INDUSTRIAL RELATIONS CODE

Introduction
The Industrial Relations Code, 2020 provides a broader framework to protect the rights of workers to
make unions, reduce the friction between employers and workers, and provide regulations for the
settlement of industrial disputes. The Industrial Relations Code, 2020 was enacted by the Central
Government, and with respect to the same, most of the State Labour Department has been publishing its
draft rules, which will soon be implemented. The Code has been introduced in order to amalgamate,
simplify and subsume the following three central labour acts under one Code:

(i) The Trade Unions Act, 1926

(ii) The Industrial Employment (Standing Orders) Act, 1946
(iii) The Industrial Disputes Act, 1947

The Code has 104 sections spread in XIV Chapters and three schedules relating to the Standing Orders,
Unfair Labour Practice and Condition of Service for Change of which notice has to be given respectively.

Scope and Applicability

The Code is applicable to the whole of India. The Code is designed to consolidate and amend the laws
regarding Trade Unions, conditions of employment in industrial establishment or undertaking, and aims
settlement of industrial disputes. The Code regulates the subsequent areas:
* Registration, Cancellation and Alteration of Name of Trade Union
* Constitution of Work Committee and Grievance Redressal Committee

Incorporation of a Registered Trade Union

Recognition of Negotiating Union
Preparation of Standing Order
Register of Standing Order
Constitution of Industrial Tribunal
Illegal Strikes and Lock-outs
Procedure for Retrenchment and Re-employment of Retrenched Worker

Compensation to Workers in Case of Transfer of Establishment

* Prohibition of Lay-off
Closure of an Industrial Establishment

Objectives
* The Code is designated to safeguard the rights of employers and employees by providing easy labour
reforms and facilitating Ease of Doing Business.
* The object of the Code is to realise industrial peace and harmony as the ultimate pursuit in resolving
industrial disputes and to advance the progress of the industry by bringing about the existence of harmony
and cordial relationship between the employers and workers.

Factors Contributing to the Growth of Trade Union in India

After World War I, there were major changes which included increase in the prices of essential
commodities. However, the wages of labourers did not increase. The condition of workers became
miserable. In the meantime, the Russian Revolution of 1917 and the establishment of the USSR
compelled the workers to reconsider their social order. Similarly, the establishment of the International
Labour Organisation (ILO) in 1919 gave a boost for protection of the workers' interests.

During the 1920s, the rise of socialist ideology in India led to the formation of trade unions, The Gaya
Session of Congress in 1922 adopted a resolution allowing party workers to participate in trade union
activities, providing additional impetus to trade unions. According to the resolution, a committee was
formed with Lala Lajpat Rai, C.R. Das and Anusuyaben Sarabhai to organise workers into trade union.
C.R. Das, the President, opined that Congress should provide all necessary aid to the peasants and the
working classes in their fight for attaining the Swaraj since they were heavily exploited by the Britishers
and the loyalists. The growth of communist parties sparked the interest of the workers and which
expanded the trade union.

Factors Leading to Growth of Trade Union in India

1. Industrialisation: The process of industrialisation in India, particularly after

independence in 1947, led to the growth of the organised workforce. As industries expanded, so did the
number of workers, creating a need for collective representation and negotiation.

2. Labour Exploitation: Historically, many workers in India faced harsh working conditions, low wages,
and exploitation by employers. Trade union emerged as a response to these grievances, providing a
platform for workers to voice their concerns and demand better working conditions.

3. Legislative Support: The legal framework provided by laws like the Trade Unions Act, 1926, and the
Industrial Disputes Act, 1947 gave trade union formal recognition and rights. These laws allowed unions
to register, negotiate on behalf of workers, and engage in industrial dispute resolution.

4. Political Influence: Many trade unions in India are affiliated with political parties. These affiliations
have provided unions with political support and resources, contributing to their growth and influence.

5. Collective Bargaining: Trade unions are essential for collective bargaining. They negotiate with
employers on behalf of workers for better wages, working conditions, and benefits. The ability to
collectively bargain has been a significant attraction for workers to join unions.

6. Worker Awareness: Increased awareness among workers about their rights, labour laws, and the
benefits of collective action has led to more workers joining trade unions to protect their interests.

7. . Changes in Employment Patterns: The changing nature of employment, including the growth of the
informal sector, contractual labour, and gig economy workers, has spurred the need for unions to protect
the rights of these workers who may be vulnerable to exploitation.
8. Social Movements: Various social movements in India, advocating for workers' rights, have
contributed to the growth of trade unions. These movements have raised awareness about labour issues
and encouraged workers to organise.

9. Global Labour Solidarity: Trade unions in India often collaborate with international labour
organisations and unions. This global solidarity has helped Indian unions gain support, resources, and
exposure.

10. Technological Advances: Technology has enabled trade unions to communicate with and organise
workers more efficiently. Online platforms and social media have facilitated union activities and
outreach.

11. Changes in Economic Policy: Shifts in economic policy, such as labour market reforms and changes
in employment laws, have driven workers to seek the protection and representation offered by trade
unions.

12. Social Welfare Initiatives: Trade unions are often involved in advocating for social

welfare initiatives, including healthcare, education, and housing, which resonate with workers and attract
them to union membership.

Thus, the growth of trade unions in India can be attributed to a combination of economic, political, and
social factors. These unions continue to be essential in protecting the rights and interests of workers in a
rapidly changing economic and labour landscape.

The Trade Unions Act, 1926 serves as the legal framework for the functioning of trade unions in India. It
aims to protect the rights and interests of workers and employers while ensuring that trade union activities
are conducted within legal boundaries. This Act plays a crucial role in promoting industrial harmony and
facilitating collective bargaining, which are fundamental to labour relations in India. Additionally, it
recognises the role of trade union as vital entities in safeguarding the rights and welfare of workers in a
democratic and evolving society.

ILO - INTERNATIONAL LABOUR ORGANISATION

In 1919, the International Labour Organisation (ILO) came into existence, as part of the Treaty of
Versailles that ended World War I. The said Treaty was premised on the belief that universal and lasting
peace can be ensured only if it is based on social justice. The Preamble of Constitution of ILO enlists the
regulation of working time and labour supply, the prevention of unemployment and the provision of an
adequate living wage, social protection of workers, children, young persons and women as the key
features. The Preamble also recognises a number of vital principles such as equal remuneration for work
of equal value and freedom of association and highlights, among others, the importance of vocational and
technical education.
Shri N.M. Joshi, a veteran social activist of that time, represented the labourers at the Washington
Summit of ILO in the year 1919. Subsequently, the International Labour Conference was held in 1927.
Shri V.V. Giri also represented the Indian working class. Since its inception, the ILO has framed a
number of conventions and recommendations concerning various aspects of working conditions,
employer-employee relations, labour welfare, social security, etc. One of the earlier and most important
conventions of the ILO is the 'Right to Organise and Collective Bargaining Convention (No. 98), 1949.
This Convention sets out rules for the freedom of unionisation and collective bargaining, principles that
belong to the core values of the ILO. The Convention ensures workers' protection from discrimination for
their membership or engagement in union activities.
Important Conventions/Declaration/Documents

1. Declaration on Fundamental Principles and Rights at Work (1998): The Declaration categorises
fundamental principles and rights into four categories: freedom of association and effective recognition of
the right to collective bargaining, the abolition of forced or compulsory labour, the abolition of child
labour, and the abolition of employment and occupation discrimination.

2. Forced Labour Convention (1930) and its Protocol (2014): This document is one of the primary
international instruments responsible for the worldwide reduction in forced/compulsory labour. It
criminalises the use of forced labour and requires ratifying countries to ensure that it is strictly enforced.
This also includes taking all necessary steps to end all forms of forced labour, as well as identifying and
rehabilitating all victims of such labour.

3. Labour Inspection Convention, 1947: This document requires ILO members to maintain, to the greatest
extent possible, a system of labour inspection in industrial workplaces under the supervision and control
of a central authority.

4. Freedom of Association and Protection of the Right to Organise Convention (1948): This Convention
dealt with the right of workers to form and join organisations of their choice without the approval of their
employer, the right of workers' and employers" organisations to draft their own constitutions and rules,
and the right of workers' and employers' organisations to form and join federations, etc.

5. Right to Organise and Collective Bargaining Convention (1949): This document seeks to protect
workers and workers' organisations from anti-union discrimination in the workplace.

6. Equal Remuneration Convention (1951): The ratifying states are required by this Convention to
promote the application of the equal remuneration principle for work of equal value also aims to secure
gender equality.

7. Abolition of Forced Labour Convention (1957): This Convention expands on the general prohibition in
the preceding document by prohibiting the use of forced labour for political coercion, education,
punishment, mobilising labour for economic development, labour discipline, as punishment for strike
participation, and as a means of racial, social, national, or religious discrimination.
8. Minimum Age Convention (1973): This Convention requires ratifying countries to implement a
national policy aimed at effectively eliminating child labour. It also requires states to raise the minimum
age for employment/work to a level consistent with young people's physical and mental development.

9. Worst Forms of Child Labour Convention (1999): The term "child" refers to all persons under the age
of 18 for the purposes of this Convention. Each member who ratifies this Convention is obligated to take
immediate steps to eliminate the most heinous forms of child labour. This term includes practices such as
slavery, human trafficking, serfdom, and the use of child soldiers, among others.

10. Discrimination (Employment and Occupation) Convention (1958): This addresses discrimination
based on race, colour, gender, sexual orientation, religion, political opinion, national origin, or social
origin. Other distinctions that have the effect of nullifying or impairing equality of opportunity are
included.

11. Employment Policy Convention, 1964: This Convention seeks to ensure that member countries
actively pursue the policy goal of full and equal employment for all of their citizens.

12. Labour Inspection (Agriculture) Convention, 1969: The Convention seeks to impose an obligation on
ratifying countries to refrain from excluding agricultural enterprises from the National Labour Inspection
system. It defines agricultural enterprises and outlines the system functions that specifically cater to such
establishments.

13. Tripartite Consultation (International Labour Standards) Convention, 1976: This document defines
representative organisations in the context of labour and requires the ratifying countries to implement
procedures that allow for effective consultations on issues handled by the ILO. These include government
responses to questionnaires, proposals to the competent authority in connection with
Conventions/Recommendations, re-examination of unratified Conventions, questions arising from reports
to the International Labour Office, and proposals to denounce ratified Conventions.

Influence of ILO in Bringing about Changes in the Constitutional Law and Other Legislations in India

The International Labour Organisation (ILO) has had a significant influence on the development of labour
laws and policies in India, including the Indian Constitution and other legislations:

1. ILO and the Indian Constitution: The principles and objectives of the ILO have been incorporated into
the Indian Constitution which reflects in the chapter of Fundamental Rights Guaranteed by the Indian
Constitution. The right to equality, right against exploitation, and the right to work are influenced by the
principles enshrined in ILO Conventions and Recommendations. Similarly, the Directive Principles of
State Policy in Part IV of the Constitution contain provisions related to labour and employment,
emphasising the welfare of workers, just and humane conditions of work, and the prohibition of child
labour.
2. Minimum Wage Legislation: The concept of minimum wage and fair wages, which is an integral part
of ILO Standards, has influenced Indian labour laws, including the Payment of Minimum Wages Act,
1948.

3. Child Labour Prohibition: India has ratified ILO Convention No. 182 on the Worst Forms of Child
Labour. The influence of the ILO is evident in the Indian laws such as the Child Labour (Prohibition and
Regulation) Act, 1986.

4. Occupational Health and Safety: ILO Conventions related to Occupational Health and Safety have
influenced Indian laws and regulations governing workplace safety, including the Factories Act, 1948; the
Employees' State Insurance Act, 1948; Mines Act, 1952; etc.

5. Trade Union Rights: ILO Conventions on Freedom of Association and the Right to Organise have
played a role in shaping Indian laws related to trade unions, collective bargaining and industrial disputes,
including the Trade Unions Act, 1926 and the Industrial Disputes Act, 1947.

6. Equal Remuneration: The principle of equal pay for equal work, as advocated by the ILO, is reflected
in Indian laws like the Equal Remuneration Act, 1976, which aims to eliminate gender-based wage
discrimination.

7. Social Security and Welfare: The ILO's emphasis on social security and workers' welfare has
influenced Indian policies and laws related to provident funds, gratuity and other social security benefits.

8. Maternity Benefits: The ILO's Maternity Protection Convention has influenced Indian laws such as the
Maternity Benefit Act, 1961, which provides maternity benefits and protection for pregnant and lactating
women in the workforce.

TRADE UNIONS

Registrar of Trade Unions (Section 5)

1. The State Government may, by notification, appoint a person to be the Registrar of Trade Unions, and
other persons as Additional Registrar of Trade Unions, Joint Registrar of Trade Unions and Deputy
Registrar of Trade Unions, who shall exercise such powers and perform such duties of the Registrar as the
State Government may, by notification, specify from time to time.

2. Subject to the provisions of any order made by the State Government, where an Additional Registrar of
Trade Unions or a Joint Registrar of Trade Unions or a Deputy Registrar of Trade Unions exercises the
powers and performs the duties of the Registrar in an area within which the registered office of a Trade
Union is situated, such Additional Registrar of Trade Unions or a Joint Registrar of Trade Unions or a
Deputy Registrar of Trade Unions, as the case may be, shall be deemed to be the Registrar in relation to
that Trade Union for the purposes of this Code.

Criteria for Registration (Section 6)

1. Any seven or more members of a Trade Union may, by subscribing their names to the rules of the
Trade Union and by otherwise complying with the provisions of this Code with respect to registration,
apply for registration of the Trade Union under this Code.

2. No Trade Union of workers shall be registered unless at least ten per cent of the workers or one
hundred workers, whichever is less, engaged or employed in the industrial establishment or industry with
which it is connected are the members of such Trade Union on the date of making of application for
registration.

3. Where an application has been made under sub-section (1) for registration of a Trade Union, such
application shall not be deemed to have become invalid merely by reason of the fact that, at any time after
the date of the application but before the registration of the Trade Union, some of the applicants, but not
exceeding half of the total number of persons who made the application, have ceased to be members of
the Trade Union or have given notice in writing to the Registrar dissociating themselves from the
application.

4. A registered Trade Union of workers shall at all times continue to have not less than ten per cent of the
workers or one hundred workers, whichever is less, subject to a minimum of seven, engaged or employed
in an industrial establishment or industry with which it is connected, as its members.

Provisions to be Contained in Constitution or Rules of Trade Union (Section 7)

A Trade Union shall not be entitled to registration under this Code, unless the executive thereof is
constituted in accordance with the provisions of this Code, and the rules of the Trade Union provide for
the following matters, namely-

(a) the name of the Trade Union;

(b) the whole of the objects for which the Trade Union has been established

c) the whole of the purposes for which the general funds of the Trade Union shall be applicable, all of
which purposes shall be purposes to which such funds are lawfully applicable under this Code,

(d) the maintenance of a list of members of the Trade Union and adequate facilities for the inspection
thereof by the office-bearers and members of the Trade Union;

(e) the admission of ordinary members (irrespective of their craft or category) who shall be persons
actually engaged or employed in the industrial establishment, undertaking or industry, or units, branches
or offices of an industrial establishment, as the case may be, with which the Trade Union is connected,
and also the admission of such number of honorary or temporary members, who are not such workers, as
are not permitted under Section 21 to be office-bearers to form the executive of the Trade Union;
(f) the payment of a subscription by members of the Trade Union from such members and others, as may
be prescribed;

(g) the conditions under which any member shall be entitled to any benefit assured by the rules and under
which any fine or forfeiture may be imposed on any member;

(h) the annual general body meeting of the members of the Trade Union, the business to be transacted at
such meeting, including the election of office-bearers of the Trade Union;

(i) the manner in which the members of the executive and the other office-bearers of the Trade Union
shall be elected once in a period of every three years and removed, and filling of casual vacancies;

(i) the safe custody of the funds of the Trade Union, an annual audit, in such manner as may be
prescribed, of the accounts thereof, and adequate facilities for the inspection of the account books by the
office-bearers and members of the Trade Union;

(k) the manner in which the rules shall be amended, varied or rescinded; and

(1) the manner in which the Trade Union may be dissolved.

Application for Registration, Alteration of Name and Procedure Thereof

(Section 8)

1. Every application for registration of a Trade Union shall be made to the Registrar electronically or
otherwise and be accompanied by-

(a) a declaration to be made by an affidavit in such form and manner as may be prescribed;

(b) copy of the rules of the Trade Union together with a copy of the resolution by the members of the
Trade Union adopting such rules;

(c) a copy of the resolution adopted by the members of the Trade Union authorising the applicants to
make an application for registration; and

(d) in the case of a Trade Union, being a federation or a central organisation of Trade Unions, a copy of
the resolution adopted by the members of each of the member Trade Unions, meeting separately, agreeing
to constitute a federation or a central organisation of Trade Unions.

Explanation: For the purposes of this clause, resolution adopted by the members of the Trade Union
means, in the case of a Trade Union, being a federation or a central organisation of Trade Unions, the
resolution adopted by the members of each of the member Trade Unions, meeting separately.
2. Where a Trade Union has been in existence for more than one year before the making of an application
for its registration, there shall be delivered to the Registrar, together with the application, a general
statement of the assets and liabilities of the Trade Union prepared in such form and containing such
particulars, as may be prescribed.

3. The Registrar may call for further information for the purpose of satisfying himself that the application
complies with the provisions of this Code and the Trade Union is entitled for registration under this Code,
and may refuse to register the Trade Union until such information is furnished.

4. If the name under which the Trade Union is proposed to be registered is identical with that of an
existing registered Trade Union or in the opinion of the Registrar so nearly resembles the name of an
existing Trade Union that such name is likely to deceive the public or the members of either Trade Union,
the Registrar shall require the persons applying for altering the name of the Trade Union and shall refuse
to register the Trade Union until such alteration has been made.

Registration of Trade Union and Cancellation Thereof (Section 9)

1. The Registrar shall, on being satisfied that the Trade Union has complied with all the requirements of
the provisions of this Chapter in regard to registration, register the Trade Union by entering in a register,
to be maintained in such form as may be prescribed, the particulars relating to the Trade Union contained
in the statement accompanying the application for registration.

2. Where the Registrar makes an order for registration of a Trade Union, he shall issue a certificate of
registration to the applicant Trade Union, in such form as may be prescribed, which shall be the
conclusive evidence that the Trade Union has been registered under this Code.

3. If the Registrar has issued a certificate of registration to a Trade Union, he shall enter the name and
other particulars of the Trade Union in a register maintained in this behalf in such form as may be
prescribed.

4. Every Trade Union registered under the Trade Unions Act, 1926 having valid registration immediately
before the commencement of this Code shall be deemed to have been registered under this Code:

Provided that such Trade Union shall file with the Registrar a statement that the constitution of the
executive of the Trade Union is in accordance with this Code along with the rules of the Trade Union
updated in accordance with Section 7, and the Registrar shall amend his records accordingly.

5. The certificate of registration of a Trade Union may be withdrawn or cancelled by the Registrar,-

(i) on the application of the Trade Union verified in such manner as may be prescribed;

or
i) on the information received by him regarding the contravention by the Trade Union of the provisions of
this Code or the rules made thereunder or its constitution or rules, or

(iii) if he is satisfied that the members in a Trade Union falls below ten per cent of total workers or one
hundred workers, whichever is less:

Provided that not less than sixty days' previous notice in writing specifying the

grounds on which it is proposed to cancel the certificate of registration of a Trade Union shall be given by
the Registrar to the Trade Union before the certificate of registration is cancelled otherwise than on the
application of the Trade Union.

6. A certificate of registration of a Trade Union shall be cancelled by the Registrar where a Tribunal has
made an order for cancellation of registration of such Trade Union.

7. While cancelling the certificate of registration of a Trade Union, the Registrar shall record the reasons
for doing so and communicate the same in writing to the Trade Union concerned.

Cases for Reference

In 1935, in Re-Indian Steam Navigation Workers Union, the Calcutta High Court held that a Registrar
just needs to check that all the technical conditions are being met, not whether it could be deemed illegal.

Whereas in ACC Rajanka Limestone Quarries Workers Union v. Registrar of Trade Unions, the Patna
High Court held that it was determined that an appeal might be filed to the High Court under Article 226
of the Indian Constitution if the Registrar fails to register the trade union within three months of the
application.

Registration for two trade unions by workmen In Keshoram Rayon Workers' Union v. Registrar of Trade
Unions, 1968, it was held that workers in an industrial establishment can create multiple unions. The Act
does not prevent rival unions or mandate notice to existing ones. A union seeking registration must only
comply with Act, Rules and Regulations for Trade Union registration.

In the case of Tata Electric Companies Officers' Guild v. Registrar of Trade Unions (1994), the Bombay
High Court ruled that willful disregard of the notification is a requirement for the Registrar to cancel the
registration. The Registrar cannot cancel the registration on the grounds that the account statement was
not filed earlier if the trade union provides the account statement after receiving notification from the
Registrar.

In Mumbai Fire Fighters Service Union v. Registrar of Trade Unions, Mumbai, the Bombay High Court
held that where a two-month show cause notice was not sent by the Registrar to the changed address of
the union, amounts to non-compliance of the mandatory provisions of Section 10 and quashed the order
of cancellation of registration of trade union.
 INDUSTRY - CONCEPTUAL ANALYSIS

(p) "industry" means any systematic activity carried on by cooperation between an. employer and worker
(whether such worker is employed by such employer directly or by or through any agency, including a
contractor) for the production, supply or distribution of goods or services with a view to satisfy human
wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or
not-

(i) any capital has been invested for the purpose of carrying on such activity; ot

(ii) such activity is carried on with a motive to make any gain or profit, but does not include institutions
owned or managed by organisations wholly or substantially engaged in any charitable, social or
philanthropic service; or

(iii) any activity of the appropriate Government relatable to the sovereign functions of the appropriate
Government including all the activities carried on by the departments of the Central Government dealing
with defence research, atomic energy and space; or

(iv) any domestic service; or

(v) any other activity as may be notified by the Central Government.

Explanation: Prior to the enactment of the Industrial Relations Code, 2020, the definition of industry was
explained by the Supreme Court upon examination of the said definition in depth and put forth a
comprehensive analysis setting aside the ambiguity arisen in the past by laying down the triple test in the
case of Bangalore Water Supply and Sewerage Board v. A Rajiappa (hereinafter referred to as Bangalore
Water Supply case). The Supreme Court after considering various previous judicial decisions which lead
to uncertainty of declaring a workplace as industr or not an industry evolved with a new concept of the
term "industry".

1. Sovereign Functions

Sovereign Functions strictly understood, le, maintenance of law and order, legislative functions and
judicial function. Even in departments discharging sovereign functions, if there are units which are
industries and they are substantially severable, then they can be considered tis come within Section 2(j)
(Bangalore Water Supply case). If a department of a municipality discharged many functions, some
pertaining to "industry" and other non-industrial activities, the predominant function of the department
shall be the criterion for the purposes of the Act.

2. Municipalities

Following departments of the municipality were held to be "industry": (i) Tax, (ii) Public Conveyance,
(iii) Fire Brigade, (iv) Lighting, (v) Water Works, (vi) City Engineers, (vii) Enforcement (Encroachment),
(viii) Sewerage, (ix) Health, (x) Market, (xi) Public Gardens. (xii) Education, (xiii) Printing Press, (xiv)
Building and (xv) General Administration. If a department of a municipality discharges many functions
some pertaining to industry and others non-industrial, the predominant function of the department shall be
the criterion for the purpose of the Code.

3. Charitable Institutions

These fall into three categories:

(a) Those that yield profit, but the profits are not siphoned off for altruistic purposes,

(b) Those that make no profit but hire the service of employees as in any other business, but the
goods/services which are the output, are made available at a low or no cost to the indigent poor; and

(c) Those that are oriented on a humane mission fulfilled by men who work, not because they are paid
wages, but because they share the passion for the cause and derive job satisfaction.

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

4-Hospitals

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

* An activity systematically or habitually undertaken for the production or distribution of goods or for the
rendering of material services to the community at large or a part of such community with the help of
employees is an 'undertaking".

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

Thus, activities that have no commercial implications, such as hospitals carried on with philanthropic
motives, would be covered by the expression 'undertaking'. The mere fact that Government runs such
activity is immaterial. In case an activity is industry if carried on by a private person, it would be so, even
if carried on by the Government.

In Management of Safdarjung Hospital v. Kaldip Singh, it was held that a place of treatment of patients
which run as a department of the government was not an industry because it was a part of the functions of
the government. Charitable hospitals run by Government or even private associations cannot be included
in the definition of industry because they have not embarked upon economic activities analogous to trade
or business. If hospital, nursing home or a dispensary is run as a business in a commercial way, there may
be elements of industry.
In Dhanrajgiri Hospital v. Workmen, the main activity of the hospital was imparting of training in nursing
and the beds in the hospital were meant for their practical training. It was held not to be an industry, as it
was not carrying on any economic activity in the nature of trade or business.

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

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

5. Legal Firm

An National Union of Commercial Employees v. MR. Meher, it was held that a solicitor's firm is not an
industry, although specifically considered, it is organised as an industrial concern. The Court held that a
person following a liberal profession does not carry on his profession in any intelligible sense with the
active cooperation of his employees, and the principal/sole capital which he brings into his profession is
his special and peculiar intellectual and educational equipment.

Subsidiary work which is purely incidental type and which is intended to assist the solicitor in doing his
job has no direct relation to the professional service ultimately rendered by the solicitor. There is, no
doubt, a kind of cooperation between the solicitor and his employees, but that co-operation has no direct
or immediate relation to the advice or service which the solicitor renders to his client.

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

6. Clubs

A restricted category of professions, clubs, cooperatives and even Gurukulas may qualify for exemption
if, in simple ventures, substantially and going by the dominant nature criterion substantively, no
employees are entertained, but in minimal matters, marginal employees are hired without destroying the
non-employee character of the unit. But larger clubs are "industry" (as per Bangalore Water Supply case).

7. Universities, Research Institutions, etc.

As regards institutions, if the triple tests of systematic activity, cooperation between employer and
employee and production of goods and services were to be applied, a university, a college, a research
institute or teaching institution will be "industry". The following institutions were held to be "industry":
Ahmedabad Textile Industries Research Association, Tocklai Experimental Station, Indian Standard
Institute, and Universities. However, Physical Research Laboratory, Ahmedabad was held not to be an
industry by the Supreme Court since it is carrying on research not for the benefit of others, and moreover,
it is not engaged in commercial or industrial activity.

8. Voluntary Services
If in a pious or altruistic mission, many employ themselves free or for small honoraria or like return,
mainly drawn by sharing in the purpose or cause such as lawyers volunteering to run a free legal services
clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding
of the Holiness, divinity or Central personality and the services are supplied free or at a nominal cost and
those who serve are not engaged for remuneration or on the basis of master and servant relationship, then
the institution is not an industry even if stray servants manual or technical are hired. Such eleemosynary
or like undertakings alone are exempted (Bangalore Water Supply case).

Following are held to be "industry": Cooperative Societies, Federation of Indian Chamber of Commerce,
Company Carrying on Agricultural Operations, Bihar Khadi Gramodyog Sangh, Indian Navy Sailors
Home, Panchayat Samiti, Public Health Department of the State Government, Forest Department of
Government, Zoo; Primary Health Centres, and Indian Institute of Petroleum.

Some other instances of 'Industry' are: Rajasthan Cooperative Credit Institutions Cadre Authority [1985
Lab IC 1023 (Raj.)], a trust for promoting religious, social and educational life but also undertaking
commercial activities, MP Khadi and Village Industries Board, Housing Board, Dock Labour Board,
Management of a private educational institution."

STANDING ORDERS

Application of this Chapter (Section 28)

1. The provisions of this Chapter shall apply to every industrial establishment wherein three hundred or
more than three hundred workers, are employed, or were employed on any day of the preceding twelve
months.

2. Notwithstanding anything contained in sub-section (1), the provisions of this Chapter shall not apply to
an industrial establishment insofar as the workers employed therein are persons to whom the Fundamental
and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services
(Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations. Civilians in Defence
Service (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any
other rules or regulations that may be notified in this behalf by the appropriate Government, apply.

Making of Model Standing Orders by Central Government and Temporary Application (Section 29)

1. The Central Government shall make model standing orders relating to conditions of service and other
matters incidental thereto or connected therewith.
2. Notwithstanding anything contained in Sections 30 to 36, for the period commencing on the date on
which this section becomes applicable to an industrial establishment and ending with the date on which
the standing orders as finally certified under this Code come into operation under Section 33 in that
establishment, the model standing order referred to in sub-section (1) shall be deemed to be adopted in
that establishment and the provisions of sub-section (2) of Section 33 and Section 35 shall apply to such
model standing orders as they apply to the standing orders so certified.

Preparation of Draft Standing Orders by Employer and Procedure for Certification (Section 30)

1. The employer shall prepare draft standing orders, within a period of six months from the date of
commencement of this Code, based on the model standing orders referred to in Section 29 in respect of
the matters specified in the First Schedule and on any other matter considered necessary by him for
incorporation of necessary provisions in such standing orders for his industrial establishment or
undertaking, considering the nature of activity in his industrial establishment or undertaking, provided
such provision is not inconsistent with any of the provision of this Code and covers every matters set out
in the First Schedule.

2. The employer shall consult the Trade Unions or recognised negotiating union or members of the
negotiating council relating to the industrial establishment or undertaking, as the case may be, in respect
of the draft of the standing order and thereafter forward the draft of the standing order electronically or
otherwise to the certifying officer for certification.

3. Where an employer adopts a model standing order of the Central Government referred to in Section 29
with respect to matters relevant to his industrial establishment or undertaking, then such model standing
order shall be deemed to have been certified under the provisions of this section and the employer shall
forward the information in this regard to the concerned certifying officer in such manner as may be
prescribed: Provided that if the certifying officer has any observation, he may direct such employer to
amend the standing order so adopted within such period as may be prescribed.

4. The employer shall prepare the draft of the modifications required in the standing order, if any, in
accordance with the provisions of this Code and forward electronically or otherwise to the certifying
officer for certification of those modifications only within a period of six months from the date, the
provisions of this Chapter becomes applicable to his industrial establishment.

5. On receipt of the drafts referred to in sub-section (1) and sub-section (4), the certifying officer shall
issue notice to

(i) the Trade Union or negotiating union of the industrial establishment or undertaking. or members of the
negotiating council; or

(ii) where there is no Trade Union operating, to such representatives of the workers of the industrial
establishment or undertaking chosen in such manner as may be prescribed, for seeking their comments in
the matter and after receipt of their comments give an opportunity of being heard to the negotiating union
or negotiating council, or as the case may be, to the Trade Unions or the representatives of the workers
and decide as to whether or not any modification or addition to such draft standing order is necessary to
render the draft standing order certifiable, and shall make an order in writing in this regard:

Provided that the certifying officer shall complete such procedure for certification referred to in sub-
sections (4) and (5) in respect of

(a) the draft standing order so received within a period of sixty days from the date of the receipt of it; and

(b) the draft modifications in the standing order so received within a period of sixty days from the date of
the receipt of such modifications, failing which such draft standing orders or, as the case may be, the
modifications in the standing order shall be deemed to have been certified on the expiry of the said
period.

6. The standing orders shall be certifiable under this Code, if-

(a) provision is made therein for every matter set out in the First Schedule which is applicable to the
industrial establishment; and

(b) such orders are otherwise in conformity with the provisions of this Code.

7. It shall be the function of the certifying officer or the appellate authority referred to in Section 32 to
adjudicate upon the fairness or reasonableness of the provisions of any standing orders keeping in view
the provisions of the model standing orders referred to in Section 29.

8. The certifying officer shall certify the draft standing orders or the modifications in the standing orders
referred to in sub-section (5), and shall within seven days thereafter send copies of the certified standing
orders or the modifications in the standing orders, authenticated in such manner as may be prescribed, to
the employer and to the negotiating union or negotiating council or the Trade Union or other
representatives of the workers referred to in clause (ii) of sub-section (5).

9. The draft standing orders under sub-section (1) or draft of the modifications proposed in the standing
orders under sub-section (5) shall be accompanied by a statement giving such particulars, as may be
prescribed, of the workers employed in the industrial establishment, the Trade Union to which they
belong, and the negotiating union or negotiating council, if any.

10. Subject to such conditions as may be prescribed, a group of employers in similar establishments may
submit a joint draft of standing orders under this section and for the purposes of proceedings specified in
sub-sections (1), (5), (6), (8) and (9), the expressions "employer", "Trade Union" and "negotiating union
or negotiating council" shall respectively include all the employers, Trade Unions and negotiating unions
or negotiating council of such similar establishments, as the case may be.

11. Without prejudice to the foregoing provisions of this section, the standing orders relating to an
industrial establishment or undertaking existing on the date of commencement of the relevant provisions
of this Code, shall, insofar as is not inconsistent with the provisions of this Code or rules made
thereunder, continue and be deemed to be the standing orders certified under sub-section (8), and
accordingly, the provisions of this Chapter shall apply thereon.

Certifying Officer and Appellate Authority to Have Powers of Civil Court (Section 31)

1. Every certifying officer and the appellate authority referred to in Section 32 shall have all the powers of
a civil court for the purposes of receiving evidence, administering oath, enforcing the attendance of
witnesses, and compelling the discovery and production of documents, and shall be deemed to be a civil
court within the meaning of Sections 345 and 346 of the Code of Criminal Procedure, 1973.

2. Clerical or arithmetical mistakes in any order passed by a certifying officer, or errors arising therein
from any accidental slip or omission may, at any time, be corrected by that officer or successor in office
of such officer.

Appeals (Section 32)

An employer or Trade Union or the negotiating union or negotiating council, or where there is no
negotiating union or negotiating council in an industrial establishment or undertaking, any union or such
representative body of the workers of the industrial establishment or undertaking, if not satisfied with the
order of the certifying officer given under sub-section (5) of Section 30, may file an appeal within sixty
days of receipt of the order of the certifying officer to the appellate authority appointed by the appropriate
Government, by notification, and such authority shall dispose of the appeal in such manner as may be
prescribed.

Date of Operation of Standing Orders and its Availability (Section 33)

1. The standing orders or modified standing orders, as the case may be, shall, unless an appeal is preferred
under Section 32, come into operation on the expiry of thirty days from the date on which authenticated
copies thereof are sent under sub-section (8) of Section 30, or where an appeal as aforesaid is preferred,
on the expiry of seven days from the date on which copies of the order of the appellate authority are sent
in such manner as may be prescribed.

2. The text of a standing order as finally certified under this Code shall be maintained by the employer in
such language and in such manner for the information of the concerned workers as may be prescribed.

Register of Standing Orders (Section 34)

A copy of all standing orders as finally certified under this Code shall be filed by the certifying officer in
a register maintained for the purpose or uploaded in electronic form or such other form as may be
prescribed, and the certifying officer shall furnish a copy thereof to any person applying therefor on
payment of such fee as may be prescribed.

Duration and Modification of Standing Orders (Section 35)

1. The standing orders certified under sub-section (8) of Section 30 shall not, except on an agreement
between the employer and the workers, or a negotiating union or a Trade Union or other representative
body of the workers, 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 worker or a Trade Union or other
representative body of the workers may apply to the certifying officer to have the standing orders
modified in such application as may be prescribed, which shall be accompanied by such copies of the
modifications proposed to be made, and where the modifications are proposed to be made by agreement
between the employer and the workers or a Trade Union or other representative body of the workers, a
certified copy of that agreement shall be filed along with the application.

3. The foregoing provisions of this Code shall apply in respect of an application under sub- section (2) as
they apply to the certification of the first-time standing orders.

Oral Evidence in Contradiction of Standing Orders Not Admissible (Section 36)

No oral evidence having the effect of adding to or otherwise varying or contradicting standing order as
finally certified under this Chapter shall be admitted in any Court.

Interpretation, etc. of Standing Orders (Section 37)

If any question arises as to the application, or interpretation, of the standing orders certified under sub-
section (8) of Section 30 or the modification made therein by an agreement entered into under sub-section
(5) of that section, the employer or any worker or workers concerned or the Trade Union in relation to the
workers employed in the industrial establishment or undertaking wherein the question has arisen, may
apply to the Tribunal, within the local limits of whose territorial jurisdiction such establishment or the
office, section or branch of the undertaking is situated, to decide the question and such Tribunal shall,
after giving all the parties concerned a reasonable opportunity of being heard, decide the question and its
decision shall be final and binding on the concerned employer and the workers.

Time-limit for Completing Disciplinary Proceedings and Liability to Pay Subsistence Allowance (Section
38)

1. Where any worker is suspended by the employer pending investigation or inquiry into complaints or
charges of misconduct against him, such investigation or inquiry, or where there is an investigation
followed by an inquiry, both the investigation and inquiry shall be completed ordinarily within a period of
ninety days from the date of suspension.

2. The standing orders certified under sub-section (8) of Section 30 or modified under Section 35 shall
provide that where a worker is suspended as referred to in sub-section (1), the employer in relation to an
industrial establishment or undertaking shall pay to such worker employed in such industrial
establishment or undertaking subsistence allowance at the rates specified in sub-section (3) for the period
during which such worker is placed under suspension pending investigation or inquiry into complaints or
charges of misconduct against such worker.

3. The amount of subsistence allowance payable under sub-section (2) shall be-

(a) at the rate of fifty per cent of the wages which the worker was entitled to immediately preceding the
date of such suspension, for the first ninety days of suspension; and

(b) at the rate of seventy-five per cent of such wages for the remaining period of suspension, if the delay
in the completion of disciplinary proceedings against such worker, is not directly attributable to the
conduct of such worker.

Power to Exempt (Section 39)

The appropriate Government may, by notification, exempt, conditionally or unconditionally, any

industrial establishment or class of industrial establishments from all or any of the provisions of this
Chapter.

MECHANISM FOR RESOLUTION OF INDUSTRIAL DISPUTES

Conciliation Officers (Section 43)

solve out to Disputes.

The appropriate Government may, by notification, appoint such number of persons, as it thinks fit to be
conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial
disputes.

A conciliation officer may be appointed for a specified area or for specified industries in a specified area
or for one or more specified industries and either permanently or for a limited period.

Industrial Tribunal (Section 44)

1. The appropriate Government may, by notification, constitute one or more Industrial Tribunals for the
adjudication of industrial disputes and for performing such other functions as may be assigned to them
under this Code and the Tribunal so constituted by the Central Government shall also exercise the
jurisdiction, powers and authority conferred on the Tribunal, as defined in clause (m) of Section 2 of the
Employees Provident Funds and Miscellaneous Provisions Act, 1952 by or under that Act.

Every Industrial Tribunal shall consist of two members to be appointed by the appropriate Government
out of whom one shall be a Judicial Member and the other, an Administrative Member.

A bench of the Tribunal shall consist of a Judicial Member and an Administrative Member or single
Judicial Member or single Administrative Member.
4. The qualifications for appointment, method of recruitment, term of office, salaries and allowances,
resignation, removal and the other terms of conditions of service of the Judicial Member and the
Administrative Member of the Tribunal constituted by the Central Government shall be in accordance
with the rules made under Section 184 of the Finance Act, 2017:

Provided that a person, who has held a post below the rank of Joint Secretary to the Government of India
or an equivalent rank in the Central Government or a State Government, shall not be eligible to be
appointed as an Administrative Member of the Tribunal.

5. The term of office of the Judicial Member and the Administrative Member of a Tribunal constituted by
the State Government under sub-section (1), their salaries and allowances, resignation, removal and other
terms and conditions of service shall be such as may be prescribed by the State Government.

6. The salary and allowances and the terms and conditions of service of the Judicial Member or
Administrative Member referred to in sub-section (2) and appointed by a State Government shall not be
varied to his disadvantage after his appointment.

The procedure of the Tribunal (including distribution of cases in the benches of the Tribunal) shall be
such as may be prescribed, provided a bench consisting of a Judicial Member and an Administrative
Member shall entertain and decide the cases only relating to-

(a) the application and interpretation of standing order:

(b) discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen
dismissed;

(c) illegality or otherwise of a strike or lockout;

(d) retrenchment of workmen and closure of establishment; and

(e) Trade Union disputes, and the remaining cases shall be entertained and decided by the bench of the
Tribunal consisting either a Judicial Member or an Administrative Member of the Tribunal.

8. The Judicial Member shall preside over the Tribunal where the bench of the Tribunal consists of one
Judicial Member and one Administrative Member.

9. for any reason, a vacancy (other than a temporary absence) occurs in a National Industrial Tribunal or a
Tribunal, then such vacancy shall be filled up in such manner as may be prescribed, without prejudice to
the provisions of sub-section (4) or sub-section (5), as the case may be, and the proceeding shall be
continued before such National Industrial Tribunal or Tribunal, as the case may be, from the stage at
which the vacancy is filled.
The appropriate Government may provide such number of officers and other staff as it thinks fit in
consultation with the Judicial Member of the Tribunal which may be required for the due discharge of the
functioning of the Tribunal.

National Industrial Tribunal (Section 46)

1. The Central Government may, by notification, constitute one or more National Industrial Tribunals for
the adjudication of industrial disputes which, in the opinion of the Central Government, involve questions
of national importance or are of such a nature that industrial establishments situated in more than one
State are likely to be interested in, or affected by, such disputes.

2. A National Industrial Tribunal shall consist of two members to be appointed by the Central
Government out of whom one shall be a Judicial Member and the other, an Administrative Member.

3. A person shall not be qualified for appointment as the Judicial Member of a National Industrial
Tribunal unless he is, or has been, a Judge of a High Court.

4. A person shall not be qualified for appointment as Administrative Member of a National Industrial
Tribunal unless, he is or has been Secretary to the Government of India or holding an equivalent rank in
the Central Government or State Government, having adequate experience of handling the labour-related
matters.

5. The Judicial Member shall preside over a National Industrial Tribunal.

6. The procedure of selection of Judicial Member and Administrative Member of the National Industrial
Tribunal, their salaries, allowances and other terms and conditions of service shall be such as may be
prescribed.

7. The Central Government may provide such number of officers and other staff as it thinks fit in
consultation with the Judicial Member of the National Industrial Tribunal which may be required for the
due discharge of the functioning of the National Industrial Tribunal.

Decision of Tribunal or National Industrial Tribunal (Section 47)

1. The decision of a Tribunal or a National Industrial Tribunal, as the case may be, shall be by consensus
of the members.
2. If the members of a Tribunal or a National Industrial Tribunal differ in opinion on any point, they shall
state the point or points on which they differ, and make a reference to the appropriate Government.

3. The appropriate Government shall, on receipt of a reference made under sub-section (2). appoint a
Judicial Member of other Tribunal or a National Industrial Tribunal who shall hear the point or points
himself and such point or points shall be decided according to the majority of the members of a Tribunal
or a National Industrial Tribunal, as the case may be, who have first heard the case, including the Judicial
Member of the other Tribunal who heard the case thereafter.
Disqualifications for Members of Tribunal and National Industrial Tribunal (Section 48)

No person shall be appointed to, or continue in, the office of the member of a Tribunal or National
Industrial Tribunal, respectively, if-

(a) he is not an independent person; or

(b) he has attained the age of sixty-five years.

Explanation: For the purposes of this section, "independent person" means a person who is unconnected
with the industrial dispute referred to a Tribunal or National Industrial Tribunal or with any industry
directly affected by such dispute.

Procedure and Powers of Arbitrator, Conciliation Officer, Tribunal and National Industrial Tribunal
(Section 49)

1. Subject to the provisions of this Code and the rules that may be made in this behalf, an arbitrator,
conciliation officer, Tribunal or National Industrial Tribunal shall follow such procedure as the arbitrator,
conciliation officer, Tribunal or National Industrial Tribunal may deem fit.

2. A conciliation officer or an officer authorised in this behalf by the Tribunal or National Industrial
Tribunal may, for the purpose of inquiry into any existing or apprehended industrial dispute, after giving
reasonable notice, enter the premises occupied by any establishment to which the dispute relates.

3. The conciliation officer, Tribunal and National Industrial Tribunal shall have the same powers as are
vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the
following matters, namely:

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents and material objects;

(c) issuing commissions for the examination of witnesses;

(d) in respect of such other matters as may be prescribed, and every inquiry or investigation by Tribunal
or National Industrial Tribunal, shall be deemed to be a judicial proceeding within the meaning of
Sections 193 and 228 of the Indian Penal Code.

4. A conciliation officer may enforce the attendance of any person for the purpose of examination of such
person or call for and inspect any document which he has ground for considering to be relevant to the
industrial dispute or to be necessary for the purpose of verifying the implementation of any award or
carrying out any other duty imposed on fre crifying the need for the aforesaid purposes, the conciliation
officer shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908,
in respect of enforcing the attendance of any person and examining him or of compelling the production
of documents.

5. The appropriate Government may, if it so thinks fit, appoint one or more persons having special
knowledge of the matter under consideration as assessors or experts to advise a Tribunal or National
Industrial Tribunal, as the case may be, in respect of any proceeding before either of the said Tribunals.

6. All conciliation officers and the members of a Tribunal or National Industrial Tribunal shall be deemed
to be public servants within the meaning of Section 21 of the Indian Penal Code.

7. Subject to any rules made under this Code, the costs of, and incidental to, any proceeding before a
Tribunal or National Industrial Tribunal shall be in the discretion of that Tribunal or National Industrial
Tribunal and the Tribunal or National Industrial Tribunal, as the case may be, shall have full powers to
determine by and to whom and to what extent and subject to what conditions, if any, such costs are to be
paid, and to give all necessary directions for the purposes aforesaid and such costs may, on application
made to the appropriate Government by the person entitled, be recovered by that Government in the same
manner as an arrear of land revenue.

8. Every Tribunal or National Industrial Tribunal shall be deemed to be civil court for the purposes of
Sections 345, 346 and 348 of the Code of Criminal Procedure, 1973.

9. Every award made, order issued or settlement arrived at by or before a Tribunal or a National Industrial
Tribunal shall be executed in accordance with the procedure laid down for execution of orders and decree
of a civil court under Order XXI of the Code of Civil Procedure, 1908 and for that purpose, such Tribunal
or National Industrial Tribunal shall be deemed to be a civil court.

Powers of Tribunal and National Industrial Tribunal to Give Appropriate Relief in Case of Discharge or
Dismissal of Worker (Section 50)

1. Where the application under sub-section (6) of Section 53 relating to an industrial dispute involving
discharge or dismissal or otherwise termination of a worker has been made to a Tribunal or has been
referred to a National Industrial Tribunal for adjudication, and, in the course of adjudication proceedings,
the Tribunal or National Industrial Tribunal, as the case may be, is satisfied that the order of discharge or
dismissal or otherwise termination was not justified, it may, by its award, set aside the order of discharge
or dismissal or termination and direct reinstatement of the worker on such terms and conditions, if any, as
it thinks fit, or give such other relief to the worker including the award of any lesser punishment in lieu of
discharge or dismissal or otherwise termination, as the circumstances of the case may require.

2. A Tribunal or National Industrial Tribunal, as the case may be, may, in the interest of justice, grant
such interim relief to the worker referred to in sub-section (1) during the pendency of the industrial
dispute as the circumstances of the case may require:
Provided that in any proceeding under this sub-section the Tribunal or National Industrial Tribunal, as the
case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to
the matter.

CONCEPT OF 'WORKMAN'/WORKER
(zr) "worker" means any person (except an apprentice as defined under clause (aa) of Section 2 of the
Apprentices Act, 1961) employed in any industry to do any manual, unskilled, skilled, technical,
operational, clerical or supervisory work for hire or reward, whether the terms of employment be express
or implied, and includes working journalists as defined in clause (f) of Section 2 of the Working
Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act,
1955 and sales promotion employees as defined in clause (d) of Section 2 of the Sales Promotion
Employees (Conditions of Service) Act, 1976, and for the purposes of any proceeding under this Code in
relation to an industrial dispute, includes any such person who has been dismissed, discharged or
retrenched or otherwise terminated in connection with, or as a consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

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

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

or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who is employed in a supervisory capacity drawing wages exceeding eighteen thousand rupees per
month or an amount as may be notified by the Central Government from time to time:

Provided that for the purposes of Chapter III, "worker" (a) means all persons employed in trade or
industry; and (b) includes the worker as defined in clause (m) of Section 2 of the Unorganised Workers'
Social Security Act, 2008.

Some of the expressions used in the definition of "workman/worker" have been the subject of judicial
interpretation and hence they have been discussed below:

(a) Employed in "Any Industry"

To be a workman, a person must have been employed in an activity which is per Section 2(p). Even those
employed in operation incidental to such industry under the definition of workman.

In JK. Comon Spinning and Waving Mills Co. Lad v. LAT. the Supreme Court held the malo caring for
company provided officer's bungalow gardens are engaged in operations related to the mam industry. The
Court observed that the modern industries rely on various operations related to the main industry for
efficient functioning. If an employee assists any incidental operation linked to the main industry, denying
them workman status due to indirect relevance would be reasonable.

(b) Person Employed

A person cannot be a workman unless he is employed by the employer in any industry. The relationship
of employer and workman is usually supported by a contract of employment which may be expressed or
implied. The employee agrees to work under the supervision and control of his employer. Here, one must
distinguish between contract for employment or service and contract of employment or service. In the
former, the employer can order or require what is to be done but, in the latter, he can not only order what
is to be done, but also how it shall be done. In the case of contract for employment, the person will not be
held as a 'workman' but only an independent contractor'. There should be due control and supervision by
the employer for a master and servant- relationship. Payment on piece rate by itself does not disprove the
relationship of master and servant. Even a part-time employee is a worker. Since he is under an obligation
to work for fixed hours every day, jural relationship of master and servant would exist. A casual worker is
nonetheless considered as a workman, employed to do skilled or unskilled, etc.

Only those persons who are engaged in the following types of work are covered by the definition of
"workman": (i) Skilled or unskilled manual work; (ii) Supervisory work; (iii) Technical work; (iv)
Clerical work.

If individuals perform multiple tasks, they are deemed employed primarily for the main work." Manual
work referred in the definition includes work which involves physical exertion as distinguished from
mental or intellectual exertion,

If a person mainly does supervisory work, even if some clerical tasks are occasional supervisory duties do
not change their status. The employment's dominant purpose matters most, rejecting additional duties, in
determining job status." Labour officer working in a jute mill involving initiative is supervisory, while a
bank teller's work lacks such character.

STRIKE' AND 'LOCKOUT': CONCEPTS, LEGALITY AND JUSTIFICATION

Definition: Section 2(zk)- "strike" means a cessation of work by a body of persons employed in any
industry acting in combination, or a concerted refusal, or a refusal, under a common understanding, of
any number of persons who are or have been so employed to continue to work or to accept employment
and includes the concerted casual leave on a given day by fifty per cent or more workers employed in an
industry.

Types of Strikes

(i) Stay-in, Sit-down, Pen-down or Tool-down Strike

In all such cases, the workmen after taking their seats, refuse to do work. Even when asked to leave the
premises, they refuse to do so. All such acts, on the part of the workmen acting in combination, amount to
a strike. Since such strikes are directed against the employer, they are also called primary strikes. In the
case of Punjab National Bank Ltd. v. All India Punjab National Bank Employees Federation, the Supreme
Court observed that on a plain and grammatical construction of this definition, it would be difficult to
exclude a strike where workmen enter the premises of their employment and refuse to take their tools in
hand and start their usual work. Refusal under common understanding not to work is a strike. If in
pursuance of such common understanding the employees enter the premises of the bank and refuse to take
their pens in their hands that would no doubt be a strike under Section 2(zk).

(ii) Go-slow Strike

Go-slow does not amount to strike, but it is a serious case of misconduct. In the case of Bharat Sugar
Mills Ltd. v. Jai Singh, the Supreme Court explained the legality of go-slow in the following words: "Go-
slow which is a picturesque description of deliberate delaying of production by workmen pretending to be
engaged in the factory, is one of the most pernicious practices that discontented and disgruntled workmen
sometimes resort to. Thus, while delaying production and thereby reducing the output, the workmen claim
to have remained employed and entitled to full wages. In SU Motors v. Workman, it was held that 'go-
slow' is a serious misconduct being a covert and a more damaging breach of the contract of employment
and has been regarded as a misconduct.

(B) Sympathetic Strike

Cessation of work in the support of the demands of workmen belonging to other employer is called a sign
of work than fustifiable invasion of the right of emplo the absence an all involved the Thises annugement
can take disciplinary action for the abserice of workmen.

(iv) Hunger Strike

Some workers may resort to fast on or near the place of work or residence of the employer. If it is
peaceful and does not result in cessation of work, it will not constitute a strike. But if due to such an act,
even those present for work, could not be given work, it will amount to strike.

(v) Work-to-Rule Strike

Also known as slowdown strike, it entails workers performing just their job's essential work, adhering
strictly to regulation, without exceeding duties until their demands are addressed.

Right to Strike

In All India Bank Employees Association v. National Industrial Tribunal, the Supreme Court noted that
liberal interpretation of Article 19(1)(c) of the Indian Constitution cannot be subjected to be granted of
the right to strike, either from collective bargaining or otherwise. Thus, the right to strike has no
recognition in law. Moreover, the right to form association or labour union is enshrined
However, corollary under Industrial Disputes Act, the right to strike and lockout is not absolute in view of
the restrictions placed on them provided under Sections 62 and 63. Thus, the judicial and quasi-judicial
decisions have often led to defining the circumstances under which a strike is considered to be legal with
some conditions.

Legality of Strike

The legality of strike is determined with reference to the legal provisions enumerated in the Act and the
purpose for which the strike was declared is not relevant in directing the legality. Sections 62 and 63 of
the Act deals with strike. Sections 22 and 23 impose restrictions on the commencement of strike while
Sections 10(3) and 10A(4A) prohibit its continuance.

The justifiability of strike has no direct relation to the question of its legality and illegality. The
justification of strike as held by the Punjab and Haryana High Court in the case of Matchwell Electricals
of India v. Chief Commissioner is entirely unrelated to its legality or illegality. The justification of strikes
has to be viewed from the standpoint of fairness and reasonableness of demands made by workmen and
not merely from standpoint of their exhausting all other legitimate means open to them for getting their
demands fulfilled.

Similarly, the Supreme Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Majdoor Sabha held that
justifiability of a strike is purely a question of fact. Therefore, if the strike was resorted to by the workers
in support of their reasonable, fair and bonafide demands in peaceful manner, then the strike will be
justified. Where it was resorted to by using violence or acts of sabotage or for any ulterior purpose, then
the strike will be unjustified.

In Ram Krishna Iron Foundry v. Their Worker, Labour Appellate Tribunal explained that the statutory
right to strike was enunciated with the aim of regulating it. As observed in another case of GRSM(W) Co.
Ltd. v. District Collector," the Kerala High Court summarised the entire situation of strike in simplest
words, and said that every strike is not illegal and workers may resort to strike in order to redress their
grievance or to make certain demands.

Strike and Wages

In Charakulam Tea Estate v. Their Workmen, the Supreme Court held that in case of strike which is legal
and justified, the workmen will be entitled to full wages for the strike period.

In Statesman Ltd. v. Their Workman, it was held that if the strike is illegal or unjustified, strikers will not
be entitled to the wages for the strike period unless considerate circumstances constraint a different cause.

In Bank of India v. TS Kelawala, a division bench of the Supreme Court held that the workers are not
entitled to wages for the strike period. The Court observed that "the legality of strike does not always
exempt the employees from the deduction of their salaries for the period of strike". The Court, further
observed, "whether the strike is legal or illegal, the workers are liable to lose wages does not either make
the strike illegal as a weapon or deprive the workers of it". 15
In India Marine Service Pvt. Ltd. v. Their Workman, the Supreme Court has also considered the situation
if the strike is followed by lockout and vice versa, and both are unjustified. In this case, the Court evolved
the doctrine of "apportionment of blame" to solve the problem. According to this doctrine, when the
workmen and the management are equally to be blamed, the Court normally awards half of the wages.
This doctrine was followed by the Supreme Court in several cases.

Thus, strike is not a fundamental right in India, yet is a lawful right with statutory immunity reserved for
regular workers against the employer to safeguard their interests and have their complaints redressed.
However, strike is undeniable weapon in the hands of the workers but the illegal use of this weapon
should not be empowered.

Lockout

Definition: Section 2(u)- "lockout" 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.

In lockout, the employer refuses to continue to employ the workmen employed in the industry even
though there is no intention to close down the industry. The essence of lockout is the refusal of the
employer to continue to employ the workmen. Even if suspension of work is ordered, it would constitute
lockout. But mere suspension of work, unless it is accompanied by an intention on the part of employer as
a retaliation, will not amount to lockout.

In Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Workmen," the Supreme Court held that the
employer must follow the prescribed procedure for declaring a lockout, and any deviation from the
procedure would render the lockout illegal.

In Express Newspapers Pvt. Ltd. v. Presiding Officer, the Delhi High Court held that the employer cannot
declare a lockout during the pendency of conciliation proceedings, as it would defeat the purpose of the
conciliation process.

Lockout is an antithesis to strike. "Lockout" is a weapon available to the employer to persuade by a

coercive process the employees to see his point of view and to accept his demands. Locking out workmen
does not contemplate severance of the relationship of employer and the workmen.

Illegal Strikes and Lockouts (Section 63)

1. A strike or lockout shall be illegal, if it is

(1) commenced or declared in contravention of Section 62; or

(ii) continued in contravention of an order made under sub-section (7) of Section 42.
2. Where a strike or lockout in pursuance of an industrial dispute has already commenced and is in
existence at the time of the filing of the application relating to such industrial dispute in the Tribunal or of
the reference of such industrial dispute to an arbitrator or a National Industrial Tribunal, the continuance
of such strike or lockout shall not be deemed to be illegal, provided that such strike or lockout was not at
its commencement in contravention of the provisions of this Code or the continuance thereof was not
prohibited under sub-section (7) of Section 42.

3. A lockout declared in consequence of an illegal strike or a strike declared in consequence of an illegal

lockout shall not be deemed to be illegal.

Prohibition of Financial Aid to Illegal Strikes or Lockouts (Section 64)

No person shall knowingly spend or apply any money in direct furtherance or support of any illegal strike
or lockout.

LAYOFF, 'RETRENCHMENT' AND 'CLOSURE'

Definition: Section 2(1) "Layoff" (with its grammatical variations and cognate expressions) means the
failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the
accumulation of stocks or the breakdown of machinery or natural calamity or for any other connected
reason, to give employment to a worker whose name is borne on the muster rolls of his industrial
establishment and who has not been retrenched.

Application of Sections 67 to 69 (Section 65)

1. Sections 67 to 69 (both inclusive) shall not apply to industrial establishments to which Chapter X
applies; or

(a) to industrial establishments in which less than fifty workers on an average per working day have been
employed in the preceding calendar month, or

(b) to industrial establishments which are of a seasonal character or in which work is performed
intermittently.

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.

Explanation: In this section and in sections 67, 68 and 69, industrial establishment shall mean a-

(i) factory as defined in clause (m) of Section 2 of the Factories Act, 1948; or

(ii) mine as defined in clause (j) of sub-section (1) of Section 2 of the Mines Act, 1952; or

(iii) plantation as defined in clause (f) of Section 2 of the Plantations Labour Act, 1951.
Definition of Continuous Service (Section 66)

In this Chapter, continuous service, in relation to a worker, means the uninterrupted service of such
worker, including his service which may be interrupted on account of sickness or authorised leave or an
accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on
the part of the worker.

Explanation 1: For the purposes of this section, where a worker is not in continuous service for a period
of one year or six months, he shall be deemed to be in continuous service under an employer-

(a) for a period of one year, if the worker during a period of twelve months preceding the date with
reference to which calculation is to be made has actually worked under the employer for not less than-

(i) one hundred and ninety days in the case of a worker employed below ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the worker during a period of six months preceding the date with
reference to which calculation is to be made has actually worked under the employer for not less than-

(i) ninety-five days in the case of worker employed below ground in a mine, and

(ii) one hundred and twenty days, in any other case.

Explanation 2: For the purposes of Explanation 1, the number of days on which a worker has actually
worked under an employer shall include the days on which-

(i) he has been laid-off under an agreement or as permitted by or under this Code or any other law
applicable to the industrial establishment for the time being in force; or

(ii) he has been on leave on full wages earned in the previous years; or

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course
of his employment, or

(iv) in the case of a female, she has been on maternity leave, so however, that the total period of such
maternity leave does not exceed the period as specified in the Maternity Benefit Act, 1961.

Rights of Workers Laid-off for Compensation, etc. (Section 67)

Whenever a worker (other than a badli worker or a casual worker) whose name is borne on the muster
rolls of an industrial establishment and who has completed not less than one year of continuous service
under an employer is laid-off, whether continuously or intermittently, he shall be paid by the employer for
all days during which he is so laid-off, except for such weekly holidays as may intervene, compensation
which shall be equal to fifty per cent of the total of the basic wages and dearness allowance that would
have been payable to him, had he not been so laid-off:

Provided that if during any period of twelve months, a worker is so laid-off for more than forty-five days,
no such compensation shall be payable in respect of any period of the layoff after the expiry of the first
forty-five days, if there is an agreement to that effect between the worker and the employer:

Provided further that it shall be lawful for the employer in any case falling within the foregoing proviso to
retrench the worker in accordance with the provisions contained in Section 70 at any time after the expiry
of the first forty-five days of the layoff and when he does so, any compensation paid to the worker for
having been laid-off during the preceding twelve months may 0be set off against the compensation
payable for retrenchment.

Explanation: For the purposes of this section, "badli worker" means a worker who is employed in an
industrial establishment in the place of another worker whose name is borne on the muster rolls of the
establishment, but shall cease to be regarded as such, if he has completed one year of continuous service
in the establishment.

Difference between Layoff and Lockout

1. In layoff, the employer refuses to give employment due to certain specified reasons, but in lockout,
there is deliberate closure of the business and employer locks out the workers not due to any such reasons.

2. In layoff, the business continues, but in lockout, the place of business is closed down for the time
being.

3. In a lockout, there is no question of any wages or compensation being paid unless the lockout is held to
be unjustified.

4. Layoff is the result of trade reasons but lockout is a weapon of collective bargaining.

5. Lockout is subject to certain restrictions and penalties, but it is not so in case of layoff.

However, both layoff and lockout are of temporary in nature, and in both cases, the contract of
employment is not terminated but remains in suspended animation for the time being.

UNFAIR LABOUR PRACTICES

Prohibition of Unfair Labour Practice (Section 84)

No employer or worker or a Trade Union, whether registered under this Code, or not, shall commit any
unfair labour practice specified in the Second Schedule.

1. On the Part of Employers and Trade Unions of Employers

1. To interfere with, restrain from, or coerce, workers in the exercise of their right to organise, form, join
or assist a Trade Union or to engage in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, that is to say,-

(a) threatening workers with discharge or dismissal, if they join a Trade Union;

(b) threatening a lockout or closure, if a Trade Union is organised;

(c) granting wage increase to workers at crucial periods of Trade Union organisation, with a view to
undermining the efforts of the Trade Union organisation.

2. To dominate, interfere with or contribute support, financial or otherwise, to any Trade Union, that is to
say, -

(a) an employer taking an active interest in organising a Trade Union of his workers; and

(b) an employer showing partiality or granting favour to one of several Trade Unions attempting to
organise his workers or to its members, where such a Trade Union is not a recognised Trade Union.

3. To establish employer sponsored Trade Unions of workers.

4. To encourage or discourage membership in any Trade Union by discriminating against any worker, that
is to say,-

(a) discharging or punishing a worker, because he urged other workers to join or organise a Trade Union;

b) discharging or dismissing a worker for taking part in any strike (not being a strike which is deemed to
be an illegal strike under this Code),

(c) changing seniority rating of workers because of Trade Union activities,

(d) refusing to promote workers to higher posts on account of their Trade Union activities;

(e) giving unmerited promotions to certain workers with a view to creating discord amongst other
workers, or to undermine the strength of their Trade Union:

(1) discharging office-bearers or active members of the Trade Union on account of their Trade Union
activities.

5. To discharge or dismiss workers,-

(a) by way of victimisation;

(b) not in good faith, but in the colourable exercise of the employer's rights;
(c) by falsely implicating a worker in a criminal case on false evidence or on concocted evidence;

(d) for patently false reasons;

(e) on untrue or trumped up allegations of absence without leave;

(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue
haste;

(g) for misconduct of a minor or technical character, without having any regard to the nature of the
particular misconduct or the past record or service of the worker, thereby leading to a disproportionate
punishment.

6. To abolish the work of a regular nature being done by workers, and to give such work to contractors as
a measure of breaking a strike.

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

8. To insist upon individual workers, who are on a legal strike to sign a good conduct bond, as a
precondition to allowing them to resume work.

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

10. To employ workers as badli workers, casuals or temporaries and to continue them as such for years,
with the object of depriving them of the status and privileges of permanent workers.

11. To discharge or discriminate against any worker for filing charges or testifying against an employer in
any enquiry or proceeding relating to any industrial dispute.

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

13. To fail in implementing award, settlement or agreement.

14. To indulge in acts of force or violence.

15. To refuse to bargain collectively, in good faith with the recognised Trade Unions.

16. To Propose or continue a lockout deemed to be illegal under this Code.