UNIT~1 H 1-29 Introduction to Law of Industrial Disputes Act, 1947 : Historical Aspects Master and slave relationship ~ industrial revolution ~Laissez faire state-impact of Constitution on Labour provision; ‘Definition and law relating to Appropriate Government - Award and settlement — Industry industrial dispute-Workman Strikes and Lock-out. ‘UNIT - ft 30-55 Introduction to’ Law of industrial Disputes Act, 1947:Lay-off-Retrenchment —Closure ~ Unfair Labour Practices and Role of Government; Authorities under the Act (Chapter 1) to be read with chapters {I B, Ill and IV Adjudication and Arbitration; Restrictions on the right of the employer'-Chapter IIA — Notice of change, section I1A and sections 33, 33A; Recovery of money due from an employer: UNIT=I” Et 56-77 Trade Unions Act, 1956: Salient features of the enactment and important definitions Registratich of Unions, Amalgamation of Unions, Cancellation and Registration of Trade Unions, Funds of the Union, Immunity enjoyed by the Union Workmen's Compensation Act, 1923: Emergence of the legislation — Total and partial disablement - Dependent — Workman ~ Wages-Liability of the employer to pay compensation and right of the workman to receive’ compensation - Accident “Arising out of and in the course of employment” Occupational disease-Doctrine of Added peril. UNIT-IV 7 ; tee 78-95 Labour Welfare Legislations : The Employees State insurance Act, 1948: ‘Corporation, Standing Committee arid Medical Benefit Council; Contributions; Benefits ‘Adjudication of disputes and Claims; Penalties The Employees Provident Fund Act, 4952" Employees Provident Fund Scheme_and Authorities! Miscellaneous; a .UNIT -V 96 - 122 ‘The Minimum Wages Act 1948 —Fixation of minimum rates of ‘Wages — working hours ~~ and determination of wages and claims; Factories Act — its essential features, safety, Health and welfare measures; Contract Labour (Regulation and Abolition) Act, 1970 — its object and its essential features QUESTION PAPERS 123“Jurisprudence has de UNIT -1 INDUSTRIAL DISPUTES ACT, 1947 INTRODUCTION:- During the twentieth :w branch of jurisprudence known as Industrial ‘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 stil 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 thé development of harmonious and amicabie 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 right 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 maybe 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. a 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 Gan no more fire them. at his will, : ‘The interest of the employees is in many respects protected by legislation. Both areIn ancient India there were family. -industries which were headed by karta_ of the family. The family members themselves were the master’s as well as workers. There was no question of any exploitation or unjust distribution of profit from the industries. | The villages were self - contained and self: sufficient uni einesiaiineiaiteiaeeeaaa Even befére this, there were four classes prevaling in india based on merits and | functions. The four classes served the other three classes on contract basis and not - | on wage basis.This class was getting fixed quantity of grains and [ Temonetizations and réwards from other classes of village on special occasions Of Festivals and ritual ceremonies, Potters, blocksmiths, goldsmiths, cowherds, snake charmers, (cobblers, tailors ele). The concept of industralization was un-known to i them. The concept of service for wages or monthly salaries were came only during Muslim rule. in British rule itrose higher and in the post: independence of India, it had teached jts climax. ; It is signiticant to note that even long before Karl Marx and Engels, the society is dividing into rich and poor. Greek Philosophers, lke Plato was held the view that there was {wo slates ie. Rich and poor and these were in constant conflict. Further it was believed that the exploitation of one class by anather was the perceptual, natural and essentially normal state of society: In. class struggle, there was. concentration of Economic resources in the hands of capitalist class. and poor economic resources or weallh in poor class. The workers cannot wage strike for a longer period due to Poverty. The connecting line between two classes is contract of employment. The worker claims some right under the contract of service and refused b y the employer :0N certain ground was the feature of class struggle. Due to this econotnic activity, the social and political rights were affected, : 7 To eliminate the imbalance in socio-economic justice laissez-faire was introduced. According to this an individual is free to carry on business and conduct himself with the minimum control. SCOPE AND OBJECT a . The object of industrial relations legislation in general is industrial peace and economic Justice. The prosperity of any industry Very much depends upon its growing... : Production. The production is only possible when the industry functions smoothly without any interruptions. There are some:other factors that influence the production, namely absence of disputes, ie., harmonious relationshi between the labour and the management, : >The objectives and the salient features of the act were very clearly explained by the ‘Supreme Court in different cases. In the words of the Supreme Court, the following are the main objects of the Act: 1. The Endeavors to secure to the workers a better condition of work and ensures ‘descent standar ie. i 2. It substitutes arbitration and fait negotiation instead of trial of strength by strikes and lock out. 3. It defines the case of illegal strike and lock out with the object of preventing illegal strikes and lockouts 4. It lays down the conditions for a valid lay-off and retrenchment of workers with the object of preventing unlawful layoff and retrenchment. . Italso aims to give relief to workmen in case of layoff and retrenchment. |. The act applies to workers of both private and public sector industries it aims to provide job security to workers in industrial establishments . promotes collective bargaining Hf |. It provides for payment of compensation to workmen: in case of transfer-or closure of an undertaking. 10. It aims to secure amity and good relation between the employer and workmen. OPrnagn ‘The Industrial Disputes Act is a progressive measure of social legislation aiming at the amelioration of the conditions of workmen in industry." 7 -Main Features of the Act Some of the distinguishing features of the Industrial Disputes Act, 1947 may be summarized as under: . Ste 4. Any industrial dispute may be referred to an industrial tribunal by an agreement of parties to the dispute or by the State Govemment ifit deems it expedient so to do. . An award shall be binding on both the parties to the dispute for the specified period not exceeding one year. It shall be normally enforced by the Government. . Strike and lock-outs are prohibited: oa a. During the pendency of conciliation and adjudication proceedings; b. During the pendency of seltlements reached in the course of conciliation proceedings; aniConciliation, and Courts of inquiry, Labour Courts, Tribunal and National Tribunal are provided for settlement of industrial disputes. The nature of powers, functions and duties of these authorities differ from each othe: an important role in erisuring industrial peace. DEFINITION OF INDUSTRY:-S.2()) of the Industrial Disputes Act, 1947(I.D.Act), defines the term “industry”. According to this section it 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, "Ifthe 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 industtial disputes. ~The term industry has been interpreted by the Supreme court in different ways in different cases and thereby it has been made as one of the most controversial term in the field of labour adjudication. Hospitals - Is an industry: The question whether a hospital is an industry or not, has” come for determination before the Supreme Court in a number of cases. And the Court also gave conflicting decisions on this subject. But, the present day posttion is that the hospital is an industry within the meaning of $.2(). in State of Bombay v. Hospital Mazdoor Sabha (AIR 1960 SC 610) the Hospital Mazdoor Sabha was registered Trade Union of the employees of hospitals in the State of Bombay. The services of two of its members were terminated by way of retrenchment by the goverment through a writ petition. Before the court, one of the main question was whether a hospital is an industry or not. The court observed that - the hospital run by the govemment is an undertaking within the meaning of $.2(); nd it further held that any activity systematically or habitually undertaken “for. Production or distribution o for the rendering of material,services to the corimuni large with the help of employees is art undertaking. Who conducts the activi whether it is conducted for profit or not is immat ‘A number of authorities such as, Works Committee, Concilaion Orficers, Board of them plays~—sakes a material difference. , of goods or: for the: rendering of material services to the-community at targe ora ‘part of such community with the help of employees is an undertaking. 3. It is the character of the activity in question which altracted the provisions of Section 2(). Who conducts the activity and whether it is conducted for profit or not 4. The conventional meaning attributed to the words, trade ahd business.has fost some of its validity for the purposes of industrial adjudication...it would be erroneous to attach undue importance to attributes associated with business or trade in the popular mind in days gone by. in Safdarjung Hospital, Delhi v. Kuldip Singh (AIR 1970 SC 1406) In this case Kurji Holy Family ‘Hospital was held not to be an industry because that was entirely a charitable institution giving training, research and treatment, and Safdar Jung Hospital, New Delhi and eee Hospital, New Delhi were also held not to be industry. In Management of Hospitals, Orissa v. Their Workmen:-It was held that “hospital run by the Government as a part of its function is not an industry. Hospitals run by the State of ‘Orissa are places where persons can get treated, They “are run as departments of Goverment lead to the inference that the hospitals are run as a business in a commercial way. Primarily, the hospitals are meant as fie service by the Government to the patients without any profit motive.” ~~ = In Dhanralaiti Hospital vWorkmen(AIR 1975 SC 320)=It was held that Dhanrajgit Hospital, Solapur was not an industry because it was not carrying on any economic activity in the nature of trade ort business. It was not rendering any material service by bringing in any element of trade or business in its activity. 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 that Dhanrajgiti Hospital Sholapur was not an industry because it was not carrying on any economic activity in the nature of trade or business. But in view of the decision of the Supreme Court in Bangalore Water Supply VA. Rajappa_Dhanrajgiri hospital case has been overruled and all hospitals fuffiling the test laid down in Bangalore Water Supply case will be industry. The above two decisions were overruled by the Supreme court in’ + angele Water Suppiy(BWSSB) vis. A. Rajappa (AIR 48) and the decision in Hospital Mazdoor Supply case will be treated as industry. | In Bangalore Water Supply case theeas ae i : : 2 ‘The decisions sal in effect overruled @ number of decisions and brought all most. all avocations and activites like hospitals, educational institutions, clubs, research institution, solicitors firm, agricultural farms and municipality under the definition of industry. Educational Institutions: - Educational institutions were not treated as industry before the decision of the Supreme Court in Bangalore Water Supply case. Only this case has brought the educational institution within the purview of the term ‘industry’ as defined in the LD Act. In University of Delhi v. Ram Nath(AIR 1963 SC 1873) In this case, the respondent Mr. Ram Nath was employed as driver by University College for women. Mr. Asgar Mashin was initially employed as driver by Dethi University but was later on transferred to the University College for women in 1949. The University of Delhi found that running the buses 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 terminated. The order of termination was challenged on the ground that the drivers were workmen and the termination of their services amounted fo retrenchment. They demanded Payment of retrenchment of their services amounted 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 educations is more a mission and a vocation than profession or traded or business and therefore University is not an industry. 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. The supreme court held that work of imparting education is more a mission and a vocation than a profession of trade or business and therefore university is not an industry. In Osmania University v. industrial Tribunal Hyderabad,:-In this case, 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 betwen the capital and labour, is whether they are engaged in co-operation, or Whether the dispute has arisen in activities connected directly wth Or atte Production or Aiaclaceadl of wealth. duties i in connection with local self government and the work of municipali nature and therefore it is an industry. In N.N.U.C, Employees v. Industrial gfibunal Solicitor, Fi _|‘professional equipment, knowledge and efficiency of the soliclor functioning either individually’ or working together. 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. The work of his staff has no direct or essential _Nexus.of connection. with the advice which it is-the duty-of the solicitor to-give tohis-client —— There is, no doubt, a kind of co-operation between the solicitor and his employees, but that co-operation has no direct or immediate relation to the professional service which the ‘solicitor renders to his-client. This case has-been overruled in Bangalore Water Supply case and now a solicitors’ firm employing person to help in‘cateting the needs of the clients is an industry Clubs:-Clubs or self-service institutions or non-proprietary member's club will be industry provided they fulfil the triple test laid down in Bangalore Water Supply v. A. Rajappa. The Cricket Club of India case and Madras Gymkhana Club case (discussed below) which were the two feading cases, on the point so far have been overruled by Bangalore Water Supple case, In Cricket Club of India v. Bombay Labour Union the question was whether the Cricket Club of India, Bombay which was a member's club and not a proprietary cltb, although it was incorporated as a company under the Companies Act was an industry or not. The club had membership of about 4800 and was employing 397 employees. It was held that the club - was a sélf service institution and not an industry and “it was wrong to equate the catering facilities provided by the club to its meriibers or thelr guests (members paying for that), with ahotel. The catering facility also was in the nature of self service by the club to its members”. This casé has now been overruled. Amended definition of Industry:-'Industy’ means ‘any systematic’ activity carried on by .. ¢0-operation between an employer and his workmen (whether such workmen are employed ‘by such employer directly or by.or through any agency, including a contract) for the production, supply or distribution of goods or services with a view to satisfy human wants or {wishes not being wants or wishes which are merely spiritual or. religious in nature), wether or not; a, any activity of the Dock Labour Board established under oe 5-A.of the Dock + Workers (Regulation of Employment) Act, 1948 ; * . any activity relating to the promotion of sales or business or both carried on nbya an establishment : decisions the term ‘industry was redefined by the Indust disputes (Amendme t) phein Tata Memorial hospital Workel ‘Union v v. Tata Memorial Gentre, it is held that. even on the test of control and management of the Hospital and the Gentre, they are {unctioning independently under the fst respondent sociely. They cannot be said to be "under the contro!" of the Central Government. In the cigcumstances the Court held that the State Government was the appropriate Government for the first respondent for the purposes of ID Act, 1947 and consequently the MRTU(Maharashtra Recognition of Trade Unions) Act. But does not include:-Any agricultural operation except where such “agricultural operation” is carried on in an integrated manner with any other activity (being any such activity as is— — referred to in the foregoing provision of this clause) and such other activity is the predominant one. APPROPRIATE GOVERNMENT:-The term” appropriate Government’ in relation to any establishment means the Central or State Goverment. The Central Government means:- !) in relation to an establishment belonging to or under the control of Central Geverriment; or in relation to any establishment connected with a railway company, a major port, a mine, oil field or a controlled industry; * HI) In relation to any establishment (other. than thse noted above) the. State Government ( Section 2 (a)) : - The appropriate Government is the Central Government in relation to the ~ following: -I{a) any industry caried’on.b y or under authority of the Central Government or by a railway company or concerning any such controlled industry as may be specified in this behalf of the Central Government; or .\(b) a dock Labour Board established under Section 5-A of the Dock Workers , (Regulation of Employment) Act, 1948, or the Industrial finance Corporation of India. Limited formed and registered under the Companies Act, 1956, or the Employees’ State Insurance Corporation established under Section 3 of the Employees’ State Insurance Act, 1948, or the Board of Trustees constituted under ‘Section 3-A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, - 1948, or the Central Board of Trustees and the State Boards of Trustees constituted under Section 5-A and Section 5-, respectively, of the Employees' Provident Fund and Miscellaneous Provision Act, 1952, or the Life Insurance Corporation of. India established under Section 3 of the Life Insurance Corporation Act, 1956 or the Oil and Natural Gas Corporation Limited registered under the Companies Act, 1956 or the Deposit Insurance and Credit Guarantee Corporation established under Section 3 of the Deposit Insurance and Credit guarantee Corporation Act, 1961, or the Central Ware housing Corporation established under Section 3 of the Ware -housing Corporations Act, 19652; or the Unit Trust of India established under Section 3 of the Unit Trust of India Act, 1963, or the Food Corporation of India _ established under Section 3, or the Board of Management establi| I | ‘Act, 1994, or a Regional Rural Bank established underSection. 3 of the Regional Rural Bank Act, 1976, or The Export Credit and Guarantee Corporation Limited, or the Industrial Reconstruction Bank of India or. the National Housing Bank established ———under-section-3-of-the-National-Housing- Bank Act, 1987-or the Banking Service Commission established under Section 3 of the Banking Service Commission Act, 1975 or an air transport service, or a banking, or an insurance company, a Mine, an Oil Field, a Cantonment Board, or a Major port. : Ii) In all other cases the Appropriate Goverment is the State Government within ‘whose territory the industrial dispute arises: Whether the Appropriate Government is the Central Government or the State Government depends on the subject-matter of the dispute. The general principle ‘on which the board classification of the Central or State authority over the industrial disputes is based is that in case of an industry carried on by or under the authority of the Central Government, or the Industry being located in more than one State, the Appropriate Government is the Central Government so that the problems may be conveniently and uniformly dealt with. In Shri Shankara Allom Ltd V. The State of Travancore Cochin, (AIR 1955 TC 662) ‘was: held: that:"merely “because- the manufacture of salt was carried on by the company under a licence from Government, .it cannot become’ a Government business or one carried on under authority of the Government.” In R.P.F Commissioner Karnataka VIS. Workmen, {901984 ii LLJ 503(SC)} the question for consideration was whether the Government of a State cari be targeted as e " Appropriate Government” under this section in relation to any industrial dispute concerning the office of the Regionat Provident Fund organisation established by the Central Government for the State under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. It was held that in the absence of the State Board, the Regional Committee constituted under Paragraph 4 of the Scheme Is Government. : It was held in Goa Sampling Employees’, Association Superintendence Co.of india Pvt.Ltd and others (1987) i Lab . case of a dispute arising in Union Tenitory reference‘sector corporation). If was held that in case of i in respect of employees of canteen the Central Government will be the appropriate Government because the Corporation maintains the canteén under the Factories Act and the appropriate jent in case of Corporation is the CentralGovernment. = In Tata Memorial hospital Workers Union v. Tata memorial Centre, (2010) 2 SCC {L&S) 649, the concept of appropriate Government and its basic question in this case was as to whether or not the State Government was the appropriate Government for the purposes of application of Section 2 (3) of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. In Air India Statutory Corporation V. United labour union, (AIR 1997 SCC(L&S) 1344 over rules on this point. The question for consideration was whether the Central Government was the competent Government for the purposes of the notification to be issued for abolition of the contract labour system, under Section 10 of the Contract Labour.(Regulation and.Abolition) Act, 1970. The Supreme Court examined the definition of the appropriate Government as contained in Section 2 (1) (a) of the said Act. The Supreme Court held in this case that the Central Government was the appropriate Government. The Corporations and companies held and controlled by the State Governments will be institutions of those states within the meaning of Article 12 of the constitution. A prior, in relation to. corporations. and companies held and controlied by the Central Government, the appropriate Government will be the Central Government: AWARD AND SETTLEMENT AWARD: “Award” means an interim or final determination ‘of any industrial dispute or of any question relatirig thereto. The determination must be by any Labour Court Industrial Tribunal, or National Tribunal or National Tribunal. It includes an arbitration award made under Section 10-A. The definition of award falls in two parts:- The first part covers a determination, final or interim, of any industrial dispute, ‘The second part takes in a determination of any question relating to an industrial dispute. But the basic postulate common to both. thé parts of definition is the existence of an industrial dispute, actual or apprehended. The “Determination” contemplated by definition is of the industrial dispute or a question relating thereto on merits. In order to be an award a determination must be an adjudication of a question or point relating to an industrial dispute which has been specified in the order of reference or is incidental thereto, and such adjudication must b e one on merits as seen vide Cox and Kings(Agents) Ltd. V. Their Workmen, (AIR 1977 SC 1668). Award includes final as well as an interim determination. The tribunal can grant only such interim awards which they are competent to grant at the time of final award, because the ‘relief, which the Tribunal has no right to grant at the time of final determination, shall be outside its authority at any stage of the proceedings.me workmen of thee hotels in New Delhi were suspended on the charge of misconduct pending applications under Section 33. The tribunal had ordered these workmen to ‘be paid their wages plus Rs.25/-per month in lieu of food til final decision with regard | | ——to their dismissal: —-Orrappeal the Supreme Court stayed the order of the Tribunal on | the condition that the workmen should be paid a sum equal to half of the amount adjudged payable by the Tribunal in respect of arrears acorued til then and continues to pay a proportionate amount til the decision of the dispute. It was also contended that the tribunal could not adjudicate upon the question on interim relief because it was not referred to it. But the Supreme Court did not agree with this view because ‘interim relief, where it is admissible, can be granted-as a matter incidental to the main question without being itself expressed in plain terms", It was further held that ordinarily interim relief should not be the whole relief that the workmen would get if, they finally succeeded. Finding on a preliminary issue is not an interim award Tanneries of Dingigal v. Their workmen {(1955) II LLJ 174} in giving retrospective effect to the awards the tribunal should take into consideration that the tribunal had on other occasions, given increases to the workmen, it being immaterial whether the increases were referable to the actual matter of dispute before the Tribunal. As observed b y the Supreme Court no retrospective operation can’ be given to ‘an award for any period previous 0 tho date on which the demands in question were made as in the Case of Jhagra Khand ; Collieries (Private) Ltd, V/S. Central Government, Industrial Tribunal, Dhanbad. {(1960) Il LLU 74}. tn view of Section 17 which says that a Tribunal may make its _ award operative from any date specified in the award, a tribunal has jurisdiction to grant an award retrospectively as in the case of Caltex (India) Ltd. V industrial ~ Tribunal No 2 Emakulam {(1961) IKI.LLJ 85} (Kerala) an Industrial Tribunal cannot by way of interim relief direct the employer to re instant the workmen, pending the disposal of an application under Section 33-A as cited in Delhi Cloth and General Mills. V. Additional industrial Tribunal, {(1960) I! LLJ-742}. Enforcemerit of an-award- An award may be enforced in the following ways: a. The aggrieved: party may apply to Appropriate Government for prosecuting the defaulting paity under Section 29 or Section 31 of this Act. a b. 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. c. 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 as deduced in Bharat Bank Ltd V. their Employees, (AIR 1974 sc _ 2134). ,_, Where the interim order did not determine any pait of the industrial dispute or any * other Question relating theréto but only determinhas been petty constituted to which the industrial dispute eoul be referred for adjudication such order cannot be said to be an award as defined in Section 2(b) may refer the case A.C.E.S Corporation. V. Workmen, (AIR 1971 P&H 274)... Award of tas worker who are paid very low remuneration cannot be said to be unreasonable when financial position of the company is sound. Conditions to constitute an award: The following conditions must be satisfied to constitute an award. 7 4 1) there must be an interim or final determination 1) Such determination should be of an industrial dispute or of any question relating to such dispute; and lil) such determination should be by any Labour Court, Industrial Tribunal, National ‘Tribunal or an arbitrator under Section 10-A. Interim or final determination. The: definition includes interim as well as final award as narrated in Management Hotel Imperial v. Hotel Workers Union, (AIR 1959 SC-1342). The determination should be either finat or provisional. In this respect of an award is compared with the ‘decree’ as defined in the Civil Procedure Code. The attributes of the preliminary decree and final decree under the Civil .: Procedure Code are equally availablele in the case of award as interim or final determifations. As in decrees the object of evolving award is top resolve ihe differences between the disputants. An interim award denotes only a provisional arrangement effected in a matter under urgent or unavoidable situations and that it is subject to the final adjustment or complete determination of the dispute. As in the case: Bannet Coleman and Co. V Employees(19540 | LLJ 341 (LAT). Determination of dispute: An award is the resultant of the determination of industrial dispute or any question relating thereto. This involves adjudication of the dispute or : , matter between the parties as in the case of Andhra Handloom Weavers Co-operative Society V. AP., (1963) IT LLJ 488 (AP). + . An award passed after adjudication over a’matter which was. not referred to a Tribunal is not an award under the definition. saeseses Civil Court barred: Section 17(2) prohibits a suit or action in a Civil Court to challenge the validity of the award once it is published under Section 17(1). The total: bar imposed by Section 17(2) to tie any civil suit questioning the validity of the award after its publication under Section Statutory conferment of finality to awards passed by labour adjudicatory bodies does not affect the constitutional remedies under Article 136 or 226 and 227 of the Constitution. Hence, the Supreme Court and High Courts can decide validity of the award on grounds of defects of jurisdiction, violation of the principles of natural justice, or any error of law. Who are bound by the ‘Award: Section 18 enumerates the persons on whom | : } A\l patties to the indisirial disputes and il) all other parties_ Summoned t0 appear in the “proceeditgs "proper cause. i > In Ramanagar Surgarcane Co. Ltd. V. Chakravarty, (1961) 1 UL 244 SC) : ‘Supreme Court scrutinized the Scheme of the tridustrial Disputes Act for ascertaining the persons who can be bound by an award.or-settlement. The Company, which was declared to be a public utility concern, had two unions, namely employees union and workers union when a certain dispute arose conciliation with the unions was started by the Conciliation Officer. The workers union subsequently backed out of the conciliation process declaring that the conciliation with the unions was started by the Conciliation Officer. The workers union subsequently backed out of the conciliation process declaring that the conciliation has failed. However; the conciliation continued with the employees union and a settlement was arrived at. Question arose whether the settlement will b e binding on all the workers Including those of the workers union. ‘Supreme Court held that all the workers are bound by the settlement because under ‘Section 18(3) the parties are bound by the settlement and this is made more clear by ‘Section 18(3Xd) which says where a party is composed of workmen, all persons who were employed in the establishment to which the dispute relates on the date of the dispute and all persons subsequently employed in that establishment would be bound by the settlement, Judicial review and finality of award:- The provisions of the Industrial disputes Act are subject to the overriding provisions of Articles 136 and 226 of the Constitution. ‘The awards passed by the voluntary arbitrator under Section 10A the Labour Court, Industrial Tribunal and National Tribunal are subject to the appellate jurisdiction of the ‘Supreme Court under Article 136 and the corrective and supervisory jurisdictions of Court High Court under Article 226 and 227. The awards will be final subject to the above jurisdiction of the higher Court under Article 136 or the writ jurisdiction of the High Court under Article 226 wil not automatically stay the operation of enforcement of the award, There must be specific orders by the Supreme Court or High Court, as the. case may be, suspending the operation or staying the enforcement of the award in question as cited in the case: indian General navigation Co. V. Workmen, AIR 1960 “sc 219. ‘The aggrieved party can challenge the validly and propriety of the award before the High Court or Supreme Court on grounds of jurisdictional errors, violation of natural Justice, violation of law and on such other illegalities ref: Coromandal Fertilizers Ltd. V. Venugopal (1956) i LLU 417 (AP). The higher Courts will affirm or set aside the award or send it back to the tribunal for fresh disposal in accordance with law ref: Case: The Basanthi Cotton Mills V. Industrial Tribunal, Calcutta, (1977 Lab IC "4211(Cal)}. The court may condone any delay in filing the writ petition in accordance with the known principles and circumstances of the case as cited in the case: . Ahmadabad manufacturing and Calico Printing Co.Ltd, V. Workmen, {1983 I-LLJin the exercise of their powers conferred by statutory provisions provi enormous protection against miscarriage of justice, abuse or misuse of such powers bythe latter. Hence, labour adjudicatory bodies are watched and are required to exercise their powers with faimess and justice. “SETTLEMENT: The tem settlement has been defined in Sec.2(b) of the 1947 means, a settlement arrived at in the course of conciliation proceedings, and includes a written agreement between the employer and workmen, arrived in the course of conciliation proceedings where such agreement has been signed by the parties there to in such manner as may be prescribed and a copy has been sent to an officer authorized in this behalf by the appropriate govemment and the conciliation officer. According to this section a valid settlement may be made in two ways:- 1. The settlement may be arrived at in conciliation proceedings. 2. It may also be made out of conciliation proceeding between the workmen and employer. 3, The agreement should be in writing and signed by the parties to the agreement. The Supreme Court in TATA ENGINEERING AND LOCOMOTIVE COMPANY.LTD., (1981 (4) SCC 627), has observed that “ a settiement cannot be weighed in any golden scales and the question whether it is just and fair as to be answered on the basis of principles different from those which come into play when the industrial dispute is under adjudication” INDUSTRIAL DISPUTE: The main objective of the Act, as pointed out in the preamble is “to make provision for the investigation and settiement of industrial dispute”. Therefore the definition of “industrial dispute" has special significance. The following elements should exist to constitute an industrial dispute: 1. A dispute or difference between (a) employers and employers, or (b) employers and workmen, or (6) workmen and workmen; 2. The dispute or difference should be connected with (a) omptoyment or ‘non-employment or coriditions of fabour of any person; 3. The dispute may be in relation to any workman or workmen or any other person in whom they are interested as a body. - The expression “of any person” appearing in the last line of Section 2(k) means that the person may not be a workman but he may be someone in whose employment, terms of employment or conditidns of labour the workmen as a class have a true and substantial interest . Industrial dispute is not restricted to dispute between employer and @ recognized majofly union. It also means a difference between employer and workmen including a minority union. ~~; - For coming into existence of an industrial dispute a written demand is not a ales on, unless of course in the case of public utility sefvice. The very words:in the definition of industrial dispute in Section 2(k) are ‘dispute or difference’. The termpersistency and continuity til resolved and likely, if not adjusted to endanger the industrial peace of the undertaking or the community. In Workmen of Hindustan Lever Ltd. V. Hindustan Lever Ltd:-The question was whether ———a demand to-confirm employees employed i an acting capacity ina grade would unquestionably be.an industrial dispute without anything more. Individual dispute and industrial dispute:-Whether a single workman, who is aggrieved by an action of the employer.can raise industrial dispute. Section 2{k) of the Act speaks of dispute between employer and workman i.e., plural form has been used. Before insertion of Section 2-A of the Act an individual dispute could not per se be an industrial dispute, but it could become one if taken up by the Trade Union or a number of workmen. The provision of the Act leads to the conclusion that it applicability to an individual dispute as opposed to dispute involving a group of workmen is excluded unless it acquires the general characteristics of an industrial dispute, viz, the workmen as a body or a considerable section of them make common cause with the individual workman”. _it was held in Jagdish Narain Sharma and another v. Raiastha Patrikaa Ltd., & another, that-a dispute relating to transfer of a workman will become an industrial dispute only when it is espoused by a union of workmen or by a substantial number of workmen employed in an industry. Without such espousal, the dispute’ cannot be treated as an industrial dispute and cannot be referred to a Labour Cott, Section 2-Ais of limited application. It does not declare all individual disputes to be an industrial dispute. A dispute connected with a discharged, dismissed, retrenched or terminated workman shall bé an industrial dispute. If the dispute or difference is connected with other matter tien it would have to satisfy the test laid down in judicial decisions. Thus only-a collective dispute could constitute an Industrial dispute but collective dispute does not mean that the dispute should either be sponsored by a recognized union or that all or majority of the workmen of an industrial establishment ~ should be parties to it. A dispute is an industrial dispute even where it is sponsored by a union which is not registered but the Trade Union must not be one unconnected" with the emplayer or the industry concemed. Where an individual dispute is ‘espoused by union the question of the employee being a member of the union when the cause arose is immaterial." Those taking Up the cause of the aggrieved workman must be in the same employment, ie., there must be community of interest when the act complained against happened and not when the dispute was referred to But even if theré is a community of interest between workman and a person who is-not a workman the question of non-employment of the fatter cannot form the subject-matter of an industrial. dispute. In order to make a dispute, industrial dispute it is not necessary, that there should be a resolution’ of substantial or appreciable number of workman. What is necessaryis that there must be some expression of “collective will” of ‘substantial or appreciable, number of workmen taking up the cause ofthe aggrieved workman. : |‘A maximum of 18 per cent employees including dismissed employees supporting. individual dispute were considered not sufficient to convert it into industrial dispute. From this it appears that the workman must be a member of the sponsoring union on the date of dispute. Once a dispute ha: industrial dispute because the workmen withdrew their Suppor afterwards, STRIKES AND LOCK-OUT Introduction:-Strike and Lock-out are two Powerful weapons in the hands of the workers and employers. Ludwig Teller says that the Word strike signifies the suspension or stoppage-of work by the worker. He stipulates four essential ingredients to constitute a strike. They-are:- 1. An established relationship between strikers and the person or persons against whom the strike is called. 2. The continuance of that relationship as one of the employer and the employee. : 3. The existence of a dispute between the parties and’ utilization by labour of the weapon of concerted refusal to continue to work as the method of persuading or coercing compliance with the workers demands; a 4. The contention advanced by workers that although the work ceases, the employment relationship is'deemed to continue albeit in the staie of belligerent suspension. : Lock-out, a similar weapon at the disposal of the employer is used for compelling persons employed by him to accept his terms or conditions. The employer resorts to this coercivé step by shutting down or closing the place of business. The right to strike or lock-out is recognized in all democratic societies with reasonable réstraints on their use. The degree of freedom granting for its exercise varies according to the social, economic and political variants in the system. For safeguarding public interest, the resort to strike and lock-out and the duration of either are subject to rules and regulations either voluntarily agreed to by the parties or statutorily imposed. Strike and the Constitution of india:- The Supreme Court in Kameswar Prasad v. State of Bihar.’ held that there is no fundamental right to strike. The Bihar Government service conduct rules prohibiting strikes and demonstrations were challenged on the ground of infringement of the rights guaranteed under Article 19(1) (a), (b) and (c). The court held that even though the right to demonstration is guaranteed and so it cannot be restricted excépt according to the article 19(2), (3) or (4), the fale prohil ting ‘Strike cannot be attacked under”‘The National Commission on Labour observed as follows:-"The democratic ideals of the State prevent it from abridging individual freedom, but .socialist ‘objectives justify. the Governments Regulation of such freedom to if in a __teasonable_measure with the, interest of. the society.What_seems-called_for, therefore, is a re-conciliation of these two points of view. While we are not in favour of a ban on the right to strike or lock-out, we are also not in favour of any unrestricted right to direct action. In our-view, the right to strike is a democratic right which cannot be taken away from the working class in a constitutional set up “ike ours, Even from a practical point of view, we will not favour such a Step of taking away the right of the workers to strike, may force the discontent to go underground and lead the other forms of protest which may be equally injurious to good labour rnanagement relations. STRIKES:- Strike has been defined in Section 2(q) of the Industrial Dispute Act, 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 oF to accept employment or 3.Arefusal 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. ‘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. cessation of work or refusal to work is an esséntial element of strike aside to: Detail definition runs as follows: — It has been variedly expressed as ‘abandonment ', ‘stoppage’, ‘omission of pérformancé 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 returni.to or resume ‘employment or refusing or failing to accept engagentent for any-work, which they are usually employed for as seen in the text of GM. Kothari, (labour demands, P. 202). ‘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. }) there must be cessation of work by a body of persons ‘employed in ainy industry either temporary or not for ever and it must be voluntary. hep|-a) Cessation of work is not @ cessation of contract of employment. Whether these characteristics are stated in the statutory definition or not, they are implicit in the very concept of strike. Lb) Cessation will be termed under Strike only Il) The strikers must have been acting in combination, without being themselves in the fixed duration of nominal nature or even for a few minutes, Il) the strikers must be working in any establishment which can be called industry within the meaning of section 2(j) with observing all precautionary means such as giving the management due notice as per the provisions of the Industrial disputes Act. If such strikes proved to be illegal, no such participant employees/workers are Posed for avail or entitled for holiday with pay under section 49-B (1) of the Factories Act. The State of Bihar vs. Deodhar Jha, (AIR 1958, Pat, 51) here it was further observed that if it-could’not be denied that the stoppage of werk on the 1* November, 1948 amounted to a strike, then it was certainty an illegal strike because no notice had been given to the management; the mill being a-public utility industry. The Supreme Court allowed the appeal and decision of the Labour Appellate Tribunal was set aside. The length of the time has nothing to do with the meaning of strike, stoppage-and refusal to work even for a few hours only would amount to a strike within the definition of Section 2 (q) of the Act when there was concert and combination of the workers in stopping and refusing to resume work. |) there must be concerted refusal of wok or resume of work often being inside fhe establishment or even on their seats or even by applying for leave on mass, Il) 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. Ill) They must stop work for some demands relating to employment, non ‘employment or the terms of employment or the conditions of tabour of the workmen. ; The duration of cessation of work i is immaterial. Cessation of work even for half an hour amounts to a strike {Patiala Cement Co.Ltd. v/s Certain Workers (1955)II LLJ 57 (LAT)} what is required, therefore, is actual cessation of work for howsoever short @ period it may be. Mere absence from work is not enough byt there must be concerted refusal to work, to constitute a strike as in Ram Sarup and another V. Rex, (AIR 1949, All 218) 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 teady to compensate the loss 6f work by working on a Sunday. On the Company's failure to d clare ay ge asa holiday the: workers embolic applied for leave. It was."Kinds of strikes:- There are mainly three kinds of'strike, viz,, A) General Strike B) Stay-in-Strike and C) Go slow General Strike: A general strike is one, where the workrnen join together for common cause and-stay away from work, depriving the employer of their tabour needed to run his 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 demonstratirig 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. 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. 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. As cited in case: Mysore Machinery Manufacturers v. State, (AIR 1966 Mys 51). 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). Go-Slow: Go-slow strike occurs when workers attend to their work but do it slowly. This may cause heavy loss to the employer. This form of strike is not covered by the definition because there is no cessation of work by the workers who mere_ refuse to do the usual amount of work they are required to do as per the standing orders. It has been held in V.G.M. Rao v. Gujarat Works Limited that a go-slow strike amounts fo a serious misconduct as it causes financial injury to the employer. The Supreme Court in Bharat Sugar Mills Ltd. v. Jain'Singh, held that gé-slow is considered to be a serious type of misconduct and observed-that "Go-slow" which is a picturesque description of deliberate delaying of production by workmen pretending to - be engaged in the factory is one of the most pernicious practices that discontent or disgruntled workmen sometimes resort to. It would not be wrong to call this dishonest, For, while thus delaying production and thereby reducing the output, the workmen tiaim to have remained employed and thus to be entitled to full wages. Apart from this go-slow is likely to-be much more harmful than total cessation of work by strike. For, while during a strike much of the: machinery can be fully turn€d off, ‘during the ‘go-slow’ the machinery is kept going at a reduced speed which is often extremely “damaging ‘to the machinery’ parts. For all these’ reasons ‘go-slow’ has always been considered as a serious type of{In addition to these three forms of strike which are frequently resorted to by the ifidustrial 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 others striking workmen. "Its aim is to encourage or to extend moral support to or indirectly to aid the striking workmen. The sympathizer resorting to such strike have no demand OF grievance of their own. It was held in Kambalingam V/S Indian Metallurgical Corporation, Madras {(1964) |. LLJ 81). It was held that when the workers in concert absent themselves out of sympathy to some cause not related to their employment such absence would not be held to be strike, since the essential element of the intention to use it against the management is absent. So sympathetic strike will not come within the definition of strike. The management would, therefore, be entitled to take disciplinary proceedings against the workmen for their absence on the ground of breach of condition of service. li) Hunger Strike: In hunger strike a group of workmen resort to fasting on or near the place of work or the residence of thé employer with a’ view to coerce the employer to accept their demands. In Piparaich Sugar Mills Ltd, Vs. Their Workmen, (AIR 1960 SC 1258) certain employees who held key positions in. the Mill resorted to hunger strike at the residence of the MD, with the result that even those workmen who reported to their duties could not be given work. If was held that the toncerted action of the workmen who went on hunger strike amounted to strike’ within the meaning of this sub-section. |, 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 inconvenionce to the public and embarrassment to the employer. Itis no strike because there is no stoppage of work at all. a : Mlustration: A mere apprehension or threat of a strike is not a strike as well as a resolution to go on strike on some future date is hot a strike because it falls short of actual cessation of work, It may be nominal, for a few minutes even, Hundred of token strikes and which might inclusive of mass applying-for leave and refusal to resume work. iS also strike, The leading case on this point is Buckingham and Carnatic Company Itd. V/S. Workers of the Buckingham and Carnatic Co. Ltd, (AIR 1953 SC-47), The facts of the case runs as follows: 7 On the November,1948, night shift operatives of the carding and spinning department of the Camatic Mills stopped work, some at 4 PM some at 4.30 and some at 5.pm. The stoppage ended at 8 pm in both the departments. By 10 PM the strike ended completely. The apparent cause for the strike was that the management of the Mills had expressed its inability to comply et ith the Yequest of the workers to.declare mber, 1948, as a, ‘liday for solar eclipse. On the 3".November < amountedo an illegal str and a break in service within-the meaning of the Factories Act 00 of 1934) and that the management had decided that the workers who had participated in the sald strike would not be entitled to holidays with Pay as provided by the Act. This position was not accepted by the Madras labour ~-union.—The- Madras Government-referred-the dispute ~along--with-certain-other — disputes to the industrial Tribunal Madras on 11" July.1949. 7 The adjudicator have the award to the effect that there could be little doubt that the stoppage of work by the night workers on the relevant date was a strike and itwas an illegal strike since the Textile industry was notified aS-@ public utility industry and there could be no legal strike without a proper notice in accordance with the provisions of” the Industrial Disputes Act. No such notice had been given. In view of this finding the view of the management was upheld that the continuity of service of the workers was broken by the interruption caused by the illegal strike and that as a consequence the workers who participated in such strike were not entitled to annual holidays with pay under Section 49-(B)(1) of the Factories Act. The Mills as well as the Union appealed against this decision to the Labour Appellate Tribunal. That Tribunal upheld the contention of the mills that adjudicator had no Power to interfere with and. revise the discretion of the management exercised by it under Section 49-(B\1) of the Factories Act. It also upheld the contention of the union that what happened on the night of the 1" November, 1948 did not amount to a strike and did not cause any iriterruption in the worker's serviced. However, the appeal by special leave was filed in the Supreme Court against the decision of the Labour Appellate Tribunal of India at Calcutta, The Supréme Court observed that the conclusion reached by the adjudicator was clearly right. The action of the workers on the night of the 1*' November, 1948 clearly fell within the definition of the expression * Strike " in Section 2(q) of the Industrial Disputes Act. The ref. Case being State of Bihar V/S. Deodhar Jha, (AIR 1958 Pat. 51) It could not be disputed that there was cessation of work by a body of persons employed in the mills and that they‘were acting in combination and théir refusal to go ‘back to work was concerted. All the necessary ingrédients, therefore, of the definition existed in the present case and the stoppage of work on the 1® November, 1948, amounted to a strike, it was not a case of an individual worker's failure to tum up for work. it was concerted action on the part of a large number of workers. It was further observed that if it could not be denied that the stoppage of work on the 1* November, 1948 amounted to strike, then it was certainly an illegal strike because No notice had-been given to the management, the mill being a public utility industry. ‘The Supreme Court allowed the appeal and decision of the labour Appellate Tribunal was set aside, ' : Concerted action- Another important ingredient of the strike is a converted action. The workers miust act under a common on undérstay nding. The cessation of ‘work by: ai el be proved. nett 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. In order to establish such a concer or even interchange of mutual consent or assent fo a common purpose or course of conduct, It may be deduced from similar acts and course of conduct as in the case: Le Mesurier VIS Holmes, Within a close-knit body such as a trade union, it may consist merely in backing up a leader's statement as seen in Minister for labour V. Hood (1917) 16 AIR(NSW) 101 and subsequently, ratification by the workers of an agreement arrived at by their fellow workmen may be sufficient. Thus 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. The refusal of work means refusal to perform duties which the workers are required to perform. If the workers are at liberty to do particular work or not to do a work their refusal to work does not amount to strike, For example, overtime work, if it isthe duty of workers to do overtime work necessarily because: it is the practice of the establishment to take overtime work from the workers in that case refusal to work oveltime 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. 7 STRIKE AS ARESULT OF INDUSTRIAL DISPUTE: In model mill v. Dharam Das {AIR 1958 SC 311) where the Management asked two person to work on a calendar machine instead of three in the Model mills Ltd., Nagpur whereas the workers requested to depute three persons as uses to be deputed in the past. The management refused to depiite three persons, the workers refused to work. It was held that this was a dispute or difference connected with an industrial matter and the stoppage of work amounted to strike. Since the strike is a weapon to be used by the workers for pressing their demands so in order that a stoppage may amount fo strike there must be dispute or demands for which the workers are pressing. If there is stoppage of work for any other reason or natural events such as breakdown of machinery, shortage"of power or shortage of raw material etc., it would not amount to strike. : The strike as a weapon was evolved by workers as a form of direct action during their Jong struggle with the employers. It is essentially @ weapon of last resort being an abnormal aspect of the employer-employee relationship and involves withdrawal of labour disrupting, production, services and the running of the enterprise. It is a use by the labour of their economi¢ power tobi ing the employer to see and meet their view-point over the dispute between th adgition to the total cessation of work, it takes various forms such as ‘working to Tule, go stow, refusal to work overtime when itis compulsory and a pal ere need not be any formal meeting, discussion ~~lawful orders, sit-down, ‘stayin and lie-down strike etc. in Bank of India, Bombay v. T.S.Kelawala (1983) ll LLj 304(SC) where in furtherance of certain demands for wages revision made by the employees, in June, —1977-the AlUIndia Bank Employees Association gave a-call-for-an-all India strike-on certain days and the Bank issued the circular to its managers and agents directing them to deduct the wages of such of the employees who participated in the strike. The principle was no work no pay. ‘The Bank issued the circular dated 27" December, 1977 to its managers and agents that such of the-employees who participated in the 4-hour strike would be committing a breach of their contract of service and would not draw salary for the entire day. The employees struck work for 4 hours on 29" December,1977. On 16" January,1978 the bank issued a circular to its managers and agents directing them to deduct the full day's wages of such of the employees who participated in the 4-hour strike. The respondents filed a writ petition for rescinding that circular. The petition was allowed and thus the appeal was filed by the Bank, : ‘The State Bank of India and others v. State Bank Staff union, the dispute was with regard to deduction of wages for strike period. The contention of the workmen was that the requirement of the approval of the Central Government was not a condition specified in the settlement. The management issued a circular'pn October, 12, 1989 that if they resorted to strike the bank would deduct the salary for the period of strike on principle of "No work, No pay". In-spite of the circular the employees went on strike and filed a writ petition to quash the circular directing bank not to deduct salary. The leamed single judge Upheld the contention of the Bank that strike, being during the pendency of the conciliation proceedings, was illegal. The Employees’ Federation preferred appeal before the Division Bench which reversed the Judgment of the single judge accepting the contention of the employees that the settlements were already arrived at between the parties and there could be_no further industrial dispute with regard to their Implementation. Hence the conciliation proceedings were honest. The Division Bench held that the approval of the Central Government as a condition precedent fo their implementation was not incorporated in the settlements nor was such approval’ necessary. Therefore, there was no valid industrial dispute for which the conciliation proceedings could be held. Since the conciliation proceedings were invalid, the provisions of Section 22 (1)(d) did not apply. The strike was, therefore; not illegal. The strike was in the circumstancés, justified since it was ‘Bank Management's unjustified attitude in not implementing the settlements, which was responsible for the strike, The Bench relying upon two decision wrakulam Tea Estate and Crompton-Greaves theld that since the:1. Where service are withdrawn totally but on particular time, the strikes are known as Altemate Day's strike, Sunday Strike, Running-sore strike 2. Where services are withdrawn partially the strikes are known as Slowdown Strike, Bu Strike, Strikes-i in-detall sectional strikes, Slow-gear strike, Lazy strike, ~ “Token Strike, Sit down sti n strike, Tool-down strike, stay rike, quickie strike, Strikes-on-the-job, Folded arms strikes, Lie-down strikes etc, 3. Where strikers remain on the job but adopt initative methods e.g., Initation strikes, Pearl strikes etc, H Beside to the lightning strike, the utility of Industries the strikes once again have been classified in to: 1) Strikes in Public Utility Services, and Nl) Strikes in non-public Utility Services. The industrial Dispute Act, 1947 recognizes these two types of strikes so far as the conditions of legality of a strike are concemed. The Act makes provisions that for a legal strike in public utility services notice must be given in accordance’ with the provisions of the Act. Since the conditions under which a strike becomes illegal are the same under which a lock-out becomes illegal, therefore the conditions of illegality will be discussed together, Lock-out :- It is a temporary closure of the place of business by the employer to bring pressure on his workmen to accept his terms. Section 2(1) of the Act defines lock-out to mean the closing of a place of business or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him. In lock-out the employer shuts down his place of business as a means of reprisal or an instrument of coercion or as mode of exercising pressure on employees. The contention that the definition gives a wider dimension by giving a colour of lock-out to any closure of a place of business even one causal by flood or fire or earthquake cannot sustainable. However, the courts-have clatified the definition. A permanent discontinuance of business is not a lock-out because a lock-out is a closuré of a place of business and not a termination of the business itself. The following requirements for a lock out are essential: = 1, Temporaty closing of place of employment. is essential by employer concerned. * 2. The element of a demand for whicii the industrial establishment is locked out, must be present. Another important ingredient of the lock-out here the demand for which the industrial establishment is locked out plays vital role. The employer puts certain demands before the'workers in response to their demands on the basis of which they go oh'strike. As a matter of fact lockout is adopted by the employer as a counter move so that he may settle the dispute on concessional terms. In strike the demands are put by the workers, on the other hand, in lockout demands are. put bytrust exist here in this lock out type, ce tention of the employers is to re-open the place of employment or place of work or to take back the workers in services if they accept the demands or terms of the employer would play_a vital role, Fhe-employer-and-the employees must-be engaged in ‘an-industrial-process carried — ‘on in an institution failing within the meaning of industry as defined in Section 2 (j) - here lockout like other strike type does not refer to an industrial process wherein the employer and the workmen co-operate for production and/or distribution of goods and services. The establishment unless falls within the scope of Section 2 (J) the— Provisions of lockout shall not apply to the persons involved in any process. it may finally be remarked that if the above requirements are fulfilled the stoppage of work amounts to lockout within the meaning of Section 2(1) of the Industrial Dispute Act. Lock-out is distingt from closure:- The following are the differences between lock-out and closure:- 1) In the Case of closure, the employer closes or winds up his business Permanently and irrevocably. Butvin lock-out the’ place of business alone is closed while the business continues. The business is not terminated.Lock-out occurs in a continuing business. 2) Lock-out is a weapon in the hands of the employer to compel the etnployees to accept his proposals; whereas. closure is a matter. of Policy of the employer as to whether he should run or-not the business. 3) A lock-out does not result. severance of employer-employee relationship." The conditions of service of workers are not affected adversely nor any inflictment of punishment takes place by a look-out," In the case of closure the services of the workers are terminated. 4) A lock-out which is legal and justified does not involve payment of wages or compensation. But a closure of the business.entitles the workers with Closure compensation. : It is irrelevant what the intention in ciosing is could be seen in the referred case Hamida Match manufacturing co.ltd v/s. State of Bhopal (AIR 1954 Bhopal 17} Where the management of the factory giving information to the workers by general notice that ithad decided to close down the factory from the date menticined for the reason sfated in the annexure. The main reason given for closure was that the concem has incurred heavy losses for the past three successive years due to competition, non availability and high rate’of raw materials, levy of certain duties on import of raw materials, ete. Action intended to be taken under these circumstances was fot by way of reprisal of any strike or intended strike by workmen of the factory.talenwas not, therefor by wa lockout and the notice was one of closure and not of lockout The essence of the lockout on the contrary, is that the place of business is closed down, that workers are shut out, that the e employer d does certain act with the intention is Closure and not a “Of forcing the workers to t&rms, and is either continuing the business really through or intend to recommence his activities as soon as his object has been achieved, Since it Is possible for an employer to disguise a reprisal lock out as a closure the terminology used by the employer cannot by itself be decisive test by determining the question whether the closure was bona fide and real, or is truly a lockout. The fact that the employer continued the suspension of the business when the writ Proceedings commence, or the ‘tribunal embarks upon its Inquiry, cannot be Conclusive. The test is whether the employer is really continuing the business, as distinguished from a mere form of his, _ such as keeping the place of business open, and whether he has the intention of re-activating the business when his object has been. achieved as witnessed in the case referred in: The Secretary, Express Newspapers Employees union V, The Management of the Express = + :Newspapers(P) Ltd, Madras and others, (AIR 1961 Mad.331). Restrictions on strikes and Lock-out :- The Industrial Disputes Act does not prohibit the right to strike or lock-out. It only lays down certain conditions which are to be complied with before resorting to such direct action. Hence, the short tiles of Sections 22 and 23 ought to have been as restrictions instead of prohibitions. Because the terms prohibition and restriction are not synonymous but different in connotation: and contents. It is true that some of the restrictions may reach the border lines of prohibitions. The Act is streamlined to compel the parties ‘to ‘exhaust the remedies to arrive at some settlement by conciliation or adjudication before resorting to an extreme step of strike or lock-out as the case may be. Hence, in public utility services the giving of notice is mandatory, the non-compliance of which may result in illegality of the strike or lock-out. Sections 22 to 24 of the Act deal with Testrictions of strikes and lock-outs. The Act classifies industries into public | [utility service and others. It restricts strikes and lock-outs in public utility services + more stringently. Section 22 of the Act restricts strikes and lock-outs in industries carrying on public utility services. a Differences between Sections 22 and 23 1. Section 22 applies to public utility services only. Section 23 is applicable to both public utility and non-public unity concerns. 2. Section 23 does not prohibit strike or lock-out during the pendency of conciliation of proceedings before the conciliation officer, whereas Section 22 prohibits it. 7 3. Under Section 22 notice of strike or lock-out is necessary; under Section 23 no such notice is. required. at ““ Section 23 alone i8 applicable to non-public utility services. Therefore, in case of strike- or lock-out in a public utility service the prohibitions contained in Section 22 as well as in Section 23 will apply; +-ginoe no notice is necessary in non-public-utility services a sudden strike or -———-— Jock-out is not prohibited under this Act. legal Strikes illegal lock-out :-All strikes are not illegal strike or lock-out will be illegal only if it contravenes the mandatory provisions under Sections 22 and 23 of the act under the law in India strikes and lock-out aré illegal when penalties have been imposed for them for the violation of the provisions of Sections 22, 23. The tight to strike is an inherent right of every worker and the same could not be abridged or taken away except in conformity with statutory provisions. Strike in breach of contract is not by itself sufficient to make the strike illegal in a non-public utility service. The other conditions required by clauses (a), (b) or (c) of Section 23 must be fulfilled before a strike can be held to be illegal. Section 24 thus deals with grounds when a strike or lock-out will be treated as illegal. Grounds _of illegal strikes or illegal lock-out:-Section 24 lays down the grounds which make strike and lock-out illegal. They are; 4. A strike or lock-out willbe illegal if it is commenced: or declared contravening Section 22 in a public utility service: 2. A Strike or lock-out will be illegal if tis commenced in-contravention of Section 23 in any industrial establishment 3. Astrike or lock-out will be illegal if itis continued in contravention of an order made by the appropriate Government under Section 10(3) or Section 10-A(4-A) of the Act. . Prohibition of Strikes and Lockouts in Public Utility Services:- The strikes and lockouts are subject to certain rules as envisaged in Section 22 and 23-of ID Act. The Act prohibits tockouts and strikes in the Industries so that there may not be scarcity of goods or services in the society for satisfaction of human desires, of course, material wishes and needs of the people. Sec. 22 of the ID Act provides that no person employed in a public utility service shall go on strike, in brach of contract: : |. Without giving to the emiployer notice of strike, as hereinfafter provided within six weeks before strikingor “ 7 Il, Within 14 days of giving such notice or Ill, Before the expiry of the date of strike specified in any such notice as aforesaid or IV.- During the pendency of any coneliation proceedings -before a Conciliation Officer and Séven days after the conclusion of such proceedings. ‘f the above conditions are ful filed the strike by the workers engaged in any public utlity service shall be Legal strike. Such as NotiMineral Miner's Union v. Kudremukh Irqn Ore. Co.Ltd (1986 1LLJ, Kam). Is) important case where the requirement of notice under Section 22(1) of the Act has been considered in detail? In this case the Union issued a notice of strike on 1 September, 1984 intimating its intention to go on one day token strike ‘any day after 20" September, 1984. Conciliation “proceedings commenced and took place in terms of Section 20(1) of the | D Act, 1947 on 19" September, 1984. On 1st October, 1984 conciliation failed and report about failure of conciliation was submitted to the State Government on 12th October, 1984. Parties were informed about the failure of Conciliation only on 9" November,1984. The members of the Union went on strike on 10" December, 1984. The Management informed the Union that the workmen are not entitled to wages from 10 December, 1984 arid therefore they were deducting 8 days’ wages under Section 9(2) of the Payment of Wages Act, for the workmen having gone on illegal strike. The action of the management was challenged by t he union by filling a wrt petition. ‘The high Court analysed the provisions of Section 22 held that the purport of clauses, (2) to (d) sub-section (1) section 22 is as follows: i. Issue of a notice of strike is mandatory li, The date of strike must be within six weeks from the date of issue of Stike notice. : ; A) The day of strike mriust not be within 14 days from the date of notice B) There can be no strike on any day before the date specified in the strike notice ©) There can be no strike during the pendency of conciliation proceedings and 7 days after the conclusion of said proceedings. !twas observed that counsels on both sides agree that the above are the conditions prescribed by clause a to d of section 22 (1). The controversy, however, was on the following two points. 1. If the conciliation fails and concludes after six weeks from the date of issue of strike notice whether fresh notice is necessary and 2, Whether specification of dater of strike is mandatory:-It was here held that the purport of, Section 22(1) read with Section 12(1) of the Act is that the moment a Notice of striké given by the workmef of a public utility service under Section 22 reaches the Conciliation officer, the proceedings stands automatically commenced. Further by the force of Sec, 22(1) (d) the workmen who have’ given such notice are Prohibited from going on strike not only during the pendency of conciliation proceedings but also during seven days after the conclusion of the conciliation proceedings. In LIC of India and others v. Amalendu Gupta and others,(1988 II LLJ 495 Cal). and in G..N: Chainulu and others Vis. The Depot Manager, APSRTC Amalapuram, (1989 I! LLJ 81 (AP)) in later case it was observed by the Court that clauses a, b and c of Section 22(1) clearly shows that it prohibits an Public utility service t0 go on strike unless he shall give in Writing 2 notice ofwithin six weeks before organising therstrixe or within 14 days of giving such notice. Therefore it is mandatory that an employée shall give notice within six weeks before striking or within 14 days of giving such.notice whichever is earlier. in this case notice was given by the Union and it was received by the management and the time expired T on Jan.7; 1985. The stiike was organised on January 10, 1985. But the: Stale Government issued an order dated: December 27, 1984 dectaring the strike ini the tee respondent-organisation which is admittedly a public utility service as Illegal. Thereby : their strike becomes illegal, Therefore, once strike was dectared to be illegal by operation of notification then it is not a due notice.INTRODUCTION TO LAW OF INDUSTRIAL DISPUTES ACT, 1947 LAY-OFF AND RETRENCHMEN’ defined under the provisions of the Act in Section 2(KKK) and (00) respectively. It is the employer who takes the actions of lay off and retrenchment in respect of his workmen employed by him for work in the industrial establishment. Lay-off:- The term ‘lay off' is defined in Section 2(KKK) as follows:-"Lay off" means the failure, refusal or inability of an employer on account of shortage of coal, power, or raw materials or the accumulation of stock or the breakdown of machinery (or natural calamity or for any other connected reasons to give employment to’a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched." The Supreme Court has observed sare view as under Section 2(KKK) and in Management of Kairbetta Estate Kotagiri v. Rajamanickam (AIR 960 SC 893) ~ Essentials of a lay off: The ten of Section 2 (KKK) brings out following essentials of a lay off- a. There must be i) the failure, Il) Inability of the employer to give employment to workman or ili) refusal b. The names of the workmen laid off must be on the muster rolls of the industrial establishment on the date on which they have been laid off. ©. The failure, refusal or inability to give employment must be on account of one or more of the following reasons: a) Shortage of coal b) shortage of power, c) shortage of raw miaterials d) accumulation of stocks e):breakdown of machinery or f) natural calamity or for any connected reason _d. The workman in question must not have been retrenched. - "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, “It is the short term removal from service of employees, whose names are borne on the musier rolls of the industrial establishment by the employer of their employment on account of shortage of coal, power, raw materials or because of accumulation of stock or break down of machinery or any other similar reasons. Thus if an employer fails to provide work or he refuses or he is unable to give work although he desires to sive work to the workmen whose names are-on the muster rolls due to aforesaid reasons, itis lay off. Classification: On the basis of duration as classified below:~ i) Jay -off for a day (occurring when work is denied within two hours of his presenting himself for, work). : ie term ‘Lay-off and 'Retrenchment’ have been_. employment is. treated as continued and. such period is treated as. compulsory leave inthe fist half ofthe shift ‘ul the workman is called in te second hatf of the shift foF doing work.) iil) Lay-off for more than a day (but not amounting to retrenchment.) If lay-off for a short period and is due to failure of plant or temporarily curtallment of production, the either with or without pay. No formal termination is necessary. If lay-off is for an indefinite period, the services are terminated after giving lay-off notice or notice-pay. It does not terminate the employment. Definition of Continuous Service: Section 25(b): If the service of the workman is uninterrupted including an account of sickness, authorised leave, or an accident or a strike which is not illegal or a lock out, or access to excess of work not due to any fault of the worker. For a period of One year actually worked and the employer is not less than: a) 190 days in-case of worktnan employed in mine b) 240 days in any other case, including holidays and Sundays. ¢) For a period of six months, actually worked not less than 95 days employed below . ground in a mine and 120 days in any other case. Itincludes the days laid-off on temporarily absent due to accident arising out of and in the course of employment.’ And if a female employes has on-matemity leave not exceed 12 weeks. Section 26(e) is an exception to 25(c). *? | | Right of workmen laid off for compensation Section 25-C of the Industrial Disputes Act lays down the conditions and extent of compensation to workers who are laid-off. The provision which was introduced in 1953 underwent a recast in 1956 and in 1965. After the 1965 amendment fo Section 25-C the conditions for lay-off compensation are the following. 1. The establishment must have employed fifty or more workmen in an average during the calendar month preceding the lay-off; : 2. The industrial establishment in question must not be of a seasonal character or in «Which work is performed intermittently. 3. “The claimant should come within the definition of workman; 4, He should not be a badli workman; or casual workman; | 8. His namo must be borne on the muster roll and he ‘should not have been | retrenched, He must have completed not less than one year of continuous service; Each one year continuous service must be under the same employer, i LLay-off compensation must be halfof basic wages and deamess allowance; Maximum porod for entttement of fy-off compensation js forty-five days during any period of twelve months; 10. \No fight to lay off compensation for more than forty-five days du there is an agreement to that effect, ae, lay-off compensation is payable for subsequent periods beyond 45 days during the same 12 months: if such subsequent period is/are not less than one week of more ata time, retrenchment compensation: 13... Finally, the lay off in question should not be by way of mala fide or victimization or with other ulterior motives, ‘Amount of compensation:- A workman with one year’s continuous services is entitled to lay-off compensation’ for all days of lay-off except weekly holidays. The amount of compensation payable to each workman shall be half the total of basic wages and dearness. allowance. Lay-off compensation payable under Section 25C is not wages within the meaning of the term ‘wages’ in the Payment of Wages Act, 1936. This is by way of temporary relief to @ workman who Is forced to undergo involuntary unemployment, of course for reasons stated in thé definition clausé of Lay-off. The employer, for reasons beyond his control, is unable to provide work and hence as a social security measure and in the general social interest, a duty:is imposed upon the employer to give compensation to the workman who is deprived of his opportunity to work and’hence forced to lose wages. Period of lay-off compensation:- ay-off compensation is payable for all days of lay-off. However, the maximum period for which compensation payable is 45 days during any period of 12 calendar months In the absence of a contrary agreement, if the lay-off exceeds 45 days during @ period of 12 months, then the workman is eniitled to the same rate of ‘compensation for such petiod beyond the 45 days, whether in continuation of it or subsequently, on other occasions. However, such period ‘of lay-off beyond the 45 days should be for minimum of one week or more to entitle the compensation thereof. But in such situations the’ ‘employer t may either: (a) go on paying on lay-off compensation for such subsequent periods: or (b) Retrénch the workmen after the expiry of 45 days of lay-off on paying the retrenchment compensation as in Section 25F. RETRENCHMENT:- Section 2(00) Definition:-Section 2(00) of the Act defines retrenchment as termination by the employer of the service of a workmen for any reason whatsoever, otherwise than as Punishment inflicted by way of disciplinary action. But it does not include:- (a) voluntary retirement of the workman; (b) retirement on reaching the age of . Superannuation; (bb) termination of the service of the workman as a result of the Non-renewal of the contact of employment between the employer and the workman concemed on the expiry of the contract being terminated under a stipulation contained therein; or (6) termination of services on ground of continued ill health’ “For any reason whatsoever” in earlier decisions the courts held that retrenchment in its ordinary meaning connotes that the business itself is being continued but a Portion of the staff or labour force is discharged as surpluses. Hence, termination of Service of all workrien due to. closure of the business is not retrenchment.In Sundammany's case 2 ustice Krishna lyer gave wide See deinen of retrenchment. The words “for any reason whatsoever” were interpreted to mean" termination for any reason whatsoever in other words, whatsoever be the reason, ___ every termination of service willbe comprehended in the definition of retrenchment. 1n the Sundarmany’s case the bank employed respondent as a temporary employee joined duty, Sundarman’s services were dispensed. The court observed that had the bank known the laws, half a month's pay would have concluded the story. But that did not happen, and now some years have passed and bank has to pay for the service rendered. Even so, hard case cannot make bad law and hence the reinstatement of the employee was the only result. The termination of the service of the workman by the employer for any reasons what so ever, otherwise than asa punishment. implicate by the way of disciplinary action. It does not include: i) Voluntarily retirement of the workman or i) Retirement on reaching the age of superannuation iii) termination of the service is not renewed of the contract of employment. iv) Terminated on the ground of ill health, The workman may be surplus on the ground of:- i) Rationalization or ii) Economy, reasonably and bona-fide adopted by the management or ili) other Industrial or trade reasons. iv) Discretion of the Management to decide the strength of its labour force. ‘The number of workman required to carry out efficiently. Thus retrenchment means the discharge of surplus labour or staff in a continuing industry between the removals of dead weight of uneconomic surplus. Before taking any action, Section 25-F to be complied. Condition precedent to retrenchment:-I) Workman who has been in continuous service for not less than one year, retrenched untl- 4. One month's notice in writing- it indicate the reason, the period of notice has expired, the workman has been paid in lieu of such notice, wages forthe period of notice. 2. Workmar has been paid at the time of retrenchment, compensation equivalent to 15 days of average pay of every continuous service or any part of in excess of six months and : ce 3. Notice in the prescribed manner is served on the appropriate Government. Hari prasad vs. A.D. Divalker, Supreme Court held that the retrenchment should be understood in the ordinary sense that is not every termination that can be retrenchment but the termination in order to be retrenchment should be of surplus labour or staff and in an industry which is continuing and not closed or transferred. + The termination of a portion of staff or labour force is due to a variety of reasons, €.9., for economy, rationalisation in industry, installation of a new labour saving machinery |[n Pipraich Sugar Mills Ltd v. Pipraiah Sugar Mill Mazdoor Union! ‘Supreme Court ‘observed that the termination of service of workmen on the closure of the business is not the retrenchment. Retrenchment connotes that the business itseif is being continued but that portion of _ the Staff or labour courts is discharged ‘as surplusage. The termination of the Services of all the workmen as the result of closure ‘of the business cannot therefore be properly described das retrenchment. D.Macropollo and Co(P)Ltd. W/S. The D-Macropollo and Co.(P) Ltd Employees Union, the company adopted the Scheme of re organisation and as a result, certain Persons were retrenched. The company mainly carried on the business of selling agency of various cigarette manufacturing concem. Before 1946 the distributor are appointed and they used to employ the sale men. Due to communal riots in 1946 in Calcutta, the company took the sale men in its direct appointment, In 1954, it decided the closedown its own outdoor-sales dept, And it reverted to the distributor system. so certain workers were retrenched on the basis of the scheme of re-organisation of business. The Supreme Court held that the appellant had adopted the re-organisation scheme jn all the areas wherever it had’business. The discharge and retrenchment would have to be considered as inevitable. Essential of retrenchment: Section 2 (00) of tha Act:= i) termination of service of a workman by the employer ii) Termination must be on the ground of surplus labour iil) Service terminated is of capable of being contained 'v) For any reason, what so ever but nof actuated by any motive of victimisation or any unfair labour practice. : V) Termination on the closure of the business is not a retrenchment. vi) On proper reasons- for economy, ratiotialization in the Industry, installation of a new labour saving machineries or any other industrial or trade reasons. ~vil) Termination must not fall within the exclusion. * Voluntarily Retirement, Retirement on reaching the age of superannuation and termination on continued ill health etc., pete 4. Termination of Service of a workman as punishment inflicted by way of disciplinary action-such as: Discharge for inefficiency, or susperision for dishonesty or termination - for behaviour prejudicial to the concem. In SBI vs. The workmen of SBI, the Supreme Court held that the termination of service of a bank einployee under para 521 (10)(C) of the Shastry Award as the result of the disciplinary proceedings and is punitive. It is therefore, not 2 retrenchment within the meaning of Section 2(00) of the Act. Hence there is no question of ‘complying with the provision of Secticn 25-F of the Act. The Supreme Court observed that the paragraph 621 deals with the disciplinary action and procedure for taking such actions. see |weaving mills Co., Ltd, lane State of U.P, and een ‘employee tendered his voluntary resignation which was accepted by the management, faler he claimed compensation. The Supreme Court held that when an employee voluntarily tenders ——his resignation itis an Act by which voluntarily gives up his job. Suictra situation would ~~~ be covered voluntary retirement within the meaning of Section 2(6) U:P. 1.D. Act, it cannot be said employment is liable to compensate to employee. b. Retirement on reaching superannuation age: - to fulfill two requirements are “necessary: a) there must be a contract between the employer and employee regarding the matter of retirement and stipulation must be with regard to the age of superannuation. ©. On the ground of ill-health: When the workmen are medically unfit due to physical defects or infirmity in incapacitating a workman for future work for an indefinite period. Anand Bihari and others vs.Rajastan State Road Transport Corporation, The services of the drivers working in the State Transport Corporation were terminated on the ground that they have developed eye-sight which was not of standard required to drive the buses.The Supreme Court held that the Driver of the buses have developed a defective or sub-normal vision or eye sight which was bound to interfere with their normal working as drivers ‘ 5, Termination of service as a result of non-renewal of contract of employment: Shankaraiah vs. KSRTC. The services of the badli conductor in KSRTC were terminated on the ground of unsuitability in accordance with the terms of appointment. Dismissing thie writ petition the High Court held that the termination of the services of badli conductor being in terms of the order of appointment does not amount to retrenchment, Section 25(F) the conditions for retrenchment: iZiThe workman must be given one month's notice. EEthe notice must be in writing ‘he notice must contain reasons for retrenchment. . ithe period of notice must expire. ithe workman must be paid in lieu of notice, wages for the period of notice. F2He workmari must be paid retrenchment compensation at the time of retrenchment. ithe compensation must be equivalent to fifleen days avargae pay for every completed year of continuous service or any part hete of in excess of six months, {Be must be in continuous service as denied in Sec.25-B for not less than one year, Probationer entitled to benefit Jn Kornataka.S.R.T. Corpn. V. Sheikh Abdul Khadar:-The Supreme Court held that discharge from employment or termination of service of probationer would also amount to retrenchment. As such while discharging a probationer if the requirements of Section 25-F had not been eomplied with, the same were void‘Termination of Casual Worker's service is not retrenchment:-Termination of chsual Worker engaged for particular urgent work on completion of such work will not amount to retrenchment. Where the workman was engaged on casual basis without a written service contract or letter of appointment, for doing a particular urgént work, his Service automatically came-to an end when the work was over and there was no retrenchment when his service terminated. Therefore, the question of complying with the procedure for retrenchment does not arise in such case. Further in such a case merely because the workman was required Tepeatedly for doing the urgent work and thus had to. work for considerable time, the termination of service would not amount to retrenchment. Retrenchment can be only in a live industry:-Since the termination of the services of a workman who is employed in an industry constitutes retrenchment, it clearly indicates, that there must be an “industry” which must be running or in existence. It required and industry which is alive and not closed. As in the case of strike, lock-out or lay-off there cannot be a retrenchment within the meaning of Section 2(00) of the Act. Termination not as punishment:-Termination of the services of a workman as punishment inflicted:by way of disciplinary action will not be a retrenchment. The facts of the case are to be considered whether a particular termination is retrerichment or by way of disciplinary action, Hence, the termination of servicés on ground of misconduct, ill-health and inefficiency of the workmen are declared to be not retrenchment. i. Voluntary retirement. Being an act of thé employee in terminating the services by abandoning or resigning from the service such as voluntary retirement wil not be covered by the definition. i. Superannuation.-To attract termination of servicé on superannuation it is necessary that:- ; a. there must be stipulation on the point of retrerichment in the contract of employment between the employer and employee; and b, the stipulation must be with regard to the age of superannuation. il, Termination on non-tenewal of service contract ot on expiry of fixed term Contraét-When the employment was for a stipulated time period under-a contract then the non-rénewal of the contract of employment on the expiry of the stipulated period would not amount to retrenchitiént. ; iv. Continued ilLhealth. Termination owing to the continued illhealth of the workman is not covered in retrenchment. Ill-health contemplated not only physical but mental ilhealth as well. Continued ilthealth includes any physical defect or infirmity incapacitating a workman for future work for en indefinite period. : Retrenchment Compensation: - In Pramod Jha v.Bihar::in this case, the Supreme Court highlighted the twofold object to Section 25-F as follows_ (1) a retrenched employee must have one month time to search for alternate job; (2) the workman must be paid retrenchmentthe time of retrenchment so that once hes retrenched there is no need for him to go to his ‘employer demanding retrenchment compensation. Rate of compensation:-Under Clause (b) of Section 25-F, the workman is entitled to 15 days average pay for every completed year of continuous service or any part thereof in f _-..- excess of six. months continuous service-In-case,-of death of the workman; histlegal-heirs--— | | are-entitled to the retrenchment compensation. Compensation by Money Order:-Sending the retrenchment compensation by Money Order when the workman refused to accept the offer of payment of compensation is sufficient of Section 25-B.” i Payment by Cheque:-Payment of compensation by cheque will be sufficient-provided the i “ cheque could be cashed before the retrenchment is affected. But when the cheque would I towards the retrenchment compensation was given after the banking hours and thus the i | | | cheque would be cashed only on the next day, it was heid that the retrenchment order issued on the day when the cheque was given cannot be valid. Procedure of retrenchment:-Section 25-G incorporate the well recognized principle of retrenchment in industrial law, namely, the “last come first go” or “first come last go.” The Section becomes applicable: only if all the conditions laid down-therein are fully and cumulatively satisfied .The conditions are:- : 4, The person claiming protection should be a workman as defined in Section 2(s); . 2. He should be a citizen of India ; 3. The “Industrial establishment” employing such workman must be an: “industrial” under Section 2(); 4, He should belong to a partigular category of workman in that establishment ; and 5, There should not be an agreement between the employer and the workman contrary to the procedure of “last come first go.” In Isha Stee! Treatment, Bombay W/S. Association of Engineering Workers- a firm establishment or a factory for the purpose of carrying on metal processes with 32 _ workmen. Thereafter another factory was established after 12 years for carrying t same kind of business, employing about 75 workmen. The distance betweén the two factories is 200 yards. The firm was maintaining separate stores and accounts. It } obtained separate licences. It also maintained separate muster roll of the workmen of | each factory. There was no-provision for inter-transferability of the workmen, The i Management decided to close-down first factory due to indiscipline on the part of the workmen, But the workmen raised through their union an industrial Dispute demartiing reinstatement with full back wages and continuity of service on the ground that the two units ran by thé appellant had functional integrity of service and where for all purposes parts of case etc., and the workmen wére mutually transferable from one unit to the’ other. ‘On refetence the tribunal found that the two factories were independent of each other and rejected the demand of the workmen. The High Court set aside the award and recommended the matter for fresh disposal {0 the Tribunal after finding that the two factories were functional, integrated andconsequently Sec. 25-G was applicable. ‘The Appeal filed by management was dismissed and filed in Supreme Court. The SC allowed the appeal and. held thatthe ‘closure of the first factory was bona-fide and not have any functional integrity with the Second factory and ~ that Sec. 25-G appli ¥ S of the workmen are retrenched and there has been a genuine closure, the question of applying Sec. 25-G would not arise. ‘The management was directed to pay compensation payable to them on closure. Departure from the rule of “last come first go.”:-The rule is that the employer shall retrench the workman who came last, first, popularly as ‘last come first go.{t is not inflexible tule and extraordinary situations may justify variations. For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is ‘one up is retrenched. But there must be valid reason for this deviation. The burden is on the management to substantiate the special ground for departure from the rule. Absence of mala fides by itself is no absolution from the rule in Section 25-G, affirmatively, some valid and justifiablé grounds must be proved by the management to be exonerated from the ‘last come first to’ principle. et In the 1980 Supreme Court Jorehaut Tea Co. case, out of 23 workmen 16 were retrenched in, accordance with Section 25-G .But the remaining 7 workmen's retrenchment deviated from Section 25-G Hence, it was set aside by the Tribunal and endorsed by the High Court from which this appeal arose. Dismissing the appeal Supreme Court observed that grading for the purposes of scales of pay and like considerations will not create new categorization. It is confusion or unwarranted circumvention to contend that within the same category of Grads for scales of pay, based on length of service, etc, are evolved , that process amounts to creation of separate categories. ‘Last come first go’ is not an immutable rule and that for valid and sufficient reasons the employer may depart from it. However, it is.incumbent upon the employer to ‘record the relevant circumstances and the reasons for deviation from the rule like the efficiency, unreliability, or habitual irregularity of the workmen who is retrenched , so that the tribunal to which the dispute-is taken will be able to ascertain whether the departure is justified by sound and valid reasons.1 Therefore, employer's order of retrenchment devi finds that the reasons given by the employer are not valid or satisfactory, then the action of ‘the employer deviating from the ‘last come first go’ rule will be treated”as mala fide’ éf amounting to unfair labour practice and victimization. EFFECT OF RETRENCHMENT: In contravention of Sec. 25-F becomes void and ineffective, worked for not less than 24 days during the preceding period of 12 months (Sec. 25-B). RE-EMPLOYMENT OF RETRENCHED WORKMEN: Section 25-H makes a mandatory provision in this behalf. The employer has to give an opportunity and _ preference to retrenched workmen for re-employment. It clearly says that where any “workmen are retrenched and the employer proposes to take intohis employer any person, he shall in such manner as may be prescribed, give an opportunity (to the n of India to offer ing the ‘last come first go’ rule must be a ‘speaking order.’ If the Tribunal *preference ‘over other persons. _and such ferenched workrien) who ato temisaives for re-amploymont Bhall ‘Compensation to workmen in case of transfer of undertakings: Section 25-FF: The undertaking is transferred from one emiployer 40 another employer elther by _-agreement oF by operation of law the workmen who have been in continuus service for not Jess than one year in that undertaking immediately before such transfer of ownership or management are entitled to notice and compensation in accordance with the provisions of Sec. 25-F, The undertaking must be an industry u/s 2()). Section: 2(CC):-CLOSURE COMPENSATION:-Sec. 2(CC) — the permanent closing down of a place of employment or part of . U/s 25 -FFF compensation is to be paid as a token of Social justice and employer must give notice of sixty days with regard to closure of an industry Sec, 25( g )—notice in cases where the employer intends to close down the undertaking. DIFFERENCE BETWEEN LAY-OFF & RETRENCHMENT Lay-Off Retrenchment. Section 2(KKK) Section 2(00) Failure/disability/refusal employer to give employment for a temporafy period. Permanently by the employer Due to shortage-of Coal, Power, raw materials. accumulation of stocks, or break down of machineryinatural calamity ‘On Surplus labour Due to non-availability’ of power, material etc. raw Surplus due to economic strive, rationalization in the industry installation of new Jabour saving machinery. Not labour force is surplus Labour force is surplus. Relationship between employer - and | Relationship is terminated employees is not terminated. Suspended Terminated, Concepts are entirely different & of different means i Concepts are different, and norms are different. UNFAIR LABOUR PRACTICES AND ROLE-OF GOVERNMENT:-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 thelr Trade Unions. i) Unfair labour practices on the part of employers and trade unions of employers. 1) To interfere'with, restrain from, or coerce, workmen in the exercise of their rights to organize, from join or assist a Tradé Union ot to engage in concerted activities for the purposes of collective bargaining or other, mutual aid or protection, that is to_._2) To dominate, interfere with or contribute ‘support, financial, or otherwi 3) 4 5) 6 ) ) a. threatening workmen with discharge or dismissal, if they join a trade union; b. threatening a lock-out or closure, of a trade union is organized ; ¢. Granting wage increase to workmen at crucial periods of the union organization. io any trade union, that is to say (1) an employer taking an active interest in organizing a trade union of his workmen ; and (2) an empioyer showing partiality or granting favour to one of several trade union attempting to organize his workmen or to its members where such a trade union is not a recognized trade union. To establish employer sponsored trade unions of workmen. To encourage or discourage membership in any trade union by discriminating against any workman, that is to say (0). discharging or punishing a workman, because he urged other workmen to Join or organize’a trade union : (ii) discharging of dismissing a workman for taking part-in the strike (not béing a strike which is deemed to be an illegal strike under this Act) ; (iil) —_ changing seniority rating of workmen because of trade union activities ; (iv) refusing to promote workmen to higher posts gn account of their trade union activities; (v) giving unmerited promotions to certain workmen with a view to creating discord amongst other workmen, or to undermine the strength of their trade union ; (vi) Discharging office-bearers or active members of thie trade union on account of their trade union activities. to discharge or dismissed workmen- a. By way of victimization;"* — b. _ Not in good faith, but in the colorable exercise of the employer's right; . By falsely implicating @ workman in a criminal case on false evidence or on concocted evidence; 4. For patently false reasons; €. 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; : 9g. 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. oe To abolish the work of @ regular nature being done by workmen, and fo give such work to ‘contractors as @'measure of breaking strike.8). To insist upon individual workmen, who -are on a legal’strike to-sign @ good ‘conduct bond, as a pre-condition to allowing them to resume. work? 9) To show favoritism 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 nd pr 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 recognized trade unions. 16) Proposing or continuing a lock-out deemed to be illegal under this Act. li) 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. i 2. To coerce workmen in the exercise of their right to self-organization or to joining ay trade unidn, that iS t 1) 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 ; 2) 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. "8. For a recognized union to refuse to bargain'collecvely in good faith with the empioyer. “+ A. To indulge in coercive activiles against certification of a bargaining représentative.- — + 5. To stage, encourage or instigate such forms of coercive actions and willful ject of depriving them of the status and privileges of ‘go slow’, squatting on the work premises after working hours or ‘gherao’ of . -” any of the members of the managerial or other staff. . To stage demonstrations al the residences of the employers or the managerial staff members To incite or indulge in willful damage to employer's property connected with the industry. : - 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. AUTHORITIES UNDER THE LD.ACT * The following authorities have been provided in the. Industrial Disputes Act, 2 ~ ~2, CONCILIATION OFFICERS — 3. BOARD OF CONCILIATION 4. COURT OF INQUIRY. 5.LABOURCOURTS 6. INDUSTRIAL TRIBUNALS. 7. NATIONAL TRIBUNALS. 7 7 1. WORKS COMMITTEE:- the chief functionis to promote industrial goodwill and i hormony in employers and employees, look after the works welfare of the Personnel deal with day to day intemal matters relating to safety, health, vocational training, apprenticeship, supervision of recreational facilities and other nurseries, créches, hospital, dispensary, ambulance room, commenting on matters of common interest or concem or endeavouring to compose any material differences of opinion in respect of some matters. Composition:- It consist of equal number of representatives of. both employer and employees engaged in.the Industrial establishmient-where hundred-or more workmen are employed or employed on any day in the preceding 12 months. The appropriate government may issue general or special order in this respect. _.FUNCTION AND DUTIES: : : 1, To promote measures for securing and preserving amity and good’ relations between the employer“and the workmen. 2. To comment upon matters of their common interest or concern. 2. CONCILIATION OFFICERS: the appropriate Government may appoint number of persons as it thinks fit to be conciliation officers. The duty is to mediate and to promote the settlement of industrial disputes. Duties: Sec. 12 (1)Requires a conciliation officer to hold conciliation proceedings in the prescribed manner where an industrial disputes exists oris apprehended. His role is as an advisor and a friend of both the parties and to arrive fair and just settlement, (2)For the purpose of bringing about a settlement without delay, he shall investigate to dispute and all matters affecting the merits ofthe rights to settlement. He may 0'all such things as he thinks fit for the purpose of inducing the parties to come , t0.a fair and amicable settlement of the dispute. There is no legal obligation on the part of the conciliation officer to issue notice te ' anybody/party before a settlement is signed. It is not necessary that each individual worker should know the implications of the settlement. Because, a recogznised Union is expected to know the implications of the settlement. cas! 3. If settlement is not ai ter closing of investigation the concilation officer send to the appropriate Government, a full report setting forth the steps taken by