed to run the factory. Token strike is also a kind of general strike. Token strike is for a day or a few hours or for a short duration because its main object is to draw the attention of the employer by demonstrating the solidarity and co-operation of the employees. General strike is for a longer period. It is generally resorted to when employees fail to achieve their object by other means including a token strike which generally precedes a general strike.

(2) Stay-in-Strike

A 'Stay-in-Strike' is also known as 'tools-down-strike' or 'pens-down-strike'. It is that form of strike

where 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.

Punjab National Bank Ltd. v. Their Workmen, AIR 1960 SC 160.

The presence of excited labour in the factory is a great threat and danger. The Supreme Court has held that refusal under common understanding to continue to work is a strike and if in pursuance of such common understanding the employees entered the premises of the Bank and refused to take their pens in their hands that would no doubt be a strike under Section 2(q).

Criminal Trespass Mysore Machinery Manufacturers v. Stale, AIR 1966 Mys 51.

Where dismissed workmen were staying on premises and refused to leave them it was held not to amount to stay in strike but an offence of criminal trespass.

(3) Go-Slow Sasa Musa Sugar Works' (Private) Ltd. v. Shobrati Khan and others, AIR 1959 SC 923.

In a "go-slow" strike, the workmen do not stay away from work, they do come to their work and work

also, but with a slow speed in order to lower down the production and thereby cause loss to the employer. Go-slow strike is not a "strike" within the meaning of the term in the Act, but is serious misconduct which is insidious in its nature and cannot be countenanced.

In addition to these three forms of strikes which are frequently resorted to by the industrial workers,

a few more may be cited although some of them are not strike within the meaning of section 2(q).

(i) Sympathetic Strike

A sympathetic strike is resorted to in sympathy of other striking workmen. Its aim is to encourage or

to extend moral support to or indirectly to aid the striking workmen. The sympathisers resorting to

such strike have no demand or grievance of their own.

It was held in Kambalingam v. Indian Metallurgical Corporation, Madras that when the workers in

concert absent themselves out of sympathy to some cause wholly unrelated to their employment or even in regard to condition of employment of other workers in service under other managements, such absence could not be held to be strike as the essential element of the intention to use it against the management is absent.

The management would, therefore, be entitled to take disciplinary proceedings against the workmen

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for their absence on the ground of breach of condition of service.

(ii) Hunger Strike

In hunger strikes a group of workmen resort to fasting on or, near the place of work or the residence of the employer with a view to coerce the employer to accept their demands.

In Piparaich Sugar Mills Ltd. v. Their Workmen, certain employees who held key positions in the Mill resorted to hunger strike at the residence of the Managing Director, with the result that even those workmen who reported to their duties could not be given work. It was held that the concerted action of the workmen who went on hunger strike amounted to strike within the meaning of this sub-section.

(iii) Work to rule

The employees in case of "work to rule" strictly adhere to the rules while performing their duties which ordinarily they do not observe. Thus strict observance of rules results in slowing down the tempo of work, causes inconvenience to the public and embarrassment to the employer. It is no strike because there is no stoppage of work at all.

Lockout:

Lock-out "Lock-out" means the 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.

Strike is a weapon in the hands of the labour to force the management to accept their demands. Similarly, lock-out is a weapon in the hands of the management to coerce the labour to come down in their demands relating to the conditions of employment. Lock-out is the keeping of labour away from work by an employer with a view to resist their claim. There are four ingredients of a lock-out:

(i) Temporary closing of a place of employment by the employer, or

(ii)

Suspension of work by the employer, or (iii) Refusal by an employer to continue to employ any number of persons employed by him;

(2)

The above-mentioned acts of the employer should be motivated by coercion;

(3)

An industry as defined in the Act; and

(4)

a dispute in such industry.

Supreme Court Kairbetta Estate Kotagiri v. Raja ManicbJm, AIR 1963 SC 893.

Lock-out has been described by the Supreme Court as the antithesis of strike.

Madras High Court Shri Ramdiandra Spinlling Mills . Stale of Madras, AIR 1956 Mad 241.

In view of Madras High Court, whatever be the circumstances in which the employer may find himself placed and whatever be the strength of the agencies which forced on him the step and however impotent he may be to avoid the result, if an employer closes the place of employment or suspends work on his premises, a lock-out would come into existence. It was further held that in the constant tussle of employees and employer the strike is the weapon of the employees. Lock- out is the corresponding weapon in the armoury of the employer. If the employer shuts down his

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place of business as a means of reprisal or as an instrument of coercion or as a mode of exerting pressure on the employees or generally speaking when his act is what may be called an act of belligerency, there would be a lock-out.

Obligation to work. Workmen of Itakhoolie Tea Estate v. The Management, 1952 LAC 343.

In case of lock-out the workmen are asked by the employer to keep away from work, and, therefore, they are not under any obligation to present themselves for work.

Payment Of Wages Indian paper Pulp Co. Ltd. v. Indian Paper Pulp Workers' Union, AIR 1949 J

The question whether the lock-out by the employer is justified would be an industrial dispute under the Act, and therefore, the question of the payment of wages during the period of a lock-out would also be an industrial dispute.

Difference between lock-out and lay-off

(l) Lock-out is an act on the part of the employer taken to coerce or pressurise the labour;

lay-off is for trade reasons beyond the control of the employer, i.e., it is not an intentional act.

Lock-out is due to an industrial dispute and continues during the period of dispute; lay-off is not concerned with a dispute with the workmen.

Difference between lock-out and retrenchment

(l) Lock-out is temporary, retrenchment is permanent.

(2) In lock-out the relationship of employer and employee is only suspended, it does not come to an end; in retrenchment such a relationship is severed at the instance of the employer. (3) Lock-out is with a motive to coerce the workmen; the intention of retrenchment is to dispense with surplus labour. (4) Lock-out is due to and during an industrial dispute, whereas in case of retrenchment, there is no such dispute.

Difference between lock-out and closure

(l) Lock-out is temporary; closure is permanent.

(2) Lock-out is a weapon of coercion in the hands of the employer; closure is generally for trade reasons. (3) Lock-out is during an industrial dispute; while in case of closure there need not be any dispute. Above-mentioned differences may provide some clue as to difference between lock-out and closure but these are not precise differences. In order to determine whether the employer has imposed lock- out or closed the establishment it is not necessary that the closure has to be irrevocable, final and permanent and the lockout temporary or for a period. True test to be applied on the basis of evidence is whether the closure was a device or pretence to terminate services of the workmen or whether it was bona fide and for reasons beyond the control of the employer. Duration of closure may be significant fact to determine the intention and bona fides of the employer at the time of closure but is not decisive of the matter.'

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11. Explain the term ‘workman’.

Section 2(s) of the Industrial Disputes Act, 1947, defines 'workman' to mean:

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, 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 does not include any such person –

(i) who is subject to the Air Force Ad, 1950, or the Army Act, 1950, or the Navy Act, 1957; or

(ii)

who is employed in the police service or as an officer or other employee of a prison; or

(iii)

who is employed mainly in a managerial or administrative capacity; or

(iv)

who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees 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. Industrial Disputes (Amendment) Act, 2010 has raised the wage limit to Rs. 10,000

Broadly speaking, the definition requires that 'workman' must be:

(a)

person,

(b)

employed,

(c)

in any industry,

(d)

to do the specified type of work,

(e)

for hire or reward, but excludes certain specified categories of persons.

The scope of the aforesaid expression has been the subject-matter of judicial interpretation in a series of decided cases. Let us turn to examine the scope of the aforesaid expressions.

A. Person 'Workman' includes:

Any person employed in an industry, An Apprentice, Any person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment led to that dispute

B. Employed

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The word' employed', however, is susceptible to two meanings:

(a)

in a broader sense, it synonym of 'engaged' or 'occupied' and

(b)

in a restricted sense, it involves the connotation of the master-servant relationship.

A question, therefore, arises as to which of these meanings provides the key to the interpretation of the phrase 'person employed in industry '. The Supreme Court in Dharangadhra Chemicals Works Ltd v. State of Saurashtra however, interpreted the term 'workman' in the restricted sense.

PETITIONER:

DHARANGADHARA CHEMICAL WORKS LTD.

VS.

RESPONDENT:

STATE OF SAURASHTRA.

Act:

Industrial Dispute Act 1947, Section 2(s)

Case:

The appellants were lessees holding a license for the manufacture of salt on the demised lands. The salt was manufactured by a class of professional labourers known as agarias from rain water that got mixed up with saline matter in the soil. The work was seasonal in nature and commenced in October after the rains and continued till June. Thereafter the agarias left for their own villages for cultivation work. The demised lands were divided into plots called Pattas and allotted to the a-arias with a sum of Rs.400/- for each Patta to meet the initial expenses. Generally, the same patta was allotted to the same aigaria every year and if a patta was extensive in area, it was allotted to two agarias working in partnership. After the manufacture of salt, the agayias were paid at the rate of 5 or 6 pies per maund. At the end of each season the accounts were settled and the agarias paid the balance due to them. The agarias who worked themselves with the members of their families were free to engage extra labour on their own account and the appellants had no concern therewith. No hours of work were prescribed, no muster rolls maintained, nor were working hours controlled by the appellants. There were no rules as regards leave or holidays and the agarias were free to go out of the factory after making arrangements for the manufacture of salt.

Question The question for decision was whether in such circumstances the agarias could be held to be workmen as defined by S. 2(s) Of the Industrial Disputes Act of 1947, as found by the Industrial Tribunal and agreed with by the High Court or they were independent contractors.

Ruling:

Held, that the finding of the Industrial Tribunal that the agarias were workmen within the meaning of S. 2(S) of the Industrial Disputes Act of 1947 was correct and the reference was competent.

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Discussion:

The approach, is to consider whether, having regard to the nature of the work, there was due control and supervision of the employer.

A person could be a workman even though he did piece-work and was paid not per day but by the job

or employed his own labour and paid for it. The broad distinction between a workman and an independent contractor was that while the former would be bound by agreement to work personally and would so work the latter was to get the work done by others. A workman would not cease to be so even though he got other persons to work with him and paid and controlled them.

Conclusion:

As in the instant case the agarias, who were professional labourers and personally worked with the members of their families in manufacturing the salt, were workmen within the meaning of the Act, the fact that they were free to engage others assist them and paid for them, could not affect their status as workmen.

A summary of Court cases:

1. A person appointed as head clerk, with no evidence that he was doing managerial or supervisory work is a workman.

2. A driver of an area manager appointed by the manager using his personal allowances given by the bank is not a workman.

3. A part time workman is a workman if he works under the control and supervision of an employer

4. Designation alone is not important to determine whether a person is working in a supervisory capacity or as a workman. The test to decide whether an employee is a workman is to take into account his basic or primary duties and the dominant purpose of his employment. An incidental performance of supervisory duty will not make the character of employment supervisory.

5. A clerk who has been given the assistance of a peon cannot be said to be working in a supervisory capacity.

Nature of work:

In order to be a 'workman', a person must be employed in an industry to do any

(i) skilled and unskilled manual work; (ii) supervisory work;

(iii)

technical work; and

(iv)

clerical work.

Those who though 'employed in an industry' are not engaged in the aforesaid of work are beyond the scope of 'workman'. Essentially, the emphasis is on the nature work done by an employee, the degree of his responsibility. The nature of industry and the organizational set up of a particular unit. However, merely because anyone of aforesaid types of work done by a person is incidental to and

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not the main duty which a person is doing and if the main duty is not covered in anyone of the four specified nature of the work, such a person would not be a 'workman’.

1. Manual Work.

Manual work under Section 2(s) refers to work done by physical effort as distinguished from mental or intellectual effort. The work may be done with hands or with any other part of the body.

Accordingly, jamadar of watch and ward staff, persons handling pieces of cloth, measuring them and cutting into pieces according to the requirements of a customer have been held to be persons doing 'manual 'Work' under Section 2(s).

On the contrary work of an artiste, chemical analyst in an advertising concern, chemist mainly carrying out chemical analysis in a sugar mill, doctor and his compounder and others in charge of watch and ward and fire fighting department of a sugar mill (whose primary duty was to supervise the duty of watchmen and jamadars and to look after the security of the factory have not been held to be persons doing 'manual Work' under Section 2(s).

2. Skilled Or unskilled.

The scope of the expression 'any skilled or unskilled manual, supervisory, technical or clerical work'

has been the subject-matter of controversy. In S K Verma v. Mahesh Chandra, a dispute arose whether a development officer of a corporation is a 'workman'. The tribunal held that the development officer was not a 'workman' and therefore, the reference was incompetent. On dismissal of the writ petition, the petitioner appealed to the Supreme Court. The court examined the scope of the expression 'any skilled or unskilled workman' and held that the term 'workmen' takes into account the entire labour force excepting managerial work. The court then examined the nature of the duty of the development officer and came to the conclusion that he was not engaged in any administrative or managerial work. The Court accordingly held that the development officer was a 'workman' under the Act.

Ejusdem Generis By the rule of ejusdem generis the Supreme Court excluded Sales representatives from the definition of 'workman'

Supervisory Capacity

Tests for Determination of Supervisory Capacity

The Bombay High Court in Union Carbide (India) Ltd v. D Samuel and others summarized the tests laid down by the Supreme Court in various decisions as follows:

1.

Designation is not material but what is important is the nature of work; Find out the dominant purpose of employment and not any additional duties the employee may be performing;

3.

Can he bind the company/ employer to some kind of decisions on behalf of the company / employer; -

4.

Has the employee the power to direct or oversee the work of his subordinates;

5.

Does he have the power to sanction leave or recommend it; and

6.

Does he have he the power to appoint, terminate or take disciplinary action against workmen.

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Technical Work.

The word 'technical' was inserted in Section 2(s) by amending Act 36 of 1956. Broadly speaking, a work which depends upon the special training or scientific or technical knowledge of a person, constitutes technical work.

In Marugalli Estate v. Industrial Tribunal, Madras, a person was employed as a medical officer for a plantation estate on a monthly salary exceeding Rs.500. His duties were:

(i) management and running of a central hospital staff;

(ii)

supervision of work of the hospital staff:

(iii)

supervision of dispensaries;

(iv)

inspection of lines and quarters;

(v)

malaria control work; and

(vi)

supervision of creches.

On these facts, the Court concluded that the main function for which he was appointed may not occupy as much time as the medical attendance on patients. All these show that it is a technical employment for a particular purpose, because of the particular qualifications and should not be lost sight of in determining the character of employment.

Test:

The Court also laid down a test to determine whether work done by any person is technical or supervisory:

The test to be applied to my mind, to cases of technical employment such as in this case, should be the purpose for which the employment is made, irrespective of whether the performance of the duties mayor may not occupy the entire time of the employee. That is because the employment is made on the basis of the particular level of professional efficiency and technical qualifications. If an employee is found suitable for supervisory work, because of those reasons, it cannot be said that the functions are mainly those of a medical attendant, as on account of his professional qualification, he happened to be engaged in that capacity as well. The Court, therefore, opined that the employee concerned was not at all entrusted with supervisory work.

Clerical Work.

In general connotation, 'a clerk is one employed as writer, copyist, account keeper or correspondent in the office. Clerical work 'implies a stereotyped work, without the power of control or dignity or creativeness.

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In Anameinuger Development Corporation Ltd v. Second Industrial Tribunal, the management employed the appellant as a typist-cum-clerk. Thereafter, he was appointed an officer to make purchases, attend to sales tax authorities and transport. On these facts, a question arose whether he was a 'workman' under section 2(s) of the Act. The division bench of the Calcutta High Court answered the question in the affirmative and observed that mere designation would not govern the nature of the work. The Court also held that he was receiving low emoluments and was not an officer, therefore, he fell within the category of 'workman' under Section 2(s) of the Act.

Hire and Reward

The expression 'for hire or reward' which is frequently used to denote contractual relationship has been used in Section 2(s). Only those persons are 'workmen' who are employed for 'hire or reward'. The expression 'hire and reward' is wider than 'wages'. Legislature was, however, alive of this situation and, therefore, preferred to adopt the former expression rather than the latter to include those who are not technically getting 'wages'. There is, however, a difference between 'hire and reward'. While the former refers to payment or receipt of compensation, as distinguished from a gratuitous or non- remunerative service, the latter implies something given in return for good or evil done or received and does not necessarily mean money or a thing in itself of pecuniary value.

E. Persons Excluded The act is insufficient as it does not include any person:

Who is employed as an officer or member of the Railway Protection Force constituted under Section 3 of the Railway Protection Force Act, 1957 or the Border Security Force constituted under Section 4 of the Border Security Force Act,1968 or the Central Industrial Security Force constituted under Section 3 of the Central industrial Security Force Act, 1968.

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12. Explain ‘Industrial Dispute’. Industrial Dispute?

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When does an individual dispute become an

Individual Dispute:

Is a dispute between an individual workman and his employer an 'industrial dispute' under Section

2 (k) of IDA? This question has evoked considerable conflict of opinion. Prior to the Supreme Court

decision in Central Provinces Transport Services v. Raghunath Gopal Patwardhan disclosed three different views as to the meaning of the expression lndustrial dispute. They are

(i) A dispute between an employer and a single workman cannot be an 'industrial dispute,

(ii) It can be an industrial dispute and

(iii) It cannot per se be an industrial dispute but may become one if taken up by a trade union or

a number of workmen.

In Central Province Transport Services Ltd v. Raghunath Gopal Patwardhan, the Court, after referring to the divergent opinions expressed by tribunals and courts as to its applicability in the case of a dispute between an employer and a single workman was in favour view number 3.

In Workmen of Indian Express Ltd v Management of Indian Express Ltd. a question arose whether the cause of two workmen in a particular establishment in an industry could be sponsored by Delhi Union of Working Journalists, which was not a union of workmen of the establishment but a union in a similar or allied trade. Dealing with the contention, the Supreme Court observed:

where the workmen of an establishment have no union of their own and some or all of them have joined a union of another establishment belonging to the same industry, if such a union takes up the cause of the workmen working in an establishment which has no union of its own, the dispute would become an industrial one if such a union can claim a representative character in a way that its support would make the dispute an industrial dispute.

The aforesaid decisions indicate that an individual dispute per se is not an industrial dispute unless

it

is espoused by:

(I)

trade union or

(ii)

appreciable number of workmen. It is, therefore, necessary to examine the aforesaid

requirement in detail.

1. Requirement of Appreciable Number:

It has been seen that courts insist that in order to convert an individual dispute into industrial dispute, the dispute must be espoused by 'appreciable number' either of the entire labour force in the establishment or at least in particular section thereof to which the dispute relates. But courts at the same time have admitted that the expression 'appreciable number' does not necessarily mean majority of workmen in the establishment or, indeed, even in the section in which the aggrieved workman was employed. But then, they have also declined to categorically delineate the limits of that illusive requirement. Thus, the task of defining the expression has been left for case to case determination.

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The following tests have been applied by the Court in determining as to when an individual dispute would be converted into an 'industrial dispute'.

(a)

If the cause of aggrieved workmen is taken up by an appreciable number of workmen or the union of workmen (either registered or not or whether recognized or unrecognized or whether majority or minority union) or in the absence of any union of workmen by union of similar or allied trade and there is a concerted demand by the workmen for redress.

(b)

If the workmen espousing it have a community of interest and are directly or substantially

interested in the employment, non-employment, terms of employment or condition of labour of the concerned workman/workmen.

(c)

If such an interest on the part of workman or substantial number of workmen exists on the date of reference and need not necessarily exist on the date on which the cause occurs.

(d)

A dispute would not cease to be an 'industrial dispute' on subsequent support or withdrawal of a

cause of individual dispute previously espoused by a workmen or union.

The net effect of the aforesaid decisions is that an individual worker, unsupported by 'appreciable number' of workmen or the union, has no remedy under the Industrial Dispute Act, 1947, particularly when no dispute is pending before authorities under the Industrial Disputes Act, 1947.

Legislative Response: Insertion Of Section 2A

It has been seen that before the introduction of Section 2A as a result of judicial legislation, an individual workman who was discharged, dismissed, retrenched or whose service was otherwise terminated or who had been transferred, suspended or was subject to any other punishment, had no remedy under the Industrial Disputes Act, unless his case was sponsored by his fellow workmen or by a trade union. In such a situation, he had been left with no alternative but to approach the civil court and involve himself in lengthy and expensive civil remedy. Section 2A of the Industrial Disputes (Amendment) Act, 1965 attempts to mitigate some of the hardships caused as a result of judicial pronouncements. Section 2A came into force on 1 December 1965.

Section 2A provides: where an employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between an individual workman and his employer connected with, or arising .out of such discharge, dismissal, retrenchment or termination shall be deemed to be an "industrial dispute' notwithstanding that no other workman nor any union of workmen is a party to the dispute.

The net effect of Section 2A is that by legislative action, such a dispute is deemed to be an industrial dispute even where it is not espoused by a trade union or appreciable number of workmen. Thus, the result of insertion of Section 2A was that, what was not an 'industrial dispute' as per the interpretation of the Supreme Court, would be deemed to be an 'industrial dispute'. But there is a difference between an individual dispute which is deemed to be an industrial dispute under Section 2A of the Industrial Disputes 1947 on one hand and an industrial dispute espoused by the union in

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terms of Section of the said 1947 Act. An individual dispute which is deemed to be an industrial dispute under Section 2A concerns discharge, dismissal, retrenchment or termination whereas an industrial dispute under Section 2(k) covers a wider field.

Section 2A does not cover every type of dispute between an individual working and his employer. It applies only to disputes relating to discharge, dismissal, retrenchment or termination of service of an individual workman. It does not cover other kinds of disputes such as bonus, wages, leave facilities, etc. and does not apply in case of dispute arising from the transfer or promotion or the refusal or failure to promote the employee or any punishment (excluding dismissal, discharge retrenchment or other termination of service) imposed on such employee or dispute or difference as to money due to such employee from the employer or as to any amount at which a benefit, which is capable of being computed in terms of money, is to be computed. Thus, in cases not covered by Section 2A, the principle laid down by the Supreme Court as to when individual dispute becomes 'industrial dispute' is still applicable and thereby causes hardship to the individual workman. This is not a very happy situation.

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13. Write a Note on Settlement

The definition of the term "settlement" as given in Section 2(p) of the Act may be analysed into the following ingredients:

(1) It is a settlement arrived at in the course of a conciliation proceeding. A conciliation proceeding may be held by a conciliation officer or Board of Conciliation under this Act.

(2) It also includes a written agreement between the employer and workman arrived at otherwise than in the course of conciliation proceeding. Such a written agreement must be signed by the parties to the agreement in the prescribed manner. A copy of the agreement must also be sent to an officer authorised in this behalf by the Appropriate Government and the Concilation Officer.

Tata Chemicals v. Workmen Tata Chemicals:

The definition of settlement envisages two categories of settlements. One is a settlement which is arrived at in the course of a conciliation proceedings and the second is a written agreement between employer and workmen arrived at otherwise than in the course of conciliation proceeding.

The workmen of Motor Industries Company lid. v. The Management of Motor Industries Co.Ltd

Where a settlement was arrived at between the management and the association of workmen in presence of the conciliation officer, the settlement must be regarded as one made by the association in its representative character and, therefore, was binding on the workmen.

Brooke Bond India lid. v. Workmen. Unless the office bearers who signed the agreement were authorised by the Executive Committee of the union to enter into a settlement or the constitution of union contained a provision that one or more of its members would be competent to settle a dispute with the management, no agreement between any office bearer of the union and the management can be called a settlement.

Balmer Lawrie Worker's Union Bombay and another v. Balmer Lawrie and Company ltd. A representative union acts in a manner as not to discriminate between its members and other workmen of the undertaking who are not its members. When a settlement is reached in a proceeding the Industrial Disputes Act in which a representative union has appeared, the same is binding on all the workmen of the undertaking. This would mean that neither the representative union nor the employer can discriminate between members of the representative union and other workmen who are not members.

The benefits, advantages and disadvantages or liabilities arising out of a settlement in any proceeding under the Industrial Disputes Act, to which the representative union is a party shall be equally applicable to each workman in the undertaking. There shall not be a slightest trace of discrimination between members and non-members both in regard to the advantages, and as regard the obligations and liabilities.

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14. Lay Off

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Section 2(kkk) The following are salient features of layoff:

(1) An employer, who is willing to employ, fails or refuses or is unable to provide employment for

reasons beyond his control.

(2)

Any such failure or refusal to employ a workman may be on account of:

(i)

Shortage of coal, power, or raw materials, or

(ii)

The accumulation of stock, or

(ill)

The breakdown of machinery, or

(iv)

Natural calamity, or

(v)

Any other connected reasons.

(3)

A workman who is so deprived of employment must be such whose - name is borne on the muster

rolls of his industrial establishment.

(4) The workman must not have been retrenched.

Explanation:

The explanation attached to the sub-section lays down that every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause. If the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half for the day and is given employment, then, he shall be deemed to 'have been laid-off only for one-half of that day. If he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day.

Meaning of lay-off "Lay-off' means putting aside workmen temporarily. The duration of lay-off should not be for a period longer than the period of emergency. The employer- employee relationship does not come to an end but is merely suspended during the period of emergency.

Failure, refusal or inability In Central India Spinning, Weaving and Manufacturing Co. Ltd., Nagpur v. State Industrial Court) the Bombay High Court held that the key to the definition is to be found in the words "the failure, refusal or inability of an employer". These words make it clear that the unemployment has to be on account of a cause which is independent of any action or inaction on the part of the workmen themselves.

For any other reason

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The expression "for any other reason" appearing in this sub-section has to be construed ejusdem generis. Any other reason must be of the kind, as the other reasons stated in the clause. The common feature of all these reasons is that the workmen are laid off for reasons beyond the control of the employer. Therefore, the expression "for any other reason" must also denote similar characteristics.

Right and obligations resulting from lay-off

M.A. Veiyra v. CiP. Fernandes and another:

Lay-off is not a right conferred but an obligation imposed on the employer for the benefit of the workmen. Far from laying off of an employee' being a right, it is really an obligation. The very essence of a lay-off is that it is a temporary stoppage and that within a reasonable period of time the employer expects that, the business or industry would continue and his employees who have been laid-off will be restored to their full rights as employees. Further, in the definition of lay-off there is no indication whatever that it should continue for a particular period of time.

In Nutan Mills Ltd., Ahmeadbad v. Employees' State Insurance Corporation the question for consideration was, whether on the employee being laid-off the relation of master and servant continues and the mutual rights and obligations which flow from such relationship also continue. The High Court of Bombay was of the opinion that the relationship of master and servant did not continue but was suspended during the period of lay-off and the employee entitled to any wages. It was further held that:

"If the contract is not suspended and if the mutual obligation between the employer and the employee continues, then the mere fact that the employee is not given work or cannot render service to the employer will not derogate from his right to receive wages from the employer. A subsisting contract of employment results in there being certain obligations upon the employer and also upon the employee and also certain rights as between the employer and the employee. The obligations are that the employer is bound to pay wages and the employee is bound to serve. The rights are that the employer is entitled to claim from employee that he should render services. The right of the employee is that if he is prepared to serve he would have the right to receive the wages stipulated. But if the contract of employment is suspended, then there is no obligation upon the employee to serve the employer, nor is there a reciprocal obligation upon the employer to pay wages."

In S.A.E. Mazdoor Union v. Labour Commissioner, Indore and others the Trade Union challenged the order of the Labour Commissioner granting permission to the employer to lay-off on the ground of accumulation of stock sought under Section 25M of the Industrial Disputes Act, 1947. It was held that the fact that accumulation of stock would become inevitable if workmen were not laid off would fall within the scope of reasons of Section 25M read with Section 2(kkk) of the Industrial Disputes Act, 1947. Under the circumstances, the application for permission to lay-off reflected a ground on the basis of which the Labour Commissioner could objectively consider the case for granting the said permission. Therefore, the permission for lay-off granted by the Labour Commissioner was not assailable.

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15. Explain the provisions relating to recovery of money due from the employer under Industrial Dispute Act

Section 33-C. Recovery of money due from an employer Section 33-C (1) Sub-section (1) of Section 33-C deals with the procedure for recovery of money due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B.

The application for recovery of money due may be made to the appropriate Government and if the Government is satisfied that the claim is genuine, it shall issue a certificate for that amount to the Collector. The Collector shall recover the amount as shown in the recovery certificate as an arrear of land revenue. The application for recovery of money due may be made to appropriate Government either by the workman himself or by any other person authorised by him in writing, or in case of death of a workman by his assignee or heirs. Every such application shall be made within one year from the date on which the money become due to the workman from the employer. It is further provided that- any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

Section 33-C (2) This sub-section deals with the jurisdiction of a Labour Court, which is subject to the fulfilment of the following two requirements:

(i) A workman must be entitled to receive from the employer any money or benefit which is capable of being computed in terms of money; and

(ii) A question should have arisen about the amount of money due, or as to the amount at which such

benefit should be computed. These questions may be decided by the Labour Court as may be specified by the appropriate Government within a period not exceeding three months:

Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit. Therefore, the Labour Court has jurisdiction to decide not only the right of a workman to receive from the employer any money or benefit capable of being computed in term of money but also the exact amount of it. However, the provisions of this sub-section are subject to any rules made under this Act.

N.B. Corpn. v. Pritam Singh. This sub-section should be construed so as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is no longer employed at the time of the application. In other words the term "workman" includes all-persons whose claim, requiring compensation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman, with his employer.

In Union of India v. D.P. Singh and others, a chowkidar posted to take care of a vacant building claimed over-time wages by invoking Section 33-C(2). The claim was resisted by the Union of India on the ground that the Ministry of Defence is not an industry and the employees concerned are not workmen. It was held that the questions whether the department was industry and the employees were workmen and as such whether they are entitled for over-time wages has to be determined by a regular reference under Section 10(1). It is only an award given after such a reference which can be implemented by an application under Section 33-C (2) of the Act. A workman cannot make a claim under Section 33-C

(2) of the Act in respect of a relief which was not based on an existing right and which could be

appropriately the subject-matter of an industrial dispute requiring a reference under Section 10 of the Act.

Section 33-C (3)

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This sub-section provides that the Labour Court while acting under sub-section (2) may if it so thinks fit, appoint a Commissioner for the purpose of computing the money value of a benefit. The Commissioner shall, after taking such evidence as may be necessary, submit a report to the Labour Court. Then the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case. Provision is made regarding the appointment, power and procedure of such Commissioner in Rules 63 to 70 of the Industrial Disputes Act, 1947.

Section 33-C (4)

The Labour Court shall forward its decision regarding the amount of money due or the amount at which the benefit should be computed to the appropriate Government. Any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1) as an arrear of land revenue.

Section 33-C (5)

This sub-section enables any number of such workmen, employed under the same employer, as are entitled to receive from the employer any money or any benefit capable of being computed in terms of money, to take a single application for the recovery of amount due on behalf of or in respect of any number of such workmen. But any such application may be made subject to the rules made in this behalf by the appropriate Government.

Explanation The expression "Labour Court" for purposes of this section includes not only a Labour Court constituted under Section 7 of this Act, but any Court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.

Money due

Sawatram Ramprasad Mills Co. Ltd. v. BaIiram Ukandaji ‘Money due’ means money which has been ascertained and become payable. It is not essential that the claim which can be brought before the Government or its delegate under Section 33-C (1) must always be for a predetermined sum. Therefore, a claim for lay-off under Chapter V-A of Act, is a claim for money due.The Government or the Labour Court may satisfy itself about the exact amount and then take action under Section 33-C(1).

Recovery certificate Yelayudhan (M.) v. Stale of Kerala The appropriate Government may issue a recovery certificate if it is satisfied that money is due to a workman. Before issuing a recovery certificate the Government must afford an opportunity to the party against whom recovery certificate is issued to plead his case; failure to do so would render the certificate invalid.

Who can make an application? An application can be made by or on behalf of a workman as provided in Section 33-C (1). Even a discharged or dismissed workman may make an application, for it is not necessary that the workman making application should be in service on the date on his application but he must have been in service during the period in respect of which claim is made. If a workman was not in service at the time of a

dispute in reference to settlement or an award entitling him to any money or benefit was given, he will not have a claim under Section 33-C (2) of the Act.

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16. Explain the provisions relating to closure of an undertaking under Industrial Disputes Act, 1947

Section 25-0. Procedure for closing down an undertaking (l) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate Government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representative of the workmen in the prescribed manner :

Provided that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work.

(2) Where an application for permission has been made under sub-section (I), the appropriate Government, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and the persons interested in such closure may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the general public and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.

(3) Where an application has been made under sub-section (1) and the appropriate Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.

(4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5) be final and binding on all the parties and shall remain in force for one year from the date of such order.

(5) The appropriate Government may, either on its own motion or on the application made by the employer or any workmen, review its order granting or refusing to grant permission under sub- section (2) or refer the matter to a Tribunal for adjudication:

Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.

(6) Where no application for permission under sub-section (1) is made within the period specified therein, or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed down.

(7) Notwithstanding anything contained in the foregoing provisions in this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do by order, direct that the provisions of sub-section (1) shall not apply in relation to such undertaking for such period as may be specified in the order.

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(8) Where an undertaking is permitted to be closed down under sub-section (2) or where permission for closure is deemed to be granted under sub-section (3), every workman who is employed in that undertaking immediately before the date of application for permission under this section, shall be entitled to receive compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months.

It was held in Vazir Glass Works Ltd. v. Maharashtra General Kamgar Union & another, that

reference to the Industrial Tribunal for adjudication of the application for permission to close an industrial unit is made under Section 25-0(5) of the Industrial Disputes Act and not under Section

10(1) of the said Act.

It was held by the Supreme Court in Hindalco Industries Ltd. v. Union of India and others, that even

though the closure of an undertaking was not a planned and voluntary closure by the company section 25.0 of the Act would be applicable. It was also pointed out that even if an undertaking is closed for reasons beyond its control section 25.0 would be applicable and the conditions imposed in the order of the Government granting permission for the closure were valid and binding on the appellant company. Further the plea of appellant that closure being due to unavoidable circumstances it was liable to pay compensation only under section 25FFF of the Act was also rejected because about 211 employees had been retrenched and as such section 25-0 was the only relevant provision.

Section 2S-R. Penalty for closure (l) Any employer who closes down an undertaking without complying with the provisions of sub- section (1) of Section 25-0 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees or with both.

(2) Any employer, who contravenes an order refusing to grant permission to close down an undertaking under sub-section (2) of Section 25-0 or a direction given under Section 25-P, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both, and where the contravention is a continuing one, with

a further fine which may extend to two thousand rupees for every day during which the contravention continues after the conviction.

(3) Any employer who contravenes the provisions of sub-section (3) of Section 25-0 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.

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17. Discuss briefly the Authorities set up for the investigation of Industrial Disputes.

The main object of the Industrial Disputes Act is investigation and settlement of industrial disputes. With that object in view various authorities have been created by the Act. The Works Committee, Conciliation Officer, Board of Conciliation and Courts of Inquiry endeavour to settle the difference before it may be adjudicated upon by the Labour Court or the Industrial Tribunal. They all aim at amicable settlement of an industrial dispute. The various modes of settlement of disputes provided by the Act may broadly be classified under three heads:

(1) Conciliation; (2) Adjudication; and (3) Arbitration.

Those authorities that make use of conciliation as the sole method of settlement of disputes are the:

(1)

Works Committee,

(2)

Conciliation Officer, and

(3)

Board of Conciliation.

The Labour Court, Tribunal and National Tribunal are adjudicating authorities that decide any dispute referred under the Act.

Apart from the above, provision has also been made for the constitution of a Court of inquiry whose main function is to inquire into any matter appearing to be connected with or relevant to an industrial dispute.

Section 3. Works Committee The Works Committee is an authority under the Act. The following are the duties of the Works Committee:

(a) to promote measures for securing and preserving amity and good relations between the

employers and workmen;

(b) to achieve the above object, it is their duty to comment upon matters of common interest or

concern of employers and workmen;

(c) to endeavour to compose any material difference of opinion in respect of matters of common

interest or concern between employers and workmen.

The main purpose of creating the Works Committee is to develop a sense of a partnership between the employer and his workmen. It is a body which aims to promote good-will and measures of common interest. This section is applicable only to such industrial establishment in which one hundred or more workmen are employed, or to an establishment in which a minimum of one hundred workmen have been employed on any day in the preceding twelve months. The word 'workmen' in this section is used in the same sense in which it appears in Section 2(s) of the Act. It

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means there must be one hundred workmen and not one hundred employees working in the establishment for many categories of employees are excluded from the definition of workmen.

The Appropriate Government under Section 3(1) is authorised by general or special order, to require the employer to constitute in the prescribed manner a Works Committee. The Committee shall consist of representatives of employers, workmen engaged in the establishment. The number of representatives of workmen on the Works Committee shall not be less than the number of representatives of the employer. The representatives of workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their Trade Union, if any, registered under the Indian Trade Union's Act, 1926.

It was held in Kemp and Co. Ltd. v. Their Workmen, that the institution of the Works Committee has been provided in the rules framed under the Industrial Disputes Act in order to look after the welfare and interest of the workmen. They are normally concerned with the problems arising in the day-to-day working of the concern and, function of the Works Committee is to ascertain the grievances of the employees and to arrive at some agreement when the occasion so arises. It is for that reason, the Works Committee airs the grievances of workmen and endeavours to seek amicable settlement.

The recommendations of the Works Committee, where the workmen are not fairly represented are of no value; the decision of the Works Committee carries great weight but is not conclusive. The decision of Works Committee can be challenged if it is not fairly constituted or the workmen are not fairly represented on it.

The number of members constituting the Works Committee shall be fixed so as to afford representation to the various categories, groups and classes of workmen engaged in and to the sections, shops or department of establishment. But the total number shall not exceed twenty.

The representatives of the employer shall be nominated by the employer and as far as possible, shall be officials in direct touch with or associated with the working of the establishment.

The workmen's representative on the Committee shall be elected in two groups, namely:

(1) Those to be elected by the workmen of the establishment who are members of the registered Trade Union or Unions; and

(2) Those to be elected by the workmen of the establishment who are not members of the registered Trade Union.

Section 4. Conciliation Officer The Appropriate Government may by notification in the Official Gazette, appoint conciliation officers. These officers are charged with the duty of mediating in and promoting the settlement of industrial disputes. The Appropriate Government may appoint one or more conciliation officers, as it thinks fit. A conciliation officer may be appointed for a specified area or for specified industries in a specified area, or for one or more specified industries. The appointment may be made either permanently or for a limited period. The jurisdiction, powers and other matters in respect of the conciliation officer shall be published in the Official Gazette.

Section 5. Boards of Conciliation The provision for appointment of Boards of Conciliation is made under the Act to bring the two parties to a dispute to sit together and thrash out their differences and to find out ways and means

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to settle them. Section 5 of the Act provides that the Appropriate Government may, by notification in the Official Gazette, constitute a Board of Conciliation. The object of appointing the Board is promotion of settlement of an industrial dispute. A Board shall consist of a Chairman and two or four other members, as the Appropriate Government thinks fit.

The Chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute. Any person appointed to represent a party shall be appointed on the recommendation of that party. If any party fails to make a recommendation within the prescribed time, the Appropriate Government shall appoint such persons as it thinks fit to represent that party. A Board, having the prescribed quorum may act even though the Chairman, or any of its members is absent or there is any vacancy in its number. But, if the Appropriate Government notifies the Board that the services of Chairman or of any other member have ceased to be available, the Board shall not act until a new Chairman or member, as the case may be, has been appointed.

It is to be noted that the Chairman must be an "independent person" which means a person unconnected with the industrial dispute or with the industry affected by such dispute. Of course the Appropriate Government is vested with the discretion to appoint the Board of Conciliation, whenever there is an occasion for such appointment on the arising of industrial dispute. The Board as stated above is appointed with a view to promote the settlement of industrial dispute.

The appointment of the Conciliation Board together with the names of the persons constituting the Board shall be notified in the Official Gazette. If the Central Government proposes to appoint a Board, it shall send a notice to the parties asking them to nominate within reasonable time persons to represent them on the Board. The notice to the employer shall be sent to him personally or if the employer is an incorporated Company or a body Corporate, to the agent, manager, or other principal Officer of such company or body.

The notice to the workmen shall be sent:

(a) in the case of workmen who are members of a Trade Union, to the President or Secretary of the

Trade Union; and

(b) in the case of workmen who are not members of a Trade Union to anyone of five representatives

of the workmen who have attested the application made under Rule 3 and in this case a copy of the notice shall also be sent to the employer who shall display copies thereof on notice boards in a conspicuous manner at the main entrance to the premises of the establishment.

Section 6. Courts of Inquiry If any matter is referred to a Court by the Appropriate Government, it shall inquire and make a report ordinarily within a period of six months from the Commencement of inquiry. Section 6(1) points out that if "occasion arises" the Appropriate Government may constitute a Court of Inquiry. The purpose of constitution of court of Inquiry is to Inquire into any matter appearing to be connected with or relevant to an industrial dispute. The constitution of the Court has to be notified in the Official Gazette. Thus it is clear that the proper occasion for appointment of a Court of Inquiry will be arising of an industrial dispute and necessary inquiry into any matter connected with or relevant to such dispute. The Court shall not inquire into the industrial dispute itself.

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Section 6(2) says that a Court may consist of one independent person or such number of independent persons as the Appropriate Government thinks fit.

Where a Court consists of two or more members, one of them shall be appointed as a Chairman. If the court has the prescribed quorum it may act. The fact that the Chairman or any other member is absent or the existence of any vacancy in the Court shall not debar the Court from functioning provided the quorum exists. But if the Appropriate Government notifies the Court that the services of the Chairman have ceased to be available the Court shall not act until a new Chairman has been appointed. The appointment of a Court together with the names of persons constituting it shall be notified in the Official Gazette.

On a perusal of the relevant sections relating to the Court, specially Sections 22, 23 and 33 of the Act it may be seen that during the pendency of a proceeding before a Court of inquiry, the following rights remain unaffected, namely:

(i)

the right of a workman to go on strike;

(ii)

the right of an employer to lock-out his business; and

(iii)

the right of employer to dismiss or otherwise to punish the workmen in certain cases under

Section 33.2

The idea of the Court is borrowed from English Law where the report of the Courts of Inquiry is given wide publicity, and is placed before the Houses of Parliament, with a view to prevent and rectify any rash and precipitate action such as strike or lockout by the disputants for fear of public condemnation.

Section 7. Labour Court The power of appointment of a Labour Court under Section 7 of the Act is vested with the Appropriate Government. The Appropriate Government may constitute one or more Labour Courts. The constitution of the Labour Court together with names of persons constituting the Labour Court should be notified in the Official Gazette. The functions of the Labour Court as provided in the Act are:

(i)

adjudication of industrial disputes relating to any matter specified in the Second Schedule;

(ii)

performing of such other functions as may be assigned to them under this Act.

The following matters are specified in the Second Schedule, namely:

(i)

The propriety or legality of any order passed by an employer under the Standing Orders;

(ii)

The application and interpretation of Standing Orders;

(iii)

Discharge or dismissal of workmen, including reinstatement of, or grant of, or relief to, workmen

wrongfully dismissed;

(iv)

Withdrawal of any customary concession or privilege;

(v)

Illegality or otherwise of a strike or lock-out;

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(vi) All matters other than those specified in the Third Schedule.

According to Section 7(2) a Labour Court shall consist of one person only, who shall be appointed by the appropriate Government. The qualifications of a person who can be appointed as presiding officer of the Labour Court are mentioned in sub-section (3) of Section 7 as follows:

(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)

omitted.

(d)

he has held any judicial office in India for not less than seven years; or

(e)

he has been the presiding officer of a Labour Court constituted under any Provincial Act or State

Act for not less than five years.

(f) he is or has been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the

State Labour Department, having a degree in law and at least seven years' experience in the labour department including three years of experience as Conciliation Officer:

Provided that no such Deputy Chief Labour Commissioner or Joint Labour Commissioner shall be appointed unless he resigns from the service of the Central Government or State Government, as the case may be, before being appointed as the presiding officer; or

(g) he is an officer of Indian Legal Service in Grade ill with three years' experience in the grade.

Section 7-C prescribes disqualifications of the presiding officer of a Labour Court. In The Statesman

(P) Ltd. v. H.R. Deb, the question was whether a magistrate holds a judicial office. 'The fact that the

duties of a magistrate are partly judicial and partly other do not detract from the position that while acting as a magistrate he is a judicial officer. The phrase 'holding a judicial office' postulates that there is an office and that office is primarily judicial.

Haryana Co-operative Transport Ltd. v. State of Punjab,

But where Registrar to Pensions Appeal Tribunal was appointed as presiding officer of a Labour Court it was held that the appointment was void ab initio because the office of the Registrar is administrative and not judicial in nature.

The expression "holding a judicial office” in section 7(3)(d) signifies more than discharge of judicial functions while holding some other office.

Workmen. Calcutta D.L. Board v. Employers, The removal from service during detention of workers solely on the basis of their detention under the Defence of India Rules without giving them an opportunity to show cause why their services should not be terminated, is improper. Therefore, the workers so removed shall be entitled to back wages from the date when they offered to resume duty after their release to the date of their reinstatement.

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Section 7-A. Tribunals

In our country the Industrial Tribunals were for the first time created by the Industrial Disputes Act,

1947.

J.K. Iron and Steel Co., Kanpur v. Iron and Steel Mazdoor Union, Commenting upon the status of these tribunals the Supreme Court has observed that the tribunals under the Act are invested with many trappings of a Court but do not have the same status as Courts. These Tribunals need not follow the strict technicalities of law in adjudication of industrial disputes.

The power to constitute Industrial Tribunal is conferred upon the Appropriate Government. The appointment of an Industrial Tribunal together with the names of persons constituting the Tribunal shall be notified in the Official Gazette. Further, one or more than one tribunals may in the discretion of Appropriate Government, be constituted. It is the duty of the Tribunal to adjudicate upon any industrial dispute relating to any matter, whether specified in the Second Schedule or the Third Schedule. These tribunals shall perform such other functions as may be assigned to them under this Act.

The Tribunal shall consist of one person' only, who shall be appointed by the State Government. Any person having one of the following qualifications may be appointed as the presiding officer of the Industrial Tribunal, namely:

(a) if he is or has been, a judge of a High Court; or

(aa) if he has for a period of not less than three years, been a District Judge or an Additional District Judge.

(b) he is or has been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the

State Labour Department, having a degree in law and at least seven years' experience in the labour department including three years of experience as Conciliation Officer: Provided that no such Deputy Chief Labour Commissioner or Joint Labour Commissioner shall be appointed unless he resigns from the service of the Central Government or State Government, as the case may be, before

being appointed as the presiding officer; or

(c) he is an officer of Indian Legal Service Grade III with three years’ experience in the grade.

It is provided by Section 7-A(4) that the appropriate Government, if it thinks fit, may appoint two persons as assessors to advise the Tribunal in the proceedings before it.

These Tribunals are important for many practical reasons. First, only experienced persons of high integrity can be appointed as presiding officer of the Tribunal as stated above. Secondly, almost any important matter can be submitted for adjudication to the Tribunal including questions relating to wages, bonus, provident fund, gratuity and dismissal, etc. Thirdly, the Tribunals enjoy unlimited powers so long as they act within the scope of their authority.

Powers In Vishwamitra Press (Kaiyalaya) Kanpur v. Their Workmen, it was held that Industrial Tribunal is a judicial body or at any rate a quasi-judicial body.

Indian Mining Association and others v. Koyla Mauloor Panchait and others established, a Tribunal must serve notice upon the parties of the reference by name and any award made without serving such notices is fundamentally wrong.

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M.K. Ranganathan and another v. The Madras Electric Tramways Ltd., It could make a suitable award for bringing about harmonious relation between the employers and workmen and can direct reinstatement of workman if it is necessary in the interest of industrial peace.

Electro-mechanical Industries Ltd. v. Tribunal. The Tribunal while arriving at a finding in a matter may rely on data available to it otherwise than from evidence adduced on behalf of the parties.

Section 7-B. National Tribunals

(l) Unlike the other authorities under the Act the National Tribunals can only be constituted by the

Central Government. The power is to be exercised by issuing of notification in the Official Gazette. The name of the person constituting the National Tribunal shall also be notified in the Official Gazette. The Central Government may constitute one or more Tribunals. National Industrial Tribunals are constituted for the adjudication of an industrial dispute, which in the opinion of the Central Government

(i)

involves question of national importance or

(ii)

are of such a nature that the industrial establishments situated in more than one State are likely

to be interested in or affected by such dispute. It is sole discretion of the Central Government to decide that the industrial dispute involves a question of national importance or industrial establishments situated in more than one State are interested in or affected by the dispute.

(2)

A National Tribunal shall consist of one person to be appointed by the Central Government.

(3)

A person shall not be qualified for appointment as the presiding officer of National Tribunal

unless he is or has been a Judge of a High Court.

(4) The Central Government may, if it thinks fit, appoint two persons as assessors to advise the

National Tribunal in the proceeding before it.

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18. Conditions of service, etc., to remain unchanged

Section 33. Conditions of service, etc., to remain unchanged The purpose of Section 33 is to maintain status quo during the pendency of certain proceedings under this Act. It ensures against victimisation of workman by the employer.

Section 33(1) applies during the pendency of the following proceedings, namely: -

(a)

conciliation proceedings before a conciliation officer or a Board;

(b)

any proceeding before an arbitrator; and

(c)

any proceeding before a Labour Court, Tribunal or National Tribunal.

The above proceedings must be in respect of an industrial dispute. While any such proceeding is pending, the employer is prohibited to take the following actions, except with express permission in writing of the authority before which the proceeding is pending:

(a) The employer shall not in regard to any matter connected with the dispute, alter to the prejudice

of the workmen concerned in such dispute, the conditions of service applicable to them immediately

before the commencement of such proceeding; or

(b) The employer shall not discharge, dismiss or otherwise punish for any misconduct connected with

the dispute any workmen concerned in such a dispute.

It is not every alteration in the conditions of service of workmen concerned in the dispute, but an alteration in regard to any matter connected with the pending dispute which is prohibited.

For application of Section 33(1)(a) the following conditions must be fulfilled: -

(i) Some proceeding under the Act must be pending before anyone of the authorities mentioned

therein;

(ii)

There must be some alterations in the conditions of service of workmen;

(iii)

The alteration must be in the conditions of service as were applicable to the workmen concerned

immediately before the commencement of such proceedings;

(iv) The alteration must be to the prejudice of the workmen concerned in such dispute (i.e., if the alteration made is in favour of the workmen, it shall be valid);

(v)

The alteration should be in regard to any matter connected with the pending dispute;

(vi)

The workman, who can claim protection under this section, should not only be a workman within

the meaning of Section 2(s) but should also be a workman connected with the pending dispute; (vii) The action should have been taken without the express permission in writing of the authority before which proceeding is pending.

For application under Section 33(l)(b) the following conditions must be fulfilled: - (i) Some proceeding should be pending before one of the authorities under this Act;

(ii) The workman claiming protection under this section should not only be a workman within the

meaning of Section 2(s), but should also be a workman connected with the pending dispute;

(iii) The action taken should be discharge or punishment by way of dismissal or otherwise;

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(iv)

Such discharge or punishment should 'be for any misconduct connected with the pending dispute;

(v)

The action should have been taken without the express permission in writing of the authority

before which the proceeding is pending.

Section 33(2) provides that the employer may take the following actions during the pendency of any proceeding in respect of an industrial dispute: -

(a) he may alter, in regard to any matter not connected with the dispute, the conditions of service

applicable to that workman immediately before the commencement of such proceeding;

(b) he may discharge or punish, whether by dismissal or otherwise, that workman for any misconduct

not connected with the dispute.

The right of the employer to take action is subject to the following conditions:

(i) the action taken should be in accordance with the Standing Orders applicable to workman

connected in such dispute; or

(ii) where there are no standing orders, the action taken should be in accordance with the terms of

the contract, whether express or implied, between the employer and the workmen;

(iii)

where a workman is discharged or dismissed he shall be paid wages for one month; and

(iv)

in case of discharge or dismissal an application should have been made by the employer to the

authority before which the proceeding is pending, for approval of the action taken by the employer.

Section 33(3) deals with the right of "protected workman". The employer shall not take the following action against a 'protected workman' in regard to any matter not connected with the pending dispute:

(i) The employer shall not alter to the prejudice of protected workman the conditions of service

applicable to him immediately before the commencement of such proceedings;

(ii) The employer shall not discharge, or punish, whether by dismissal or otherwise such protected

workman.

It is further provided that the prohibition operates during the pendency of any proceedings in respect of an industrial dispute. No alteration in the conditions of service, discharge or dismissal, etc., can be made without the express permission in writing of the authority before which the proceeding is pending.

For the application of Section 33(3) the following conditions must be fulfilled:

(1)

Some proceeding should be pending before anyone of the authorities under this Act;

(2)

The workman claiming protection should not only be a workman within the meaning of Section

2(s), but should be a protected workman and a workman concerned in the pending dispute;

(3) There should be alteration in the conditions of service applicable before the commencement of

the proceeding or discharge or punishment by way of dismissal or otherwise of such protected

workman;

(4)

The alteration in the conditions of service should be to the prejudice of protected workman;

(5)

The action taken may be even in regard to any matter not connected with the pending dispute;

(6)

The action should have been taken without the express permission in writing of the authority

before which the proceeding is pending.

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Protected workman Explanation to Section 33(3) defines a protected workman. The definition is for the purposes of this sub-section only. In relation to an establishment protected workman means;

(i) a workman who is a member of the executive or other office bearer of a registered trade union

connected with the establishment and

(ii) who is also recognised as 'protected workman' under the rules applicable to the establishment.

Section 33(4) provides that in every establishment the number of recognised protected workmen shall be one per cent of the total number of workmen employed therein. But there shall be a minimum of five and a maximum of one hundred 'protected workmen'. The appropriate Government is empowered by this sub-section to make rules for choosing and recognising the protected workman. It is also empowered to make rules for distribution of protected workmen among various trade unions connected with the establishment.

Section 33(5) deals with the disposal of an application made by the employer for approval of the action taken by him to Conciliation Officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal. The authority shall without delay hear the application and dispose it within a period of three months from the date of receipt of such application. It means that a proper order in respect of such application should be passed as expeditiously as possible on the application: (Tata Iron and Steel Co. Ltd. v. S.N. Modak) Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing extend such further period as it may think fit:

Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.

During the pendency of The period between the commencement and conclusion of conciliation, adjudication or arbitration proceeding is the period of pendency of such proceeding. Section 20 of the Act deals with the commencement and conclusion of proceeding under this Act. Provisions of this section would be attracted if any orders as prohibited by this Act is made during the pendency of such proceedings; it is not necessary that the order should also be communicated to the workmen. A workman was dismissed from service on 12th November, 1963, by an order of the Managing Director, Syndicate Bank Limited for wilful disobedience of his transfer order. An appeal against the order was made on 17th December, 1963. The appeal was dismissed on 20th March, 1964. A dispute was referred by the Central Government on 8th January, 1964, to Industrial Tribunal. The workman made a complaint on 4th June, 1964, on the ground of violation of Section 33(2)(b) of the Act. The Tribunal held that the dismissal order became effective on 20th March, 1964, but the Supreme Court in appeal held that on reasonable and natural interpretation of Section 33, the order of dismissal is the original order passed on 12th November, 1963, and as there was no dispute pending on that date, there was no contravention of Section 33 as alleged - Syndicate Bank LId. v. Ram Nath v.K. Bhatt,

Dismissal for misconduct In Delhi Transport Corporation v. Sardar Singh,. conductors of Delhi Transport Corporation were absent from duty for long periods without obtaining

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leave in advance as required by the standing order of the corporation. Consequently, they were dismissed/removed from service and the corporation sought approval of dismissal or removal as there was a pending dispute. The Tribunal refused the approval. The Supreme Court observed that absence from duty without sanctioned leave for long period prima facie showed lack of employees' interest in work and such unauthorised absence could be treated as misconduct. It was also made clear that treating of unauthorised absence from duty as leave without pay is not the same as sanctioned leave.

Alteration in conditions of service Only such alteration in the conditions of service as are prejudicial to the interest of a workman are restricted. Any reduction or cut in the wages of 'a workman' or a lay-off exceeding the period provided in the standing order," or refusal to provide work to a casual workman who reported for work after his recovery from illness caused by an injury sustained by him while on duty," are all a change in the conditions of service of the workman. In Bhaonagar Municipality v. A. Karimbhai, the Municipality retrenched its daily rated worker in its Water Works section during the pendency of an industrial dispute before the Tribunal without obtaining prior permission of the Tribunal. The subject-matter of dispute was directly connected with conversion of the temporary employment of such workers into permanent. It was held that the retrenchment amounted to a change in the conditions of service. The alteration was in regard to a matter connected with the pending industrial dispute. There was a contravention of Section 33(1)(a) on the part of the Municipality.

Suspension of workmen before obtaining permission The right of an employer to suspend an employee after holding proper enquiry pending proceedings under Section 33, without taking permission of the authority before which the proceedings are pending was reviewed by the Supreme Court in Hotel Imperial v. Hotel Workers' Union. A number of disputes between the Hotel lmperial and their workmen were under consideration by the Central Government. In the meantime, the management sought approval for dismissal of 22 workmen, which led to a strike. The management on October 3, 1955, issued notices directing the workmen to report to their duties within 3 hours failing which action would be taken against them. The workers ignored the directive and the management issued another notice on the same day asking them to show cause why disciplinary action should not be taken against them. The workers in the meantime were suspended. On 7th October the management informed them of its decision to dismiss them and to continue their suspension pending permission to dismiss by the authority concerned. The workmen challenged the management's right to suspend without pay. On special appeal the Supreme Court laid down the following principles governing the question of suspension before permission of the Tribunal:

(1) The common law right of the master to dismiss his servant has been subjected by Section 33 to a ban. The statutory ban under this section can be removed by obtaining prior permission of the Authority concerned. Pending permission the master can, after holding a proper enquiry, temporarily terminate the relationship of master and servant by suspending his employee.

(2) The ordinary law of master and servant as to suspension has been modified in view of the fundamental change introduced by Section 33 and a term should be implied in the contract of employment that if the master has held a proper enquiry and came to the conclusion that the servant should be dismissed and in consequence suspends him pending the permission required under Section

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33, he has the power to order such suspension, thus suspending the contract of employment temporarily, so that there is no obligation on him to pay wages and obligation on the servant to work.

(3) The existence of such an implied term does not bar the Tribunal to grant interim relief if it has the power to do so under the Act but such relief should not be the whole relief which the workman will get if he finally succeeds.

The following principles laid down by the Supreme Court in different cases are also relevant in this connection: -

(1) Suspension of a workman pending departmental enquiry or pending permission of the authority before which the proceedings might be pending is not punishment even though it is without pay for an indefinite period - Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup

(2) Where the employer came to the conclusion, after proper enquiry that dismissal was the proper punishment and applied for permission to dismiss the concerned employee, the permission if granted would relate back to the date when the decision was taken by the employer to dismiss and the application has been made for permission – Kalyani PH v Air France.

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19. Termination of service of workman by the employer for any reason whatsoever amounts to retrenchment. Explain with the help of decided cases.

(00) Retrenchment Piparaich Sugar Mills LId. v. Piparaich Sugar Mills Mazdoor Union,

Retrenchment connotes in its ordinary acceptation that the business itself is being continued, but that

a portion of the staff of labour force is discharged as surplusage.

Harprasad Shiv Shanker v. A.D. Diwekar,

It means the discharge of surplus labour or staff by the employer for any reason whatsoever.

The order of termination must be actuated with a motive of economy. Section 2(00) which defines the term "retrenchment" may be analysed as follows:

(1)

Retrenchment means the termination by the employer of the service of a workman;

(2)

The termination may be for any reason whatsoever;

(3)

But the termination should not be as a measure of punishment by way of disciplinary action.

The following are not retrenchment:

(a)

voluntary retirement of a workman, or

(b)

retirement of a 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 a 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 in that behalf contained therein, or

(c) termination of the service of a workman on the ground of continued ill-health.

For any reason whatsoever Piparaich Sugar Mills Lid. v. Piparaich Sugar Mills Mazdoor Union Action taken by the employer may be for any reason. When a portion of the staff or labour force is discharged as surplusage in a running or continuing business, termination of service which follows may be due to a variety of reasons, e.g., economy, rationalisation in industry, installation of a new labour saving machinery etc.

Stale Bank v. N.S. Money, AIR 1976 SC 1111; Hindustan Steel v. Labour Courts Orissa,

It does not matter why the employer is discharging the surplusage. If other requirements of the

definition are fulfilled, then it is retrenchment. "For any reason whatsoever" are the key words. Every termination spells retrenchment. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term.

State of Gujrat v. P.R. Manked, The termination of service on account of superannuation at a particular age which is prescribed by the rules which constitute the condition of service cannot be regarded as retrenchment.

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Duryodhan Naik v. Union of India, Retrenchment means the discharge of surplus labour by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. It has no application where the service of all workmen have been terminated by the employer on a real and bona fide closure of business or on the undertaking being taken over by another employer.

Surjit Kantha v. Union of India, The discharge of surplus labour must be in running industry. The termination of service in accordance with rules of service is not retrenchment.

D. Marcopolo and Co. (Private) LJd. v. Their Employees' Union, For what reasons and at what time the employer would discharge the surplus labour, is entirely his discretion. If a reorganisation scheme has been adopted by the company for reasons of economy and convenience, the discharge and retrenchment of some of the workmen would have been considered as an inevitable though very unfortunate consequence of the reorganization scheme which the employer acting bona fide was entitled to adopt.

In D.C. & G. Mills v. Shambhu Nath, the respondent was working as a Motion-Setter at the relevant time. There was some reorganisation in the establishment and the post of Motion Setter was abolished. Thereafter the respondent would have been retrenched but in terms of a settlement between the management the workmen, no employee was retrenched. The management agreed to offer work “on any other suitable post". Therefore, the respondent was offered an alternative job without loss of wages. He was found unfit for that job even after extension of probation. Thereafter, he was offered another job on the same wages, which he did not accept. Instead he requested the management to give him one more chance to show his efficiency. His name was struck-off as the management did not accept his request. It was held that the striking off name of the respondent amounted to retrenchment.

Malkhail Singh v. Union of India, Retrenchment would include termination of services of a temporary railway servant on one month's notice.

In Morinda Co-op. Sugar Mills Ltd. v. Ram Kishan & others, workmen were employed in sugar mills during crushing season only and consequent to closure of season, they ceased to work. It was held that such cessation of work would not amount to retrenchment since it is only a seasonal work.

In Managing Director, Kamaiaka Handloom Development Corporation Ltd. v. Sri Mahadeva Laxman Raval, respondent was appointed for fixed periods as an expert weaver to train weavers. His services were discontinued after the expiry of the contract period. He raised a dispute and the Labour Court directed his reinstatement. The award of Labour Court was confirmed by High Court. Hence the corporation preferred an appeal in the Supreme Court. Allowing the appeal the Supreme Court observed that the respondent was aware that his appointment was purely contractual. His appointment stood automatically terminated on completion of the stipulated period. The Supreme Court held that the terms of appointment show that the respondent was not a worker but employed on contract basis in a time barred scheme. The Court held that section

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2(00) of the Industrial Disputes Act, 1947 was not attracted and discontinuance of respondent's service was not retrenchment as defined in Section 2(00) of the Act.

In Kamlesh Kumar Rajanikant Mehta v. Presiding Officer Central Government Industrial Tribunal No.1 and others, the question was: where the services of an employee is terminated for loss of confidence, will it amount to retrenchment. It was held that retrenchment is merely the discharge of surplus labour staff in a running or continuing business or industry, for certain reasons, viz., cutting down of expenditure or wanting to introduce labour saving device. If the termination is for any other reason say for loss of confidence, it is not retrenchment. It would be a mistake to hold that loss of confidence could be included in the expression "for any reason whatsoever" and termination on that score would amount to retrenchment.

In Santosh Gupta v. State Bank of India, an employee of the bank was discharged on the ground that she failed to pass the prescribed test provided for confirmation in service. She had put in more than 240 days service in a year (although with breaks). The Tribunal held that the termination did not amount to retrenchment. The Supreme Court directing her reinstatement with full back wages held that such termination of service would amount to retrenchment. The expression "termination of service for any reason whatsoever" is wide enough so as to include every kind of termination of service of a workman by act of the employer excepting those which are expressly excluded by the proviso to the definition of the word 'retrenchment'.

Management Karanataka State Road Transport Corpn., Bangalore v. Shek Abdul Khader and others, Termination of service of an employee either during the initial period of probation or during the extended period of probation on the ground that they were not found suitable amounts to retrenchment. But this view has been overruled by the Supreme Court in M. Venugopal v. L.I.C. of India, A.P. and another, wherein the Supreme Court held that the termination of service of the probationer cannot be said to be a retrenchment within the meaning of Section 2(00) because his confirmation was dependant on fulfilment of minimum business guarantee and the employee failed to fulfil the norm prescribed. He was asked to improve his performance before the expiry of extended period of probation. Since he failed to fulfil the minimum prescribed, the L.l.C. was justified in terminating his service without complying with the provisions of the Act relating to retrenchment.

In M/s. Gammon India Ltd. v. Sri Niranjan Dase) the services of senior clerks were terminated due to reduction in the volume of business of the Company as a result of recession in work. It was held to be

a case of retrenchment because the termination does not fall in any of the three excluded categories.

In L. Robert D'Souza v. Executive Engineer Southern Railway, it was held that the termination for unauthorised absence from duty by workman amounted to retrenchment.

In Mithilesh Kumar Singh v. State of Bihar and others, the services of a workman working in Public

Works Department was terminated on the ground that the initial appointment was not legal and valid.

It was held that termination even on the ground that the initial appointment was not legal and valid

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amounts to retrenchment because such a termination is not included in the exception to retrenchment under Section 2(00) of the Industrial Disputes Act.

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20. Unfair Labour Practice

Section 25- T. Prohibition of unfair labour practice No employer or workman or a Trade Union, whether registered under the Trade Unions Act, 1926, or not, shall commit any unfair labour practice.

Section 25-U. Penalty for committing unfair labour practices Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupee or with both.

Unfair Labour Practices

A new Schedule V has been added by the Industrial Disputes (Amendment) Act, 1982. In this

schedule unfair labour practices have been defined. It contains a list of such practices as are treated

unfair on the part of the employers or their Trade Unions, or on the part of workmen and their Trade Unions.

I. Unfair Iabour practices on the part of employer and trade unions of employers.

1. To interfere with, restrain from, or coerce, workmen in the exercise of their rights to organise,

form, join or assist a Trade Union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say-

(a)

threatening workmen with discharge or dismissal, if they join a trade union;

(b)

threatening a lock-out or closure, if a trade union is organised;

(c)

granting wage increase to workmen at crucial periods of the union organisation, with a view to

undermining the efforts of the trade union at organisation.

2.

To dominate, interfere with or contribute support, financial, or otherwise, to any trade union, that

is

to say: -

(a)

an employer taking an active interest in organising a trade union of his workmen; and

(b)

an employer showing partiality or granting favour to one of several trade unions attempting to

organise his workmen or to its members where such a trade union is not a recognised trade union.

3. To establish employer sponsored trade unions of workmen.

4. To encourage or discourage membership in any trade union by discriminating against any

workman, that is to say: -

(a) discharging or punishing a workman, because he urged other workmen to join or organise a trade

union;

(b) discharging or dismissing a workman for taking part in the strike (not being a strike which is

deemed to be an illegal strike under this Act);

(c)

changing seniority rating of workmen because of trade union activities;

(d)

refusing to promote workmen to higher posts on account of their trade union activities;

(e)

giving unmerited promotions to certain workmen with a view to creating discord amongst other

workmen, or to undermine the strength of their trade union;

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(f) discharging office-bearers or active members of the trade union on account of their trade union

activities.

5. To discharge or dismiss workmen-

(a)

by way of victimisation;

(b)

not in good faith, but in the colourable exercise of the employer's right;

(c)

by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;

(d)

for patently false reasons;

(e)

on untrue or trumped up allegations of absence without leave;

(f)

in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with

undue haste;

(g) for misconduct of a minor or technical character, without having any regard to the nature of the

particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment.

6. To abolish the work of a regular nature being done by workmen, and to give such work to

contractors as a measure of breaking a strike.

7. To transfer a workman mala fide from one place to another, under the guise of following

management policy.

8. To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a

pre-condition to allowing them to resume work.

9. To show favouritism or partiality to one set of workers regardless of merit.

10. To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years

with the object of depriving them of the status and privileges of permanent workmen.

11. To discharge or discriminate against any workmen for filing charges or testifying against an

employer in any enquiry or proceeding relating to any industrial dispute.

12. To recruit workmen during a strike which is not an illegal strike.

13. Failure to implement award, settlement or agreement.

14. To indulge in acts of force or violence.

15. To refuse to bargain collectively, in good faith with the recognised trade unions.

16. Proposing or continuing a lock-out deemed to be illegal under this Act.

II. Unfair labour practices on the part of workmen and trade unions of workmen

1. To advise or actively support or instigate any strike deemed to be illegal under this Act.

2. To coerce workmen in the exercise of their right to self-organisation or to join a trade union or

refrain from joining any trade union, that is to say -

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(a) for a trade union or its members to picketing in such a manner that non-striking workmen are

physically debarred from entering the work places;

(b) to indulge in acts of force or violence or to hold out threats of intimidation in connection with a

strike against non-striking workmen or against managerial staff.

3. For a recognised union to refuse to bargain collectively in good faith with the employer.

4. To indulge in coercive activities against certification of a bargaining representative.

5. To stage, encourage or instigate such forms of coercive actions and wilful 'go slow', squatting on

the work premises after working hours or 'gherao' of any of the members of the managerial or other

staff.

6. To stage demonstrations at the residences of the employers or the managerial staff members.

7. To incite or indulge in wilful damage to employer's property connected with the industry.

8. To indulge in acts of force' or violence or to hold out threats of intimidation against any workman

with a view to prevent him from attending work.

It is difficult to define and lay down an exhaustive test of unfair labour practice, but it may be said that any practice, which violates the directive principles of State policy contained in Article 43 of the Constitution and such other Articles as deal with the decent wages and living conditions for workmen amount to unfair practice.

In Devendra Kumar C. Solanki v. State of Gujarat and Others, Gujarat High Court has held that the work done by the concerned workmen was same as that of permanent workmen and they also worked for similar number of hours. But, discrepancy in payment of wages between permanent and non-permanent workmen is alarming, same to be construed as unfair labour practice as defined under Section 2(ra) of the Act.

In Eveready Flash Light Company v. Labour Court Bareilly, the company appointed a workman on daily rate basis on 18th January, 1958 after trying him for four days. On April 12, 1958 he was appointed on probation for 6 months which could be further extended by the company at its discretion. He was elected a member of the working committee of the union on September 9, 1958. On 10th September the management served him with a notice of warning that in spite of repeated warnings he had shown no improvement in his work. The warning was repeated on 11th October. On November 21, 1958 his service was terminated. The Union raised an industrial dispute and the Labour Court found no justification for putting the workman on probation after he had been tried and that the condition of putting him on probation as communicated by letter of 12th April was just to delay making him a permanent employee. The Company preferred a petition in the Allahabad High Court. It was held that "a condition of employment which is designed to invest the employer with arbitrary power to keep the workmen at his mercy as regards his chance of being made permanent, and to eventually lead to deprive him of such chance would amount to unfair labour practice". It was further observed that it is not necessary that there must be numerous transactions before the employer could be branded guilty of unfair labour practice and that he could be held guilty of such practice in respect of one contract of employment only.

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