NAME - DR MOHAMMED SHAIKH ROLL NO - B - 31

COURSE - FIRST YEAR L.L.B (3 YEAR COURSE)

SUBJECT - LABOUR LAW

PROFESSOR - DEEPAK MESHRAM

COLLEGE - M.S. COLLEGE OF LAW

ASSIGMENT - LABOUR LAW

_________ _______________

DATE SIGN PROF.

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 INDEX

SR.NO TOPIC NAME PAGE.NO

1 Define Retrenchment under the Industrial Dispute Act 3

1947?
2 Award under the Industrial Dispute Act 1947? 3

3 Lock out and Strike? 3

4 Two grounds of Illegal Lock out? 4

5 Works Committee under Industrial Disputes Act, 1947 4

6 What is the duty of conciliation officer under Industrial 4
Dispute Act, 1947?
7 Workman under I.D. Act? 5-6
8 Labour Court under I.D. Act 1947 7-8

9 What is Collective Bargaining? Explain in detail? 9-10

10 Explain in length Strike and Lock out? 11-15

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 1. DEFINITION OF RETRENCHMENT UNDER INDUSTRIAL DISPUTE ACT
1947

(1) Retrenchment means the termination by the employer of the service of a

workman.

(2) The termination may be for any reason whatsoever

2. Award under industrial dispute act 1947

According to Section 2(b) of the Industrial Disputes Act, 1947 'Award'

means an
(1) Interim or a final determination of any Industrial Dispute or of any
question relating thereto by any Labour Court, Industrial Tribunal or
National Industrial Tribunal and includes an arbitration award made
under section 10A.

3. Lock out and Strike

(1) Lockout S.2 (1)

A Lockout is the act of employers that entails closing the workspace

temporarily, suspending work or cutting short the employment of any
number of individuals initially employed and it is a strategic weapon that
employers hold when in lock heads with the employees.

(2) Strikes S.2 (Q)

A strike is the ceasing of work by employees of an industry with the objective

of forcing an employee to meet particular demands and it is mutual
understanding between workers to cease work or even employment all with
the motive of drawing the attention of the management concerning their
various demands.

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 4. Two grounds of illegal Lockout

(1) Under the Provision of Section 23 Strikes and Lockouts are prohibited, in
case, the matter under dispute pending before the arbitrator, Board of
Conciliation, Labor Court , Labor Tribunal or during any period in which
settlement or award is in operation, in respect of any of the matter
covered by the settlement or the award.

(2) Lockout shall be illegal if it is continued in contravention of an order

and by the appropriate government under Section 10(3) or under sub-
section 4(a) of Section 10-A of the said Act.

5. Work Committee under the Industrial Dispute Act 1947

The works committee- set up under the INDUSTRIAL DISPUTE ACT,1947.

Under this Act, every establishment employing 100 or more workers is required to
constitute a works committee as a scheme of workers participation in
management. It consists of equal number of representatives from the employer
and the employees.

6. Duty of conciliation officer under Industrial Dispute Act, 1947

Where any industrial dispute exists or is apprehended, the conciliation officer

may, or where the dispute relates to a public utility service and a notice under
section 22 has been given, shall, hold conciliation proceedings in the prescribed
manner.A report under this section shall be submitted within fourteen days of the
commencement of the conciliation proceedings or within such shorter period as
may be fixed by the appropriate government:

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 SHORT NOTES

1. Workman under Industrial Dispute Act

INTROUDCTION
The concept of workman is central to the concept of an industrial dispute as an
industrial dispute can be raised either by a "workman" or an "employer." Since
the Industrial Disputes Act, 1947 ("ID Act") is a piece of beneficial legislation, the
courts have enlarged the scope and applicability of this Act by giving wide
interpretation to the term "workman." Section 2(s) defines workman as 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, terms of employment be express or implied and includes any
such person who has been dismissed, discharged or retrenched in connection
with, or as a consequence of dispute

The Courts have interpreted this definition and have identified various
determining factors to know whether a person is "workman" or not. The factors
which should be considered are (a) whether there is a Master-Servant
relationship; (b) when a person is performing various functions which overlap in
their characteristics, the nature of main function for which the claimant is
employed should be considered; (c) work is either manual, skilled, unskilled,
technical operational, clerical or supervisory in nature, the mere fact that it does
not fall within the exception would not render a person to be workman;
and (d) that the exceptions are not applicable.3 Further, designation, source of
employment, method of recruitment, terms and conditions of
employment/contract of service, the quantum of wages/pay and the mode of
payment should not be considered while determining whether a person can be
termed as "workman."4

Over a period of time, courts have interpreted specific points of contention in

the definition under the ID Act which has enlarged the scope of the legislation.
This note discusses some of the important components of section 2(s) and their
interpretation by the courts below.

A. Supervisory and Managerial work

A person working in purely managerial and/or supervisory capacity does not fall
within the definition of workman under ID Act. However, when a person performs
multifarious functions, the nature of the main function performed by the person
has to be considered to determine if the person is a "workman." The designation
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of a person is not a conclusive factor in determining the nature of work. Even if a
person is designated as supervisor, the employer has to prove that his work and
his duties were in nature of a supervisor.

B. Skilled and Unskilled manual and operational work

Courts have not formulated an explanation as to who are considered as people

employed in "manual and operational work." Manual or operational work may
be classified as one that requires no special set of skills. It is mostly associated
with physical labour. By way of exception, the courts have excluded such works
which need imaginative or creative quotient. A work that requires training would
imply that the work is of special nature and requires a distinct application of
mind. It is not considered a manual/clerical/operational work or technical work.
However, in a few cases the courts have deviated from strict interpretation and
excluded ancillary creative works while considering the definition of "workman."
A person suggesting ways to increase sale is using an imaginative mind and
therefore, is out of the scope of this definition. However, a person carrying out
such ideas by distributing pamphlets or engaging in door-to-door publicity will
be covered as a "workman" under the ID Act.

C. Part Time and Full-Time workman

The number of working hours is not considered while determining whether a

person qualifies as "workman" or not. However, there must exist a master-servant
relationship between the employee and his employer. An independent
contractor cannot be termed as a workman. The employer must be in a position
to control the manner of employee’s work.

The ID Act does not differentiate between part-time, full time, casual, daily
wage, regular or permanent workman. All such individuals are subject to ID Act
if they fulfill the ingredients as provided in section 2(s).

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2. Labour Court under Industrial Dispute Act 1947

(1) The appropriate Government may, by notification in the Official

Gazette, constitute one or more Labour Courts for the adjudication of
industrial disputes relating to any matter specified in the Second Schedule
and for performing such other functions as may be assigned to them
under this Act.

(2) A Labour Court shall consist of one person only to be appointed by the
appropriate Government.

(3) A person shall not be qualified for appointment as the presiding officer
of a Labour Court, unless—
a. he is, or has been, a Judge of a High Court; or (b) he has, for a
period of not less than three years, been a District Judge or an
Additional District Judge.

(4) He has held any judicial office in India for not less than seven years; or
he has been the presiding officer of a Labour Court constituted under
any Provincial Act or State Act for not less than five years.

(5) 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 Ili with three years'
experience in the grade.

Individual workmen raises Industrial dispute Under Section7 of Industrial

Dispute Act 1947.
The appropriate government is empowered to establish one or more
Labor Courts. Its function is to settle industrial disputes concerning any
matter specified in the second schedule.

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Qualification for the appointment of a Presiding Officer of the Court
(i) He is or has been a judge of high court
(ii) He has for a period of not less than 3 years, been a district judge or an
additional judge
(iii) He has held any judicial office in India for not less than 7 years
(iv) He has been the presiding officer of labor Court constituted under any
Provision Act for not less than 5 years

Disqualifications:
Section 7-C of the Industrial Dispute Act,1947 prescribes Disqualifications
for the presiding officer to be appointed to the Labor Court. It provides
that no person shall be appointed to or continue in office if:
(a) He is not an independent person; or
(b) he has attained the age of 65 years

Matters within The Jurisdiction of Labour court

Second Schedule
1. The propriety or legality of an order passed by an employer under the
standing orders;
2. The application and interpretation of standing orders;
3. Discharge or dismissal of workmen including reinstatement of, or grant
of relief to, workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;
5. Illegality or otherwise of a strike or lock-out; and

According to [Sec 10 (1) (c)] matters specified in THIRD SCHEDULE, dispute

not effecting more than 100 workers can be referred to labour court.

According to [Sec 10 (2)] when parties in the industrial dispute apply to

the government to refer dispute to the labour court and if government
satisfies it shall make the reference to the labour courts.

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 ESSAY

1. Collective Bargaining in Detail

Collective bargaining means negotiation. It is a way in which workers rights are

placed to archive industrial democracy. In India, it came a little bit late somewhat
end of the 19th century and starting the 20th century. The right to bargain
collectively with an employer promotes the independence of workers to influence
the establishment in case of mismanagement to work with dignity and liberty.

Definition of Collective Bargaining

Collective bargaining is a free process in which the representatives of both sides

(includes labour and employer) arrives into an agreement and the process does
not stop here, it is a continuous process where new demands, proposals amended
or inserted in the contract after collective bargaining.

An Indian court on collective bargaining – it is always a subject matter of industrial

arbitration from a long period of time and rather defined it in various courts of
laws.

In a famous case in Karol leather karamchari Sangathan vs liberty footwear

company, the premier court of India (Supreme Court of India) observed that
“collective bargaining is a technique where the problems related to the
employment and wages is resolved harmoniously by a contract or agreement, not
by coercion.

The Constitution of India

Article 19 gives every citizen to form an association, which can be interpreted as

the permission of organizing the trade union and right to collective bargain, which
is the main purpose of that.

Also, state directive principles also can be interpreted as to improve the condition
of the labour. In the article 43-A, the state shall ensure the participation of workers
in the management which can be seen as a direct cause for the right to
collective bargaining.
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In Collective Bargaining who can participate?

Answer: All employee has the right to participate in matters relating to collective
bargaining and any other union’s lawful activities except superintendents,
managers, and persons employed through the nomination of the employer.

CASE LAW: In ram Prasad Vishwakarma vs industrial tribunal, the court observed
that “ it was a great disadvantage to the worker to obtain a good environment of
work in which worker get their dignity and wages from their employers during the
days before collective bargaining concept came into existence. After the
establishment of trade union in our country, collective bargaining became a
practice and now it is a rule and law.

Features of Collective Bargaining:

• Collective process.

• Participation of workers and management in bargaining.

• Continuous process, it is a continuous process where negotiation does not

end.

• This includes both industrial growth as well as per capita growth of a worker.

• It promotes an eco-friendly environment in the workplace.

The subject matter of collective bargaining:

• To decide or carry out a contract which is broad in nature of employment

relationship between workers and employers.

• The execution of the contract. It is the main part of the contract where the
terms and condition of various matters are implemented.

Problems of Collective Bargaining

• The main agenda of both employers and union are to settle the matter
through arbitration process between themselves by concluding into a
common minimum agreement rather than sorting it arbitrarily. But collective
bargaining is limited to large plants and factories. Small factory organization
does not come under this rule.

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2. EXPLAIN STRIKE AND LOCKOUT

Strike

Strike is one of the oldest and the most effective weapons of labour in its
struggle with capital for securing economic justice. The basic strength of a
strike lies in the labours privilege to quit work and thus brings a forced
readjustment of conditions of employment. It owes its origin to old English
words Striken to go. In common parlance it means hit, impress, occur to,
to quit work on a trade dispute. The latter meaning is traceable to 1768.
Later on it varied to strike of work. The composite idea of quitting work or
withdrawal of work as a coercive act could be gathered in the use of
word as a verb as well as adjective. The definition and use of the word
strike has been undergoing constant transformation around the basic
concept of stoppage of work or putting of work by employees in their
economic struggle with capital.

The term strike has been defined in a wide variety of branches of human
knowledge, viz. etymology, sociology, political economy, law and
political science
Strike has been defined in Section 2 (q) of the Industrial Disputes Act as
under—
Strike means a cessation of work by a body of persons employed in any
industry acting in combination, or a concerted refusal, or a refusal under
a common understanding, of any number of persons who are or have
been so employed to continue to work or to accept employment.

The analysis of the definition would show that there are the following
essential requirements for the existence of a strike:
(1) There must be cessation of work.
(2) The cessation of work must be by a body of persons employed in any
industry;
(3) The strikers must have been acting in combination;
(4) The strikers must be working in any establishment which can be called
industry within the meaning of Section 2(j); or
(5) There must be a concerted refusal; or
(6) Refusal under a common understanding of any number of persons
who are or have been so employed to continue to work or to accept
employment;
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(7) They must stop work for some demands relating to employment, non-
employment or the terms of employment or the conditions of labour of
the workmen.

Ingredients of Strike

Cessation of Work: -

This is most significant characteristic of the concept of strike. It has been

variedly expressed as abandonment, stoppage, omission of performance
of duties of their posts, hampering or reducing normal works, hindrance to
the working or suspension of work, discontinuing the employment or
breaking their contract of service or refusing or failing to return to or
resume employment or refusing or failing to accept engagement for any
work which they are usually employed for. Thus what required for strike is
that there must be stoppage of work or there must be refusal to continue
to work or to accept employment by any number of persons employed
for the work but the refusal must be concerted or under a common
understanding. The cessation of work may take any form. It must,
however, be temporary and not forever and it must be voluntary. No
duration can be fixed for this. If the cessation of work is as a result of
renunciation of work or relinquishment of the strikers status or relationship,
it is not strike. Permanent cessation of work would result in termination of
the contract of work which is alien to the underlying sanction of strike
retaining contractual relationship during the strike periods. Cessation of
work is not a cessation of contract of employment.

Concerted action
Another important ingredient of the strike is a concerted action. The
workers must act under a common understanding. The cessation of work
by a body of persons employed in any industry in combination is a strike.
Thus in a strike it must be proved that there was cessation of work or
stoppage of work under a common understanding or it was a concerted
action of the workers or there was cessation of work by workers acting in
combination. Stoppage of work by workers individually does not amount
to strike. the concerted refusal or refusal under a common understanding
to continue to work or to accept employment or to resume work by any
number of persons is a strike. For example, over-time work, if it is the duty
or workers to do overtime work necessarily because it is the practice of
that establishment to take overtime work from the workers in that case

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refusal to work overtime would amount to strike otherwise not. Thus the
test to determine whether refusal to do overtime work constitutes a strike
or not would depend upon whether overtime was habitually worked in
that industry.[8]

The strike is illegal

1. if it is in breach of Contract of Employment.
2. if it is in Public Utility Services.
3. if Notice under Section 22(1) is not given.
4. if commenced during Award or settlement period.
5. if commenced During or within 7 days of completion of Conciliation
Proceedings.
6. if commenced During or within Two months of completion of
Adjudication Proceedings.

Lockouts

The use of the term lock-out to describe employer's instruments of

economic coercion dates back to 1860[9] and is younger than its
counterparts in the hands of workers, strike by one hundred years.
Formerly the instrument of lock-out was resorted to by an employer or
group of employers to ban union membership: the employers refused
employment to workers who did not sign a pledge not to belong to trade
union. later the lock-out was declared generally by a body of employers
against a strike at a particular work by closing all factories until strikers
returned to work. India witnessed lock-out twenty-five years after the "lock-
out" was known and used in the arena of labour management relations in
industrially advanced countries. Karnik reports that the first. known lock-
out was declared in 1895 in Budge Budge Jute Mills. Section 2(1) defines
the term Lock-out. However, the present definition is only a mutilated one.
The term was originally and correctly defined in the Trade Dispute Act,
1929. From the definition given in the Trade Dispute Act, the present Act
has taken the present definition but has omitted the words when such
closing, suspension or refusal occurs in consequences of a dispute and is
intended for the purpose of compelling those persons or of aid in another
Employer in compelling persons employed by him to accept terms or
condition of, or affecting employment.
With the omission of these words, the present definition fails to convey the
very concept of Lock-out.

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In Sri Ramchandra Spinning Mills v/s State of Madras[13], the Madras High
Court read the deleted portion in the definition to interpret the term lock-
out. According to the Court, a flood may have swept away the factory, a
fire may have gutted the premises; a convulsion of nature may have
sucked the whole place under ground; still if the place of employment is
closed or the work is Suspended or the Employer refuses to continue to
employ his previous workers, there would be a lock out and the Employer
would find himself exposed to the penalties laid down in the Act.
Obviously, it shows that the present definition does not convey the
concept of the term lock out.

Lock-out, When Legal

The Act treats strikes and lock-out on the same basis; it treats one as the
counter part of the other.

The object and reasons for which the Lock-out are banned or prohibited
are the same for which strikes are banned or prohibited. It is because the
Employer and the Employees are not discriminated in their respective
rights in the field of industrial relationship between the two. As such, lock-
out if not in conflict with Section 22 and 23 may be said to be legal or not
legal. Sections 24(1) (iii), 10(3) and 10A (4A) similarly controls the lock-out.
A lock-out in consequence of illegal strike is not deemed to be illegal. But
if lock-out is illegal, Section 26(2), 27 and 28 will come in operation to deal
with the situation. The Act does not lay down any guidelines to settle the
claims arising out of illegal lock-out. The courts, therefore, have adopted
the technique of apportioning the blame between the Employer and
employees. This once again brings to the fore the concept of justifiability
of lock-out.

The Statutory Definition

Section 2(1) of the Industrial Disputes Act, 1947 defines Lock-out to mean:
The temporary closing of employment or the suspension of work, or the
refusal by an employer to continue to employ any number of persons
employed by him[14]. A delineation of the nature of this weapon of
industrial warfare requires description of: (i) the acts which constitute it; (ii)
the party who uses it; (iii) the party against whom it is directed; and (iv) the
motive which prompts resort to it.

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Prohibition of Lockout

In the similar circumstances the lockout has been prohibited in the public
utility service. Section 22 (2) of the Act provides that no employer carrying
on any public utility service shall lock out any of his workmen:
1.Without giving them notice of lockout as hereinafter provided, within six
weeks before locking out; or
2.Within 14 days of giving notice; or
3.Before the expiry of the day of lockout specified in any such notice as
aforesaid; or
4.During the pendency of any conciliation proceedings before a
Conciliation Officer and seven days after the conclusion of such
proceedings.

It makes clear that the employer has to comply with the same conditions
before he declares lockout in his industrial establishment which the
workmen are required to comply with before they go on strike. The
conditions for both the parties are same.

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