PROBLEMS

1. Majority of the workmen applied for leave, the employer rejected the leave &
treated the absence of the workmen as illegal strike. Decide.

Strike is a collective stoppage of work by the workmen undertaken

in order to bring pressure upon those who depend on the sale or use of
the products of work.

Lays down certain conditions which are to be complied with before

resorting to strike. Strike or a lock out will be illegal if it violates sec 22,
23, and 24 of the act, right to strike is an inherent right of every worker &
the same could not be abridged or taken away except in the conformity of
the act.

In the above case the employer cannot treat the absence of workers as an
illegal strike; strike means a conceited refusal to go on strike for the
demand put forth by the workmen before the management to be fulfilled.
As in this case there are absence of all the essentials ingredients of strike
hence the absence of the workmen cannot be termed as abstaining from
work due to demand put forth before the management which has to be
fulfilled, hence it cannot be deemed to be illegal strike.

2. Membership of the registered Trade Union was denied to “A” a workmen on the
ground that “A “has not contributed to the political funds of the Trade Union , “A”
wants to challenge the illegality of the denial can he succeed?
A registered trade union can constitute a separate fund for political
purpose this has been provided under sec 16 of the act. Out of this funds
its members in furtherance of any civic or political objects enumerated in
sec 16, no expenditure for political purpose out of the general funds is
permitted. This fund may constitute lawfully of donations, subscriptions, &
such.

Sec 16(2) states as civic & political objects.

1. Payments of any expenses incurred, either directly or indirectly &
legislative body constituted under the constitution or of any local
 authority , before during or after elections in connection with his
candidature or election or
2. The holding of any meeting or the distribution of any legislature or
documents in support of any such candidate or prospective candidate
or.

3. Maintenance of any person who is member of any legislative body

constituted under the constitution or of any local authority or

4. Registration of electors or the selection of candidate for any legislative

body constituted under constitution or for any legislative authority.
5. Holdings of any political meetings.
As this is a contributory fund by the members of the Trade Union, it has to
be born in mind that no member shall be compelled to contribute to the
political fund of the union any member who does not contribute to the to
this fund shall not be excluded from any benefits of the Union . he cannot
be placed directly or indirectly under any disability or at any disadvantage
in comparison to other members of the union who have contributed to the
fund.

Also further contribution cannot be made as a condition for admission of a

person to the trade union. However the control of management of political
funds can be exclusively vested in the hands of those members who have
contributed to the political funds. A non- contribution does not render a
member ineligible for any office involving the control or management but
such a right cannot be forcibly taken.

In this case A, would succeed in challenging the denial of membership to

trade union, as contribution to the political fund cannot be a condition for
seeking admission to trade union according to the provision of the Trade
Union Act 1926.

3. A bomb was kept in the premises of the workshop by some strangers, it exploded &
injured a workmen. Is the employer liable for compensating to the workmen advice?
Answer:
If personal injury is caused to a workman by accident arising out of and in
the course of his employment, his employer shall be liable to pay
compensation in accordance with the provisions of this act. An accident is
said to "arise out of" the employment when there exists a causal
connection between the conditions under which the work is required to be
performed and the resulting injury, while the phrase "in the course of"
employment is held to designate an accident occurring within the period
of employment at a place where the employee may reasonably be while
fulfilling his duties or engaged in something incidental to it. An entire law
on this is based on the concept of the phrase "arising out of and in the
course of employment". These words refer to the link between the cause
of the accident and the employment. To arise out of the employment a
nexus must be established between the accident and the employment. "In
the course of employment" means that the employee is helping the
employer's business goals in doing the activity where the injury occurred.

Once an employee reaches his place of employment, they are deemed to

be covered for an accident should one occur before they are on the clock,
but after they have reached the premises that is either owned by the
employer or provided by the employer. Injuries that occur during short
break may be compensable as well as injuries that occur during a trip for
the employers benefit. It is no doubt true that in order to succeed in an
application for getting compensation under section 3 of the Act the
following points are required to be established:—

(1) That the accident must arise out of and in the course of the
workman‘s employment;
(2) There must be causal connection between the injury and the
accident and the work done in the course of the employment; (3) The
workman has to say that while doing a part

Of his duty or incidental thereto it has resulted into an accident. It is

necessary that the workman must be actually working at the time of the
injury or the accident. Therefore, the three factor s, that there must be
injury, which must be caused in an accident, it must be caused in the
course of and out of the employment must be established; Meaning of the
expression ―arising out of employment ― means that there must be
casual relationship between the accident and the employment. If the
accident has occurred on account of the risk which is an incident of
employment, it has to be held that the accident has arisen out of the
employment.

In this case where the bomb was kept in the premises of the
establishment & where the workmen was injured by the blast in the
establishment is being protected under this act under sec 3 for liability of
the employer . The workman is entitled for compensation as under the
provision of the Employees Compensation Act.

4.A workmen worked in the establishment as a mason in a company & was drawing Rs
2500 per month his duties involved supervisory work of about 100 workers , he also
used to decide who should do over time work, is „A‟ a workmen ? Decide giving
reasons.
Answer:
Under the IDAct 1947 Since the Industrial Disputes Act, 1947, this term,
workman under 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 Rs 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 or contract of service, the quantum of wages and the
mode of payment should not be 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. This note
discusses some of the important components of section 2(s) and their
interpretation by the courts . 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.
To fall within the exception, the person must be,

(a) Employed in a supervisory capacity;

(b) Draw more than Rs 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. Further, a supervisor earning
less than 6,500/- may also raise an industrial dispute for an increment in
wages which may eventually exclude him from the definition of workman.

In this case ‗A‘ being employed as a mason in the company who is

drawing wages up to Rs2500 per month & whose duties involved
supervisory work of about 100 workmen & with the deciding authority is a
workmen under the preview of the Industrial Disputes Act 1947 section 2
(s).

5. On the account of strike by some workmen in one part of the establishment,

management refuses to give work to the workmen in another part of the establishment,
the workmen claimed lay-off compensation. Decide whether they are entitled to
compensation?
Answer:
Lay-off is a practice whereby the employer cannot give employment to
workmen for various reasons including shortage of raw materials, coal or
power

,accumulation of stocks, break-down of machinery etc, or for any other

connected reasons. It has been defined under Section 2(kkk) of the Act. If
a workman, whose name is on the muster rolls of the industrial
establishment presents himself for work and is not given by the employer
it amounts to lay- off.

Workman not entitled to Compensation:

Section 25E of the Act highlights situations when a workman is not
entitled to compensation even after being laid-off. This section 25E works
like an exception to Section 25C. A workman is not entitled to lay-off
compensation as an ―Industrial Dispute‖ is defined under Section 2(k) of
the Act. It lays down certain pre-requisites that must exist to constitute an
industrial dispute. There can be no lay-off if the dispute does not fall
within the ambit of Section 2(k).

Further, the application of the Act is limited to ―industries‖ as defined

under Section (j).
Meaning of lay-off as per the Act and deals with the issue of compensation
resulting from such lay-off.

A workmen refuses to accept any alternate employment offered by the

employer in the same establishment, or in any other establishment of the
same employer, provided such establishment is within a five miles radius
from the previous establishment. Further, such alternate employment
should not call for any special skill or experience and the employer must
pay at least the same wages as were previously paid to the workman.

If the does not present himself for work at the establishment at the
appointed time during normal working hours at least once a day;

And such lay-off is due to a strike or slowing-down of production by

workmen in another part of the establishment.

The burden of proof is on the employer to show that the workman is

disentitled to claim compensation because his case falls under the
purview of Section 25E. Therefore in this case the workmen cannot bring a
claim against the employer for the lay-off compensation as the workmen
were not deemed to be laid off as under the provision of the act & he falls
in the exemption category under the provision of the act .As Section 25E
of the Act highlights situations when a man is not entitled to
compensation even after being laid-off. This section 25E works like an
exception to Section 25C. A workman is not entitled to compensation.

Therefore, it becomes the duty of the employer to provide compensation

to the workmen if their case falls within the scope of the Section 25C6 of
the Act. However, no compensation can be awarded in advance of actual
lay-off on grounds of social justice.

6. Akshata & co is a public utility service industry where a strike commences during the
pendency of the conciliation proceedings & the workmen plead that the strike was
provoked by the employer. Decide.
Yes the strike conducted here is considered to be as unlawful. Because in
this case strike is conducted in duration of pendency of conciliation
proceeding.

Strike is defined according to sec 2 (q) of the ID Act, it is a cessation of

work by the employees for any length of time under a common
understanding to put pressure on an employer to accept their demand.

The essentials of strike are;

1. Cessation of work by a body of persons employed in any industry

acting in combination or

2. A concerned refusal of any number of persons who have been

employed to continue to work to accept employment.

3. A refusal under a common understanding of any number of such

persons to continue to work or to accept employment.

According to Sec 22 to 23 of the ID Act 1947 deals with the prohibition of strikes &
Lock-outs.
Sec 22 bans the commencement of strike & lock –outs in public utility
services. Every public utility service is an Industrial establishment.

Sec 22 (1) the employee of a public utility services shall not commence a
strike unless the following conditions are satisfied;

1. A notice of strike should be given to the employer in advance.

2. The notice should be given at least 14 days before the strike.
3. The strike shall not commence before the expiry of the date specified in
the notice.

4. The strike shall not be commenced during the pendency of any

conciliation proceeding before a conciliation officer & seven days after
the conclusion of such proceedings.
7. ‘A’ was an employee of B, appointed as a driver of Lorry, his duty was to load „X‟
material & unload it at work place, while the lorry was moving he attempted to hit the
rabbit passing on the road & in this attempt he fell down from the lorry & died. His
wife wants to claim compensation Advise her.
The widow of ‘A’ could claim compensation, as the fatal accident caused
was in duration of work.

Employers liability for compensation u/sec 3 of the act , to pay

compensation is limited & is subject to the provision of the Act

.u/sub sec(1) of sec 3 the liability of the employer to pay compensation is

dependent upon the following conditions ;

 Personal injury must have caused to the workmen.

 Such injury must have been caused by an accident.
 Such accident must have arisen out of & in the course of employment
&
 The injury must have resulted in death of the workmen or partial
disablement for a period exceeding 3 days.

The accident must have arisen out of & in the course of employment.
Arising out of employment does not mean that personal injury must have
resulted from mere nature of employment; also it is not limited to the
cases where the personal injury is preferable to the duties which the
employee has to discharge.

The word ‗arising out of employment‘ means that during the course of
employment, injury has resulted from some risk incidental to the duties of
the service which unless engaged in the duty owing to the master it is
reasonable to believe the employee would not have otherwise suffered.
There must be casual relation b/w the accident & employment. If the
accident had occurred on a/c of a risk which is an incident of the
employment, the claim of compensation must succeed unless of course
the employee has exposed himself to an added danger from his own side
In Savithri Devi V/S Bharathi Filling Station & others, the appellant‘s son worked as
a driver with the respondent, the owner of the tanker & he died while on
duty. Appellant filed petition for compensation but was denied by the
respondent on the ground that there was no connection b/w the work
death of the decease. The commissioner dismissed the application for
compensation .The HC held that the commissioner was wrongfully in
concluding that there is no connection b/w the work & death of the
deceased & held the employer liable for compensation . Hence here in
this case the driver ‘A’ of the lorry was an employee of the employer ‗B‘,
& the accident occurred when ‗A‘ was on duty to deliver the material
hence claim can be made by the widow of ‗A‘ & the employer is liable to
pay compensation .

8.An employer dismissed the services of the workmen for misconduct; the dismissed
workmen raised an Industrial Dispute under ID Act 1947. Whether the Industrial
Dispute is an Industrial Dispute decide.

In this case the dispute is not an Industrial Dispute but an individual

dispute according to sec 2-A of the act.

Industrial dispute is a dispute or difference b/w the employer & the

employee over any terms of work or conditions of work, also for a dispute
to come under the definition of sec 2(k) of the IDAct 1947 the dispute
should have been supported by the union, hence in this case the dispute
cannot be considered as an Industrial dispute under the act.

Sec 2-A of the act defines an individual dispute as according to the act, it
means a difference or a dispute b/w the employer & the employee,
effecting a single employee or a workmen.

Sec 2 (k) of Industrial Disputes Act 1947 defines Industrial disputes, it

means ad dispute or a difference b/w

a. Employers & employers.

b. Employees & employees.

Workmen & workmen & such difference should be connected with
employment or non-employment, terms of employment conditions of
labour of any person & the dispute may be further in relation to any
workmen or workmen or any other person in whom they are interested as
a body.

Hence in this case the difference or dispute was only affecting one
employee & not a group of employees or workmen.

9. ‘A’ a workmen died due to an accident while performing the duty of an employer.
Subsequently it had been proved that at the time of the accident that the workmen were
under the influence of intoxication.
The workmen died as he was under the influence of intoxication, in such
circumstances he is not entitled for compensation.

Conditions for Receiving Compensation

An employee to whom personal injury is caused by accident is entitled to
receive compensation under the Act if the accident arose out of and in the
course of his employment. That means the accident must occur while the
employee is in employment and it must also be connected with his
employment.

Circumstances in which the employer is not liable to pay compensation for injury to a
workman:-

The employer is not liable to pay compensation for injury to an employee

on following circumstances:-

1. If the injury does not result in total or partial disablement of the

employee for a period exceeding three days;

2. If the injury does not result in death of the employee and is caused
by an accident which is directly attributable to:-

– If an employee have been at the time thereof under the influence of

drink or drugs
– The disobedience of the employee to an order expressly given, or to
a rule expressly framed, for the purpose of securing the safety of
workman, or

– The willful removal or disregard by the employee of any safety

guard or other device which he knew to have been provided for the
purpose of securing the safety of employee.

Hence in this case the employer is not liable for compensating to the
employee who has met a fatal end under the influence of intoxication.

10. ‘X’ a driver in KSRTC was terminated on account of his eyesight problem. He
claimed retrenchment compensation. Is he entitled to it?
In this case ‘X’ the driver who was terminated on account of eyesight
problem does not amount to retrenchment as retrenchment generally
means, just means termination of excess labour & cutting down of the
employees in an Industry. It also means the discharge of surplus labour or
staff by the employer for any reason whatsoever, otherwise than by way
of punishment inflected as a measure of disciplinary action.
Hence ‘X’ cannot claim compensation for retrenchment .

SEC 2(OO) OF THE Act defines a retrenchment, it means termination of the

services by the employer for any reason whatsoever otherwise other than
as a punishment inflicted by way of disciplinary action.

The following are not termed to be retrenchment.

✓ Voluntary retirement of a workman.
✓ Retirement of a workman after reaching the age of superannuation.
✓ Termination of service of a workmen as a result of the non - renewal
of a contract of employment on its expiry. Termination of service of a
workman on grounds of continued ill health.

11.Ajay an employee in Jaydeep Industries died in a fatal accident in a factory. The

employer paid widow of Ajay 1 Lakh compensation directly. Is it a valid payment?
In this case it is not a valid payment made by the employer to the widow
of Ajay. Payment of compensation in respect of employee whose injury
has resulted in death is not to be made directly to the dependents of the
employee. In such case the employers is required to deposit the amount
of compensation with the Commissioner for Employee‘s Compensation.
The Commissioner will then apportion the amount among the dependents
of the employee. Schedule III part A, employer shall be liable to pay
compensation if the accident or injury arises out of & in the course of
employment. Part B, where the service of the employer in whose service
he has employed for a continuous period of 6 months in any employment
specified in part B of the schedule. The employer shall be liable to pay
compensation to an employee where an employee contracts any decease
after he has heft his employment if the following conditions.

1. If an employee has served the employer according to part B of the

sch III, for a continuous period of 6 months.

2. If the employee has after cessation of his service contracted any

disease specified in part B of the schedule.

3. If it is proved that such disease arose out of employment. Part C of

Sch III, 1. If it is proved that the employee has served under one or more
employers in any employment specified in part C of the Sch III for such
continuous period as specified by the Central Govt. If he has after
cessation of his service contracted any disease specified in part C of
Schedule .

2. If he has after cessation of his service contracted any disease specified

in part C of sch III as an occupational disease to that employment. 3. If it

is proved that such disease arose out of employment.

12.ABC, Industries , a women run organisation employing only women workers, it

allots to some workmen workers night shift b/w 6 p.m t0 2 am is it justifiable . Decide.
According to the factories Act 1948, the women run organisation
employing only women cannot allot night shifts to women b/w 6pm & 2am
unless the organisation has taken special permission from the appropriate
govt. Sec 66, prohibition of employment of women, Cl (1) restrictions of
employment no women is entitled to work in factories b/w 6pm & 7am .

Sec 66(1) prohibition of women at work Prohibition of employment of women in

employment of services sec 66(1) lays down that the provision shall be
applicable to all women working in factories.

a. No exemption of the provision of sec 54 may be granted in respect of

any women.

b. No women shall be required to work in any factory except b/w 6am &
7pm.
But the state govt may by notification in the official Gazettes, in respect of
any factory or group or class or description of factories vary the limit laid
down in clause

(b) in case if any women to be employed during night she could only be
employed b/w 10p.m to 5a.m.

In Triveni KS & others V/S Union of India & others (2001 III LLJ 320 (AP)), The
constitutionality of section 66(1), & (b) was challenged being
discriminatory on the basis of sex, the HC of Andrapradesh held that the
women should not be employed during night for their own safety &
welfare . it was further observed after referring to Art 2,3,& 5 of the
convention of 89 of ILO, that it has to be seen whether the state is
following the convention . se 66(1) (b) of the act , the state govt has been
authorized to assighn working hours for women without any restriction in
fish industries . HC further observed that, women would be safe in fish
industry but not in textile industry consequently sec 66(1) & (b) of the act
was struck down as unconstitutional by the HC & declared that the same
safeguards as provided to women in fish Industry should be given to the
women working in other industry.
Hence the state govt is empowered to make rules providing for exemption
from restriction set out in sub sec

(1) to such extent & to such condition as it may prescribe.