Project Report: Industrial Tribunal
Project Report: Industrial Tribunal
Project Report: Industrial Tribunal
Industrial Tribunal
Submitted To:
Dr. Virender Negi
Submitted By:
Mansukh Garg
120/16
B.A. LLB. (Hons.)
Semester – 9
Section - B
A
Acknowledgements
A research work of such great scope and precision could never have been possible without
great co-operation from all sides. Contributions of various people have resulted in this effort.
Firstly, I would like to thank God for the knowledge he has bestowed upon me.
I would also like to take this opportunity to thank Dr. Virender Negi without whose valuable
support and guidance, this project would have been impossible. I would like to thank the
department office staff for having helped us out and working tirelessly in these testing times.
I would also like to thank my seniors for having guided me and culminate this
acknowledgement by thanking my friends for having kept the flame of competition burning,
which spurred me on through these days.
And finally my parents, who have been a support to me throughout my life and have helped
me, guided me to perform my best in all interests of my life, my grandparents who have
always inculcated the best of their qualities in me.
B
Table of Contents
Table of Cases
Introduction
The law relating to labour and employment in India is primarily known under the broad
category of "Industrial Law". Industrial Law in this country is of recent vintage and has
developed in respect to the vastly increased awakening of the workers of their rights,
particularly after the advent of Independence. Industrial relations embrace a complex of
relationships between the workers, employers and government, basically concerned with the
determination of the terms of employment and conditions of labour of the workers.
The Industrial Disputes Act, 1947 and other analogous State statutes provide the machinery
for regulating the rights of the employers and employees for investigation and settlement of
industrial disputes in peaceful and harmonious atmosphere by providing scope for collective
bargaining by negotiations and mediation and, failing that, by voluntary arbitration or
compulsory adjudication by the authorities created under these statutes with the active
participation of the trade unions. With the aid of this machinery, industrial law covers a
comprehensive canvas of state intervention of social control through law to protect directly
the claims of workers to wages, bonus and retirement benefits such as gratuity, provident
fund and pension, claims, social security measures such as workmen’s compensation,
insurance, maternity benefits, safety welfare and protection of minimum of economic well-
being. Job security has been particularly protected by providing industrial adjudication of
unfair discharges and dismissals and ensuring reinstatement of illegally discharged or
dismissed workmen1.
Industrial Tribunal
The Industrial Tribunal is an independent juridical tribunal on matters relating to
employment relations. It has exclusive jurisdiction to consider and decide all cases of alleged
unfair dismissal, in addition to other cases associated with employment. Industrial Tribunals
deal with claims brought against employers by employees, typically relating to unfair and
wrongful dismissals, discrimination, equal pay, and deductions from wages. The preamble of
the Industrial Disputes Act, 1947 states that the purpose of the Act is ‘to make provisions for
the investigation and settlement of industrial disputes and for certain other purposes’.
The Industrial Disputes Act, 1947 defines a Tribunal under Section 2 (r) which lays down
that “Tribunal means an Industrial Tribunal constituted under section 7A and includes an
Industrial Tribunal constituted before the 10th day of March, 1957, under this Act”, the
purpose of creating an industrial tribunal was to introduce compulsory adjudication where
voluntary negotiation fails and the ‘appropriate government’ believes that the matter is grave
enough to be referred to a tribunal. However in order to work properly, it was felt by the
legislature to limit the jurisdiction of such tribunal or courts. As a result two schedules were
created, the second schedule referred to matters within jurisdiction of labour courts and the
third schedule which referred to matters within the jurisdiction of Industrial Tribunal.
1
Meenu Paul, Labour & Industrial Laws. (Allahabad Law Agency, Faridabad, 10th Edition, 2020).
Page |2
Section 10. Reference of disputes to Boards, Courts or Tribunals.- (1) Where the appropriate
Government is of opinion that any industrial dispute exists or is apprehended, it may at any
time, by order in writing,— (d) refer the dispute or any matter appearing to be connected
with, or relevant to, the dispute, whether it relates to any matter specified in the Second
Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is
not likely to affect more than one hundred workmen, the appropriate Government may, if it
so thinks fit, make the reference to a Labour Court under clause (c)
[Provided further that] where the dispute relates to a public utility service and a notice under
section 22 has been given, the appropriate Government shall, unless it considers that the
notice has been frivolously or vexatiously given or that it would be inexpedient so to do,
make a reference under this sub-section notwithstanding that any other proceedings under this
Act in respect of the dispute may have commenced:
[Provided also that where the dispute in relation to which the Central Government is the
appropriate Government, it shall be competent for that Government to refer the dispute to a
Labour Court or an Industrial Tribunal, as the case may be, constituted by the State
Government.]
Section 10(1)(d) of the Act discusses the jurisdiction of Industrial Tribunals and provides
that matters from third schedule of the Act can be referred and in certain cases even matters
from second schedule can be referred to the tribunal. As the litigants in industrial cases are
from unequal bargaining powers, it was thought that the Act would level the playing field.
However industries took recourse to minute legalities and tried to evade jurisdiction of the
Tribunal. Hence it became of paramount interest to the legislature and the judiciary to plug all
holes in this welfare legislation. In fact Section 10 is one of the most amended sections with
the largest number of state amendments. And thus over the years the jurisdiction of tribunals
have to be interpreted quite a number of times2.
[(1A) The Industrial Tribunal constituted by the Central Government under sub-section (1)
shall also exercise, on and from the commencement of Part XIV of Chapter VI of the Finance
Act, 2017, the jurisdiction, powers and authority conferred on the Tribunal referred to in
section 7D of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.]
2
Meenu Paul, Labour & Industrial Laws. (Allahabad Law Agency, Faridabad, 10th Edition, 2020).
Page |3
(2) A Tribunal shall consist of one person only to be appointed by the appropriate
Government.
(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal
unless— (a) he is, or has been, a Judge of a High Court; or [(aa) he has, for a period of not
less than three years, been a District Judge or an Additional District Judge;] [(b) he is or has
been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the State
Labour Department,, having a degree in law and at least seven years' experience in the labour
department including three years of experience as Conciliation Officer: Provided that no such
Deputy Chief Labour Commissioner or Joint Labour Commissioner shall be appointed unless
he resigns from the service of the Central Government or State Government, as the case may
be, before being appointed as the presiding officer; or (c) he is an officer of Indian Legal
Service in Grade III with three years' experience in the grade.]
(4) The appropriate Government may, if it so thinks fit, appoint two persons as assessors to
advise the Tribunal in the proceeding before it.
The ‘appropriate government’ has been empowered by Section 7A of the Act to constitute
one or more industrial tribunals. The central government can appoint tribunals in any state for
adjudication of industrial disputes in relation to which it is appropriate government. A state
government may constitute one or more industrial tribunal in its territory for adjudicating the
matter in respect to which it is the appropriate government.
The appointment of the industrial tribunal has to be by notification in official gazette. The
moment a notification is issued the establishment of industrial tribunal is complete. The
appointment of presiding officer though essential is a separate matter. However the
appropriate government can constitute a tribunal and make an appointment of the presiding
officer simultaneously.
As per the statute a person shall not be qualified for appointment as the presiding officer of a
Tribunal unless he is, or has been, a Judge of a High Court; or he has, for a period of not less
than three-years, been a District Judge or an Additional District court, this issue was agitated
in Paulose versus State of Kerala3 where the government had entrusted the work of selection
of presiding officers to advocate general, this mode of selection was challenged. It was
contended that the appointment has to be done by advertising in a newspaper, however the
court held that it is not necessary that the state must in every case of public appointment issue
an advertisement or notice inviting applications for office.
Under the provisions of Section 7A, the appropriate government has ample power of
constituting an industrial tribunal for limited time intending thereby that its life would
automatically come to an end on the expiry of that time. Again the appropriate government
has wide discretion to appoint tribunals for any limited time or for a particular case or for a
particular area. When a tribunal constituted for a limited period automatically comes to an
3
1993 (II) LLJ 491 (Kerala).
Page |4
end after the expiry of that period the appropriate government can constitute another tribunal
and refer to it the disputes which were pending before the first tribunal.
Once the tribunal has been constituted and its appointment has been duly notified along with
the name of presiding officer who is appointed to it, disputes may be referred to such tribunal
by appropriate government under Section 10 of the Act. A tribunal once appointed cannot be
abolished by an executive act merely because the government chooses to put an end to it
when a reference is pending before it, for the state cannot do indirectly what is not expressly
permissible in the Act4.
The first proviso to Section 10(1) however lays down that where the dispute relates to a
matter specified in the third schedule and is not likely to affect more than 100 workmen, the
appropriate government has the discretion to make the reference to a labour court. Thus
whereas questions arising out of second schedule can be adjudicated both by tribunal as well
as labour court question arising from matters arising out of third schedule can be referred for
adjudication to a tribunal alone, unless the case falls under the first proviso to Section
10(1)(d) of the Act.
The policy of the legislature while Section 7 and 7A was to confer jurisdiction to adjudicate
disputes arising from the matters in the second schedule on the labour court as well as the
tribunal, while it wanted to give jurisdiction to the tribunal alone on the disputes arising from
the matter enumerated in the third schedule. In other words, except for the matters
enumerated in the third schedule, the legislature wanted to confer jurisdiction upon both
labour court and tribunal. In case of an industrial dispute relating to matters other than those
specified in second or third schedule, the legislature included the residuary item 6, in the
second schedule under which both the labour court as well as the tribunal will have
jurisdiction to adjudicate. Thus, there is a marked distinction between the jurisdiction of the
labour court and that of the industrial tribunal. While the labour court functioning for all
purposes enumerated under the act, and certain duties and responsibilities as prescribed
therein the matters to be dealt which are within the jurisdiction of the tribunal as prescribed
under Section 7A are entirely different.
From the language of the various clauses of sub-section (1) of Section 10 of Act, it is clear
that before the authorities mentioned in clauses (b), (c) and (d) of Section 10(1) of the Act
can have jurisdiction upon any matter appearing to be connected with or relevant to the
4
Meenu Paul, Labour & Industrial Laws. (Allahabad Law Agency, Faridabad, 10th Edition, 2020).
Page |5
dispute, such matter must be specifically referred to such authorities. These words do not
have the same meaning as the words incidental thereto occurring in Section 10(4). Unlike the
matters incidental to the dispute, the matters appearing to be connected with or relevant to the
dispute must be specifically referred to the authorities. For the purposes of reference under
clause (c) and (d) of Section 10(1) of the Industrial Disputes Act, it is sufficient if it appears
to the government that the matter connected with or relevant to the dispute to any matter
specified in second or third schedule.
1. The propriety or legality of an order passed by an employer under the standing orders;
2. The application and interpretation of standing orders;
3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to,
workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;
5. Illegality or otherwise of a strike or lock-out; and
6. All matters other than those specified in the Third Schedule.
In Indian Tourism Corporation, New Delhi versus Delhi Administration,5 Full Bench of the
Delhi High Court held as follows:
“It is a settled law that the jurisdiction of the Labour Court or Industrial Tribunal in industrial
dispute is limited to the points specifically referred for its adjudication and the matters
incidental thereto and it is not permissible to go beyond the terms of the reference.”
Labour Court, Industrial Tribunal or National Tribunal is not free to enlarge the scope of the
dispute referred to them. The appropriate government should therefore carefully formulate
the points of dispute. Therefore, the points of reference should be so worded as to avoid
ambiguity, prejudice or advantage to one or the other party to the dispute6.
5
ILR 1982 Delhi 535.
6
Meenu Paul, Labour & Industrial Laws. (Allahabad Law Agency, Faridabad, 10th Edition, 2020).
Page |6
Indian Iron and Steel Co. versus Their Workmen7 was first time that reference was made to
the power of the tribunal to interfere with the management’s decision to dismiss, discharge or
terminate the services of a workman. In this particular case the Supreme Court in its
judgement while describing the nature of this particular power of the tribunal said that, “The
powers of an Industrial Tribunal to interfere in cases of dismissal of workmen by the
company, are not unlimited and the Tribunal does not act as a court of appeal and substitute
its own judgment for that of the management. It will interfere (1) when there is want of good
faith, (2) when there is victimisation or unfair labour practice, (3) when the management has
been guilty of a basic error or violation of a principle of natural justice, or (4) when on the
materials the finding is completely baseless or perverse”.
Under Section 11A, the tribunals have been given the power to set aside the order of
discharge and dismissal of workers in whichever cases it thinks fit and the tribunals have also
been given the powers to in fact order direct reinstatement of the workers on such terms and
conditions that it thinks fit and if not that then to provide any other relief to the workers. This
relief may even consist of an award of a lesser punishment instead of discharge and dismissal,
however the provisions clearly state that the decision in this regard is strictly subjective and
completely at the discretion of the tribunals on a case to case basis. Hence it has been held
that the provision was inserted in the act to in fact confer power on the adjudicators to
reappraise the evidence adduced in the domestic enquiry and to grant proper relief to
workmen, powers which the Tribunal did not possess earlier. Although it is expressly
provided that any workman aggrieved by the discharge or dismissal or termination of his
7
AIR 1958 SC 130.
Page |7
services may in fact appeal and the tribunal may subsequently override the management’s
decision, there is however a limitation with regards to the scope of the particular section as
observed by the 2nd National Commission on Labour, “where a worker has been dismissed
or removed from service after a proper and fair enquiry on charges of violence, sabotage,
theft or assault and if the labour court comes to the conclusion that the grave charges have
been proved then the court will not have the power to order reinstatement of the delinquent
worker”.
A workman may be dismissed from the services by the employer for a grave misconduct
committed by him and Labour Court or Industrial Tribunal cannot set aside such dismissal
and reinstate the workman under Section 11A simply out of sympathy for the workman. In
exercise of power under Section 11A the adjudicatory body cannot interfere with the
quantum of the punishment imposed by the employer unless the punishment is shockingly
disproportionate to the proved charges8.
The powers of the Labour Court, Industrial Tribunal or National Tribunal are not arbitrary,
unguided and unabridged. The Supreme Court in Christian Medical College Hospital
Employees Union versus Christian Medical College Vellore Association9 held as follows:
“The Industrial Tribunal or the Labour Court must give reasons for its decision. The decision
of the Industrial Tribunal or the Labour Court is again subject to judicial review by the High
Court and the Supreme Court.” “The power under Section 11A has to be exercised judicially
and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a
management under Section 11A only when it is satisfied that the punishment imposed by the
management is highly disproportionate to the degree of guilt of the workman.”
Award
Section 2(b) defines award as “award means an interim or final determination of an Industrial
Dispute of any question relating thereto by any Labour Court, Industrial Tribunal or National
Tribunal and includes an arbitration award under Section 10A.” According to sub-section 2A
of Section 10, Labour Court, Tribunal or National Tribunal submits its award within the time
period specified by the appropriate government in the order of reference. It further provides
that where such industrial dispute is connected with an individual workman, no such period
shall exceed three months. In computing any period specified for the submission of award,
for which the proceedings before the Labour Court, Tribunal or National Tribunal had been
stayed by any injunction or order of a Civil Court shall be excluded. But no proceeding
before a Labour Court, Tribunal or National Tribunal lapses, merely on the ground that any
period specified under Section 10 (2A) has expired without such proceedings being
completed.
According to Section 16(2), the award of a Labour Court or Tribunal or National Tribunal
must be in writing and must be signed by its presiding officer. And according to Section
8
Meenu Paul, Labour & Industrial Laws. (Allahabad Law Agency, Faridabad, 10th Edition, 2020).
9
AIR 1988 SC 37.
Page |8
17(1), every award shall within a period of 30 days from the date of its receipt by the
appropriate government, be published in such manner as the appropriate government thinks
fit. Further, the award published under Section 17(1) shall be final and shall not be called in
question in any manner whatsoever.
An award becomes enforceable on the expiry of 30 days from the date of its publication
under Section 17. The appropriate government or the Central Government, as the case may
be, by notification in the Official Gazette, declare that the award shall not become
enforceable on the expiry of the said period of 30 days-
i. If the appropriate government is of opinion, in any case where the award has been
given by a Labour Court, or Tribunal in relation to an industrial dispute to which it
is a party; or
ii. If the Central Government is of opinion in any case where the award has been
given by a National Tribunal,
that it will be inexpedient on public grounds affecting national economy or social
justice to give effect to the whole or any part of the award.
“Notwithstanding anything contained in this chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination, sentence
or order in any cause or matter passed or made by any court or tribunal in the territory of
India.”
The question that whether the Supreme Court can entertain an application for leave to appeal
against the award of Tribunal under Article 136 of the Indian Constitution was discussed in
Bharat Bank Ltd. versus Employees of the Bharat Bank10, in which it was held that, “The
functions and duties of the Industrial Tribunal constituted under Industrial Disputes Act,
1947, are very much like those of a body discharging judicial functions although it is not a
Court, and under Article 136 of the Constitution of India the Supreme Court jurisdiction to
entertain an application for leave to appeal from decision of the Tribunal, even though it will
be very careful to entertain such an application.” The Supreme Court entertains any such
application under Article 136 where the awards made by the Tribunals are in violation of the
principles of natural justice, causing substantial and grave injustice to the parties to the
dispute11.
10
AIR 1950 SC 188.
11
Meenu Paul, Labour & Industrial Laws. (Allahabad Law Agency, Faridabad, 10th Edition, 2020).
Page |9
Such relevant material has therefore to be collected by the tribunal and the problem is what
rules should the tribunal follow for this purpose? One view is that the tribunal satisfies the
definition of a court in the Indian Evidence Act and so, the tribunal should follow the rules of
the Act. The other view is that an affirmative duty is cast upon or rests on the tribunal to take
the initiative and aggressively gather facts, for, the public is more interested in the resolution
of an industrial dispute- being more deeply affected by it, than by ordinary litigation between
private parties, and it is the duty of the tribunal to protect such public interest. This, the
tribunal can do only if it free from restrictive rules. Since the Evidence Act contains some
rules under which some logically relevant evidence would be excluded, the application of the
Act to proceedings before the tribunal would hamper the tribunal in its work. So, according to
this view, apart from following certain basic and well known rules of natural justice, the
tribunals should have the greatest possible freedom in dealing with relevant evidence.
An examination of the various provisions of the Evidence Act, does not disclose any reason
as to why the Act should not be made applicable to proceedings before industrial tribunals.
The Industrial Disputes Act and the Rules there under may be suitably amended by making
the Evidence Act applicable to these tribunals12.
12
Vepa Sarathi, Law of Evidence. (Eastern Book Company, Lucknow, 7th Edition, 2018).
P a g e | 10
Conclusion
Industrial Tribunal forms an integral part of Industrial dispute redressal mechanism by
adjudicatory process. As with all tribunals the Industrial Tribunal as formed under Section 7A
of the Industrial Disputes Act, 1947 have some obvious flaws like slow pace of adjudication
etc. however from the quasi judicial perspective the Industrial tribunal is one of the most
successful tribunal. Although the legislature by its incessant amendments have tried to define
exactly the jurisdiction but the courts keeping in mind the social nature of the act have always
interpreted the jurisdiction clause in such a manner so as to include most of the industrial
disputes within the ambit of the Act. Thus today a matter belonging not only to third
schedule can be referred but also a matter from the second schedule can be sent for
adjudication in the tribunal.
Thus not only disputes relating to wages, compensatory and other allowances, hours of work,
bonus, profit sharing, provident fund and gratuity, working otherwise than in accordance with
standing orders, classification by grades, rules of discipline, Retrenchment of workmen and
closure of establishment; etc are within the ambit of tribunal but also matters relating to the
propriety or legality of an order passed by an employer under the standing orders, the
application and interpretation of standing order, discharge or dismissal of workmen including
reinstatement of, or grant of relief to, workmen wrongfully, withdrawal of any customary
concession or privilege, illegality or otherwise of a strike or lock-out can be determined upon
or adjudicated however the most important import to the jurisdiction from second schedule is
the residuary clause thereby giving industrial tribunal virtually the authority to adjudge any
industrial dispute.
Compulsory adjudication may well have contributed to the weakening of the trade union
movement in India, and complicated matters by bringing disputes before a centralised dispute
resolution mechanism under the State’s authority, though they may be addressed just as well
internally. At present, while it is difficult for labourers to secure their rights, even employers
are restricted by the laws that reflect the socialist bent of governance of the period in which
they were enacted, though these are hopelessly out of sync with contemporary realities. All
the while, the government holds too firm a grip, especially over dispute resolution.
However, there is no viable alternative to this system. Stringent provisions, therefore are
required for ensuring the time limit within which the orders/awards to be implemented and
clothe the courts and tribunal with powers of contempt of court for non-implementation of
orders /awards passed by them. It is submitted that the need of the day is to evolve the frame-
work in which workers and the management perceive the need to co-operate. Bilateral
regulation is the most effective method of evolving norms which enjoy wide acceptance and
till happens the situation of labour laws in India especially industrial dispute laws will not
improve.
P a g e | 11
References
2. Mishra ,S.N., Modern Labour Laws And Industrial Relations, (Deep &
Deep Publications Pvt. Ltd, 1992).