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LABOUR LAW - I
By

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TABLE OF CONTENTS

LABOUR LAW - I ......................................................................................................................1

SYLLABUS .................................................................................................................................. 5

Unit - I ................................................................................................................................. 6

Introduction .............................................................................................................. 7

Evolution of Labour Law in India ............................................................................9

Constitutional Provisions with regard to Labour Laws ..................................... 12

Trade Union ............................................................................................................ 15

History of Trade Unions in India .......................................................................... 21

Growth of labour unions in India: 6-phases ....................................................... 25

The Trade Union Act, 1926 ................................................................................... 32

Requirements for Trade Union Registration ...................................................... 37

Rights and Liabilities of Registered Trade Unions .............................................38

Immunities .............................................................................................................. 42

Amalgamation and dissolution of Unions .......................................................... 45

Unit-II ................................................................................................................................49

Prevention and Settlement of Industrial Disputes in India .............................. 50

Role of State in Industrial relations ..................................................................... 57

Industrial Disputes Act, 1947 ................................................................................61

Industrial dispute ................................................................................................... 67

Workmen .................................................................................................................72

Layoff and Retrenchment ......................................................................................76

Closure .....................................................................................................................80

Award .......................................................................................................................83

Strike and Lockout ................................................................................................. 85

Unit-III .............................................................................................................................. 96

Authorities under the ID Act .................................................................................97

1. Works Committee: ............................................................................................. 98

2. Conciliation Officers: ........................................................................................101

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4. Courts of Inquiry: ............................................................................................. 105

5. Labour Courts: .................................................................................................. 106

6. Industrial Tribunals: ......................................................................................... 107

7. National Tribunal: .............................................................................................109

Procedure, Powers and Duties of Authorities .................................................. 110

Voluntary Arbitration ...........................................................................................114

Provisions under Chapter V-A & V- B of the Act .............................................116

Alteration of conditions of service .....................................................................119

Management rights of action during pendency of proceedings .................. 120

Unfair labour practices ........................................................................................ 123

Miscellaneous provisions of the Act ..................................................................128

Unit-IV ............................................................................................................................ 139

Introduction .......................................................................................................... 140

Industrial Employment (Standing Order) Act, 1946 ........................................ 141

Standing Orders ................................................................................................... 145

Concept and Nature of Standing Orders ..........................................................146

Scope and coverage ............................................................................................ 151

Certification process ............................................................................................ 154

Its operation and binding effect ........................................................................ 158

Modification and Temporary application of Model Standing Orders .......... 158

Temporary Application of Model Standing Orders .........................................160

Interpretation and enforcement of Standing Orders ......................................160

Provisions contained in the Industrial Employment (Standing Orders) Act

1946. ...................................................................................................................... 164

The Schedule to the Act. ..................................................................................... 166

Unit - V ............................................................................................................................169

Disciplinary Proceedings ..................................................................................... 170

Charge sheet. ........................................................................................................174

Explanation ............................................................................................................176

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Domestic Enquiry. ................................................................................................ 177

Enquiry Officer. ..................................................................................................... 186

Enquiry Report. .....................................................................................................194

Punishment ........................................................................................................... 203

Principles of natural justice .................................................................................206

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SYLLABUS

Unit-I: Concept of Labour through the ages - Trade Unions: History of

Trade Union Movement - The Trade Union Act 1926 – Definitions –
Registration – Rights and Liabilities of Registered Trade Unions –
Immunities – Amalgamation and dissolution of Unions –
Reorganization of Trade Unions.
Unit-II: Prevention and Settlement of Industrial Disputes in India - The
role of State in Industrial Relations – The Industrial Disputes Act 1947 -
Definition of industry - Industrial Dispute – Individual Dispute -
workman- Lay off –Retrenchment - Closure -Award - Strike– Lockout
Unit-III: Authorities under the ID Act – Works committee – Conciliation
- Court of inquiry - Labour Courts- Tribunal – Powers and functions of
authorities - Voluntary Arbitration - Provisions under Chapter V-A & V-
B of the Act- Alteration of conditions of service – Management rights
of action during pendency of proceedings – Recovery of money due
from employer – Unfair labour practices - miscellaneous provisions of
the Act
Unit-IV: Standing Orders - Concept and Nature of Standing Orders –
scope and coverage- Certification process – its operation and binding
effect – Modification and Temporary application of Model Standing
Orders – Interpretation and enforcement of Standing Orders and
provisions contained in the Industrial Employment (Standing Orders)
Act 1946.
Unit-V: Disciplinary Proceedings in Industries - Charge sheet –
Explanation – Domestic enquiry – Enquiry officer – Enquiry report –
Punishment – Principles of Natural Justice.

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Unit - I

Concept of Labour through the ages - Trade Unions: History of Trade

Union Movement - The Trade Union Act 1926 – Definitions –
Registration – Rights and Liabilities of Registered Trade Unions –
Immunities – Amalgamation and dissolution of Unions –
Reorganization of Trade Unions.

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Introduction

Labour law is the area of law which signifies the relationship

between a worker, trade union and government at large. It plays a major

important role in protecting the rights of labour, their union, their wages,
and moreover building a link between government and workers. It is a

protective code for laborers, workers, and employees as well, to make

them aware of their rights and also, to establish a standard law

regarding labour work practice. Labour law is often incorrectly conflated

with Employment law. However, Employment law is the area of law that

specifically deals with the relationship between an employer and

employee.

Labour law is concerned with the establishment of a labour-

relations framework that provides peaceful industrial relations between

labours and organized workers. It is basically related to the matters of

labour-relations, functions of a trade union, an adequate environment of

working, conditions under which labours are working, strikes and

security of the labour. While Employment law or Employment standards

law is concerned with the regulation in statute laws, conditions of the

workplace, time of working, wages, and so on, both, Labour law and

Employment standard laws are commonly related to workers or

employees and their way of working.

Labour laws are a set of laws that govern the rights and liabilities

of persons employed in an organization and that of the organization as

well. They act as a medium between workers, organizations, and the

collectivity of workers i.e trade unions. They can be divided into two

categories, one that governs the relationship between the employer,

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employee, and the trade unions; and the second deals with the
individual rights of employees. They define rights and liabilities of

workers, trade unions, and employers as well, Labor law entails within

its ambit the following:

 Industrial relations – This covers within its ambit the unfair labor

practices and working of trade unions.

 Workplace safety – This covers the safety requirements and

redressal mechanisms in case of any untoward incident.

 Employment standards – This covers the layoff procedures,

working hour regulations, minimum wages including a provision

regarding leaves.

Labour law works on a basic premise that industries are

promoters of development and it is in the best interest of the nations to

let them function in a congenial environment, but on the flip side

protection of the nation’s workforce is the sole responsibility of the

nation’s governments. Labour laws are also required to assure the

workers that their interests will be protected in case of infringement of

their rights.

Historical Background

Labour law arose parallel to the Industrial Revolution, as a result

of conflict between workers and trade union. The relationship between a

worker and employer of a small scale production gradually changed to

large scale factories. The growth of labour law is an outcome of a

constant desire of the worker, to seek better conditions of working to

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manage an adequate living and the employers need to have a flexible,

economic and productive workforce for better production and sales.

The origin of Labour law can be traced back in time around 18th

century, where Labour relations had been mentioned in several places

by European writers while giving importance to their Guilds and

Apprenticeship system, Asian scholars in the Laws of the Hindus by

Manu and then several other Latin American authors and writers across

the world.

Labour laws can be traced back to varied parts of the world.

European scholars laid emphasis on the importance of the guilds and

apprenticeship systems prevalent in medieval times. On the other hand,

Asian scholars trace labour laws back to the Babylon code (18th century

BCE); and on the laws of the Manu as well, Meanwhile American authors

guide us towards the law of the Indies enunciated in Spain in the 17th

century for its ramping society.

They were developed as the result of the industrial revolution

during the 18th century. It became essential to stop the unfair treatment

meted out to the workers, as the rate at which the industries were going

at the cost of labour was a disaster, on the flip side with the french

revolution in the picture, society was moving towards social justice so as

the cumulative result of conflict, labour laws were brought in the 18th

century, but in the true sense, they received acceptance in the 20th

century.

Evolution of Labour Law in India

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The labour and employment law in India is also known as

Industrial law. In India, the history of labour law is interwoven with the

history of British colonialism. The industrial/labour-law enacted by the

British was meant primarily to protect the British employers’ interests. In

defining some of these early laws, considerations of the British political

economy were of course of paramount importance, and that is how the

Factories Act came.

It is well known that Indian textile products offered stiff

competition on the export market to British textiles and, in order to

make India labour more expensive, the Factories Act was first enacted in

1883 due to pressure brought on the British parliament from

Manchester and Lancashire’s textile magnates. Thus, India received the

first stipulation of eight hours of work, the abolition of child labour, and

women’s restriction in night work, and the introduction of overtime

wages for work beyond eight hours. While the impact of this measure

was clearly welfarist, there was no doubt that the real motivation was

protectionist.

The Trade Dispute Act, 1929 (Act 7, 1929) was the earliest Indian

statute to govern the relationship between an employer and his

workmen. Provisions have been made in this Act to limit strike and

lockout rights, but no mechanism has been provided to take care of

disputes.

In the post-colonial era, the original colonial laws witnessed

substantial changes when independent India called for a direct

relationship between labour and capital. The content of this partnership

was unanimously approved at a tripartite conference in December 1947

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in which it was agreed that labour would be provided with a fair wage
and fair working conditions and that, in return, capital would receive the

fullest cooperation of labour for continuous production and higher

productivity as part of the national economic strategy development and

that all concerned would observe a truce period of three years free from

strikes and lockouts.

Purpose of Labour Legislation

Labour legislation that is adapted to the economic and social

challenges of the modern world of work fulfils three crucial roles:

 It establishes a legal system that facilitates productive individual and

collective employment relationships and hence a productive

economy.

 By providing a framework within which employers, workers, and

their representatives can interact with work-related issues, it serves

as an important vehicle for achieving harmonious industrial relations

based on workplace democracy.

 It provides a clear and consistent reminder and the guarantee of

fundamental principles and labour rights that have gained broad

social recognition and defines the mechanisms through which those

principles and rights can be implemented and enforced.

But experience shows that labour laws can only effectively fulfil

these functions if they are responsive to the conditions on the labour

market and the needs of the involved parties. The most efficient way to
ensure that these conditions and needs are completely taken into

consideration is when those concerned are closely involved in the

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legislative formulation by processes of social 6 dialogue. The

involvement of stakeholders in this way is of great importance in the

development of a broad base of support for labour law and in

facilitating its application within and beyond the formal structured

economic sectors.

Constitutional Provisions with regard to Labour Laws

Chapters III (Articles 16, 19, 23 & 24) and 7 Chapter IV (Articles 39,

41, 42, 43, 43A & 54) of the Constitution of India have enshrined the

relevance of the dignity of human labour and the need to protect and

safeguard the interests of labour as human beings by keeping in line

with the Fundamental Rights and Directive Principles of State Policy.

Labour is a concurrent subject in the Indian Constitution that

means that both the Union and the state government are qualified to

legislate and administer labour matters. The Parliament has enacted the

majority of important legislative acts.

Concurrent List

 Entry no. 55: Regulation of Labour and safety in mines and oil fields.

 Entry no. 22: Trade union, industrial and labour disputes.

 Entry no. 66: Industrial Disputes concerning union employees.

 Entry no. 23: Social security and insurance, employment and

unemployment.

 Entry no. 65: union agencies and institutions for “Vocational

Training”.

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 Entry no. 24: Welfare of about including conditions of work,

provident funds, employers invalidity, and old-age pension and

maternity benefit.

Legislation can be categorized as follows:

1) Labour laws enacted by the Central Government, where it is the sole

responsibility of the Central Government to implement them.

2) Labour laws passed by the Central Government and implemented by

both Central and State governments.

3) Labour regulations passed by the central government and

implemented by the State Governments of the country.

4) Labour laws passed and implemented by the different State

Governments which is applicable to the respective States.

The Indian Constitution provides detailed provisions on citizens’

rights and also sets out the Directive Principles of State Policy which set

the aim to guide the State’s activities.

These Directive Principles stipulate:

 To protect the health and strength of men and women employees.

 That children’s tender age is not being abused.

 That citizens are not forced to enter avocations unfit for their age or

strength by economic necessity.

 Fair and humane working and maternity relief conditions are

provided.

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 The Government shall take steps, through appropriate legislation or

by any other means, to secure employee participation in the

management of undertakings, establishments or other organizations

involved in any industry.

Employment

Employment is referred to as a state of having paid for work. Or in

other words, it can be termed as ‘a person who is hired for a wage or

salary to work for an employer. Employment is one of the basic

necessities of a person to earn money and make a living. Hence, there is

a whole different war for employment in the world.

Employment Act

The Employment Act is enforced for several uniform purposes: it

protects employee’s rights and set forth the employer’s obligations and

responsibilities. Hence, the significance of this act is to regulate

uniformity in all aspects of working and Labour strategies in the country.

Basic Conditions of Employment Act

The Basic Conditions of Employment Act (BCEA) is an act that is

regulated by the parliament and government for the protection of

employees being exploited from their employers. For the same, there

are certain regulations that are to be followed by employers.

The act also prohibits the Employment of a person under the age

of 15 years and puts an obligation on the employer to verify the age of

the worker or employee by requesting a copy of the birth certificate.

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It includes matters relating to terms of employment, working

hours, transport allowances, bonuses, methods of wage payment,

overtime, meal intervals, public holidays, medical leaves, maternity

leaves, terms of termination of employment, the procedure for

termination, etc.

Trade Union

Labour unions or trade unions are organizations formed by

workers from related fields that work for the common interest of its

members. They help workers in issues like fairness of pay, good working

environment, hours of work and benefits. They represent a cluster of

workers and provide a link between the management and workers.

The purpose of these unions is to look into the grievances of

wagers and present a collective voice in front of the management.

Hence, it acts as the medium of communication between the workers

and management.

A trade union (labor union in American English) is an organization

of workers intent on "maintaining or improving the conditions of their

employment", such as attaining better wages and benefits (such as

vacation, health care, and retirement), improving working conditions,

improving safety standards, establishing complaint procedures,

developing rules governing status of employees (rules governing

promotions, just-cause-conditions for termination) and protecting the

integrity of their trade through the increased bargaining power wielded

by solidarity among workers.

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Trade unions typically fund their head office and legal team
functions through regularly imposed fees called union dues. The

delegate staff of the trade union representation in the workforce are

usually made up of workplace volunteers who are often appointed by

members in democratic elections.

The trade union, through an elected leadership and bargaining

committee, bargains with the employer on behalf of its members,

known as the rank-and-file, and negotiates labour contracts (collective

bargaining agreements) with employers.

Unions may organize a particular section of skilled or unskilled

workers (craft unionism), a cross-section of workers from various trades

(general unionism), or an attempt to organize all workers within a

particular industry (industrial unionism). The agreements negotiated by

a union are binding on the rank-and-file members and the employer,

and in some cases on other non-member workers. Trade unions

traditionally have a constitution which details the governance of their

bargaining unit and also have governance at various levels of

government depending on the industry that binds them legally to their

negotiations and functioning.

Definition

A Trade Union is an intentional association of the laborers in a

particular industry or occupation. Article 19(1)(c) of the Constitution of

India ensures opportunity of relationship as a central right and gives the

laborers, right to consolidate and put together for aggregate activity or

deal. Nonetheless, a right isn't accessible for a specific class of

occupations. It is because of the sensible limitation which can be forced

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by the Government according to the arrangements of the Constitution

of India.

As per G.D.H. Cole: A worker's organization implies a relationship

of laborers in at least one callings an affiliation is continued for the most

part to secure and propelling the individuals' monetary interest

regarding their everyday work.

As indicated by S.D. Punekar: A worker's guild is a ceaseless

relationship of people in the business whether boss or free specialists

framed fundamentally with the end goal of the quest for the interests of

its individuals from the exchange they address.

As indicated by Dale Yoder: A worker's organization as a

proceeding with long haul relationship of representatives, shaped and

kept up with for the particular motivation behind progressing and

securing the interest of the individuals in their functioning relationship.

Section 2(h) of the Trade Unions Act, 1926 characterizes Trade

Union as "any mix whether brief or extremely durable, framed basically.

Characteristics of Trade Unions

 Association of employees: A trade union is essentially an

association of employees belonging to a particular class of

employment, profession, trade or industry. For example, there are

unions for teachers, doctors, film, artistes, weavers, mine workers

and so on.

 Voluntary Association: An employee joins the trade union out of

his free will. A person cannot be compelled to join a union.

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 Permanent Body: A trade union is usually a permanent body.

Members may come and go but the trade union remains.

 Common Interest: The member of a trade union have certain

matters of common interest-job security, better pay and working

conditions and so on, which bring them together.

 Collective Action: Even when an individual employee has any

grievance over certain management decisions, the matter is sorted

out by the intervention of the trade union Employees are able to

initiate collective action to solve any problem concerning any

particular employee or all the employees.

 Rapport with the Management: The trade union seeks to improve

relations between the employees and employers. The officials of the

trade union hold talks with the members of the management

concerning the problems of the employees in order to find an

amicable solution. It is thus possible for the employees to have

better rapport with the management.

Objectives

Following objectives were closely associated with Trade Union

Act,1926;

1) To protect workers against exploitation by employers.

2) To represent the grievance of employees on behalf of them to the

management.

3) To protect & safeguard rights of workers provided to them under

employment clause or labour laws.

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4) To increase participation in management for Decision Making.

5) To take disciplinary action against workers doing in-disciplinary

actions.

Need for Trade Unions

 Workers join trade unions to achieve certain objectives that they

may not be able to achieve in their personal capacity. Trade unions

are necessary.

 To ensure job security and right pay for the members: One of the

basic needs of any employee is security of service. The main reason

why an employee joins a union is to get him secured. Apart from job

security and employees need to get pay commensurate with their

qualifications and skills. Trade unions strive to get both job security

and correct pay for all employees.

 To ventilate the grievances of employees to the management: When

the employees in general or some in particular have any grievance,

they may not be able to convey the same to the management in

their personal capacity. Such grievances may be brought to the

knowledge of the management through the trade union. The

members of the management may be indifferent to the demands of

the individual employees but they cannot be so when it comes to

union demands.

Purpose of Trade Unions

Trade unions came into being for a variety of purposes. Individual

workers found it more advantageous to band together and seek to

establish their terms and conditions of employments. They realized that

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if they bargained as individuals, the employer would have a better

leverage, for an individual would not matter as much as a group in

terms of the running of the enterprise. A group’s contribution is much

larger than an individual’s so are the effects of its withdrawal. An

individual may not be able to organize and defend his interests as well

as a group can.

Therefore workers saw the advantages of organizing themselves

into groups to improve their terms and conditions of employment.

Employers also found it advantageous to deal with a group or a

representative of a group rather than go through the process of dealing

with each individual over a length of time. Precisely, the major

objectives of trade union are the following:

 Better wages

 Better working conditions

 Protection against exploitation

 Protection against victimization

 Provide welfare measures

 Promote industrial peace

 Take up Collective Bargaining

 Look after the interest of trade.

Trade Unions in India

Trade Unions in India are registered and file annual returns under

the Trade Union Act (1926). Statistics on Trade Unions are collected

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annually by the Labour Bureau of the Ministry of Labour, Government of

India. The Trade Union movement in India is largely divided along

political lines and follows a pre-Independence pattern of overlapping

interactions between political parties and unions.

The firm or industry level trade unions are often affiliated to larger

Federations. The largest Federations in the country represent labour at

the National level and are known as Central Trade Union

Organisations (CTUO). As of 2002, when the last Trade Union verification

was carried out, there are 12 CTUOs recognised by the Ministry of

Labour.

Regulation of relations, settlement of grievances, raising new

demands on behalf of workers, collective bargaining and negotiations

are the other key principle functions that these trade unions perform.

The Indian Trade Union Act, 1926, is the principle act which

controls and regulates the mechanism of trade unions. In India, political

lines and ideologies influence trade union movements. This is the

reason why today political parties are forming and running trade unions.

History of Trade Unions in India

A trade union can be defined as an organised association of

workers in a trade or profession, formed to further their rights and

interests. In India, Trade Unions in India are registered under the Trade

Union Act (1926).

The trade union movement in India can be distinctively studied

through three phases. The first phase covered the period from 1875 to

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the end of World War I. This phase was mainly characterized by a

humanitarian spirit that was employed by the friendly societies in

dealing with the labour. The second phase began from the end of World

War I and went on till 1947, the year of India’s independence. This phase

was quite remarkable as it saw the beginning of real modern trade

unionism in India with organized and continuous labour movement.

The earliest trade union was formed in Bombay when textile mills

were established in 1851. Trade unions also emerged in Calcutta in 1854

with the establishment of jute mills there. Shorabji Shapuri Bengali and

C.P. Mazumdar were among the pioneers of these early labour uprisings

in the country.

The first factory Commission was set up in 1879 to study the

problems of workers. In 1891, the first factory act- The Indian factory Act

was passed but it remained ineffective. The Second Factory Commission

was formed in 1884 to which a memorandum signed by Narayan Meghji

Lokhande along with 5300 workers was submitted. Thus Lokhande

emerged as the first trade union leader of India. In the year 1890,

Lokhande arranged a mass rally of 10,000 workers, where two women

workers demanded Sunday as weekly off. Simultaneously, the first

memorandum was submitted to Mill Owners’ Association who accepted

the demand. This event was recognized as the first trade union victory in

the country. This trade union rally led to the formation of the first trade

union called ‘Bombay Millhands Association’. However, the union had

no funds, office bearers and committee members.

This was followed by the formation of other trade unions across

the country and organized strikes started taking place. Trade unions like

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Ahmedabad Weavers (1895), Jute Mills, Calcutta (1896), Bombay Mill

workers (1897) and the Social League (1910) were formed. Some of the

notable strikes that took place around this time were by the Madras

Press Workers (1903), Printers Union, Calcutta (1905) and the Bombay

Postal Union (1907). The strike of the Madras Textile Workers (The 1921

Buckingham and Carnatic Mills Strike was a strike by the workers of

Buckingham and Carnatic Mills in the city of Madras that is now called

Chennai) was remarkable.

Thus, the trade union movement began to gather momentum in

the country. The Madras Labour Union was formed in 1918 with B.P.

Wadia as the president. Wadia, an ex-member of the Indian Home Rule

League, was the president of five trade unions in Madras. One of the

foremost influential trade union leaders in India, he said that the

economic aim of the Indian Labour movement is not only to get higher

wages and other benefits but to completely eradicate wage slavery.

Despite the absence of legal protection and facing bullets and

intimidation threats from the employers, the union achieved dignity and

improved conditions.

Another important figure in the trade union movement in India

was N.M. Joshi. In 1921, Joshi was quite influential in persuading the

Government of India to accept the resolution moved by him in 1921 in

the Central Legislative Assembly requesting for the legislation for the

registration and protection of trade unions. It was after 5 years that the

Trade Unions Act of 1926 was enacted. There was a rise in the

membership of trade unions during this time which but declined during

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the Great Depression of 1930. In 1934, the number of trade unions in

India was 191.

The International Labour Organization (ILO) was formed soon

after the first World War in 1919. The formation of ILO was instrumental
in inspiring the leaders of India towards the formation of All India Trade

Union Congress (AITUC), the first national-level trade union in India in

1920. Lala Lajpat Rai was elected as its first president who later also

attended the ILO Conference in Geneva in 1926. Other national-level

trade unions were also formed subsequently. The most notable among

these were Indian National Trade Unions Congress (INTUC) in 1947, the

Hind Mazdoor Sabha (HMS) in 1948 and the Centre of Indian Trade

Unions (CITU) in 1970.

Trade Unions in India have grown since then. As per data

obtained from the Labour Bureau, the total number of registered trade

unions across the country numbered to 11556 in 2013 and the average

membership per union was 1283. Amidst the well-known fact that the

degree of unionism is not very high in India, the concentration of union

membership is high in critical sectors like banking, insurance, railways,

postal services, ports, telecoms and power (Sundar, 2008). In addition, in

recent decades, the stronghold of the political unions has been

challenged by the growth of enterprise unions. The prevalence of the

Liberalization, Privatisation and Globalisation (LPG) model in India since

1991, along with the various labour flexibility measures adopted by

employers, and the decline in jobs in the organized sector are creating

challenges to unions, which are also simultaneously, providing

opportunities to restructure the union movement.

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Trade unions are interested in the economic and social welfare of

the workers. Labour unions may also have political interests in the larger

society.

Growth of labour unions in India: 6-phases

Growth of Trade union movement in India was an organic process.

It started towards the tail end of the nineteenth century and continues

to date. It closely follows the development of Industry in India. In India,

now there are more than 16,000 trade unions with a collective

membership of around 1 crore (10 million) laborers.

The growth of labour unions in India can be roughly classified into

six phases.

(1). Pre-1918: The genesis of the labour movement in India

 After the setting up of textile and jute mills coupled with the laying

of railways in the 1850s, worker atrocities started to come to light.

 Though the origin of labour movements was traced to the 1860s,

first labour agitation in the history of India occurred in Bombay,

1875. It was organised under the leadership of S.S Bengalee. It

concentrated on the plight of workers, especially women and

children. This led to the appointment of the first Factory commission,

1875. Consequently, the first factories act was passed in 1881.

 In 1890, M.N Lokhande established Bombay Mill Hands Association.

This was the first organised labour union in India.

 Following this, different organisations were established across India.

 Features of the labour movements in this era:

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 Leadership was provided by social reformers and not by the workers

themselves.

 The movements in this era mainly concentrated on the welfare of

workers rather than asserting their rights.

 They were organised, but there was no pan India presence.

 A strong intellectual foundation or agenda was missing.

 Their demands revolved around issues like that of women and

children workers.

(2). 1918-1924: The early trade union phase

 This period marked the birth of true trade union movement in India.

It was organised along the lines of unions in the industrialised world.

 The deteriorated living conditions caused by the first world war and

the exposure with the outside world resulted in heightened class

consciousness amongst the workers. This provided fertile ground to

the development of the movement. This period is known as the early

trade union period.

 Important unions: Ahmedabad Textile Labour Association (1917) led

by Smt. Anasuyaben Sarabhai, All India Postal and RMS Association,

Madras Labour Union led by B.P Wadia etc.

 AITUC, the oldest trade union federation in India was set up in 1920.

It was founded by Lala Lajpat Rai, Joseph Baptista, N.M Joshi and

Diwan Chaman Lall. Lajpat Rai was elected the first president of

AITUC.

 Factors that influenced the growth of the movement:

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 Spiralling prices during War and the mass entrenchment of workers

that followed it led to low living standards. Also, the wretched

working conditions added to their woes. Hence, they sought

collective bargaining power through unionisation.

 Development of Home Rule, the emergence of Gandhian leadership

and the socio-political conditions led to the nationalist leadership

taking interest in the worker’s plight. Workers, in turn, was looking

for professional leadership and guidance.

 Russian revolution and other international developments (like

setting up of International Labour Organisation in 1919) boosted

their morale.

(3). 1925-1934: Period of left-wing trade unionism

 This era was marked by increasing militancy and a revolutionary

approach. It also saw multiple split-ups in the movement. Leaders

like N.M Joshi and V.V Giri was instrumental in moderating the

movement and further integrating it with the nationalist mainstream.

 AITUC split up multiple times paving way for the formation of

organisations like National Trade Union Federation (NTUF) and All

India Red Trade Union Congress (AIRTUC). However, the need for

unity was felt and they all merged with the AITUC in the next phase.

 The government was also receptive to the trade union movement.

Legislations like the Trade Unions Act, 1926 and the Trade Disputes

Act, 1929 gave a fillip to its growth. It bestowed many rights to the
unions in return for certain obligations. This period was marked by

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the dominance of the left. Hence, it may be referred to as the period

of left-wing trade unionism.

(4). 1935-1938: The Congress interregnum

This phase was marked by greater unity between different unions.

Indian National Congress was in power in most of the provinces by 1937.

This led to more and more unions coming forward and getting involved

with the nationalist movement. In 1935, AIRTUC merged with AITUC.

Different legislations were passed by provincial governments that gave

more power and recognition to the trade unions.

The approach of Congress ministries was that of promoting

worker interests while protecting industrial peace. Reconciliation of

labour with capital was seen as an aim, with ministries working towards

securing wage rise and better living conditions. However, many

ministries treated strikes as law and order issues. They used colonial

machinery to suppress it. This led to considerable resentment from the

unions.

(5). 1939-1946: Period of labour activism

The Second World War lowered standard of living for the workers

further and this led to the strengthening of the movement. The question

of war effort created a rift between the Communists and the Congress.

This, coupled with other issues, led to further split in the movement.

However, the movement as a whole got stronger due to the

compounding issues. This included mass entrenchment post-war and

the massive price rise that accompanied it.

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Legislations like Industrial Employment Act, 1946 and Bombay

Industrial Relations Act, 1946 contributed to strengthening the trade

union movement. In general, the movements got more vocal and

involved in the national movement.

(6). 1947-present: Post-independence trade unionism

It was marked by the proliferation of unions. INTUC was formed in

May 1947 under the aegis of Sardar Vallabhbhai Patel. Since then, the

AITUC has come to be dominated by the Communists. Hind Mazdoor

Sabha was formed in 1948 under the banner of Praja Socialist Party.

Later on, it came under the influence of Socialists. Bharatiya Mazdoor

Sangh was founded in 1955 and is currently affiliated to the BJP.

Post-independence, trade unions became increasingly tied with

party politics. Rise of regional parties has led to a proliferation in their

numbers with each party opting to create its trade union. However, their

influence has been somewhat reduced after the liberalisation post-1991.

Issues like labour code reforms and minimum wage remains a political

hot potato due to the opposition from the trade union leadership.

Post-independence, India has also witnessed different unions

coming together to address a common issue. These include the

crippling railway strike of 1974 and the Great Bombay textile strike, 1982.

However, such strikes are seen to get less public support post-1991.

There is also an increased focus on informal labour. This is due to the

particularly vulnerable situation of unorganised labour. All major trade

unions have registered an increase in their membership from the

unorganised sector.

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Problems faced by the labour movement post Independence

 Uneven growth: They are concentrated in the metropolises, largely

catering to organised sector. Rural Agricultural labour and small

scale labour are grossly underrepresented.

 Low membership: Trade union membership is growing, but the vast

majority of India’s labour is not part of any trade unions. This

reduces their collective bargaining power.

 Weak financial position: Membership fees are set too low (25 paise)
by the Trade Union Act, 1926. They are particularly disadvantaged

against corporate lobbying groups that are flush with cash.

 Political leadership: Careerist politicians and vested political agenda

mean that worker interests are sidelined. Since the leadership may

not be from the labour force, they are held captive to party politics.

This lead to further exploitation.

 The multiplicity of unions: Bargaining power is diluted and it is easy

for employers to divert the attention of the labour.

 Inter-union rivalry: There are conflicts of interest and party politics

between the unions.

 The problem of recognition: Employers are under no obligation to

give them recognition. This means that docile unions get

recognition and genuine ones may be sidelined.

 Diverse nature of labour: Most unions don’t have properly

differentiated organisational structure to cater to different classes of

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labour. Eg: Differences between agricultural, formal and informal

labour.

 Lack of public support: Especially post 1991, trade unionism is

looked down as an impediment to growth and development. This

has led to a general ebbing of the movement across the country.

Major Labour Unions and their Political Affiliation

 All India Trade Union Congress – Communist Party of India.

 Indian National Trade Union Congress – Indian National Congress.

 Bhartiya Mazdoor Sangh – Bharatiya Janata Party.

 Centre for Indian Trade Unions – CPI(M).

 Hind Mazdoor Sabha – Samajwadi Party.

 Self Employed Women’s Association – Unaffiliated.

The Significance of Trade unions in a Capitalist Society

India’s decisive shift towards market-led growth post-1991 has

raised a lot of questions about the role of labour unions. Often, they are

seen as an impediment to industrialisation and investment. However,

their role is indispensable in balancing workers’ interests with that of

investors. They also keep a check on the sustainability of business

practices, including ethics.

Hence, they play an important role in getting support for worker

interests from the larger society. They also mobilise opinions in favour

of labour. They are also instrumental in organising democratic protests

and avoid movements getting overly militaristic. Democratic trade

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unionism is also a must in avoiding workers coming under the influence

of radical and anti-national elements. This is particularly important in

the environment of rising socio-economic inequality post liberalisation.

Conclusion

A vibrant and responsible trade union environment is the

requisite for inclusive growth to any economy. It checks growing

inequality and falling living conditions of the working class.

The Trade Union Act, 1926

The Trade Unions Act, 1926, [Act 16 of 1926], is an Act to provide

for the registration of Trade Unions and in certain respects of define the

law relating to registered Trade Unions. Whereas it is expending to

provide for the registration of Trade Unions and in certain.

Introduction

Before the emergence of industrialization on a massive scale,

there were personal contracts between the workers and employers.

Therefore, no requirement for the evolution of any machinery governing

the relationship between workers and employers arose until then. But

after the establishment of modern factory system this relationship lost

its significance due to large scale industrialization which enticed

employers to reduce the cost of production in order to withstand the

cut-throat competition in the market and maximize their profit by using

technologically more sophisticated means of production which in turn

resulted in the rise of a new class of workers who were completely

dependant on the wages for their survival which changed the existing

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employer and employee relationship in which the employees were

exploited by their employers. The conflict of interest between workers

and employers and the distress of workers resulted in the growth of

various trade unions.

A trade union is an organized group of workers who strive to help

the workers in the issues relating to the fairness of pay, good working

environment, hours of work and other benefits that they should be

entitled to instead of their labour. They act as a link between the

management and workers. In spite of being newly originated institutions,

they have turned into a powerful force because of their direct influence

on the social and economic lives of the workers. To control and manage

the working of these trade unions different legislations regulating the

same required. In India Trade Unions Act of 1926 is a principal Act for

controlling and managing the working of trade unions. The present

article aims at explaining and bringing forth various aspects of the Act.

Objective and Scheme of Trade Union Act, 1926:

 To work on the monetary parcel of laborers by getting them better

wages.

 To get for laborers better working conditions.

 To get reward for the specialists from the benefits of the

undertaking/association.

 To guarantee stable work for laborers and oppose the plans of the

board which lessen business openings.

 To give lawful help to laborers regarding debates with respect to

work and installment of wages.

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 To secure the positions of work against conservation and cutback

and so on

 To guarantee that laborers get according to rules fortunate asset,

annuity and different advantages.

 To get for the laborer's better wellbeing and wellbeing government

assistance plans.

 To get laborers interest in administration.

 To instill discipline, self-esteem and pride among laborers

 To guarantee openings for advancement and preparing.

 To get hierarchical effectiveness and high usefulness.

 To create a serious modern work power for further developing

efficiency of the framework

Development of Trade Union Law in India

Labour legislation in India has a key impact on the development

of industrial relations. The establishment of social justice has been the

principle of all the labour legislation in India. The establishment of the

International Labour Organization to uplift the condition of labour all

over the world gave further impetus to the need for well-framed labour

legislation in the country. Several other internal factors like the Swaraj

movement of 1921-24, the royal commission on labour also paved the

way for various labour laws and also encouraged the framers of the

constitution to incorporate such laws in the constitution which will

benefit the labourers. Under the constitution, labour is the subject of the

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concurrent list and both centre and state can make laws related to the
subject. The different legislation on labour in the country are as follows:

 Apprentices Act, 1961: The object of the Act was the promotion of

new manpower at skills and improvement and refinement of old

skills through practical and theoretical training.

 Contract Labour (Regulation and Abolition) Act, 1970: The object of

the Act was the regulation of employment of contract labour along

with its abolition in certain circumstances.

 Employees’ provident funds and misc. Provision Act, 1952: The Act

regulated the payment of wages to the employees and also

guaranteed them social security.

 Factories Act, 1948: The Act aimed at ensuring the health of the

workers who were engaged in certain specified employments.

 Minimum wages Act, 1948: The Act aimed at fixing minimum rates

of wages in certain employments.

 Trade Union Act, 1926: The Act provided for registration of trade

unions and defined the laws relating to registered trade unions.

Indian Trade Union (Amendment) Act, 1947

The labours, especially the ones who work in the unorganized

sectors lack the capacity to bargain and this becomes a major reason for

their exploitation. The Right of collective bargaining is provided only to

those trade unions which are registered but in India, there are

legislations regarding the recognition of trade unions but there is no

single legislation on registration of trade unions.

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Realizing the need of having central legislation for registration of

trade unions, the parliament passed the Indian Trade Union

(Amendment) Act in the year 1947. The said Act sought to introduce

Chapter III-A into the Trade Union Act, 1926, which enumerated the

conditions required for mandatory recognition of any trade union.

however, this Act was never brought to force Therefore, the mandatory

recognition of trade unions is not present under any law in force in India.

Objects

Trade Union Act, 1926 is one of the several labor legislations in

the country. The Trade Union Act, 1926 is associated with the

registration and protection of the trade unions. Following are the

objectives of the act:

 To protect the workers against exploitation by employers

 To represent the grievances of employees on behalf of them to the

management

 To protect and safeguard the rights of the workers provided to them

under the employment clause or labor laws.

 To increase participation for decision making

 To take disciplinary action against the workers doing in-disciplinary

acts.

Important concepts covered by this act are:

 Trade Dispute [Section 2 (g)]– A trade dispute means any dispute

between 1) employer and employee, 2) employee and employee, 3)

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employer and employer and employers concerned with employment

or not employment or the working conditions provided.

 Trade Union[Section2(h)]- Trade Union means any combination

either temporary or permanent formed for maintaining the relations

between workmen & employers, employers & employers or

workmen & workmen for imposing restrictive conditions on conduct

of any Trade or Business.

Registered Trade Unions [Section 2e]

A registered trade union simply means a trade union which is

registered under the Trade Union Act, 1926 implementing all the clauses

of the act. Some registered trade unions are- All India Trade Union

Congress (AITUC), National Labor Organization (NLO), etc.

Requirements for Trade Union Registration

 Minimum 10% workmen out of total workmen’s from same industry

should be members of the Trade union on the date of registration

 Minimum 7 workmen out of the total workmen from the industry

should be members of the trade union on the date of registration

 Strength of the workmen in particular industry or establishment

must be at least 70 to enable them to form a trade union and get

registered under the Act.

 Application for registration of Trade Union should contain- [Section

5]

 Name of 7 persons in Trade Union

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 Occupation of persons

 Address of persons

 Place of work of persons

 Name of the trade Union

 Address of the Trade Union Head office

Features of the registered Trade Unions [Section 13]

 Registered Trade Unions have Perpetual Succession

 Registered Trade Unions have a common seal

 Registered Trade Unions can sue others

 Registered Trade Unions can be sued by others

 Registered Trade Unions can acquire and hold both movable and

immovable property

Rights and Liabilities of Registered Trade Unions

Rights, Duties and Liabilities

Rights of a registered trade union:

 Right of Admission: Admission as a member of trade union is not an

absolute right. A registered trade union may impose certain

qualifications and restrictions for admissions subject to the

provisions of the Trade Unions Act and Rules as well as any other

law in force.

 Right of Representation: A trade union can represent the employees

in any industrial dispute and in case of individual dispute, with the

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written authorization of the employee. With such authorization, a

trade union can represent before any conciliation officer, industrial

tribunal, labour courts etc.

 Right to Contract: A registered trade union, being a legal person, can

enter into agreements and contracts on its own name.

 Right to own property: A registered trade union can purchase and

own movable and immovable property in its own name.

 Right to Sue: A trade union is a juristic person. It can sue, argue

before any labour courts, authorities and other courts on behalf of

itself, and on behalf of its members.

 Right to inspect books: Section 20 confers an important right to the

members of the trade union. The office bearers or the members can

inspect the books of account at such time as may be provided for in

the rules of the trade union. The members, however, have no right

to take copies of such books of account.

 Right to Amalgamate: According to Section 24 of the Trade Unions

Act, 1926, two or more registered trade unions may amalgamate as

one trade union with or without dissolution or division of funds of

such unions.

 Right to maintain General Fund and Political fund: A registered

trade Union has the right to maintain a General Fund and a separate

Political Fund.

General Fund and its Objectives [Section 15]

 Payment of salaries and allowances

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 Payments of expenses for administration of Union including

expenses spend on defending any legal proceeding by or against

the union.

 Settlement of Trade Disputes

 Expenditure on Trade Union member for death, sickness or

accidents.

 Providing educational, social, religious benefits to Trade Union

members

 For any other unlikely uses of General Funds by Trade unions

except the general-purpose use.

Political Funds and its Objectives [Section 16]

 Electoral meeting for the distribution of any document or

literature supporting Electoral Candidate which might be a local

authority or a member of legislative body according to the

constitution.

 For Political Meeting or distribution of Political Literature or

document of any kind.

 For maintenance of a member of the legislative body according

to the constitution.

 No workmen are obligated for contributing in political fund.

 Non Payment or Payment of political fund can’t be considered as

an important condition for Trade Union Membership.

Duties and Liabilities:

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 A registered trade union has a duty to inform the Registrar of Trade

Unions by sending a notice to that effect as to the change of

address of the registered trade union.

 The Act imposes on the registered trade union, duty to spend the
funds (general fund, political fund), specifically allotted for the

purposes as stated in the provisions of the act.

 A registered trade union is under a duty to see that not less than 1/2

of the total number of its office bearers in the case of unorganized

sector and 1/3 or 1/5 whichever is less in other sectors (according to

amendment in 2001) must be persons actually engaged or

employed in an industry with which the trade union is connected

with. Appropriate governments by an order (general or special order)

exempt a trade union from this provision.

 Every registered trade union must submit every year, to the registrar

of trade unions, a) a general statement, audited in the prescribed

manner of all receipts and expenditures during the year ending 31st

December, b) an audited statement of its assets and liabilities as on

31st December, c) a statement showing change of office bearers

made by the trade union during that year and, d) a copy of the rules

of the trade union amended up to date.

 Whenever any alteration is made in the rules of the registered trade

union, a notice regarding the altered rules must be submitted to the

registrar of trade unions within 15 days of such alteration.

 Failure to submit the above said returns, or give notice of alterations,

shall make every office bearer or other persons who are responsible

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for such submission of particulars, liable to pay fine which may

extend to Rs.5 and in case of continuing default additional fine of Rs.

5 for each week not exceeding Rs. 50 in total.

 Any person who gives false information to any member of the

registered trade union with an intention of deceiving him is liable to

be punished with fine which may extend to Rs.200.

 While electing a person as a member of the executive committee or

for any other office as office bearer must be confirmed that such

person has completed the age of 18 and such person is not

convicted of any offence involving moral turpitude. (In case of any

conviction and a period of 5 years has elapsed since his release then

he is qualified to be elected for these posts.)

 A minister or a person holding an office of profit in the Union or

State shall not be elected as a member of executive or other office

bearer of a registered trade union (according to amendment in

2001).

Trade Union Act, 1926 is a government-assisted enactment which

has been created to safeguard the laborers in both organized and

unorganized sectors from barbaric treatment and to protect their

human rights. As such the enactment contains the arrangements for the

registration, regulation, benefits, and protection of the trade unions

which, therefore, benefits the laborers.

Immunities

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Registered trade unions enjoy a variety of rights with respect to their

operations, these are briefly explained below:

a. Rights associated with a body corporate: By virtue of Section 13 of

the TU Act, a registered trade union is a body corporate; and as such, it

shall have a perpetual succession and common seal and shall have a

right to:

 hold and acquire properties, both movable and immovable,

under its own name,

 right to enter into contracts, and

 the right to sue and be sued.

b. Right to provide funds for political purposes: Section 16 of the TU

Act permits a trade union to constitute a separate fund to provide

contributions to political parties. The provision also lists the objects for

which the funds may be provided. However, it has to be noted that the

members cannot be compelled to contribute funds towards these

activities.

c. Immunity from certain criminal and civil proceedings: Section

17 provides immunity against criminal proceedings initiated

under Section 120B(2) of the Indian Penal Code to the office bearers

and members for any actions undertaken by them pursuant to an

agreement entered into to further the objectives of the trade union, as

provided in Section 15, some of which includes payment of salaries,

compensation, allowances etc. to office bearers, payment of expenses of

the union, conduct of trade disputes and other objects permitted by the

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appropriate government. However, no immunity shall lie in cases where

an offence has been committed.

Section 18 provides immunity to the office bearers and members

of the trade union against any act done in continuance or furtherance of

a trade dispute, only on the ground that such acts induce another

person to breach an employment contract or interfere with the trade or

business of the other person. The immunity also extends to any tortuous

acts done in contemplation or furtherance of a trade dispute by an

agent of the trade union. In such a case, it is required to be proven that

such an act was done without the knowledge of or contrary to the

instructions given by the executives of the union. The provision,

however, does not provide any protection against acts of violence by

the member/office bearer.

d. Right to enforce agreements in restraint of trade: Section 19

makes it valid for a registered trade union to enter into agreements that

are otherwise invalid on account of being in restraint of trade.

e. Right to change of name, right to amalgamation and dissolution:

A trade union has a right to change its name under Section 23 of the TU

Act. Additionally, the trade union can also amalgamate with another

union under Section 24 and also apply for dissolution under Section 27.

Along with the abovementioned rights, trade unions are also

vested with certain obligations, such as:

 Spending the funds of the union only towards activities permitted

under Section 15.

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 The statutory duty is to keep the books of accounts available for

inspection to the public. [Section 20]

 Provide notices of change of name, amalgamation and

dissolution [Section 25]

 Submission of annual returns/ general statement to the registrar

of trade unions [Section 28].

Amalgamation and dissolution of Unions

Amalgamation of trade union means merger of two or more trade

unions into one trade union. Section 24 to 26 of the Trade Unions Act,

1926 provides for amalgamation of trade unions.

Amalgamation can be as follows:

 Amalgamation with dissolution of trade unions,

 Amalgamation without dissolution of trade unions,

 Amalgamation with the division of funds of trade unions, and

 Amalgamation without division of funds of trade unions.

According to Section 24 of the Trade Unions Act, 1926, two or

more registered trade unions may amalgamate together as one trade

union with or without dissolution or division of the funds of such trade

unions or either or any of the trade unions.

For the amalgamation to be valid, the following conditions must be

satisfied:

 At least 1/2 of the members of the concerned trade unions must

participate and vote for amalgamation; and

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 At least 60% of the votes recorded are in favor of the

amalgamation.

Section 25 of the Act lays down the procedure for amalgamation

for the trade union. A notice in writing as to the change of the name of
the trade union after amalgamation must be served by the Secretary

and seven members of the trade union to the Registrar of the Trade

Unions. If the head office or any other office of the amalgamating trade

unions are located in other states, notice is to be served to the Registrar

of Trade Unions in such other state/states. The Registrar of Trade

Unions on being satisfied with the fulfillment of conditions, registers the

trade union by posting an entry in the Register and issues a certificate

to that effect. The amalgamation comes into force with effect from the

date of registration.

Section 26 of the Trade Unions Act, 1926 gives provision for the

change of name of a registered trade union. Change of name does not

affect the rights and liabilities of the trade union or does not render any

defect to the legal proceedings by or against the trade union. Similarly,

amalgamation of registered trade union shall not prejudice any right of

the trade unions or any right of a creditor to the trade union.

Dissolution of Trade Union

Section 27 of the Trade Unions Act, 1926 deals with the

dissolution of a registered trade union. For a registered trade union, the

rules of such a registered trade union under Section 6 (j) of the act, must

make provisions for the dissolution of that trade union. A registered

trade union may be dissolved at any time.

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Notice of such dissolution signed by the Secretary and any other

7 members of the trade union must be submitted to the Registrar of

Trade Unions within 14 days of such dissolution. The registrar on being

satisfied that the dissolution was effected in accordance with the rules

of the trade union, will register the fact of dissolution in the register.

The dissolution will come to effect from the date of such

registration of dissolution by the Registrar of Trade Unions in the

register. In case of the rules of the registered trade union do not have

any provisions for the distribution of funds of the trade union on

dissolution, the Registrar of Trade Unions may divide the funds among

its members is such manner as he thinks fit.

In case the rules of the registered trade union have provision for

division of funds, the division of funds will be done in accordance to the

provisions in the rules. In case of unregistered trade union, and the rules

do not have provisions for dissolution, then such trade union may be

dissolved with the consent of all the members of the trade union, or by

an order of competent court.

Conclusion

The Trade Unions Act, 1926 is an important welfare legislation

giving provisions for registration, regulation, benefits and protection for

trade unions. As such legislations envisage welfare of workers, these are

called ‘welfare legislation”. In India, agreements between the Trade

Union and employers are enforceable under Section 18 of the Industrial

Disputes Act, 1947 by filing a petition in Labour Court or Industrial

Tribunal.

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Trade Unionism in India is of recent origin in India. During the

British rule, the Trade Union movements were totally suppressed by the

then British Government. Trade Unionism is accorded recognition in

1926 for the first time in India, with the passing of Trade Unions Act,

1926. In the recent years, Trade Unionism witnessed tremendous growth

and development in India, not only in the Industrial Sector, but also in

the agriculture and other allied sectors.

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Unit-II

Prevention and Settlement of Industrial Disputes in India - The role of

State in Industrial Relations – The Industrial Disputes Act 1947 -
Definition of industry - Industrial Dispute – Individual Dispute -
workman- Lay off –Retrenchment - Closure -Award - Strike– Lockout

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Prevention and Settlement of Industrial Disputes in India

Industrial disputes are organised protests against existing terms

of employment or conditions of work. According to the Industrial

Dispute Act, 1947, an Industrial dispute means “Any dispute or

difference between employer and employer or between employer and

workmen or between workmen and workmen, which is connected with

the employment or non-employment or terms of employment or with

the conditions of labor of any person”

In practice, Industrial dispute mainly refers to the strife between

employers and their employees. An Industrial dispute is not a personal

dispute of any one person. It generally affects a large number of

workers’ community having common interests.

Prevention of Industrial Disputes:

The consequences of an Industrial dispute will be harmful to the

owners of industries, workers, economy and the nation as a whole,

which results in loss of productivity, profits, market share and even

closure of the plant. Hence, Industrial disputes need to be averted by all

means.

Prevention of Industrial disputes is a pro-active approach in which

an organisation undertakes various actions through which the

occurrence of Industrial disputes is prevented. Like the old saying goes,

“prevention is better then cure”.

Prevention is better than cure. It is possible to settle the industrial

disputes if timely steps are taken by the management. Such disputes

can be prevented and settled amicably if there is equitable adjustment

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between the management and the labour. The Government has taken
various steps to see that the industrial disputes are settled peacefully.

Firstly, the Government has constituted tripartite conferences for various

industries. The Employers, employees and the Government are

represented on these conferences. Secondly, statutory provision for the

settlement of disputes is provided by the Industrial Disputes Act, 1947.

Some of the useful methods used for prevention and settlements

of industrial disputes are:

1. Works Committees

2. Conciliation Officers

3. Boards of Conciliation

4. Court of Enquiry

5. Labour Courts

6. Industrial Tribunals and

7. National Tribunal

The following is the machinery for prevention and settlement of

industrial disputes provided by the Act:

 Model Standing Orders: Standing orders define and regulate terms

and conditions of employment and bring about uniformity in them.

They also specify the duties and responsibilities of both employers

and employees thereby regulating standards of their behavior.

Therefore, standing orders can be a good basis for maintaining

harmonious relations between employees and employers.

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 Under Industrial Dispute Act, 1947, every factory employing 100

workers or more is required to frame standing orders in consultation

with the workers. These orders must be certified and displayed

properly by the employer for the information of the workers

 Code of Industrial discipline: The code of Industrial discipline

defines duties and responsibilities of employers and workers. The

objectives of the code are:

 To secure settlement of disputes by negotiation, conciliation and

voluntary arbitration.

 To eliminate all forms of coercion, intimidation and violence.

 To maintain discipline in the industry.

 To avoid work stoppage.

 To promote constructive co-operation between the parties

concerned at all levels.

1. Works Committees:

This Committee consists of representatives of workers and

employers. Under the Industrial Disputes Act 1947, works committees

exist in industrial establishments in which one hundred or more

workmen are employed during the previous year. It consists of an equal

number of representatives of workmen and employer.

It is the duty of the works committee to promote measures for

securing and preserving amity and good relations between the

employer and workmen. It also deals with certain matters viz., conditions

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of work, amenities, safety and accident prevention, educational and

recreational activities, promotion of thrift and saving etc.

Every industrial undertaking employing 100 or more workers is

under an obligation to set up a works committee consisting equal

number of representatives of employer and employees. The main

purpose of such committees is to promote industrial relations.

According to Indian Labor Conference work committees are concerned

with:-

 Administration of welfare & fine funds.

 Educational and recreational activities.

 Safety and accident prevention

 Occupational diseases and protective equipment.

 Conditions of work such as ventilation, lightening, temperature &

sanitation including latrines and urinals.

 Amenities such as drinking water canteen, dining rooms, medical &

health services.

Works committees will not deal with the following items:

(i) Wages and allowance

(ii) Bonus and profit sharing schemes

(iii) Rationalisation and matters connected with fixation of workload

(iv) Matters connected with the fixation of standard labour force

(v) Programmes of planning and development

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(vi) Retrenchment and lay-off

(vii) Victimisation for trade union activities

(viii) Provident Fund, gratuity schemes and the retiring benefits

(ix) Quantum of leave and national and festival holidays

(x) Incentive schemes

(xi) Housing facilities.

2. Conciliation Officers:

Conciliation Officers are appointed by the Government under the

Industrial Disputes Act, 1947.

The duties of Conciliation officer are given below:

(i) He has to do everything for bringing a fair and amicable settlement

of the dispute. In case of public utility service, he must hold conciliation

proceedings in the prescribed manner.

(ii) He shall send a report to the government if the dispute is settled in

the course of conciliation proceedings along with the memorandum of

the settlement signed by the parties.

(iii) Where no settlement is reached, conciliation officer sends a report

to the government setting forth the steps taken by him for ascertaining

the facts, circumstances relating to dispute and the reasons on account

of which settlement could not be reached. The report shall be submitted

within 14 days of the commencement of the conciliation proceedings.

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In India, government of Bombay first introduced Conciliation and

Labour Officer in 1934 when the Bombay Trade Dispute Conciliation Act

was passed.

3. Boards of Conciliation:

The Government can also appoint a Board of Conciliation for

promoting settlement of industrial disputes. The chairman of the board

is an independent person and other members (may be two or four) are

to be equally represented by the parties to the dispute.

The duties of the board include:

(a) To investigate the dispute and all matters affecting the merits and do

all things as it thinks fit for the purpose of inducing the parties to come

to a fair and amicable settlement.

(b) A report has to be sent to the government by the board whether a

dispute is settled or not within two months of the date on which the

dispute was referred to it.

4. Court of Enquiry:

The government may appoint a court of enquiry for enquiring

into any industrial dispute. A court may consist of one person or more

than one person in that case one of the persons will be the chairman.

The court shall enquire into the matter and submit its report to the

Government within a period of six months.

5. Labour Courts:

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The government has set up Labour Courts for dealing with the matters
specified in the Second Schedule of the Industrial Disputes Act 1947.

These matters include:

(i) The propriety or legality of an order passed by an employer under the

standing orders.

(ii) The application and interpretation of standing orders.

(iii) Discharge or dismissal of workmen including reinstatement, or grant

or, relief to workmen wrongfully dismissed.

(iv) Withdrawal of any customary concession or privilege.

(v) Illegality or otherwise of a strike or lock-out, and

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

6. Industrial Tribunals:

A Tribunal is appointed by the Government for the adjudication of

Industrial Disputes relating to any matter specified in the Third Schedule.

These matters are given below:

(i) Wages including the period and mode of payment.

(ii) Compensatory and other allowances.

(iii) Hours of work and rest intervals.

(iv) Leave with wages and holidays.

(v) Bonus, profit sharing, provident fund and gratuity.

(vi) Shift working otherwise than in accordance with standing orders.

(vii) Classifications by grades.

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(viii) Rules of discipline.

(ix) Rationalisation.

(x) Retrenchment of workmen and closure of establishment.

(xi) Any other matter that may be prescribed.

The Industrial Tribunal consists of only one person who is

appointed by the Government. He should either be a Judge of a High

Court or District Judge for a period of not less than three years. It makes

an award after hearing the parties to the dispute and the award is

binding on them.

7. National Tribunal:

A National Tribunal is constituted by the Central Government for

the adjudication of industrial disputes involving questions of national

importance. A National Tribunal shall consist of one person only to be

appointed by the Central Government. A person who is or has been a

Judge of High Court or who has held the office of the Chairman or

member of the Labour Appellate Tribunal is eligible for the appointment

of this tribunal.

Role of State in Industrial relations

The Article 43A reads as follows: “The state shall take steps, by

suitable legislation or in any other way, to secure the participation of

workers in the management of undertakings, establishments or other

organisations engaged in any industry.”

Meaning of Industrial Relations

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The term ‘Industrial Relations’ comprises of two terms: ‘Industry’

and ‘Relations’. “Industry” refers to “any productive activity in which an

individual (or a group of individuals) is (are) engaged”. The term

‘industrial relations’ has been variously defined. J.T. Dunlop defines

industrial relations as “the complex interrelations among managers,

workers and agencies of the governments”.

In the system of industrial relations, State acts as a regulator and

judge. Further, not only Central Government, but the governments at

the state and regional level do influence the system of industrial

relations, also the other functionaries of the state like the executives and

judiciary has a definite impact on the system.

Traditional role of the State:

Historically, the Government has played at least six roles in

industrial relations in India. These are:

(i). Laissez Faire

(ii). Paternalism

(iii). Tripartism

(iv). Encouragement on Voluntarism

(v). Interventionism

(vi). Employer

(i). Laissez Faire: During the nineteenth century, the government

played a laissez faire role in industrial relations. It was reluctant to

intervene to settle any dispute or indicate any interest in the welfare of

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the workers. The workers and employers were left alone to manage their
affairs.

(ii). Paternalism: By the end of nineteenth century, the laissez faire role

of the government was replaced by paternalism. Thinkers like Robert

Oven, Ruskin and others attracted the attention of the public and the

government towards the inhuman working conditions in factories, mines

and plantations. The government tended to make several enactments to

govern working conditions, wages & benefits and formation of trade

unions.

(iii). Tripartism: Even prior to independence, there existed tripartite

form of consultation on the model of the ILO conferences. After

Independence several such forums were formed. The major tripartite

bodies formed included Indian Labour Conference, Standing Labour

Committee, Industrial Committees for Specific Industries, Short Lived

National Apex Body (1975), etc. The government promotes consultation

with concerned parties prior to taking any policy decision in Industrial

relations to bring out any legislation.

(iv). Encouragement on Voluntarism: The government also promotes

voluntarism involving a series of codes to regular labor management

relations. These codes include codes of discipline, code of conduct and

code of efficiency and welfare. Specifically, the code of discipline

encourages voluntary arbitration and helps in maintaining discipline at

workplace.

(v). Interventionism: The government also plays an interventionist role.

The intervention is in the form of conciliation and adjudication. The

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Industrial Dispute Act, 1947 provides such measures to intervene in

industrial disputes.

(vi). Employer: The government also plays the role of the largest

employer. The performance of this role influences labour policy also.

Obviously the government takes into consideration the interest of

public sector while framing its policy.

Role of State in Industrial Relations:

In recent years, the state has played an important role in

regulating industrial relations in various countries. But the extent of its

involvement in the process is determined by the level of social and

economic development in the country. The mode of State intervention is

greatly influenced by the prevailing political system in the country and

also economic development.

The role of state in industrial relations is discussed as follows:

1. Improves Standard of Living: India is known as socialist democratic

republic state Government which is elected by the citizens of country

has certain obligations to work for welfare of it’s citizens through a

system of legislations.

2. Promotes Industrial Growth: Government makes a continuous

effort to increase the growth of the industry taking into consideration

the labor class.

3. Acts as an Umpire: The role of the government as an umpire in case

of industrial relations is clearly visible and accepted by the country. It

helps the employers and workers with all sorts of mechanism of law so

that they can handle all their issues bilaterally .

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4. Protects Interest of Labour: The government puts an effort to rectify

by using effective industrial relations. It regulates the employers and

workers to handle their disagreements.

5. Other Role of State:

 Sustaining industrial harmony

 Supports in expanding production and output

 Suitable implementations of legislations .

Industrial Disputes Act, 1947

The Industrial Disputes Act, 1947 extended to the whole of India

and regulated Indian labour law so far as that concerns trade unions as

well as Individual workman employed in any Industry within the territory

of Indian mainland. Enacted on 11 March 1947 and It came into force 1

April 1947.

Industrial Disputes Act, 1947 is the Act that regulates the labour

laws as it concerns all the workmen or all the people employed on the

Indian mainland. It came into force on 1 April 1947. The capitalists or

the employer and the workers always had a difference of opinion and

thus, it leads to lots of conflicts among and within both of these groups.

So, these issues were brought to the attention of the government and

so they decided to pass this Act. This Act was formed with the main

objective of bringing peace and harmony to industrial disputes between

parties and solving their issues in a peaceful manner.

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The Industrial Disputes Act, 1947 is the primary legislation

governing dispute resolution in India. It was enacted to provide for the

investigation and settlement of industrial disputes, to prevent illegal

strikes and lockouts, to provide relief to workmen during lay-off or after

retrenchment or wrongful dismissal.

The main purpose of the Industrial Disputes Act, 1947 is to ensure

fair terms between employers and employees, workmen and workmen

as well as workmen and employers.. The objective of the Industrial

Disputes Act is to secure industrial peace and harmony by providing

machinery and procedure for the investigation and settlement of

industrial disputes by negotiations.

Scope and Extent

This is an Act made for the examination and settlement of

industrial disputes, and for different purposes too. This Act centers

around any industry carried on by or under the authority of the Central

Government, or by a railway organization or concerning any such

controlled industry as might be indicated for this benefit by the Central

Government.

The Industrial disputes act of 1947 extends to the whole of India.

it came into enforcement on 1st April 1947.

The laws apply only to the organised sector. Chapter V talks about

the most important and often in news topic of 'Strikes and Lockouts'. It

talks about the Regulation of strikes and lockouts and the proper

procedure which is to be followed to make it a Legal instrument of

'Economic Coercion' either by the Employer or by the Workmen.

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Chapter V-B, introduced by an amendment in 1976, requires firms

employing 300 or more workers to obtain government permission for

layoffs, retrenchments and closures. A further amendment in 1982

(which took effect in 1984) expanded its ambit by reducing the

threshold to 100 workers.

Objectives

An act to make provision for the investigation and settlement of

industrial disputes, and for certain other purposes. The objective of the

Industrial Disputes Act is to secure industrial peace and harmony by

providing mechanism and procedure for the investigation and

settlement of industrial disputes by conciliation, arbitration and

adjudication which is provided under the statute.

The main and ultimate objective of this act is "Maintenance of

Peaceful work culture in the Industry in India" which is clearly provided

under the Statement of Objects & Reasons of the statute.

1. To encourage good relations between labor and industries, and

provide a medium of settling disputes through adjudicator authorities.

2. To provide a committee for dispute settlement between industry and

labor with the right of representation by a registered trade union or by

an association of employers.

3. Prevent unauthorized strikes and lockouts.

4. Reach out to labor that has been laid-off, unrightfully dismissed, etc.

5. Provide labor the right to collective bargaining and promote

conciliation.

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The Act also lays down:

 The provision for payment of compensation to the workman on

account of closure or lay off or retrenchment.

 The procedure for prior permission of appropriate Government for

laying off or retrenching the workers or closing down industrial

establishments

 Unfair labour practices on part of an employer or a trade union or

workers.

Dimakuchi Tea Estate vs. Management of Dimakuchi Tea Estate.

Principal objects as stated by the supreme court in the case of

Workmen of Dimakuchi Tea Estate vs Management of Dimakuchi Tea

Estate AIR 1958 SC

1) the act aims to promote the measures which are helpful in securing

good and amity relations between the employer and the employee.

2) An investigation and settlement of disputes between an employer

and the employee, employer and workmen, workmen and workmen and

giving them the right of representation in the trade unions.

3) the legislation also tries to do away with illegal strikes and lockouts.

4) it also helps to provide the relief to the workmen in the matter of lay

off, retrenchment, closure of undertaking, etc.

5) it helps to do Collective Bargaining.

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The Industrial disputes act is social legislation which tries to

maintain a balance between the interest of the important pillars of the

industrial establishment.

Main features of the Act

This Act furnishes us with specific guidelines and guidelines in

regards to the works committee for both the businesses and all the

workmen to advance measures for good working relations and

comprehension among the workmen and the businesses later on, and to

end that, it additionally vows to resolve any material difference in views

of opinion in regard to such issues.

The features of the Industrial Disputes Act are:

 The act applies to entire India also includes the state of Jammu and

Kashmir.

 It favors arbitration over the disputes between employers and

workers.

 It affords for setting up of works committees as machinery for

mutual discussion between employers and workers to promote

friendly relation.

 The act paved the way for creating permanent conciliation

machinery at various stages having definite time limits for

conciliation and arbitration.

 This act emphasis on compulsory adjudication apart from the

conciliation and voluntary arbitration of Industrial Disputes.

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 The Act empowers the Government to refer the dispute to an

appropriate authority, i.e., Labour Court, Industrial tribunal and

National tribunal depending upon the nature of the dispute either

on its own or on the request of the parties.

Important Definitions of the Act:

Section 2A : Appropriate Government

Any industry carried on by or under the authority of the Central

Govt, or by a railway company or a Dock Labour Board, or the Industrial

Finance Corporation of India Ltd, or the ESIC, or the board of trustees of

the Coal Mines PF, or FCI, or LIC or in relation to any other industrial

dispute, the state Government.

Section 2J : Industry

Sec. 2 (j) of the Industrial Disputes Act, 1947 defines 'industry'

as any business, trade, undertaking, manufacture, or calling of

employers and includes any calling, service, employment, handicraft or

industrial occupation or avocation of workmen”.

The definition of Industry under the Act is taken from the

Supreme Court's judgment in Bangalore water Supply and Sewerage

Board v. A. Rajappa.

Triple Test formulae The organization is Prima Facie an industry if

it is

1. A systematic activity

2. Organized by co-operation between an employer and an

employee

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3. for the production of goods and services calculated to satisfy

human wants and wishes. (not spiritual or pious in nature but inclusive

of material things or services geared to seek celestial bliss)

Section 2K : Industrial dispute

The Industrial Disputes Act defines "Industrial dispute" as a

dispute or difference between workmen and employers or between

workmen and workmen, which is connected with employment or non-

employment or the terms of employment or with the conditions of

labour.

Section 2A : Industrial dispute between individual and employer

Section 2-A provides that “where any employer discharges,

dismisses, retrenches or otherwise terminated the services of any

individual workman, any dispute or difference between that workman

and his employer connected with, or arising out of such discharge,

dismissal, retrenchment or termination shall be deemed to be an

industrial dispute, notwithstanding that no other workman nor any

union of workmen, is a party to the dispute.”

Industrial dispute

An industrial dispute is defined as a conflict or a difference in

opinion between management and workers regarding employment. It is

a disagreement between an employer and employees representative i.e.

trade union. The issue of disagreement is usually pay or other working

conditions.

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During an industrial dispute, both the parties try to pressurize

each other to agree to their terms and conditions. The industrial unrest

manifests itself as strikes, lock-outs, picketing, gheraos and indiscipline

on the part of workers.

An industrial dispute can never be said to be a good choice.

Consequences of industrial disputes are very far reaching, for they

disturb the economic, social and political life of a country. They are no

less than a war. In a war, casualties and sufferings are not confined to

soldiers fighting on the front, so stoppage of work due to strike or any

other mode resulting in stoppage of work does not affect the

employees or the employers of the struck plant, but it affect the whole

society or country.

The definition of Industrial disputes is as follows – According to

Section 2(k) of the Industrial Disputes Act, 1947 “industrial dispute” is

defined as, “Any disputes or differences between employers and

employers, or between employers and workmen, or between workmen

and workmen, which is connected with the employment or non-

employment or the terms of employment or with the conditions of

labour, of any person”.

The definition identifies three parties to disputes:

1. Employers

2. Employees

3. Workmen.

Workmen Industrial dispute is disagreement and difference

between two disputants, namely, labour and management. This

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disagreement or difference could be on any matter concerning them

individually or collectively. It must be connected with employment or

non-employment or with the conditions of labour. It should also be

noted that, the subject- matter of an industrial dispute must be specific,

i.e., which affects the relationship of employers and workers.

It is self-evident that industrial disputes and industrial unrest are

symptoms of a lack of co- operative spirit and of harmonious relations

in industry. It is agreed that the manifestation of these symptoms causes

stoppage of work or disruption of production and all consequential evils.

The continued and prolonged industrial unrest also has serious

consequences for the employees and also for the economy at large.

When An Individual Dispute Becomes An Industrial Dispute

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 Supreme

Court and majority of Industrial Tribunals held that, a dispute raised by a

dismissed employee would not be treated as an industrial dispute,

unless it is supported by a trade union or by a body or Section of

workman.

For an individual dispute to be declared as an Industrial Dispute,

the following conditions are to be satisfied:

 A body of workmen (trade Union ) or a considerable number of

workmen, are found to have made common cause with the

individual workman;

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 That the dispute (individual dispute) was taken up or sponsored by

the workmen as a body (trade union) or by a considerable Section of

them before the date of reference.

Bombay Union of Journalists vs. The Hindu: A person working

in ‘The Hindu, Madras’ was terminated for claiming as full time

employee. The Bombay Union of Journalist raised the dispute. It was

found that, there were ten employees of which seven in administrative

side and only three in journalism side. Of these three, only two were the

members of the union. Therefore, the Supreme Court held that the

Bombay Union of Journalists is not competent to raise this dispute. Even

if it had raised, it could not have become an industrial dispute.

Workmen of Indian Express Newspapers Ltd. vs. Management

Indian Express Newspapers: A dispute relating to two workmen of

Indian Express Newspapers Ltd, was espoused by the Delhi Union of

Journalists which was an outside union. About 25 percent of the working

journalists of the Indian Express were members of that union. But there

was no union of the journalists of the Indian Express. It was held that the

Delhi Union of Journalists could be said to have a representative

character Qua the working journalists employed Indian Express and the

dispute was thus transformed into an industrial dispute.

Thus, an individual dispute to fall within the definition of industrial

dispute, it must be sponsored by the Trade Union of the workmen or if

there is no trade union, it must be sponsored by the majority of the

workmen or it must comply with the requirements of Section 2-A of the

Industrial Disputes Act, 1947.

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Any workman may make an application directly to the labour

court or Industrial Tribunal for adjudication of such dispute after the

expiry of 3 months when an application was made before the

conciliation officer. This has been done to prevent inordinate delay. The

said application however should be made within 3 years of the date of

dismissal, discharge, retrenchment or termination of service. The court

shall proceed to hear the matter as if it was referred to it U/S 10 of the

ID Act.

Section 2A does not declare all individual disputes to be industrial

disputes. It is only when a dispute is connected with a discharged,

dismissed retrenched or terminated workman that it shall be treated as

an industrial dispute. If the dispute or difference is connected with some

other matter e.g. payment of bonus/ gratuity etc. then 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. (State of Bihar vs. kripa Shankar

Jaiswal)

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 on

unconnected with the employer or the industry concerned. (Express

Newspapers (Private) Ltd. Vs. First Labour Court, West Bengal & Others)

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

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be in the same employment i.e., there must be community of interest

when the act complained against happened and not when the dispute

was referred to.

Section 2 (k) compared with Section 2-A

An individual dispute even though not sponsored by other

workmen or espoused by the union would by deemed to be an

industrial dispute if it covers any of the matters mentioned in Section 2-

A. So far as the subject matter of the dispute is concerned 2-A does not

bring about any change. The provisions of Section 2(K) alone determine

that question.

The only change introduced by Section 2-A is that before its

introduction, a dispute even though was an industrial dispute from the

perspective of subjects referred to in Section 2 (k) would not have

become an industrial dispute if it were only an individual dispute and it

was not taken up either by the union or by a substantial body or

workmen. But after the introduction of Section 2-A such a dispute would

be an industrial dispute in respect of those matters specified in that

Section even though it is not sponsored by a union or a considerable

number of workmen. Section 2-A can be treated as an explanation to

Section 2 (k).

Workmen

The concept of workman is central to the concept of an industrial

dispute as an industrial dispute can be raised either by a "workman" or

an "employer." Since the Industrial Disputes Act, 1947 ("ID Act") is a

piece of beneficial legislation, the courts have enlarged the scope and

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applicability of this Act by giving wide interpretation to the term

"workman."

Section 2(s) defines workman as any person (including an

apprentice) employed in any industry to do any manual, unskilled,

skilled, technical, operational, clerical or supervisory work, for hire or

reward, terms of employment be express or implied and includes any

such person who has been dismissed, discharged or retrenched in

connection with, or as a consequence of dispute. It excludes persons

employed in army/Navy/Air Force/Police and those employed in mainly

managerial or administrative, supervisory capacity and drawing wages

of more than INR 6500.

The Courts have interpreted this definition and have identified

various determining factors to know whether a person is "workman" or

not. The factors which should be considered are

(a) whether there is a Master-Servant relationship;

(b) when a person is performing various functions which overlap

in their characteristics, the nature of main function for which the

claimant is employed should be considered;

(c) work is either manual, skilled, unskilled, technical operational,

clerical or supervisory in nature, the mere fact that it does not fall within

the exception would not render a person to be workman; and

(d) that the exceptions are not applicable.

Further, designation, source of employment, method of

recruitment, terms and conditions of employment/contract of service,

the quantum of wages/pay and the mode of payment should not be

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considered while determining whether a person can be termed as

"workman."

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

contention in the definition under the ID Act which has enlarged the
scope of the legislation.

Some of the important components of section 2(s) and their

interpretation by the courts are as follows:

1. Supervisory and Managerial work:

1.1. A person working in purely managerial and/or supervisory capacity

does not fall within the definition of workman under ID Act. However,

when a person performs multifarious functions, the nature of the main

function performed by the person has to be considered to determine if

the person is a "workman." The designation of a person is not a

conclusive factor in determining the nature of work. Even if a person is

designated as supervisor, the employer has to prove that his work and

his duties were in nature of a supervisor.

1.2. To squarely fall within the exception, the person must be

(a) employed in a supervisory capacity;

(b) draw more than INR 6500 as wages; and

(c) primarily perform the functions of managerial nature.

The emphasis really is to exclude those persons who are

performing mainly managerial work and are employed in supervisory

capacity i.e. evaluating the work of their subordinates.

2. Skilled and Unskilled manual and operational work

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2.1. Manual or operational work may be classified as one that requires

no special set of skills. It is mostly associated with physical labour. By

way of exception, the courts have excluded such works which

need imaginative or creative quotient. A work that requires training

would imply that the work is of special nature and requires a distinct

application of mind. It is not considered a manual/clerical/operational

work or technical work.

However, in a few cases the courts have deviated from strict

interpretation and excluded ancillary creative works while considering

the definition of "workman." A person suggesting ways to increase sale

is using an imaginative minds and therefore, is out of the scope of this

definition. However, a person carrying out such ideas by distributing

pamphlets or engaging in door-to-door publicity will be covered as a

"workman" under the ID Act.

2.2. A salesperson may use various techniques to convince the

consumers but that is not considered as use of creative or imaginative

faculty and such sales person, even if he goes through a training to

acquire knowledge about the product, will not be excluded from the

definition of a workman.8

3. Part Time and Full Time workman

The number of working hours is not considered while determining

whether a person qualifies as "workman" or not. However, there must

exist a master-servant relationship between the employee and his

employer. An independent contractor cannot be termed as a workman.

The employer must be in a position to control the manner of

employee‟s work.

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The ID Act does not differentiate between part-time, full time,

casual, daily wage, regular or permanent workman. All such individuals

are subject to ID Act if they fulfill the ingredients as provided in section

2(s).

To give effect to the objects of this Act, the courts have followed a

purposive approach while interpreting the term workman‟ and industrial

dispute‟. The emphasis is laid on the nature of duties and powers

conferred on an employee rather than the designation.

Layoff and Retrenchment

Layoff and retrenchment are discussed in the Industrial Disputes

Act of 1947. Layoff refers to the removal of employees by the employer

for reasons other than the employee’s fault. A layoff is temporary in

nature as it indicates the incapability of an employer to continue the

employment of the workers for a short period.

Retrenchment refers to a situation where the employer removes

his employees to increase profits and decrease losses. Even in

retrenchment, there is no fault of the employee that results in the

termination of the employment. Through this article let us analyse the

terms layoff and retrenchment put forth under the Industrial Dispute Act,

1947 in detail.

Layoff

Section 2 (kkk) of the Industrial Disputes Act, 1947 defines the

term ‘Layoff’’ as the inability, failure, or refusal of the employer to

provide employment to a workman whose name is mentioned in the

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muster roll of his industrial establishment and who is not retrenched

due to the lack of power, coal, raw materials, accumulation of stocks,

breakdown of machinery or natural calamity for any other relevant

reason.

Conditions essential for a lay-off

 There must exist an inability, failure or refusal from the employer’s

side to provide employment to the workmen.

 Such inability, failure or refusal must be due to lack of power, coal,

raw materials, accumulation of stocks, breakdown of machinery or

natural calamity for any other relevant reason.

 The name of the workman must be mentioned in the muster roll of

the employer’s industrial establishment.

 The workman must not have been subjected to retrenchment.

A layoff is a measure that is used only in continuing businesses. If

the employer decides to permanently shut down his industrial

establishment then layoff is of no use. Layoff must adhere to the

conditions provided in Section 2 (kkk) of the Industrial Disputes Act,

1947 or else it will not be considered right as per the law. Layoff means

there will be immediate removal of the employees, however, such

unemployment is temporary in nature so it does not result in the

termination of the already existing employer-employee relation and

leads to no alteration of the terms of such employment.

Retrenchment

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Section 2(oo) of the Industrial Disputes Act, 1947 talks about

retrenchment. As per the said section, retrenchment refers to the

termination of a workman for any reason except for a form of

punishment in furtherance of imposing disciplinary action. However,

retrenchment does not include voluntary retirement of a workman,

workman retiring upon reaching the age of superannuation as

mentioned in the employment contract, removal of a workman on basis

of continued ill-health, and removal of the workman because the

employment contract is terminated or is non-renewed after its expiry.

Definition of Retrenchment (Section 2(oo))-

“Retrenchment” means the termination by the employer of the service

of a workman for any reason whatsoever, otherwise than as a

punishment inflicted by way of disciplinary action, but doesn't include-

(a) Voluntary retirement of the workman; or

(b) Retirement of the workman on reaching the age of superannuation if

the contract of employment between the employer and the workman

concerned contains a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of the on-

renewal of the contract of employment between the employer and the

workman concerned on its expiry or of such contract being terminated

under a stipulation in that behalf contained therein; or

(c) Termination of the service of a workman on the ground of continued

ill-health;

Lay-off and retrenchment: a comparative analysis

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A layoff basically means the temporary termination of a workman

at the disposal of an employer while retrenchment means the removal

of excess workmen to increase the efficiency of the industrial

establishment, provided that such removal is done for any reason

whatsoever other than as a form of punishment in furtherance of

imposing disciplinary action.

The termination in a layoff is temporary while termination in

retrenchment is permanent. The employer-employee relationship does

not cease to exist in the former and it ceases in the latter.

In a layoff, the industrial establishment stops functioning or

operating after the declaration. However, in retrenchment, the industrial

establishment continues its functions or operations.

A workman who had been laid off is appointed back as soon as

the layoff period ends. In the case of retrenchment, the employment of

the workman is immediately terminated, there is no further relation

between the employer and the workmen.

Conclusion

Any company doing business banks upon various aspects for the

purpose of its operation, gaining profits and reducing losses. It is also

required to look after its employees well enough so that they work

efficiently for the development of such a company. However, in order to

survive in the market, these companies are required to take accurate

and expeditious decisions. Terminating the employees or workers by

means of lay-offs or retrenchment may be beneficial to the company as

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both methods follow certain protocols to make sure that the employees
or workers are not subjected to unfair conditions.

Closure

Definition of Closure (Section 2(cc))-

“Closure” means the permanent closing down of a place of employment

or part thereof;

Special Provision Relating To Closure Section 25-O Procedure for

closing down an undertaking:

(1) An employer who intends to close down an undertaking of an

industrial establishment to which this Chapter applies shall, in the

prescribed manner, apply, for prior permission at least ninety days

before the date on which the intended closure is to become effective, to

the appropriate Government, stating clearly the reasons for the

intended closure of the undertaking and a copy of such application shall

also be served simultaneously on the representatives of the workmen in

the prescribed manner:

Provided that nothing in this sub-section shall apply to an undertaking

set up for the construction of buildings, bridges, roads, canals, dams or

for other construction work,

(2) Where an application for permission has been made under sub-

section (1), the appropriate Government, after making such enquiry as it

thinks fit and after giving a reasonable opportunity of being heard to

the employer, the workmen! and the persons interested in such closure

may, having regard to the genuineness and adequacy of the reasons

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stated by the employer, the interests of the general public and all other
relevant factors, by order and for reasons to be recorded in writing,

grant or refuse to grant such permission and a copy of such order shall

be communicated to the employer and the workmen.

(3) Where an application has been made under sub-section (1) and the

appropriate Government does not communicate the order granting or

refusing to grant permission to the employer within a period of sixty

days from the date on which such application is made, the permission

applied for shall be deemed to have been granted on the expiration of

the said period of sixty days.

(4) An order of the appropriate Government granting or refusing to

grant permission shall, subject to the provisions of sub-section (5), be

final and binding on all the parties and shall remain in force for one year

from the date of such order.

(5) The appropriate Government may, either on its own motion or on

the application made by the employer or any workman, review its order

granting or refusing to grant permission under sub-section (2) or refer

the matter to a Tribunal for adjudication:

Provided that where a reference has been made to a Tribunal under this

sub-section, it shall pass an award within a period of thirty days from

the date of such reference.

(6) Where no application for permission under sub-section (1) is made

within the period specified therein, or where the permission for closure

has been refused, the closure of the undertaking shall be deemed to be

illegal from the date of closure and the workmen shall be entitled to all

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the benefits under any law for the time being in force as if the
undertaking had not been closed down.

(7) Notwithstanding anything contained in the foregoing provisions of

this section, the appropriate Government may, if it is satisfied that

owing tosuch exceptional circumstances as accident in the undertaking

or death of the employer or the like, it is necessary so to do, by order,

direct that the provisions of sub-section (1) shall not apply in relation to

such undertaking for such period as may be specified in the order.

(8) Where an undertaking is permitted to be closed down under

subsection (2) or where permission for closure is deemed to be granted

under sub-section (3), every workman who is employed in that

undertaking immediately before the date of application for permission

under this section, shall be entitled to receive compensation which shall

be equivalent to fifteen days’ average pay for every completed year of

continuous service or any part thereof in excess of six months.

In S. G. Chemicals and Dyes Trading Employees Union v. S. G.

Chemicals and Dyes Trading Limited and Others, the respondent

company was engaged in business of pharmaceuticals etc. and was

operating in Bombay through three Divisions situated at different places.

The pharmaceuticals, the Dyes, and the Marketing and Sale Divisions

situated at Worly, Trombay and Churchgate respectively. The registered

officer of the Company was situated at Churchgate. The Company gave

notice to the Government under Section 25-FFA (1) of its intention to

close down its Marketing and Sales Division employing 90 workmen at

Churchgate. Copies of the said notice were sent to the Commissioner of

Labour, Maharashtra and the Union. Pursuant to this notice the Division

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of Churchgate was closed down and the Company agreed to pay

compensation under Section 25-FFF of the Industrial Disputes Act, 1947.

The Union protested against the termination of the services of the

workmen and complained that the closure was contrary to the

provisions of Section 25-O of the Industrial Disputes Act, 1947 and the

Company had committed unfair labour practice under the Maharashtra

Recognition of Trade Unions and Prevention of the Unfair Labour

Practice Act, 1971. The union contended that for the purpose of Section

25-O all the workmen working in all three divisions of the Company

should be taken into consideration as there was functional integrity

amongst all the three Divisions. It was held that the Section 25-O

applies to the closure of undertaking of an industrial establishment and

not to the closure of an industrial establishment. It also does not require

that an undertaking of an industrial establishment should also be an

‘industrial establishment’.

‘Undertaking’ means part of an ‘industrial establishment’.

Undertaking and industrial establishment’. Undertaking and industrial

establishment taken together constitute one establishment. Section 25-

O would apply to the closure of an undertaking provided the condition

laid down in Section 25-K is fulfilled. Further undertaking of an industrial

establishment need not to be a factory. Consequently it was held that

the closure of the Churchgate division was illegal as it was in

contravention of the provisions of Section 25-O and the workmen

whose services were terminated on account of such illegal closure are

entitled to receive their full salary.

Award

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The Industrial Dispute Act, 1947 which extends to the whole of

India came into operation on the first day of April 1947. As per

Preamble of the said Act, it is enacted to make a provision for the

investigation and settlement of the dispute and certain other purposes

such as recovery of money from the employer in terms of Settlement or

Award by making an application to the appropriate government. The

purpose and aim of the Industrial Disputes Act 1947 is to minimize the

conflict between labour and management and to ensure, as far as

possible, Economic and Social Justice. The act has made comprehensive

provisions both for this settlement of disputes and prevention of

disputes in certain Industries.

Award means an interim or a final determination of any industrial

dispute or of any question relating thereto by any Labour Court,

Industrial Tribunal or National Industrial Tribunal and includes an

arbitration award made under Section 10-A.

Definition of Award

Section 2(b) of the Industrial Dispute Act, 1947 defines Award as follows

- According to Section 2(b) of the Industrial Disputes Act, 1947 ‘Award’

means an interim or a final determination of any Industrial Dispute or of

any question relating thereto by any Labour Court, Industrial Tribunal or

National Industrial Tribunal and includes an arbitration award made

under section 10A.

Ingredients of Award

To constitute Award under Section 2(b) of the Industrial Dispute Act,

1947 the following ingredients are to be satisfied-

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(a) An Award is an interim or final determination of an industrial dispute.

(b) It is an Interim or final determination of any question relating to such

dispute.

(c) Such interim or final determination is made by any Labour Court,

Industrial Tribunal or National Industrial Tribunal.

(d) Award (Judgement) of Arbitrators under section 10A is an award.

Strike and Lockout

Introduction

Collective bargaining is a mechanism through which employers

(organizations) and trade unions can agree on fair compensation and

working conditions. It is also a base for establishing appropriate labour

relations.

Strike is a vital part of the collective bargaining process because it

evaluates the economic bargaining power of each party involved and

compels both parties to understand, realise, and evaluate the necessity

it has for each other’s contribution. As the strike continues, both the

parties bear losses- the savings of the employees involved in the strike

continue to reduce, while the organization also bears huge losses due to

the stoppage of production which affects the bottom line.

Lockout is exactly the opposite of strike. Strike is a weapon that is

in the hands of the workers to force the employer to agree on their

demands. Similarly, a lockout is a weapon in the hands of the

management to compel the workers to further negotiate on their

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demands relating to the conditions of employment, in the favour of the

employer.

Strike

Right to strike is recognized globally. Article 19(1) the

Constitution of India 1949 guarantees the protection of certain

freedoms as fundamental rights.

All citizens shall have the right:

 To freedom of speech and expression;

 To assemble peaceably and without arms;

 To form associations or unions;

 To move freely throughout the territory of India;

 To reside and settle in any part of the territory of India; and

 To practise any profession, or to carry on any occupation, trade or

business

However, strike is not expressly recognized in the Constitution of

India. The Supreme Court settled the Case of Kameshwar Prasad v. The

State of Bihar on 7 July 1958 by stating that strike is not a fundamental

right. Government employees have no legal or moral rights to go on

strikes.

India recognized strike as statutory right under Industrial Disputes

Act, which came into force on April 1, 1947. Prior to Industrial Disputes

Act, 1947, India had enacted its first industrial disputes legislation i.e.

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Employer & Workmen Disputes Act, 1869 and subsequently Trade

Disputes Act, 1929 and Rule 81A of Defense of India Rules.

Experiences from Employer & Workmen Disputes Act, 1869 reveal

that this act was much against the workers. Trade Disputes Act, 1929
had brought in a special provision of strikes, however, such legislation

could not establish peace in the industries due to strike problems and

disputes kept on continuing. Further to overcome this, Rule 81A of

defense rule was brought in during the Second World War. After the

Second World War Industrial Disputes Act, 1947 came into the picture

to sort out the disputes in industries. Its applicability is extended to the

whole of India. It is applicable to existing industry and not on dead

industries.

Meaning of Strike

As per Cambridge Dictionary “Strike is to refuse to continue

working because of an argument with an employer about working

conditions, pay levels, or job losses”.

A strike is a stoppage of work initiated by the refusal of most

workers to perform their work. A strike is usually a consequence that

happens due to grievances that are not addressed by the employer on a

timely basis.

Strikes became a popular phenomenon at the time of the

Industrial Revolution when mass workers became vital in factories and

mines. In most nations, strike actions were quickly made illegal, as

employers comparatively had more political power than the employees.

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The right to strike by employees or workers is a well-recognised

tool that is available to workers to negotiate with the employer and

force the employer to agree on their demands. In our daily lives, very

frequently we see news regarding workers going on strikes so that their

demands in regards to their wages, benefits and working conditions are

accepted by their employer.

General Meaning

A strike is a powerful weapon used by trade unions or other

associations or workers to put across their demands or grievances by

employers or management of industries. In another way, it is the

stoppage of work caused by the mass refusal in response to grievances.

Workers put pressure on the employers by refusal to work

till fulfilment of their demands. Strikes may be fruitful for workers’

welfare or it may cause economic loss to the country.

Types of Strikes

Based on the phenomena of strikes around the world, strikes can

be categorised into economic strike, sympathy strike, general strike, sit

down strike, slow down strike, hunger strike and wildcat strike have

been experienced.

 Economic Strike: Such strike happens due to economic demands

like increment of wages and allowances like house rent allowance,

transport allowances, bonus etc.

 Sympathy Strike: In such strike union or workers of one industry

join the strikes already hailed by other union or workers.

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 General strike: This strike intended to increase the political pressure

in the ruling party by all unions or members in a region or state.

 Sit down strike: In such case, workers hold strikes at the workplace

and none of the workers stays absent from duty but they all refuse
to work till their demands are fulfilled.

 Slow down strike: It means workers or unions don’t refuse to work

but put pressure on industries to get their demand by reducing or

restricting the output of the production of an industry.

 Hunger strike: It is one of the painful strikes by the striker where

workers go on strike without having food/water to redress the

grievances. The employees of Kingfisher airlines went on hunger

strikes for salary dues of several months.

 Wildcat strike: Such strike happens by the workers without the

consent of union and authority. In 2004, advocates went on wildcat

strike at civil courts in Bangalore to protest the remarks allegedly

made by an assistant commissioner against them.

Significant case laws

In the case of TISCO Ltd vs Workmen, the verdict was that if the

employer replaces the weekly day-off Sunday with another day-off

without notifying the workmen in advance then such change will not be

considered as a legal change. Therefore, the refusal of workmen to work

on the day-off which was not a Sunday did not amount to strike.

In the case of North Brook Jute Co. Ltd. vs Workmen, the verdict

was that when a scheme was introduced in contradiction to Section

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33 of the Industrial disputes Act, 1947 then the refusal to act according
to that scheme would not be considered as a strike.

In the case of Punjab National Bank vs All India Punjab National

Bank Employees’ Federation, the verdict was that a pen-down strike

would be considered as a strike because here the workers do enter the

work or office premises but do not agree to perform their work.

In the case of T.K. Rangarajan vs Government of Tamil Nadu, the verdict

was that the right to strike is not a fundamental right. In addition, it is

also neither legal nor a statutory right. A similar thing was recognised

in the case of B.R. Singh vs Union of India.

Lockout

A lockout is a work stoppage or denial of employment initiated by

the management of a company during a labour dispute. In contrast to a

strike, in which employees refuse to work, a lockout is initiated by

employers or industry owners.

Lockout is the opposite of a strike. Strike is a tool in the hands of

the workmen to compel the management to agree to their demands.

Similarly, lockout is a tool in the hands of the management to force the

workmen to further negotiate on their demands which are related to the

terms and conditions of the workers’ employment.

As per the Industrial Disputes Act, 1947, Lock-out means the

temporary closing of a place of employment, or the suspension of work,

or the refusal by an employer to continue to employ any number of

persons employed by him.

This definition consists of the following three components of a lockout:

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 Temporary closing of a place of employment; or

 Suspension of work, or

 Refusal to continue to employ any number of persons employed by

the employer.

When a lockout takes place, the workers are asked by the

management to stay away from work, and therefore, they are not

obliged to attend work.

Lock-out, When Legal

The Act treats strikes and lock-out on the same basis; it treats one

as the counter part of the other. (Mohammed Sumsuddin), the

circumstances under which the legislature has banned strike, it has also

at the Same time banned the lock-out. Thus what holds good-bad;

legal-illegal, justified unjustified for strikes, holds the same for the lock-

out. As such, the provisions of the Act which prohibit the strike also

prohibits the lock-out.

The object and reasons for which the Lock-out are banned or

prohibited are the same for which strikes are banned or prohibited. It is

because the Employer and the Employees are not discriminated in their

respective rights in the field of industrial relationship between the two.

As such, lock-out if not in conflict with Section 22 and 23 may be said to

be legal or not legal. Sections 24(1) (iii), 10(3) and 10A (4A) similarly

controls the lock-out. A lock-out in consequence of illegal strike is not

deemed to be illegal. But if lock-out is illegal, Section 26(2), 27 and 28

will come in operation to deal with the situation. The Act does not lay

down any guidelines to settle the claims arising out of illegal lock-out.

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The courts, therefore, have adopted the technique of apportioning the

blame between the Employer and employees. This once again brings to

the fore the concept of justifiability of lock-out.

The Statutory Definition

Section 2(1) of the Industrial Disputes Act, 1947 defines Lock-out

to mean: The temporary closing of employment or the suspension of

work, or the refusal by an employer to continue to employ any number

of persons employed by him. A delineation of the nature of this weapon

of industrial warfare requires description of:

(i) the acts which constitute it;

(ii) the party who uses it;

(iii) the party against whom it is directed; and

(iv) the motive which prompts resort to it.

Prohibition of Lockout

In the similar circumstances the lockout has been prohibited in

the public utility service. Section 22 (2) of the Act provides that no

employer carrying on any public utility service shall lock out any of his

workmen:

1. Without giving them notice of lockout as hereinafter provided, within

six weeks before locking out; or

2. Within 14 days of giving notice; or

3. Before the expiry of the day of lockout specified in any such notice as

aforesaid; or

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4. During the pendency of any conciliation proceedings before a

Conciliation Officer and seven days after the conclusion of such

proceedings.

Case laws

 In the case of Shri Ramchandra Spinning Mills vs State of Madras, it

was seen that if the employer closes his place of business as a

means of reprisal or as an instrument of coercion or as a mode of

exerting pressure on employees or generally speaking when his act

is what may be called an act of belligerency there will be a lock-out.

 In the case of Lord Krishna Sugar Mills Limited Saharanpur vs State

of UP, the verdict was that a lock-out may sometimes be not at all

connected with economic demands; it may be resorted to as a

security measure.

 In the case of Lakshmi Devi Sugar Mills Limited vs Ram Sarup, the

verdict was that in the case of lockout there is neither alteration to

the prejudice of workmen of the conditions of the service

application to them nor a discharge or punishment whether by

dismissal or otherwise.

Provision of Illegal Strike and Lockout under the Act

As per the Section 24 of the Act provides that a strike or a lockout shall

be illegal in the following cases:

 Declared in contravention of Section 22 or Section 23.

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 Continued in contravention of the prohibitory order performed by

appropriate Government after the dispute has been stated under

Section 10(3).

Prohibition of financial support to illegal strikes and lockouts under

Section 25

This section of the Act prohibits financial support to illegal strikes

and lockouts. This section has the following conditions:

 Spending or applying for money.

 Money spent or applied in direct progress or support of an illegal

strike.

Penalties for Illegal Strikes and Lock-outs

 In case of any workman who continues with the illegal strikes

specified under this act will be punishable with imprisonment for

one month or more and also with the fine of Rs.1000 or with both.

 In case of any employer who continues with the illegal strikes

specified under this act will be punishable with imprisonment for

one month or more and also with the fine of Rs.1000 or with both.

Conclusion

Thus, we can conclude that Strikes and Lockouts are effective

weapons for both employers and employees who are engaged in the

process of Collective Bargaining, provided that such weapons are

utilized lawfully and ethically.

India in the present context of economic development programs

cannot afford the unqualified right to the workers to strike or to the

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employer to lock-out. Compulsory arbitration as an alternative to

collective bargaining has come to stay. The adoption of compulsory

arbitration does not, however, necessarily mean denial of the right to

strike or stifling of the trade union movement. If the benefits of

legislation, settlements and awards are to reach the individual worker,

not only the trade union movement has to be encouraged and its

outlook broadened but the laws have also been suitably tailored.

The existing legislation and judicial pronouncements lack the

breadth of vision. Indeed, the statutory definitions of strike and lock-out

have been rendered worse by a system of interpretation that is devoid

of a policy-oriented approach and which lays undue stress on semantics.

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Unit-III

Authorities under the ID Act – Works committee – Conciliation - Court

of inquiry- Labour Courts- Tribunal – Powers and functions of
authorities - Voluntary Arbitration - Provisions under Chapter V-A & V-
B of the Act- Alteration of conditions of service – Management rights
of action during pendency of proceedings – Recovery of money due
from employer – Unfair labour practices - miscellaneous provisions of
the Act.

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Authorities under the ID Act

The Act empowers the Government to refer the dispute to an

appropriate authority, i.e., Labour Court, Industrial tribunal and National

tribunal depending upon the nature of the dispute either on its own or
on the request of the parties.

Chapter II of the Industrial Disputes Act, 1947 deals with the

authorities uunder this Act.The following are the authorities specified

under the Industrial Dispute Act.

 Works Committee. (S.3)

 Conciliation Officers. (S.4)

 Board of Conciliation. (S.5)

 Court of Inquiry. (S.6)

 Labour Court. (S.7)

 Industrial Tribunal. (S.7A)

 National Tribunal. (S.7B)

Section 7C of the Act deals with disqualifications for the presiding

officers of Labour Courts, Tribunals and National Tribunals. Any person

shall be appointed as a Presiding Officer if he is independent ans has

attained the age of sixty-five years.

Section 8 of the Act deals with filling of vacancies in the Labour

Courts, Tribunals or National Tribunals. It states that whenever any

vacancy occurs in the office of Presiding officer or of chairman or any

other member of a Board or Court, then the Central Government (in

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case of National Tribunal) or the appropriate Government (in any other

case), shall appoint another person to fill the vacancy, in accordance

with the provisions of this Act.

Section 9 of the Act deals with Finality of orders constituting

Boards, etc. It states that the orders of the Government appointing any

person as the Chairman or any member of a Board or Court or as a

Presiding Officer, shall be called in question in any manner. Any act or

proceeding before any Board or Court shall not be called in question in

any manner on the ground merely of the existence of any vacancy in

such Board or Court, or defect in the constitution of such Board or Court.

Any settlement arrived at in the course of a conciliation

proceeding shall be valid even such settlement was arrived at after the

expiry of the prescribed period. Where the report of any settlement

arrived at in the course of conciliation proceeding before a Board is

signed by the chairman and all the other members of the Board, no

such settlement shall be invalid by reason only of the casual or

unforeseen absence of any of the members of the Board including

Chairman, during any stage of the proceeding.

1. Works Committee:

The works committee is considered to be a powerful social

institution only to secure cooperation between workers and employers,

but to make the will of the employees effective on the management.

According to section 3 of the Industrial Disputes Act, in case of an

industrial establishment which contains 100 or more workmen are

employed or have been employed on any day in the preceding twelve

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months, the appropriate Government by ordinary or particular order,

acquire the employer to build a works committee containing of

representatives of employers and workmen engaged in the

establishment. The number of representatives of workers on Works

Committee should not be less than the number of representatives of the

employers.

The Act stipulates:

In the case of any industrial establishment in which one hundred

or more workmen are employed or have been employed on any day in

the preceding twelve months, the appropriate Government may by

general or special order require the employer to constitute in the

prescribed manner a Works Committee consisting of representatives of

employers and workmen engaged in the establishment so however that

the number of representatives of workmen on the Committee shall not

be less than the number of representatives of the employer. The

representatives of the workmen shall be chosen in the prescribed

manner from among the workmen engaged in the establishment and in

consultation with their trade union, if any, registered under the Indian

Trade Unions Act, 1926 (16 of 1926).

The Need for Works Committee Procedure

 The need for the works committee procedure is to reduce the

material differences between both parties.

 This committee looks after maintaining a healthy relationship

between the employer and the employees through the collective

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efforts of both parties. It also aims at improving industrial peace and

works on matters involving general peace and work-related issues.

Features of Works Committee

Some of the common features of the works committee procedure

are:

 The number of members in the committee should be fixed and not

more than 20. Here, it is also specified that the members of

employers should not be more than members of employees.

 The representatives from the employer’s side should be selected

with the consent of the employer and these people should be

associated with the organization directly.

 Before the formation of the works committee, the employer should

inform the union if they have one. Further, during elections, two

groups should be formed: one of the union members who want to

be a part of the committee and other non-union members.

 The candidates added to the committee should have worked with

the company for at least 1 year and should have attained a

minimum age of 19 years.

 The voters who are voting for committee members should be at

least 18 years of age and must have worked in the company for

atleast 6 months.

 The Central Government or the equivalent authority holds the right

to dissolve this committee if they feel it is not constituted as per the

guidelines.

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Responsibilities of Work Committee

 To promote measures for securing and preserving good relations

between the employer and the workmen.

 To communicate upon subjects of their common interest or concern.

Conclusion

The works committee is important in industrial organization.

Hence, it should be constituted with proper guidelines as laid out by the

government.

2. Conciliation Officers:

The appropriate government will appoint conciliation officers

charged with the duty of mediating in and promoting the settlement of

the industrial disputes. Those conciliation officers are appointed for a

specified area or a specified industry in a specified area, and his

appointment may be permanent or temporary.

Conciliation refers to the reconciliation of the interests or

differences of the two parties. It is a process through which each of the

parties first appoints their representatives. These representatives are

brought before a third party. The mutual discussion takes place between

the representatives of workers and employers so that they can be

persuaded to come to a common solution. An alternative name for this

process is known as mediation. The third party can be an individual or a

group of people.

Functions of this mediator include-

 Remove the differences between the two parties.

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 Persuading the two parties to think in a manner that is based on

an approach of give and take i.e. a problem-solving approach

 Persuade both the parties to necessarily reach a solution and

refrain from imposing his viewpoint

 Change his approach depending on the need in each case and

depending upon other factors.

Conciliation under the Industrial Disputes Act

Under the Industrial Disputes Act, 1947, conciliation consists of

the following machinery:

Conciliation Officer – Section 4 of the Industrial Dispute Act, 1947

deals with the appointment of such person as a conciliation officer, as

the government may deem fit. The powers of such conciliation officers

are same that of a civil court. It is expected out of him to give a

judgement within 14 days of commencement of conciliation

proceedings. The judgement given by such a person shall be binding on

both the parties. The functions of Conciliation officer consists of:

 Hold Conciliation proceedings in order to reach a settlement

between the two parties;

 Investigate into the matter and bring about settlement;

 Send a report and memorandum of settlement to the appropriate

government;

 In cases where no settlement could be reached then send a report

and memorandum of settlement to the government stating the

steps taken by him or her;

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 Refrain from forcing a settlement

 In cases where the conciliation process in progress, the Industrial

Disputes Act, prohibits strikes and lockouts.

Responsibilities of Conciliation Officers

 In case of any industrial disputes exist, the conciliation officer should

maintain conciliation proceedings in a prescribed manner without

delay to have the right settlement.

 Whether the settlement is reached or not, the conciliation officer has

to submit the report within 14 days of the commencement of the

conciliation proceedings or within the date fixed by the appropriate

government.

 If the report proposed in satisfied to the respective Government, it

may refer or not refer the dispute to any concerned authority under

the Act. If the Government is not performing any endorsement, it

should record and communicate the reason to the relevant parties.

 The duty of a conciliation officer is administrative and not judicial.

3. Board of Conciliation:

Similarly, a board of conciliation also be constituted to promote

the settlement of industrial disputes. A board should consist of a

chairperson and two or four other members, as the appropriate

government thinks fit.

The chairman should be an independent person, and the other

member should be a person appointed in equal numbers to represent

the parties to the dispute on the recommendation of the parties

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concerned. If any party refuses to make a recommendation within the

prescribed time, then the appropriate government can appoint such

persons eligible to represent the party.

Board of Conciliation- In cases where the conciliation officer fails

to resolve the disputes between the two parties concerned, the

appropriate government, under Section 5 of the Industrial Disputes Act

may set up a Board of Conciliation for such purposes. Unlike the

conciliation officer, this board is not permanent in its existence. It is

created for ad hoc purposes and consists of a chairman and either two

or four members nominated on an equal basis by both the parties. The

power of this body is same as that of the Conciliation officer i.e. of a civil

court but it admits only those matters that are recommended by the

government. The duration in which the board is required to give its

judgement is within two months from the date on which the matter is

referred to it.

In the Indian matrix, settlement of disputes by the Board of

Conciliation is done very rarely whereas the settling of disputes by a

Conciliation officer is more prevalent and also flexible.

Responsibilities of Board of Conciliation

When a dispute has been proposed to a Board, the board will

investigate the matter affecting the merits and right settlement of the

dispute without delay.

 Whether settlement reached or not, the Board must submit the

report within two months of the date on which the dispute was

proposed to it.

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 If no settlement has arrived, the Government may refer the dispute

to the labour court, Industrial Tribunal or National Tribunal.

 The time for submission of the report will be extended by the period

as agreed by all the parties to the disputes

 The report of the Board should be in the written notice and has to

be signed by all the members of the Board.

 The appropriate Government should publish the report submitted

within 30days from the receipt

 A Board of Conciliation only has the power to bring about a

settlement. It has no authority to impose a settlement on the parties

to the dispute.

4. Courts of Inquiry:

The section 6 of the act further talks about the constitution of the

court of inquiry in order to conduct inquiry upon the matter in dispute.

The appropriate government will constitute a court of inquiry consisting

thirteen of one or more independent persons to inquire into any subject

connected with or relevant to an industrial dispute where a court

consists of two or more members any one of them will be appointed as

chairman.

Responsibilities of Courts of Inquiry

 A Court will inquire into the request raised to it and report to the

appropriate government within six months from the commencement

of the inquiry.

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 The report of the court will be in the form of a written statement and
signed by all the members of the court.

 Members are free to record their dissent. The report submitted will

be published within 30 days of its receipt by the Government.

5. Labour Courts:

The appropriate government will constitute one or more labour

courts to adjudicate industrial disputes relating to any of the following

entities.

 The propriety or legality of an order passed by an employer under

the standing orders.

 The application and interpretation of standing orders.

 Discharge or dismissal of workers, including the retirement, grant of

relief to workers wrongfully dismissed.

 Withdrawal of any customary concession or privilege.

 The appropriate government will appoint a labour court which

consists of one person with the necessary judicial qualifications and

will be appointed by the appropriate government.

Section 7 of the act talks about the constitution of the labor court

by the appropriate government. It can create one or more labor court as

it thinks fit for the adjudication of industrial dispute as specified under

schedule II. It consists of one person to be appointed by the appropriate

government. The qualifications of the presiding officer of the court shall

be as follows:-

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a) if he is or has been a judge of the high court

b) he has for a period of not less than 3 years being a district judge or

an additional district judge

c) has held judicial office for not less than 7 years

d) he has been the presiding officer of a Labor Court constituted under

any Provincial Act or State Act for not less than five years.

e) he is or has been a Deputy Chief Labor Commissioner (Central) or

Joint Commissioner of the State Labor Department, having a degree in

law and at least seven years' experience in the labor department

including three years of experience as Conciliation Officer.

f) he is an officer of Indian Legal Service in Grade I with years'

experience in the grade.

Responsibilities of Labour Courts

 Adjudicate upon the industrial disputes regarding any subject

specified in the Second Schedule.

 When an industrial dispute has been proposed to a Labour Court for

adjudication, within the specified period, it should submit award to

the appropriate Government.

 The appropriate Government will publish it within 30 days from the

date of its receipt.

6. Industrial Tribunals:

Tribunals:

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Section 7A deals with the provision of constitution of the one or

more tribunal for the adjudication of dispute relating to the aspects as

mentioned in schedule second or third. tribunal to consist of one person

who shall be appointed by appropriate government.

The qualifications of the presiding officer of the tribunal are as follows:-

a) he is, or has been, a Judge of a High Court;

b) he has, for a period of not less than three years, been a District Judge

or an Additional District Judge;

c) he is or has been a Deputy Chief Labor Commissioner (Central) or

Joint Commissioner of the State Labor Department,, having a degree in

law and at least seven years' experience in the labor department

including three years of experience as Conciliation Officer:

d) he is an officer of Indian Legal Service in Grade III with three years'

experience in the grade.

The appropriate government to appoint two persons as assessors

to advise the tribunal. The appropriate Government by notification in

the legal Gazette will constitute one or more industrial tribunals for the

adjudication of industrial disputes relating to any matters specified

above as in the case of Labour Court, or the following matters, namely

 Wages include the period and mode of payment

 Compensatory and other allowances;

 Hours of work and rest intervals.

 Leave with wages and holidays.

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 Bonus, profit sharing, provident fund and gratuity.

 Shift working otherwise than by standing orders.

 Rules of discipline

 Rationalisation

 Retrenchment of workers and closure of establishment and

 Any other subject which is prescribed.

 Responsibilities of Industrial Tribunals

 It should submit its request to the appropriate Government within a

specified period if an industrial dispute is proposed to an Industrial

Tribunal.

 The request should be in written format and also be signed by its

presiding officer.

 The request made should be published by the appropriate

government within 30 days in a prescribed manner.

 Then the judicial body needs to serve notice upon the parties to the

reference by name before making any request.

7. National Tribunal:

Section 7B deals with the national tribunal which is appointed by

the central government. The Central Government by notification in the

legal Gazette, constitute one or more National Industrial Tribunals for

the adjudication of industrial disputes in the opinion of the Central

Government involve questions of the national importance of industrial

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establishments situated in more than one State are likely to be

interested or affected by such disputes.

A National Tribunal will consist of one person to be appointed by

the Central Government. To be qualified as a Presiding Officer of a

National Tribunal, a person must be or must have been a Judge of a

High Court, or must have held the office of the Chairman or any other

member of the Labour Appellate Tribunal for at least two years. The

Central Government may appoint two assessors to advise the National

Tribunal, in proceedings before it.

Responsibilities of National Tribunals

 When an industrial dispute is requested to the National Tribunal for

adjudication, it should submit its request to the appropriate

government.

 The request should be in written format and also be signed by the

presiding officer of the National Tribunal.

 It should publish the request made within a period of 30days from

the date of its receipt by Central Government.

Procedure, Powers and Duties of Authorities

(S.11)

(1). Notice to enter premises:

An appeasement official or an individual from the board, may with the

end goal of an investigation into any current or captured industrial

dispute, in the wake of giving sensible notice, enter the premises

involved by any foundation to which the question relates.

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(2). Production of documents before Tribunals:

An appeasement official may implement the participation of any

individual with the end goal of assessment of such individual or call for

and review any archive which he has ground for considering to be

important to the industrial question.

(3). Cost:

The council, national council or work courts, all things considered, will

have full capacity to decide by who and whom and to what degree and
subject to what conditions, assuming any, such expenses must be paid,

and to give every single essential bearing for the reasons previously

mentioned and such expenses may, on application made to the fitting

government by the individual entitled, can be recovered by that

legislature in a similar way as an arrear of land income.

(4). Granting of adjournments:

A bench of judges in the national tribunal, courts, labour courts,

tribunals will grant the adjournment notice to the respective parties.

(5). Powers of the Tribunal

Each board, court, work court, council and the national council have the

power will have similar forces vested in a common court under common

court of procedure, 1908, when attempting to document a suit, in

regard of the accompanying issues specifically

 Authorizing the participation of an individual and inspecting him on

vow

 Convincing the creation of reports and material objects

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 Giving commissions for the assessment of witness

In regard of such different issues as might be endorsed; and each

request or examination by a board, court, work court, council or national

court, will be esteemed to be a legal proceeding inside the Sections 193

and 228 of the Indian penal code (45 and 1860).

(6). Fixation of wage structure

He who draws compensation and works of supervisory limit, he draws

compensation surpassing 1600 for each month or Activities, either

commonly of obligations connected to him by the workplace or by the

power vested in him, works basically of an administrative sort.

(7). Retirement age on account of industrial workers:

Retirement of the workman on arriving at the time of superannuation if

the contract between the business and the worker comprises of a

stipulation for that sake.

(8). Incentive Payment Scheme:

Incentives are given to those who are wrongfully terminated of the

services.

(9). Jurisdiction to decide the dispute in respect of closure of

factory

Courts can also resolve disputes in the cases of closure of factory

based on all of the right facts as regardless of the closure of the factory

as an individual or a party’s right must be served.

(10). Power of the Tribunal to interfere with the Action taken by

the management

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Tribunal can also interfere with anything wrong done by the

management only under court supervision.

(11). Power of Labour Court

The labour court may by the notification given in the official gazette,

shall decide industrial disputes by adjudication according to the second

schedule.

(12). Finding of fact by Labour Court: A labour court can also find the

facts by formal investigation.

(13). Power of High Court to issue a writ against decisions of the

Tribunal: High court can also issue a writ against decisions of the

tribunal if an official appeal is made.

(14). Special leave under Article 136 of the Constitution against the

decision of the Industrial Tribunal: Special leave petition means any

person who wants to be heard in the case of any tribunal/national

tribunal verdict.

Section 11-A: Powers of Labor Courts, Tribunals and National Tribunals

to give appointment alleviation if there should arise an occurrence of

release or expulsion of workers

Intensity of work courts, councils and national courts to give

fitting help on account of release of workers. Where an industrial case

identifying with release and expulsion of a workman in labor court,

council, court or national council and on account of settling procedures,

the court, the court or the national council, by and large, in the event

that they imagine that the release or rejection of the workman was

treacherous, it might, by its reward, put aside request of remuneration

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or do a legitimate restoration of the workman on such terms and

conditions.

Voluntary Arbitration

Arbitration is in some terms similar to Conciliation. In this method

of dispute resolution also, the unresolved dispute is referred by the

parties to a dispute to a third party who stands to be neutral and is

commonly known as the arbitrator. This method is different from

conciliation because the judgement is given by the third party in the

former whereas parties themselves come to an agreement in the latter

category.

Unlike judges, the arbitrators do not enjoy judicial powers. The

function of an arbitrator is to listen to the viewpoints of both the parties

and then deliver his judgement. The decision is sent to the government

who publishes it. The judgement becomes enforceable and binding on

both the parties.

Arbitration is of two kinds: (i). Voluntary arbitration and (ii).

Involuntary arbitration.

(1). Voluntary Arbitration

It includes those situations where the two parties to a dispute

mutually agree to refer their matter to a third party. One drawback of

this method of arbitration is that the judgement would not necessarily

become binding on both the parties. In India, there are lot of factors

that work against the successful working of voluntary arbitration such as

legal obstacles, limited availability of trained arbitrators, scarcity in the

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amount of confidence in the eyes of general public, complicated

procedure, lack of appellate procedure in case of non-satisfaction of the

award, absence of recognised unions which could bind the workers.

According to Section 10-A of the Industrial Disputes Act, 1947, in

cases where the conciliation process fails, then it is advised that the

parties opt for voluntary arbitration.

Arbitration is voluntary when it can be set in motion only with the

agreement of the parties, and compulsory when it can be invoked by

either party or the government at its own initiative. However, the

submission of interests disputes to compulsory arbitration is not

common, except in essential services.

(2). Compulsory Arbitration:

In cases where the government instructs the two parties to opt for

the process of arbitration. The judgement produced by the arbitrator is

binding on both the parties.

The disputes which are resolved by way of arbitration have certain

advantages such as it ensures the two parties that they have faith in

each other, the process is informal and flexible and nature, arbitration

provides justice at minimum cost and time, lastly mutual consent leads

to building of trust and healthy relations between the two parties.

Arbitration Agreements

If the parties to a dispute agree that the dispute is to be referred

to an arbitrator, they can make a written agreement for it. The parties

need to enter into an arbitration agreement in the prescribed form.

Name of the arbitrator to whom the matter will be referred to should be

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specified and a copy of such an agreement must be sent to appropriate

government which shall then be published in an official gazette.

Reference to more than one arbitrator can also be made. In such a case

each arbitrator needs to act on an individual basis.

Moreover, in order to make a reference of a dispute to the

arbitrator it is necessary that the dispute in question be an industrial

one otherwise, the reference would cease to be competent. In cases

where the dispute is referred to an arbitrator, under Section 10-A, it

cannot be further referred to a tribunal or a court for adjudication.

Section 11 states that the arbitrator can proceed with the

arbitration process with his own procedure as he may think fit provided

that such procedure is not against the principles of natural justice. The

industrial dispute referred to an arbitrator can be investigated and

adjudicated as per the arbitration agreement and should be published

by the government.

The arbitration referred to under the Section 10 shall not be

affected by any of the provisions of the Arbitration Act, 1940.

As far as the judicial review of an award of an arbitrator is

concerned, the Supreme Court has held that an arbitrator’s award

cannot be against the provisions laid down by the legislation and if not

then it would be rendered illegal. In Engineering Mazdoor Sabha v. Hind

Cycles Ltd, the Supreme Court has held that a writ can lie against an

arbitrator under Article 226 of the Indian Constitution.

Provisions under Chapter V-A & V- B of the Act

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Chapter V-B was added in the Industrial Disputes Act, 1947

through amendment under Article 32 of the Constitution. This chapter

deals with the special provisions relating to lay-off, retrenchment and

closure in certain establishments. Chapter V-B includes Section 25-K to

Section 25-S of the Industrial Disputes Act, 1947.

The act was implemented to provide for machinery and

procedure for the investigation and settlement of industrial disputes,

applicable to all irrespective of size and sector. It even has provisions

regarding conditions for layoffs, retrenchment (reduction in the size of

operations) and closure of industry.

This clause arises controversy regarding the act, particularly as per

Chapter V-B. There have been multiple amendments that have been

made over the years for this clause. The chapter states the following:

If an industrial establishment employs more than 50 persons, it

needs to give 60 day’s notice, citing reasons of closure to the

appropriate government before the closure of the industry. It was

increased to 90 days in 1982.

If the establishment employs more than 300 employees, it must take

prior approval of the proper government authority regarding approval

for layoffs, retrenchment and closure. This limit was lowered to 100

employees in the 1982 amendment.

These two provisions of Chapter V-B of the Industrial Disputes Act are

interpreted as rigidity in the labour market. The main objective of this

provision is to ensure that an employer cannot hire or fire andy

employee at will. To take any such action, they need to seek permission

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from the labour commissioner. This subject is also under the concurrent
list which is why individual states have made even stricter rules and

conditions so that the lay off, retrenchment and closure become even

more difficult.

As a result, it has caused the following problems in the labour industry:

 Lower output by labour

 Lower productivity

 Hesitation in hiring

 Lower investments

 Lower overall manufacturing performance

 Foreign investors are deterred from investing in India.

Apart from Chapter V-B, Section 9-A is also a cause of concern.

This section says that if employers are modifying the wages and other

allowances, they need to provide the labour commission a notice 21

days in advance. Thus, if employers quickly need to redeploy the

employees to meet certain time-bound targets, this practice disallows

that.

What the industry demands, is that this law needs rationalization

as per the demand of the current era of globalization. It is the

complexity of this act that is generally held responsible for the fact that

only 6% of the total labour force is working in the organised

manufacturing sector and the remaining in employed in the

unorganised sector.

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The challenge for the governments (centre/state) is to make a

delicate balance between labour welfare and industry welfare.

Application of Chapter V-B of Industrial Disputes Act, 1947-

Under Section 25-K of Industrial Disputes Act, 1947 the

application of Chapter V-B dealing with special provisions relating to

lay-off, retrenchment and closure is mentioned. The provision mentions

the area where the Chapter V-B of the Industrial Disputes Act, 1947

applies.

Section 25-K-

(1) The provisions of this Chapter shall apply to an industrial

establishment (not being an establishment of a seasonal character or in

which work is performed only intermittently) in which not less than one

hundred workmen were employed on an average per working day for

the preceding twelve months.

(2) If a question arises whether an industrial establishment is of a

seasonal character or whether work is performed therein only

intermittently, the decision of the appropriate Government thereon shall

be final.

Alteration of conditions of service

Section 33: Conditions of service, etc.to stay unaltered

During the pendency of any such continuing in regard of an

industrial question, the business may, as per the standing requests

material to a workman worried in such case or, where there are no such

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standing requests, as per the particulars of the contract, regardless of

whether express or suggested, among him and the workman-

 adjust, concerning any issue not associated with the question, the

states of service pertinent to that workman preceding the initiation

of such continuing; or

 for any unfortunate behavior not associated with the contest, or

release or rebuff, regardless of whether by rejection or something

else, that workman: Provided that no such workman will be released

or expelled, except if he has been paid wages for one month and an

application has been made by the business to the authority before

which the procedure is pending for endorsement of the action taken

by the business.

Management rights of action during pendency of proceedings

Section 33 of the Industrial Disputes Act, 1947 (the "Act") imposes

prohibition on the employer from altering the terms of service of its

workmen to their prejudice or to terminate their services during the

pendency of any proceedings, including conciliation proceedings, in

respect of an industrial dispute.

The rationale behind Section 33 is simple. No employer takes

kindly to a workman questioning an action taken against him by the

management, particularly by raising an industrial dispute. If a workman

has challenged a disciplinary action taken against him, without regard to

the merits, it is usual for the employer to consider such a workman as a

trouble maker who the employer should rid itself from. Thus, Section 33

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seeks to protect a workman from victimisation by the employer on

account of him having raised an industrial dispute.

Notwithstanding the clear provisions of Section 33, it has taken a

long time to settle the position of law on the same.

During the pendency of any such continuing in regard of an

industrial case, the business may, as per the standing requests

appropriate to a workman, worried in such question or where there are

no such standing offers, as per the terms of the contract, regardless of

whether express or suggested, among him and the workman-

 Modify, concerning any issue associated with the contest, the states

of service pertinent to that workman before the initiation of such

continuing

 For any wrongdoing not associated with the question, or release or

rebuff, regardless of whether by rejection or something else, that

workman: gave that no workman will be released or expelled, except

if he has been paid wages for one month and an application is made

to the business by the authority before which the procedure is

pending for endorsement of the action taken by the business.

Recovery of money due from employer

S.33C.

(1) Where any money is due to a workman from an employer under a

settlement or an award or under the provisions of Chapter VA or

Chapter VB, the workman himself or any other person authorized by

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him in writing in this behalf, or, in the case of the death of the workman,
his assignee or heirs may, without prejudice to any other mode of

recovery, make an application to the appropriate government for the

recovery of the money due to him, and if the appropriate government is

satisfied that any money is so due, it shall issue a certificate for that

amount to the Collector who shall proceed to recover the same in the

same manner as an arrear of land revenue:

PROVIDED that every such application shall be made within one year

from the date on which the money became due to the workman from

the employer:

PROVIDED FURTHER that any such application may be entertained after

the expiry of the said period of one year, if the appropriate government

is satisfied that the applicant had sufficient cause for not making the

application with in the said period.

(2) Where any workman is entitled to receive from the employer any

money or any benefit which is capable of being computed in terms of

money and if any question arises as to the amount of money due or as

to the amount at which such benefit should be computed, then the

question may, subject to any rules that may be made under this Act, be

decided by such Labor Court as may be specified in this behalf by the

appropriate government within a period not exceeding three months:

PROVIDED that where the presiding officer of a Labor Court considers it

necessary or expedient so to do, he may, for reasons to be recorded in

writing, extend such period by such further period as he may think fit.

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(3) For the purposes of computing the money value of a benefit, the
Labor Court may, if it so thinks fit, appoint a Commissioner who shall,

after taking such evidence as may be necessary, submit a report to the

Labor Court and the Labor Court shall determine the amount after

considering the report of the Commissioner and other circumstances of

the case.

(4) The decision of the Labor Court shall be forwarded by it to the

appropriate government and any amount found due by the Labor Court

may be recovered in the manner provided for in sub-section (1).

(5) Where workmen employed under the same employer are entitled to

receive from him any money or any benefit capable of being computed

in terms of money, then, subject to such rules as may be made in this

behalf, a single application for the recovery of the amount due may be

made on behalf of or in respect of any number of such

workmen.Explanation: In this section "Labor Court" includes any court

constituted under any law relating to investigation and settlement of

industrial disputes in force in any State.

Unfair labour practices

Section 25-T:

Prohibition of unfair labor practice:- No employer or workman or a

trade union, whether registered under the Trade Unions Act, 1926, or

not, shall commit any unfair labor practice.

Section 25-U:

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Penalty for committing unfair labor practices:- Any person who

commits any unfair labor practice shall be punishable with

imprisonment for a term which may extend to six months or with a fine

which may extend to one thousand rupees or with both.

A new schedule V has been added by the Industrial Disputes

(Amendment) Act, 1982. In this Schedule, unfair labor practices have

been defined. It contains a list of such practices as are treated unfairly

on the part of the employers or their Trade Unions, or the part of

workmen and their Trade Unions.

Unfair labor practices on the part of employers and trade unions of

employers.

 To interfere with, restrain from, or coerce, workmen in the exercise

of their rights to organize, form, join, or assist a Trade Union or to

engage in concerted activities for collective bargaining or other

mutual aid or protection, that is to say:

 Threatening workmen with discharge or dismissal, if they join a

trade union;

 Threatening a lock-out or closure, if a trade union is organized;

 Granting wage increases to workmen at crucial periods of the

union organizations, undermines the efforts of the trade union at

the organization.

 To dominate, interfere with or contribute support, financial, or

otherwise, to any trade union, that is to say:

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 An employer taking an active interest in organizing a trade union

of his workmen; and

 An employer showing partiality or granting favor to one of

several trade unions 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:

 Discharging or punishing a workman, because he urged other

workmen to join or organize a trade union;

 Discharging or dismissing a workman for taking part in the strike

(not being a strike which is deemed to be an illegal strike under

this act);

 Changing seniority rating of workmen because of trade union

activities;

 Refusing to promote workmen to higher posts on account of

their trade union activities;

 Giving unmerited promotions to certain workmen to create

discord amongst other workmen, or to undermine the strength

of their trade union;

 Discharging office-bearers or active members of the trade union

on account of their trade union activities.

 To discharge or dismiss workmen:

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 By way of victimization;

 Not in good faith, but the colorable exercise of the employer's

rights;

 By falsely implicating a workman in a criminal case on false

evidence or concocted evidence;

 For patently false reasons;

 On untrue or trumped-up allegations of absence without leave;

 In utter disregard of the principles of natural justice in the

conduct of a domestic inquiry or with undue haste;

 For misconduct of a minor technical character, without having

any regard to the nature of the particular misconduct or the

record or service of the workman, thereby leading to

disproportionate punishment.

 To abolish the work of a regular nature being done by workmen,

and to give such work to contractors as a measure of breaking a

strike.

 To transfer a workman mala fide from one place to another, under

the guise of following management policy.

 To insist upon individual workmen, who are on a legal strike to sign

a good conduct bond, as a precondition to allowing them to resume

work.

 To show favoritism or partiality to one set of workers regardless of

merit.

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 To employ workmen as "badlis", casuals or temporaries, and to

continue them as such for years, with the object of depriving them

of the status and privileges of permanent workmen.

 To discharge or discriminate against any workman for filing charges

or testifying against an employer in any inquiry or proceeding

relating to any industrial dispute.

 To recruit workmen during a strike that is not illegal.

 Failure to implement award, settlement, or agreement.

 To indulge in acts of force or violence.

 To refuse to bargain collectively, in good faith with the recognized

trade unions.

 Proposing or continuing a lock-out deemed to be illegal under this

Act.

 Unfair labor practices on the part of workmen and trade unions of

workmen.

 To advise or actively support or instigate any strike deemed to be

illegal under this Act.

 To coerce workmen in the exercise of their right to self-organization

or to join a trade union or refrain from, joining any trade union, that

is to say:

 For a trade union or its members to picket in such a manner that

non-striking workmen are physically debarred from entering the

workplaces;

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 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 managerial staff.

 For a recognized union to refuse to bargain collectively in good faith

with the employer.

 To indulge in coercive activities against the certification of a

bargaining representative.

 To stage, encourage, or instigate such forms of coercive actions as

willful, "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 at the residence 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 to prevent him from attending

work.

Miscellaneous provisions of the Act

Chapter VII of the Industrial Disputes Act, 1947 deals with

miscellaneous provisions of the act. They include offence by

organizations/companies, conditions of service, special provision for

adjudication as to whether conditions of service changed during

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pendency of proceedings, power to transfer certain proceedings,

recovery of money due from employer, cognizance of offences,

protection of persons, power to remove difficulties,representation of

parties, power to exempt, power to make rules, power to amend

schedules, etc.

Section 32: Offense by organizations and so on

Where an individual submitting an offence under this Act is an

organization, or other body corporate, or a relationship of people

(regardless of whether fused or not), each chief, administrator, secretary,

operator or other official or individual worried about the administration

thereof will, except if he demonstrates that the offence was submitted

without his insight or assent, be considered to be liable of such offence.

Section 33: Conditions of service, etc. to stay unaltered

During the pendency of any such continuing in regard of an

industrial question, the business may, as per the standing requests

material to a workman worried in such case or, where there are no such

standing requests, as per the particulars of the contract, regardless of

whether express or suggested, among him and the workman-

 adjust, concerning any issue not associated with the question, the

states of service pertinent to that workman preceding the initiation

of such continuing; or

 for any unfortunate behavior not associated with the contest, or

release or rebuff, regardless of whether by rejection or something

else, that workman: Provided that no such workman will be released

or expelled, except if he has been paid wages for one month and an

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application has been made by the business to the authority before

which the procedure is pending for endorsement of the action taken

by the business.

Protected workman

Despite anything contained in the above sub-section, no business

will, during the pendency of any such continuing in regard to an

industrial case, make any move against any ensured workman worried in

such question

 By changing, to the preference of such ensured workman, the states

of service relevant to him preceding the beginning of such

procedures.

 By releasing or rebuffing, regardless of whether by rejection or

something else, such secured workman, spare with the express

authorization in writing of the authority before which the

proceeding is pending.

Dismissal for misconduct

For any unfortunate behaviour associated with the case, release or

rebuff, regardless of whether by expulsion or something else, any

workmen engaged with such question, spare with the express

authorization in writing of the authority before which the proceeding is

pending.

Also, for any expulsion not associated with the question, release

or rebuff, regardless of whether by rejection or something else, that

workman: Provided that no such workman will be released or expelled,

except if he has been paid wages for one month and an application has

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been made by the business to the authority before which the procedure
is pending for endorsement of the action taken by the business.

Adjustment in states of service

Adjust, in respect to the issue not associated with the case, the

states of service relevant to that workman preceding the beginning of

such continuing. By modifying the bias of such ensured workman, the

states of service relevant to him preceding the initiation of such

procedures.

Suspension of workmen before acquiring consent

For any offence associated with the question, release or rebuff

whether, by expulsion or something else, any workmen worried in such

contest, spare with the express consent in writing of the authority

before which the proceeding is pending.

Section 34: Cognizance of offences

No court will take the insight into any offence culpable under this

Act or of the abetment of any such offence, save money on objection

made by or under the authority of the suitable government.

No court substandard compared to that of the metropolitan

officer or a legal justice of the five star will attempt any offence culpable

under this Act.

Section 35: Protection of people

No individual declining to partake or keep on participating in any

strike or lockout which is illicit under this will, by reason of such refusal
or by reason of any action taken by him under this Section, be

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dependent upon ejection from any trade union or society, or to any fine
or punishment, or hardship of any privilege or any advantage to which

he or his legitimate delegates would somehow or another be entitled, or

be at risk to be put in any regard, either straightforwardly or in a

roundabout way, under any incapacity or at any detriment as contrasted

and different individuals from the union or society, anything despite

what might be expected in the guidelines of a trade union or society in

any case.

Nothing in the standards of a general public or a trade union

requiring the settlement of disputes in any way will apply to any

procedure for authorizing any privilege or exclusion verified by this

Section, and in such continuing the common court may, in lieu of

requesting an individual who has been ousted from enrollment of a

trade union or society to be reestablished to participation request that

he be paid out of the assets of the trade union or society such entirety

by method for remuneration or harms as the Court might suspect just.

Section 36: Representation of parties

A workman who is a party to a contest will be qualified for being

spoken to in any proceeding under this Act by-

 Any individual from the office or the workplace conveyor of an

enrolled trade union of which he is a part.

 Any individual from the official or other office carrier of an

organization of trade unions to which the trade union alluded to in

the above provision is partnered.

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Where the labourer isn’t an individual from any trade union, by

any individual from the official or any office conveyor of any trade

associated with, or by some other workman utilized in, the industry

wherein the specialist is utilized and approved in such a way as might be

endorsed.

A business who is a party to the case will be qualified to be

spoken to in any proceeding under this Act by –

 An official of a relationship of bosses of which he is a part.

 Any individual from the official or other office bearer] of a league of

trade unions to which the trade union alluded to in the above

provision is partnered;

 Where the labourer isn’t an individual from any trade union, by any

individual from the official or other office carrier of any trade union

associated with, or by some other workman utilized in, the industry

wherein the specialist is utilized and approved in such way as might

be endorsed.

Section 36-A: Power to expel challenges

In the event that, in the assessment of the suitable any trouble or

uncertainty emerges with regards to the elucidation of any award or

settlement, it might allude to address to such work court, tribunal or

national tribunal as it might suspect fit.

The work court, tribunal or national tribunal will to which the

inquiry is alluded will, in the wake of giving the parties a chance of

being heard, choose such question and its choice will be conclusive and

official on the entirety of the parties.

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Section 36-B: Power to exclude

Where the fitting government is fulfilled in connection to any

industrial establishment or undertaking or any class of industrial

establishment or undertakings carried on by a branch of that

government that sufficient arrangements exist for the examination and

settlement of industrial disputes in regard to workmen utilized in such

establishment or undertaking or class of establishments or undertakings,

it might, by notice in the official periodical, excluded, restrictive or

genuinely such establishment or undertaking or class of establishment

or undertakings from all or any arrangements of the Act.

Section 37: Protection of action taken under the Act

No suit, arraignment or other lawful continuing will lie against any

individual which is done in compliance with common decency or

expected to be done incompatibility of this Act or any standards made

thereunder.

Section 38: Power to make rules

The fitting government may, subject to the state of past

distribution, make rules to offer production to this Act.

In preference and without bias to the sweeping statement of the

previous power, such rules may accommodate all or any of the

accompanying issues, to be specific –

 The forces and systems of conciliation officials and sheets, courts,

labour courts, tribunals, national tribunals including rules as to

bringing of witnesses, the generation of archives pertinent to the

topic of a request or examination, the number of individuals

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important to frame a majority and the way of accommodation of

reports and awards.

 The type of assertion understanding, the way where it might be

marked by the parties, the way wherein it might be marked by the

parties, the way wherein a notice might be given under sub Section

3A and 10A, the intensity of the referee named in the discretion

understanding and the methodology pursued by him.

 The arrangement of assessors in procedures under this Act.

 The constitution of complaint settlement experts in settlement 9C in

Section 38, the way where industrial disputes might allude to such

experts for settlement, the system to be trailed by such experts in

the procedures in connection with disputes alluded to them and that

period inside which such procedures will be finished.

 The constitution and the elements of and documenting of the

opportunities in works advisory groups, and the system to be trailed

by such councils in the release of their obligations.

 The recompenses allowable to individuals from courts and sheets

and managing official of work courts, tribunals and national

tribunals and to assessors and witnesses.

 The minstrel establishment which might be dispensed to a court,

board, work court, tribunal or national tribunal and the pay rates and

stipends payable to individuals from such establishments.

 The way where the individual by and to whom notice of strike and

lockout might be given and the way in which such notification will

be imparted.

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 The conditions to which parties could be relevant to be spoken to by

legitimate practitioners in procedures under this Act under the

steady gaze of a court, work court, tribunal or national tribunal.

 Some other issue which is to be or might be endorsed.

Rules made under this Section will give that a repudiation will

thereof be culpable with a fine not exceeding fifty rupees.

All guidelines made under this Section will, at the earliest

opportunity after they’re made, be laid before the state lawmaking body
or, where the proper government is the government at the centre,

before the two places of parliament.

Each standard made by the government at the centre will be laid,

when might be after it is made, before each place of parliament while it

is in session for an all-out time of thirty days which might be

undermined in one session or in at least two progressive sessions, and if,

before the expiry of the session promptly following the session or the

progressive sessions aforementioned, the two houses concur in making

any adjustment in the standard, or the two houses concur that the

standard ought not be made, the standard will from thereon have

impact just in the changed frame or be of no impact, by and large;

along these lines, nonetheless, that any such alteration or revocation will

be without preference to the legitimacy of anything recently done under

the standard.

Section 39: Delegation of forces

The fitting government may, by notice in the official periodical,

direct that any power exercisable under this Act or rules made

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thereunder will, in connection to such issues and subject to such

conditions, assuming any, as might be indicated toward the path, be

exercisable moreover.

Where the fitting government is the government at the centre, by

such official or authority subordinate to the government at the centre or

by the state government or by such official or authority subordinate to

the state government, as might be indicated in the warning.

Where the fitting government is a state government, by such

official or authority subordinate to the state government as might be

indicated in the warning.

Section 40: Power to correct Schedules

The proper government may, on the off chance that it is of

assessment that it is practical or vital out in the open enthusiasm to do

as such, by warning in the official newspaper, add to the main calendar

any industry, and on such notice being given, the primary timetable will

be considered to be corrected as needs be.

The government at the centre may, by warning of its official

journal, add to or modify or alter the subsequent calendar or the third

timetable and on any such notice being given, the subsequent calendar

or the third timetable, by and large, will be done to be revised in like

manner.

Each such notice will, at the earliest opportunity after it is given,

be laid before the assembly of the state, if the notice has been given by
a state government, or before the parliament, if the notice has been

given by the government at the centre.

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Conclusion

Thus, this was the Industrial Disputes Act which was passed by the

government of India in 1947. This Act ensures peace and harmony

among all the industrial establishments, and if any conflict arises, the
provisions in the Industrial Disputes Act helps in solving the issue in a

systematic manner in which all the parties are satisfied and every

decision made is fair and just.

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Unit-IV

Standing Orders - Concept and Nature of Standing Orders – scope and

coverage- Certification process – its operation and binding effect –
Modification and Temporary application of Model Standing Orders –
Interpretation and enforcement of Standing Orders and provisions
contained in the Industrial Employment (Standing Orders) Act 1946.

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Introduction

The Industrial Employment (Standing Order) Act, 1946 (hereby

referred to as ‘IESO’) precisely defines the conditions of employment

under an employer to both the employer and the workmen. Before the
IESO Act was passed, there was a lack of order and clarity regarding the

terms of employment by an employer. The workmen at that time were

hired on a contractual basis individually, and in most cases these

contracts were either express or implied, thus often leading to a

misunderstanding of expectations between the employer and the

workmen.

Prior to 1946, there existed chaotic conditions of employment,

wherein the workmen were engaged on an individual basis with

uncertain and vague terms of employment. In some cases the

conditions of services were not well defined and there was complete

ambiguity in regard to their nature and scope.

The lack of rule securing permanency of job, fair deal, disciplinary

action on petty matters was a worrying problem to industrial workers.

Provision for effective safeguards against unjust and wrong dismissal

and other disciplinary actions became a need of the time. Findings of

the Enquiry Committees on labour problems and investigations also

depicted the necessities of rule making in this regard.

The Act was enacted as a simple measure to remedy this situation

– by bringing about uniformity in the terms of employment in industrial

establishments so as to minimize industrial conflicts.

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The Preamble of the Act imposes a compulsion upon the

employers, “to define with sufficient precision the conditions of

employment” and make the same known to the workmen.

In many cases, these terms and conditions of hiring were

ambiguous and led to friction between the workmen and the

management. The lack of rules for securing permanency of the job, fair

deal and disciplinary action on petty matters was a worrying problem

for industrial workmen. There was no provision against abrupt dismissal

or wrongful termination. The workmen had no safeguards against any

disciplinary actions that the employers took for they didn’t have any

guidelines or rules protecting their interest. Even in large industries, if

there was a standing order, there was no particular guidelines that it had

to follow or any legislation governing the enforcement of the same.

With the concept of Trade Unionism coming into play, the State

and the Tripartite Labour Conference became the voice of the workmen

and helped pass the Industrial Employment (Standing Order) Act in

1946 to ensure clear and well-defined employment conditions

or standing orders that helped establish smoother working relations

between industrial workmen and employers.

Industrial Employment (Standing Order) Act, 1946

The Industrial Employment (Standing Orders) Act, 1946 came into

force on 23rd April, 1946, with an objective to regulate the conditions of

recruitment, discharge, disciplinary action, holidays, classification of

workers, mechanism of wage rates, attendance issues, etc.

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The Industrial Employment (Standing orders) Act, was introduced

for the employers in industrial establishments to ensure the

employment conditions under the establishments. Anything that

requires ‘employers in industrial establishments formally to define

conditions of employment under them’ falls within the scope of the

IESO Act.

The Act makes it binding for employers to ‘define with sufficient

precision the conditions of employment and to make those conditions

known to the workmen.

The IESO Act helped introduce a uniformity or terms and

conditions of employment in respect of workmen belonging to the

same category and discharging the same or similar work in an industrial

establishment. Overall, the IESO Act helped bring regulation and a sense

of order amongst the workmen and the employers.

This Act requires the employers to define the conditions of service

in their establishments and to put them in writing and then get them

certified by the Certifying Officer to avoid any unnecessary industrial

disputes in the future between the employers and the workmen. The

standing orders of the said industrial establishment must conform to

the model standing orders but not necessarily consist only of the model

standing order. If the establishment wishes to add to the standing

orders, then they can do so, provided the draft of the same gets

approved by the Certifying Officer.

In the case of Avery India Ltd. v. Second Industrial Tribunal, West

Bengal it was held that the provisions as to the age of retirement in the

standing orders of an establishment would apply to all the employees

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irrespective of whether or not they were part of the establishment where

they work prior to or subsequent to the standing orders coming into

force, even though there was no such provision for the age of

retirement in the past.

Objective of the Act

The Act is designed to avoid friction and tension among employer

and workmen employed in an industry. The Tripartite Labour

Conference pleaded for defining the conditions of employment so as to

create harmonious relations between employer and workmen.

Before this Act, victimisation and unfair labour practices were

quite frequent. The industrial worker had no right to know the terms

and conditions and rules of discipline of his employment. Except in

some large scale industrial establishment there were no standing orders

and rules to govern the day to day relations between employers and

workers. Even in few cases where there were, standing orders, they were

on sided because neither workmen’s organisation nor appropriate

Government were consulted before such rules were framed.

The objective of the Industrial Employment (Standing Orders) Act,

are as follows:

 Firstly, to enforce uniformity in the conditions of services under

different employers in different industrial establishments.

 Secondly, the employer, once having made the conditions of

employment known to his employed workmen cannot change them

to their detriment or to the prejudice of their rights and interests.

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 Thirdly, with the express or written conditions of employment, it is

open for the prospective worker to accept them and join the

industrial establishment.

 Fourthly, for maintaining industrial peace and continued productivity,

the significance of the express written conditions of employment

cannot be minimised or exaggerated.

The object of the Act is to have uniform standing orders in

respect of matters enumerated in the Schedule to the Act, applicable to

all workers irrespective of their time of appointment (Barauni Refinery

Pragati Sheel Parishad v. Indian Oil Corporation Ltd. (1991) 1 SCC 4).

Applicability of the Act

Section 1 of the Act provides that the Act shall apply to the

industrial establishments (within India) with an engagement of more

than a hundred workmen at present or as noted on any day in the

preceding year unless provided by the appropriate Government for

application to any such industrial establishment – with less than a

hundred employees.

The Act applies to all industrial establishments involving 100 or

more workers under Section 1(3). Under section 2(i) Industrial

Establishment are the following entities are listed below:

 An industrial establishment as specified in section 2(i) of Payment of

Wages Act.

 Factory as explained in section 2(m) of Factories Act.

 Railway Industry

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 Establishment of contractor who employs workers for fulfilling the

contract with the owner of an industrial establishment under section

2(e).

Workman as specified under section 2(s) of Industrial Disputes Act.

Under Section 2(i) workman covers skilled, unskilled, manual or clerical

work. However, workman does not include employees engaged in a

managerial or administrative capacity or supervisory capacity and also it

does not include workers subject to Army Act, Navy Act or Air Force Act

or police or prison services.

Standing Orders

Standing Orders states the laws which govern the relationship

between the employer and a workman in an industrial establishment

with includes the elements such as classification of workers, working

hours, attendance, suspension, termination etc.

Section 3 of the Act deals with submission of draft standing

orders. The employer shall submit five copies draft standing orders

proposed by him to the Certifying Officer within 6 months from the date

on which the Act becomes applicable to an industrial establishment. The

draft standing orders submitted shall be accompanied by a statement

giving prescribed particulars of the workmen employed in the Industrial

establishment including the name of the trade union to which they

belong.

Section 2(g) of the Act states that “standing orders” are the rules

relating to matters set out in the Schedule, i.e. with reference to:

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The classification of workmen;

 Manner of intimation to workers about work and wage-related

details;

 Attendance, and conditions of granting leaves, etc.;

 Rights & liabilities of the employer/ workmen in certain

circumstances;

 Conditions of ‘termination of’/‘suspension from’ employment; and

 Means of redressal for workmen, or any other matter.

Concept and Nature of Standing Orders

Concept and Definition:

The concept of ‘Standing Orders’ is one of the recent growth in

relation to Indian labour- management. Standing orders means rules

relating to matters set out in the Schedule.

According to Section 2(g) of the IESO Act, standing orders means

rules relating to matters set out in the Schedule.

The term ‘Standing Orders’ refers to the rules relating to the

matters defined in the Schedule of the IESO Act. These matters should

be according to the Schedule, provided in Standing Orders under this

Act as follows:

 Classifications of workmen, e.g., temporary, permanent, apprentice,

probationers, etc.

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 Manner of intimating to workmen periods and hours of work,

holidays, paydays and wage rates.

 Shift working.

 Attendance and late coming.

 Conditions of procedure in applying for and the authority which may

grant leave and holidays.

 The requirement to enter premises by certain gates and liability to

search.

 Closing and reopening of sections of the industrial establishment,

and temporary stoppages of work and the rights and liabilities of the

employer and workmen arising therefrom.

 Termination of employment and the notice thereof to be given by

employer and workmen.

 Suspension or dismissal for misconduct, and acts or omissions which

constitute misconduct.

 Means of redress for workmen against unfair treatment or wrongful

executions by the employer or his agents or servants.

 Any other matter which may be prescribed.

It shall be obligatory upon the employer to make provision in the

Standing Orders in respect of any matter provided in the Schedule of

the Act. Once a provision is made it can be modified only in accordance

with the provision of Section 10(2) of the Act.

Nature

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Though the legal nature of Standing Orders is mostly considered

to be statutory in nature and the same has been reinforced in several

judgements by the Apex Court, there have been several arguments

debating the claim.

The nature of Standing Orders has been considered as contractual

at times, and an ‘award’ at others. Meanwhile, the argument that the

nature of Standing Order is ambiguous and inconclusive seems to stand

corrected as it fails to be put in one category without solid arguments

against the claim of its nature as statutory, contractual or an award.

(1). Statutory nature of Standing Orders

The very first argument of Standing Orders as being statutory in

nature comes from the case, The Bagalkot Cement Co. Ltd. Vs. R.K.

Pathan & Ors. wherein the Supreme Court stated that:

“The object of the Act as we have already seen, was to require the

employers to make the conditions of employment precise and definite

and the act ultimately intended to prescribe these conditions in the

from of standing orders so that what used to be governed by a contract

hereto before would now be governed by the statutory standing

orders…”.

This decision of the Supreme Court was relied upon in various

other judgements to conclude that Standing Orders, once certified, are

statutory in nature. This was reinforced by the High Court of Gujarat in

the case of Tata Chemicals Ltd. And Ors. vs Kailash C. Adhvaryu wherein

the judge distinguished between a statutory obligation and a

contractual obligation and therefore came to the conclusion that

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certification of standing orders under the IESO Act creates statutory

rights and obligations.

Another argument pertaining to the statutory nature of standing

orders is that the Certifying Officer, in certifying the draft of the

standing orders made by the employer, is part of a delegated legislation.

The process of hearing from both parties before certifying the standing

orders may as well be seen as a consultation of sorts to those affected

by the decision. This, in turn, makes the Certifying Officer, part of a rule-

making process, thus making the entire process statutory in nature.

(2). Standing Orders as an ‘award’:

Section 4 of the IESO Act states that the decision maker or the

Certifying Officer, after hearing both the parties, adjudicates upon the

“fairness or reasonableness” of standing orders laying down the

conditions of the employment. This, in turn, makes standing orders as a

kind of “award”. But this cannot be the case, as the Industrial Disputes

Act, 1947 does not consider the Certifying Officers as the decision

makers in matters of industrial disputes and thus the standing orders

cannot be an award. Also, the Certifying Officer does not, in any way or

form, settle an industrial dispute; he merely modifies or certifies the

draft standing orders after hearing both the parties. Another aspect to

consider would be that if we consider the standing order as an award,

certain provisions pertaining to limitations on lock-outs and strikes

would come into play as given under the Industrial Disputes Act, 1947.
Lastly, Section 13(2) of IESO Act makes the employer liable for any

contravention of the standing orders, thus contradicting the principle

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that an award is as binding and applicable to one party as it is to the

other.

(3). Standing Orders as special kinds of contracts:

The certified standing orders have a statutory force but they are

not necessarily statutory in nature as we have already discussed. The

standing order implies a contract between the employer and the

workman. Therefore, the employer and workman cannot enter into

contract overriding the statutory contract as embodied in the certified

standing orders. While the standing orders are in force it is not

permissible for the employer to seek their statutory modifications which

leads to there being one set of standing orders in respect of certain

employees and another set for others.

Therefore, no workman can be appointed by the employer with

terms and conditions different from those defined in the standing

orders unless the standing orders are modified in accordance with the

provisions of matter discussed in the Schedule of the IESO Act. It is not

open to an Industrial Tribunal to ignore an existing standing order in

matters that refer to individual discipline. And no Industrial Tribunal can

make amendments and modifications in standing orders unless they are

contractual in nature.

An argument in favor of the contractual nature of standing order

comes from the case of Buckingham and Carnatic Co. Vs.

Venkatayga wherein Justice Gajendragadkar stated that:

“The certified Standing Orders represent the relevant terms and

conditions of service in a statutory form and they are binding on the

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parties at least as much, if not more, as private contracts embodying

similar terms and conditions of service.”

Another statement in favor of the contractual nature of standing

order comes from Mettur Industries Ltd Vs. A.R. Varma And Ors the
High Court of Madras stated that:

“Reading the Act as a whole it is clear that the standing orders

form part of the contract between the management and every one of its

employees.”

Lastly, in an amendment of the Industrial Disputes Act, 1964, the

following was added to Section 33:

“.… where there are no such standing orders, in accordance with

the terms of the contract, whether express or implied, between him and

the workman.”

Thus, clearly strengthening the argument for the contractual

nature of the standing orders.

Scope and coverage

The Act extends to the whole of India and applies to every

industrial establishment wherein 100 or more workmen are employed or

were employed on any day during the preceding twelve months. Further,

the appropriate Government may, after giving not less than 2 months

notice of its intention to do so, by notification in the Official Gazette,

extend the provisions of this Act to any industrial establishment

employing such number of persons less than 100 as may be specified in

the notification.

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However, the Act does not apply to

(1) any industry to which provisions of Chapter VII of the Bombay

Industrial Relations Act, 1946, apply; or

(2) any industrial establishment to which provisions of Madhya

Pradesh Industrial Employment (Standing Orders) Act, 1961 apply.

Notwithstanding anything contained in the said Act, the

provisions of this Act shall apply to all industrial establishments under

the control of the Central Government.

Certified standing orders become part of the statutory and not

contractual terms and conditions of service and are binding on both the

employer and the employees (Derby Textiles Ltd. v. Karamchari and

Shramik Union (1991) 2 LLN 774). There are some industrial

establishments who are exempted from this act.

According to section 1 of the Standing Orders Act, this Act

doesn’t apply to those industrial establishments where provisions of

Chapter VII of the Bombay Industrial Relations Act, 1946 applies and,

also where provisions of Madhya Pradesh Industrial Employment

(Standing Orders) Act, 1961 applies.

As mentioned in section 13 B of this Act, it has exempted some

more industrial establishments from the domain of this Act like those

industrial establishments where the workmen employed are the persons

to whom the Fundamental and Supplementary Rules, Civil Services

(Classification, Control, and Appeal) Rules, Civil Service (Temporary

Services) Rules, Revised Leave Rules, Civil Service Regulations, Civilians

in Defence Service (Classification, Control, and Appeal) Rules or the

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Indian Railway Establishment Code. And, also appropriate government

(central or state) can notify through Official Gazette to exempt any other

establishment from this Act.

Moreover, according to section 14 of this Act, the appropriate

government is empowered to exempt any of the industrial

establishment, conditionally or unconditionally from all or any of the

provisions of this Act.

Importance of Standing Order Act in industrial relations

As mentioned above this act was enacted to bring uniformity

between organizations. Every organization has set some rules and

regulations for its functioning but under this act, if an organization

qualifies all the conditions mentioned above then this act will apply to

that particular organization. We can say that this act has a set of

common rules and regulations related to employment, which is followed

by all industrial establishments that come under this act.

It secures the need and interest of employees from violation by

giving a healthy working condition. According to section 10A (1) If a

workman has been suspended by his employer and pending

investigation or inquiry into complaints or charges of misbehavior or

illegal behavior against him, Than the employer has to pay to the

workmen. And also according to section 13(2) if an employer does not

work in accordance with the rules laid down under this act then he will

be punished with a fine of one hundred rupees and if he continues to

repeat this same mistake then twenty –five rupees will be extended for

every day when he repeated the same mistake from the first time.

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After going through these sections we can say that this act
enables the employer to work in accordance with specified rules of this

act to save the need and interest of employees.

Certification process

Section 4 of the IESO Act deals with Conditions for certification of

standing orders. It states that the standing orders shall be certifiable

under the Act, if

(i). provision is made therein for every matter set out in the

Schedule which is applicable to the industrial establishment; and

(ii). the standing orders are otherwise in conformity with the

provisions of this Act.

It shall be the function of the Certifying Officer or appellate

authority to adjudicate upon the fairness or reasonableness of the

provisions of any standing orders.

Certification of Standing Orders

It is mandatory for every employer covered under the Industrial

Employment (Standing Orders) Act has to get standing orders certified

by submitting five draft copies of the standing orders to the certifying

officer such as labour commissioner or a regional labour commissioner

and also includes any other officer appointed to perform the functions

of certifying officer.

The procedure for certification of Standing Order, as prescribed

under Section 5 of the Act, is threefold:

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 The Certifying Officer to send a copy of the Draft Standing Order to

the workmen or trade union, along with a notice calling for

objections, that shall be submitted to him within 15 days of

receiving such notice.

 Upon receipt of such objections, the employer and workmen to be

given an opportunity of being heard, after which the Certifying

Officer shall decide and pass an order for modification of the

Standing Order.

 Finally, the Certifying Officer shall certify such Standing Order, and

thereby, within seven days, send a copy of it annexed with his order

for modification passed under Section 5(2).

Details Enclosed in Standing Orders

The particular information which is generally provided in the standing

orders include:

 Workmen classification into categories such as permanent,

temporary, on probation, etc.

 Method of informing the workmen about working hours, holidays,

etc.

 Shift working.

 Temporary stoppages of work.

 Provisions concerning the termination of employment and the

notice period.

 Actions/inactions which are treated as misconduct and the

consequences for the fault.

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 Grievance redressal mechanism in case of unjust or unfair treatment

by the employer.

 Attendance marking system for workers.

 Employment termination and the notice thereof to be provided by

both employer and the workers.

 Procedure for availing leave and encashment, accumulation of leaves.

 Workmen records and information, etc.

Procedure for Certification of Standing Orders

The process for certification of standing orders are specified

below:

 Step 1: On receipt of the draft standing orders, the certifying officer

will forward a copy to the trade union together with a notice in

Form-11 where there is a trade union functioning in the industry. In

case of no such trade union, the Certifying Officer will hold election

of three representatives by the workmen from among themselves or

authorise any officer in working to hold such election, and then a

copy of the notice in Form-II can be forwarded.

 Step 2: Certifying Officer after hearing make necessary modification

in the draft standing order if required and certify the same and

within seven days the copies of the standing order authenticated by

him will reach to the employer and the trade union or the prescribed

representatives of the workmen.

 Step 3: Any employer, workmen, trade union or other specified

representatives of any workman aggrieved by the order of the

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Certifying Officer within thirty days from the date on which copies of
the certified standing orders are sent can be submitted as a

memorandum of appeal setting out the grounds of appeal in Form-

IV in quadruplicate appeal to the Appellate Authority.

 Step 4: The Appellate Authority can proceed after giving the

appellant an opportunity of being heard will pass final order on the

appeal petition, and his decisions will be made final.

Payment of Subsistence Allowance

Where any workman is known to be suspended at the

investigation or inquiry into complaints or charges of misconduct

against him, it is mandatory for the employer to pay to such workman

subsistence allowance at the following rates:

 For the first 90 (ninety) days: at the rate of 50% (percentage fifty) of

the wages which the workman was entitled to immediately

preceding the date of such suspension.

 For 91 (ninety-one) to 180 (one hundred eighty) days: at the rate of

75% (percentage seventy-five) of such wages of suspension if the

delay in the completion of disciplinary proceedings against such

workman is not directly attributable to the conduct of such workman.

Virtually the order of suspension does not put an end to a

workman’s service though he is not permitted to work and is paid

only substance allowance which is less than is salary. This reduced

rate of wages constitutes subsistence allowance.

Processing Time

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Standing orders certified and their authenticated reports are

forwarded to employers and workers within thirty days from the date of

application submitted to the certifying officer.

Its operation and binding effect

Standing orders shall come into operation on the expiry of thirty

days from the date on which authenticated copies thereof are sent

under section 5(3), unless an appeal is preferred under section 6. Where

an appeal is preferred under section 6, standing orders shall come into

operation on the expiry of seven days from the date on which the

copies of the order of the appellate authority are send under Section

6(2).

A copy of all standing orders as finally certified under this Act

shall be filed by the Certifying Officer in a register in the prescribed form

maintained for the purpose, and the Certifying Officer shall furnish a

copy thereof to any person applying therefore on payment of the

prescribed fee.

The text of the standing orders as finally certified under this Act

shall be prominently posted by the employer in English and in the

language understood by the majority of his workmen on special boards

to be maintained for the purpose at or near the entrance through which

the majority of the workmen enter the industrial establishment and in all

departments thereof where the workmen are employed.

Modification and Temporary application of Model Standing Orders

Duration and modification of standing orders. (S.10)

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(1) Standing orders finally certified under this Act shall not, except on
agreement between the employer and the workmen or a trade union or

other representative body of the workmen, be liable to modification

until the expiry of six months from the date on which the standing

orders or the last modifications thereof came into operation.

(2) Subject to the provisions of sub-section (1), an employer or workman

or a trade union or other representative body of the workmen may

apply to the Certifying Officer to have the standing orders modified, and

such application shall be accompanied by five copies of the

modifications proposed to be made, and where such modifications are

proposed to be made by agreement between the employer and the

workmen or a trade union or other representative body of the workmen,

a certified copy of that agreement shall be filed along with the

application.

(3) The foregoing provisions of this Act shall apply in respect of an

application under sub-section (2) as they apply to the certification of the

first standing orders.

(4) Nothing contained in sub-section (2) shall apply to an industrial

establishment in respect of which the appropriate Government is the

Government of the State of Gujarat or the Government of the State of

Maharashtra.

Modification of Standing Order

Standing orders finally certified by the certifying officer is not

liable to change, except by an agreement between the employer and

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workers to the contrary, until the expiry of six months from the date on
which the standing orders or the last modification came into operation.

An employer or workers or a trade union or other representative

body of the workman may apply to the certifying officer to have the
standing orders modified, and such application shall be accompanied by

five copies of the modifications to be performed.

A CSO cannot be modified, except on agreement between the

related parties, until six months from the last modification or operation

of such standing order under Section 7. Further, subject to Section 10(1)

and other provisions of this Act, the parties may apply to the Certifying

Officer for modifications in the standing order by annexing five copies

of the proposal or a certified copy of the agreement for modifications.

Temporary Application of Model Standing Orders

Model standing orders apply to an industrial establishment from

the time the IESO Act becomes applicable to such establishment till the

time the standing orders of the establishment are finally certified.

Section 12-A provides that in spite of the provisions under

Section 3 – 12, in the period between the applicability of this Act and

operation of the CSO, MSOs to be adopted, with Sections 9, 13(2), and

13-A applying in the same way as would apply to a CSO. it also declares

that if there exist two categories of workmen, and the daily rated have a

CSO in existence for them, then the MSO be adopted for the monthly

rated workmen.

Interpretation and enforcement of Standing Orders

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Section 13A of the IESO Act deals with interpretation, etc., of

standing orders. If any question arises as to the application or

interpretation of a standing order certified under this Act, any employer

or workman or trade union or other representative body of the

workmen may refer the question to any one of the Labour Courts that

are constituted under the Industrial Disputes Act, 1947, and specified for

the disposal of such proceeding by the appropriate Government, and

the Labour Court to which the question is so referred shall decide the
question after giving the parties an opportunity of being heard, and

such decision shall be final and binding on the parties.

Penalty

If an employer defaults to submit draft standing orders or

modifies his standing orders, then the concerned officer may impose a

penalty which will be above Rs 5,000 (five thousand), and in the case of

a continuation of offence may impose a fine which will be above Rs 200

(two hundred) for every day till the offence continues.

If the establishment does any act in violation of the standing

orders after getting certified under this Act, then the employer will be

punishable with the penalty of which will be more than Rs 100 (One

hundred), and in the case of a continuation of offence may impose a

fine of Rs 25 (twenty five) for every day till the offence continues.

No prosecution for an offence punishable under this section shall

be instituted except with the previous sanction of the appropriate

Government.

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No Court inferior to that of a Metropolitan Magistrate or Judicial

Magistrate of the second class shall try any offence under the section 13.

Power to exempt (S. 14)

The appropriate Government may by notification in the Official

Gazette exempt, conditionally or unconditionally, any industrial

establishment or class of industrial establishments from all or any of the

provisions of this Act.

Delegation of powers (S.14A)

The appropriate Government may, by notification in the Official Gazette,

direct that any power exercisable by it under this Act or any rules made

thereunder shall, in relation to such matters and subject to such

conditions, if any, as may be specified in the direction, be exercisable

also:

(a) where the appropriate Government is the Central Government,

by such officer or authority subordinate to the Central Government or

by the State Government or by such officer or authority subordinate to

the State Government, as may be specified in the notification;

(b) where the appropriate Government is a State Government, by

such officer or authority subordinate to the State Government as may

be specified in the notification.

Power to make rules. (S.15)

(1) The appropriate Government may, after previous publication, by

notification in the Official Gazette, make rules to carry out the purposes

of this Act.

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(2) In particular and without prejudice to the generality of the foregoing

power, such rules may—

(a) prescribe additional matters to be included in the Schedule,

and the procedure to be followed in modifying standing orders certified

under this Act in accordance with any such addition;

(b) set out model standing orders for the purposes of this Act;

(c) prescribe the procedure of Certifying Officers and appellate

authorities;

(d) prescribe the fee which may be charged for copies of standing

orders entered in the register of standing orders;

(e) provide for any other matter which is to be or may be

prescribed:

Provided that before any rules are made under clause (a)

representatives of both employers and workmen shall be consulted by

the appropriate Government.

(3) Every rule made by the Central Government under this section

shall be laid as soon as may be after it is made, before each House of

Parliament while it is in session for a total period of thirty days which

may be comprised in one session or in two or more successive sessions,

and if, before the expiry of the session immediately following the

session or the successive sessions aforesaid, both Houses agree in

making any modification in the rule or both Houses agree that the rule

should not be made, the rule shall thereafter have effect only in such

modified form or be of no effect, as the case may be; so however that

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any such modification or annulment shall be without prejudice to the

validity of anything previously done under that rule.

Provisions contained in the Industrial Employment (Standing

Orders) Act 1946.

 This Act is to require employers in industrial establishments to

formally define conditions of employment under them and submit

draft standing orders to certifying Authority for its Certification.

 The Act consists of 15 sections, which deals with standing orders,

certification of standing orders, appeals, register of standing orders

and their posting, penalties and the powers of central government.

 Provisions of the Act:

 Section 1: Short title, extent and Application

 Section 2: Interpretation

 Section 3: Submission of draft standing orders.

 Section 4: Condition for certification of standing orders

 Section 5: Certification of standing orders

 Section 6: Appeals

 Section 7: Date of operation of standing orders

 Section 8: Register of standing orders

 Section 9: Posting of standing orders

 Section 10: Duration and modification of standing orders

 Section 10A: Payment of subsistence allowance

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 Section 11: Certifying Officers and appellate authorities to have

powers of civil court

 Section 12: Oral evidence in contradiction of standing orders not

admissible.

 Section 12A: Temporary application of model Standing orders

 Section 13: Penalties and Procedure

 Section 13A: Interpretation, etc., of standing orders

 Section 13B: Act not to apply to certain industrial establishments

 Section 14: Power to exempt

 Section 14A: Delegation of powers

 Section 15: Power to make rules.

 The Act applies to every industrial establishment wherein 100

(reduced to 50 by the Central Government in respect of the

establishments for which it is the Appropriate Government) or more

workmen are employed.

 And the Central Government is the appropriate Government in

respect of establishments under the control of Central Government

or a Railway Administration or in a major port, mine or oil field.

 In section 2 of the Act the words appellate authority, appropriate

government, certifying officer, employer, industrial establishment,

standing orders, trade union, wages and workman, etc., are defined.

 The copies of draft standing order shall be submitted by the

employer to the Certifying officer within six months from the date

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on which the the act becomes applicable to an industrial

establishment.

 On receipt of draft, the certifying officer shall forward of a copy to

the trade union, within prescribed period.

 Any such person aggrieved by the order of certifying officer may file

an appeal to the appellate authority within 30 days from such order.

Under the Industrial Employment (Standing Orders) Act, 1946, all

RLCs(C) have been declared Certifying Officers to certify the

standing orders in respect of the establishments falling in the

Central Sphere. CLC(C) and all Dy.CLCs(C) have been declared

Appellate Authorities under the Act.

 An employer who fails to submit draft standing orders, or who

modifies his standing orders, who does an act in contravention of

the standing orders finally certified, shall be punishable with fine.

 The act shall not apply to certain industrial establishments.

 The appropriate Government has the power to exempt any industrial

establishment(s) from all or any of the provisions of this Act.

 The appropriate Government also has the power to make rules and

to delegate powers.

 The Schedule annexed to the IESO Act specifies the matters to be

provided under the Act.

The Schedule to the Act.

Matters to be provided in Standing Order under the Act are:

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1. Classification of workmen, e.g., whether permanent, temporary,

apprentices, probationers or badlis.

2. Manner of intimating to workmen periods and hours of work,

holidays, pay days, and wage rates.

3. Shift working.

4. Attendance and late coming.

5. Conditions of procedure in applying for and the authority, which may

grant leave and holidays.

6. Requirements to enter premises by certain gates, and liability to

search.

7. Closing and reopening of sections of the industrial establishments,

temporary stoppage of work and the rights and liabilities to the

employer and workmen arising therefrom.

8. Termination of employment and the notice thereof to be given by

employer and workmen.

9. Suspension or dismissal for misconduct and acts or omissions which

constitute misconduct.

10. Means of redress for workmen against unfair treatment or wrongful

extractions by the employer or his agents or servants.

10A. Additional matters to be provided in Standing Orders in coalmines/

(1). Medical aid in case of accident.

(2). Railway travel facilities.

(3). Method of filling vacancies.

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(4). Transfers.

(5). Liability for manager of establishment or mine.

(6). Service certificate.

(7). Exhibition and supply of Standing Orders.

10B. Additional matters to be provided in Standing Orders relating to all

industrial establishments.

(1). Service record-matters relating to service card, token tickets,

certification of services, change of residential address of workers

and record of age.

(2). Confirmation.

(3). Age of retirement.

(4). Transfer.

(5). Medical aid in case of accidents.

(6). Medical examination.

(7). Secrecy.

(8). Exclusive services.

11. Any other matters which may be prescribed.

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Unit - V

Disciplinary Proceedings in Industries - Charge sheet –

Explanation – Domestic enquiry – Enquiry officer – Enquiry report
– Punishment – Principles of Natural Justice.

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Disciplinary Proceedings

Disciplinary action can be taken when the misconduct of the

employee is proved. While deciding the nature of disciplinary action, the

employee's previous record, precedents, effects of the action on other

employees, etc, have to be considered. The object of the disciplinary

proceedings is to ascertain whether the officer concerned is suitable to

be retained in service.

Disciplinary procedures are a critical tool for management to

succeed. Many people associate disciplinary procedures with negative

feedback. If implemented properly, these procedures will positively

affect the relationship between a manager and their employees.

Employees embrace accountability and it actually improves employee

job satisfaction.

A disciplinary enquiry is carried out, based on the principles of

natural justice, whenever any employee commits any misconduct, in

order to decide the fate of their employment. No specific clauses are

provided with respect to the procedure of the disciplinary enquiry

except the Industrial Employment (Standing Order) Rules that provide

lists of acts and omissions considered as misconduct for the purpose

of industrial establishments not being in coal mines and for the purpose

of industrial establishments being in coal mines.

The Industrial Establishment (Standing Orders) Act is applicable to

the 'Industrial Establishments’ employing a hundred or more employees,

while the rest are on the discretion of State Government. The

establishments that are not covered by the Standing Orders Act frame

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their rules prescribing acts and omissions, known as the Service Rules. In
recent years, however, courts have laid down various principles that

indicate the correct procedure to be followed and basic formalities to be

observed by the employer in such cases.

Disciplinary Enquiry

The disciplinary enquiry is carried out by the disciplinary

committee of the respective establishment in relation to the matters of

misconduct of the employees. Such committee generally comprises of:

 Workers Representative, such as the member of Trade Union, as

specified under Rule 14 (4)(b-a) of the Industrial Employment

(Standing Orders) Central Rules, 1946.

 Employers Representative, such as the head of the department

where the workman was employed, and

 An Independent Officer, i.e. an enquiry officer.

 An internal hearing, to ascertain the guilt of the workmen of the

alleged misconduct, is conducted by the administrative officer.

Domestic Enquiry is mandatory in order to dismiss an employee;

however, it is not necessary for suspending him by way of

punishment.

Disciplinary Procedure

Before starting the process of discipline, it is essential to hold a

preliminary inquiry to know if a prima facie case of indiscipline and

misconduct exist. After this, the following steps should be followed:

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1. Issue of charge sheet: Once the prima facie case of misconduct is

established, the management should proceed to issue a charge sheet to

the employee. Charge sheet is merely a notice of the charge and

provides the employee an opportunity to explain his conduct. Therefore,

charge sheet is generally known as a show cause notice. In the charge

sheet, each charge should be clearly specified. There should be a

separate charge for each allegation and charge should not relate to any

matter, which has already been decided upon.

2. Consideration of Explanation: On getting the answer for the charge

sheet served, the explanation furnished should be considered and if it is

satisfactory, no disciplinary action needs to be taken. On the contrary

when the management is not satisfied with the employee’s explanation,

it can proceed with full-fledged enquiry. However, if the worker admits

the charge, the employer can warn him or award him punishment

without further enquiry.

3. Suspension pending Enquiry: Passing of suspension order is of an

administrative nature and suspension is not a punishment. Its purpose is

to only forbid the delinquent to work in the office and it is in the

exclusive domain of the employer to revoke the suspension order.

In case the charge is grave that is serious, a suspension order may

be served on the employee along with the charge sheet. According to

the Industrial Employment (Standing Order) Act, 1946, the suspended

worker is to be paid a subsistence allowance equal to one-half of his

wages for the first ninety days of suspension and three-fourths of wages

for the remaining period of suspension if the delay in the completion of

disciplinary proceedings is not due to the worker’s conduct.

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During suspension, relationship of master and servant continues

between the employer and the employee. However, the employee is

forbidden to perform his official duties. Thus, suspension order does not

put an end to the service. Suspension means the action of debarring for

the time being from a function or privilege or temporary deprivation of

working in the office.

In certain cases, suspension may cause stigma even after

exoneration in the departmental proceedings or acquittal by the

Criminal Court, but it cannot be treated as a punishment even by any

stretch of imagination in strict legal sense.

Procedure for a Disciplinary Enquiry

The principle of natural justice clarifies that no man shall be

punished or condemned without giving an opportunity to justify himself.

The Industrial Tribunals, based on this, have laid down the following

procedure:

1. Preliminary Enquiry

2. Charge Sheet

3. Explanation by employee

4. Domestic employee

5. Enquiry Report

6. Punishment.

Preliminary Enquiry

In a landmark judgment of Amulya Ratan Mukharjee Vs. Eastern

Railway, it observed by the Hon’ble High Court of Calcutta that:

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“Before making a charge, the Authorities are entitled to have a

preliminary investigation or a “Fact-Finding enquiry” when they receive

a complaint from an employer. This is not considered to be a formal

enquiry at all and in such an enquiry, no rules are observed.

There can be ex-parte examination or investigation and ex-parte

report. All this is to enable the authority to apprise themselves of the

real facts and to decide whether the employee should be charge-

sheeted.

But the departmental enquiry starts from the charge sheet. The

charge sheet must be specific and must set out all the necessary

particulars. It is no excuse to say that the delinquent who had

knowledge of previous proceedings should be taken to have known all

about the charge sheet.”

Charge sheet.

A charge-sheet essentially contains detailed particulars of the

misconduct, specific charges against the workman and the relevant

clauses of the Standing Order under which the workman is liable to the

punished.

Generally, standing orders provide the manner of serving the

charge sheet on the workman concerned and where it is prescribed the

procedure should invariably be followed. It can be given personally or

by post to the delinquent worker.

The Charge sheet is one of the most important documents in

proceeding against an employee charged with misconduct. It is a

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memorandum of charges which states the allegations levelled against

the alleged workman and the act/omissions of employee which

correspond to it. It would be against the principles of natural justice in

case a charge sheet is not prepared. There is no set format in which a

charge sheet should be drafted, however, the following factors should

be given due attention while drafting a charge sheet:

(1). The charge sheet should not be vague. The charges should not be

framed in a very general way which may only give a basic idea to the

inquiry official about the misconduct the employee is alleged with. It

should be drafted in clear and unambiguous language so the alleged

employee can understand his acts/omissions which were at fault and the

charges that are levelled in furtherance thereof.

(2). The relevant clause of the Company’s approved Standing Orders

should be mentioned alongside each allegation wherever possible.

(3). Wherein a charge is levelled which arises from acts or omissions in

an incident, the charge sheet should describe the date, time and place

of the incident.

(4). Wherein the allegations are arising from a written complaint, the

same may be mentioned depending upon the circumstances.

It is very important that the above factors are duly considered

when a charge sheet is prepared in order to ensure a fair domestic

enquiry in furtherance thereof.

Further, it is also worth noting that in case of Sur Enamel and

Stamping Works (P) Ltd. vs. Their Workmen,1963 SC 1914, the Hon’ble

Supreme Court, in an attempt to lay down the procedure for conducting

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an enquiry for industrial adjudication, provided that an enquiry cannot

be said to have been properly held unless:

 the workman proceeded against must be informed clearly of the

charges levelled against him;

 the witnesses must be examined in the presence of the workman;

 the workman must be given a fair opportunity to cross-examine the

witnesses including himself if he so wishes; and;

 the Enquiry Officer must record his findings with reasons in his

report.

Explanation

After a charge sheet has been served on the accused workman, he may

send his explanation cum reply in this manner:

1. admitting the charges and pleading for mercy.

2. denying the charges in totality.

3. requesting for more time to submit the explanation.

On receipt of the charge sheet, the employee sends his reply to

the Authority. If the Authority found the reply to be unsatisfactory, he

may get a show cause notice from the Authority. This procedure is

applied in the case of Associated Cement Co. Ltd vs. Their workmen and

Other 1964 65 26 FJR 289 SC, which further states that:

“The workman should be given due intimation of the date on

which the enquiry is to be held so that he has an opportunity to prepare

his defence at the enquiry.”

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Domestic Enquiry.

Domestic enquiry is similar to a trial in a court of law, domestic

enquiry is conducted for offences committed against the establishment

for misconduct, punishable under the standing orders/ conduct and

discipline rules and regulations of the organization. Domestic enquiry is

conducted according to Principals of ‘Natural Justice’.

The term domestic enquiry is mainly used to refer to an enquiry

into the charges of indiscipline and misconduct by an employee. In

common parlance, domestic enquiry means departmental enquiry or

domestic tribunal.

In such enquiries, the matter is decided by disciplinary authority

or administrative officers and not by courts of law. In cases of alleged

indiscipline, it is common for disciplinary authorities in a department or

in an industry to appoint an officer or officers to inquire into the

allegations against an employee. These enquiries are commonly known

as ‘Domestic Enquiries’.

Legal requirement of Domestic enquiry

Domestic enquiry has been provided under the standing orders to

be framed in the Industrial Employment (Standing Order Act) 1946. As a

result it is now well-established that such standing orders have the force

of law and constitute statutory terms of employment.

The case law established over a long period has made it

obligatory for the employers to hold a fair and just enquiry to prove the
misconduct before awarding any punishment.

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Domestic Enquiry and Departmental Enquiry

The term ‘domestic enquiry’ is commonly used in connection with

an enquiry against industrial or commercial workers. On the other hand,

the enquiry against Govt. Servant is called as a ‘Departmental Enquiry’.

Other Salient Points

(i). Show Cause Notice: After deciding the punishment for the

misconduct proved against the employee the Disciplinary Authority

should issue a show cause notice furnishing his order and proposing the
punishment and advising the employee to show cause why such a

punishment should not be awarded to him.

(ii). Ex-Parte: While reasonable opportunity should be provided to the

employee to defend himself, willful delay of the proceedings on his part

on flimsy grounds such as the on-availability of Defence Representative

etc., should not be allowed. Where the enquiry is conducted ex-parte,

the Presenting Officer will present his case by introducing the witnesses

and documents in the usual manner. There will, however, be no cross-

examination, since the defence is not present. The Enquiry Officer

should also record all such proceedings as detailed above and proceed

on merits of the case.

(iii). Dismissal without holding domestic enquiry: Dismissal of an

employee without holding a fair and just domestic enquiry amounts to

the violation of the principles of natural justice and is frowned upon by

the Labour Courts/Industrial Tribunals and adverse conclusions may be

drawn against the employer not holding a domestic enquiry, in so much

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so that the dismissal without holding a domestic enquiry is deemed to

be illegal.

(iv). Examination-In-Chief: An examination-in-chief is one in which the

prosecution / defence asks questions of his own witness to bring out the
facts of the case from that witness, which will help him prove his case. In

the examination-in-chief, the party introducing the witness i.e.,

prosecution or the defence should ascertain identity of the witness by

asking a few questions relating thereto. The witness need not answer

under oath. The prosecution / defence then proceeds to get answers by

asking questions to establish the points, as may be required by it,

through that witness.

(v). Cross-Examination: After the examination-in-chief of each witness

by prosecution / defence is over, the other side is permitted to cross-

examine the witness to bring out any hollowness in his statements in

the examination-in-chief. Questions to re-establish the averment of the

witness and / or leading questions can, therefore, be asked during the

cross-examination. This does not mean that questions which are

offensive or irrelevant can be permitted.

(vi). Re-Examination: For the purposes of obtaining clarification on

some of the points which emerged during cross-examination, the side

which introduced the witness is allowed to re-examine the witness after

the cross-examination is over.

(vii). Defence Representative and His Role: The charge sheeted

employee has a right to have him defended by a representative of a

registered trade union of Bank Employees. He can also be represented

by a Lawyer with the prior approval of the Disciplinary Authority. The

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Enquiry Officer should note that he has no powers to permit the

delinquent employee to be represented by a Lawyer. If a request

therefore is received, it should be referred to the Disciplinary Authority

for his approval.

It should also be noted that there can be only one representative

for each employee. The role of the Defence Representative is to

disprove the charges leveled against the delinquent employee in the

charge sheet. To this end, he will also produce documents and witnesses

well in advance and cross-examine prosecution witnesses. He will also

submit a brief to the Enquiry Officer, after going through the

prosecution brief.

The importance and need of domestic enquiries

“The aim of the rules of natural justice is to secure justice or to

put it negatively, to prevent the miscarriage of justice. These rules can

operate only in areas not covered by any law validly made. In other

words, they do not supplant the law but supplement it.”

The principles of natural justice are the rules laid down by the

courts as being the minimum protection of the rights of the individual

against the arbitrary procedure that may be adopted by a judicial or

quasi-judicial authority while making an order affecting those rights.

These rules prevent such authority from doing injustice.

Following are the four principles :

1. Every person must have a reasonable notice of the case he has to

meet if his civil rights are affected.

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2. Every person must have the opportunity to be heard to defend

himself.

3. The case must be heard by an impartial tribunal.

4. The authority must act fairly and reasonably and not arbitrarily.

Domestic Enquiry, is clearly based on the principles of Natural

Justice and fair play. Today, “domestic enquiry”, occupies a very

important position in Industrial Law. Domestic Enquiry essentially means

an enquiry into the charges of indiscipline and misconduct framed

against a workman or an employee and the term “ domestic” clearly

suggest that it is a purely internal matter between an employer and his

employees.

These enquiries mainly provide an opportunity to the worker to

clearly explain his stance and prevent him from being punished

arbitrarily, when he is innocent. Furthermore, a reasonable opportunity

must be given to the delinquent workers to meet the charges framed

against them and during the course of such an enquiry the employee

must be given the liberty to choose the person to represent his/her

cases.

If the rules of domestic enquiry do not lay a clear embargo on the

right of the delinquent to represented by a legal practitioner, then , it

would be the discretion of the enquiry officer to allow or disallow the

person to be represented by a legal practitioner after considering the

nature of the adjudication and the enquiry.

With the increasing importance of the basic tenets of human

rights and equality, law has it mandatory for the employer to work in a

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just and fair manner with his workers , knowing well that the employees
are weaker party in the industrial relations. Thus, it is of utmost

importance for the employers to carry out the enquiries in accordance

with the principles of natural justice.

Simply put, the rule of ‘hire and fire’ no longer holds in this field.

Article 311 of the Constitution of India provides that no person who is a

member of the civil service of the Union or an all India service or a civil

service of a State or holds a civil post under the Union or a State shall be

dismissed or removed or reduced in rank by an authority subordinate to

that by which he is appointed.

Furthermore, Article 311(2) provides that with the reference to

persons abovementioned , there shall be no person can be dismissed or

removed or reduced in rank , unless :

a) An inquiry is held.

b) In the inquiry, he is informed of the charges framed.

c) The person is given the opportunity to defend himself.

In the private sector, the holding of a domestic enquiry is laid

down by standing orders framed under the Industrial Employment

(Standing Orders)Act, 1946. The procedure for holding enquiries has

also been laid down by awards of settlements under the Industrial

Disputes Act,1947.

Essential Ingredients of Domestic Enquiry.

The evidence which is served during the enquiry serves the dual

purpose of establishing the charges and determining the penalty. If no

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evidence is adduced during the enquiry the right to reasonable

opportunity of being heard in respect of the charges will be plain

illusory. It is only on the basis of the evidence adduced during the

enquiry that the person facing the enquiry may effectively exercise his

right of being heard in respect of the charges against him by showing

the charges have not been established and that penalty of dismissal,

removal or reduction is rank, is not justified.

The Process of Holding Domestic Enquiries ( In Brief ) :

The first and primary step is to carry out a preliminary investigation

before the employer holds a disciplinary enquiry in order to find out

whether a prima facie case of misconduct is evident. Thus,the enquiry

should be the result of a preliminary investigation should bot be

adopted merely as a matter of course.

After a preliminary investigation is carried out and prima facie case of

misconduct is established, the following stages of disciplinary enquiry

should be followed :

1. Issue and service of a charge sheet calling upon the employee to

submit an explanation.

2. Consideration of the explanation.

3. Giving notice of an enquiry into the charge in case of unsatisfactory

explanation.

4. Suspension with or without pay ,pending enquiry( if needed)

5. Enquiry into the charge:

 Deciding as to who should conduct.

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 Deciding as how to proceed.

 Deciding about the order of the examining witnesses.

6. Recording of findings by the enquiry officer.

7. Punishment decision.

8. Communication of punishment.

Main procedures for domestic enquiries are as follows:

(1) Charge-sheet: If a prima facie case has been established and the

offence is quite serious, a charge-sheet may be prepared on the basis of

the allegations made. It should be in writing, detailing the allegations of

misconduct. It should also indicate the time within which the workmen

charge-sheeted should submit his explanation.

(2) Suspension: Where, in the interest of discipline, the shutting out of

the charge-sheeted workman is necessary, the employee should be

suspended. He is to get wages for the period of suspension if so

provided in the standing orders.

(3) Service of charge-sheet: If the workman is present, charge- sheet

should be handed over to him in the presence of witness after

explaining the contents of it in a language known to him.

If the delinquent workman is absent or refuses to accept the

charge-sheet, it should be sent to his last address under registered post

with acknowledgement due. If he refuses to accept it or if it comes back

undelivered otherwise, the charge- sheet has to be published in a local

newspaper with wide circulation.

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(4) Explanation: The explanation given by the worker within the given
time has to be considered.

(5) Notice of enquiry: If the explanation is found unsatisfactory, a

notice giving the time, place and date of the enquiry together with the
name of the enquiry officer has to be served on the worker.

The enquiry officer must not be the one who has issued the

charge-sheet because it is a principle of natural justice that a person is

disqualified to act as a judge if he is-a party to the dispute.

(6) Enquiry: At the appointed time, on the appointed date and place

the enquiry will commence by the enquiry officer in the presence of

charge-sheeted workman.

At the commencement of the enquiry the enquiry officer should

explain the charge-sheet to the worker. If the charge-sheeted workman

pleads innocence, the enquiry should be preceded. If he pleads guilty in

writing, the enquiry need not be preceded.

(7) Fact-findings: On completion of the enquiry, the enquiry officer is

required to submit his findings to the authority authorized to take

disciplinary action. He should state in his report the charges as well as

the explanations given to them. The enquiry officer should not

recommend any punishment in his findings.

(8) Decision: The higher management, such as works manager or

director, for taking disciplinary action shall consider the findings and if

he accepts the findings of guilt, he should inflict appropriate

punishment in accordance with the standing orders.

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(9) Service of the order: Any order of punishment should be served on

the charge-sheeted workman and this completes the procedure for

domestic enquiry.

Enquiry Officer.

An Enquiry Officer is an agent of the Disciplinary Authority on a

fact finding mission. He is more or less like a judge or what may be

called, “Quasi Judicial Tribunal”. He is expected to conduct the enquiry

in an impartial, unbiased, fair way with open mind. He should not take

the role of the Presenting Officer or Defence Representative. He need

not follow rules or procedures of Courts or apply the provisions of

Evidence Act or any other law. If the delinquent employee objects to the

enquiry officer conducting the enquiry on the ground that the enquiry

officer has a prejudice or bias against him, the enquiry officer should

refer the matter to the disciplinary authority, before conducting the

enquiry.

The enquiry officer should elicit information on all material points.

Wherein an enquiry, a witness gives evidence on material points to

corroborate the testimony of complainant about his hearing the

conversation between the complainant and the delinquent worker, it is

essential that the distance between the witness and the place of

occurrence is also ascertained to find out if the witness could have really

heard it. Even if this point is not brought out by the respective parties at

the enquiry, the enquiry officer will have to bring out this point.

The Enquiry Officer should be considerate but at the same time

firm. He should not cross-examine and put leading questions. The

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questions asked by him should not give an impression that he is acting

in a partial manner. He is entitled to ask for any clarification on the

evidence tendered but this should be done in a way that any inference

of partiality is not revealed. He should not normally ask questions

resembling cross-examination.

Where the question of victimisation is alleged by the delinquent

for his being a member of the minority/unrecognized union that the

case was foisted against him at the instance of the majority / recognised

union, the enquiry officer should not brush aside the suggestion by

saying that he is not interested in union politics, but should bestow

efforts to find out the necessity for such plea being allowed and take a

decision.

If the employee against whom the enquiry is held misbehaves

with the enquiry officer or with the witnesses or with any other person

present during the enquiry or does any act hindering the smooth

conduct of the enquiry such fact shall be recorded by the enquiry officer.

If the employee against whom the enquiry is held leaves the enquiry

during the conduct of the proceedings without the permission of the

enquiry officer, the enquiry officer may at his discretion, proceed with

the enquiry without the employee being present after recording such

fact.

Functions of Enquiry Officer:

An Enquiry Officer should complete the enquiry and submit his

findings to the Disciplinary Authority as expeditiously as possible. To

this end he should:

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(a) Advise the date of the first hearing to the employee. He may also
advise about the list of documents and witnesses to be relied upon by

the prosecution and forward copies of the documents which would be

received by him from the Presenting Officer.

(b) Following are the persons allowed in an enquiry proceeding:

i. Delinquent employee

ii. Presenting Officer

iii.Defence Representative if any

iv. Only one witness, at a time who is being examined

(c) Ensure that the employee is present during all sittings of the enquiry.

Without his presence, enquiry should not be conducted.

(d) At the enquiry, ensure identity of the employee and ascertain basic

details about him, such as name, age, etc.

(e) Ask the employee whether he has received the charge sheet quoting

the charge sheet number and date.

(f) Read out the charges one by one and ask him whether he admits the

charge. If the employee pleads guilty for a charge proceed to the next

charge.

If he does not plead guilty to the charges, ask him if he is going

to be represented by any defence representative. If so, obtain letter

from the employee appointing defence representative.

(g) Ensure that the defence representative is no one other than a

representative of a registered union, or with the permission of the

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Disciplinary Authority, a lawyer. The defence representative need not

necessarily be a representative of the recognised union. If the employee

wishes to engage a lawyer, the matter should be referred to the

Disciplinary Authority and further proceedings should be held only on

receipt of his advices.

(h) Advise the Presenting Officer to present his case and then to start

examination-in-chief of his witnesses. Immediately after examination-in-

chief of each witness is over, allow the witness to be cross-examined by

the Defence Representative and to be re-examined by the Presenting

Officer after the cross-examination is over.

(i) Then ask the Defence Representative to conduct examination-in-chief

of the defence witnesses also and then follow a similar procedure as

above.

(j) After each witness has been disposed of obtain the signatures of all

present, in the recorded note book on each page. The witness should

also sign before he leaves the room.

(k) After all the witnesses of the prosecution and defence have been

examined on the last day of the sitting; the Presenting Officer may be

advised to present his summing up followed by the Defence

Representative. If they so desire, they may be allowed to submit written

brief. In that case, advise Presenting Officer to submit one copy of his

brief to the defence Representative.

(l) Advise the Defence Representative that on receipt of Presenting

Officer’s brief, he should submit his brief.

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(m) On receipt of Defence Representative’s brief, prepare the findings

and submit it to the Disciplinary Authority.

Enquiry Findings:

The Enquiry Officer should narrate briefly the statement made

and the evidence laid before him both in support of and against the

charge. He should analyse each charge as to whether it is proved or not.

The findings should not suggest any punishment. They should be

supported by cogent reasons to be set out clearly in the report. The

Charge Sheet, Explanation, and Record of Enquiry and the findings of

the Enquiry Officer will have to be submitted to the Disciplinary

Authority, for decision. The decision and punishment, if any, shall be

communicated in writing to the employee concerned as early as

possible.

The Enquiry Officer should also note:

(a) To conduct the enquiry on an on-going basis and not postpone it on

flimsy grounds.

(b) To fix the date of the next hearing at the time of postponement and

advise all concerned, in case postponement is granted under compelling

circumstances.

(c) To ensure that, if postponements are granted the next sitting

commences at the earliest.

(d) To route all communications addressed to employees / officials,

calling them to attend the enquiry as Witness / Defence Representative

/ Presenting Officer etc., through the BranchManagers / Department

Heads only.

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(e) To advise the Branch Manager / Departmental Heads at the end of

each sitting, by means of a letter mentioning the dates on which the

enquiry was conducted to enable them to grant on-duty leave etc., to

the concerned employees / officials.

This letter should be handed over to each of the employees /

officials, who had attended the proceedings as Defence Representative /

Presenting Officer / Witness etc., with instructions to deliver it to their

Branch Managers / Dept. Heads concerned.

Where the delinquent employee does not have a Defence

Representative and would still like himself and his witness examined, the

Enquiry Officer should formulate the questions in the Examination-in-

Chief and re-examination on behalf of the employee, the cross-

examination being conducted by the Presenting Officer.

Other Salient Points:

(i). Ex-Parte: While reasonable opportunity should be provided to the

employee to defend himself, willful delay of the proceedings on his part

on flimsy grounds such as the non-availability of Defence

Representative etc., should not be allowed. Where the enquiry is

conducted ex-parte, the Presenting Officer will present his case by

introducing the witnesses and documents in the usual manner.

There will, however, be no cross-examination, since the defence is

not present. The Enquiry Officer should also record all such proceedings

as detailed above and proceed on merits of the case.

(ii). Examination-In-Chief: An examination-in-chief is one in which the

prosecution / defence asks questions of his own witness to bring out the

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facts of the case from that witness, which will help him prove his case. In
the examination-in-chief, the party introducing the witness i.e.,

prosecution or the defence should ascertain identity of the witness by

asking a few questions relating thereto. The witness need not answer

under oath. The prosecution / defence then proceeds to get answers by

asking questions to establish the points, as may be required by it,

through that witness.

(iii). Cross-Examination: After the examination-in-chief of each witness

by prosecution / defence is over, the other side is permitted to cross-

examine the witness to bring out any hollowness in his statements in

the examination-in-chief. Questions to re-establish the averment of the

witness and / or leading questions can, therefore, be asked during the

cross-examination. This does not mean that questions which are

offensive or irrelevant can be permitted.

(iv). Re-Examination: For the purposes of obtaining clarification on

some of the points which emerged during cross-examination, the side

which introduced the witness is allowed to re-examine the witness after

the cross-examination is over.

(v). Defence Representative And His Role: The charge sheeted

employee has a right to have him defended by a representative of a

registered trade union of Bank Employees. He can also be represented

by a Lawyer with the prior approval of the Disciplinary Authority. The

Enquiry Officer should note that he has no powers to permit the

delinquent employee to be represented by a Lawyer.

If a request therefore is received, it should be referred to the

Disciplinary Authority for his approval. It should also be noted that there

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can be only one representative for each employee. The role of the
Defence Representative is to disprove the charges leveled against the

delinquent employee in the charge sheet. To this end, he will also

produce documents and witnesses well in advance and cross-examine

prosecution witnesses. He will also submit a brief to the Enquiry Officer,

after going through the prosecution brief.

(vii). Awarding of Punishment by Disciplinary Authority: On receipt

of the proceedings and findings of the Enquiry Officer, the Disciplinary

Authority should forward a copy of the findings of the Enquiry Officer to

the delinquent employee and advise him to submit his comments on

the findings of the Enquiry Officer within a specific period of time. On

receipt delinquent employee’s comments or after expiry of specific

period of time given to delinquent employee to submit his comments,

the Disciplinary Authority should come to his own conclusion by going

through all the papers and applying his mind dispassionately. He should

also record his views on the Enquiry Officer’s findings in respect of each

charge separately.

When Enquiry Officer has No powers

1) He does not have powers to order payment of subsistence allowance

or to determine the quantum of subsistence allowance.

2) He does not have powers to order payment of salary,incentive, perks

or allowance to chargesheeted employee.

3) He does not have powers to order transfer of chargesheeted

employee.

4) He does not have powers to determine the quantum of punishment.

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5) He does not have powers to order suspension of any employee or to

revoke the suspension.

6) He does not have powers to order releasing of promotion which is

withheld due to chargesheet.

7) He does not have powers to order releasing of non statutory benefits

which are withheld due to chargesheet.

The aggrieved employee or his union can rise these issues before

the competent authority in labour department or in labour court but

enquiry officer should not be allowed to dictate terms to management.

Enquiry Report.

An oral enquiry is held to ascertain the truth or otherwise of the

allegations levelled against the delinquent Government servant. The

report of the Inquiry Officer is intended to serve the basis on which the

disciplinary authority has to take a decision as to whether or not the

imposition of any penalty on the Government servant is called for.

It is, therefore, obligatory on the part of the Inquiry Officer to

consider the entire evidence adduced during the enquiry before

submitting his report to the Disciplinary Authority. The Inquiry Officer

should take into consideration all the circumstances and facts of the

case, as a rational and prudent man, and draw his conclusions as to

whether the charges are proved or not.

Each conclusion should be based on cast iron logic. The Supreme

Court in the case of Girdhari Lal Vs. Assistant Collector, 1970(2) S.C.C.

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530 has emphasized the need for correct assessment of evidence on an

objective analysis based on cast iron logic.

The Inquiry Officer should submit his report in writing, duly

signed by him. In case the Inquiry Authority is a Board consisting of

more than one Member, each member of the Board of Inquiry should

sign the report.

Form and Content of the Report

Rule 14(23 of the CCS (CCA) Rules, 1965 makes it obligatory on

the part of the Inquiry Officer to prepare a report since it provides that

after the conclusion of the enquiry, a report shall be prepared. The

report shall be in the narrative form and shall contain

(i). an introductory paragraph indicating the terms of reference under

which the enquiry was held, i.e. a reference to the order appointing the

Inquiry Officer, and the dates and places at which the enquiry was held;

(ii). broad statement of the case under enquiry including the articles of

charge and statement of imputations of misconduct or misbehaviour or

a gist thereof;

(iii). charges which were admitted or dropped or not pressed, if any,

during the preliminary hearing;

(iv). the charges that were not admitted and actually enquired into;

(v). any points arising out of the inspection of listed documents asked

for by the Charged Officer including brief statement of facts and

documents which were admitted;

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(vi). brief statement of the case of the disciplinary authority in respect of

the articles of charge actually enquired into and the gist of the evidence

produced on behalf of the disciplinary authority, material evidence

getting a place of pride;

(vii). statement of defence of the charged official, and the defence

evidence adduced during the enquiry, mention being made whether the

Charged Official examined himself as his own witness;

(viii). points for determination arising out of the statement or

prosecution case and defence case;

(ix). an objective analysis of evidence adduced during the enquiry from

both sides and assessment of the same in respect of each point set out

for determination and the finding thereon;

(x). finding on each article of charge with reasons therefor;

(xi). signature of the Inquiring Authority.

The Inquiry Officer after he has signed and submitted the enquiry

report becomes functus officio and has no power to change, modify or

amend his report

Enquiry Proper

At the appointed time, the enquiry is commenced by the Enquiry

Officer, in the presence of chargsheeted workmen and company's

representative (prosecution officer). If chargesheeted workman has

brought his co-workman, he too would be present from the beginning.

If he has not brought one, enquiry officer should give him opportunity

to bring one. This fact is required to be noted in the proceedings.

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The enquiry officer should proceed only if he is satisfied that

notice of enquiry has been received by the workman concerned or the

notice is published in newspaper (as in the case of chargesheet). If the

chargesheeted workman is not present and even if there is no prayer for

adjournment, there should be no hurry to conclude the enquiry exparte,

and the enquiry officer may adjourn the enquiry, even if objected to by

the prosecution officer and advise the company to advise the workman

about the adjourned date of enquiry.

The enquiry officer is the supreme authority in regard to enquiry

proceedings. All matters pertaining to enquiry are required to be done

by and through him. The Company should not indulge in any

correspondence with the chargesheeted workman in regard to any

matter pertaining to enquiry (except under orders of the enquiry officer).

But it there is objection to the enquiry officer proceeding on the basis of

doctrine. of bias, the company itself should decide the said objection. It

is not for the Enquiry Officer to decide objection against him.

The enquiry officer records all that happens, preferably by his own

hand and if possible in the language understood by the workman. If the

language of recording is going to be other than the language

understood by the chargesheeted workman, and his co-workman (if not

available one independent employee i.e. not a witness on either side) is

required to be kept present throughout the enquiry to act as interpreter.

The enquiry officer begins with recording the names of persons

present (better to take signatures of persons present) and goes on

recording all that happens and all that he does. Then he reads and

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explains the chargesheet and the explanation and gets confirmed that
the chargesheeted workman has understood both the basic documents.

Then the enquiry officer asks the workman whether he pleads

guilty of the charges alleged. If guilt is pleaded, that fact may be

recorded and signatures of all present is obtained and the enquiry is

closed then and there. If the workman pleads not guilty, the enquiry

proceeds.

At this stage the enquiry officer explain the procedure (even if it is

mentioned in the enquiry notice) to all present, records the same and

obtains signatures of all present. This procedure is short if,

i) Company's witnesses will depose one by one in such a way that no

subsequent deponent hears the proceeding depositions.

ii) Each witnesses may be cross-examined either immediately after the

examination-inchief, or after all the prosecution witnesses are over or

after the workman is given a copy of deposition concerned. (These

copies may be given after each deposition or after all the depositions on

the side of prosecution).

iii) After all the witness of the company are over (then and then only)

the workman will give his defence witnesses including himself. Then

they will be examined (by the, chargesheeted workman or his

representative one by one and cross examined (by the prosecution

officer) as in the case of prosecution witnesses.

iv) After the evidence on both sides are over, both sides may be
permitted to make submissions (arguments), orally or in writing. Then,

prosecution officer opens the case, if necessary explaining what he

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proposes to prove. in support of the chargesheet. Each witness also

produces the documents and records considered relevant or necessary.

This portion of evidence (Examination-inChief) is recorded in

narrative form by the Enquiry Officer. The documents/records produced

by the witnesses are marked as exhibits. Then opportunity is given (and

so stated in the proceedings) to the chargesheeted workman to cross-

examine the deponent (He himself and/or his co-worker/his union's,

representative) may crossexamine.

As-indicated earlier this cross-examination may be done by

defence immediately after each deposition or after he gets the copies of

the deposition and the documents marked as exhibits. (If the exhibits

cannot be copied, they are offered for inspection. This fact is also

recorded. When copies are given either of the proceedings or

depositions, or the documents they are to be certified, by the enquiry

officer to be marked true copies).

Then cross-examination may be done either before the next

deponent's examination-in-chief, or after examination-in-chief of all the

deponents of the side of prosecution is over, depending upon the

procedure adopted by the Enquiry Officer, but it is in the interest of the

workman to press for earlier course and if pressed the enquiry officer

must follow the said course. The cross examination is recorded generally

in question and answer form. After the cross examination, when

considered necessary, the enquiry officer may allow reexamination-

inchief followed by re-cross examination.

The examination-in-chief as well as the cross examination and the

re-examination are required to be read over and explained (and so

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recorded in the proceedings) to the deponent in presence of all present,

where after the deponent signs. All other present also sign the same (It

is advisable to get signature of all present on all papers. If the workman

or his coworkman does not sign the proceedings the fact should be so

recorded. (It is advisable that the fact of not signing is given in a letter

to the chargesheeted workman).

After the evidence of the prosecution is completed the

chargesheeted workman is given opportunity to give his witnesses

including himself, in the same manner as the prosecution witnesses:

Then, the enquiry officer should ask (and so record) whether the

chargesheeted workman has anything to say further or to give any

further evidence in defence. When the evidence is over, the enquiry

officer may permit both parties to submit their arguments (orally or in

writing) substance of which should be recorded by the enquiry officer

and signatures of all present obtained.

After this is over an endorsement to the effect that the enquiry is

concluded should be made and signature of all present obtained. It is to

be noted that the enquiry officer is required to put his signature at every

stage and on all the pages of the proceedings. If the proceedings are

dictated by the Enquiry Officer, then he should check the typed sheets

and put on an endorsement to the effect that it was taken at his

dictation and that he checked and found them correct.

If the worker is not present, inspite of opportunity given, the

enquiry will have to proceed exparte. If the worker abandons the

enquiry in its midst, even then the proceedings are to be completed,

though only one side (company) will be then before the enquiry officer.

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The enquiry officer should refrain from debasing himself to the

position of prosecution officer or a hangman. He should not, as pointed

above (and also cannot) depose against the workman. He should not

cross-examine the workman or company' s witnesses. At best he may

ask only preliminary and clarification questions about statements

already given. He may point out to both parties if any material evidence

has escaped the attention of either party.

Though law of evidence is not applicable to domestic enquiry, the

spirit of that law should be observed e.g. leading question should not

be asked in examination-in-chief and before the charges are brought

home to the chargesheeted workman, he should not be asked to state

his defence. Every deponent should be permitted to say only what he

did, what he saw and what he heard.

In case of enquiries against a large number of workmen (on

similar charges who all cannot participate simultaneously in the enquiry)

copies of the statement of witnesses (examination-in-chief) in support

of the chargesheet obtained before the first batch of chargesheeted

workmen may -be supplied to (and also read over) to the subsequent

batch/ batches of chargesheeted workman, with opportunity to each

one of them to cross examine each deponent on the side of prosecution.

The success of the enquiry proceeding will depend on the fairness

and impartiality of the enquiry officer, and his eagerness to be objective

and even handed, his tact, honesty, patience and wisdom would alone
guarantee fruitful and purposeful enquiry. He should not only be just

but he should seen to be just. All that he says, and that he does in the

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enquiry must inspire confidence about his honesty and his honest effort
to come to a honest conclusions about the facts in dispute.

Findings

After the proceedings of the enquiry are complete, then begins

the real and crucial task of the enquiry officer. He has to prepare his

report. It is his (and not any one else's i.e. not any one's biding or

dictation) report. That is his honest study, his honest sifting and

weighing of evidence, his honestly believed reasonings, his conclusion

(according to best of his light) and his own conclusions about the

veracity or otherwise of the accusations and charges in the chargesheet.

This is the judgement of the case heard by him.

In this, he is to give, in brief, the details of the enquiry held

(technical data and procedural data) including the persons examined

and documents exhibited on both sides. He should_ give the

accusations and charges made and defence pleas taken in regard to

each of them. He should briefly discuss the evidence on each

accusation/charge/and give findings on each along with reasons, in brief.

He should particularly deal with each plea set up in defence.

In the end he should clearly state which of the charges stand

proved according to him (he may also state which of the charges are

disproved or not proved). It is not his business to recommend

punishment, though he may (and should) state in his report the

accentuating and extenuating circumstances if any proved before him.

Enquiry Officer should scrupulously ignore the evidence if any given in

regard to charges not levelled in the chargesheet. Similarly, he should

ignore all evidence in regard to conduct of chargesheeted workman

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after the issue of chargesheet. The findings duly signed and dated are
required to be given to the authority who appointed the enquiry officer.

Punishment

It is the function and rather a duty cast upon the disciplinary

authority to examine the findings of the enquiry officer and decide the

quantum of punishment, if any. The quantum of punishment should not

be in excess to the degree of offence committed by a delinquent worker.

This is known as "substantial justice".

Findings of the domestic enquiry are not altogether binding on

the disciplinary authority and the authority may differ from them.

However, it is imperative that where the disciplinary authority differs

from the findings of the enquiry officer he should record his reasons for

doing so. Failure to do so amounts to violation of rules of natural justice.

In State of Assam Vs. Bimal Kumar Pandi (AIR 1963 SC, 1612), the

Supreme Court have observed as follows: "If the dismissing authority

differs from the findings recorded in the inquiring officer' s report, it is

necessary that its provisional conclusions in that behalf should be

specified in the second notice. It may be that the report makes findings

in favour of the delinquent officer, but the dismissing authority

disagrees. In such a case it would obviously be necessary that the

dismissing authority should expressly state that it differs from the

findings recorded in the enquiry report and then indicate the nature of

the action proposed to be taken against the delinquent official. Without

such an express statement in the notice, it would not be possible to

issue the notice at all."

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Who is authorized to punish employee

It is only the employer or the appointing authority also known as

notified disciplinary authority who can pronounce the penalty. The

enquiry officer should examine the evidence and give his findings on
charges leveled on delinquent employee.

Communication of the Order of Punishment

Orders of the disciplinary authority ought to be speaking orders

because when appeal lies in such cases, the delinquent worker is

required to attack the decision on the grounds specified in the order.

The principles in this regard have been laid down by the Supreme

59 Domestic Enquiry Court in Madhya Pradesh Industries Ltd/.' Vs Union

of India (AIR 1966: SC671) which may be summed up as follows:

1) Administrative authorites when acting as tribunal, must give reasons

in support of their orders for the following considerations:

i) in giving reasons a tribunal discloses its mind and this

requirement introduces clarity and excludes arbitrariness. It gives

satisfaction to the party affected and enables the appellate authority to

keep the lower tribunals within bounds.

ii) if tribunals are allowed to make orders without giving reasons,

this power in the hands of unscrupulous or dishonest officers may turn

out to be a potent weapon for abuse.

2) No reasons need, however, be given by the appellate authority where

the original tribunal give adequate reasons for its decision and the

appellate authority confirms the orders passed by the former, since the

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appellate authority will be merely agreeing with the reasons given by

the original tribunal.

The final order in disciplinary case takes effect only on the

communication of it to the delinquent worker concerned not a day

earlier. However, order of dismissal passed with retrospective effect i.e.

from the date of suspension does not become invalid; only date of

effect is changed (AIR 1966: SC 951).

Intervention by Courts

Courts may intervene and negative the order of the punishing authority

under the following circumstances:

i) Where rules of natural justice, as outlined above, are violated in the

enquiry proceedings and in imposition of punishment.

ii) Where specific statutory rules or the provisions of the standing order

prescribing mode of enquiry are offended.

iii) Where there is no evidence or there is insufficient evidence to prove

the charges levelled against the delinquent worker. Charges should be

established conclusively if punishment is awarded.

iv) Where considerations extraneous to the evidence and merits of the

case are taken into account.

v) Where the conclusions drawn from the evidence are on the face of it

wholly arbitrary or perverse.

vi) Under Section 11-A of the Industrial Disputes Act as amended, the

Industrial Tribunal have been given powers to reassess the evidence on

record and. modify the quantum of punishment, if found necessary.

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Principles of natural justice

The management of the industrial establishments must satisfy the

principles of natural justice while maintaining a neutral attitude towards

the workmen. The delinquent employee must be apparently

informed about the charges levelled against him and shall be provided

with an opportunity to be heard so he can refute them and establish his

innocence. He must be given an occasion to cross-examine the

witnesses in his defence and evidence at the enquiry should be adduced

in his presence.

The punishment awarded, if proven guilty, should be in

proportion to the misconduct committed. These principles of natural

justice are specified in Sections 2(b), 5(2), 10A (2) and 13A of The

Industrial Employment (Standing Orders) Act, 1946.

In Union of India vs. T. R. Verma, 1957 AIR 882 (1958 SCR

499), the court laid down that the principles of natural justice require the

charge sheeted employee shall have an opportunity of adducing the

relevant evidence and that the evidence of the employer should be

taken in his presence; he should be given the opportunity of cross-

examining the witnesses examined on behalf of the management, and

that no materials should be relied upon against him without giving him

an opportunity to explain to them. Following the procedure, the

evidence recorded at an enquiry is not open to attack.

Principle of Natural Justice is derived from the word ‘Jus

Natural’ of the Roman law and it is closely related to Common law and

moral principles but is not codified. It is a law of nature which is not

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derived from any statute or constitution. The principle of natural justice

is adhered to by all the citizens of civilised State with Supreme

importance. In the ancient days of fair practice, at the time when

industrial areas ruled with a harsh and rigid law to hire and fire, the

Supreme court gave its command with the passage of duration and

establishment of social, justice and economy statutory protection for the

workmen.

Natural justice simply means to make a sensible and reasonable

decision making procedure on a particular issue. Sometimes, it doesn’t

matter what is the reasonable decision but in the end, what matters is

the procedure and who all are engaged in taking the reasonable

decision. It is not restricted within the concept of ‘fairness’ it has

different colours and shades which vary from the context.

Natural Justice recognizes three principles: (i) Nemo debet essc

judex in propria causa. (ii) Audi alterem partem, and (iii) Speaking orders

or reasoned decisions.

Basically, natural justice consists of 3 rules.

 The first one is “Hearing rule” which states that the person or party

who is affected by the decision made by the panel of expert

members should be given a fair opportunity to express his point of

view to defend himself.

 Secondly, “Bias rule” generally expresses that panel of expert should

be biased free while taking the decision. The decision should be

given in a free and fair manner which can fulfil the rule of natural

justice.

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 And thirdly, “Reasoned Decision” which states that order, decision or

judgement of the court given by the Presiding authorities with a

valid and reasonable ground.

Origin

The principle of natural justice is a very old concept and it

originated at an early age. The people of Greek and roman were also

familiar with this concept. In the days of Kautilya, arthashastra and

Adam were acknowledged the concept of natural justice. According to

the Bible, in the case of Eve and Adam, when they ate the fruit of

knowledge, they were forbidden by the god. Before giving the sentence,

eve was given a fair chance to defend himself and the same process was

followed in the case of Adam too.

Later on, the concept of natural justice was accepted by the

English jurist. The word natural justice is derived from the Roman

word ‘jus-naturale’ and ‘lex-naturale’ which planned the principles of

natural justice, natural law and equity.

“Natural justice is a sense of what is wrong and what is right.”

In India, this concept was introduced at an early time. In the case

of Mohinder Singh Gill vs. Chief Election Commissioner, the court held

that the concept of fairness should be in every action whether it is

judicial, quasi-judicial, administrative and or quasi-administrative work.

Purpose of the principle

 To provide equal opportunity of being heard.

 Concept of Fairness.

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 To fulfil the gaps and loopholes of the law.

 To protect the Fundamental Rights.

 Basic features of the Constitution.

 No miscarriage of Justice.

The principles of natural justice should be free from bias and

parties should be given fair opportunity to be heard and all the reasons

and decision taken by the court should be informed by the court to the

respective parties.

Supreme court said that arriving at a reasonable and justifiable

judgement is the purpose of judicial and administrative bodies. The

main purpose of natural justice is to prevent the act of miscarriage of

justice.

A committee i.e. “Ministers Power” gave 3 essentials procedure

related to the principles of natural justice.

 No one should be a judge in his own matter.

 No one can be condemned unheard.

 The party is entitled to know each and every reason and the decision

taken by the authority.

When it can be claimed?

Natural justice can be claimed when acting judicially or quasi-

judicial like panchayat and tribunals etc. as well. It includes the concept

of fairness, basic moral principles and various different kinds of biases

and why the natural justice is required and what all special cases or

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situation it includes where the principles of natural justice will not be

applicable.

In the case of Board of high school vs. Ghanshyam, a student

was caught while cheating in the examination hall and he was debarred
due to the act. Supreme Court held that student cannot file a Public

Interest Litigation against the examination board.

High water mark case- Eurasian equipment and company limited

vs. State of West Bengal: Under this case, all the executive engineers
were blacklisted. Supreme Court held that without giving a valid and

reasonable ground you cannot blacklist anyone and further he should

be given a fair opportunity of being heard.

Rules of Natural Justice

(1) Nemo in propria causa judex, esse debet – No one should be made a

judge in his own case, or the rule against bias.

(2) Audi alteram partem – Hear the other party, or the rule of fair

hearing, or the rule that no one should be condemned unheard.

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to

rule of biases.

Bias means an act which leads to unfair activity whether in a

conscious or unconscious stage in relation to the party or a particular

case. Therefore, the necessity of this rule is to make the judge impartial

and given judgement on the basis of evidence recorded as per the case.

Bias is of 6 kinds, namely:

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i. Personal Bias.

ii. Pecuniary Bias.

iii. Subject matter Bias.

iv. Departmental Bias.

v. Policy notion Bias.

vi. Bias on the account of obstinacy

Audi Alteram Partem

It simply includes 3 Latin word which basically means that no

person can be condemned or punished by the court without having a

fair opportunity of being heard.

In many jurisdictions, a bulk of cases are left undecided without

giving a fair opportunity of being heard.

The literal meaning of this rule is that both parties should be

given a fair chance to present themselves with their relevant points and

a fair trial should be conducted.

This is an important rule of natural justice and its pure form is not

to penalize anyone without any valid and reasonable ground. Prior

notice should be given to a person so he can prepare to know what all

charges are framed against him. It is also known as a rule of fair hearing.

The components of fair hearing are not fixed or rigid in nature. It varies

from case to case and authority to authority.

Components

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(i). Issuance of notice– Valid and proper notice should be given to the
required parties of the matter to further proceed with the procedure of

fair trial method. Even if the statute does not include the provision of

issue of notice then it will be given prior to making decisions. This was

held in the case of Fazalbhai vs. custodian.

In the case of Kanda vs. Government of Malaya, the court held

that notice must directly and clearly specify on the matter of bias, facts

and circumstances against which needs to be taken. It’s one of the

rights of the individual to defend himself so he should be familiar with

the relevant matter so he may contradict the statement and safeguard

himself.

The notice should be with regard to the charges framed against

the accused person and proceeding to be held. He can only be

punished on the charges which are mentioned in the notice, not for any

other charges.

(ii). Right to present the case and evidence– After receiving the notice

he must be given a reasonable time period to prepare and present his

case in a real and effective manner. The refusal should not be done on

the unreasonable ground or due to arbitrary.

(iii). Right to Cross Examination– Right of fair hearing includes the

right to cross-examination the statement made by the parties. If

tribunals denied the right to cross-examination then it will violate the

principles of natural justice. And all the necessary copies of documents

should be given and failure of that will also encroach the principle. The

department should make available officers who are involved in the

procedure of investigating and do cross-examination. Cross-

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examination is defined under Section 137 of the Indian Evidence Act,

1872 (amended).

In certain exceptional cases, the right to cross-examination can be

denied or rejected. Hari Nath Mishra vs. Rajendra Medical College,

under this case a male student was charged off some indecent

behaviour towards a female student. So, here the right to cross-

examination was denied for the male student as it will lead to

embracement for the female student and it will not also lead to violation

of natural justice.

Sometimes it becomes very necessary to keep the identity

confidential as there is a threat of life and property. And the same

situation was faced in the case Gurubachan Singh vs. the State of

Bombay.

In the case of Ludhiana food product, the court held that If the

party itself refuse to cross-examine the witness then it will not fall under

miscarriage of natural justice.

(iv). Right of Legal representative– In the process of enquiry, every

party has the right to have a legal representative. Each party will be

presented by the legally trained person and no one can deny (A.K.Roy).

Similarly, the department has the same right to direct its officer even

though there are investigating officer in conducting an adjudicating

proceeding (Sanghi textile processor vs. Commissioner).

Exceptions

 During the Emergency period

 Public interest

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 Express statutory provision

 Nature of the case is not of a serious kind

 If it doesn’t affect the status of the individual

Applicability

Natural justice is applicable to some of the following points:-

 Court- except to ex-parte

 Tribunals

 Authority entrusted with discretion but subject to legal limitations

 Reasoned Decision

Basically, it has 3 grounds on which it relies:-

 The aggrieved party has the chance to demonstrate before the

appellate and revisional court that what was the reason which makes

the authority to reject it.

 It is a satisfactory part of the party against whom the decision is

made.

 The responsibility to record reasons works as obstacles against

arbitrary action by the judicial power vested in the executive

authority.

Conclusion

The principles of natural justice have been adopted and followed

by the judiciary to protect public rights against the arbitrary decision by

the administrative authority. One can easily see that the rule of natural

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justice include the concept of fairness: they stay alive and support to
safeguard the fair dealing.

So at all the stages of the procedure if any authority is given off

the judicial function is not purely accepted but the main motive of the
principal is to prevent the miscarriage of justice. It is supreme to note

that any decision or order which violates the natural justice will be

declared as null and void in nature, hence one must carry in mind that

the principles of natural justice are essential for any administrative

settlement to be held valid.

The principle of natural justice is not confined to restricted walls

the applicability of the principle but depends upon the characteristics of

jurisdiction, grant to the administrative authority and upon the nature of

rights affected of the individual.

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