10 The Bombay Industrial Relations Act, 1946 The importance of the Bombay Industrial Relations Act, 1946, lies

in the fact that it is a complete code for regulating the relations of employers and employees. The principal features of the Act are as follows: (a) Treating trade unions with a status-the Act makes provision for recognising unions as Representative Unions and Approved Unions and giving them special rights to strengthen their bargaining power. (b) Prohibiting employers from effecting certain changes and declaring such changes as illegal -the employers are prohibited from effecting changes in the principal service conditions of their employees without giving prior notice of the proposed change. (c) Establishment of an Industrial Court for deciding collective disputes and for exercising superintendence over the other authorities under the Act. (d) Establishment of Labour Courts for speedy determination of individual disputes. Making victimization an offence -the fear of victimization is a great obstruction in the way of the growth of trade unions. The Act, therefore, makes victimization illegal 11 Object of the Act and punishable. The other important features of the Act are compulsory conciliation, compulsion to frame Standing Orders, compulsory arbitration in certain exceptional circumstances, and .prohibition of certain strikes. Object of the Act Q. What is the object of the Bombay Industrial Relations Act, 1946? A. The object of the Act is to regulate the entire range of relations of empl)yers and employees with particular insistence on promotion of collective bargaining and prevention of strikes and lockouts. Q. Is there any striking difference between the scheme of the Bombay Industrial Relations Act and the scheme of the Industrial Disputes Act? A. The Bombay Industrial Relations ,ct is preventive, the Industrial Disputes Act is curative. While the former makes elaborate provisions for regulating industrial relations, greater emphasis is laid on dispute resolution under thff scheme of the Industrial Disputes Act. Note:-Held in Co-op. Bank Employees Union v. Yesh-want Sahakari Bank Ltd. & Ors. 1992 II C.L.R. 840. Applicability of the Act O. Which indu;tries are covered by the B.I.R. Act, 1946? A. B.I.R. Act, 1946, is applicable only to those industries which were covered by the Bombay Industrial Disputes Act, 1938, in the Bombay area of the State and by the Central Provinces and Berar Industrial Disputes Settlement Act, i947, in the Vidarbha area of the State. S.2(3) and (4). Note:-In the Bombay area of the State the B.I.R. Act, 1938, was applicable to certain organised industries such as Cotton Textile, Silk Textile, Sugar etc.

12 The Bombay Industrial Relations Act, 1946 Q.. Which persons are covered by the B.hR. Act, 1946? A. The Act is applicable to every skilled or unskilled person employed in any industry to which the Act is applicable including a person employed by a contractor but excluding a person employed primarily in a managerial, administra tive, supervisory or technical capacity drawing basic pay exceeding Rs.6,500 per month. S.3(13). Q. Are the provisions of the Act applicable to a retail cloth shop of a textile mill?

A. If the retail cloth shop can be considered as reasonably connected with the textile mill and if there is a functional integration between the two in the practicgl sense of the term for purpose of achieving better business results, the employees engaged in such integral and connected activity cannot be deprived of the benefits of Labour Welfare Legislation. Note: Held in Ashok S. Athavale v. Ratansi Muljee, 1991 I C.L.R. 492. Q. Is st permissible for the Government to direct that the provisions of the Act shall cease to apply to any industry? A; By amending section 2 of the Act the Government is empowered tb direct that the provisions of the Act shall cease to apply to any industry. S.2(5). Authorities under the Act Q. What are the authorities under the Act and what are the duties entrusted to them? A. The following are the authorities under the Act and the duties entrusted to them in brief: (1) Commissioner of Labour for the general administration of the Act; (2) Registrar of Unions for registering and controlling the unions;

13 Recognition of Undertaking (3) .Conciliators and Boards of Conciliation for holding conciliation proceedings and promoting the settlement of disputes; (4) Government Labour Officers for promoting harmonious relations between employers and employees; (5) Labour Courts for deciding individuals disputes; (6) Wage Boards for deciding certain collective disputes; and (7) Industrial Court for (a) deciding collective disputes and (b) hearing certain appeals. Ss.4 to 10 and 86A, .Recognition of Undertaking O. What exactly the Registrar of Unions does when he recognises any concern in an industry to be an undertaking? A. When the Registrar of Unions recognises any concern to be an undertaking, he does not make the Act applicable to the undertaking but he ascertains whether the .undertaking is governed by the Act or not. Note:-Held in Messers. Wintex Mills, Surat v. The Surat Silk Textile Labour Union, BGG-IL qlated 27-8-1959, p.3849. Q. If a company carries on several undertakings are they required to be recognised as separate undertakings or one undertaking? A. If one concern on company carries on several businesses or undertakes different types ,of industrial works, these businesses or work would amount to separate, enterprises or undertaking and would have to be recognised as such. It all depends on whether the undertakings are separate, distinct and independent of. each other or are functionally integral or interdependent. In the former cases, the Registrar would be justified in treating the seve.ral undertakings separately while in the latter case, he may recogise all of them as one undertaking. 14 The Bombay Industrial Relations Act. 1946 -Note : Held in Fine Knitting Co.. Ltd. v. Industrial Court, 1962 I LLJ 223 (S.C.). Representative Union O. What is the meaning of ,,Representative Union", "'Qualified Union" and "Primary Union"? A. The Act recognises three types of unions: Representative, Qualified and Primary. A union having a minimum membership of 25% of the employees in any industry is called Representative Union, 5% of the employees m any industry is called Qualified Union, and 15% Of the employees in any undertaking is called Primary Union. S.13. Q. What are the special rights of a Representative Union? A. When there is a representative union for an industry such union has a right:

(a) to represent all employees in such industry; (b) to appear or act on behalf of any employee in such. industry to the exclusion of all other agencies; (c) to make all employees in such industry bound by any -agreement, settlement, submission or award to which it is a party. S.27A and 114. Q. What are the circumstances in which the registration of a union can be cancelled? A. The Registrar of Unions can cancel the registration of a union if: (a) it was registered under mistake, misrepresentation or fraud; (b) the membership of the union has fallen below the minimum required for its registration; (c) the union is not being conducted bona ride in the interest of employees but in the. interest of employers to the prejudice of the interest of employees; (d) it has instigated, aided or assisted the commencement or continuation of an illegal strike;

15 Representative Union (e) its registration under the Trade Unions Act is. cancelled. S.15. Q. Can a Representative Union appear in a proceeding initiated by an individual employee and if it can do so, what will be the consequence of such appearance? A. A representative Unon represents every employee in the industry concerned and it can enter appearance in any proceeding initiated by an individual employee. When the Representative Union chooses to do so in its capacity as representative of employees, the individual employee will have no right to appear or act in the proceeding. Note:. Held in Santuram Khudai v. Kimatrai Printers Processors, 1978 I LLJ 174. Q.-Can the appearance of a representative union as the representative of employees in a proceeding initiated . by an individual employee be objected to on the ground that the union was acting malafide? A. The mala tides or bona tides of a representative union has no relevance while considering the provisions of section 27-A and sections 32 and 33 which taken together impose an absolute ban on the appearance of any individual employee in any proceeding under the Act where a representative union chooses to appear or act as the representative of employees. " Note: Held in Santuram Khudai v. Kimatrai Printers Processors, 1978 I LLJ 174. Q. Can an individual employee prevent the Representative Union .from appearing in a proceeding initiated by him alleging that it is acting mala ride? A. In case the individual employee feels that the Representative Union is acting mala ride, he can move the Registrar to have the registration of the Union cancelled but he cannot prevent the Union from appearing in the proceeding if the Union so desires.

16 Ao Go The Bombay Industrial Relations Act, 1946 Note:-Held in the same case as mentioned below the preceding question. Does a person continue to be a member of a union in spite of his subscription remaining in arrears for 3 months? In view of the proviso to section 3(25) a member continues to hold his membership of a union even if he commits default in payment of his subscription for a particular month provided the default is not for a period of more than 3 calendar months during the preceding 6 months. Note:-Held in Maharashtra Girni Kamgar Union v. S. Bhattacharji & Ors, 1984 II LLJ 111. Approved Union What is the meaning of "approved union"? An approved union means a union which has made rules providing for the following things and which is entered by the Registrar of Unions in the approved list. (1) Its membership subscription shall be not less than 50 paise per month. (2) Its executive committee shall meet at intervals of not more than 3 months. (3) All resolutions passed, whether by the executive committee or the general body of the union, shall be recorded in a minute book. (4) An auditor appointed by Government may audit its accounts at least once in each year. (5) Every industrial dispute in which'a settlement is not reached by conciliation shall be offered to be submitted to arbitration, and arbitration shall not be refused by it in any dispute. (6) No strike shall be sanctioned, resorted to, or supported by it unless all the methods provided under the Act for the settlement or an industrial dispute have been exhausted and the majority of its members vote by ballot in

17 Approved Union favour of such strike. (7) No 'go slow' shall be sanctioned, resorted to, or suprted by it. S.23. (;1. What are the rights of the officers of an approved union? A. The officers of an approved union authorised in this behalf have a right: (1) to collect subscription fom members on the premises of the undertaking; (2) to put a notice board on the premises of the undertaking and affix notices thereon; (3) to hold discussions with members on the premises of the undertaking; (4) to discuss with an employer the grievances of members; (5) to inspect any place in any undertaking. S.25. Q. What are the circumstances in which a union can be removed from the approved list? A. The Registrar of Unions can remove a union from the approved list if: (a) its registration under the Trade Unions Act is cancelled, or (b) it was entered in the list under mistake, misrepresentation or fraud, or (c) it failed to observe the conditions for its approval. S.24. Q. What are the duties and powers of the Govt. Labour Officer? A. The duties of the Govt. Labour Officer are as follows: (a) to watch th'e interests of employees and promote harnious relations between employers and employees; (b) to investigate the grievances of employees and represent to employers such grievances and make recommendations to them;

18 The Bombay Industrial Relations Act, 1946 (c) to report to the Government the existence of any industrial dispute together with the names of the parties thereto. To enable him to perform these duties, the Labour Officer has been given powers (a) to inspect the place of any business or the office of any union or the residence of any employee, (b) to call and inspect documents, (c) to hold meetings of the employees and (d) to appear in any proceeding under the Act. S.34. Standing Orders O. What is meant by "Standing Orders"? A. "Standing Orders" means rules of conduct for employees relating to matters like attendance, leave, misconduct, etc. enumerated in the first Schedule to the Act. Q. What is meant by "Model Standing Orders"? A. "Model Standing Orders" means Standing Orders framed by the Government to serve as a model as well as a temporary substitute for settled Standing Orders. Model Standing Orders Q. In what circumstances the Model Standing Orders are applicable to an undertaking? A. If there are no Standing Orders m operation in any undertaking, the Model Standing Orders framed by the Government for the concerned industry shall apply to that undertaking until settled standing orders in respect of that undertaking come into operation. S.35(5). Settlement of Standing Orders O. What is the procedure the employer has to follow for settlement of Standing Orders? A. (a) The employer has to prepare a draft of the Standing Orders which he proposes to adopt for his undertaking for the purpose of regulating the relations between him and his employees with regard to the industrial matters mentioned in the first Schedule to the Act.

19 Settlement of Standing Orders (b) The employer has then to submit the draft of the Standing Orders prepared by him to the Commissioner of Labour for approval, which he has to do within six weeks from the date of the application of the Act to the concerned industry or within six months of the starting of his undertaking, as the case may be. (c) After receiving the draft of the Standing Orders the Commissioner of Labour has to call and hear the representative" of the employees and settle i.e. finalise the Standing Orders. (d) If the employer s aggrieved by the decision of the Commissioner of Labour, he .can prefer an appeal to the Industrial Court for the necessary relief. (e) If the employer is not satisfied with the decision of the Industrial Court he can apply to that Court for a review of .the decision. (f) The Industrial Court can stay the operation of the Standing Orders settled by the Commissioner of Labour pending the appeal or the review as the case may be. (g) The Standing Orders settled by the Commissioner of Labour come into operation from the date on which the Registrar of Unions records them in the register kept for the purpose. The Standing Orders finalised by the Industrial Court in appeal or review come into operation from the date fixed by that Court in this behalf. Ss.35 to 37. Q. What is the machinery provided under the Act for resolving a dispute between the employer and his employee about the application or interpretation of Standing Orders? A. If there is any dispute between the employer and' his employee regarding (a) the application or interpretation of any standing order or (b) the propriety or legality of any order passed by the employer under the Standing Orders, the employee or the Representative Union can apply to a Labour Court for deciding such dispute. Ss.40 and 78.

The Bombay Industrial Relations Act, 1946 Alteration of Standing Orders O. What is the procedure for making any alterations in the Standing Orders?.

A. If any employer wants to make any change in any standing order, he has to make an application to the Commissioner of Labour for that purpose. After receiving the application the Commissioner of Labour has to hear the other party and pass the necessary order. The altered standing order comes into operation from the date on which the Registrar of Unions records it in the register kept for the purpose. Ss.38,39o Effect of Standing Orders O. What is the effect of the settled Standing Orders or the Model Standing Orders on the. relations between the concerned employer and employees? A. The settled Standing Orders or the Model Standing Orders as the case may be are determinative of the relations between the employer and his employees in regard to all industrial matters specified in the first Schedule to the Act. That means the rights and obligations of the employer and his employees shall be governed by the settled Standing Orders or the Model Standing Orders as the case maYs.40.be and by no other rules or regulatio.ns. Q. Can a settlement override a Standing order? A. standing orders are determinative of the relations between the parties vide Section 40 of the Act. A settlement arrived at between the parties cannot override a Standing Order. Note: Held in New Hind Textile Mills vo Rashtriya M!II Maz-door Sangh, 2003 Ill C. L. R. 332 (Born. H.C.) Q. Is the Industrial Employment (Standing Orders) Act, 1946, also applicable to the industries covered by the Bombay. Industrial Relations Act, 1946?

Offences A. The provisions of the Industrial Employment (Standing . Orders) Act, 1946, are not applicable to the industries covered by the Bombay Industrial Relations Act, 1946. S.41. Offences O. What is the punishment for making any unauthorised change in any settled standing order? A. If any employer makes any change in any settled standing order without following the proper procedure, it amounts to an illegal change and is punishable with fine upto Rs.5,000. Ss.46(1)(4) and 106(1). Q, What is the punishment for contravention of a Standg Order? A. If any employer acts in contravention of'a Model Standing Order or a settled Standing Order applicable to him, he would be punished with fine upto Rs.500. If he continues the contravention the fine would be Rs.125 per day. S.107. Change Q. What is the meaning of "Change"? A. A Change means an alteration in an industrial matter. Reduction in rates of wages, increase in hours of work, dismissal of an employee, etc., are called changes. Q. What is the procedure to be followed by employers or employees for bringing about changes in the ofemployees' wages ore principal hours of work? service conditions such as rates A. (a) If an employer, intends to effect-a change in any principal service condition of his employee, i.e. a change in respect Of any industrial matter mentioned in Schedule II to the Act, he has to give notice of the proposed change to the representative of the employees and also send a copy of such notice to the Conciliator.

22 The Bombay Industrial Relations Act, 1946 (b) If an employee desires a change in any of his-principal service conditions, i.e. a change in respect of any industrial matter which is not mentioned either in Schedule I or in Schedule III to the Act, he has also to give notice of such demand to his employer through his representative and also send a copy of such notice to the Conciliator. (c) A dispute arises between the employer and the employee when such notice is given by the employer to the employee or by the employee to the employer. The parties may then settle the dispute by arriving at an amicable agreement after direct voluntary negotiations between them. (d) If an agreement is arrived at in regard to the proposed change as a result of negotiations between the parties, a memorandum of such agreement has to be sent to the Registrar of Unions and the Registrar of. Unions has to enter the same in a register maintained for the purpose. Such agreement comes into operation on the date mentioned therein or if no date is so mentioned, on its being recorded by the Registrar. Ss.42,44 and 45. Can the Registrar refuse to register an agreement under section 44(2) of the Act on the ground that it was not arrived at within seven days from the date of service of notice under section 42? Section 44(1) does not fix an inflexible period of seven days for entering into the agreement by the parties after the notice of change has been given. If the parties sign the agreement beyond the period of seven days mentioned in section 44(1), there is implicit in this act an acknowledgement on the part of the parties that they had agreed to continue the negotiations for a period beyond the period of seven days mentioned in section 44(1) of the Act. The Registrar could not have refused the Registration of the agreement. Note: Held in M.T.R.S. Kamgar Sangh v. Saswad Mali Sugar Factory Ltd., 1989 11 C.L.R. 427.

Change 23 Q. Is it necessary for an employer to give a notice of change under Section 42(1) when the intended change is not going to affect any employees adversely? A; The notice of change under section 42(1) is required to be given to the "representative of employees" and not to the "e mp oyees affected" by the intended change. Therefore, the employer is obliged t give such a notice even though the proposed change is not likely to adversely affect any employees in his service. Note:-Held in Co-op. Bank Employees Union v. Yesh-want Sahakari Bank Ltd. & Ors. 1992 II C.L.R, 840. Q. Is it necessary for employees to give notice of change under section 42(2) when the change desired is something which the employer is legally bound to do? A. No notice of change is required to be given by employees under section 42(2) when the change which is being demanded by them is something which the employer =s bound to do under the law. Note:-Held in Empress Mills Co-operative Society v. Presiding Officer, 1988 I C.L.R. 192. Q. Is it necessary for the employer to give notice of change before reducing or increasing posts excluded from "employee" category? A. The Act is intended to protect the .interests of the employees specifically. It is not necessary for the employer to give notice of change,before reducing or increasing the number of posts or persons excluded from the definition of "employee". Note:-Held in Tata Hydro Companies Employees Union v. Tata Power Co. Ltd. & Ors. 2001 I CLR 381. Q. Is it necessary for an employer to give a notice to the representative of employees under section 42 of the Act before issuing an advertisement inviting tenders for sale of land and buildings to improve the working of his mills?

An S.42(4). The Bombay Industrial Relations Act, 1946 A. Issuing such advertisement, per se, does not require any notice under section 42 of the Act. Note:-Held in Mumbai Girni Kamgar Union v. General Manager, M/s. Mumbai Textile Mills (NTC) & Ors. 1992 II.CLR 314. Illegal Change O. What is an illegal change? A. (1) If an employer makes a change in respect of any industrial matter mentioned in Schedule II to the Act (a) either before giving notice of the change to the representative of the employees, or (b) if no agreement is arrived at after such notice is given, during the conciliation proceedings, or (c) if no settlement is arrived at during the conciliation proceedings, before the award of the Industrial Court comes into operation; such change is illegal. (2) Any change made by the employer in contravention ,of the terms of any settlement, award or agreement is also an illegal change. S.46. Q. What is the procedure to be followed by the employers or the employees for bringing about a change in other service conditions? A. If an employee desires a change in respect of (i) any order passed by the employer under standing orders )r (ii) any industrial matter arising out of the application or interpretation of standing orders, or (iii) an industrial matter mentioned.in Schedule III to the Act, and if the employer is not agreeable to make the change demanded by the emlloyee, the employee has to make an application to a Labour Court. employer can effect a change in respect of the above mentioned matters without following any procedure.

Joint Committees Q. If an employer wants to retrench certain employees, is he required to give notice of change? . When an employer desires to retrench certain employees holding certain posts and does not desire to reduce those posts, he need not give a noticeof change. Note:-Held in Chaganlal Textile Mills (Private) ltd. v. Chalisgaon GirnJ Kamgar Union, 1959 II LLJ 1 (S.C.). Q. Does a transfer of an employee from one department to another within the establishment without giving notice of change amounts to an illegal change in view of the provisions of Section 42(1) of the act read with items 1 and 2 of Schedule II thereof? A. Such a transfer is covered by the provisions of Section 42(4) of the Act read with item 2 of Schedule III thereof, a.nd, therefore, it does not amount to an illegal change, Note: Held in Jilajit Ramnandan Chaudhari & Ors. v. Dawn Mills Ltd. & Ors., 2003 III C.L.R. 185, (Born. H.C.) Q. Can a notice of change be given by an individual employee? A. The right to give a notice of change is not conferred upon the individual employee and it is conferred only upon the representative union. It is for the employee to place before such union what the grievances are and ultimately it is for the union, if it is satisfied that the grievances are justified, to give the necessary notice of change. Note:-Held in Usman Habib v. State of Bombay & Ors. 1955 II LLJ 494 (Born.). Q. Whatis the Punishment for making an illegal change' A. If any employer makes an illegal change, he would be punished with fine up.to Rs.5,000. S. 106.

The Bombay Industrial Relations Act, 1946 Joint Committees Q. What is a "Joint Committee"? A. A Joint Committee s constituted in an undertaking with the consent of the employer and the registered union or by the direction of the Government. It is a joint body consisting of half the number of members nominated by the union and the other half appointed by the employer. There is a Chairman of a Joint Committee. Any member of a Joint Committee can move a proposal regarding any change or matters affecting the relations between the employer and the employees for the decision of the Joint Committee. If an agreement is arrived at between the employer and the union regarding the proposed change, the employer shall send a memorandum of such agreement to the Registrar of Unions. The Registrar shall enter the agreement in a register maintained for the purpose. The registered ag.reemerit shall come into operation on the date specified therein or if no date is so specified on its being recorded by the Registrar. Ss.48,49,51,52. Q. What is the punishment for failure to appoint members on a Joint Committee? A. If any employer fails to appoint members of a Joint Committee, he would be punished with fine upto Rs.50/-. If the employer continues the offence, he would be punished with fine upto Rs.50/-per day. S.106A.

Conciliation Proceedings O. If the change proposed in a notice is objected to by the employer or the employee, as the case may be, what is the next step the parties have to take? A. If the change proposed in the notice is objected to by the employer or the employee, as the case may be, the party who gave such notice has to sehd a full report of the case to the Conciliator. On receipt of such report the Conciliator has to hold conciliation proceedings. The parties may settle the dispute during the proceedings with the help of

Arbitrati on 27 the Cenciliator. If a settlement is arrived at during the conciliation proceedings, the Conciliator has to draw a memorandum of the settlement and send a.copy thereof to the Registrar of Unions. The Registrar has to record the settlement in the register of agreements and also publish the same. The change agreed to by the settlement shall come into operation from the date agreed upon in the settlement and if no such date is agreed upon from the date on which it is recorded in the register. Ss.54,56,58. Q. What are the duties of the Conciliator? A. Onreceipt of a report from a party about the existence of a dispute the Conciliator has to hold conciliation proceed ings.. He must strive to bring about the settlement of the dispute. For this purpose he can enquire into the dispute and all matters affecting the merits thereof and can do all such things as he thinks fit for.the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. He has to hold the conciliation proceedings in camera. Whether a settlement is arrived at or not, in either case, he has to send a report of the conciliation proceedngs to the Chief Conciliator. Ss.56 and 60. Arbitration O. Who can refer a dispute for arbitration? A. 1. Any employee and a Representative Union or any other registered union which is a representative of employees can jointly refer any present or future dispute to the arbitration of any person. 2. The Government can refer any dispute between employees and employees to the arbitration of a Labour Court or the, Industrial Court. S.72. 3. The Government can refer any dispute to the arbitration of the Industrial Court if it is satisfied: (1) that the continuance of the dispute is likely to cause (a) a serious outbreak of disorder or breach of the public peace, (b) serious or prolonged hardship to a large section of the

The Bombay Industrial Relations Act, 1946 community, or (c) an adverse effect on the industry or curtailment of employment therein; (2) that the dispute is not likely to be settled by the other means; or (3) that it is necessary in the public interest to do so. S.73. 4. Any employer alone can refer any dispute for arbitration to the Industrial Court. S.73Ao 5. Any registered union which is a representative of employees and which is also an approved union alone can refer any dispute for arbitration to the Industrial Court. S.73A. Q. In what circumstances an employer or a registered union which is a representative of employees and which is also an approved,union can refer a dispute for arbitration to the Industrial Court? A. An employer or a registered union which is a representative of employees and which is also an approved union can refer any dispute for arbitration to the Industrial Court where: (a) the dispute relates to matters not contained in Schedule I or III, and (b) the dispute is not resolved by private agreement or by conciliation, and (c) there is no agreement between the parties to submit the dispute to the arbitration Of any private person. Note:-Held in Ahmedabad Mills Owners' Association v. I.G. Thakore, A.I.R. 1967 SC 1091. Q. What types of disputes are decided by Labour Courts? A. (A) Labour Courts have power to decide disputes regarding:1) the propriety or legality of any. order passed by the employer under the standing orders; (2) The application or interpretation of standing orders; \The Bombay Industrial Relations Act, 1946 community, or (c) an adverse effect on the industry or curtailment of employment therein; (2) that the dispute is not likely to be settled by the other means; or (3) that it is necessary in the public interest to do so. S.73. 4. Any employer alone can refer any dispute for arbitration to the Industrial Court. S.73A. 5. Any registered union which is a representative of employees and which is also an approved union alone can refer any dispute for arbitration to the Industrial Court. S.73A. Q. In what circumstances an employer or a registered union which is a representative of employees and which is also an approved union can refer a dispute for arbitration t.o the Industrial Court? A. An employer or a registered union which is a representative of employees and which is also an approved union can refer any dispute for arbitration to the Industrial Court where: (a) the dispute relates to matters not contained in Schedule I or III, and (b) the dispute is not resolved by private agreement or by conciliation, and

(c) there is no agreement between the parties to submit the dispute to the arbitration of any private person: Note:-Held in Ahmedabad Mills Owners' Association v. I.G. Thakore, A.I.R. 1967 SC 1091. Q. What types of disputes are decided by Labour Courts? A. (A) Labour Courts have power to decide disputes regarding:1) the propriety or legality of any. order passed by the employer under the standing orders; (2) The application or interpretation of standing orders;

Arbitration (3)-changes made by the employer or changes demanded by.the employees in respect of industrial matters specified in Schedule III to the Act; (,) the legality or otherwise of a strike; (5) the legality or otherwise of a lockout; (6) the legality or otherwise of any change made by the employer in respect of industrial matters specified in Schedule II to the Act. (B) Labour Courts are also empowered to act (1) as Criminal Courts in respect of offences punishable under the Act and (2) as Courts of Arbitration in certain circumstances. S.78. Q. Is it necessary for an employee to write an approach letter to the employer if he wants to file an application in relation to an illegal change made by the employer? A.No approach letter as provided under section 42(4) of the Act is required to be written if an employee wants to file an application in relation to an illegal change as defined under section 46 of the Act. Note:-Held in Saurashtra Majoor Mahajan Sangh v. Una Taluka Khedut Sahakari Khand Udyog Ltd. 1994 I C.L.R. 499. Q. What .is the time limit for making different applications to the Labour Courts? A. (1) An application (a) for challenging any order passed by the employer under the standing orders or (b) for challenging any action of the employer arising out of the application or interpretation of standing orders must be filed within three months from the date of arising of the dispute. In such cases a dispute is deemed to have arisen if the employer does not agree to Withdraw the order or action in question on an application made by the employee to him in this behalf. S.79.

3O The Bombay Industrial Relations Act, 1946 (2) An application for challenging any change effected by the employer or for getting any change effected by the employer in respect of matters specified in Schedule III to the Act must be filed witlin three menths of the writing of the last letter of request to the employer in that behalf. (3) An application for a declaration that strike or lock-out is illegal must be filed within three months of the commencement of the strike or lockout. (4) An application for a declaration that any chan.ge made by the employer in respect of industrial matters specified in Schedule II to the Act is illegal must be made within three months of the making of the change. Q, If an application made by an employee to a Labour Court under section 42(4) is premature, is it liable to be rejected by the Labour Court? A. If such application is premature in as much as it was filed before expiry of 15 days of the receipt of the approach letter by the employer, it cannot be rejected by the Labour Court. The Labour Court should proceed with .it after expiry of the period of 15 days. Note:-Held in Amarsinh Swaroopsinh & Ors. v. Jagdish Processors, 1993 II C.L.R. 1016. Q. In an application by a dismissed employee challenging his dismissal before the Labour Court, can the employee raise any ground or contention other than those, mentioned in his letter of approach? A. Neither the Act nor the Rules contemplate a detailed and exhaustive pleadings in the letter of approach, It is open to the employee to raise all such grounds or contentions in his application before the Labour Court, which he may not have taken or written in his letter of approach. Note:Held in Llmashankar D. Shukla v. New Shakti Dye Works P. Ltd. 2002 II CLR 430.

Arbitration 31 Go Q. Do the Labour Courts have power to condone delay, in filing applications under section 79 of the Act? A. By amending section 79 of the Act, the Labour Courts are given power to condone, forsufficient reasons, delay in filing applications under that section. Q. What are the special powers of the Labour Courts? A. Labour Court has the special powers to compel the employer:) to withdraw, temporarily or permanently, any unuthorised alterations in the service conditions of the employees in respect of the matters specified in Schedule il to the Act; (2) t'o carry out any alterations in the service conditions of the employees; (3) to reinstate any employee with payment of full back wages; (4) to pay to any employee, if he is not reinstated compensation upto Rs.4000 in addition to the payment of full back wages. S.78. Can a dismissed employee make an application to the Labour Court for relief under Section 78(1)D without first approaching the employer under Section 42(4)? As the scheme of the Act is that the dispute should be settled as far Ks possible and primarily through conciliation and agreement, it does not stand to reason that an employee should be able to side-step all this by a direct reference to the Labour Court. A Labour Cour[ is a creature of statute and it can only exercise such jurisdiction as the statute confers on it. If there are certain preconditions to be satisfied it must refuse to entertain any such application unless the precondition is satisfied. Note: Held in M/s. Chottabhai Jathabhai Patel & Co. v. Industrial Court, 1972 I LLJ 657 (S.C.):

The Bombay Industrial Relations Act, 1946 32 Q.. Can the provisions of Section 11-A of the Industrial Disputes Act relating tO the award of a lesser punishment in lieu of discharge or dismissal be applied in respect of proceedings before a Labour Court under Sections 78 and 79 of the Bombay Industrial Relations Act? A: The provisions of Section 11-A of the industrial Disputes Act are not applicable in respect of proceedings before a Labour Court under Sections 78 and 79 of the Bombay Industrial Relations Act. Note: Held in Municipal Corporation of Greater Bombay v. S.E. Phadtare & Ors. 1994 I C.L.R. 301 (Bombay). Q. Are the decisions of a Labour Court appealable? A. Not all but some decisions of a Labour Court are appealle. An appeal against them lies to the Industrial Court. S.84. Wage Boards Q. What types of disputes can be referred to s Wage Board? A. Any dispute regarding (1) reduction in posts, (2) increase in posts, (3) rationalisation, (4) wages or (5) working hours can be referred to a Wage Board for its decision. A reference to a Wage Board can be made by the Government, an employer or a certain class of unions. S.86C. Q. Can a dispute regarding retrenchment or illegal change be referred to a Wage Board?\ A. A Wage Board has no jurisdiction to decide a dispute relating to .retrenchment or illegal change. Note:-Held in Dhanraj Mills Ltd., Bombay v. Rashtriya Mill Mazdoor Sangh, Bombay 1951 I LLJ 14 (L.A.T.) (Born.) and Jasmine Mills Ltd., Bombay v. Mill Maz-door Sabha, Bombay 1956 I CR 368.

33 Industrial Court Industrial Court O, What are the functions of the Industrial Court? A,. The functions of the Industrial Court are fourfold as follows:1) Its functions as an Original Court:-As an Original Court it holds arbitration proceedings in respect of disputes referred to it by the Government or the parties. S.87. (2) Its functions as an Appellate Court::-As an Appellate Court it hears appea s against the orders of the Registrar of Unions, Commissioner of Labour, Wage Boards and Labour Courts. S.87. (3) Its advisory functions:-Its advisory functions consist of deciding questions of law referred to it by the Government, Board of Conciliation, Commissioner of Labour, Labour Court, Wage Board, .Civil Court or Criminal Court. (4) Its supervisory functions:-Its supervisory functions consist of exercising superintendence over Labour Courts and Wage Boards and issuing general rules of practice and procedure for Labour Courts and Wage Boards. Ss.85 and 86J. O, Is it open to the Industrial Court to re-appreciate evidence while exercising its power of superintendence over Labour Courts under section 85 of the Act? A, It is not open to the Industrial Court while exercising its power of superintendence under section 85 of the Act to re-weigh or re-appreciate evidence and/or to prefer another view if another view is preferable or plausible, Note:-Held in Saurashtra Majoor Mahajan Sangh v. Una Taluka Khedut Sahakari Khand Udyog Ltd, 1994 I C.L,R. 499, Q, Are the decisions of the Industrial Court binding on the authorities under the Act? A, The decisions of the Full Bench of the Industrial Court are binding on the other authorities under the Act, S.95A,

34 The Bombay Industrial Relations Act, 194"6 Q. Are the decisions of the Industrial Court appealable? A. The decisions of the Industrial Court are not appealable and they cannot be called in question in any civil or criminal court. S.95. Note:-There can be a writ petition to a High Court or an appeal by special leave to the Supreme Court against a decision of the Industrial Court. Strike Q. What is the meaning of "Strike"? A. The employees are said to be on strike when (1) they stop their work (2) acting n combination (3) to compel the employer to accept some demand. To constitute strike there must be the co-existence of these three ingredients. S.3(36). Q. What is the difference between strike and stoppage? A. Under the Bombay Industrial Relations Act, in the case of a strike, the cessation of work is in consequence of an industrial dispute; while in the case of a stoppage, the cessation of work may or may not be in consequence of an industrial dispute. S.3(36) & (35A) Q. Where employees stopped work in consequence of a call given by political parties for Bharat Bandh, does the stoppage of work amount to a strike? A. Where the cessation of work was not in pursuance of any demands or in respect of any industrial dispute, it merely amounts to "stoppage" under section 3(35-A) of the Act. Note:-Held in General Secretary, Best Workers' Union v. N.A. Kadam & Ors. 1994 II C.L.R. 420. Q..If the employees partially stop their work does it amount to a strike? A. If a large number of workers refuse to do the full work as assigned to them and perform work Only to half the extent, it amounts to a strike.

Illegal Strike Note:-Held in Ballu Govind v. Appollo Mills Ltd., 1957 II LLJ 55. Q. If the employees slow-down their work, does it amount to a strike? A. If the employees have not stopped their work but have only slowed down their work, it does not amount to a strike. Note:-Held in Bai Santok Beni v. Fine Knitting Co. Ltd., 1957 I LLJ 409. O. Does a legal strike make the employer liable to pay to the workers wages for the period of strike? A. Wlether the strike is legal or illegal, the workers are liable to lose wages for the period .of strike. During the period of strike the contract of employment continues but the workers withhold their labour. Consequently, they Cannot expect to be paid. Note: Observation of Supreme Court in Bank of India v. T.S. Kelawala, 1990 I C.L.R. 748. Q. Does the relationship of employer and employee come to an end during the period of a strike? A. The relationship of employer and employee does not come to an end but subsists during the period of a strike, Illegal Strike O. What is the meaning of "Illegal Strike"?. A. The following are the important instances of an illegal strike:-(a) Disputes regarding matters specified in the first and third schedules to the Act can be taken to a Labour Court. Strike relating to such matters are therefore treated as illegal. S.97(1 )(a). (b) Disputes regarding matters specified.in the second schedule to the Act are to be raised by giving notice of change to the employer. Strikes relating to such matters are, therefore, illegal if resorted to without giving notice of change. S.97(1 )(b).

36 The Bombay Industrial Relations Act, 1946 (c) Disputes regarding illegal changes employer and disputes regarding the made by the failure of the employer to carry out the provisions of any standing order can be taken to a Labour Court. Strikes resorted to in consequence of SUch disputes are, therefore, treated as illegal. S.97('1)('c). (d) Conciliation proceedings are intended for settlement of disputes. Strikes resorted to during the COnciliation proceedings are, therefore, treated as illegal. S.97(1)('e). ('e) Arbitration proceedings initiated by the parties or the Government are intended for resolving disputes. Strikes resorted to during Such arbitration proceedings are, ;,..therefre, treated as illegal. S.97('1)(h). ('f) Agreements, settlements and awards are binding on the employees and the employees are not Supposed to make any demands inconsistent therewith. Strikes in cOntravention of the terms of agreements, settlements and awards are, therefore, treated as illegal. S.97('1)('i) (g) Disputes are SOmetimes referred to a Wage Board for its decision. Strikes resorted to during the pendency of such reference are treated as illegal. O. How to get . " S.97(1)(j). a strike declared Illegal. . A. (a) If any employer wants a declaration . COmmenced by his employees is illec h,. ,.-t-h.at a .strike application to a Labour Court. al, ,, ,,s to make an S. 79('4). ('b) The apPlication must be made within three months of the commencement of the strike. S. 79(4),. ('c) The Labour Court will decide whether the strike is illegal or not and give a declaration accordingly. ('d) "/'he decision of the Labour Court will be final. No appeal lies to the Industrial Court as to whether the strike is illegal or not. S. 84('

Lock-out

37

Offences Q. What is the punishment for going on illegal strike? A. If an employee goes on illegal strike he would be punished with fine upto Rs.10. If he continues the illegal strike the fine would be Re. 1 per day subject to a maximum of Rs.50. Q. What is the punishment for instigating an illegal strike? A. If any person instigates others to take part in an illegal strike or contributes, collects or invites funds for the purpose of an illegal strike, he would be punished with imprisonment upto three months, or with fine, or with both. S.104. Lockout Q. What is the meaning of "lockout"? A. The employer is said to have effected a lock-out when (1) he closes the place of employment or suspends work (2) to compel the employees to accept some term or condition of employment. To constitute a lock-out there must be in the co-existence of these two ingredients. S.3(24). Q. What is the difference between lock-out and closure? A:. Under the Bombay Industrial Relations Act, in the case of a lock-out the refusal to give work is in consequence of an industrial dispute; while in the case of a closure the refusal to give work may or may not be in consequence of an industrial dispute. S.3(24) & (8A) Q. If an employer.refused to give work to his employees, who were on illegal strike, on the ground that they were not prepared to sign a "good conduct bond", would such refusal amount toa lock-out? A. If the insistence on such bond was unwarranted and the form of such bond was unjustified, such refusal would amount to a lock-out. Note: Held in Vaman Maruty Gharat & Ors. v. M.S. Apte, 1988 II C.L.R.'222.

38 The Bombay Industrial Relations Act. 1946 Q. Can an employee claim "compensation for closure" even if the closure was due to circumstances beyond the control of the employer? A. An employee is entitled to claim "compensation for closure" before a Labour Court under section 42(4) read with Item 7 of schedule III of the Act whether or not the closure was due to circumstances beyond the control of the employer. Note: Held in Prakash Cotton Mills Pvt. Ltd, v, R.M.M. Sangh, 1986 II C.L.R. 146 (S.C.) Q. Does the relationship of employer and employee come to an end during the period of a lockout? A. The relationship of employer and employee does not come to an end but subsists during the period of a lockout. Q. Does a lock-out declared in connection with layoff amount to an illegal lockout? A. Lay-off results in temporary unemployment and "employment" is an industrial matter specified under item 6(ii) of Schedule III of the Act. A Lock-out which has direct connection with lay-off is clearly illegal under Section 98(1)(a) of the Act. Note: Held in Priya Laxmi Mills Ltd. v. Mazdoor Mahajan Mandal, Baroda, 1977 I LLJ 22 (S.C.) Offences Q. What is the punishment for declaring an illegal lockout? A. If any employer effects an illegal lock-out he would be punished with fine upto Rs.2,500. If he continues the illegal lock-out the fine would be Rs.5,000 per day. S.102. Q. What is the punishment for instigating an illegal lockout? A. If any person instigates others to take part in an illegal lock-out or contributes, collects or invites funds for the

Victimization purpose of an illegal lock-out, he would be punished with imprisonment upto three months or with fine or with both. S.104. " Note: The Act treats strikes and lock-outs on the same footing. The provisions of the Act relating to strikes and lock-outs are, therefore, almost the same. The same circumstances, as those which make a strike illegal, make a lock-out illegal. The procedure for getting a strile or lock-out declared illegal is the same. Victimization Q. What acts constitute the offence of victimization and what is the punishment for the offence? A. Section 101 of the Act enumerates certain acts on the part of an employer which are treated as acts of victimization. The section also makes the commission of these acts punishable with fine which may extend to Rs.5,000.S.101. Effect of agreement etc. Q. What is the binding effect of an agreement, settlement or award? A. An agreement, settlement or award is binding on: (a) all persons who are parties thereto; (b) the successors in interest, heirs or assigns of the employer, in respect of his undertaking; (c) when a registered union ts a party thereto, all employees in the industry whose representative the union is. S.114. Go For how long an agreement, settlement or award remains in force? A. (a) An agreement, settlement or award remains in force till the date specified therein. (b) If no such date is specified, then it remains in force for a period of 3 months from the date on which it comes into operation.

4O The Bombay Industrial Relations Act. 1946 (c) An agreement, settlement or award can be terminated after certain period by a party by giving notice to the other party. S. 116. Offences Q. Is it an offence not to carry out the terms of any agreement, settlement or award? A. Failure to carry out the terms of any agreement, settlement or award amounts to making an illegal change which is an offence punishable with fine which may extend to Rs.5,000. Ss.46(5) & 106. O. What acts constitute the offence of contempt of the Industrial Court? A. If any person commits any act or publishes any writing which is intended. (a) to improperly influence the Industrial Court, or (b) to bring that Court or a Judge thereof into disrepute or contempt, or (c) to interfere with the lawful process of that Court, (d) he is deemed to be guilty of contempt of that Court. S.119B. Note: The High Court is the punishing authority in respect of the offence of such contempt. Schedules O. What is the significance of the Schedules appended to the Act? A. The three schedules appended to the Act form an important part of the Act. All conceivable industrial matters have been included in these three schedules. The division of these industrial matters into three schedules is done broadly on the following basis. The first schedule contains items relating to the day-to-day discipline of the employees. The second schedule contains items which form the subject-matter of collective disputes. The third schedule contains

Schedules

41

items which form the subject-matter of individual disputes. The employer is free to change service conditions of the employees in respect of matters contained in schedule I and III without consulting the employees. This freedom of the employer to unilaterally effect any change in the service conditions of the employees in respect of matters contained in schedules I or III is, however, kept in check by enabling the employees to challenge such changes in the Labour Court. The employer cannot change the service conditions of the employees in respect of matters contained in the second schedule without consulting the employees through the representative of the employees. Strike relating to the matters mentioned in the first and third schedules are prohibited and, therefore, treated as illegal. Strikes relating to the matters mentioned in the second schedule are permitted only under certain circumstances. The Government is empowered to make any additions to or alterations in the various matters mentioned in the schedules. The Government is also empowered to delete any matter from the schedules. The Government can, by utilising this power, enlarge or restrict the employers' freedom to make and the employees' freedom to demand . changes in conditions of service. Oblig.ation Of workers

138 The Industrial Disputes Act, 1947 The Industrial Disputes Act, 1947, is a small Act of big importance. It is small in size but its scope and application are very wide. Over the past 35 years or so it has given birth to enormous case law which has increased its importance still more. The noble aim of the Act is to reduce or resolve differences between the employers and the workmen with a view to increasing the industrial production of the country. The workmen of the country could not have been able to secure better conditions of service but for the machinery available under the Act for raising and settling disputes. It is important to note that since its enactment in 1947 the Act has undergone several minor and major amendments to make it more useful and more complete The latest amendments to the Act are carried out in 1982 and 1984. .O.. What is the object of the Industrial Disputes Act, 1947? A. The object of the Act is two fold: (1) to improve the service conditions of industrial workers and (2) by means of that to bring about industrial peace which would in its turn accelerate productive activity of the country resulting in its prosperity. Note:-Observation in Hindustan Antibiotics v. Workmen, 1967 I L.L.J. 114.

Applicability of the Act

139

Applicability of the Act Q. Which establishments are covered by the Act? A. The application of the Act is so comprehensive that it covers every kind of organised activity undertaken with the co-operation of the employees for the production and/or distribution of goods and services calculated to satisfy human wants and wishes, irrespective of who undertakes it with what motive it is undertaken or what is the number of workmen with the help of whom it is undertaken. Note:-As held in Bangalore Water Supply and Sewerage Board v.A. Rajappa, 1978 II L.L.J. 73 (S.C.). Q. Is the Act applicable to a closed Industry? A. The Act is not applicable to a dispute arising after an industry has been closed-and the closure is real and bona ride. ,Note:-Held in Pipraich Sugar Mills Ltd. v. P.S.M.M. Union, 1957 I L.L.J. 235. Q. Which persons are covered by the Act? A. Every person employed in an industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work is covered by the Act. But if such a person (i) is employed mainly in a managerial or administrative . capacity, or (ii) is employed in a supervisory capacity and draws more than Rs. 1,600 per month as his wages, or (iii) exercises functions mainly of a managerial nature, he is not covered by the Act. S. 2(S). What is meant by "appropriate Government"? Section 2(a) of the Act divides disputes into two categories. The authority to deal with disputes specified in sub-clause (i) of section 2(a) is vested in the Central Government and therefore the Central Government is the appropriate or competent Government in relation to such disputes. The authority to deal with disputes specified in sub-clause (ii) of Section 2(a) is vested in the State Governments and therefore a State Government is the appropriate or com

140 The Industrial Disputes Act, 1947 petent Government in relation to such disputes. S.2(a). Q. What is meant by "industry"? The word industry has a wide import and it includes any business, trade, undertaking, manufacture or calling of employers or any calling, service, employment, handicraft, or industrial occupation or a vocation of a workman. S.2(j). Q. Is the Public Works Department (Building and Roads) of Government an industry? A. According to the "dominant nature test" for deciding whether a department is an industry or not, sovereign functions alone qualify for exemption, not the welfare activities or economic adventures undertaken by the Government. Therefore, where the functions performed by the Public Works Department (Building and Roads) of Government are not purely sovereign, the department would have to be held as an industry, Note:-Held in State of Punjab v. Hari Class & Anr., 1999 II CLR 876. Q. Is the Bombay Iron and Steel Labour Board an industry? A. The Bombay Iron and Steel Labour Board is entrusted with regal functions of the State i.e., functions of administration of law, and therefore it is not an industry. Note:-Held in Husain Mithu Mhasvadkar v. Bombay Iron . & Steel Labour Board, 1990 II CLR 860. Q. Is an educational institution an industry? A. An educational institution has to be treated as an industry but a teacher in an educational institution cannot be considered as a workman. Note:-Held in Miss A. Sundarambal v. Government of Goa, Daman & Diu, 1988 II CLR 316.

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141

Q..Is the Central Railway Library an industry? A. The object of the Central Railway Library not being the satisfaction of materialistic human needs, it is not an industry. Note:-Held in Suhas Baskar Gadre v. V.V. Savjee, 1990 II CLR 102. Q. Is the Judicial Department of Government an industry? A. Administration of justice being clearly the exercise of the inalienable sovereign function of the State, the Judicial Department of Government is not an industry. Note:-Held in Govindbhai Kanabhai Maru v. N.K. Desai, -1988 I CLR 597. Q. Is the directorate of a State Lottery an industry? A. The directorate of a State Lottery, which employs 50 to 60 persons, carries on commercial activities, and makes profit . is an industry. Note:-Held in State of Punjab v. Parvesh Kumar, 1994 II L.L.N. 668. Q. Is All India Radio an industry? A. All India Radio is an industry. The mere fact that there is a Service Code dealing with some of the aspects .of the employer employee relationship between the Government and its employees does not amount by necessary implication to the exclusion of the provisions of the Industrial Disputes Act to Government servants. Note:-Held in All India Radio v. Presiding Officer, Industrial Tribunal-cum-Labour Court, 1987 I CLR 246. Q. Is "Doordarshan" an industry? A. Doordarshan, which carries on activity for profit by getting commercial advertisements telecast through its various Kendras by charging fees, is an industry. Note:-Held in All India Radio v. Santosh Kumar, 1998 I CLR 684 (S.C.).

The Industrial Disputes Act, 1947 142 O. Is a tourism department ol a Government an Industry? A. A tourism department of a Government, whose activities have commercial and economic features quite apart from what a Government does or is expected to do in the discharge of its sovereign functions, is an industry. Note:-Held in Mohanan v. State of Kerala, 194 I GLR 419. O. Is a trade union an industry? A. A trade union which carries on systematic activities by cooperation of its employees for the distribution of services calculated to satisfy material wants of workmen is an industry. Note:-Held in Dattatraya (3opal Paranjpe v, Rashtriya Mill Mazdoor Sangh & Ors., 1995 I CLR 1024. Q. Is Tata Sports Club an industry? A. Tara Sports Club, which is engaged in systematic activity and is organised by cooperation between the Club and its employees; and provides services calculated to satisfy human wants and wishes, is an industry. Note:-Held in Ratilal B. Ravji v. Tata Sports Club & Anr., 1997 II CLR 902 (Bombay). Industrial Dispute O. What is meant by ,'industrial dispute" and how does it come into existence? A. A dispute or difference between workmen and the employer which is connected with the employment or non-employent or the terms of employment or with the conditions of labour of any person is called an industrial dispute. An industrial dispute comes into existence when a demand is made by the workmen on the employer about any matter connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person, and the employer refuses to concede the demand. The demand need not necessarily be made in writing. It

Industrial Dispute

143

need not necessarily be made directly on the employer. Q. When does an individual dispute become an industrial dispute? A. Ordinarily an individual dispute, i.e., a dispute relating to an individual workman, is not treated as an industrial dispute. Such dispute is treated as an industrial dispute only when it is supported either by the union to which the workman belongs or by a group of workmen. An exception has been, however, made in the case of an individual dispute connected with or arising out of the dismissal, discharge, retrenchment or termination of service of any workman. Such dispute is treated as an industrial dispute by reason of the deeming provision of Section 2-A of the Act notthstanding that no other workman nor any union of . workman is supporting the dispute. Q.. Is a dismissed workman covered by the Act? A. A workman who has been dismissed, discharged or retrenched or whose services have been otherwise terminatedis not only covered by the Act but any dispute Connected with or arising out of such dismissal, discharge, retrenchment or termination is also deemed to be an industrial dispute irrespective of the fact that no other workman nor any union of workmen is not a party to the dispute. Ss. 2(s) and 2(A). Q Can a dismissed workman challenge his dismissal by making an application direct to a Labour Court? A. The States of Andhra Pradesh, Karnataka and Tamil Nadu, by amending the Industrial Disputes Act in its application to the said States, have enabled a dismissed workman to challenge his dismissal by making an application direct to a Labour Court. Q. Is a workman barred from raising an industrial dispute on account of his failure to pursue the remedy of an appeal to the management?

144 The Industrial Disputes Act, 1947 A. A workman is not barred from raising an industrial dispute about the termination of his services on account of his failure to pursue the remedy of an appeal to the management. To raise an =ndustrial dispute is a legitimate mode of redress recognised under the Industrial Disputes Act, 1947, and it should not be denied to him because another remedy of an appeal to the management is available to him. Note:-Held in Jai Bhagwan v. Ambala Central Coop. Bank Ltd. & Anr. 1984 I L L.J. 52. Q. Does the designation of a person decide his status as a "workman"? A. It is the nature of work performed by a person and not his designation that decides whether he is a "workman" or not. Note: Held in Engineering Construction Corporation Ltd. Madras v. Additional Labour Court, Madras, 1980 II L.L.J. 16. Q. Is an apprentice a "workman"? A. The Industrial Disputes Act, 1947, has specifically included an apprentice in tre definition of "workman" although some other labour laws have omitted to include an apprentice in the definition of "employee". S.2(s). Q. Is a part-time employee a workman? A. The definition of 'workman' as given in section 2(s) of the Act is comprehensive and wide enough to include even a part-time employee. Note:-Held in Yashwant Singh Yadav v. State of Rajas-than, 1989 (59) F.L.R. 607. Q. Is a casual labour a workman? A. A casual Iobourer also c(mes within the definition of workman in Section 2(s) of the Act. Note: Held in Management of TCPB vo Presiding Officer, Lobour Court, 2003 II C.L.R. 205 (Ori.H.C.)

145 Authorities under the Act O. Is a poojari or a priest a workman? A. The services of a poojari or a priest in a temple cannot be treated as manual or clerical. He cannot be treated as a workman. Note:-Held in Keshav Bhat v. Ram Ambalam Trust, 1989 II CLR 286. Q. Is a teacher a workman? A. Imparting of education whichis the main function of a teacher cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. A teacher is not a workman. Note:-Held in Miss A. Sundarambal v. Government of Goa, Daman & Diu, 1988 II CLR 316. Q. Is a labour law adviser a workman? A. A practising advocate, who is engaged by a Company as a labour law adviser on a retainer basis to look after its interests before the Labour Court, is not a workman. Note:-Held in Indian Sulphacid Industries v. Labour Court, Rohtak, 1992 II CLR 1039. Q. Is a lady social worker a workman? A. A lady social worker whose duty is to do canvassing and promoting the prospects of the family planning schemes is not a workman. Note:-Held in Family Planning Association of India v. Presiding Officer, Labour Court, (3) U.P., 1994 I CLR 465. Authorities under the Act O. What are the authorities under the Act and the duties entrusted to them? A. The following are the principal authorities under the Act and their duties in brief:) Conciliation Officers -for holding conciliation proceedings and promoting the settlement of disputes;

146 The Industrial Disputes Act, 1947 (2) Labour Courts -for deciding individual disputes relating to matters specified in Schedule II to the Act; (3) Industrial Tribunals -for deciding mainly the collective disputes relating to matters specified in Schedule III to tlae Act; (4) National Industrial Tribunals -for deciding disputes involving questions of national importance or affecting establishments situated in more than one state. Ss.4, 7, 7(A) & 7(B). Q. In what way the Industrial Tribunals are different from the Civil Courts? A. The Civil Courts have power to enforce existing contracts. The Industrial Tribunals have power to modify existing contracts or to impose new contracts. O. Are Labour Courts, Industrial Tribunals and National Industrial Tribunals required to follow any strict procedure in the proceedings before them? A. Labour Courts, Industrial Tribunals and National Industrial Tribunals have discretion to follow any procedure they may think fit, of course subject to the rules made under the Act. The provisions of the Evidence Act, in their strict sense, are also not applicable to the proceedings before them. S.11(1). Q. Can a dispute falling under Schedule III be referred to a Labour Court? A. Normally a dispute relating to a matter specified in Schedule Ill is required to be referred to an Industrial Tribunal but such dispute can be referred to a Labour Court if the workmen concerned who are likely to be affected are not more than 100/-. Provision to S.10(1). Note:-Also see Concerned Workmen of Sahai Industries v. B.D. Gupta & Anr. 1984 I LLJ 165.

Notice of Change

147

Notice of Change O. Are there any restrictions on the employer in the matter of changing the service conditions of his workmen? A. If the employer proposes to effect any change in the conditions of service applicable to the workmen employed by him in respect of any matter specified in Schedule IV which contains important service matters like wages, hours of work, etc.-(a) he must give to the workmen a notice of the proposed change; (b) after giving such notice he must wait for 21 days for effecting the proposed change. The object of the notice is to afford to the workmen an opportunity to consider the effect of the proposed change and to represent their po!nt of view on the proposal. S .9(A). Q, Can the employer effect retrenchment without giving a notice under section 9-A of the Act? A., By itself "retrenchment" does not involve rationalisation or reduction in the "number" of persons employed in any occupation or process or department as contemplated by Item 10 or Item 11 of the Fourth Schedule of the Act. As such retrenchment of workmen by itself does not attract section 9-A of the Act. Note:-See Dinkar Ramchandra Ambonkar v. Photophone Ltd., 1992 II CLR 529. Q. Can the employer effect a change in the wages and allowances of his workmen without giving a notice .under Section 9-A of the Act? A. "Wages" is a matter specified in the Fourth Schedule of the Act. As such no change can be effected in respect of wages and allowances without giving a notice under section 9-A of the Act.

148 The Industrial Disputes Act, 1947 Note:-Held in Bombay Mothers' and Childrens' Society v. General Labour Union (Red Flag), 1992 I CLR 656. Q. Is it necessary to give any notice of change under section 9-A for altering a weekly off day owing to a Bandh? A. if such change is meant for only one occasion and not meant as permanent one, it is not necessary to give any notice of change under section 9A. Note:-Held in Mistry Lallubhoy and Co. v. Engineering and Metal Workers Union, 1979 L.I.C. 196 (Born.). Q. If an employer insists upon a workman to execute an undertaking that "I undertake that during my shift I will not go on strike, I will ensure normal output by performing my assigned duties and I will maintain discipline", does this amount to any change in conditions of service under Section 9-A of the Act? A. Requiring a workman to execute such undertaking cannot be described as change in conditions of service within the meaning of Section 9-A of the Act. Note:-Held in Glaxo Laboratories Employees Union v. Glaxo India Ltd. 1996 II CLR 270 (Gujarat). Q. Is it necessary for an employer to give a notice under Section 9-A of the Act for changing period of work of a workman? A. If any change is proposed to be made in "Hours of work" or "rest intervals", such a change would fall under Item 4 of Schedule IV and Section 9-A would be attracted. But a distinction is to be drawn between "Hours of work" and "Period of work". "Hours of work" means the period for which the workman is required to work. "Period of work" means the period during which the workman is required tO remain present on the premises. Any change in period of work would not fall under Item 4 of Schedule IV and Section 9-A would not be attracted for that purpose.

Notice of change

149

Note: Held in Transport & Dock Workers Union v. Chougule Steamships Ltd., 1997 L.I.C. 928 (Bombay). Q. Is it necessary for an employer to give a notice under Section 9-A of the Act for changing rules regarding employees' participation in municipal elections? A..No notice under Section 9-A of the Act is required to be given for changing such rules because taking part in municipal election is not a customary privilege connected .with conditions of service.. Note:-Held in General Manager (Operations), State Bank of India & Ors. v, State Bank of India & Ant. 1998 I CLR 897 (S.C.), Q. Where a change is introduced first and a notice of the change is issued afterwards, is the notice valid? A. The very wording of Section 9oA shows that the notice under the said section must precede the introduction of the change. The notice issued after the introduction of the change is violative of the provisions of Section Note:-Held in Lokmat Newspapers Pvt. Ltd. v. Shenkarprasad, 1999 II CLR 433 (S.C.) Can a notice put up on the Notice Board be treated as notice of change under section 9-A of the Act? If law requires that a thing shall be done in a particular manner, it has got to be done in that particular manner and inno other manner. Notice of change under section 9-Ais required to be given in "the prescribed manner". A notice put up on the notice board cannot be treated as notice of change under section 9-A of the Act. Note:-Held in Canara Bank v. G.M.V. Nayak & Ors. 1990 II CLR 376. Q. Can a notice given to the union be treated as sufficient compliance with Section 9A?

150 The Industrial Disputes Act. 1947 A. The notice of the proposed change in the conditions of service must be given to the individual workman who is likely to be affected by such change. Therefore, sending of notice to the union cannot be treated as sufficient compliance with the mandatory requirement of Section 9A. Note: Held in Punjab State Co-op. Supply and Marketing Federation Ltd. v. P.O. Industrial Tribunal, Punjab, 20031 C.L.R. 925 (P.&H. H.C.) Reference of disputes O. Is it incumbent on the Government to refer every dispute to a Labour Court, Tribunal or National Tribunal for adjudication? A. The Government has a discretion to refer or not to refer a dispute to a Labour Court, Tribunal or National Tribunal for adjudication. The Government can use the power of making a reference on consideration of the failure report received from the Conciliation Officer or on its own motion. If the Government decides not to make a reference, then it is bound to record reasons for doing so and communicate them to the parties. S.10. Q. In wha circumstances the Government may refuse to make a reference? A. The Courts have observed that the Government may refuse to make a reference where the claim is: (a) perverse or frivolous; (b) put forth for extraneous and irrelevant reasons; (c) such that its impact on the general relations between the employer and the employees in the region is likely to be adverse; (d) belated; (e) trivial. 151 Reference of disputes Q. Can the Government in exercise of its power under sections 10(1) and 12(5) of the Act, refuse to make reference on the ground that the person raising the -dispute is not a "workman"? A. If it is apparent from the record without any detailed investigation that the person raising the dispute is not a "workman" as defined under section 2(s) of the Act, then the Government is entitled not to make reference by assigning reasons for doing so as required by section 12(5) of the Act. Note:-See N.D.D.B. Employees' Union v. State of Gujarat, 1991 (1) CLR 410. Q. Can the Government refuse to refer a dispute relating to transfer on the ground that transfer is a managerial prerogative? A. Inthis case, the Government had refused to make reference on the ground that the transfer is managerial prerogative and there was no allegation of victimisation or discrimination. The aforesaid reasons cannot be said to be in any way irrelevant or extraneous. Note: Held in Sekhar Rudra v. Oil India Ltd., 2003 (4) L.L.N. 689 (Gau.H.C.) Q Can the Government decline reference for the reason that the differences between the employer and the

employee can be sorted out under the Model Standing Orders? A. The said reason cannot form a ground for declining reference and the declining to refer is refusal to exercise jurisdiction. Note:-Held in Pradip Dey v. State of W.B. & Ors. 2002 II CLR 17. Q. Can the Government refuse to make reference merely taking note of the designation of the post held by a person? 152 The Industrial Disputes Act. 1947 A. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Note:-Held in Sharad Kumar v. Govt. of NCT of Delhi & Ors. 2002 II CLR 235 (S.C.) Q Can the Government cancel an order of reference made by it earlier? A. There is no express provision made in the Act which gives authority or power to the Government to cancel its earlier order of reference. Note: Held in Indian Rayon and Industries Ltd. v. State of Gujarat & Ors., 2003 III C.L.R. 217 (Guj.H.C.) Q. Can a workman raise a demand through another person? A. A workman can request any other individual to make a demand on his behalf. A letter of demand written by a person authorised to do so has to be regarded as a aemand raised by the workman himself. Note:-Held in Ariana Afghan Airlines Ltd. v. K.S. Sidhu & Ors. 19881 L.L.N. 202. Q. Is there any time limit for referring a dispute for adjudication? A. There is no time-limit prescribed in the Act for referring a dispute for adjudication and it is competent for the Govern ment to refer a dispute for adjudication at any time. The words "at any time" should be, however, interpreted to mean with a reasonable time. S.10. Q. Can a reference of a dispute regarding illegal dismissal of a workman be questioned on the ground of delay alone? A. Looking to the purpose, aim and object of the Act, no reference can be generally questioned on the ground of delay alone. Even in a case the delay is shown to be existing, the Labour Court dealing with the case can ap-

Reference of disputes

151

propriately mould the relief by declining to grant back wages to the workman till date he raised the demand regarding his illegal dismissal. The Labour Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. " Note;-Held in Ajaib Singh v. Sirhind Co-op. Marketing-cum-Processing Service Society Ltd. & Anr., 1999 I CLR 1068 (S.C.) Q. Does a reference of an industrial dispute under section 2-A abate in the event of death of the workman during the pendency of the proceedings? A. The death of the workman during the pendency of the proceedings cannot deprive the heirs or the legal representatives of their right to continue the proceedings and claim the benefits as successors to the deceased workman. Note:-Held in Rameshwar Manjhi (Deceased) through his son Lakhiram Manjhi v. Management of Sangramgarh Colliery & Ors. 1994 I CLR 9. Q. Can a decision of the Government to refer or to refuse to refer a dispute be challenged? A. A decision of the Government to refer or to refuse to refer a dispute to any authority is an administrative act and ordinarily it cannot be challenged in a Court of law. Q. Ar.e there any contingencies in which the Government must refer a dispute for adjudication? A. There are two contingencies in which the Government must refer a dispute for adjudication: (1) If a dispute relates to a public utility service and a notice of strike under section 22 has been given in respect thereof, the Government must refer the dispute for adjudication. (2) If the parties to a dispute jointly or separately apply to the Government for making a reference the Government must refer the dispute for adjudication. So10(1)

154 The Industrial Disputes Act. 1947 Q. Can a Tribunal decide any matter which is not referred to it? A. A Tribunal has to confine its adjudication only to the points which are specified in the order of reference and it has no jurisdiction to decide any matter which is not referred to it. S.10(4). Q. What is meant by "voluntary arbitration"? A. When any employer and his workmen voluntarily refer any existing or apprehended industrial dispute between them to arbitration of any person of their choice, it is called a voluntary reference, to arbitration. Like a Labour Court or Tribunal the Arbitrator has to investigate the dispute and submit his award to the Government. S.10(A). Q. Is it competent for the Government to make a reference of a dispute when the Government had earlier refused to refer it for adjudication? A. A refusal of the Government to make a reference of a dispute does not amount to an exercise of power under section 10(1) of the Act. The Government is, therefore, competent to make a reference of a dispute even if it had on an earlier occasion refused to refer it for adjudication. Note:-Held in Avon Services (Production Agencies) Pvt. Ltd. v. Industrial Tribunal, Haryana 1979 I L.L.J. 1. Q. Is it necessary for the Government to,give notice to the affected party before making a reference of a dispute, which the Government had earlier declined to refer? A. It is a settled law that if a reference is rejected and thereafter at the behest of one of the parties a fresh reference is made, the party which is affected ought to be given notice of the fresh reference being made. Note: Held in Central Bank of India v. O. P. Singla & Ors., 2003 III C.L.R. 686 (DeI.H.C.)

Power Of Courts

155

Power of Courts Q. Does a Labour Court or Tribunal have power to reinstate discharged or dismissed workman? A. Labour Courts and Tribunals are now expressly empowered to set aside any order of discharge or. dismissal and direct reinstatement of the discharged or dismissed workman if they are satisfied that the order of discharge or dismissal was not justified. S.11 (A). Q. Does a Labour Court or Tribunal have power to reduce the punishment of discharge or dismissal? A. If a Labour Court or Tribunal, while deciding a dispute about discharge or dismissal, finds, either because the misconduct was not proved or because the misconduct did not warrant punishment by way of discharge or dismissal, that the discharge or dismissal was not justified, it can substitute any lesser punishment for the discharge or dismissal. In such cases the jurisdiction of Labour Courts and Tribunals is thus no more of a supervisory nature and these authorities are now exercising jurisdiction which has characteristics of appellate power. S.I.I(A). Note:-See also District Magistrate, A.P.S.R.T.C.v. Labour Court, 1978 L.I.C. 359. Q. Does a Labour Court or Tribunal have power to reduce ,the punishment in cases in which there is neither discharge nor dismissal? A. In cases in which a punishment other than discharge or dismissal is imposed, the law as it existed prior to the insertion, of section 11'A is applicable. In such cases the labour Court or Tribunal can reduce the punishment on one or more of the following grounds:-(i) want of good faith, (ii) victimisation, Off) unfair labour practice, (iv) violation of principles of natural justice, and (v) perverse finding. Note:, Heldin Rajasthan State Road Transport Corporation & Ant. v. Judge, Industrial Tribunal, Bikaner & Ors. 1995 I L.L.J. 357.

156 The Industrial Disputes Act, 1947 Q. Can a dismissed workman, having failed to obtain relief under the Industrial Disputes Act, seek relief again under the common law? A. Once a dismissed workman elects to proceed and does proceed under the Industrial Disputes Act, he cannot again approach a Civil Court for relief. Note:-Held in Biswanath Das v. Ramesh Chandra Pat-naik, 1979 I L.L.J. 129. Q. Does a proceeding pending before a Labour Court or Tribunal in relation to an industrial dispute lapse on the death of the workman? A. The Courts had held that when a workman dies his claim for reinstatement dies with him and the reference proceeding becomes incompetent. By amending section 10 in 1982 it is now provided that no proceeding pending before a Labour Court or Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman and such Labour Court or Tribunal shall complete such proceeding and submit its award to the Government. S.10(8). O. Can an Industrial Tribunal adjudicate upon a demand for gratuity in cases where the Payment of Gratuity Act is not applicable to an establishment by reason of the establishment employing less than ten employees? A. An Industrial Tribunal has no jurisdiction to entertain a demand for gratuity and award the same in a reference made in respect of an establishment which employs less than ten persons and therefore is excluded from the applicability of the Payment of Gratuity Act. Note:-Held in Rashtriya Hair Cutting Saloon v. Maharashtra Kamgar Sabha 1991 I CLR 408.

Go Conciliation proceedings 157'

Conciliation proceedings .Q. Is it incumbent on a Conciliation Officer to initiate conciliation proceedings when a dispute arises or is apprehended? A. When an industrial dispute arises or is apprehended in a public utility service and a notice of strike has been given under section 22 in respect thereof, it is incumbent on a Conciliation Officer to hold conciliations proceedings in respect of that dispute. In other cases it is not incumbent on him to do so and he may not at his discretion hold conciliations proceedings. S.12. Q. Does a Conciliation Officer possess power to decide a dispute? A. A Conciliation Officer has no power to decide a dispute. He is. entrusted with the duty of inducing the parties to come to a fair and amicable settlement of the dispute. If he succeeds in his efforts and brings about a settlement, he has to make a report of the settlement to the Government. S.12. Does a Conciliation Officer possess the power to verify the membership of a union to find out whether the , union is a majority union? A. The power under section 12(2) of the Act to do "all such things as he thinks fit" can be used only for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute and not for verifying the membership of a union to find out whether the union is a majority union. Note:-Held in Tamil Nadu National Engineering Employees Union v. Management of T.I. Cycles of India Ltd., 1992 I CLR 732. Q. On receipt of a demand from workmen is it permissible for a Conciliation Officer to postpone holding of conciliation proceedings and refer the demand to the management?

158 e Industrial Disputes Act, 1947 A. On receipt of a demand from workmen a Conciliation Officer may first forward it to the management to obtain its reaction and afterwards hold conciliation proceedings if the reaction is negative. Note:-Held in C. Manuel v. Management of Needle Industries (India) Ltd. Keeti, Nilgiris, 1981 II LLJ 102. Enforceability of awards Q. What is the requirement of the law about the publication of awards passed under the provisions of the Act? A. Every award passed under the previsions of the Act must be published by the Government but it may not be published within a period of 30 days from the date of its receipt by the Government It may be published even beyond the said period and it will not be invalid on that ground. S.17(1). Note:-Also see Remington Rand of India v. Workmen, 1967 II LLJ 866. Q. Are awards passed under the provisions of the Act appealable? A. An award passed under the provisions of the Act, on its publication by the Government, becomes final and cannot be called in question by any Court in any manner whatsoever. No suit can be filed for declaring any award as void. S. 17(2). Note 1: There can be a writ petition to a High Court or an appeal by special leave to the Supreme Court against the award. Note 2: See A.K. Loganathan v. Fq. Beema Rao, 1980 L.I.C. 481. Q. What is the provision of the Act about the enforceability of awards passed under its provisions and their coming into operation?

Binding effect of awards

159

A. (1) An award passed under the provisions of the Act will become enforceable on the expiry of 30 days from the date of its publication by the Government. (2) It will come into operation with effect from the date fixed therein for that purpose and if no date is so fixed, it will come into operation on the expiry of 30 days from the date of its publication by the Government. S.17(A)(4). . Note:-In certain circumstances the Central Government or a State Government has power to declare that an award shall not become enforceable. Binding effect of awards Q. What is the binding effect of an award or a settlement? A. An award or a settlement, arrived at in the course of .conciliation proceeding is binding on: (a) all parties to the dispute; (b) the heirs, successors or assigns of the employer in respect of his establishment; (c) all persons in the establishment whether employed on the. date on which the dispute arose or subsequent to that. S.18(3). Q. What is the binding effect of a settlement arrived at otherwise than in the course of conciliation proceeding? A, Unlike,an award or a settlement arrived at through conciliation, a settlement arrived at otherwise than in the course of conciliation proceeding has restricted application and it is .binding only on the parties to it and none other. S.19(1) Q. What is .the period of operation of a settlement or an award? A. (1) A settlement remains in operation for such a period as is agreed upon by the parties and if no such period is agreed upon, for a period of six months from the date on which it is signed by the parties.

160 The Industrial Disputes Act, 1947 (2) An award remains in operation for a period of one year from the date it becomes enforceable. (3) A settlement or an award continues to be binding on the parties even beyond the said periods until it is terminated by a party by giving notice to the other party. S.19. Termination of awards Q. What is .the effect of the termination of a settlement or an award? A. The effect of the termination of a settlement or an award is that, thereafter, the parties will be at liberty to raise a fresh dispute. But the settlement or the award would continue to govern the terms and conditions of employment of the concerned workmen so long as it is not substituted by another award or settlement. Note:-Held in Sathys Studios v. Labour Court, Madras 1978 I LLJ 227 and Life Insurance Corporation of India v. D.J. Bahadur, 1981 I LLJ 1. Q. Does the authority or appointment of a Tribunal come to an end as soon as it passes an award in a reference? A. The authority or appointment of a Tribunal does not come to an end as soon as it passes an award in a reference because according to section 20 the proceedings with regard to the reference before the Tribunal are deemed to be concluded on the expiry of 30 days from the date of the publication .of the award by the Government and not on passing of the award by the Tribunal. Ss.20 & 17(A). O If any employer, ordered by a Labour Court or Tribunal to reinstate a workman, prefers any proceedings against the order in a Higher Court, is he required to pay any wages to that workman during the pendency of such proceedings? A. Where in any case, a Labour Court Or Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or Supreme Court, the employer is liable to pay such161 Termination of awards " workman, during the period of pendency of such proceedings, full wages last drawn by him, inclusive of any'nainenance allowance admissible to him under any rule. S.17(B). O. If an employer, ordered by a Labour Court or Tribunal to reinstate a workman, prefers any proceedings agaipst the order in a Higher Court, and the workman 'dies'during the pendency of such proceedings, are the legal heirs of the workman entitled to get the benefit of Section 17-B of the Act? A. The legal heirs of the workman are entitled to get the payment which was due to the workman in terms of Section i7-B of the Act from the date of initiation of the proceedings till the date of death of the workman. Note:-Held in Nandita Dutta v. Third Industrial Tribunal & Ors., 1998 (2) CaI.L.T. 157 (Calcutta).

Q. Is the amount to be paid by the employer to the workman during the period of pendency of the proceedIngs in the High Court or the Supreme Court refundable or recoverable in the event of the award of the Labour Court or Tribunal being set aside? A. The payment which is required to be made by the emplo.yer to the workman during the pendency of the proceedingin the .High Court or the Supreme Court is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award of the Labour Court or Tribunal is set aside by the High Court or the Supreme Court. Note:-See Dena Bank v, Kiritikumar TI Patel, 1998 I CLR 191 (S.C.). Q. What is the meaning of the word "full wages last drawn" used in Section 17-B of the Act? A. The words "full wages last drawn" must be given their plain and material meaing. When so construed they mean the wages which were drawn by the workman when he was in

162 The Industrial Disputes Act, 1947 service and when his services were terminated. Note 1:-Held in Dena Bank v. Kiritikumar T. Patel, 1998 I CLR 191 (S.C.). Note 2:-The Bombay High Court and some other High Courts have taken the view that an order rejecting an application under Section 33(2)(b) of the Act is not an award for the purpose of Section 17-B of the Act. Q. If any employer files a writ petition in a High Court against an order of an Industrial Tribunal refusing approval to an order of dismissal of a workman, is he required to pay any wages to the workman during the pendency of the writ petition? A. When the Industrial Tribunal disapproves the order of dismissal under section33(2)(b) of the Act, the real effect of such order amounts to reinstatement in service although the Tribunal does not actually direct reinstatement in service. If the employer challenges such order of disapproval by filing a writ petition in the High Court, he is liable to pay . wages of the workman concerned during the pendency of the. writ petition. Note:-Held in Bata India Ltd. v. Seventh Industrial Tribunal, W.B. & Ors., 1994 II C.L.R. 326. Breach of Awards Q. Is it an offence under the Act to commit a breach of settlement or award? A. To commit a breach of any term of any settlement or award is an offence under the Act and it is punishable with .imprisonment upto 6 months, or with fine, or with both. Of course the obligation to implement any award arises when the award becomes enforceable on the expiry of 30 days from the date of its publication. Ss.17(A) & 29.

Strikes

163

Strikes Q. When does a stoppage of work amount to a strike? A. When a body of persons employed in any industry stop their work acting in combination (to coerce the employer to accede to some demand) they are said to be on a strike. S.2(q). Illegal strike Q. When does a strike become illegal? A. The Industrial Disputes Act, 1947, puts certain general restrictions on the freedom of the workmen employed in any establishment to go on strike. In addition to these general restrictions the Act also puts certain special restrictions on the freedom of the workmen employed in any public utility establishment to go on strike. Strikes in public utility establishments are considered to be more serious than those in other establishments and they are, therefore, subjected to additional restrictions. The following are the instances of an illegal strike on the part of workmen employed in any establishment:) A dispute might have been referred to a Board of Conciliation in order that it is amicably settled between the parties. A strike resorted to during the pendency of proceedings before a Board of Conciliation is, therefore, treated as an illegal strike. (2) A dispute might have been referred to a Labour Court, Industrial Tribunal or National Industrial Tribunal for adjudication. In such circumstances the parties are expected to await an award. A strike resorted to during the pendency of proceedings before any of these authorities is, therefore, treated as an illegal strike. (3) A dispute might have been referred to the arbitration of a person. In such circumstance the parties are expected to await an award. A strike resorted to during the pendency of proceedings before an arbitrator, is therefore, treated as an illegal strike.

The Industrial Disputes Act, 1947 (4) Settlements and awards are binding on the workmen and the workmen are not supposed to make any demand inconsistent with a settlement or award while it is in operation. strike resorted to during am/period in which a settlement or award is in operation, if it is in respect of any matter covered by the settlement or award, is therefore, treated .as an illegal strike. S.23. Note: /k strike resorted to during 7 days after the conclusion of proceedings before a Board of Conciliation; or during 2 months after the conclusion of proceedings before a Labour Court, industrial Tribunal or National industrial -l'ribunal; or during 2 months after the conclusion of proceedings before an arbitrator; is also treated as an illegal strike. strike resorted to by workmen employed in a public utility establishment is illegah-(1) if they do not give to the employer notice of the strike within 6 weeks before commencing the strike; or (2) if they go on strike within 14 days of giving such notice; or (3) if they go on strike before the expiry of the date specified in sucla notice for commencing the strike; or (4) If they go on strike during the pendency of any conciliaion proceedings before a conciliator and during 7 days after the conclusion of such proceedings. S.22. Note:-A strike resorted to by workmen employed in a publiC utility establishment during the pendency of any conciliation proceedings before a conciliator is illegal while such strike on the part of workmen employed in other establishments is not illegal. Q. Is it necessary to give any notice for commencing a strike in an establishment other than a public utility establishment? Illegal Strike No notice is required to be given for commencing a strike in an establishment other than a public utility establishment. Notice of strike is compulsory for commencing a strike only in a public utility establishment. Ss.22 & 23. Doesa strike break the continuity of service? A strike does not break the continuity of service, It does not bring about termination of the relation between the empl0yer and his workmen. Can an employer declare a lock-out on the ground that his workmen have gone on illegal strike? If an employer declares a lock-out in consequence of an illegal strike resorted to by his workmen, such lock-out is not deemed to be illegal. S.24(3). Are workmen entitled to the payment of wages for the period of a lock-out which is declared in consequence of an illegal strike of the workmen? The workmen are not entitled to the payment of wages for the period during which such lock-out continued. Note:-Held in HAL Employees Union v. The Presiding ,. Officer & Anr. 1996 II CLR 11 (S.C.). Does the Government possess power to prohibit the continuance of a strike or lockout?

Where an industrial dispute has been referred for adjudication under section 10 or to arbitration under section 10A, the Government can prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference. Ss.10(3) & 10(A), (4A)

166 The Industrial Disputes Act, 1947 Wages for strike period O. In what circumstances can workmen who had gone on strike claim wages for the period of the strike? A. Workmen who had gone on strike can claim wages for the period of their strike if the strike was legal, justified and peaceful. A strike is legal if it is not in breach of any law. It is justified if the reasons for it are not perverse. It is peaceful if not force or violence or sabotage is resorted to. Note:-Held in Crompton Greaves Ltd. v. Workmen, 1978 II LLJ 8O S.C. Q. What is the meaning of the dictum 'no work no pay'? A. The dictum 'no work no pay', in the context of wages for the period of strike, means that whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike on the principle that whoever voluntarily refrains from doing work when it is offered to him, is not entitled for payment for work he has not done. Even if the strike is legal, it does not save the workers from losing the wages for the period of strike. It only saves them from disciplinary action, since the right to strike is recognised as a legitimate weapon in the hands of the workers. Note:-See Syndicate Bank & Anr. v. K. Umesh Nayak & Ors., 1994 II CLR 753 (S.C.) Q, What factors are to be taken into consideration while deciding the justifiability of a strike? A. Whether a strike is justified or unjustified has to be examined by taking into consideration various factors such as the service conditions of the workmen, the nature of demands of the workmen, the cause which led to the strike, the urgency of the cause or the demands of the workmen, the reason for not resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules and regulations etc. It has to be examined also on the anvil of the interests of the society which the strike tends to affect.

Wages for strike period

"167'

Note:-Held in Syndicate Bank & Anr. v. K. Umesh Nayak & Ors. 1994 II CLR 753. Q. Who has the primary jurisdiction to decide the legality and justifiability of a strike? A. Whether a strike is legal and justified is a question to be decided by taking the necessary evidence on the subject. It is the industrial adjudicator who has the primary jurisdiction to give its findings on the said question. It is not primarily for the High Court to give its findings on the said issues. Note:-Held in Syndicate Bank & Anr. v. K. Umesh Nayak & Ors. 1994 II CLR 753. Q. Can workers going on illegal strike be required to compensate the losses inflicted on the employer? A. The only remedy for an illegal strike is the prosecution of the workmen under section 26 of the Act. No other relief outside the Act can be claimed by the employer. Note:-Held in Rohtas Industries Ltd. v. Rohtas Industries Staff Union 1976 I LLJ 274 S.C. Q. Can any strike be described as illegal but justified? A. A strike is either legal or illegal and no strike can be described as illegal but justified. Note:-Held in India General Navigation and Railway Co. Ltd; v. Their Workmen 1960 I LLJ 13. Q. Have the Government employees a statutory right to strike? A. No statutory, fundamental, equitable or moral right exists with the Government employees. Note: Held in T. K. Rangarajan v. Government of Tamil Nadu & Ors., 2003 III C.L.R. 505 (S.C.)

168 The Industrial Disputes Act, 1947 Punishment for illegal strike Q. I.s it proper to give a uniform punishment to all the workmen who had gone on illegal strike? A. While giving punishment for going on illegal strike distinction has to be made between those who had merely participated in it and those who had fomented it. Note:-Held in the same case as noted above. Q. What is the punishment for the offence of going on an illegal strike? A. If a workman goes on illegal strike he would be punished with imprisonment upto 1 month, or with a fine upto Rs. 50, or with both. S.26. Q. What is the punishment for the offence of instigating an illegal strike or giving financial aid to an illegal strike? A. If a person instigates or incites others to take part in an illegal strike or gives financial aid to an illegal strike he would .be punished with imprisonment upto six months, or with fine upto Rs. 1,000, or with both. Ss. 27 & 28. Lockouts Q. What is the meaning of "lockout"? A. When an employer temporarily refuses to continue to employ a body of persons (i.e., without effecting a termination of their service) (to coerce them to his point of view and to accept some demand) he is said to have effected a lock-out. S. 2(1). Note:-The Act treates strike and lock-outs on the same footing.i The provisions of the Act relating to strikes and lock-outs are, therefore, almost the same. The same circumstances, as those which make a strike illegal; make a lock-out illegal. Q. Does the relationship of employer and employee come to an end during the period of a lockout?

Punishment for illegal lockout A. The relationship of the employer and the employee continues to exist during the period of a lockout. Q. Can workmen go on strike on the ground that their employer has effected an illegal lockout? A. If workmen go on strike in consequence of an illegal lock-out effected by their employer, such strike is not deemed to be illegal. S.24(23), Q. If an employer refused to give work to his employees, who were on illegal strike, on the ground that they were not prepared to siglll a "good conduct bond", would such refusal amount to a lock-out? A. If the bond was insisted in a situation de hors of and unconnected with the strike and therefore justified, such refusal would not amount to a lockout. Note:-Held in Industrial Tubes Manufacturing Co. Ltd. v. S.R. Samant, 1980 II LLJ 444. Q. Can workmen who had been locked-out claim wages for the period of the lockout? A. Workmen who had been locked-out can claim wages for the period of the lockout if the lock-out was illegal. Punishment for illegal lockout .O. What is the punishment for the offence of effecting an illegal lockout? A. If an employer effects an illegal lock-out he would be punished with imprisonment upto 1 month, or with a fine upto Rs. 1,000, or with both. S.26(2). What is the punishment for the offence of instigating an illegal lock-out or giving financial aid to an illegal lock, out? A. If a person instigates or incites others to take part in an illegal lock-out or gives financial aid to an illegal lockout he would be punished with imprisonment upto 6 months, or with fine upto Rs. 1,000, or with both.

170 I I1| The Industrial Disputes Act, 1947 Lay-off compensation Q. What is "lay-off" and what is "lay-off compensation"? A. When a workman is not given work on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity, he is said to be laid-off, When a workman who is in service for one year or more, is laid-off he is entitled to be paid for . the days on which he is laid-off, lay-off compensation at the rate of 50% of his basic wages and dearness allowance. Ss. 2(kkk) and 25(C). Note 1: The provision is not applicable to establishments employing less than 50 workmen. Note 2: A laid-off workman is not entitled to compensation in certain cases mentioned in sections 25-C and 25-E. Q. Does section 25-C give the employer any right to layoff a workman? A. The employer gets the power to lay-off a workman either from the contract of service or the Standing Orders and not from the,provisions of section 25-C. Section 25-C however, does give to a laid-off workman a right to claim layoff compensation. Note:-Held in, workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. F.T.R, Co., 1976 I LLJ 493. Q. What is the liability of the employer who is employing less, than 50 workmen and possesses no power to layoff? A. Where the employer is employing less than 50 workmen and possesses no power to lay-off, a workman laid-off by him would be entitled to full wages i.e., 100% ofhis basic wages an dearness allowance. Note:-Held in workmen of Firestone Tyre & Rubber Co. v. F.T.R. Co., 1976 I LLJ 493.

171 Retrenchment Compensation Q. Does the compensation for lay-off amount to "wages"? A: During the period of lay-off the contract of service is suspended and therefore lay-off compensation is held to be not "wages". Note:-Held in Anusuyabai Vithal v. Mehta (J.H.), 1959 II LLJ 742. Q. In what circumstances a workman who has been laid-off is not entitled to any compensation? A. A workman who has been laid-off is not entitled to any compensation(i) if he refuses to accept any alternative employment in the same establishment or in any other neighbouring establishment belonging to the same employer; (ii) If he does not present himself for work at the appointed time at least once a day; (iii) if he is laid-off due to a strike or slowing down of production resorted to by any workmen in another part of the establishment. S.25(E). Q. What is the meaning of the words "alternative employment" as used in section 25E and section 25-M of the Act? A. "Alternative employment" cannot mean any employment which the employer offers. The employment offered to the employee concerned must be a suitable employment which in other words would mean the employment which is commensurate with his status and the nature of duties performed by him.' Note:-Held in Firth (I) Steel Co. Ltd. v. Industrial Court, 1990 I C.L.R. 97. Retrenchment Compensation O. What is the meaning of "retrenchment"? A. The termination of the service of a workman for any reason whatsoever is, called retrenchment?

172 The Industrial Disputes Act, 1947 Retrenchment however does not include: (1) termination as a punishment, or (2) voluntary retirement, or (3) retirement on reaching the age of superannuation, or of employment (4) termination as a result of non-renewal of contract, or (5) termination on the ground of continued ill-health. S. 2(oo). Note:-See also Santosh Gupta v. State Bank of India, 1980 [I LLJ 72. Q. What are the conditions for effecting the retrenchment of a workman? A. If an, employer wants to retrench any workman who is in his service for one year or more: (1) he must give to the workmen one month's notice in writing showing the reasons for retrenchment or in the alternative pay to the workman one month's wages in lieu.of such notice; (2) he must also pay to the workman at the time of effecting ., the retrenchment compensation at the rate of 15 days' average pay for every year of service; and (3) he must serve on the Government notice in the prescribed manner. S.25(F). Q. Is it illegal for the employer to deduct the loan amount given to a workman from the legal dues payable to him at the timeof his retrenchment? Tliere is no illegality or impropriety in recovering the loan amount from the legal dues payable to the workman at the time of his retrenchment. It cannot be said that after severance of the employer employee relationship the employer should be required to chase the workman to recover the loan amount by filing civil litigation. Note: Held in Engineering and Ancillary Manufacturers v. Salim Khan, 2004 II C.L.R. 309 (Bom.H.C.)

173 Retrenchment Compensation Q. Is notice of retrenchment served on the Government through a peon book Invalid? A. The requirement that notice of retrenchment shall be served on the Government by registered post has to be treated as directory and not mandatory. Notice of retrenchment service on the Government through a peon book is not vitiated. Note:-Held in Gurmail Singh & Ors. v. State of Punjab, 1991 I C.L.R. 637. Q. What is the procedure for retrenchment of workmen and re-employment of retrenched workmen? A. The procedure for retrenchment of workmen and reemployent of retrenched workmen, in short, is as follows: (1) Ordinarily the workman who was employed last should be retenched first. (2) If the employer who had effected retrenchment purposes to employ any persons, he should first reemploy retrenched workmen. Ss, 25(G) & 25(H). Q. Is it necessary that a workman should have been in continuous service for not less than one year in order to avail the benefit of Section 25-G and Section 25-H? A. There are certain rights such as those under Sections 25-G and 25-H of the Act which are available, to workmen although they have not completed continuous service for not less than one year. Note: Held in Gopal v. M.C.D. & Anr., 2003 III C.L.R. 1016 (DeI.H'.C.) Q. Is the rule "last come first go" inflexible? A. The rule "last come first go" is not inflexible and may be departed from in an extraordinary situation after recording reasons. Obviously the burden of proving the existence of an extraordinary situation lies on the employer.

174 The Industrial Disputes Act, 1947 Note:-Held in Municipal Corporation of Delhi v. Shri Khacheru, through Municipal Employees Union, 19931 C.L.R. 357. Q. Does the termination of service of a casual or badli worker also amount to retrenchment? A. A casual or badli worker is a "workman" as defined under section 2(s) of the Act and as such the termination of his service amounts to retrenchment. Note:-Held in Sarabhai Chemicals v. Subhas N. Pandya, 1984 II LLJ 75. Q. Does striking off the name of a workman from the rolls amount to retrenchment? A. Striking off the name of a workman from the rolls by the employer amounts to 'termination of service' as such termination is retrenchment within the meaning of section 2(oo) of the Act. Note:-Held in H.D. Singh v. Reserve Bank of India, .1985 II C.L.R. 246. Q...Does simple termination of Service amount to retrenchment? A. Even simple termination of the services of a workman is retrenchment unless the same comes within any of the exceptions mentioned in Section 2(oo) of the Act. Note: Held in Oberoi Palm Beach Hotel, Gopalpur v. P. O: Lobour .Court, Jeypore, 2003 (99) F.L.R. 141 ' (Ori.H.C.) Q. Does termination of service of drivers of a State Transport Corporation on the ground that they have developed a defective or subnormal vision or eyesight amount to retrenchment? A. Such termination being covered by sub-clause (c) of section 2(oo), which speaks of termination on the ground of continued ill-health, it would not amount to retrenchment.

175 Compensation for closure Note:-Held in Anand Bihari v. R.S.R.T. Corporation, Jaipur, 1991 I C.L.R. 525. Q. Where a workman was engaged for a specific work and his services were terminated when the work was over, does the termination of his services amount to retrenchment? A. Such termination is covered by the provisions of S.2 (oo)(bb) of the Act and does not amount to retrenchment. Note:-Held in K.G. Reddy v. Assistant Engineer, 1990 I CIL.R. 56. Q. What is the effect of non-compliance of section 25-F on retrenchment? A. Retrenchment effected without complying with the provisions of section 25-F is illegal, invalid and void. In such a case the retrenched workman continues in employment and is entitled to reinstatement. Note:-Held in Ramani Mohan Industries Ltd. v. Second . Industrial Tribunal, 1981 I LLJ 363. Compensation for closure Are there any contingencies other than retrenchment in which the workmen are entitled to compensation? When an undertaking is transferred from one employer to another or when it is closed down for any reason, the workmen of that undertaking who have been in continuous service for one year or more are entitled to receive notice or notice wages and compensation as if they had been retrenched. Ss.25(FF) & 25(FFF) Note:, If the closure is effected on account of unavoidable circumstances, compensation payable is restricted to the maximum of 3 months' pay. Does the termination of service of a probationer amount to retrenchment?

176 The Industrial Disputes Act, 1947 A As retrenchment as defined in section 2(oo) of the Act covers every case of termination of service except those which have been embodied in the definition, the termination of service of a probationer amounts to retrenchment. Note:-Held in Karnataka State Road Transport Corporation Bangalore v. M. Baraiah, 19841 L.L.J. 110. Notice of closure O. Is any notice required to be given for closing down an undertaking? A. If .any employer intends to close down his undertaking, he has to serve on the Government, at least 60 days before the date of the intended closure, a notice giving the reasons for the closure. This .provision is intended for giving intimation of the closure and not for obtaining permission for the closure. The object of the provision is to revent the sudden closure of any undertaking. S.25(FFA). Note 1: The provision is not applicable to an undertaking employing less than 50 workmen or an undertaking set up for construction work or project. Note 2: See also Walford Transport Ltd. v. State of West Bengal, 1979 L.I.C. 70. Q. Does the failure to comply with the provisions of Section 25-FFA make the closure illegal? A. The faiiure to comply with the provisions of Section 25FFA does not make the closure illegal. The object of giving notice .to the Government is to prevent sudden closure. The statute requires notice to the Government so that the Government may take any measure in respect of the intended closure. Note:-Held in The Management of Town Bidi Factory v. Presiding Officer, Labour Court, 1990 II CLR 358.

177 Ao Go Ao Permission for lay-off, retrenchment and closure Permission for lay-off, retrenchment and closure Q. Is an]/permission necessary for laying-off or retrenching workmen or closing down an undertaking? A; If any employer of an industrial establishment in which one hundred or more workmen are employed wants to lay-off or retrench any workman or close down an undertaking, he is required to obtain prior permission of the appropriate Government. Ss. 25(M), 25(-N) & 25(0). What was the intention of the Parliament in requiring large undertakings to seek prior permission of the Government to lay-off or retrench workmen or to close down an undertaking? The Parliament wanted to prevent large scale layoffs, retrenchments and closures by large companies and undertakings, Such lay-offs, retrenchments and closures resulted in. all round demoralislng effect on workmen. Note:-See observation in Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., 1992 I CLR 1010. What is the procedure for obtaining permission for laying-off or retrenching workmen or closing down an undertaking? (1) If any employer of an industrial establishment in which one hundred or more workmen are employed intends to take any of the three actions, he has to make an application to the appropriate Government for permission, giving reasons for the intended action. (2) The employer can take the intended action if permission is granted or no communication is received granting or refusing to grant permission within 60 days from the date of the application. (3) The appropriate Government can, either on its own motion or on the application made by the employer or any workman, review its order or refer the matter to a Tribunal for adjudication.

178 The Industrial Disputes Act, (4) Subject to the above provision the order of the appropriate Government is final and binding. : (5) An action taken in contravention of these provisions will be deemed to be illegal. Ss. 25(M), 25(N) & 25(0). Note 1: When the employer retrenches workmen under .. .: these provisions he has to give the workmen three months' notice or pay three months' wages in lieu of noti(e. Note 2:-When permission is granted or is deemed to be granted for the intended action, every workmen will be entitled to receive lay-off compensation, retrenchment compensation, or closure compensation, as the case may be, as per the provisions of the Act. Q. Is an order made under Section 25-0 refusing to grant-permission to close down an Undertaking without giving reasons valid? A. An order giving no reasons for refusing to grant permission to close down an undertaking is not valid and is liable to be struck down. .Note:-Held in Jay Engineering Works v. State of West Bengal, 1992 I CLR 752. Q. What is the difference between a lock-out and a closure? A; Lock-out means the temporary closing of a place of employment; closure means the permanent closing down of a place of employment. In the case of a lock-out the employer closes the place of business; in the case of a closure the employer closes the business itself. In the case of a lock-out there is suspension of work; in the case of a closure there is discontinuation of the business. O. If the employer shifts the manufacture of one of its products from one place to another, does it amount to closure?

Punishment

179

A. Shifting the manufacture of one of several products from one unit to another does not amount to closure of part of a place of employment. Note:-Held in Hindustan Lever Employees' Union v. State of Maharashtra, 1989 II CLR 420. Q. Is it open to the employer to first declare a lay-off and then apply to the Government under section 25-M for approval of the lay-off already declared? A. Section 25-M requires the employer to obtain prior permission of the Government for the lay-off to be declared, It s not open to the employer to first declare a lay-off and then apply to the Government and seek its approval to the lay-off already declared. Note: Held in D.B.R. Mills Ltd. v, Commissioner of Labour, 1990 I CLR 722. Punishment Q. What is the punishment for laying-off or retrenching workmen without permission? A. If any employer lays-off or retrenches workmen without permission or in contravention of an order refusing permission, he would be punished with imprisonment upto one month, or with fine upto Rs. 1,000, or with both.S. 25(Q). Q. What is the punishment for closing down an undertaking without permission? A. (1) If any employer closes down an undertaking without permission he would be punished with imprisonment upto six months, or with fine upto Rs. 5,000, or with both. (2) If any employer contravenes an order refusing to grant permission, he would be punished with imprisonment upto one year, or with fine upto Rs. 5,000, or with both. (3) Where the contravention of the order is a continuing one, the employer would be punished with further fine upto Rs. 2,000 per day during which the contravention continues after the conviction. S.25(R).

180 The Industrial Disputes Acb 1947 Unfair Labour Practices Q. What is the meaning of "unfair labour practice"7 A. The various practices listed in the 5th Schedule of the Act are called unfair labour practices. These practices are nothing but unfair acts or omissions on the part of employers, workmen or trade unions. The Act prohibits the commission of any unfair labour practice. Ss.2(ra) & 25(T). Q. Can a workman challenge a mala ride transfer by filing a civil suit now that the commission of the unfair labour practice of mala ride transfer is prohibited under section 25-T of the Act? A. Since the introduction of section 25-T in the Act a workman has a remedy in the forum created under the Act and the jurisdiction of a civil Court to entertain a suit filed by a workman to challenge a mala ride transfer is impliedly barred. Note:-Held in Kerala Rubber and Reclaims Ltd. v. P.A. Sunny, 1989 I L.L.N. 676 followed in Mookan (V) v. Southern Roadways Ltd. 1989 I L.L.N. 909. Q. What is the punishment for committing an unfair labour practice? A. If any person commits an unfair labour practice, he would be punished with imprisonment upto 6 months, or with fine upto Rs.l000, or with both. S.25(U). Protection during pendency of proceedings O. Are there any restrictions on the freedom of the employer to dismiss a workman who is concerned in a pending dispute? A. An employer cannot dismiss a workman concerned in a pending dispute without following a certain procedure. A different procedure is laid down (i) for dismissing such workman for a misconduct connected with the pending dispute; (ii) for dismissing such workman for a misconduct181
Protection during pendency of proceedings

not connected with the pending dispute; and (iii) for discharging or dismissing such workman if he is recognised as a protected workman. S.33. Q. Whatis the procedure for dismissing a workman for a misconduct connected with the pending dispute? "A. If an employer wants to discharge or dismiss a workman for a misconduct during the pendency of any conciliation, arbitration or adjudication proceeding in respect of a dispute in which the workman is concerned and if the misconduct is connected with the dispute, the

employer must make an application to the authority before which proceeding is pending and obtain its previous written permission to do so. Otherwise the discharge or dismissal will be invalid and in-operative in law, S.33(1 )(b). Q. Is the employee for whose dismissal the employer seeks permission under Section 33(1) of the Act and who is suspended pending the permission entitled to subsistence allowance during the period of such suspension? A. In such a situation the employer has right to place the employee under suspension and the employee has right to receive subsistence allowance during the period of such suspension. , Note:-Held in Ram Lakhan v. Presiding Officer & Ors., 2000 II CLR 563 (S.C,) Q. What is the procedure for dismissing a workman for a misconduct not connected with the pending dispute? A. If an employer wants to discharge or dismiss a workman for a misconduct during the pendency of any conciliation, arbitration or adjudication proceeding in respect of a dispute in which the workman is concerned and if the misconduct is not connected with the dispute, the employer must, at the time of discharge or dismissal, payto the workman wages for one month and make an application to the authority before which the proceeding is pending and

182
The Industrial Disputes Act, 1947

obtain its approval for the discharge or dismissal. Otherwise the discharge or dismissal will be invalid and inoperative in law. S.33(2)(b). Q. What are the grounds on which the grant of approval sought under section 33(2)(b) of the Act for discharging or dismissing a workman can be refused? A. Some of the grounds on which the grant of approval sought under section 33(2)(b) of the Act can be refused are as follows: (1) The order of discharge or dismissal is perverse, not rationally possible or entirely unreasonable; (2) There is no evidence in support of the finding; (3) The finding is inconsistent with the evidence; (4) It rests on conjectures, surmises and suspicion; (5) No person properly instructed as to the relevant law acting judicially could have come to the conclusion that the concerned workman deserves the punishment of discharge or dismissal. Note:-Held in G.K. Sengupta v. Hindustan Construction Co. Ltd., 1994 I CLR 735. Q. What is the procedure for discharging or dismissing a workman who is recognised as a protected workman and who is concerned in a pending dispute? A. If an employer wants to discharge a protected workman for a misconduct or even otherwise or to dismiss a protected .workman during the pendency of any conciliation, arbitration or adjudication proceeding in respect of a dispute in which the workman is concerned and if the misconduct is not connected with the dispute, the employer must make an application to the authority before which the proceeding is pending and obtain its previous written permission to do so. Otherwise the discharge or dismissal will be invalid and inoperative in law. S.33(3)(b).

Special provision for adjudication

183

Q. Is approval necessary in the case of iermination simpliciter or automatic termination? AI No approval under section 33(2)(b) is necessary in the case of termination simpliciter under a contract of service or a automatic termination under the Standing Orders, as neither of them amounts to a punishment. Q. Does an application for approval lapse with the disposal of the main dispute? A. An application for approval made under section 33(2)(b) does not automatically come to an end with the disposal of the main dispute. Note:-Held in Tats Iron & Steel Co. Ltd. v. S.N. Modak, 1965 II L.L.J. 128. Q, Does an application for permission lapse with the disposal of the main dispute? A. An application for permission made under section 33(3)(b) automatically comes to an end with the disposal of the main dispute. No permission under the said section is required if no dispute between the employer and the workman is pending. Note:-Held in P.D, Sharma v. State Bank of India, 1969 I L.L.J. 513. Special provision for adjudication What is the remedy of a workman who is dismissed in contravention of section 33? If a workman is discharged or dismissed in contravention of the provisions of section 33, he can make a written complaint about the contravention to the athority before which the dispute is pending. On the receipt of such complaint the authority will adjudicate upon the complaint as if it were a dispute referred to it and submit its award to the Government. The authority has not only to decide whether there has been contravention of section 33 but also to go into the merits of the complaint and grant an appropriate relief to the complainant. S.33(A).

The Industrial Disputes Act, 1947

.Note:-If the authority before which the dispute is pending happens to be a conciliation officer, he has to take such complaint into account in mediating in and promoting the settlement of such dispute (as he has no power to adjudicate upon the complaint). S.33(A)(a). Q. Where a workman dismissed from service in contravention of the provisions of section 33 of the Act files a complaint under section 33-A of the Act, is he straightaway entitled to reinstatement in service? A. Merely because the workman is dismissed in contravention of the provisions of section 33 of the Act, it does not mean that his reinstatement has to be ordered. The complaint has to be adjudicated upon as if it were a dispute referred in accordance with the provisions of the Act and if it is found that the dismissal was not justified on merits, the workman would be entitled to reinstatement. The only consequence of the contravention of the provisions of section 33 of the Act is that the employer is liable to be . punished under section 31 of the Act. Note:-See Kimti Lal, Workman, Panipat Co-op. Sugar Mills Ltd. v. State of Haryana, 1994 II L.L.J. 1062. .Q, Is there any time limit for filing a complaint under section 33-A of the Act? A. No period of limitation is prescribed for filing a complaint under section 33-A of the Act. Note:-Held in T.L. Swamy v. Andhra Pradesh State Road Transport Corporation, 1990 (77) F.J.R. 355. Q. Can a complaint made under section 33-A to be disposed of as having become infructuous on the ground that the original dispute has ended in a no dispute award? A. Once a complaint under section 33-A is made, it has to be decided as to whether there has been in fact a contravention of section 33 of the Act. On reaching a conclusion that there has been such contravention, the complaint has to

185
Protection of service conditions

be treated as a dispute referred in accordance with the provisions of the Act and proceeded with. That being the position, the complaint cannot be disposed of as having become infructuous on the said ground. Note:-Held in Gangpur Labour Union v. Industrial Tribunal, Orissa & Anr. 1993 I CLR 72. Protection of service conditions O.. Are there ,any restrictions on the freedom of the employer to alter the service conditions of a workman who is concerned ina pending dispute? A. The following restrictions are placed on the freedom of the employer to alter the service conditions of a workman who i.s concerned in a pending dispute: (1) If an employer wants to alter the service conditions of a workman during the pendency of any conciliation, arbitration or adjudication proceeding in respect of a dispute in which the workman is concerned and if the subject matter of the alteration is connected with the dispute, the employer must make an application to the authority before which proceeding is pending and obtain its previous written permission to do so. If in such a case the subject matter of the alteration is not connected with the dispute, the employer is free to effect the alteration without any permission. Ss.33(1)(a) & 33(2)(a). (2) If an employer wants to alter the service conditions of a protected workman during the pendency of any conciliation, arbitration or adjudication proceeding in respect of a dispute in which the workman'is concerned, the employer must make an application to the authority before which the proceeding is pending and obtain its previous written permission to do so. S.33(3)(a)

186
Go

The Industrial Disputes Act, 1947

Q. What is the remedy of a workman whose service conditions are altered in contravention of section 33? A. If the service conditions of a workman are altered in contravention of the provisions of section 33, the workman can make a written complaint about the contravention to the authority before which the dispute is pending. On receipt of such complaint the authority will adjudicate upon the complaint as if it were a dispute referred to it and submit its award to the Government. S.33(A) Recovery of money What is the procedure for recovering money due to a workman from his employer? (.1) If any money is due to a workman from his employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B, the workman can make an application to the Government for the recovery of the money due to him. If the Government is satisfied that any money is so due, it will issue a certificate for that amount to the Collector, The Collector can then recover the amount as an arrear of land revenue. (2) Anapplication to the Government can be made by the workman himself, or any other person authorised by him, or, inthe case of the death of the workman, his assignee or heir. Such application has to be made within one year from the date of which the money became due to the workman from the employer. (3) If any workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and if any dispute arises as to the amount of money due or as to the amount at which such benefit should be computed, then the workman can make an application to the Labour Court for determination of the amount due or for the computation of the benefit. Any amount found due by the Labour Court can be recovered in the same manner as provided for in para (1) above. S.33(C)

Recovery of money

1117

Q. Is there any time limit for making an application under section 33-C(2)? A. There is no time limit for making an application to the Labour Court under section Q. What is the scope of the jurisdiction of the Labour Court under section 33-C(2)? A. Under section 33-C(2) the Labour Court can decide a claim based on an existing right; it cannot create a new right. Q. In an application under Section 33-C(2) can the Labour Court decide the issue raised by the employer as to whether the applicant is or is not a workman or the employer is or is not an industry? A. These are incidental questions and can be decided by the Labour Court. Note: Held in Dilip Singh Parocha & Ors. v. Mahalaxmi Co-op. Housing Society Ltd. & Anr. 2002 III CLR 778. Q. Can a dismissed workman recover his dues by making an application under section 33-C(2)? .A. Not only an employed workman but a dismissed, discharged or retired workman also can recover his dues by making an application under section 33-C(2). Q. Can a workman recover lay-off compensation by filing an application under Section 33C(2)? A. The claim to lay-off compensation of a workman who is laid-off is one which arises under the statute itself and such a claim is maintainable under Section 33-C(2). Note:-Held in Jasbir Kaur Dhaliwal v. NEPC Airlines, Madras & Ors. 2002 I CLR 1076. Q. In the proceedings under Section 33-C(2) what can the workman do in the event of the death of the employer? A. In the event of the death of the employer it is open to the workman to request the Court to continue the proceedings as against the legal heirs of the employer.

The Industrial Disputes Act, 1947

Note: Held in Annie Varghese v. Lobour Court, 2003 (4) L.L.N. 776 (Ker. H.C.) Q, Does the claim for computation under section 33-C(2) die with the death of the workman? A. The cause of action created in favour of the workman under section 33-C(2) should in normal circumstances survive to the heirs. Note:-Held in Rameshwar Manjhi (Deceased) through his son Lakhiram Manjhi v. Management of Sangramgarh Colliery & Ors., 1994 I CLR 9. Q. Can a workman apply for recovery of minimum wages under section 33-C(2) of the Industrial Disputes Act? A. A workman can make an application under section 33-C(2) of the Industrial Disputes Act for recovery of minimum wages even though he can recover the same by making an application under section 20 of the Minimum Wages Act. Note:-Held in Municipal Council Achalpur v. Shaik Rahim, 1985 I C.L.R. 62 and R.Lo Kalathia & Co. v. State of Gujarat, 1990 I CLR 705. Q. Can a Labour Court entertain an application under section 33-C(2) of the Industrial Disputes Act for recovery of dues under the Payment of Gratuity Act? The Payment of Gratuity Act is a self contained and complete Code and its provisions impliedly exclude recourse to any other statute. No application could therefore lie under section 33-C(2) of the Industrial Disputes Act for recovery of dues under the Payment of Wages Act. Note:-See Rashtriya Hair Cutting Saloon v. Maharashtra Kamgar Sabha, 1991 I C.L.R. 408 and State of Punjab v. Labour Court, Jullundar, 1981 I L.L.J. 354. Q. Can a Labour Court entertain an application under Section 33-C(2) of the Industrial Disputes Act for recovery of gratuity payable under Section 39 of the Goa, Daman and Diu Shops and Commercial Establishments Act?

Recovery of money

189

A. The Goa, Daman & Diu Shops and Commercial Establishments Act provides a complete machinery to determine questions relating to payment of gratuity. It is a complete code in itself and, as such, an application filed under Section 33-C(2) of the Industrial Disputes Act for recovery of gratuity payable to an employee under Section 39 of the Goa,. Daman & Diu Shops and Commercial Establishments Act would not be maintainable. Note:-Held in Menino Jose Rodrigues v. Labour Court, Government of Goa & Ors., 1999 II CLR 423 (Bom.H.C.). Q. Can a claim based on "equal pay for equal work" be entertained under Section 33-C(2) of the Act? A. The proceedings under Section 33-C(2) are in the nature of execution proceedings. A claim based on "equal pay for equal work" cannot be said to be pre-existing right amenable to execution in the proceedings under Section 33-C(2) of the Act. Note:-Held in Sudha Keshav Divekar v. Oil and Natural Gas Commission, 1998 I CLR 106 (Bombay). Q. Can a workman move an application under section 33-C(2) of the Act on the strength of a decree of a Civil Court holding his dismissal illegal? A. A workman can move an application under section 33-C(2) of the Act to realise the arrears of his wages on the Strength.of a decree of a Civil Court holding his dismissal illegal but denying the relief of reinstatement. Note:-Held in Municipal Committee, Amritsar v. Labour Court, Amritsar, 1990 I CLR 689. Q. Does section 22 of the Payment of Wages Act bar the jurisdiction of a Labour Court to entertain an application for recovery of wages under section 33-C(2) of the Industrial Disputes Act?

190

The Industrial Disputes Act. 1947

A. An application for recovery of wages lies under section 33-C(2) of the Industrial Disputes Act. Section 22 of the Payment of Wages Act bars the jurisdiction of a Civil Court, but not of a Labour Court. A Labour Court is not a Civil Court and an application under section 33-C(2) cannot be equated with a suit. Note:-Held in Jaipur Development Authority v. Labour Court, 1990 (60) F.L.R. 81. Q. Can the Labour Court award interest under Section 33-C(2) of the Act on the money determined to be due to a workman under the said section? A. If there is undue delay on the part of the employer in making payment of the money, the Labour Court would be justified in awarding interest thereon. Representation of parties O. Who is competent to appear for a workman before the various authorities functioning under the Act? A; A workman who is a party to a dispute has a choice of appointing any one of the following persons to appear for him in any proceeding under the Act. (1) If he is a member of a registered trade union, by any member of the executive or other office bearer of such union; (2) If his union is affiliated to a federation of trade unions, .by any member of the executive or other office bearer of such federation; (3) If he is not a member of any trade union, by any member of the executive or other office bearer of any trade union connected with, or by any other workman employed in the industry in which he is employed. S.36(1). Q. Who is competent to appear for an employer before the various authorities functioning under the Act?

R -,'ntation of parties

191

A. An employer who is a party to adispute has a choice of appo!nting any one of the following persons to appear for him in any proceeding under the Act. (1) If he is a member of an association of employers, by an officer of such association; (2) If his association is affiliated to a federation of associations of employers, by an officer of such federation; (3) If he is not a member of any association of employers, by .an officer of any association of employers connected with, or by any other employer engaged in the industry in which he is engaged. Is it permissible for a workman or an employer to appoint a lawyer to represent him in any proceeding under the Act? (1) A party to a dispute is totally prohibited from appointing a lawyer to represent it in any conciliation proceedings. (2)A party to a dispute is allowed to appoint a lawyer to represent it before a Labour Court, an Industrial Tribunal or a National Industrial Tribunal if the other parties give consent and the Labour Court, Industrial Tribunal or Na-.tionallndustrial Tribunal gives permission to do so. S.36(3) and (4). Note:-If a lawyer happens to be an officer of an association of employers or a office bearer of a trade union, he can appear in any proceeding under the Act notwithstanding the restrictions placed on the appearance of a lawyer under section 36(4). Can consent given or permission granted for appearance of a legal practitioner be withdrawn ? Once a party gives consent for appearance of a legal practitioner, it cannot be subsequently withdrawn. Similarly once a Tribunal grants permission for appearance of a legal practitioner, it cannot be subsequently withdrawan. Note:-Held in Engineering Mazdoor Sabha v. Meher M.R., 1966 I LLJ 580.

Q. A.

Q. A.

The Industrial Disputes Act, 1947

Q. Can a workman, having not objected to the employer being represented by a legal practitioner at an earlier stage, object to such representation at a later stage? A. The mere fact that a workman did not object at an earlier stage to the engagement of a legal practitioner by the employer does not deprive him of the benefit of Section 36 of the Act to object at a later stage. Note: Held in Hindustan Motors Ltd., v. Presiding Officer & Ors., 2004 I C.L.R, 163 (DeI.H.C.) Interpretation and correction of awards Q. What is the procedure for resolving a dispute about the interpretation of an award or settlement? A. If any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, the Government can be moved to make a reference of the question to a Labour Court, Tribunal or National Tribunal. The Labour Court, Tribunal or National Tribunal will hear the parties and decide the question. Such decision will be final and binding on the parties. S. 36A. Q. Does the claim for computation under section 33-C(2) die with the death of the workman? A. The cause of action created in favour of the workman under section 33-C(2) should in normal circumstances survive to the heirs. Note:-Held in Rameshwar Manjhi (Deceased) through his son Lakhiram Manjhi v, Management of Sangramgarh Colliery & Ors., 1994 I CLR 9. Q. Can the interpretation of an award or settlement be sought by filing a writ petition in the High Court? A. If there is any question regarding the interpretation of any provision of an award or settlement, the remedy is to get a reference under the provisions of section 36-A of the Act. The High Court in extra-ordinary jurisdiction will not examine such question.

193
Interpretation and correction of awards

Q. A.

O. A.

Note:-Held in Ramesh Chandar v. Union of India, 1992 LIE 1161. Is it permissible for a Tribunal to correct any error .appearing in any award passed by it? Under (Bombay) Rule 31 a Tribunal can, suo motu or on application made by a concerned party, correct any clerical mistake or error arising from an accidental slip or omission in any award passed by it. Butif there is any mistake or error in any award which calls for such correction as would involve modification of the conscious adjudication on the issues involved in it, that mistake cannot be corrected under {he said rule. Note:-Held in Tata Consulting Engineers v. Workmen 1981 I LLJ 147. Is it permissible under the Act to exempt any establishment or undertaking from the provisions of the Act? If any establishment or undertaking carried on by a department of any Government is having adequate provisions for the investigation and settlement of industrial disputes in respect of workman employed in it, that Government can exempt such establishment or undertaking from all or any of the provisions of the Act. S.36B194

The Industrial Employment (Standing Orders) Act, 1946 The purpose of the Industrial Employment (Standing Orders) Act, 1946, is to standardise the service conditions of workmen employed in industrial establishments. Prior to the enactment of the Act the employer was free to fix the service conditions of his workmen according to his own will..As a result of this there existed different sets of service conditions in different industrial establishments. The Act has taken away the freedom of the employer to unilaterally fix the service conditions of his workmen. It has replaced contractual terms of service by statutory terms of service. As observed by the Supreme Court of India in Glaxo Laboratories' case (19.841 LLJ 16), the Act is enacted "to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given". It is to be noted that the Act requires the employers not only to prescribe the conditions of employment under them but also to make the said conditions known to workmen employed by them.

Applicability of the Act

195

Q..What is the object of the Industrial Employment (Standing Orders) Act, 1946? A. The object of the Act is to lay down with sufficient precision uniform conditions of service in industrial establishments so that the employees and the employers know in a clear. and unambiguous language their respective rights and obligations. Applicability of the Act O. Which establishments are covered by the Act? A. The Act is applicable to every industrial establishment in which one hundred or more workmen are employed. The Government can, however, apply the provisions of the Act to any industrial establishment employing less than one hundred persons. S. 1(3). Note:-In the State of Maharashtra the Act applies to every industrial establishment in which fifty or more workmen are employed and also every establishment covered by the Bombay Shops and Establishments Act, 1948. Q. Are there any establishments to which the Act is not applicable? A. The Act is not applicable to:) industrial establishments covered by the Bombay Instrial Relations Act, 1946; S.1 (4). (2) industrial establishments (except Central Government establishments) covered by the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961. S. 1 (4). (3) industrial establishments employing persons covered by various Civil Service Rules. S.13(B). Note:-The Act is not applicable to these establishments because the B.I.R. Act, M.P.I.E. (S.O.) Act and Civil Service Rules contain provisions more or less similar to the provisions of the Act.

196 The Industrial Employment (S.O.) Act, 1946 Q. What will be the conditions of service of workmen in an industrial establishment to which the Act is not applicable? A. The terms of service in such establishment will be governed according to agreement direct or implied or by practice prevailing in similar establishment. Note:-Held in Melabati Tea Estate v. Bhakta Munda, AIR 1959 Tripura 8. Q. Does the Act cease to apply to an industrial establishment if the number of workmen employed in it falls below one hundred? A. Once the Act becomes applicable to an industrial establishment it does not cease to apply on account of fall in the number of workmen in that establishment below one hundred. There is nothing in the Act providing for the cessation or discontinuance of the application of the Act to an establishment on account of fall in the number of worlmen in that establishment below one hundred. Note: Held in Balakrishna Pillai v. Anant Engineering Works Pvt. Ltd., 1975 II L.L.J. 391. Q Ifa Government establishment itself notifies its Service Rules, would it be sufficient for the purpose of section 13-B? A. One of the important requirements of section 13-B is that the notification must be issued by the appropriate Government.. A notification issued by a Government establishment itself cannot be regarded as having been issued -under section 13-B. Note: Held in Air India v. Union of India, 1991 (78) F.J.R. 137. Q. What is meant by "Standing Orders"? A. "Standing Orders" means the rules of conduct for workmen employed in industrial establishment relating to matters like attendance, leave, misconduct, etc., enumerated in the Schedule appended to the Act. S.2(g).

Model Standing Orders

197

Model Standing Orders Q. What is meant by "Model Standing Orders"? A; "Model Standing Orders" means the standing orders prescribed by the Central Government or a State Government for the purposes of the Act to serve as a model. They provide a pattern of the rules of conduct relating to the various matters specified in the Schedule appended to the Act. Ss. 2(ee)& 15. Q. In what circumstances the Model Standing Orders are applicable to an industrial establishment? A. The Model Standing Orders are temporarily applicable to an industrial establishment for the period commencing on the date o.n which the Act becomes applicable to the industrial establishment and ending with the date on which standing orders certified under the Act come into operation in the industrial establishment. S. 12(A). Note:-In industrial establishments in respect of which the ,appropriate Government is the Government of Maharashtra, the Model Standing Orders are applicable from the date appointed by the Government in this behalf. Certification of Standing Orders O. What is the procedure which the employer has to follow for certification of standing orders? A. The procedure for certification of Standing Orders is as follows:; (a) The employer has to prepare a draft of the standing orders which he proposes to adopt for his industrial establishment. The draft must make provision for every applicable matter specified in the Schedule appended to the Act. It must be in conformity with the provisions of the Act and, as far as is practicable, also in conformity with the prescribed Model Standing Orders if any.

198 The Industrial Employment (S.O.) Act, 1946 (b) The employer has then to submit the draft Standing Orders prepared by him to the Certifying Officer for adoption in his industrial establishment, which he has to do within six months from the date on which the Act becomes applicable to his industrial establishment. (c) After receiving the draft Standing Orders the Certifying Officer has to call and hear the employer and the workmen concerned and decide whether or not any change is necessary in the draft to make it Certifiable under the Act. The Certifying Officer has then to certify the draft standing orders after passing a necessary order. (d) If the employer is aggrieved by the order of the Certifying Officer, he has to prefer an appeal to the Appellate Authority, for the necessary relief. The order of the Appellate Authority will be final. Ss.3 to 6. Note:-In the State of Maharashtra there is a slight difference in the procedure. Q. What is the scope of the power of the Certifying Officer under Section 5 of the Act? A." Under Section 5 of the Act the Certifying Officer has jurisdiction to adjudicate upon and decide the question relating to fairness and reasonableness of any provision of the draft Standing Orders. Note:' Held in Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union & Ors., 1999 I CLR 518. Q. Can the Appellate Authority remanda matter to the certifying Officer for a fresh decision? A. Under Section 6(1) of the Act the Appellate Authority has power to confirm the amendments either in the form certified by the Certifying Officer or after further modifying the same as the Appellate Authority thinks necessary. Power of remand is not available to the Appellate Authority.

Certification of Standing Orders Note: Held in Management of Manipal Power Press v. Sadananda Devadiga & Ors., 2004 II C.L.R. 920 (Karn.H.C.) : Q. Can a workman file an appeal against the order of the certifying officer? . A. If any workman or trade union is aggrieved by the order of the Certifying Officer, he or it also can file an appeal to the appellate authority. S.6. Q. What is the date from which standing orders come into operation? A. Standing orders come into operation on the expiry of thirty days from the date on which authenticated copies there of are sent by the Certifying Officer to the employer. S.7. Q. What is the procedure for modification of standing orders? A. Standing orders finally certified are not allowed to be modified for six months from the date on which the standing orders or the last modifications thereof came into operation. An application for modification of the standing orders .can be made thereafter by an employer or workmen to the Certifying Officer. While dealing with such application the Certifying Officer will follow the same procedure as that prescribed for certification of standing orders. S.10. Q. Is it correct to say that modification of a standing order means only a minor change in such order? A. Modification includes in relation to a standing order, any alteration, variations, addition or deletion in, or to, such order. It. is not correct to say that modification means only a minor change. S. 2(ef). Q. Is there any time limit for making an application for modification of standing orders? A. Subject to the provisions of Section 10(1) of the Act, an application for modification of standing orders can be made at any time. Section 10(2) of the Act does not contain any

200 The Industrial Employment (S.O.) Act, 1946 time limit to make a modification application. Q.Can an appeal under section 6 of the Act be preferred by registered post? A. There is no prohibition under the Act for preferring appeals under section 6 of the Act by registered post. A person desiring to prefer an appeal under the said section can, therefore, take the benefit of section 27 of the General Clauses Act and forward the memorandum of appeal by registered post. Note:-See B.H.E.L. Employees' Association v. Chief Labour Commissioner, 1986 I CLR 451. Q. What is meant by "amendments" to standing orders? A. In the State of Maharashtra, model standing orders are made applicable to every industrial establishment to which the Act applies. It is, therefore, optional for an employer (or a workman) to remain content with the model standing orders or, if he desires any changes in the model standing orders, to submit to the Certifying Officer draft amendments to them for adoption in his establishment. It is to be noted that by the draft amendments the employer (or the workman) can .seek any alterations, variations or additions to the model standing orders; but he cannot seek any deletion or omission of any rule in the model standing orders. Ss.2(1-a), 2-A and 3 in the State of Maharashtra. Q. Does a circular restraining the employees from contesting municipal elections amounts to amendment of Standing Orders? A. The right of workman to contest local body election is not a service condition which can be enumerated in Standing Orders. Therefore imposing restriction from participating in the election in the circular will not amount to amending Standing Orders. Note: Held in Barigala Sailu v. Singareni Collieries Co. Ltd., 2002 LIE 2848 (A.P.H.C.).

201 Display of Standing Orders Display of Standing Orders O. is the employer required to display the standing orders in the establishment? A. The employer must prominently display the text of the standing orders in English as well as in the language understood by the majority of his workmen, on special board, at or near the main entrance,of the establishment and also in all departments of the establishment. S.9. Q. Can any employer frame a standing order in respect of a subject matter which is not mentioned in the Scheduled appended to the Act? A. The.employer has no right to frame a standing order in respect of any subject matter which is not mentioned in the Schedule appended to the Act. Note:-When a matter relating to transfer of employment is not mentioned in the Schedule to the Act, the employer has no right to frame a standing order enabling him to transfer his employees and the Certifying Officer has no jurisdiction to certify the same. The certified standing order concerning transfer will be invalid. The consent of the employees to such standing order would not make any difference. Air Gases Mazdoor Sangh, Varanasi v. Indian Air Gases Ltd., 1977 li LLJ 503. Q. Does the exclusion of the subject of transfer from the Schedule to the Act in any manner affect the employer's right ,to transfer an employee? A. Transfer is not a matter included in the Schedule to the Act. The employer is therefore not required to frame any standing order in respect of the said matter. Since there is no such requirement under the Act, the employer cannot be denied the normal right available to him to transfer an employee from one place to other. Held:-Held in U.P. State Sugar Corporation Ltd. v. Bipin Kumar Mishra, 1994 I L.L.No 40.

The Industrial Employment (S.O.) Act, 1946 Q; Can the employer have two sets of standing orders, one for the old workmen and another for the new workmen? A. The object of the Act is to have uniform standing orders. Once the standing orders come into force, they bind all those presently in the employment of the concerned establishment as well as those who are appointed thereafter. Note:-Held in Agra Electric Supply Co. Ltd. v. Sri Alladin & Ors., 1969 II LLJ 540 S.C. Binding nature of Standing Orders O. Are the terms of Standing Orders binding on the employer and the workmen? A. Certified Standing Orders framed in accordance with the Industrial Employment (Standing Orders) Act have the force of law like any other statutory instrument and hence they are binding on the employer and the workmen. Note:-Held in Biswanath Das v. Ramesh Chandra Pat-naik, 1980 I LLJ 35. Q. What exactly is the nature and character of the certified Standing Orders? A."The certified Standing Orders framed under and in accordance with the Act are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Note:-Held in Rajasthan State Road Transport Corporation & Anr. Etc. Etc. v. Krishna Kant Etc. Etc. 1995 II CLR 180. Q. Can any employer frame a standing order which is not corresponding to any standing order in the Model Standing Orders? A. If a standing order falls within the Schedule to the Act it would not be invalid just because there is no corresponding standing order in the Model Standing Orders. A standing order of a Company making money-lending within the

203 Binding nature of Standing Orders Company's premises a misconduct is, therefore, valid though-there is no corresponding standing order in the Model Standing Orders. Note:-Held in S.K. Seshadri v. H.A.L. & Ors. 1983 II LLJ 410. Q. Can a Standing Order providing for representation of a workman in the Departmental Enquiry only by his co.i workman, despite the fact that the Model Standing Orders provided .for such representation by an office bearer of a Trade Union of which the workman is a member, be said to be not in consonance with Model Standing Orders? A. The Supreme Court has held that such a Standing Order cannot be said either to be not in consonance with Model Standing Orders or unreasonable or unfair. Note:-Held in Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union & Ors., 1999 I CLR 518. Q. Where the Standing Orders of a Company provide for -probation period of 3 months, can a Company appoint any workmen on probation for 6 months? A. The provisions of Standing Orders prevail over the terms of contract of service. Hence a workman appointed by the Company on probation of 6 months would be deemed to be permanent on completion of 3 months' service. Note:-. Held in U.P.Co-operative Spinning Mills Ltd. v. State of U.P. 1978 L.I.C. 1137. Q. Can a workman be penalised for a misconduct no where to be found in the Standing Orders? A. No penalty can be imposed on a workman for a misconduct no where found enumerated in the relevant Standing Orders. Note:-Held in Glaxo Laboratories (I) Ltd. v. Labour Court, Meerut & Ors. 1984 I LLJ 16.

204 The Industrial Employment (S.O.) Act, 1946 Q. Is a workman who is out of employment entitled to get a service certificate? A. A workman who is out of employment due to his leaving servic.e, resignation, retirement, dismissal or discharge is entitled to get a service certificate if he asks for one. The service certificate must be issued without avoidable delay. Note:- This provision is made in Model Standing Order No. 30 for workmen doing manual or technical work and Model Standing Order No.28 for workmen employed on clerical or supervisory work, contained in Bombay Industrial Employment (Standing Orders) Rules, 1959. Acts of misconduct O. What are the acts or omissions on the part of a workman which amount to misconduct? A. The following acts or omissions on the part of a workman amount to misconduct:, (a) wilful insubordination or disobedience, whether or not in combination with another, of any lawful and reasonable order of a superior; (b) going on an illegal strike or abetting, inciting, instigating or acting in furtherance thereof; " (c) wilful slowing down in performance of work, or abetment or instigation thereof; (d) theft; fraud or dishonesty in connection with the employer's business or property or the theft of property of another workman within the premises of the estab-ishment; (e) taking or giving bribes or any illegal gratification; (f) habitual absence without leave, or absence without leave for more than ten consecutive days or overstaying the sanctioned leave without sufficient grounds or proper or satisfactory explanation; (g) late attendance on not less than four occasions within a month;

Acts of misconduct (h) habitual breach of any Standing Order or any law applicable to the establishment or any rules made thereunder; (i) col.lection without the permission of the Manager of any money within the premises of the establishment except as sanctioned by any law for the time being in force; (j) engaging in trade within the premises of the establishment; (k) drunkenness, riotous, disorderly or indecent behaviour on the premises of the establishment; (I) commission of any act subversive of discipline or good behaviour on the premises of the establishment; (m) habitual neglect of work, or gross or habitual negligence; (n) habitual breach of any rules or instructions for the maintenance and running of any department, or the maintenance of the cleanliness of any portion of the establishment; (o) habitual commission of any act or omission for which a fine may be imposed under the Payment of Wages Act, 1936; (p) canvassing for union membership, or collection of union dues within the premises of the establishment, except in accordance with any law or with the permission, of the Manager; (q) wilful-damage, to work in process or to any property of the establishment; (r) holding meeting inside the premises of the establishment without the previous permission of the Manager or except in accordance with the provisions of any law for the time being in force; (s) disclosing to any unauthorised person any information in regard to the processes of the establishment which may come into the possession of the workman in the course of his works;

The Industrial Employment (S,O.) Act, 1946 (t) gambling within the premises of the establishment; (u) smoking and spitting on the premises of the establishment where it isprohibited by the employer; (v) failure to observ safety instruction notified by the employer or interference with any safety device or equipment installed within the establishment; (w) distribution or exhibiting within the premises of the establishment hand-bills, pamphlets, posters, and such other things or causing to be displayed by means of signs or writing or other visible representation on any matter without previous sanction of the Manager; (x) refusal to accept a charge-sheet, order or other communication served in accordance with these Standing Orders; (y) unauthorised possession of any lethal weapon in the establishment. (z) Sexual harassment which includes unwelcome sexual determined behaviour (whether directly or by implication),..such as:-(i) physical contact and advances; or (ii) demand or request for sexual favours; or (iii) sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or nonverbal conduct of sexual nature. Note:-This list of acts of misconduct is taken from the Model Standing Orders contained in the Bombay Industrial Employment (Standing Orders) Rules, 1959. Q. When can any act of misconduct be treated as "hab|tual"? A. In order that an act of misconduct can be treated as habitual on the part of a workman he should have committed it at least on three occasions within a space of one year. Otherwise he cannot be charged with habitual commission of that act of misconduct.

207 Domestic Enquiry Note 1: This definition is contained in the explanation to Model Standing Order No. 24 contained in the Bombay Industrial Employment (Standing Orders) Rules, 1959. Note 2: Before a person can be said to be guilty of habitual negligence it has to be shown that he has been guilty of negligence on several occasions so as to show that this is his habit. The fact that the negligence .continued over several months does not make it habitual negligence. Andhra Scientific Company Ltd. v. Seshagiri Rao, AIR 1967 SC 408. Domestic Enquiry O. What is the procedure for holding a domestic inquiry? A. A workman against whom an inquiry is to be held shall be given a charge-sheet clearly stating the charge levelled against him and asking him to submit his explanation. He may be suspended pending the inquiry. He shall be permitted to appear himself for defending him or shall be permitted to be defended by a workman working in the same department as himself or by an office bearer of a trade union of which he is a memler. He shall be permitted to produce witness in his defence and cross-examine the witness of the management. The inquiry officer shall record a concise summary of the evidence led on either side and the plea of the workman i.e., what he has to say about the charge. The proceedings of the inquiry shall be conducted in English, Hindi or in the language of the State where the industrial .establishment is located according to the choice of the workman and the person defending him. The inquiry should be completed within a period of three months. The enquiry officer should record his findings giving brief reasons. Q. Who can be appointed as an inquiry officer? A. The employer can appoint (a) an officer employed in his industrial establishment, (b) an officer from outside, or (c) an advocate, as an enquiry officer.

208 The Industrial Employment (S.O.) Act, 1946 Note: M/s. Dalmia Dadri Cement Ltd. v. Shri Murari Lal Bikaneria, 197011 LLJ 416. Q. What are the various punishment that can be awarded to a workman? A. A workman who is found guilty of misconduct can be punished with.any one of the following four punishments: (1) dismissal without notice, (2) suspension for a period of not more than four days, (3) fine, and (4) warning or censure. Q. What are the things the employer has to take into account while awarding punishment to a workman? A. in awarding punishment the employer has to take into account: (1) the gravity of the misconduct, (2) the previous record, if any, of the workman, and (3) any other extenuatg or aggravating circumstances that may exist. The gravity of the misconduct means whether the misconduct is minor or major. As regards the previous record, the punishment could be more severe if it is bad and should be less severe if it is good. Lastly,. any meritorious or condemnatory deeds done by the workman should also be taken into account. Q. Is the doctrine of "proof beyond doubt" applicable to domestic enquiries? A. The domestic enquiries are not a criminal trial. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or n.,0t the delinquent has committed misconduct. N(:e:-Held in High Court of Judicature of Bombay v. Udaysing Ganpatrao; 1997 I CLR 1122 S.C. Subsistence allowance O. What is the rate of subsistence allowance payable to a workmanWho is placed under suspension pending inquiry?

Subsistence allowance 209 A. The rate of subsistence allowance payable to a workman suspended pendin9 investigation or inquiry into complaints or charges of misconduct against him is:

(a) for the first 90 days of the suspension period (b) for the remaining days of the suspension period 50% of basic wages and dearness allowance 75% of basic wages and dearness allowance

No subsistence allowance is payable to a suspended workman if.he takes up any employment during the period of suspeniom Note:-In the State of Maharashtra the rate of subsistence ' allowance for the period of suspension beyond 180 days is 100% of basic wages plus dearness allowance. S.10(A). Q. Can an officer of a Bank covered by the Bombay Shops and Establishments Act and drawing Rs. 4,5001-per month.claim subsistence allowance under section 10A of the Standing Orders Act. A. The officer not being a workman within the meaning of the Standing Orders Act cannot claim subsistence allowance at the rates prescribed under section 10-A of the Standing Orders Act read with Rule 25 (5-A) of the Bombay Industrial Employment (Standing Orders) Rules. Note:-Held in K.K.V. Pal v. Corpn. Bank, 1987 II CLR 6. Can the employer reduce subsistence allowance on the ground that the employee has obtained stay of the domestic enquiry? When an employee approaches a competent court bona ride to .protect himself from prejudice likely to be caused by continuing proceedings simultaneously in domestic enquiry as also in a criminal case grounded on the same set of facts and succeeds in getting an order of stay of the . domestic enquiry till disposal of the criminal case, it cannot be said that delay on that account in completion of the

210 The Industrial Employment (S.O.) Act, 1946 -disciplinary proceedings is directly attributable to the con- duct of such employee. The order reducing 75% subsistence allowance to 50% cannot be sustained. Note: Held in B.D. Shetty v. CEAT Ltd., 2002 I C.L.R. 69 (s.c.) What is the liability of the employer in case no action is taken against a workman suspended pending inquiry? If on the conclusion of the enquiry no action is taken against a workman he shall be deemed to have been on duty during the entire period of suspension and shall be paid full wages for the same after deducting the subsistence allowance paid to him. Grant of leave What is the procedure for grant of leave to a workman? A workman who desires to obtain leave should make a written application to the Manager. If possible he should make the application at least seven days in advance. The .Manager should inform the workman about the grant or refusal of leave within three days. If leave is granted a leave pass should be issued to the workman. If leave is refused reasons for the refusal should be recorded. If workman wants extension of leave he should make a written application to the Manager. The Manager should send a written reply to the workman about the grant or refusal of extension. If the workman does not resume duty -within eight days of the expiry of leave, he would lose his lien on his appointment. Thereafter if he reports for duty within 15 days of the expiry of leave, he should be offered a badli post if available, otherwise he should be kept on the waiting list of vacancies. Note:, This procedure is laid down in Model Standing Order'No.13 contained in the Bombay Industrial Employment (Standing Orders) Rules, 1949. The procedure is more or less the same elsewhere.

Grant of leave 211 O. What is the machinery provided under the Act for resolving a dispute between the employer and the workmen about the application or interpretation of a standing order? A. If any dispute arises between the employer and the workman about the application or interpretation of a standing order, either of them can approach a Labour Court specified for the purpose for deciding the dispute. The decision of the Labour Court will be final and binding on the employer and the workman. S.13(A). Q. What. exactly isthe meaning and ambit of section ,!3,. of the Act? A. Section 13-A does not create a forum for adjudication of industrial disputes involving the application and/or interpretation of standing orders. The limited purpose of section 13-A is to provide a forum for determination of any question arising "as to the application or interpretation" of the certified Standing Orders as such,, in case either the employer or the employee(s) entertain a doubt as to their meaning or their applicability. Note:-Held in Raiasthan State Road Transport Corporation& Ant. Etc. Etc. v. Kdshna Kant Etc. Etc., 1995 II CLR 180, Q. Isthe Labour Court. competent to accord any interim relief while considering the question as to the application or interpretation of a standing order under section 13-A of the Act? A. Looking into the language of section 13-A, it is not possible to spell out any power of the Labour Court to accord any .interim relief while considering the question as to the application or interpretation of a standing order under the said section. Note:-Held in Amini Jonh c/o. Rajya General Kamgar Mandal v. Barofarn Chemicals Ltd., 1992 II CLR 555.

212 The Industrial Employment (S.O.) Act. 1946 Q. Are Industrial establishments of the Government exempted from the provisions of the Act? A. Once the Central Government or a State Government notifies thatervice Rules framed by it will apply to any of its industriestablishment, the provisions to the Act will not apply to that establishment. S. 13(B). O. Is it permissible under the Act to exempt any industrial establishment from the provisions of the Act? A. The Act empowers the appropriate Government to exempt, conditionally or unconditionally, any industrial establishment from all or any of the provisions of the Act. $.14. Q. Is it permissible under the Act to add new items to matters initially included in the Schedule appended to the Act? A. The Act empowers the appropriate Government to add new items to matters initially included in the Schedule. The Government can do this by framing a rule to that effect. It is needless to say that new items must relate to conditions of employment and that after the addition of new items standing orders must cover matters initially included in the Schedule as well as matters added to the Schedule. S.15(2)(a). Note:, See also Rohtak and Hissar District Electric Supply Co. v. State of U.P. 1966 II LLJ 330. Q. What are the offences under the Act and what is the punishment for them? A. The offences under the Act and the punishment for them are as under:-(a) If any employer does not submit draft Standing Orders a's required or makes any change in the Standing Orders without following the proper procedure, he would be punished with fine upto Rs. 5,000. If he continues the offence the fine would be Rs. 200 per day.

Grant of leave 213 (b) If any employer does any act in contravention of the certified Standing Orders, he would be punished with fine upto Rs. 100. If he continues the offence, the fine would be Rs. 25 per day. S.13. Note: In the State of Maharashtra the following additional provisions are there. (1) If any employer contravenes the provision of the Act or of the rules made thereunder, he would be punished with fine upto Rs. 100. If l-,e continues the offence, the fine would be Rs. 25 per day. (2) If any employer is already punished for any offence under the Act and if he again contravenes the provision of the Act or of the. rules made thereunder, he would be punished with fine upto Rs. 200

229 rhe Maharasbtra Rero, g }9o9 Uldoll .qlld lrevenLJors of Unfair

The tate of Maharahtfa Js the first tate to enact seJaJ /i/t/o. for prcvn((on or vct(msaton and other unfair labour practices. The seeds of the legislation were already there in the 8omay Industrial Relations Act, 1946, but the necessity of a full'fledged legislation on the subject was being felt all the time. Hence the enactment of the M.R.T.U. & P.U.L.P. Act, 1971. The principal object of the Act is to stop victimisation and other unfair labour practices on the part of employers. The Act is, however, intended to prevent unfair labour practices on the part of workmen and trade unions also. The Act was passed in 1972 but it was brought into force three years later in 1975. Some provisions 'for the prevention ef the unfair labour practices were introduced in the Trade Unions Act, 1926, long back by the Amendment Act of 1947 but these provisions have not been enforced. The Industrial Disputes Acts, 1947, has, however, recently incorporated some sections prohibiting unfair labour practices and these sections have been promptly brought into force from 1984.

230 M.R.T.U. & P.U.L.P. Act, 1971 The important feature of the M.R.T.U. & P.U.L.P. Act, 1971, is that like the Bombay Industrial Relations Act it provides to a person aggrieved by the commission of any unfair labour practice a quick and direct approach to a Court of Law. Q. What are the objects of the M.R.T.U. & P.U.L.P. Act, 1971? A. The main objects of the Act are: (a) to recognise certain trade unions for promoting collective bargaining; (b) to prevent.certain unfair labour practices on the part of the employers, employees and trade unions; and (c) to prohibit certain strikes and lock-outs. Preamble. Q, Since when the Act has come into force? A. The Act has come into force from 8th September, 1975. Applicability of the Act Q. Which industries are covered by the Act? A. The Act is applicable to: (a) every industry to which the Bombay Industrial Relations Act, 1946, applies for the time being; and " (b) every industry to which the Industrial Disputes Act, 1947, applies and in respect of which the State Governent is the appropriate Government. S.2(3). Q. Which persons are covered by the Act? A. The Act is applicable to: (a) every person Who is an "employee" as defined in Section 3(13) of the Bombay Industrial Relations Act, 1946; and (b) every person who is a "workman" as defined in Section 2(s) of the Industrial Disputes Act, 1947. S.3(5). Q. What is meant by "unfair labour practices"? A. The various practices listed in Schedules II, III and IV to the Act are called unfair labour practices. These practices are nothing but unfair acts or omissions on the part of the employers, employees or trade unions. S.26.

231 Authorities under the Act Authorities under the Act Q. What are the authorities under the Act and their duties? A. The following are the authorities under the Act and their duties in brief: (1) The Industrial Court.-For deciding applications for grant or withdrawal of recognition to unions, for deciding .complaints relating to unfair labour practices, and for hearing certain appeals. (2) Labour Courts.-For deciding complaints relating to unfair labour practices, for trying offences under the Act, and for deciding whether a strike or lock-out is illegal. (3) Investigating Officers:-For verifying membership of unions and for investigating into complaints relating to unfair labour practices. Ss.4 to 9. Recognised Unions O. What is meant by Recognised Union? A. A union which has a mimmum membership of 30 per cent of the total number of employees employed in any undertaking and which has been issued a certificate of recognition is called a Recognised Union. There shall be only one Recognised Union, the union having the largest membership, in respect of the same undertaking. S.11. Q. Can a union which is not registered under the Trade Unions Act seek recognition under the M.R.T.U, & P.U.L.P. Act? A. A union which is not registered under the Trade Unions Act Cannot seek recognition under the M.R.T.U. & P.U.L.P. Act. Consequently, if a recognised union loses its registration under the Trade Unions Act, it would lose its recognition under the M.R.T.U. Act. Ss.3(17) & 13(1) (vi) . 232 M.R.T.U. & P.U;L.P. Act, 1971 Q. Can one union be recognised for more than one undertaking? A. Though there cannot be more than one recognised union in respect of the same undertaking, the Act permits that one union may be recognised for more than one undertaking. S.18. O. What are the requirements that a union must fulfill for seeking recognition under the Act? A. The rules of a union seeking recognition under the Act must provide for the following matters and the provisions of such rules must be duly observed by the union namely:-(a) the membership subscription shall be not less than 50 paise per month; (b) the Executive Committee shall meet at intervals of not more than three months; (c) all resolutions passed, whether by the Executive Committee or the general body of the union, shall be recorded in a minute book kept for the purpose; (d) an auditor appointed by the State Government may audit its accounts at least once in each financial year. S.19 CI. Is it permissible to grant recognition to a union by following the method of secret ballot?

A. Granting recognition to a union by following the method of secret ballot or by foil.owing any method other than that laid down in the Act is alien to the Act. It is not permissible to follow any such method. Note:-Heldin A.P.I. Employees' Union v. Association of Engineering Workers, 1990 II C.L.R. 344 (S.C.).

Rights of l(ecognised Unions

933

Rights of recognised unions Q. What are the rights of the officers of a recognised union? A, The officers of a recognised union authorised in this behalf have .a right:-(a) to collect subscription from members on the premises of the undertaking; (b) to put up a n0tice-board on the premises of the underking and affix notices thereon; (c) to hold discussions with members on the premises of the undertaking; (d) to discuss with an employer the grievances of employees employed in his undertaking; (e) to inspect any place in any undertaking; (f) to appear on behalf of any employee in any domestic inquiry held by the,employer, S.20. . What are the special rights of Recognised Unions? A. When there is a recognised union for an undertaking, such union has a right: (a) to represent all employees in such undertaking; (b) to appear or act on behalf of any employee in such undertaking to the exclusion of all other agencies in any proceeding under the Industrial Disputes Act, 1947, and make all employees in such undertaking bound by the decision or order made in such proceeding; (c) to make all employees in such undertaking bound by any agreement to which it is a party; S.20. .(d) to discuss with an employer the grievances of the employees employed in his undertaking; (e) to inspect any place in any undertaking; (f) to appear on behalf of any employee in any domestic inquiry held by the employer. S.20.

234 M.R.T.U. & P.U.L,P. Act, 1971 Cancellation of recognition In what circumstances the recognition of a union can be cancelled? The Industrial Court can cancel the recognition of a union if: (a) it was recognised under mistake, misrepresentation or fraud; or (b) its membership has fallen below the minimum required for its recognition; or (c) it has failed to observe any of the conditions for seeking recognition; or (d) it is not being conducted bona ride in the interests of employees, but in the interests of employer to the prejudice of the interest of employees; or (e) it has instigated, aided or assisted the commencement or continuation of an illegal strike; or . (f) its registration under the Trade Unions Act is cancelled; or (g) it has committed any unfair labour practice under the Act. : Q. Does the cancellation of the recognition of a union relieve the union or members of the union from any penalty or liability incurred under the Act? A. Even after the cancellation of the recognition of a union, the union and .the members of the union will not be relieved from any penalty or liability incurred under the Act prior to such cancellation. S. 16. Q. Are the provisions of the Act relating to recognition of unions applicable to the undertakings to which the provisions of the Bombay Industrial Relations Act apply? A. The provisions of Chapter III of the Act relating to recognition of unions are not applicable to undertakings in industries to which the provisions of the Bombay Industrial

Illegal strikes

235

Relations Act apply as the said Act contains a similar chapter providing for registration of representative unions. S.10. Illegal strikes , O. What is the meaning of "illegal strikes"? "r A. The following are the instances of an illegal strike:(a) A strike resorted to without giving notice to the employer or within 14 days of the giving of such notice is illegal. (b) Where there is a recognised union, before giving such notice of any strike it must obtain the vote of the majority of its members in favour of the strike. A strike resorted to without obtaining such vote is illegal. (c) A strike resorted to during the subsistence of an arrangement to submit a dispute to arbitration is illegal. (d) A strike resorted to during the pendency of any conciliation proceedings, arbitration proceedings or adjudication proceedings is illegal. (e) A strike resorted to during the period in which any ,. settlement or award is in operation is illegal. S.24 Q. How to get a strike declared illegal? A. (a) If an employer wants a declaration that a strike commenced by the employees in his undertaking is illegal, he has to make an application to a Labour Court. (b) No time limit is. fixed for making such application but it should be made within a reasonable time. (c) The Labour Court will decide whether the strike is illegal or not and give a declaration accordingly in the open Court. (d) The declaration given to the Labour Court shall be recognised as binding and shall be followed in all proceedings under the Act.

236 M.R.T.U. & P.U.L.P. Act, 1971 (e) If a strike declared to be illegal is withdrawn within 48 hours of such declaration, such strike shall not be deemed to be illegal under the Act. Q. Can a notice of strike be given by hand delivery instead of registered post? A. A notice of strike can be sent to the employer by hand delivery although Rule 22 says that it shall be sent by registered post. The notice of strike also need not be exactly .in the prescribed form "I" and it is sufficient if it satisfies the essential requirements. Note:-Held in B.M. Dhup, General Secretary, Mahaashtra Mazdoor Congress, Bombay v. Vegetable Vitamin Foods Co. (P) Ltd., 1976 L.I.C. 435. Q. Is a notice of strike, which is not in proper form but which satisfies the essential ingredients of a notice of strike, invalid and illegal? A. Although a notice of strike is not exactly in the prescribed form,.if it satisfies the essential ingredients of a notice of strike, the same cannot be termed as invalid and illegal. Note:-Held in Dyes and Chemicals Workers Union v. Savita Chemicals Pvt. Ltd. 1993 I CLR 104. Q. Do the provisions of section 24 of the M.R.T.U. & P.U.L.P. Act prevail over the provisions of section 24 of the Industrial Disputes Act? A. The provisions of section 24 of the M.R.TU. & P.U.L.P. Act dealing with illegal strikes and lock-outs are not meant to replace the provisions of section 24 of the Industrial Disputes Act which also deals with illegal strikes and lockouts. The former, therefore, do not prevail over the latter. Note:-Held in Balmer Lawrie & Co. Ltd. v. Balmer Lawrie Employees' Union 1988 I CLR 459.

237 Complaints of unfair labour practices Q. Can a notice of lock-out be given during the coni,nuance of the lockout? A. Where a lock-out is commenced by an employer illegally without giving notice thereof to the employees, the employer can give notice during the continuance of the lock-out and cure its illegality. The object of giving notice of lock-out is to avoid possible dislocation to the employees and give them some breathing time to adjust. Note:-Held in The Premier Automobiles Ltd., v. G.R. Sapre, 1981 L.I.C. 221. Complaints of unfair labour practices O. What is the procedure for filing a complaint relating to an unfair labour practice? A. (a) A complaint relating to an unfair labour practice has to be filed by a union or an employee or an employer to the Industrial Court or a Labour Court as the case may be. (b) Such complaint has to be filed within 90 days of the occurrence of the unfair labour practice. (c) The Court has to decide the complaint as far as possible within six months from the date of receipt of the complaint. (d) The Industrial Court or the Labour Court has power to pass an interim order directing the person engaging in the unfair labour practice to temporarily cease and desist from the practice and a final order directing such person to cease and desist from the practice. (e) The order f the Court is final and cannot be called in question in any Civil or Criminal Court. Ss.28 and 30 Q. Is it permissible for a Court to entertain a complaint filed beyond the prescribed period of limitation? A. A Court is empowered to entertain a complaint filed beyond the prescribed period of limitation if good and sufficient reasons are shown for the late filing of the complaint. S.28(1 ) Proviso.

238 M.R.T.U. & P.U.L.P. Act, 1971 Q. can a union other than a representative union (under the Bombay Industrial r'(elations Act) appear and act in any proceeding relating to unfair labour practice? A. A representative union has the exclusive right to represent the employees of the concerned employer in complaints relating to unfair labour practices. No union other than a representative union can appear and act in any proceeding relating to unfair Labour practice. Note:-Held in Shramik Utkarsh Sabha v. Raymond Wool" len. Mills & Ors., 1995 I CLR 607. Q. Is it mandatory to file the application for condonation of delay along with the complaint? A. An application for condonation of delay need not necessarily be filed along with the complaint. The provision relating to the filing of a separate application for condonation of delay along with the complaint was directory and not mandatory. Note:-Held in National General Mazdoor Union v. Nitin Castings Ltd., 1990 II CLR 641. Q. Can a working journalist file a complaint under Section 28 of the Act? A. Under section 3 of the Working Journalists Act a working journalist is deemed to be a "workman" under section 2(s) of the Industrial Disputes Act. He is therefore an "employee" within the meaning of section 2(5) of the M.R.T.U. and P.U.L.P. Act and can file a complaint under section 28 of the Said Act. Note:-Held in Bennett Coleman Co. Ltd. & Ors. v. Mumbai Mazdoor Sabha, 1994 II CLR 337. Q. Can a medical representative file a complaint under section 28 of the Act? A. Since a medical representative is not an employee within the meaning of the M.R.T.U. & P.U.L,P. Act, he cannot file a complaint under section 28 of the said Act.

239 Complaint of unfair labour practices Note:-Held in H.R. Adyanthaya.etc. etc. v. Sandoz (India) Ltd. etc. etc., 1994 II CLR 552. Q. Can an employee directed to be reinstated by an order passed by a Court under the M.R.T.U. and P.U.L.P. Act maintain an application under Section 17-B of the Industrial Disputes Act in a writ petition filed by the employer against such order? A. No application under Section 17-B of the Industrial Disputes Act.would be maintainable in a pending writ petition arising from an order of reinstatement passed by a Court under the M.R.T.U. and P.U.L.P. Act. Note;-Held in Divisional Controller, Maharashtra State Road Transport Corporation v. Syed Shabir Jani, 1997 II CLR 1146 (Bombay). Q. Is it permissible for employees to file a joint complaint under section 28 of the Act? A. There is no provision under the Act whereby filing of joint complaint is prohibited. Apart from that, in an industrial dispute of a collective nature the employees can be joined together as complainants where the relief claimed by them is common besides the cause of action. Note:-Held in Vilas Dhanraj Gosewade & Ors. v. Maharashtra State Road Transport Corporation, 1993 I CLR 1054. Q. What is the procedure for the recovery of money due to an employee from an employer? A. (a) If any money is due to an employee from an employer under an order passed by the Industrial Court or a Labour Court, the employee has to make an application to the Industrial Court or the Labour Court as the case may be for the recovery of money due to him. (b) Such application has to be made within one year from the date on which money becomes due.

240 M.R.T.U. & P.U.L.P. Act, 1971 (c) The Court has to issue a certificate to the Collector for the amount due. (d) The Collector has to recover the amount as arrear of land revenue. S.50. Q. Can a workman, who is apprehending discharge or dismissal by way of unfair labour practice, file a complaint, under Item 1 of Schedule IV of the Act even before the employer actually discharges or dismisses him? A. Prevention of commission of unfair labour practices is the heart of the Act and a complaint can, therefore, be filed even at a stage where any firm action is taken towards reaching the final goal of discharging or dismissing an employee on any of the grounds mentioned in Clauses (a) to (g) of Item 1 of Schedule IV of the Act. Note:-Held in Hindustan Lever. Ltd, v, Ashok Vishnu Kate & Ors. 1995 II CLR 823. Q. Would non-compliance with any statutory provision amount to an unfair labour practice under item 9 of Schedule IV? A. I is an implied condition of every agreement, including a settlement, that the parties thereto will act in conformity with the law Such a provision is not required to be expressly stated in any contract. Non-compliance with any statutory provision would amount to an unfair labour practice under.item 9 of Schedule IV. .Note:-See S.G. Chemical & Dyes Trading Employees' Union v. S.G.C. & D.T. Ltd., 1986 I CLR 360. Q. Would a forced resignation amount to "discharge or dismissal" within the contemplation of item 1 of Schedule IV? A. The expression "discharge or dismissal" will include in its import forced resignation. To construe it otherwise will defeat the very purpose and object of the legislation.

Offences

241

.Note:-Held in R.D. Surve v. Tata Iron & Steel Co. Ltd., 19891 CLR 553. Offences O. What are the offences under the Act and what is the punishment for them? A. (1).If any person fails to comply with any interim order of the Industrial Court or a Labour Court or with any final order of such Court to cease and desist from an unfair labour practice, he would be punished with imprisonment upto 3 months or with fine upto Rs.5,000. (2) If any person,) when required by an Industrial Court or a Labour Court to produce or deliver up any document or to furnish information, intentionally omits to do so; or (b) when required by the Industrial Court or a Labour Court to bind himself by an oath or affirmation to state the truth refuses to do so; or (c) being legally bound to state the truth on any subject to the Industrialourt or a Labour Court refuses to answer any question demanded of him touching such subject by such Court; or (d) intentionally offers any insult or causes any interruption to the Industrial Court or a Labour Court at any stage of its judicial proceeding; he would be punished with imprisonment upto 6 months or with fine upto Rs.1,000 or both. (3) If any person refuses to sign any statement made by him, when required to do so by the Industrial Court or a Labour Court, he would be punished with imprisonment upto 3 months or with fine upto Rs.500 or with both. S.48.

242 M.R.T.U. & P.U.L.P. Act, 1971 SCHEDULES O. Is the list of unfair labour practices contained in -Schedule II, III and IV final? A The list is not final and can be modified by the Government. The Government can add any item to the list or delete any item from the list. The Government can also make any alteration in the items in the list. This, however, can be done by the Government after obtaining the opinion of the Industrial Court. S.53. Q. Is the list of coercive actions i.e; go slow, squatting and gherao given in item 5 of Schedule III a complete list? A. The list is only illustrative and not a complete list. Other kinds of coercive actions can also be covered by the said item. Note:-Held in Nichai Hotels Corporation v. Bombay Labour Union, 1981 L.I.C. 1235(Born.). Q. A union being a body of persons, who is supposed to act on its behalf? A. Where a union is required to do any act, such act must be done bythe person authorised in this behalf by the executive of the union, and if no person is so authorised, by any member of the executive of the union and such person or member shall be liable for any default on the part of the union. S.54 Q. Can any matter be taken simultaneously to an authority under this Act as well as to an authority under the B,I.R. & I:D. Act?' A. One has to choose the forum and accordingly approach the appropriate authority under this Act or under the Bombay Industrial Relations Act, 1946, or the Industrial Disputes Act, 1947. S.59.

Illegal lock-outs

243

O. Would a reference under section 10(1) of the Industrial Disputes Act be barred by section 59 of the M.R.T.U. & P.U,L.P. Act where the earlier complaints in the matter instituted under that Act were not within the purview of that Act? A. Section 59 has got to be strictly construed. A party who wants to prevent adjudication of the grievances of the other side on merit must strictly prove all the ingredients set out in that section. If the earlier complaints were not within the purview of the M.R.T.U. & P.U.L.P. Act, section 59 would not be attracted and the reference would not be barred. Note:-Held in Indian Hotels Co. Ltd. v. D.T. Pandey, 1991 I CLR 324. Q. Where an employer owns three concerns in different places, can a union apply for recognition in respect of only one of the three concerns? A. Such application is maintainable and cannot be dismissed. Note:-Held in Pfizer Employees Union, Bombay v. Mazdoor Congress, Bombay, 1980 L.I.C. 64. Q. Is a notice of strike stating that the employees will go on a token strike, sitdown strike or intermittent strike for a day or for an hour or indefinitely, a valid notice of strike? A. Giving such notice would amount to misinterpreting the provisions of the Act and insisting upon something which was never warranted by any provision, either in the Act or in the rules. Note:-Held in Sandoz (India) Ltd. Bombay v. Sandoz Employees Union 1981 I LLJ 171.

244 M.R.T.U. & P.U.L.P. Act, 1971 Illegal lockouts Note: The Act treats strikes and lock-outs on the same footing. The provisions of the Act relating to illegal strikes and illegal lock-outs are, therefore, almost the same. The same circumstances, as those which make a strike illegal, make a lock-out illegal. The procedure for getting a strike or lock-out declared illegal is the same. Q. Can there be a lock-out of a single employee.'? A. Plural reference to employees includes singular. It is not that for lock-out the number of employees has to be more than one. Even a single employee can be locked out. Note:-Held in Dilip Trading Company v. Vasant Babu Patil 2002 III CLR 597 O. Are the orders of a Labour Court appealable? A. (1) The orders of a Labour Court passed in its criminal jurisdiction only are appealable. Thus an appeal lies to the Industrial Court. (a) against a conviction by a Labour Court by the person convicted; (b) against an acquittal by a Labour Court, by the complainant; (c) for enhancement of a sentence awarded by a Labour Court; by the State Government. (2) An appeal has to be made within 30 days from the date of conviction, acquittal or sentence, as the case may be. (3) The Industrial Court can confirm, modify, add to or rescind the order of the Labour Court. S.42. O. Is it unfair labour practice on the part of an employer to lockout all his employees when his coercive action is directed against some of them and not against all of them? Applicability of the
Act 351

Note:-Held in Sunil Industries v. Ram Chander Pradhan & Anr. 2001 I CLR 180 (S.C.) Q. Is a driver in Government employment a workman under the Act? A. Schedule II to the Act gives a list of persons who are included in the. definition of workman. A person employed as a driver finds place in the schedule. A person employed as a driver comes under the category of workman irrespective of the position whether he is in nonGovernment employment or Government employment. Note:-Held in Radhamony v. Secretary, Department of Home Affairs, 1995 I C.L.R. 339. Q. Can a person be excluded from the definition of the term workman on the ground that he is a civil servant? A. There is nothing in the Act to show that a person holding a postin civil services of a State would be excluded from the definition of the term workman. Note:-Held in State of Gujarat v. R.K. Deshdia, 1991 I C.L.R. 582. Q. Is an apprentice entitled to claim compensation under the Workmen Compensation Act if personal injury is caused to him by accident arising out of and in the course of his training as an apprentice? A. Section 16 of the. Apprentices Act, 1961 entitles an apprentice to claim compensation under the Workmen Compensaon Act for such injury. Note:-Held in Divisional Controller, G.S.R.T.C.v. Ashok Kumar Keshavlal Parekh, 1999 I CLR 586 (Guj. H.C.) Q. If a workman was injured while he had gone to fetch water for drinking for himself and others, did the injury arise out of and in the course of employment?

A. If the workman was engaged to do miscellaneous work and had. gone to fetch water under the instruction of the employer, the injury was the result of an accident which

352
The Workmen's Compensation Act, 1923

Q. A.

Q. A.

Q.

A.

Q.

arose out of and in the course of employment. Note:-Held in N.A. Chauhan v. N.K. Shah, 1991 (1) C.L.R. 361. If a workman died after drinking contaminated water provided by the employer, did the death arise out of and in the course of employment? If a workman died as a result of drinking contaminated water which-was provided by the employer for the workmen to drink, the death was the result of an accident which arose out of and in the course of employment. Note:-Held in Div. Personnel Officer, Southern Rly. v. ' Karthiayani, 1987 I CLR 244. If ra truck driver was way-laid and killed by miscreants to loot the consignment, did the death arise out of and in the course of his employment? If the truck driver became a victim of the offence at a time he was engaged in discharging the duties assigned to him, the death was the result of an accident which arose out of and in the course of his employment. Note:-Held in National Insurance Co. Ltd. v. Nalini Dehuri & Ors., 2000 II CLR 744. If there was a private quarrel between two drivers of the same employer when they were on duty and as a result of the .quarrel .one driver died, did the death arise out of and in the course of employment? The incident or the resultant death must have some nexus with the duty which the drivers were expected to discharge and if there was absolutely no nexus at all, it cannot be said that the ingredient "arising out of employment" is satisfied. Note: Held in United India Insurance Co. Ltd. v. Sudini Indra, 2003(3) L.L.N. 969 (A.P.H.C.) If a bus driver died while changing the designation board of the bus, did the death arise out of and in the course of employment?

353
Applicability of the Act

A. If a bus driver of the Maharashtra State Road Transport Corporation died of heart attack while attempting to change .the designation board of the bus, the death was the result of an accident which arose out of and in the course of employment. Note:-Held in Zubeda Bano v. M.S.R.T.C., 1990 I CLR 465. Q..A workman, while proceeding to his work spot, jumped from a running train and sustained injury. Is it a case of an injury caused by an accident within the meaning of Section 3(1) of the Act? A. Accident means some unforeseen event. When a person jumps from a running train, the injury sustained is not an unforeseen result and is not an injury caused by an accident. Note:-Held in The Director, Combat Vehicles and Research Establishment, Avadi v. The Deputy Commisoner of Labour II, Madras & Anr. 1995 I M.L.J. 182. Q. If a person, a contractor, who had undertaken the work of painting a house, fell down and died while he was doing this work, are his legal representatives entitled to compensation? A. Engaging a person in this manner does not make him an employee or a workman. The case did not fall within the four corners of the Act. Note: Held in Lakshminarayana Shetty v. Shantha & Ant., 2002 III CLR 240 (S.C.) Q. What is the doctrine of notional extension of employment? A. According to the doctrine of notional extension of employment an employer is liable to pay conpensation for personal injury caused to a workman by accident occurring beyond his working hours and beyond his work place if there is nexus between the time and place of the accident and the employment of the workman,

354
The Workmen's Compensation Act, 1923

Note:-For case law on the point see Chairman, Cochin Dock Labour Board v. P.J. George 1976 II LLJ 65. Q. If a workman died of heart attack while he was on his way home after completing night duty, did the death arise out of and during the course of employment? A. It is to be seen that once the theory, of notional extension of employment is properly applied to the factual situation pertaining to the case on hand, it has got to be held that the accident has occurred within the area falling within the notional extension theory. The deceased was on his way home after completion of his duty. Note: Held in United India Insurance Company Ltd., Bangalore v. Susheela (Smt.) & Ors. 2004 I CLR 1025 (Karn.H.C.) Q. What are the circumstances in which the employer is not liable to pay compensation for injury to a workman? A. The employer is not liable to pay compensation for injury to a workman in the following circumstances: (1) If the injury does not result in total or partial disablement of the workman for a period exceeding three days; (2) If the injury does not result in death of the workman and is caused by an accident which is directly attr.ibutable to:-(i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the disobedience of the workman to an order expressly given; or to a rule expressly framed, for the purpose of securing the safety of workman, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman, S.3(1 ). Q. To whom is the compensation payable when injury caused by accident to a workman results in his death?

Amount of compensation

A. Where injury is caused by accident to a workman results in his death, compensation is payable to the dependents of the workman. Dependents means those relatives of the deceased workman who are specified in section 2(1)(d) of the Act. S.8. Amount of compensation O. What is the amount of compensation payable in respect of a workman whose Injury has resulted in his death? A. When the injury to a workman results in his death, the amount of compensation payable to his dependents is an amount equal to 50% of the monthly wages of the deceased workman multiplied by a figure ranging from. 228.54 to 99.37 (depending upon the age of the deceased woi'kman) or an amount of Rs.80,000, whichever is more. However, if the monthly wages of the deceased workman exceed Rs.4,000, his monthly wages for the purpose of calculating the compensation shall be deemed to be Rs.4,000 only. S.4(1 )(a). Note:-By Amendment Act of 2000 the minimum amount of compensation for death is enhanced from Rs.50,000 to Rs.80,000 and the deemed maximum monthly wage of the deceased workman is enhanced from Rs.2,000 to Rs.4,000. Q. Can the employer deduct from the compensation payable in case of death of a workman, any amount paid to the deceased workman as ex-gratia payment? A. There is a total bar against any deduction to be made by the employer for any payment made by the employer out of Court so as to reduce the corpus of the compensation payable in case of death .of a workman. Note:-Held in Divl. Engineer, M.P. Electricity Board v. Mantobai Wd/o. Lalkisan, 1989 I CLR 486. Q. What iS the amount of compensation a workman is entitled to receive when his injury results in his permanent total disablement?

The Workmen's Compensation Act, 1923

When the injury of a workman results in his permanent total disiablement, the amount of compensation he is entitled to receive is an amount equal to 60% of the monthly wages of the injured workman multiplied by a figure ranging from 228.54 to 99.37 (depending upon the age of the injured person) or an amount of Rs.90,000, whichever is more. However, if the monthly wages of the injured workman exceed Rs.4,000, his monthly wages for the purpose of calculating the compensation shall be deemed to be Rs.4,000 only. S.4(1 )(b). Note:TBy Amendment Act of 2000 the minimum amount of compensation for permanent total disablement is enhanced from Rs.60,000 to Rs.90,000 and the deemed maximum monthly wage of the injured workman is enhanced from Rs.2,000 to Rs.4,000. Q. What is the amount of compensation a workman entitled to receive if his injury results in his permanent partial disablement? A. When the injury of a workman results in his permanent partial disablement, the amount of compensation he is .entitled to receive is a percentage of the compensation payable in the case of permanent total disablement (see earlier question and answer). The percentage is determined with reference to the extent of loss of earning capacity caused by the injury and is a lumpsum payment. S.4(1)(c). Q. What is the amount of compensation a workman is entitled to receive if his injury results in his temporary disablement, either total or partial? A. When the injury of a workman results in his temporary total disablement .or temporary partial disablement he is entitled to receive compensation in the form of a half-monthly payment. The amount of a half-monthly payment is determined with reference to the monthly wages the workman was drawing at the time of the injury and is equal to 25% of the monthly wages of the workman. The maximum period

357 Time for payment of compensation

during which the workman can receive compensation for temporary total disablement or temporary partial disablement is five years. S.4(1)(d). Time for payment of compensation Q. What is the time limit for payment of compensation and what is the conseq uence of default in payment thereof? A. The employer must pay compensation as soon as it falls due, i.e. as soon as the injury is caused to a workman. He cannot contend that it falls due when it is settled by the Commissioner. If.he delays the payment of compensation beyond one month from the date it fell due, he may be saddled with simple interest at the rate of 12% per annum or at such higher rate not exceedirg the maximum of the lending rates of any scheduled bank on the amount of compensation plus penalty upto 50 per cent of the amount of compensation. S.4A. Note:-For case law on the point see Pratap Narain Singh Deo v. Sriniwas Sabata, 1976 I LLJ 235. Q, Is it permissible to get half-monthly payments commuted into a payment of a lumpsum? Ao It is ope.n to the employer and the workman to agree or to either of them to apply to the Commissioner for Workmen's Compensation and get half-monthly payments (in the case of temporary disablement) converted into a payment of a lumpsum. S.7. Q. What is the method of payment of compensation in the case of fatal accidents? A. Payment of compensation in respect of workman whose injury has resulted in death is not to be made directly to the .dependents of the workman. In such case the employers is required to. deposit the amount of compensation with the Commissioner for Workmen's Compensation. The Commissioner will then apportion the amount among the dependents of the workman.

358
The Workmen's Compensation Act, 1923

Note:-It is held that the payment of compensation directly tO a dependent is not legal even if he is the only one dependent of the deceased workman claiming compensation. Sona Shah v. The Commissioner for Workmen's Compensation & Anr. Respondent, 1978 LIE 576. Protection of compensation Q. Can compensation payable under the Act be assigned, charged, attached or setoff? A. Compensation payable under the Act, whether in the form of a lumpsum or in the form of a half-monthly payment, cannot be assigned, charged, attached or set-off against any claim. Q. Can death caused by disease be treated as injury by accident? A. If death is caused by disease as well as employment, it would be a case of injury by accident. For example, where an employee is suffering from a disease and his employment causes acceleration of the disease by strain extra work orfatigue incidental to the employment resulting in his death, it would be a case of injury by accident and his employer would be liable to pay compensation to his dependents. Note:-Held in Mackinon Mackenzie & Co. (Pvt.) Ltd. v. Smt. Rita Fernandes, 1970 I SCWR 83 and Amubibi v. Nagri Mills Co. Ltd. 1977 II LLJ 510. Q. What are the special powers of the Commissioner for Workmen's Compensation in respect of payment of lumpsum compensation to a woman or a person under a legal disability? A. Where any lumpsum compensation is payable to a woman or a person under a legal disability, the employer must deposit it with the Commissioner for Workmen's Compensation. It is open to the Commissioner to invest such sum

Report of fatal accidents

359

for the benefit of the woman or of such person during his disability. S.8(7). Q. What are the special powers of the Commissioner for Workmen's Compensation in, respect of payment of half-monthly compensation to a person under a legal disability? A. Where any half-monthly compensation is payable to a person undera legal disability, it is open to the Commissioner for Workmen's Compensation to order that such payment be made during the disability of the person to any dependent of the workman or to any other person best fitted to provide for the welfare of the workman. S.8(7). Report of fatal accidents O. What is the immediate duty of the employer on whose premises an accident has occurred which has resulted in death or serious bodily injury? A. If any accident occurs on the premises of any' employer which .results in death of a workman or serious bodily injury to a workman, the employer must, within 7 days of the death or serious bodily injury, send in the prescribed form a report to the Commissioner for Workmen's Compensation giving the circumstances attending the death or serious bodily injury. S. JOB Q. If a workman is injured while employed by a contractor, who is liable to pay compensationto him, the contr,c-tor or the prinCipal employer? A. When a workman is injured while employed by a contractor, the principal employer is liable to pay compensation to him, but he is entitled to be identified by the contractor. The workman is, however, free to recover compensation either from the principal employer or from the contractor. S.12

The Workmen's Compensation Act, 1923

Contracting out Q. Can a workman relinquish his right to receive compen-' sation under the Act? A. A workman i.3 prohibited from contracting out of the benefits of the Act, i.e. from giving up his right to receive compen sation from his employer under the Act. Any contract or agreement made by him relinquishing such right is null and void. insofar as it removes or reduces the liability of any person to pay comi:ensation under the Act. S.17 Q. Can the employer deny compensation to an injured workman on the ground that employment was provided to the son of the injured workman? A. In view of Section 17 of the Act, in no case there is an escape for the emplcyer from paying cmpensation u:der the Act, which prohibits contracting out. Note: HeI2 in Anu Mary v. Commis.=.i3nor of Workma.'3's C0mpesation, 2003 (2) L.L.N. 202 (2,om.H.C.) Offences O. What are the offences under the Act and the puni.hent thereof? A If any person, (a) fails to maintain a notice-book under ection 10(3), or (b) fails to send a statement under section 10A(1), or (c) fails tosend report under section 10B, or (c') fa;Is to send ,:=turn under section 16, he would bepunished with fine upto Rs.5,000. S.!8A. Claims for compensation Q. What is the procedure for claiming compensation payable under the Act? A. The procedure for claiming compensation payable under the Act may be summarised as follows:

Ao

Claims for compensation

(1) An application for claiming compensation payable under the Act has to be made to the Commissioner for -Workmen's Compensation in the prescribed form. (2) Before filing the application the workman has to give notice of the accident to the employer containing the details of the accident. (3) Before filing the application the workman has also to submit himself for medical examination if he is required to do so by the. employer. (4) The application has to be made within 2 years of the occurrence of the accident or within 2 years from the date of death. (5) If any applicant is poor, the Commissioner may exempt him from paying the application fees, (6) The Commissioner can take the assistance of any person possessing special knowledge of any matter relating to the case for deciding the application. (7) The Commissioner can recover the amount payable by any person under the Act as an arrear of land revenue. Ss.810,11,19. Can a workman, who is residing at Cuttack in the State of Orissa, file a claim petition under the Act for the ,accident that took place in the State of West Bengal, before the Commissioner for Workmen's Compensation, Cuttack? Section 21 of the Act, as amended by Act 30 of 1995, enables the workman to file the claim petition either before the Commissioner for the area in which the accident took place or before the Commissioner for the area in which the workman ordinarily resides. Note:-Held in Saukata All alias S. K. Sekha v. Commissioner for Workmen's Compensation-cumDy. Labour Commissioner Cuttack & Ors., 1999 I CLR 615.

The Workmen's Compensation Act, 1923

Q. What is the procedure for recovering the dues payable under the Act? A. By Section 31 of the Act the Commissioner himself is empowered to recover any amount payable by person under the Act as an arrear of land revenue. Q. If a workman claiming compensation is physically unable to attend the Court of the Commissioner due to injuries caused ,to him, would the Commissioner be justified to reject the claim of the workman on that ground? " A. Adjudicating upon the claim of the workman is the primary function under the Act and it cannot be said that the Commissioner is helpless only because the workman, due to physical disability, cannot physically remain present before, him. The Commissioner can appoint an officer as envisaged under Rule 23 or even appoint a commission for examination of the workman. Note:-Held in Jeevanbhai R. Tandel v. Deckendale Shipping & Ors. 1996 II CLR 639 (Bombay). Q. Is the Commissioner for Workmen's Compensation bOund to follow the strict rules of the Civil Procedure Code or the Evidence Act? A. The Commissioner for Workmen's Compensation is not a Civil Court and is not bound by the provisions of the Civil Procedure" Code or that of the Evidence Act. He is not bound to follow the, prccedure prescribed for trial of cases in civil courts nor is he bound by the, strict rules of evidence. Note:-Held in Chiman Surakhia Vasava v. Ahmed Musa Ustad, 1987 I CLR 311. Q. Is the Commissioner for Workmen's Compensation competent to award compensation which is higher than that claimed by an applicant?

Claims for compensation

363

A. A workman cannot be cabined, confined and cribbed because he had claimed a lesser amount of compensation. That may be due to an error in calculation or like reasons. Be that as it may, the language of the Statute is clear, and the message cannot be missed. The workman is entitled to get what the Statute entitles him to get. Note:-Held in Mohammed Koya v. Balan, 1987 I CLR 96. Q.ls the Commissioner for Workmen's Compensation competent to award compensation for temporary disablement where the claimant had claimed compensation for permanent disablement? A. If the Commissioner finds on the basis of the evidence on record that the claimant has not suffered any permanent disablement but in fact has suffered temporary disablement for a period, he can always award compensation for such temporary disablement. Note:-Held in National Insurance Co. Ltd. v. Bijay Kumar Sahu & Anr. 2002 II CLR 728 (Ori.H.C.) Q. Is it permissible for a Commissioner for Workmen's Compensation to correct any mistake appearing in a judgment passed by him? A. Under Rule 32(2) of the Workmen's Compensation Rules, 1924 a Commissioner can correct any clerical or arithmetical mistake arising from any accidental slip or omission. O. Are the orders of the Commissioner for Workmen's Compensation appealable? A, The provisions regarding appeals against the orders of the Commissioner for Workmen's Compensation may be sumarised as follows: (1) If any party is aggrieved by an order of the Commissioner it can prefer an appeal against the order to the High Court provided that (i) a substantial question of law is involved in the appeal and (ii) the amount in dispute in the appeal is Rs.300 or more.

364
Ao

The Workmen's Compensation Act, 1923

(2) Such appeal must be filed within 60 days. (3) If the party preferring such appeal happens to be an employer, he must first deposit with the Commissioner the amount payable under the order appealed against. S.30. Q, What kinds of conclusion "involve" questions of law? A. Courts have held that conclusions (i) based on no evidence; (ii) based on perverse appreciation of evidence totally opposed to accepted principles; (iii) which are not only not correct but are so unreasonable that no reasonable authority could ever have come to them; etc. are conclusions giving rise to questions of law. Is a Writ Petition filed against an order of a Commis sioner for Workmen's Compensation awarding compensation maintainable? As a right of appeal is provided under Section 30 of the Workmen Compensation Act, a Writ Petition under Article 226 or Article 227 of the Constitution of India is not maintainable against such order. Note:-Held in K.S. Rama Rao v. Commissioner for Workmen's compensation & Dy. Commissioner of Labour, Hyderabad & Ors., 1999 II CLR 488. Does a Letters Patent Appeal lie against a decision of a High Court under section 30 of the Workmen's Compensation Act? The Workmen's Compensation Act is a substantive law and has constituted a complete and exhaustive code. It creates a bar by necessary and definite implication against any proceedings beyond the stage of section 30 of the Act. No Letters Patent Appeal lies against a decision of a High Court under section 30 of the Act. Note:-Held in Dhondubai v. Proprietor, J.K.S. Sugar Factory, 1990 II CLR 798.

Claims for compensation

365

Q. Is it permissible for a workman to recover compensation payable under the Act by filing a civil suit? A. The Act permits a workman to recover compensation payable under the Act either by filing in a Civil Court a suit for damages or by filing a claim before the Commissioner for Workmen's Compensation. S.3(5). .Q. What are the circumstances in which the Commissioner for Workmen's Compensation can refuse to register an agreement settling the amount of compensation payable under the Act? A. The Commissioner for Workmen's Compensation can refuse to register such agreement (i) if the amount of compensation is inadequate, or (ii) if the agreement has been obtained by fraud or undue influence or other improper means. S.28. Q. What is the doctrine of added peril? A. According to the doctrine of added peril if a workman while performing his duty does something which he is not required to do and which involves extra danger, the employer would not be liable to pay compensation if any injury is caused to him For example, where a fitter, to take out some scrap, unnecessarily went under a machine which .when started caused a permanent injury to his hand, it was held that the injury arose out of an added peril and the employer was not liable to pay compensation to the fitter. Note:-Held in Devidayal Ralyaram v. Secretary of State AIR 1937 Sind'288. Q. Does negligence disentitle a workman to receive compensation? A. Mere negligence does not disentitle a workman to receive compensation. It is the wilful disobedience of an order or the wilful disregard of a safety guard that disentitles a workman to receive compensation.

366
Oo O

The Workmen's Compensation Act, 1923

Can an Insurance Companyfile an appeal under section 30 of the Act without depositing the amount of compention determined by the Commissioner for Workmen's Compensatio n? As the Insurance Company is stepping into the shoes of the employer, the appeal filed by it under section 30 of the Act w}thout depositing the amount payable under the order appealed against, is not maintainable. Note:-Held in New India Assurance Co. Ltd. v. M. Jayaram & Anr. 1984 I LLJ 171. In case where the Commissioner imposes on the insured employer interest under the circumstances contemplated by Section 4-A(3)(a) of the Act, Is the insurer liable to reimburse the interest amount? Interest is almost automatic once default on the part of the employer in paying the compensation due takes place beyond the permissible limit of one month. The Insurance Company is, therefore, liable to reimburse the .interest amount. In case where the Commissioner imposes on the insured employer penalty under the contingencies contemplated by Section 4-A(3)(b) of the Act, is the insurer liable to reimburse the penalty amount? Penalty is imposed on the employer because of his unjustified delay and due to his own personal fault. The Insurance Company is, therefore, not liable to reimburse the penalty .amount.. . Note: 1. Held in Ved Prakash Garg v. Premi Devi & Ors. (1997 II CLR 938 (S.C.)).