CHAPTER 10-INDUSTRIAL DISPUTES
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CHAPTER 05
THE INDUSTRIAL DISPUTES ACT, 1947 •
OBJECTIVES The Industrial Disputes Act, 1947, was enacted to secure industrial peace and harmony by providing machinery and procedure for the Investigation and settlement of industrial disputes by negotiations instead of by trial of strength through stries and locouts! This legislation is calculated to ensure social "ustice to both employers and employees and, thereby promote industrial progress!
CASE EXAMPLE In the case of Workmen of Dimakuchi Tea Esae !s" Dimakuchi Tea Esae Esae,, AI# 19$% &' ($(, the &upreme 'ourt laid down following ob"ectives of the Act) ## *romot *romotion ion of measur measures es of securi securing ng and preser preservin ving g amity amity and good good relati relations ons betwe between en the employ employer er and worme wormen! n! Investigation and settlement of industrial disputes between employers and employers, employers and wormen, or wormen and wormen with a right of representation representation by registered registered trade union or federatio federation n of trade unions or an association association of employers or a federation of associations of employers! employers! ## *revention of illegal stries and locouts! locouts! ## #elief to wormen wormen in the matter of lay+off lay+off and retrenchment! ## *romotion of collective bargaining!
SCOPE AND COVERAGE The Act etends to the whole of India and applies to every industrial establishment carrying any business, trade, manufacture or distribution of goods and services, irrespective of the number of, wormen employed therein, i!e. i!e. even in case of a single employee the Act shall apply! -&ection ./"0 and /a0 The Act was designed to provide a self+contained code to compel the parties to resort to industrial arbitrati arbitration on for the resolution resolution of eisting eisting or apprehended apprehended disputes disputes without without prescribing prescribing statutory statutory norms for vireo vireo and varieg variegate ated d indust industria riall relati relating ng norms norms so that that the forums forums create created d for resolu resoluti tion on of disput disputes es may remai remain n unhampered by an any statutory control and devise rational norms eeping pace with improved industrial relations relations reflecti reflecting ng and imbibing imbibing socio+econ socio+economic omic "ustice! "ustice! This being the ob"ect of the Act, the 'ourt by interpretative process must strive to reduce the field of conflict and epand he area of agreement and show its preference of upholding agreements sanctified by mutuality a consensus in larger public interest, namely, to eschew industrial strie, confrontation and conse2uent wastage -Workmen$ - Workmen$ Hin%usan Le&er Limie% !s" Hin%usan Le&er Limie% /19%40 1 &'' 7.% DEFINITONS `Industry [Section 2(j)] 3Industry3 means any business, trade, undertaing, manufacture or calling of employers and includes any calling, service, employment, handicraft or Industrial occupation or avocation of wormen!
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CASE EXAMPLE
Tests for determination of "Industry" The &upreme 'ourt, laid down the following tests in the 'an(a)ore 'an(a)ore Waer Su**)+ Su**)+ case to determine whether an activity Is covered by the definition of Industry or not! It is also referred to as the triple test) + I! /a0 5here there is /i0 systematic activity, activity, /ii0 organised by co+operation between employer and employee, /iii0 for the the production and6or distribution distribution of goods and services services calculated calculated to satisfy satisfy human wants wants and wishes /not spiritual spiritual or religious but inclusive of material things or services geared to celestial bliss e!g!, maing, on a large scale, prasad or food0 prima facie, there is an Industry in that enterprise! /b0 Absence of profit motive or gainful ob"ective is Irrelevant Irrelevant wherever wherever the undertaing is whether in the public, public, "oint, private or other sector! /c0 The true focus focus is functi functional onal and the the decisive decisive test test is the nature nature of the activi activity ty with with special special emphasis emphasis on the the employer+ employer+ employee relations! /d0 If the organisation is a trade or business, business, it does not cease to be one because of philanthropy animating animating the undertaing! ence, ence, the &upreme &upreme 'ourt observed observed that professio professions, ns, clubs educationa educationall institut institutions, ions, co+operati co+operatives, ves, research research institut institutes, es, charitable pro"ects and other indred adventures, if they fulfil the triple tests listed in /10, cannot be eempted from the scope of &ection ./"0! A restricted category of professions, clubs, cooperatives and guruulas and little research labs, may 2ualify for eemption if, in simple ventures substantially and going by the dominant nature criterion, substantively no employees are entertained but in minimal matters, marginal employees are hired without destroying the non+employee character of the unit! If in a pious or altruistic mission many employ themselves, themselves, free or for small honorarium or lie return, mainly drawn by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a
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CHAPTER 10-INDUSTRIAL DISPUTES
free medical centre or ashramites woring at the bidding of the holiness, divinity or lie central personality and the services are supplied fee or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then the institution is not an industry even if stray servants, manual or technical, are hired! &uch undertaings alone are other generosity compassion, developmental compassion or pro"ect!
Section 2(j) - as Amended by Amendment Act 1992 [date of effect is yet to be notified] In view of the &upreme 'ourt decision in 'an(a)ore Waer Su**)+ case, the definition of 8Industry8 is proposed to be elaborated! The amendments may be noted! `Industrial Dispute` [Section 2(k)] •
Wat is an !Industria #is$ute !% •
An 3industrial dispute3 means any dispute or difference between employers and employers, or between employers and wormen, or between wormen and wormen, which is connected with the employment or non+ employment or the terms and conditions of employment of any persons! -&ec ./0! CASE EXAMPLE
An industrial dispute has three ingredients, vi/a0 there should be real and substantial dispute or difference: /b0 the dispute or difference must be between employers and or wormen: /c0 the dispute or difference must be connected with /i0 the employment or non+employment or /ii0 terms of employment, or /iii0 with the conditions of labour of any person!-San%ar% !acuum Refinin( Co of In%ia L% !s" Their Workmen /19;<0 AI# &' 94% =nless there is a demand by the wormen and that demand is not complied with by the management, there cannot be any industrial dispute within the meaning of &ection ./0! >ere participation by the employer in the conciliation proceedings will not be sufficient -WS Insu)aors of In%ia L% !s" In%usria) Triuna)$ .a%ras 1977+II ?abour ?aw @ournal ..$ 'ertain individual disputes relating to dismissal, discharge, retrenchment or termination of services of a worman, are also covered under this Act, since the Act applies even to industrial establishments employing a single worman) ut dispute in relation to a person who is not a 3worman3 within the meaning of the Act is not an industrial dispute under &ection ./0 -Workmen of Dimakuchi Tea Esae !s" Dimakuchi Tea Esae, AI# 19$% &' ($(! •
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`Workman` [Section2 (s)] worman means any person /including an apprentice0 employed in any industry to do any manual, unsilled, silled, technical, operational, clerical or supervisory wor for hire or reward, whether the terms of employment be epress or implied, inc)u%es any such person who has been dismissed, discharged or retrenched in connection with, or as a conse2uence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, u %oes no inc)u%e any such person+ /i0 who is sub"ect to the Air Borce Act, 19$<, or the Army Act, 19$<, or the Cavy Act, 19$7: or /ii0 who is employed in the police service or as an officer or other employee of a prison: or /iii0 who is employed mainly in a managerial or administrative capacity: or who, being employed in a supervisory capacity, draws wages exceeding Rs. 1,600/- p.m. or exercises, either by /iv0 •
the nature of the duties attached to the office or by reason of the powers vested in him, function mainly of a managerial nature!
`Strikes` [Section 2 (q)] &trie means a cessation of wor by a body of persons e mployed in any industry acting in combination or a concerted refusal, or a refusal, under: a common understanding of any number of persons who are or have been so employed to continue to wor or to accept employment -&ection ./20 •
CASE EXAMPLE Stri&e ' a ea$on of coectie bar*ainin* &trie can tae place only when there is a cessation of wor or refusal to wor by the wormen acting in combination or in a • concerted manner! Time factor or duration or purpose of the strie is immaterial! It is enough if the cessation of wor is in defiance of the employerEs authority! A concerted refusal or a refusal under a common understanding of any number of persons to continue to wor or to accept • employment will amount to a strie! A general strie is one when there is a concert of combination of worers stopping or refusing to resume wor! Foing on mass casual leave under a common understanding amounts to a strie! owever, the refusal by wormen should be in respect of normal lawful wor, which the wormen are under an obligation to do! #efusal to do wor which the employer has no right to as for performance, such a refusal does not constitute a strie -Norhrooke /ue Co" L% !s" Their Workmen$ AI# 19;< &c %79! If on the sudden death of a fellow+worer, the wormen acting in concert refuse to resume wor, it amounts to strie - Naiona) Tei)e Workers Union !s" Shree .eenakshi .i))s /19$10 II ??@ $1;
Ty$es of stri&e
(i)+ Stay-in, sit don, $en don or too don stri&e (ii)+ o-so
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(iii)+ .un*er Stri&e (i)+ Wor&-to-rue ()+ Sym$atetic stri&e Wen stri&e and oc&out bot are ie*a - ` Doctrine of apportionment of blame 8 In .arine Ser&ice P&" L% !s" Their Workman AI# 19;( &' $.%, the &upreme 'ourt evolved the 8Doctrine of apportionment of blame8! According to this doctrine, when the wormen and the management are e2ually to be blamed, the 'ourt normally awards half of the wages! The &upreme 'ourt in several cases followed this doctrine! ock!out [Section 2(l)] ?oc+out means the temporary dosing of a place of employment, or the suspension of wor, or the refusal by an employer to continue to employ any number of persons employed by him -&ection ./l0 ?oc out is an antithesis to strie! In locout the employer refuses to continue to employ the worman employed by him even though there is no intention to close down the unit! The essence of loc out is the refusal of the employer to continue to employ the worman! Gven if suspension of wor is ordered, it would constitute loc out! ut ere suspension of wor, unless it is accompanied by an intention on the part of employer as a retaliation, will not amount to loc out! ay!off [Section 2(kkk)] It has been eplained that every worman shall be deemed to have been laid+off for that day whose name is borne on the muster rolls of the industrial establishment an% who presents himself for wor at the establishment at the time appointed for the purpose during normal woring hours on any day an% is not given employment by the employer within two hours of his so presenting himself) •
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#ifference beteen ay-off and oc&-out oth lay off and loc+out resemble each other in some respects! oth are of temporary nature and arise out of an emergency, though the nature of emergencies in each case is different! ut in lay+off and loc+out the relationship of the employer and the employee is only suspended and not terminated! owever, there many points of distinction which are as under) + 1! ?ay+off generally occurs in a continuing business, whereas loc+out is closure of business for the time being! .! in the case of lay+off the employer is unable to give employment to one or more wormen on account of the reasons specified in &ection . /0 whereas in the case the employer deliberately close the business for reasons which have no connection with the cause specified in &ection ./0! (! in the case of lay+off, the employer may be liable to pay compensation as provided in &ection .$' of the Act! ut this liability cannot be invoed in the case of loc+out! The liability of the employer in case of loc+out will depend upon whether the loc+out was "ustified and legal or not! 4! loc+out is resorted to by the employer as a weapon of collective bargaining while lay+off is due to trade reasons! $! the Act imposes certain penalties on loc+out but there are none in the case o lay+off! "etrenc#ment [Section 2(oo)] retrenchments means the termination by the employer of the service of a worman for any reason whatsoever, oher2ise han as a punishment inflicted by way of disciplinary action It does not include+ /a0 voluntary retirement of the worman: or /b0 retirement of the worman on reaching the age of superannuation if the contract of employment between the employer and the worman concerned contains a stipulation in that behalf: or /bb0 termination of the service of the worman as a result of the non+renewal of the contract of employment between the employer and the worman concerned on its epiry or of such contract being terminated under a stipulation on that behalf contained therein: or /c0 termination of the service of a worman on the ground of continued ill+health: •
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CASE E3A.PLE The &upreme 'ourt in the case of 5ormen of Suon( Tea Esae !s" Suon( Tea Esae /19;40 1 ??@ (((, laid down following principles with regard to retrenchment) + The management can retrench is employees only for proper reasons, which means that it must not be actuated by any motive of victimiation or any unfair labour practice! It is for the management to decide the strength of its labour force, and the number of wormen re2uired to carry out efficiently the wor in his industrial undertaing must always be left to be determined by the management in its discretion!
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If the number of employees eceeds the reasonable and legitimate needs of the undertaing, it is open to the management to retrench them! 5ormen may become surplus on the ground of rationaliation or on the group of economy reasonably and bona fide adopted by the management or of other industrial or trade reasons!
$%&ard$ [Section2 (b)] It means an interim or a final determination of any industrial dispute or of any 2uestion relating thereto by any ?abour 'ourt, Industrial Tribunal or Cational Industrial Tribunal and includes an arbitration award made under &ection 1HA of the Act! `'losure`[Section 2 (cc)] 'losure means the permanent closing down of a place of employment or part thereof! `Settlement` [Section 2 p)] It envisages two categories of settlements /i0! A settlement arrived at in the course of conciliation proceedings: and /ii0! A written agreement between employer arrived at otherwise in the course of conciliation proceedings! •
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CASE EXAMPLE 4H PANDHI ! Presi%in( 5fficer$ A%%iiona) Laour Cour 6 Anr ! -.<<4 1<; B@# 94( /Del0 >adan ! ?our, @ -Decided $!<.!.<<4 Industrial Disputes Act 1947 section ./s0+5orman+ Gmployee performing mostly accounting duties+&ometimes performs incidental duties also in addition to his primary duties+whether the employee is a worman eld yes 'rief 7acs) The petitioner was an accountant with the resp-ndent management and was dismissed from the services after one and half year! e raised an industrial dispute! The ?abour 'ourt held tha he was not a worna and dismissed the dispute! The petitioner+worman approached the igh 'ourt under a writ challenging the award of the labour 'ourt! Decision) *etition allowed! Reasons) The designation of an employee is of no conse2uence! to determine whether an employee is a worman or not, what is of conse2uence is his main or primary duty! If the employee performs some duties which are incidental or even in addition to his main or primary duties, that by itself, will not tae away his status as a 8worman3 provided, as a result of his main or primary duties, he falls within the meaning of the definition of 8worman3 under the Act! A perusal of the duties performed by the petitioner suggested that his duties were only, if not primarily, clerical in nature! e was re2uired to write accounts and prepare related statement of accounts! e was also re2uired to mae entries of the vouchers in the account boos! e was performing accountancy wor only on the basis of and according to the guidelines issued by the chief accountant and the chartered accountant! The activities that the petitioner performed in relation to cash, that was, to deposit cash in the ban or to withdraw it, were under the supervision of the technical director! The daily accounts of the cash in hand prepared by the petitioner were checed and signed by the technical director! It was only after the technical director authorised the issue of vouchers for payments that they were entertained by the petitioner! In other words, there was little wor, which the petitioner could do on his own! Juite clearly, the wor done by the petitioner fell in the category of clerical wor and nothing more! It is not necessary to have any further in2uiry because the facts are sufficient for coming to the conclusion that the petitioner was a worman within the meaning of section ./s0!
AUTHORITIES UNDER THIS ACT The Appropriate Fovernment appoints following authorities for the purposes of this Act+ /a0 !ors "ommittee + Bor securing and preserving amity and good relations between the employer and the wormen, in Industrial establishments wherein 1<< or more wormen are e mployed! /b0 "onciliation #fficers and $oards of "onciliation - These are responsible for mediating in and promoting settlement of industrial disputes! /c0 "ourts of %n&uiry + Bor in2uiring into any matter connected with an industrial dispute! /d0 'abour 'ourts, Industrial Tribunals +Bor ad"udication of industrial disputes relating to matters specified in &chedule II or &chedule III or 2uestions of national importance and such other functions as may be assigned to them! /imitation Act ' not to a$$y *rovisions of Article 1(7 of the ?imitation Act do not apply to reference of dispute to the ?abour 'ourt! In case of delays, the 'ould can mould relief by refusing bac wages or directing payment of past wages -1999 ?A 1' &' 14($ /abour 0ourt to adjudicate e$editiousy 5hen an industrial dispute has been referred to a ?abour 'ourt for ad"udication, it is the duty of the said to 1! hold its proceedings epeditiously: and .! submit its award to the appropriate Fovernment soon after the conclusion of the proceedings! ribunals (Section %) A$$ro$riate *oernment may notify constitution of Industria Tribuna •
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CHAPTER 10-INDUSTRIAL DISPUTES
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The appropriate government may notify constitution of one or more Industrial Tribunals! A @udge of a igh 'ourt or District "udge or an Additional District @udge with three years eperience as such shall be 2ualified for appointment as the *residing Hfficer! e shall be an independent person and not more than ;$ years of age! *ational ribunals (Section +) • •
0entra oernment may notify constitution of ationa Tribuna •
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The 'entral Fovernment may, constitute one or more Cational Industrial Tribunals! It shall consist of one person only to be appointed by the 'entral Fovernment! The *residing Hfficer shall be 2ualified for appointment as the presiding officer of a Cational Tribunal unless he is, or has been, a @udge of a igh 'ourt! REFERENCE OF CERTAIN INDIVIDUAL DISPUTES TO GRIEVANCE SETTLEMENT AUTHORITIES The employer in relation to an industrial establishment wherein $< or more wormen are employed or were employed on any day during the preceding 1. months, shall set up a Frievance &ettlement Authority for settlement of individual disputes of the wormen employed in that establishment! Any worman or any trade union, of which such worman is a member, may refer a dispute to the Frievance &ettlement Authority! Co dispute shall be referred for ad"udication by the 'onciliation oard, ?abour 'ourt or Tribunal, unless it has been referred to the Frievance &ettlement Authority and the decision of the Authority is not acceptable to any of the parties to the dispute! CONCILIATION PROCEEDINGS (Section 1 !n" 1#$ If the employer and the wormen fail to arrive at a settlement through negotiations, the 'onciliation Hfficer may intervene as a mediator, endeavor to reconcile the differences of opinion and help the labour and management in achieving a successful settlement! owever, 'onciliation Hfficer is not competent to decide the various points of issue between the opposing parties! Intervention by the 'onciliation Hfficer is mandatory in case an industrial dispute has arisen in a public utility service and a notice of strie or loc+out /u6s ..0 has been served! The 'onciliation Hfficer shall send a report of proceedings to the Fovernment, as to whether a settlement has been achieved or not, within 14 days of the commencement of the conciliation proceedings or within such etended time as may be allowed and in the prescribed manner! If a settlement is arrived at as a result of conciliation proceedings, a memorandum of settlement is wored out and it becomes binding on all parties concerned for a period agreed upon! If no settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send a full report to the appropriate Fovernment setting forth the steps taen by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, and the reasons on account of which a settlement could not be reached! Hn consideration of the report, the appropriate Fovernment may, if it feels necessary, refer the dispute to the 'onciliation oard: labour 'ourt, Tribunal or Cational Tribunal! If no such reference is made, the appropriate Fovt! shall record and communicate to the parties concerned the reasons therefore! 5here a dispute is referred to the 'onciliation oard, the oard shall endeavour to bring about a settlement of the same after, investigating into the dispute! If a settlement has been arrived at, the oard shall send a report thereof together with a memorandum of settlement signed by the parties to the dispute, to the appropriate Fovernment with two months of the reference or within such etended time as may be allowed! If no settlement is arrived at, the oard shall also send a similar detailed report as re2uired above from the 'onciliation Hfficer! REFERENCE OF DISPUTES TO BOARDS% COURTS OR TRIBUNALS
3eference of dis$utes to 4oards, courts or Tribunas ' by a$$ro$riate *oernment in ritin* (Section 15) •
5here the appropriate government is of opinion that any industrial dispute eists or is apprehended, it may at any time, by order in writing+ (a) refer the dispute to a $oard for promoting a settlement thereof* or (b) refer to a court for in&uiry* or (c) refer to a 'abour "ourt (d) refer to a +ribunal
Submission of re$ort by 0ourt6 Adjudicatin* autorities
CHAPTER 10-INDUSTRIAL DISPUTES •
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The court shall in2uire into the matters referred to it and report thereon to the appropriate government ordinarily within a period of si months from the commencement of its in2uiry /&ection 140! Burther, the Ad"udicating authority shall hold its proceedings epeditiously and shall submit its award to the appropriate government, within the specified period in the order referring such industrial dispute or the further etended period as may be fied by the concerned authority! /&ection 1$0
3eference by State or 0entra oernment en notice of Stri&e or /oc&-out *ien ' $ubic utiity serices •
The 'entral or &tate Fovernment shall mae a reference under this section where the dispute relates to a public utility service and a notice of &trie or ?oc+out /section ..0 has been given!
3eference by 0entra oernment of industria dis$ute of nationa im$ortance or affectin* more tan one state - to ationa Tribuna •
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5here the 'entral Fovernment is of opinion that any industrial dispute eists or is a pprehended an% the dispute involves any 2uestion of national importance or is of such a nature that industrial establishments situated in more than one &tate are liely to be interested in, or affected by such dispute, an% that the dispute should be ad"udicated by a Cational Tribunal! Thereupon, the 'entral Fovernment may, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant thereto, to a Cational Tribunal for ad"udication! &uch may relate to any matter specified in the II nd &chedule or IIIrd &chedule!
3eference by a$$ro$riate *oernment ' u$on a$$ication by $arties to industria dis$ute+ •
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The persons representing the ma"ority of each party to an industrial dispute may apply in the prescribed manner, whether "ointly or separately, for a reference of the dispute to a oard, court, ?abour 'ourt, Tribunal or Cational Tribunal! The appropriate government, if satisfied, shall mae the reference accordingly!
7rder ma&in* reference to s$ecify ' $eriod of submission of aard •
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An order referring an industrial dispute to a ?abour 'ourt, Tribunal or Cational Tribunal shall specify the period within which it shall submit its award on such dispute to the appropriate government 5here such industrial dispute is connected with an individual worman + period shall be three months!
8residin* 7fficer may etend te $eriod •
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The parties to an industrial dispute may apply in the prescribed manner, whether "ointly or separately, to the ?abour 'ourt, Tribunal or Cational Tribunal for etension of such period or for any other reason! This period may however, be etended by the presiding officer, for reasons to be recorded in writing as considers necessary or epedient to etend such period, Co proceedings before a ?abour 'ourt, Tribunal or Cational Tribunal shall lapse merely on the ground that any period specified under this sub+section had epired without such proceedings being completed!
8roibition of continuance of Stri&e or /oc& out •
5here an industrial dispute has been referred to a oard, ?abour 'ourt, Tribunal or Cational Tribunal, the appropriate Fovernment may by order prohibit the continuance of any strie or loc+out in connection with such dispute which may be in eistence on the date of the reference!
Terms of reference may be s$ecified in order •
The appropriate government in an order referring an industrial dispute to a ?abour 'ourt, Tribunal or Cational Tribunal or in a subse2uent order may specify the points of dispute for its ad"udication!
8roceedin*s not to a$se u$on deat of or&man, a $arty to dis$ute Co proceedings pending before a ?abour 'ourt, Tribunal or Cational Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a worman, and such ?abour 'ourt, Tribunal or Cational Tribunal shall complete such proceedings and submit its award to the appropriate government ,oluntary %rbitration (Section -. %) •
m$oyer and Wor&man may refer te dis$ute to Arbitration •
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efore an industrial dispute is referred to a ?abour 'ourt or Tribunal or Cational Tribunal, the employer and the wormen may refer the dispute to arbitration of any person or persons of their choice, by means of a written arbitration agreement! A copy of the arbitration agreement, signed by representatives of both the parties representing ma"ority of each party should be forwarded to the Fovernment and the conciliation officer! 5ithin one month from the date of the receipt of such receipt of such copy, publish the same in the Hfficial Faette!
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The arbitrator/s0 shall investigate who shall within one month of the receipt thereof, publish the same in into the dispute and submit the arbitrator award to the government, the Hfficial Faette! PROCEDURE% PO&ERS AND DUTIES OF AUTHORITIES
Adjudicatin* autorities may $rescribe $rocedures •
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An arbitrator, a oard, court, ?abour 'ourt, Tribunal or Cational Tribunal shall follow such prescribed rules besides the procedure as the arbitrator or other authority concerned may thin fit! A conciliation officer or a member of a board or court or the presiding officer of a ?abour 'ourt, Tribunal or Cational Tribunal may for the purpose of in2uiry into any eisting or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates!
ery in:uiry or inesti*ation ' deemed judicia $roceedin*s •
Gvery in2uiry or investigation by a oard, court, ?abour 'ourt, Tribunal or Cational Tribunal, shall be deemed to be a "udicial proceeding within the meaning of sections 19( and ..% of the Indian *enal 'ode!
8oers of 4oard, and Tribunas under 080 and 0r+ 8 0 •
Gvery oard, court, ?abour 'ourt, Tribunal and Cational Tribunal shall have the same powers as are vested in a 'ivil 'ourt under the 'ode of 'ivil *rocedure, 19<%, when trying a suit, in respect of the following matters, namely)+ /a0 enforcing the attendance of any person and eamining him on oath: /b0 compelling the production of documents and material ob"ects: /c0 issuing commissions for the eamination of witnesses: /d0 in respect of such other matters as may be prescribed,
Autority to a$$oint $erts6 to aard costs etc A court, ?abour 'ourt, Tribunal or Cational Tribunal may, if it so thins fit, appoint one or more persons having special nowledge of the matter under consideration as an assessor or assessors to advise it in the proceeding before it! &uch costs may, on application made to the appropriate government by the person entitled, be recovered by that government in the same manner as an arrear of land revenue! /o&ers of abour 'ourt ribunal0 and *ational ribunal to 1ie appropriate relief in case of disc#ar1e or dismissal of &orkmen (Section --%) 5here an industrial dispute relating to the discharge or dismissal of a worman has been referred to a ?abour 'ourt, Tribunal or Cational Tribunal for ad"udication and, in the course of the ad"udication proceedings, it is satisfied that the order of discharge or dismissal was not "ustified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the worman on such terms and conditions, if any, as it thins fit, or give such other relief to the worman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may re2uire! 3orm of "eport or %&ard (Section -4) The report of a oard or 'ourt shall be in writing and shall be signed by all the members of the oard or court, as the case may be! Any member of the oard of 'ourt may record any minute of dissent from a report or recommendation made therein! /ublication of "eport and %&ard (Section -) •
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8ubication itin ;5 days< of recei$t •
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Gvery report of a oard or court together with any minute of dissent recorded therewith, every arbitration award and every award of a ?abour 'ourt, Tribunal or Cational 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 thins fit! The award published shall be final and shall not be called in 2uestion by any court in any manner whatsoever! 'ommencement of t#e a&ard (Section -%)
Aard becomes enforceabe after ;5 days< of $ubication •
An award /including an arbitration award0 shall become enforceable on the epiry of thirty days from the date of its publication!
In $ubic interest 0entra ot+ may notify ' te Aard not enforceabe •
The 'entral Fovernment may, by notification in the Hfficial Faette, declare that the award shall not become enforceable on the epiry of the said period of thirty days!
7rder rejectin* Aard by A$$ro$riate=0entra ot+ ' to be aid before .ouse itin 95 days<
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The appropriate government or the 'entral Fovernment may, within ninety days from the date of publication of the award mae an order re"ecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the ?egislature of the &tate! &uch award shall become enforceable on the epiry of fifteen days from the date on which it is so laid! 5here no re"ection order is made, the award shall become enforceable on the epiry of the period of ninety days from the date is it so laid! /ayment of full &a1es to &orkman pendin1 proceedin1s in #i1#er courts (Section -+)
Wor&man not em$oyed in any estabisment and fies an affidait •
5here in any case, a ?abour 'ourt, Tribunal or Cational Tribunal by its award directs reinstatement of any worman and the employer prefers any proceedings against such award in a igh 'ourt or the &upreme 'ourt, the employer shall be liable to pay such worman, during the period of pendency of such proceedings in the igh 'ourt or the &upreme 'ourt, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the worman had not been employed in any establishment during such period and an affidavit by such worman had been filed to that effect in such court! /ersons on &#om settlements and a&ards are bindin1 (Section -5)
Settement sacrosanct •
A settlement arrived at by agreement between the employer and worman shall be binding on the parties to the agreement! This is enforceable and shall be binding on+ /a0 all parties to the industrial dispute: /b0 all other parties summoned to appear in the proceedings as parties to the dispute,: /c0 an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates: /d0 all persons who were employed in the establishment or part of the establishment!, to which the dispute relates on the date of the dispute and all persons who subse2uently become employed in that establishment or part! /eriod of operation of settlements and a&ards (Section -6)
Settement to become o$eration from •
A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute!
>aidity $eriod of Aard ' one year6 A$$ro$riate oernment may etend u$ to ma+ ; years •
An award shall, sub"ect to the provisions of this section, remain in operation for a period of one year or may be further etended so that total period of operation of the award does not eceed three years from the date of operation!
7n materia can*es in circumstances a$$ro$riate *ot+ may refer to te Aard 0ourt or Tribuna •
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5here the appropriate government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate government may refer the award or part of it to a ?abour 'ourt, or Tribunal or to Cational Tribunal, as the case may be, for decision whether the period of operation should not, by reason of such change, be shortened and the decision of ?abour 'ourt or the Tribunal, shall be final! The award shall continue to be binding on the parties until 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 Cotice under this &ection is re2uired to be given by a party representing the ma"ority of persons bound by the settlement or award, as the case may be! 'ommencement and conclusion of proceedin1s (Section 2.) A conciliation proceeding shall be deemed to have commence% on the date on which a notice of strie or locout is received by the conciliation officer or on the date of the order referring the dispute to a oard, as the case may be! A conciliation proceeding shall be deemed to have conc)u%e%+ /a0 where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the dispute: /b0 where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate government or when the report of the oard is published under section 1, as the case may b e: or /c0 when a reference is made to a court, ?abour 'ourt, Tribunal or Cational Tribunal under section 1< during the pendency of conciliation proceedings!
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*roceedings before an arbitrator or before a ?abour 'ourt, Tribunal or Cational Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or ad"udication, as the case maybe, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under section
Information obtained durin* te course of inesti*ation ' en to be treated confidentia If any information is obtained by a 'onciliation Hfficer, oard, 'ourt, ?abour 'ourt, Tribunal, Cational Tribunal or an arbitrator, in the course of any investigation or in2uiry as to a trade union or as to any individual business /whether carried on by a person, firm or company0 2hich is no a&ai)a)e oher2ise han hrou(h he e&i%ence (i&en efore such officer$ 'oar%$ cour$ Laour Cour$ Triuna)$ Naiona) Triuna) or ariraor STRI'ES AND LOC'OUTS Definition of Strike [Section 2(q)] &tries means a cessation of wor 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 wor or to accept employment •
CASE EXAMPLE 5here the facts disclosed clearly ## There was a dispute relating to a room in building belonging to the company between some of its worers KK &ome of the worers indulged in riotous acts in the presence of the conciliation officer and two officers of the company ## #eport were submitted to the >anager of the company and he suspended those worers who ehibited an unmannerly conduct at the time of the en2uiry ## As a result of the suspension, the >anager was served with a notice that a toen strie was going to be staged for .4 hours commencing from % A> on the .9 th Covember 19$. ## The =nion was informed by the 'onciliation Hfficer and also by the >anager that such a strie would be illegal for contravention of &ection ../10/b0 of the Act: and ## Inspite of the attention of the =nion having been drawn to this situation, a large number of worer, including the five respondents referred above ceased to wor and refused to do any wor when ased by their superior, the court held that there could be no doubt therefore, that those five respondents had ceased to do wor in a concerted action with the other wormen of the company and that they were acting in combination! The act of these wormen or employees, therefore, did amount to strie -Sae of 'ihar ! Deo%ar /ha 6 5hers AI# 19$%!
/ro#ibition of strikes and ockouts (Section 22)
8roibition on stri&e •
Co person employed in a public utility service shall go on strie in breach of contract+ /a0 without giving to the employer notice of strie, within si wees before striing: or /b0 within fourteen days of giving such notice: or /c0 before the epiry of the date of strie specified in any such notice as aforesaid: or /d0 during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings!
8roibition on /oc& out •
Co employer carrying on any public utility service shall loc+out any of his wormen+ /a0 without giving them notice of loc+out, within si wees before locing+out: or /b0 within fourteen days of giving such notice: or /c0 before the epiry of the date of loc+out specified in any such notice as aforesaid! or /d0 during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings!
otice not necessary - stri&e or oc& in continuance •
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The notice of loc+out or strie shall not be necessary where there is already in eistence a strie or, as the case may be, loc+out in the public utility service! owever, the employer shall send intimation of such loc+out or strie on the day on which it is declared, to such authority as may be specified by the appropriate government either generally or for a particular area or for a particular class of public u tility services!
otice of stri&e and oc& out to be *ien in $rescribed manner •
The notice of strie and locout shall be given by such number of persons to such person or persons and in such manner as maybe prescribed!
CHAPTER 10-INDUSTRIAL DISPUTES
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m$oyer to send notice itin ? days< of recei$t •
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If on any day an employer receives from any person employed by him any such notices or gives to any person employed by him any such notices, he shall within five days thereof report to the appropriate government or to such authority as that government may prescribe, the number of such notices received or given on that day! 7eneral pro#ibition of strikes and ockouts (Section 28) Co worman who is employed in any industrial establishment shall go on strie in breach of contract and no employer of any such worman shall declare a locout /a0 during the pendency of conciliation proceedings before a oard and seven days after the conclusion of such proceedings: /b0 during the pendency of proceedings before a ?abour 'ourt, Tribunal or Cational Tribunal and two months, after the conclusion of such proceedings: /bb0 during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under sub+section /(A0 of section 1
ashan 6 5rs /199(0 MMIN ??# $9 /#a"!0,and /e0 termination due to continued ill+health of the worman! 'onditions for "etrenc#ment (Section 29 : and 29 *) Co worman who has been in continuous service for at least one year, shall be retrenched until and unless the following conditions are fulfilled) /a0 In case of a factory mine or plantation establishment /other than seasonal establishment0wherein at least 1<< wormen were employed on an average per woring day, for the preceding 1.months: ! /i0 otice/otice ay three months3 notice of intention to retrench the worman with reasons or wages in lieu therefor! /ii0 pproval of the overnment to obtain prior approval of the appropriate Fovernment within ;< days before the proposed retrenchment! A copy of the application should be served simultaneously on the worman concerned! /iii0 Retrenchment "ompensation upon, the worman being retrenched shall be entitled to receive retrenchment compensation! "e!employment of "etrenc#ed Workmen (Section 29;)
CHAPTER 10-INDUSTRIAL DISPUTES •
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5here any wormen are retrenched, shall be given preference for re+employment!
'losure of an (4)] 5here no application for permission u6s .$ H /10 is made within the specified period or where the permission for closure has been refused, the closure of the undertaing shall be deemed to be illegal from the date of closure and the wormen shall be entitled to all the benefits available under law as if the undertaing had not been closed down! "e!openin1 of closed undertakin1s [Section 29 /] Any undertaing /wherein 1<< or more worers were employed can be restarted if the government so directs its employer, on being satisfied that + /i0 the undertaing was not closed down for unavoidable reasons, /ii0 there are possibilities of restarting it, /iii0 its reopening is necessary for rehabilitating the wormen employed therein before its closure or for maintaining supplies and services essential to the life o f the community, and, /iv0 restarting will not cause any hardship to the employer!
/10 /.0 /(0 /40 /$0
/;0 /70
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/90 /10
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5'LIBATI5NS Cot to mae any change in the service conditions of the wormen, without giving a notice! To constitute 5ors 'ommittee and to ensure that it functions properly! To assist the conciliation officer6board and the arbitrator in resolving any dispute! To implement all agreements, settlements and awards! To maintain a muster roll of the wormen employed in the establishment, even at the time when wormen have been laid off! Cot to declare, support or finance an illegal locout, in the establishment! Cot to lay+oft or retrench any worman or close down an undertaing, without obtaining prior approval of the government if so re2uired! ! To pay lay+off, retrenchment and closure compensation, compensation to wormen for illegal locout, as prescribed under the provisions of the Act! Cot to indulge in unfair labour practices! RIBHTS #ight to retrench or lay+off worers declare locout and close down an undertaing, in accordance with the provisions of the Act! #ight to appeal against the awards of the labour 'ourt or Industrial Tribunal, before the igh 'ourt!
EMPLO+EE 5'LIBATI5NS /10 To assist and co+operate with the conciliation officer6board, arbitrator and other authorities, in resolving any industrial dispute! /.0 Cot to participate in, support or finance an illegal strie! /(0 To abide by all agreements, settlements and awards! /40 Cot to indulge in unfair labour practices!
RIBHTS /10 #ight to be informed by means of a notice, before any change is made in the service conditions, or before loc+out, lay+off, retrenchment or closure of the undertaing! /.0 #ight to receive compensation for lay+oft, retrenchment or closure! /(0 #ight to recover any legal dues! /40 #ight to be represented by an officer of a registered trade union or any other worman, in relation to any industrial dispute! /$0 #ight to appeal against an award of the labour 'ourt or Industrial Tribunal .
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