Industrial Disputes Act:

- Industry means any business or trade, undertaking, manufacture or calling of

employers,
- and includes any service, employment, handicraft or any industrial occupation or
avocation of workmen.
o Both perspectives, i.e. the perspective of the employer and the employee are
included for
CASE: Bangalore Water Supply and sewerage Board: (imp. Para 162)
- Important case about what an industry means
- Judgment was delivered by a 7 judge bench and gives crucial jurisprudence.
- The case said that there is an urgent need for the legislature to bridge the gaps in the
statute for the meaning and definition of Industry as the current version is not apt.
- Laid down a Triple Test for what is an industry?
o Systematic Activity
o Organized by Co-operation b/w employer and employee
o Production and/or distribution of goods and services calculated to satisfy
human wants and wishes
- Spiritual needs doesn’t count as industry, but prasad making is industry
- Profit motive is irrelevant
- Dominant Nature Test: If the dominant activity qualifies as industry then the whole
establishment counts as one
 - Material Services: Safdarjung Hospital Case-
o Must be analogous to trade/business in the commercial sense
o Draws a distinction b/w professional services and material services
- Are Research institutes industry?
o CASE: PRL v. KS Sharma
 The court said that the knowledge produced has no commercial
value and the info produced is used by the govt. only
 This deviates from BWS
- Sovereign Functions:
o What are Sovereign Functions?
o BWS Case, said that “strictly” sovereign functions are exempted from
industry
o E. g. Defence , administrative functions, etc.
2(s): Definition of Workmen
- Difference b/w Contract of Service and Contract for Service
- Which Test?
- Apprentice- Employment (Contract of employment/ Express or Implied)-
Employment for services for incidental to the main industry?- Employed u/contract
for service (Direction and Control Test/ Assimilation in the industry) (In order to
identify the difference b/w a workmen and employee, one needs to look at a holistic
approach and not isolated)
- Dharangdhara Case-
- Look up the case of Sushilaben v. New India Insurance Co.
- DC Diwan Case – Lifting of the Veil when there is technically no contract of service,
but the actions/behavior is such that as if there was a contract
- The above jurisprudence was evolved in the Hussain Bhai Case and then applied in
the DC Diwan Case.
- Workmen of Nilgiri Cooperative Marketing Society- The court said that this was an
Independent Contractor case- the workmen were free to go and work elsewhere, no
control there so technically cannot claim employment.
- Justice Krishna Iyer in many judgments has said that there can’t be any cut and dry
formula, therefore, based on the factual situation of a particular case, one must look
at everything and not simply apply tests to cases.
- Is Consideration necessary?
- Looking at the definition in 2(s)- we observe that words hire and reward are use and
both have different connotations, hire= monetary reward based contracts and
reward= not always monetary
- Only contracts that include these two words “Hire” and “Reward” are under the
purview of the Act. (Burma shell case- not an important case but its just an example)
- Part II- Manual? Skilled? Unskilled? Technical? Clerical? Supervisory? Operational?
- What is manual Labour?- Work which primarily uses physical exertion/ strength and
not brains! And the reason of employment should have some physical aspect to it.
- Skilled work- Some skill involved- eg. Masons, etc.
- Unskilled work- NO skill is needed to carry out the task- eg. The sales person at a
bata store case- the court in this case said that in the given factual scenario it was
unskilled work
- NOT all Employees are workers, but all workers are employees
- Everyone falling in the above categories would be workers, but people like teachers,
lawyers, etc. are not workmen.
- Teacher is not a worker- SC and other HCs.
- Miss A Sundarmbal v Govt. of Goa- Case- Teachers are not workers
- Bangalore water supply-Justice Krishna Iyer (BWS): Perhaps, they are not,because
teachers do not do manual work or technical work. We are not too surewhether it is
proper to disregard, with contempt, manual work and separate itfrom education,
nor are we too sure whether in our technological universe,education has to be
excluded. However, that may be a battle to be waged on alater occasion by litigation
and we do not propose to pronounce on it atpresent.
- What is clerical work? – Monotonous job- eg. Cashier, other clerks who basically do
the data work or the same work everyday.
- What is Supervisory work?- A supervisor only oversees the implementation of the
work- does not have power like the management or admin- he just follows the
superior’s instruction.
 - Supervisory work is only wrt people and cannot be wrt machines.
- What is Operational work? Includes all the above categories- Judicial Decisions
haven’t clarified the scope of this term.
- Dhimakichu Tea Estate v DTE- Doctors are included in technical work.
- SK Verma v Mahesh Chandra- LIC officer Case- said that Development officer is not in
any way a managerial or administrative work, but they are workman under the
definition of 2(s). The judgment was criticized because it did not clarify as to which
category did the development officer exactly would fall under
- In HR Adhyantaya v Sandoz (India), they held that SK Verma is per incurrium- that is
it was given without proper care and application of a judicial mind/legal mind.
Part-III- Exceptions to the Definition of Worker
- AirForce/Army/Navy Act
- Police and Prisons (Not covered under IDA)
- Administrative/Managerial capacity/ Supervisors
- Supervisors with salaries below 10k have been removed from this exception, but the
ones with more than 10k salary are still included. The Court in Heavy Engineering
Corp said that it Is difficult to determine where supervisory ends and where
management begins, but there are few criteria to identify it, e.g. the salary bar.
- The people under the AirForce/Army/Navy Act are excluded from the definition of
Workmen.

Section 2(k)- Industrial Dispute

- Parties of a dispute- [(Employer-employer), (Employer- Worker) (Worker-Worker)]
- Workmen of Dharampal Prem Chand v. Dharampal Prem Chand
- Supported by the union/supported by a substantial number of employees
- Direct and Substantial interest.
- Dhimakichu Tea Estate v DTE (para 30)- Said that there must be Direct and
Substantial interest. (Read definition 2(k))
- Here, the court said that 2k includes not only current, but also dismissed and
potential employees.

Appropriate Govt. Section 2(a)

- Govt. that can intervene in matters-
- Appropriate government
o Central Government
o Carried on by or under the authority of the Central Government
o Any Industry Carried on by a Railway Company
o Any controlled industry as may be specified in this behalf by the Central
Government
o Controlled industry
o Specified as such by the government
o Specified corporations
o 2010 amendment
- State government
o All remaining
- Mazdoor union case- There should be direct control over the industry by the said
govt.
- Steel Authority of India case
o Directly under the authority
o pursuant to authority of Central government
o All Corporations and instrumentalities of Central government (as understood
Art 12), will not qualify as ‘under the authority’.
- Week-5 Retrenchment
- Definition- (2oo)
o Termination of service for any reason whatsoever
o Exceptions
o Punishment by way of disciplinary action
o Voluntary retirement
o Superannuation
o Cont. ill health
o Non-renewal of contract
- Some corresponding Sections
o 25F, 25 FF, 25 FFF, 25 G
 o 25 N
- Termination… ‘for any reason whatsoever’- Termination should be in a live industry,
i.e. the industry must be live.
o Should be a live industry/industry in existence
o Closure of industry?
o Transfer of undertaking?
o In Hariprasad-The legislature supersedes the judicial effect of bringing in
transfer, closure, etc. under retrenchment, and differentiating between these
reasons, but said that the compensation must be gives as if it were given on
retrenchment.

- Pre-Sundara money (Hariprasad Shivshankar v Divakar- para 22 of the judgment is

imp.) only live industry can do it  Sundara money- Terminating services of a
‘temporary’ worker also retrenchment: ‘deemed’ surplusage For any reason
whatsoever- ‘very wide, admitting no exceptions’ 25FF and 25FFF is a legislative
exposition of 25 oo is what the counsel of respondents argued  Post-Sundarmony
SP Gupta (25FF and 25FFF are deemed retrenchment) Punjab Land Development
case- 25FF and 25FFF- “As if it were to be…”
- In Sundarmony, the services of a temporary worker were terminated when the
permanent worker returned- will such termination be covered under retrenchment?
This was the question the court dealt with- the court said that the temporary worker
becomes an extra or surplus once the permanent worker was back- further, For any
reason whatsoever- ‘very wide, admitting no exceptions’ therefore, even temporary
worker’s termination is also retrenchment.-
- Hariprasad is a counter argument of Sundarmony
- Santosh Gupta Case- said 25FF and 25FFF are deemed retrenchment-except for the
exceptions that are specified in 2oo, every other termination would fall under
Retrenchment.
- Punjab Land Development case- Question here was- whether or not termination on
account of closure/transfer is retrenchment or not?- the court said that 25 FF and
25FFF are cases which definitely don’t amount to retrenchment and referred to
 Hariprasad-it further said that, the question in Hariprasad in front of the court was
not to define deemed retrenchment, but it was to identify if a closure/transfer case
would be retrenchment? And in so far as that was the question, Hariprasad was right
in its ruling.

- EXCEPTIONS-
1. Continued Ill-health- No retrenchment benefit is given if there is a subsequent

physical infirmity that develops and causes termination.

Case- Anand Bihari Case- because continued ill-health, no retrenchment was given.
- The person should be both, unable and unfit for a prolonged period for it to be
continued ill-health.
- UNABLE and UNFIT, by virtue of a Prolonged period of physical infirmity= continued
ill-health exception

2. Contractual Termination- 2*[(bb) termination of the service of the workman as a

result of the non-renewal of the contract of employment between the employer

and the workman concerned on its expiry or of such contract being terminated
under a stipulation in that behalf contained therein; or]

- If the employment is terminated through the contractual provision, i.e. stipulated

period of 90 days, i.e. set time or if there is a provision that provides for termination
before expiry, it will fall in the exception of Contractual Termination.
- This amendment was brought in 1984
- All cases before this amendment, for e.g. Sundarmony case, if there was a
contractual termination, it would fall under the “any reason whatsoever”, but now
after amendment, it falls within the purview of the exception.
- However, if there is no stipulation in a contract or there isn’t any expiry per se and
there is a termination, then it is retrenchment.
- UPTRON Case- There was a permanent employee- contract of employment existed-
however, there was a Standing Order wherein it was stated that a permanent
employee can be terminated from employment w/o a notice of 3 months- and this
 falls within 2 (bb), however, the court said, since there was no set/definite date of
expiry/stipulation, it doesn’t fall in the exception of 2(bb)
- Refer to para 32 of the case.
- What is Temporary Woker? Casual Worker? Badli Worker?-
- The distinction is made on the nature of work/employment.

2. Classification of workmen.--(a) Workmen shall be classified as --

(b) A “permanent workman” is a workman who has been engaged on a permanent basis
and includes any person who has satisfactorily completed a probationary period of three
months in the same or another occupation in the industrial establishment, including
breaks due to sickness, accident, leave, lock-out, strike (not being an illegal strike) or
involuntary closure of the establishment.

(c) A “probationer” is a workman who is provisionally employed to fill a permanent

vacancy in a post and has not completed three months’ service therein. If a permanent
employee is employed as a probationer in a new post he may, at any time during the
probationary period of three months, be reverted to his old permanent post.

(d) A “badli” is a workman who is appointed in the post of a permanent workman or

probationer who is temporarily absent.

(e) A “temporary workman” is a workman who has been engaged for work which is of an
essentially temporary nature likely to be finished within a limited period.

(f)  A “casual workman” is a workman whose employment is of a casual nature.

(g)  An “apprentice” is a learner who is paid an allowance during the period of his
training.

 The question here is, whether or not after the 1984 amendment, would the above three
categories fall under the 2 (bb) exception?
 Under the Industrial disputes act, if a person works for more than 240 days at a stretch,
then they become a permanent in an absence of a contract.
 DATE OF EXPIRY IS OF ESSENCE.
 Eg. 84 days x 3- terminated and renewed every 84 days, hence there was an expiry date-
therefore falls within 2(bb)
 90 days and then order which caused 240 days to exceed, here order doesn’t have an
expiry date and hence doesn’t fall in the exception of 2(bb)
 As far as Casual worker is concerned, their work/contract is on a day-to-day basis and even
though it technically renews every day, but it doesn’t fall under 2(bb), because
2(bb)presumes that the contract is a general one and not of the nature as in the case of
casual worker. Hence, their termination amounts to retrenchment.
 Furthermore, the 1984 amendment was brought to kind of protect and exempt the casual
worker from the purview of 2(bb).
 S.M. Nilajkar And Ors. vs Telecom, District Manager, ... on 31 March, 2003- Indian kanoon
para-11
 Para 13- The termination of service of a workman engaged in a scheme or project
may not amount to retrenchment within the meaning of Sub-clause (bb) subject
to the following conditions being satisfied:-
 (i) that the workman was employed in a project or scheme of temporary
duration;
 (ii) the employment was on a contract, and not as a daily-wager simplicitor,
which provided inter alia that the employment shall come to an end on the
expiry of the scheme or project; and
 (iii) the employment came to an end simultaneously with the termination of the
scheme or project and consistently with the terms of the contract.
 (iv) the workman ought to have been apprised or made aware of the abovesaid
terms by the employer at the commencement of employment.
 Here, the court by the above reasoning is raising the status of a casual worker to a
temporary worker and then bringing them under 2 (bb). However, the essence is that
there is NO daily wager simplicitor, but an actual contract with a stipulated time.
 Badli worker- if there is a fixed term/stipulated period in their contract, they are also
covered under 2(bb).
 Retrenchment in no way is a security of term, but just a compensatory thing that is available
only if the requirements are fulfilled.
 Example- Fixed term employment for 30 days, then there was an order w/o an expiration
date and the worker ended up working for 90 days- is this retrenchment?
 Answer- Yes, because even though the 240 days threshold was not met, the fact there was
no expiration date, it doesn’t fall within the exception of 2(bb) and amounts to
Retrenchment.
 Other exceptions to Retrenchment include- Voluntary Retirement/Superannuation and
Punishment through Disciplinary Action.
 Voluntary Retirement- it flows from the employee to the employer, he chose to retire so
this does not come under Retrenchment.
 Superannuation- when an employee retires with all the benefits of retirements, then it is
not Retrenchment.
 Disciplinary Action
 240 days- includes the time already spent- 240 days doesn’t mean permanence always, the
persons should have been in service for 1 year for them to claim the 240 days
permanence.
 Further, Section 25(F) says- “continuous period of…”
 25(B)- defines continuous period.
 Even for casual workers, the continuous period thing applies.
 For Badli workers, when appointed in post of a permanent worker, after 240 days, they just
cease to remain Badli workers and if they are appointed in place of a probationary worker,
then after 240 days, they are deemed to be permanent worker.

 STRIKE- 2(q) "strike" means a cessation of work by a body of persons employed in any
industry acting in combination or a concerted refusal, or a refusal under a common
understanding, of any number of persons who are or have been so employed to continue
to work or to accept employment;
 The court in Umesh Nayak said that Strike is a right, but a right of last resort. They also went
on to say that its an abnormal aspect of employer-employee.
 Allahbad HC in Mahanga Ram case- the workers punched in attendance- shows intent to
work and hence not strike.
 Common understanding/intention to cease work is of essence.
 Contract of employment is of essence to actually prove a strike
 Strike is not breach of contract of employment or abandonment of employment.
 Strikes in contravention of Sections-
o 10(3) 3*[Provided also that where the dispute in relation to which the
Central Government is the appropriate Government, it shall be
competent for that Government to refer the dispute to a Labour Court or
an Industrial Tribunal, as the case may be, constituted by the State
Government;]
o 10A(4A)- (4A) Where an industrial dispute has been referred to
arbitration and a notification has been issued under sub-section (3A), the
appropriate Government may, by order, 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.
o Strikes in contradiction to the sections is an illegal strike- Sections
10(3),10A(4A), 22, 23 & 24.
 Consequences of an Illegal Strike (Disciplinary Action- BR Singh Case)
 BR Singh- Here, the court said that dismissal/discharge as a disciplinary action is
bad in law when given as consequences of a legal strike- disciplinary action only
follows an illegal strike
 However, for illegal strikes it can happen. When strike is legaldismissal can’t
happen.
 Unjustified Strikes- Reason for strike should be entirely perverse or irrational
o Determining Factors-
 Nature of Demands
 Nature of Strike
 Urgency of the situation
 Dispute Resolution mechanisms
 STRIKELegal/Illegal If Legal, then check if justified or unjustified?
  If there is violence in a legal strike, it is an unjustified one and may
lead to disciplinary action.
 Legality of strike is a question of law and Justification is a question
of FACT.

The current clear position: use this/apply this- remember!!

 Illegal
o Disciplinary action
 Legal
o Justified- (wages for strike period)
o Unjustified-(no wages for strike period)
 Legality- Determines whether disciplinary action can be taken
 Justifiability
o Determines whether wages for strike period should be given (though this has
been problematized)

- Can an illegal strike be justified?

o IGN Railway Case- the binding precedent- the constitutional bench of the SC
here held that illegal strikes CAN’T ever be Justified. Over turned the
Gujarat Steel tubes decision, wherein J. Krishna Iyer held that there can be
strikes that are illegal and justified at the same time. Disciplinary Action in
illegal strikes depends on facts and circumstances.
 The tribunal, having held that the strike was illegal, proceeded to
discuss the question, whether it was justified, and came to the
conclusion that it was ‘perfectly justified’. In the first place, it is a little
difficult to understand how a strike in respect of a public utility
service, which is clearly illegal, could at the same time be
characterized as ‘perfectly justified.’ These two conclusions cannot in
law, co-exist. The law has made a distinction between a strike which is
illegal and one which is not, but it has not made any distinction
 between an illegal strike which may be said to be justifiable and one
which is not justifiable. This distinction is not warranted by the Act,
and is wholly misconceived, specially in the case of employees in a
public utility service. Every one participating in an illegal strike, is
liable to be dealt with departmentally, of course, subject to the action
of the department being questioned before an industrial tribunal, but
it is not permissible to characterize an illegal strike as justifiable
o Gujarat Steel Tubes Case-
 130. The benign attitude towards strike being what we have outlined,
the further question arises whether in the light of the accepted
finding that the strike as such was illegal and, further, was unjustified,
all the strikers should face the penalty of dismissal or whether
individual cases with special reference to active participation in the
strike, should be considered. A rapid but relevant glance at the
decided cases may yield dividends. In Indian General Navigation and
Railway Co. Ltd. v. Their Workmen, this Court did observe that if a
strike is illegal, it cannot be called ' perfectly justified '. But between '
perfectly justified ' and ' unjustified ' the neighbourhood is distant.
Here illegality of the strike does not per se spell unjustifiability. For, in
V. Crompton Greaves Ltd. v. Workmen this Court held that even if a
strike be illegal, it cannot be castigated as unjustified, unless the
reasons for it are entirely perverse or unreasonable - an aspect which
has to be decided on the facts and circumstances of each case. In that
ecision, this Court awarded wages during the strike period because
the Management failed to prove that the workmen resorted to force
and violence. Even in Indian General Navigation and Railway Co. Ltd.
(supra) where the strike was illegal and affected a public utility
service, this Court observed that " the only question of practical
importance which may arise in the case of an illegal strike, would be
the kind or quantum of punishment, and that, of course, has to be
modulated in accordance with the facts and circumstances of each
case....
 There may be reasons for distinguishing of the case those who may
have acted as mere dumb-driven cattle from those who have taken an
active part in fomenting the trouble and instigating women to join
such a strike, or have taken recourse to violence. "The Court after
holding that the strike was illegal" and that it was not even justified"
made a pregnant observation:
 To determine the question of punishment, a clear distinction has to
be made between those workmen who are only joined in such a
strike, but also took part in obstructing the loyal workmen from
carrying on their work, or took part in violent demonstrations, or
acted in defiance of law and order, on the one hand, and these
workmen who were more or less silent participators in such a strike,
on the other hand. It is not in the interest of the industry that there
should be a wholesale dismissal of all the workmen who merely
participated in such a strike It is certainly not in the interest of the
workmen themselves. An Industrial Tribunal, therefore, has to
consider the question of punishment, keeping in view the overriding
consideration of the full and efficient working of the Industry as a
whole. The punishment of dismissal or termination of service, has,
therefore, to be imposed on such workmen as had not only
participated in the illegal strike, but had fomented it, and had been
guilty of violence or doing acts detrimental to the maintenance of law
and order in the locality where work had to be carried on.After
noticing the distinction between peaceful strikers and violent strikers,
Sinha, J., in that case, observed " it must be clearly understood by
those who take part in an illegal strike that thereby they make
themselves liable to be dealt with by their employers. There may be
reasons for distinguishing the case of those who may have acted as
mere dumb driven cattle from those who have taken an active part in
fomenting the trouble and instigating workmen to join such a strike,
or have taken recourse to violence." The same line of dichotomy is
kept up:Both the types of workmen may have been equally guilty of
 participation in the illegal strike, but it is manifest that both are not
liable to the same kind of punishment.
 Significantly, the Court stressed the need for individual charge-sheet
being delivered to individual workmen so that the degree of
misconduct of each and the punitive deserts of each may be
separately considered. We may as well refer to a few more rulings
since considerable argument was expended on this point.
 Here, the court read the IGN Railway case as illegal strikes may not
be perfectly justified, but can be justified. The court in IGN was
referring to the tribunal when they said “perfectly justified” the SC
never agreed to it. Therefore, Gujarat steel tubes misread the IGN.
o Crompton Greaves Ltd. (Grew on the Gujarat Steel Case)
 It is well-settled that in order to entitle the workmen to wages for the
period of strike, the strike should be legal as well as justified. A strike
is legal if it does not violate any provision of the statute. Again, a
strike cannot be said to be unjustified, unless the reasons for it are
entirely perverse or unreasonable. Whether a particular strike was
justified or not, is a question of fact, which has to be judged in the
light of the facts and circumstances of each case

- Disciplinary Action for Participating in illegal Strike

o Only in illegal strikes
 Only in illegal strikes
o Gujarat Steel Tubes case
 Same punishment for all?
 Active and passive participants-different disciplinry action.
 Enquiry?
o Exception?
 Legal but violent
- Wages for Strike Period
o If illegal strike- no wages follow
o The Act doesn’t create a difference b/w illegal and legal Strike
o Wages- (2rr)- “wages” means all remuneration capable of being expressed in
terms of money, which would, if the terms of employment, express or
implied, were fulfilled, be payable to a workman in respect of his
employment, or of work done in such employment, and includes—
o In TS Kelawala Case, The SC said that if the definition of Wages and strike is
taken into consideration strictly, then it suggests that no wages have to be
given in a strike period. The act doesn’t contemplate justifiability so, again no
wages.
o Final position in cases of strike- Crompton case/Gujarat Steel Tubes/Umesh
Nayak- it was held that for illegal but justified strikes, you get wages.
However, if the strike is illegal and unjustified then wages are not given.
- Rohtas Industries Case: Civil Liability for Strike?
o Para 27
o Here the employer asked for compensation from the workers who went on
strike and caused him loss- the matter went to arbitration and the award was
given in favour of the employer.
o If the employer wants to claim such a thing, then it must be u/s 26.
o In conspiracy it needs to be established that there was malice. Furthermore,
it may be an illegal act, but no compensation.

- Read Gujarat case- Relevant paras at least.

- Case- Ramnagar Cane and Sugar Co. Ltd. Vs. Jatin Chakravorty and Ors.- Court looked
at Section 10(A)c
o Therefore the strike was illegal under 10A id what was held.
 o 22(1)d must be read in light of 18(3)d
o If both unions had different demands, etc. then it was okay, but since it was
the same and they represented different sections and hence illegal strike.
- State of Bihar v Deodar Jha and Ors.-
o Section 22 and 23, whenever there is a strike, there is a breach of contract- is
what the prosecution said
o Defence said the prosecution needs to pin point as to what was breached in
the SO/ breach of condition.
o The court said the breach contract needs to be shown, it is not required to
show a breach of a particular condition/term. All this wrt S. 22/23.
o Therefore as per the court, breach of contract under the said sections, the
intrinsic conditions of a contract, that is the key components are breached,
then the contract is breached under 22/23, which then makes the strike
illegal.
- P.C. Roy and Co. (India) Private Ltd. Vs. Raycom Forests Labour Union, Mayabunder
o When strike is justified, wages need to be paid
o Here the hardships of the employer cannot be an excuse, wages have to be
paid when strike is legal and justified.
- Vidya Sagar Institute of Mental Health and Neuro Services Vs.Vidya Sagar Hospital
Employees Union
o Drew out guidelines on how strikes should be.

- LOCK OUTS- S.2(l)- (l) “lock-out” means the [temporary closing of a place of
employment] or the suspension of work, or the refusal by an employer to continue
to employ any number of persons employed by him;
- In the 1929 definition, the dispute part is missing, however it should have been
included because they should have referred to lock out in context of a dispute.
- All temporary shut downs would then counted as Lock Out- lock out is an
antithesis of Strike.
- A lock out will only be in force when there is a valid contract of employment in
existence, but if at any point there is termination of employment, then the Lock-
out ceases to exist.
o Trade Disputes Act 1929
o Industrial Disputes Act 1947
o Consequence?
 Judicial reaction
 Kairbetta (Supreme Court)
 The court then interpreted that the deleted words related to
dispute must be read in to the definition- so lock out for any
other reason other than an industrial dispute would not count
under the definition of Lock-out
 Para 7
- Lockout v Closure?
o Lockout is temporary and Closure is more permanent
- Lockout v Industrial Dispute?
o Not all lock outs are because of Industrial dispute, there can be lock outs w.o
disputes.
- Refusal to give work= lockout?-
o Refusal to pay is lock out, but refusal to come and work/ just work is not Lock
out
- Termination of service= lockout?
o Not lock out, because there needs to be a contract of employment to be in
place for lock out.
(State v Deodar Jha) – Para-16.
- When Lock out violates 22/23- illegal lock out, then it is a breach of contract.
- Legality
o Pure question of law
- Justifiability
o Motive
 o Length of lockout- merely a long lock out is not necessarily an unjustified lock
out.
- Section 10A(4)A, 23.
- In principle can employer deny wages? For the lock out period
o 2(rr) and 2(l)
- Illegal lockout
o Wages
- Legal lockout
o Unjustified- wages
o Justified- no wages
- In principal when 2rr and 2l is read together, the wages cannot be denied because
the employer is willingly ceasing the work because it’s the employer who stops work
in this case and not the employees who denied working.
- A Unique Case-
o Illegal strike- There was an Illegal Strike
o Unjustified Lockout- then there was an unjustified lock out
o Wages?
o If there is an illegal strike, followed by a lockout then the lock out is not
illegal. As per Section 24(3)- A lock-out declared in consequence of an illegal
strike or a strike declared in consequence of an illegal lock-out shall not be
deemed to be illegal.
o Ideally, in a legal lockout, when unjustified wages are given and here too,
wages were given, but the court said to decide the quantum, the conduct of
the workers needs to be looked at.
- LAY OFF (2kkk) ( “lay-off” (with its grammatical variations and cognate expressions)
means the failure, refusal or inability of an employer on account of shortage of coal,
power or raw materials or the accumulation of stocks or the breakdown of
machinery [or natural calamity or for any other connected reason] to give
employment to a workman whose name is borne on the muster-rolls of his industrial
establishment and who has not been
retrenched;
- Failure/refusal/inability to employ/Natural calamity-added after 1982
- Worker on muster roll
- For the listed reasons or reasons connected
- Financial reasons are not covered under lay off, the “other connected reasons”
added after 1982 should be read in context of the above specified reasons.
- Lay off is like a pause- a temporary pause, the contract of employment is still
sustainable.
- Outside of an employer’s control/inability needs to be proven/beyond the capacity
of the employer- e.g. Earthquake
- DC Dewan Case: First argument was that the Standing Order applicable to that
industry, the financial reasons could be read into it. Can they be?
- The counsel argued, the clause stoppage of power and supply, may cover the supply
of financial supply. It can’t, It is a flawed argument. The stoppage of supply would
mean, stoppage of supply of raw materials and can never be understood as supply of
financial assistance.
- Para 10- “other causes” should be in line with the above mentioned ones.
- The inclination of the judiciary suggests that the financial reasons are not included.
For argument purposes, if one may argue that financial reasons must be included,
then the level of inability/or beyond control, etc. need to be shown.
- The second argument the counsel made was, even if the standing order doesn’t
contemplate financial reasons, the section 25C gives a right to the employer to layoff
and the reasons here in are not limited to the ones mentioned in 2kkk.
- The argument is absolutely absurd- no harmonious construction in the argument-
you can’t have different meanings of lay off in the same statute.
- Is there a right under 25C that the employer has to lay off?- here, the court said,
there is no right to layoff on the employer’s end.
- Examples:
- If there is a Standing Order, it is to be followed as long as it is consistent with the law
(25C) for e.g. if at any point the SO is inconsistent with the Act, then the Act
supersedes the SO.
- The SO just mentions that the employer can lay off, therefore there is no
specification of how and why lay off is possible, therefore, we go back to 25C read
with 2kkk.
- If it mentions procedure, but no quantum of compensation, then does 25C applies?-
yes.
- Para 7 of the case: (READ)
- Firestone Case- it interpreted DC Dewan in para 16- if the grounds are not given in
SO, then refer to 2kkk. The court did not clarify the question on what if the SO is
silent on the grounds/compensation, etc.

- Closure: 2cc: cc) ‘closure’ means the permanent closing down of a place of
employment or part thereof;”.
- When there is a closure, the employers have to give compensation.
- 25FF(Compensation on transfer), 25FFF(Compensation on Closure), 25O- applicable
when more than 100 people are employed-25-O. Procedure for closing down an
undertaking.—(1) An employer who intends to close down an undertaking of an
industrial establishment to which this Chapter applies shall, in the prescribed
manner, apply, for prior permission at least ninety days before the date on which the
intended closure is to become effective, to the appropriate Government, stating
clearly the reasons for the intended closure of the undertaking and a copy of such
application shall also be served simultaneously on the representatives of the
workmen in the prescribed manner:
- Provided that nothing in this sub-section shall apply to an undertaking set up for the
construction of buildings, bridges, roads, canals, dams or for other construction
work.
- Closure is a circumstantial based jurisprudence
- 25FF, 25FFF and 25F-A if not followed, there is heavy penalty
- If 25O is not followed, it renders the closure illegal as per the section itself.
- Lockouts v Closure
- Lockouts are temporary, motivated by pressure/strike, it is a part of the bargaining
power
- However, closure is an outcome of business exigency.
 - Closure can be for any xyz reason
- Closure is a right inherent under Article 19(1)g. An employer is in complete power to
shut down business.
- Closure should/ are almost always bonafide, if it is not a genuine closure, then it is
illegal.
- The adjudicator can’t ask the employer or direct them on how to conduct the
business once it is established that the closure is genuine.
- Unfair Labour practice: Schedule V
- Sch.V lays down the unfair practices from both sides, employer and employee.
- 25-T: Prohibition of unfair labour practice.—No employer or workman or a trade
union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not,
shall commit any unfair labour practice.
- 25-U: 25-U. Penalty for committing unfair labour practices.—Any person who
commits any unfair labour practice shall be punishable with imprisonment for a term
which may extend to six months or with fine which may extend to one thousand
rupees or with both.]
- Industrial Relations Code: Worker Reskilling fund- CH.11, section 83
- 83. (1) The appropriate Government shall, by notification, set up a fund to be called
the worker re-skilling fund (hereafter in this section referred to as "fund"). (2) The
fund shall consist of— (a) the contribution of the employer of an industrial
establishment an amount equal to fifteen days wages last drawn by the worker
immediately before the retrenchment, or such other number of days as may be
notified by the Central Government, for every retrenched worker in case of
retrenchment only; (b) the contribution from such other sources as may be
prescribed by the appropriate Government. (3) The fund shall be utilised by crediting
fifteen days wages last drawn by the worker to his account who is retrenched, within
forty-five days of such retrenchment, in such manner as may be prescribed.
- This is a social welfare provision.

TRADE UNIONS
- Group of people/representation
- Even employers can have a Trade union
- Definition: 2(h) “Trade Union” means any combination, whether temporary or
permanent, formed primarily for the purpose of regulating the relations between
workmen and employers or between workmen and workmen, or between
employers and employers, or for imposing restrictive conditions on the conduct of
any trade or business, and includes any federation of two or more Trade Unions:
Provided that this Act shall not affect—
(i) any agreement between partners as to their own business;
(ii) any agreement between an employer and those employed by him as to such
employment; or
(iii) any agreement in consideration of the sale of the goodwill of a business or of
instruction in any profession, trade or handicraft.
- A trade union needs to be registered for the benefits;

- Section 4: Mode of Registration5[(1)] Any seven or more members of a Trade Union

may, by subscribing their names to the rules of the Trade Union and by otherwise
complying with the provisions of this Act with respect to registration, apply for
registration of the Trade Union under this Act.
- Rangaswami Case: Madras HC: There were workers at a Governor’s house in
Chennai, (these gardeners, Domestic help, driver, etc. were in the service of the
governor.) These workers were technically serving the State Guests, the garden
surplus was sold at a nominal price.
- These workers applied to register a union, can it be registered ? The court said, we
first need to look at the definition of “Worker”. 2(g) of the Trade Unions Act-
- 2(g) “trade dispute” means any dispute between employers and workmen or
between workmen and workmen, or between employers and employers which is
connected with the employment or non-employment, or the terms of employment
or the conditions of labour, of any person, and “workmen” means all persons
employed in trade or industry whether or not in the employment of the employer
with whom the trade dispute arises; and
- The definition of Worker is very broad, and hence employees who may not be a
worker under the IDA, can also have a union. But the inclusion of words “trade and
industry” in the definition causes the questions to arise.
- The Petitioner’s counsel argued that, since there is no definition of industry, let’s
look at IDA for it, and if we look at it, we can easily cover these employees/ workers
in that definition.
- The court said that the definition under 2j of IDA is wider than here, where profit
motive is not important for industry. Here in TU act, the industry must be
commercial in nature.
- The court further said that both these act are mutually exclusive and not
complementary to each other, so definition can’t be imported. Since the intent of
both Acts are different.
- The court, for argument sake said let’s assume that definition can be imported, but
then would this arrangement fall under the meaning of Industry as per IDA??
- Central Machine Case: Karnataka HC: There was a research institute, they applied
for registration as a TU. Can they?
- Apply the triple test to find out if its an industry under IDA?
- Systematic work/organised work and sale of production- See critique of PRL Labs and
Banglore Water Supply, BWS is the binding precedent.
- The court said that when the WP was filed, there was no precedent that could prove
this as an industry under IDA, but after the SC’s judgment on Banglore Water Supply,
the current institute in question is an Industry under IDA.
- The petitioners also agreed that the institute would be an industry under 2j of IDA
after Bangalore Water supply case.
- The court said that how can an establishment be an industry under IDA and not
under TU? So yeah, you can import the definition.
- The meaning of trade under IDA, doesn’t need commercial purpose for trade, so
even if you ask us to look at Trade for industry, then too, commercial nature is not
necessary.
- Basically circumvented the Rangaswami case. Read Para 16 of Central Machine.
- Para 20 of Central case-
- The court held that the institute is an industry under both TU and IDA and hence can
form a trade union.
- Now for the second question, “industry” can be read as having same meaning in
both 2j and 2g.
- Para 23 read
- Talks about legislative intent of the amendment and addition of “industry” in TU Act,
and the two conditions are, the first statute must be ambiguous and the two acts
need to be pari materia- hence the exception applies- the exception of importing
meaning.
- Tirumala-Tirupati Devasthanam case- HC and SC version.
- There was a TTD under which there were two unions, employees and worker in
water supply and electricity dept.
- The question was, what is the meaning of worker? Can the meaning be imported?
- The workers union in the water dept./electricity dept. could be registered as TU but
not the general employees.- HC said so.
- Lohia Case
- Whether or not laid off employees can have a TU? Laying off is a temporary
suspension-
- The union which was challenged was fully made of laid off workers- the workers
argue that laid off workers are still allowed to …
- 7 members mandate- patriarchy, etc.
- Since most of the workers were laid off workers, they were allowed to form the
group.
- Lay Off
o Temporary discharge or dismissal (termination/unemployment)
 Since the laid off persons are not employed for temporary period,
they can’t form a Trade Union because Section 4 requires
employment and contract for trade union to be formed.
o Other understanding of Lay off is temporary inability of employer to give
employment
 Temporary suspension of contract
 Temporary unemployment- no pay, no work
  Now can we say that the worker is unemployed for that temporary
period?- Yes
o Therefore, Section 4 Requirements are not fulfilled, where a valid
employment/contract are needed.
o The above reasoning was used in the Lohia case, wherein they held that Laid
off employees can’t form a Trade union.
- Case: Rajanka Lime Stone Quarries’ Mazdoor Union
o The registrar withheld the registration and petitioner’s filed a writ of
Mandamus.
o Once the registrar is satisfied that the requirements under 7&8 is fulfilled, he
shall register the Trade Union.
o A registrar is unable to perform their duty u/s8 if they don’t have all info.
o Which one is a Statutory duty among 7 & 8?
o 7 is more of a power/right/entitlement under the statute and 8 is a duty, a
statutory duty. However, when both read together, 7 also becomes a duty
under the statute. That is, in light of Section 8, Section 7 also becomes or
rather is a duty.
o So when, there is a lack of info or non-compliance by the applicant of union,
the registrar must act on it and not just sit with the info and do nothing.
o Section 7&8- Statutory Duty of the Registrar:
 7. Power to call for further particulars and to require alteration of
name.(1) The Registrar may call for further information for the
purpose of satisfying himself that any application complies with the
provisions of section 5, or that the Trade Union is entitled to
registration under section 6, and may refuse to register the Trade
Union until such information is supplied.
(2) If the name under which a Trade Union is proposed to be
registered is identical with that by which any other existing Trade
Union has been registered or, in the opinion of the Registrar, so nearly
resembles such name as to be likely to deceive the public or the
members of either Trade Union, the Registrar shall require the
 persons applying for registration to alter the name of the Trade Union
stated in the application, and shall refuse to register the Union until
such alteration has been made.
 8. Registration. The Registrar, on being satisfied that the Trade Union
has complied with all the requirements of this Act in regard to
registration, shall register the Trade Union by entering in a register, to
be maintained in such form as may be prescribed, the particulars
relating to the Trade Union contained in the statement accompanying
the application for registration.
- CASE: Tata Workers Union v State of Jharkhand
o Tata Workers Union was a registered union under the Act, and they had their
executive elections coming up.
o The president was elected but then the other office bearers were nominated
by the President, however, the registrar refused to register the names of the
newly nominated office bearers of the executive committee.
o In the morning of that day, the registrar informed that your elections are not
done properly in accordance with the law and hence conduct them again.
o However, the same day another order was passed by the registrar said that
your registration is cancelled under Section 10(b).
o It is implicit under the Act, i.e. under Section 6(h) that the office bearers need
to be elected and hence they were in violation of this and hence under 10(b)
the cancellation could be given.
o The court refused to hear the matter as the Section 11(aa) writ was not used.
- The registrar is not although empowered to direct the unions to do something, like
how here they were asked to conduct re-elections. The order of the Registrar can
only be administrative in nature. They have the power to determine the legality and
give a notice.
- Notices can be given to inform the unions of their contravention and determination
of illegality. So under 10b, they can send notices informing the unions of the illegality
under any sub clauses, but can’t resort to dispute resolution or taking sides on who
is right and who is wrong.
- RECOGNITION OF TRADE UNIONS
o 1926 Central Act
o Sole representation
o Only criteria for being a sole representation of an establishment, it is majority
membership, meaning a large number of workers in an establishment are a
part of it.
o The two methods to determine majority is, Secret Ballot and Check List
verification in order to determine majority.
o Only a majority union can be recognised.
- Balmer Lawrie Case:
o App. Un recognised and respondent is recognised
o Ratio of this case: Validly recognised union’s settlements/decision, etc. are
binding on all workers and doesn’t violate Article 19.
- MRF 2 Case:
o Hypothetically,
o 18(1)
o Majority union-500 people (recognised)
o Minority union- (400)(un-recognised)
o An exception to the general rule under the Act is, when a majority of workers
say that their representation is not aptly undertaken. That is, 800 /total 900
workers say that our interests are not voiced aptly.
o In MRF 2, the employer chose to recognise the minority union, i.e. 400
people union as against the majority union of 500 people. The employer
entered into an agreement with the minority union. It was held that the
settlement would be applicable to everyone even though the agreement was
entered into by a minority union.
o The whole recognition of the minority union was in question.
o The core idea of 18(1) is NOT Majority Union, but Majority Workers.
o If it can be proved that a settlement/agreement entered into by a majority
union, but a majority of workers think it is not in the best interest of them,
such order can be challenged and such order applies to all.
 o Similarly, if it can be proved that a settlement/agreement entered into by a
minority union, but a majority of workers think its in their best interest and
support it, then it shall apply to all.
o Majority unions are prohibited from acting against the interest of the
minority union or discriminating against them.
- MRF_United Workers_ Union Case:
o To prevent the respondent union from negotiating with the management,
the petitioner union filed the petition.
o Before an injunction to prohibit them entering into an agreement, one
agreement was already entered into.
o The agreement that was already signed, will remain in force and will benefit
who signed it. However, no new agreement could be entered into.
o The management’s argument is simply that we will recognise the union that
furthers the idea of industrial peace and whichever we recognise is our
discretion and we are not obligated to recognise the majority one.
o The state government said that there is no law on recognition in the State of
Tamil Nadu, so they have to follow the other stuff in terms of law in place,
e.g. ILO.
o The court said there exist a concept of recognised TU-s and hence it refutes
the claim of the management which said that there is no statutory provision
on recognised TU-s. There is a mention in the schedule.
o The discretion is not of the management to decide that which one it
recognises.
o Forming a TU is the right of the workers and recognition is granted
automatically as soon as the majority is established.
o The court further says that ballot is not alien to IDA, it has a place in the IDA
itself. Therefore, one can use it as an argument for recognition.
o As far as the method of majority recognition should be the one that is
determinative, and this court said that we do not accept secret ballot, but
prefer verification method. Read Para 37 for. Further clarity.
- IMMUNITY
- Under Section 17 of TU Act : 17. Criminal conspiracy in trade disputes.􏰀No 3[office-
bearer] or member of a registered Trade Union shall be liable to punishment under
sub-section (2) of section 120B of the Indian Penal Code (45 of 1860), in respect of
any agreement made between the members for the purpose of furthering any such
object of the Trade Union as is specified in section 15, unless the agreement is an
agreement to commit an offence.
- IPC 120 (2)B
- 18. Immunity from civil suit in certain cases.(1) No suit or other legal proceeding
shall be maintainable in any Civil Court against any registered Trade Union or any

3[office-bearer] or member thereof in respect of any act done in contemplation or

furtherance of a trade dispute to which a member of the Trade Union is a party on

the ground only that such act induces some other person to break a contract of
employment, or that it is in interference with the trade, business or employment of
some other person or with the right of some other person to dispose of his capital or
of his labour as he wills.
- Does 18(1)A imply that there can be no suit only on these grounds, but there can be
a suit when there is an additional claim with the ones mentioned ?
- Since this is a section granting immunity and hence can’t give a very broad meaning.
Therefore, the grounds mentioned in 18(1)A can’t be sole grounds for claim in a civil
suit.
- In Rohtas Case:
o In addition to the section 26, this case was also questioning the scope of
Section 18.
o There was no clarification on the scope of Section 18 was given in this case,
read para 32.
- Bokajan Cement Corporation Employee’s union v. Cement Corporation of India
o Can employees whose employment has ceased be a member of the Trade
Union?
o See Section 9A: [9A. Minimum requirement about membership of a Trade
Union.—A registered Trade Union of workmen shall at all times continue to
have not less than ten per cent. or one hundred of the workmen, whichever
 is less, subject to a minimum of seven, engaged or employed in an
establishment or industry with which it is connected, as its members.]
o Termination of employment is not a ground in this TU for cessation of
membership.
o So, if there was a TU in place before cessation of employment, then once a
member, always a member because the Act does not provide for the
cessation of membership, but only for how can a TU be formed.
- Jay Engineering Case:
o Are gheraos legal?
o J.Sinha said that there is always wrongful confinement that is it is implicit
with gherao
o Here, there was a gherao and the management was allowed to communicate
to anyone.
o However, there is no blanket immunity under section 17, when there
criminal conspiracy in furtherance of the criminal intent, then there is no
immunity.
o J.Banerjee in his opinion said that if it’s a simple encirclement then in that
case, that gherao is not illegal. That is when they are not encircling for
wrongful confinement or leading to wrongful confinement or violence.

- Right to strike or form union?

- Case: All India Bank Employees Case:
o It said that right to form union is there by default
o Right to strike a right under 19 (1)c is what was claimed
o However, the court said that the literal reading of the Article also doesn’t
guarantee such right under Article 19(1)c
o Therefore, there is no right to strike or right to collective bargaining under
19(1)c.
- TK Rangarajan Case:
o The argument of the government employees was that there is a right to strike
 o Whether or not there is a fundamental/statutory or moral/ equitable right to
strike?
o There is no fundamental right to strike.
o There is no legal or statutory right to strike.
o There is no right as such and for tamil nadu government employees there is
an exceptional prohibition to strike- in this case para 19 onwards.
o There is no moral or equitable justification for strike
- Types of Strike
o Primary Strike: Actual cessation of work by employees- direct effect
o Secondary Strike: e.g. the workers go to the supplier/buyer, etc. and say
they are going on strike and indirectly affect the employer.
o GO Slow- they come to work and work, but reduce the productivity
- Imp: Associated cement co. case: lay off compensation case.

- Equal Pay
- Is it a fundamental right or statutory right?
- Article 14/15/16- one may argue it is a fundamental right under these, but that
may not be entirely true.
- In a recent judgment, Justice D Y Chandrachud said that equal pay for equal work is
not a fundamental right, but a statutory right.
- Section 2h of Payments and Gratuity Act-
- The code on wages
- Randhir Singh Case:
o Lesser salary was paid to the aggrieved constable driver in delhi police- lesser
than the railway code
o The driver said that this was violation of equal pay for equal work
o The considerations were the level of skill, type of vehicle, etc.
o Driver constables were paid the same amount as a normal constables
o The Court said that the driver constables although not just constables, are
recruited as constables just to recruit them as a part of the police force.
 o The petitioner argues that there is added risk, higher proficiency, etc. so
why not give them equal pay as other driver govt. employees
o The court said that the counter affidavit that is the Respondent is insufficient
to prove as to why they are set at a lower pay scale.
o The court further says, that nature of work + department is different then
sure you can have different pay scale, but if nature of work is same but only
department is different, then you CANNOT have different pay scale
o It is not said expressly in article 14/15 and 16 however, it can be logically
concluded from these Articles so equal pay for equal work is a logically
deduced right of the drivers in the case. However, they never said it’s a
blanket fundamental right.
o Takeaway- Where to find in constitution?
 Factors of work/ Conditions, etc.
 Merely because different departments, they should not get different
pay solely on this ground if the work is similar in nature.
- Case: Mackinnon Mackenzie & Co. Ltd. v. Audrey D’costa and Ors.
o Financial constraints are never solid grounds for not giving equal pay.
10. We shall now proceed to consider the effect of Sub-section (3) of Section
4 of the Act on which much emphasis was placed by the management. It
provides that where in an establishment or an employment the rates of
remuneration payable before the commencement of the Act for men and
women workers for the same work or work of a similar nature are different
only on the ground of sex, then the higher (in cases where there are only two
rates), or, as the case may be, the highest (in cases where there are more
than two rates), of such rates shall be the rate at which remuneration shall be
payable, on and from such commencement, to such men and women
workers. The meaning of Sub-section (3) to Section 4 of the Act is that if for
doing the same or similar work there are more than two or three rates of
remuneration, the higher or the highest of such rates shall be the rate at
which the remuneration shall be payable from the date of the
commencement of the Act to men and women workers doing the same or
similar kind of work in the establishment. The proviso provides that nothing
in the sub- section shall be deemed to entitle a worker to the revision of the
rate of remuneration payable to him or her with reference to the service
rendered by him or her before the commencement of the Act. The salient
features of the settlement of 1975 are as follows:-
I. Clerical & Subordinate Staff:
Pay scales remain unaltered. However they will be granted increments as
under:-
(a) All staff who have completed one or more than one year's service as on
1.5.75 will get one increment in their respective scales with effect from
1.5.75.
(b) All staff who have reached the maximum of their respective pay scales
including those in 'E' grade who have completed 35 years of service will
receive one increment as per the last increment of the scale, with effect from
1.5.75.
(c) In addition to this, those who retire during the course of the Agreement,
i.e., during the period 1.5.75 to 30.4.78 will receive one increment in the year
of their retirement.
II. Lady Stenographers:
Their pay scales will be brought on par with their male counterparts in the
following manner:
(a) All those who have completed 7 years of service or less on
1.5.75 will be fitted to the starting figures of 'B' grade clerical scale.
(b) All those with more than 7 years of service but less than 10 years of
service as on 1.5.75 will be fitted to that stage of 'B' grade which is one step
higher than the starting figure.
(c) All those with more than 10 years of service as on 1.5.75 will be first fitted
to the starting salary of grade 'A' and then given one increment in the scale
for every 5 years of service or a fraction thereof, over and above 10 years of
service.
(d) The revisions will come into effect with effect from 1.5.75.
(e) While effecting fitments as explained in (a), (b) and (c) above, if the
revised gross emoluments happen to be less than the existing gross salary, or,
if the enhancement of gross emoluments as a result of the revision works out
to less than Rs. 50, then, in such individual cases, the basic salaries in the
respective scales will be stepped up in such a way, as to ensure a minimum of
Rs. 50 increase in gross salary.
(f) The figures for comparison will be the gross salaries for the month of May
1975.
(g) All other terms and conditions as applicable to clerical and subordinate
staff will also apply to lady stenographers with effect from 1.5.75....
11. It is not disputed that the male Stenographers came under the category
of 'Clerical & Subordinate Staff. It is also not disputed that the terms
regarding the fitment of lady Stenographers either in the 'A' grade or 'B'
grade, referred to in the settlement is less favourable to them and the same
conditions were allowed to remain in force even after the Act came into
force. The very fact that the lady Stenographers are treated differently and as
a class different from the clerical and subordinate staff by paying less
remuneration even though they have put in the same length of service and
they are placed in the same scale of pay smacks of discrimination. The
discrimination thus brought about by the terms of settlement only on
account of the sex of the employees cannot be allowed to persist in view of
Section 4 of the Act. We do not agree that the work of the Confidential lady
Stenographers is a sex based one like the work of air hostesses. There is no
custom or rule that only ladies can be Confidential Stenographers. If only
women are working as Confidential Stenographers it is because the
management wants them there. Women are neither specially qualified to be
Confidential Stenographers nor disqualified on account of sex to do the work
assigned to the male Stenographers. Even if there is a practice in the
establishment to appoint women as Confidential Stenographers such practice
cannot be relied on to deny them equal remuneration due to them under the
Act. The management is liable to pay the same remuneration to all the
Stenographers on the same basis irrespective of their sex. The salary and
remuneration payable to the lady Stenographers should be computed in
accordance with the terms applicable to all the male Stenographers. When so
computed, it is not disputed, that the Respondent No. 1 would be entitled to
higher remuneration as observed by the Appellate Authority and the learned
Single Judge of the High Court. We are of the view that the petitioner cannot
derive any benefit from Sub-section (3) of Section 4 of the Act and the
proviso thereto because Sub-section (3) would be attracted

only where in an establishment or an employment rates of remuneration

payable before the commencement of the Act for the men workers and for
the women workers for the same work or work of similar nature are
different. In the instant case after the settlement was arrived at there was a
common pay scale both for men and women as can be seen from the
settlement, referred to above. The discrimination was, however, brought
about while carrying out the fitment of the lady Stenographers in the said
scale of pay. The proviso to Sub-section (3) to Section 4 comes into operation
only where Sub-section (3) is applicable. Since there are no different scales of
pay in the instant case Sub-section (3) of Section 4 of the Act would not be
attracted and consequently, the proviso would not be applicable at all. The
proviso cannot travel beyond the provision to which it is a proviso. This is a
case to which Sub-section (1) to Section 4 of the Act applies because the
impugned remuneration payable to lady Stenographers has been reduced on
account of the inequitable provision regarding fitment in the common scale
of pay which is applicable to both men and women Stenographers. Having
stated that there was a common pay scale for both male Stenographers and
female Stenographers it is not open to the petitioner to contend that the
order of the High Court was contrary to the proviso to Sub-section (3) to
Section 4 of the Act. We, therefore, reject the contention that the order
passed by the High Court is contrary to the proviso to Sub-section (3) of
Section 4 of the Act.
12. It is lastly urged on behalf of the petitioner that the enforcement of the
Act will be highly prejudicial to the management, since its financial position is
 not satisfactory and the management is not able to pay equal remuneration
to both male Stenographers and female Stenographers. The Act does not
permit the management to pay to a section of its employees doing the same
work or a work of similar nature lesser pay contrary to Section 4(1) of the Act
only because it is not able to pay equal remuneration to all. The applicability
of the Act does not depend upon the financial ability of the management to
pay equal remuneration as provided by it.
13. We do not find any ground to interfere with the judgment of the High
Court. The petition, therefore, fails and it is dismissed. There shall, however,
be no order as to costs.
- Case: State of Andhra Pradesh v. G. Sreenivasa Rao and Ors.
o Assistants (Juniors) were being paid more after promotion
o They argued that Article 14 allows discrimination on grounds of intelligible
diffrentia and the experience was a ground of intelligible diffrentia and hence
different PayScale was okay.
o According to the Andhra Rules on service, it said that when you are
promoted, your salary has to be more than your last drawn pay.
o There were two positions, Copyists and Assistants- both on same payscale
o From both the positions, the promotion was done to the same position that is
Assistant section Officer.
o So, the junior, i.e. the person promoted later than the previous promoted
officer was being paid higher.
o Therefore, the intelligible diffrentia here is the experience is what was the
argument.
o But, According to the Andhra Rules on service, it said that when you are
promoted, your salary has to be more than your last drawn pay.
o If at all there was a rule or principle that justifies the payscale of junior can be
higher in the same cadre, that is the argument of Intelligible Diffrentia, then it
is valid.
o This is discrimination, and hence use Section 27 to fix the gap and bring the
Juniors and Seniors at par is what was prayed.
o Here the main question is of Intelligible diffrentia and can the source of
recruitment be a ground for the same?
o The court said, para 13 onwards-
 13. The factual basis in all these appeals is identical. The facts clearly
show that in every case the pay-fixation of the junior was done under
the Fundamental Rules and there were justifiable reasons for fixing
the junior at a higher pay then his seniors in the cadre. It was not
disputed that the said pay fixation was in conformity with the
Fundamental Rules Neither before us nor before the courts below the
validity of Fundamental Rules was challenged by any of the parties.
Without considering the scope of these Rules and without adverting
to the reasons for fixing the juniors at a higher pay, the High Court
and the Tribunal have in an omnibus manner come to the conclusion
that whenever and for whatever reasons' a junior is given higher pay
the doctrine of 'equal pay for equal work' is violated and the seniors
are entitled to the same pay.
 14. We do not agree with the High Court/Tribunal. Doctrine of 'equal
pay for equal work' cannot be put in a straight-jacket. Although the
doctrine finds its place in the Directive Principles but this Court, in
various judgments, has authoritatively pronounced that right to 'equal
pay for equal work' is an accompaniment of equality clause enshrined
in Articles 14 and 16 of the Constitution of India. Nevertheless the
abstract doctrine of 'equal pay for equal work' cannot be read in
Article 14. Reasonable classification, based' on intelligible criteria
having nexus with the object sought to be achieved, is permissible.
 15. "Equal pay for equal work" does not mean that all the members of
a cadre must receive the same pay-packet irrespective of their
seniority, source of recruitment, educational qualifications and
various other incidents of service. When a single running pay-scale is
provided in a cadre the constitutional mandate of equal pay for equal
work is satisfied. Ordinarily grant of higher pay to a junior would ex-
facie be arbitrary but if there are justifiable grounds in doing so the
 seniors cannot invoke the equality doctrine. To illustrate, when pay-
fixation is done under valid statutory Rules/executive instructions,
when persons recruited from different sources are given pay
protection, when promotee from lower cadre or a transferee from
another cadre is given pay protection, when a senior is stopped at
Efficiency Bar when advance increments are given for
experience/passing a test/acquiring higher qualifications or as
incentive for efficiency ; are some of the eventualities when a junior
may be drawing higher pay than his seniors without violating the
mandate of equal pay for equal work. The differentia on these
grounds would be based on intelligible criteria which has rational
nexus with the object sought to be achieved. We do not therefore
find any good ground to sustain the judgments of the High
Court/Tribunal
o Basically, if there are justiciable grounds in the facts, like in the present one,
then Article 14 does not kick in and equal pay is not violated.
o Furthermore, the copyists were already being paid more when they were not
yet promoted for their extra work, etc. so them getting a higher pay is
incidental to their job.
o As long as payscale is different in the same cadre when there is an intelligible
diffrentia, then its okay and it won’t violate equal pay.
- The 1976 code on equal remuneration
o Section 5 No discrimination to be made while recruiting men and women
workers.
o On and from the commencement of this Act, no employer shall, while making
recruitment for the same work or work of a similar nature, 1 [or in any
condition of service subsequent to recruitment such as promotions, training
or transfer,] make any discrimination against women except where the
employment of women in such work is prohibited or restricted by or under
any law for the time being in force:
 o Provided that the provisions of this section shall not affect any priority or
reservation for Scheduled Castes or Scheduled Tribes, ex-servicemen,
retrenched employees or any other class or category of persons in the matter
of recruitment to the posts in an establishment or employment.
o The title reads, no discrimination between men and women while recruiting,
but then the section talks about discrimination against women only.
o Furthermore, the provisio talks about the ‘affirmative action’ under proviso
to A.15 and it says that if a recruitment is done based on the several
reservations in place, then if there is discrimination to fulfill the reservation
needs, then its okay.
o 1976- No discrimination against women (also against men), - affirmative
action
o 2019- S. 3(2)(ii)- ground of sex – affirmative action is missing.
o Lijjat papad (all women run organization) case, can men argue based on
Section 5? Yes, because affirmative action is in place.
o Equal pay for Equal work is not a Right in itself, but deduce able from Article
14. So the grounds for G sreenivasrao and Randhir singh were WP under A.
32 claiming violation of Article 14 and used 39.

- Wages
o In Reptakos Brett Case:
o There are 3 types of wages,
 Minimum Wage- provides bare subsistence
 Fair wage – A little above subsistence (subsistence +)
 Living Wage- is at a comfort level.
 Para 9
 Living wages should be able to provide the male worker
 to provide for himself,
 Bare essentials of food/clothing and shelter
  Also frugal Comfort of education of children/protection against
ill health/ essential social deeds/ insurance against
misfortunes such as old age.
 Minimum Wages under para 11
 Not just bare subsistence but protection of efficiency of worker
 Some measure of medical/education /amenities
 4 consumption units
 Food
 Housing
 Clothing
 Fuel, lighting and other miscellaneous
 Fair wages
 More than minimum wage but less than living wage
o 13. The concept of 'minimum wage' is no longer the same as it was in 1936.
Even 1957 is way-behind. A worker's wage is no longer a contract between an
employer and an employee. It has the force of collective bargaining under the
labour laws. Each category of the wage structure has to be tested at the anvil
of social justice which is the live- fiber of our society today. Keeping in view
the socio-economic aspect of the wage structure, we are of the view that it is
necessary to add the following additional component as a guide for fixing the
minimum wage in the industry:
(vi) children education, medical requirement, minimum recreation including
festivals/ceremonies and provision for old age, marriages etc. should further
constitute 25% of the total minimum wage.
o The court did away with the term of “Bare subsistence ”
o So now, Min. Wage = Subsistence/ Fair wage= Subsistence plus/ Living
Wage= comfort level
o Under no circumstances the three categories can be at par/ be the same
o Minimum is a fundamental right under Article 23, but fair wage is not.
 o The employer cannot reduce the wages that they are paying to some worker
at a minimum wage rate, but if they are paying fair wage then, there can be
reduction.
- Case: Chandra Bhavan, but relevant here
- Case: Standard Vaccum :
o Came before In Reptakos Brett Case and the latter added one more
component to the para 20 criteria given in the former.
o The court held that These criteria will evolve with time because they are
dependent on the socio economic aspect of the society. Because
subsistence level is dynamic.

- PUDR v UOI
o The Indian govt. built a lot of roads, etc. for smooth carrying out of the Asian
Games.
o PUDR filed a WP in the SC against the Govt. based on violation of minimum
wages, child labour, etc.
o The Govt. argued that the petitioner is claiming based on statutes and
hence WP under Article 32 is not maintainable, but the court drew lines
matching the claims with the violation of the fundamental rights under the
constitution and hence said that fundamental rights includes minimum
wages.
o The work was assigned as follows,
 The Govt.  Contractors Jamdars workers
o The argument the govt. made here was that “we are not the employers”
because of the above structure.
o But, the court said that you are indeed the employer under S. 7 of the
Contract Labour (regulation and prohibition) wherein the concept of
principle employer is given.
1. The petitioners argument was that they were entitled to 9.25 rupees,
but were getting 8.25 rupees. To this the Govt. said since the payment
 is coming through the contractors and jamdars, the jamdars are
taking 1 rupee as commission. (minimum wage act)
2. Secondly the petitioner said that the women were paid only 7 rupees
(Equal Remuneration Act)
3. Basic needs such as food /water /shelter was not given so CLRA
4. and in case of Migrant workers Minimum Wage. (displacement
allowances, etc.)
5. Children were being employed, and hence violated (Employment of
Children Act)
o Only UOI accepted that the jamdars were taking 1 rupee as commission,
everyone else said that we are paying the minimum wages.
o They all said that CLRA and Sec.7 is not violated, we are taking care of it.
o To child employment, they said that there is no such violation that came to
our notice.
o The court in para 8 said that even though as claimed the employment was
not in hazardous sector hence non-violative, but it still violates article 24 of
constitution.
o The govt. said there are no rules made for argument no.4, but the court said
irrespective it’s a basic right and hence you must pay.
o Para 12 onwards- the main jurisprudence-
1. Equal Remuneration Act- violation of 14
2. CLRA/DA/Contract labour/migrant workers- violation of Article 21
3. ECA- Violation of Article 24 and arguably 21
4. Para 16- forced labour argument- Article 23- begar and other similar
forms of forced labour.
5. The court drew a presumption and said that when there is any person
who is aware that this is the minimum wage and is agreeing to work
at a lower wage, then it is always involuntary work and hence forced
labour. The reasons being fear of unemployment, financial crisis,
economic hardship, etc. Basically, under Article 23, forced labour can
be of any type.
 o Therefore, one can come to court under 32 for violation of 23.
- Bijay Cotton Mills Case:
o Bijay Cotton mills argued that, minimum wage requirement violates the right
of both workers and employers because what if someone is agreeing to work
at a lower rate than minimum wages, under 19 (1)g
o Secondly, they said that its oppressive for people who can’t pay minimum
wages because of economic conditions
o The court said no, it does not violate any rights because from PUDR we
know that minimum wages is a right and working under a rate lower than
that is forced labour. Furthermore, if you can’t pay minimum wages then,
do not run your business.
o Bijay cotton mills also argued that the power vested in the appropriate govt.
is too much and no checks exist- but to this the court said that there is no
unfettered power because they are subject to committees etc. under the
Minimum wages Act.
- Chandra Bhavan Case-
o The govt. has too much power, the court said that they don’t because there is
a process in order to hear the industries for their concerns- this was with
regards to notification method.
o The industries are also heard and natural justice is followed.

- Minimum Wages can never fall below Floor Wage*

- Ameerbi Case-
o The question was, whether Anganwadi workers are allowed to contest
election? Was anganwadi worker in an employer-employee relationship with
the govt. and was it a civil post?
o These workers are not hired on PayScale but are paid and honorarium
o The court said that these workers get honorarium and not wages, they are
not a civil post, they don’t do any state function, etc.
o No reference minimum wage act can be made here.
 o Basically, the court is saying that this is volunteer work and it is not a civil
post.
- Wellmen India Case
o Bonus Scheme under S. 2(22) of the ESIC Act
o The question was, whether the bonus scheme will be a part of the wages?
o The court said that this bonus has become a part of the contract and hence
would then be a part of wages- since now it’s a payment for fulfillment of
contract
o So for the part 1 of the argument is fulfilled
o Part-2 any other remuneration in addition to the payment for fulfilling the
contract, such as housing/ etc. would also be part of wages.
o Basically its wages under the ESIC Act because it is now a part of the contract.
- IMPORTANT CASES for WAGES- TS KELAWALA.*- Justice Sawant went against his
own judgment in TS Kelawala in Umesh Nayak.

- Prevention Of Sexual Harassment At Work Place

o Case: Vishakha v State of Rajasthan
o The POSH Act: Definition
1. Aggrieved Woman- Includes both, organized and un-organized sector.
Employment is not key- as the definition reads, employed or not- Read
the handbook definition and the diagram.
2. Employee- very wide definition- includes everyone
3. Workplace- again the definition is very inclusive and wide.
o The Kerala HC recently said that its not the intent of the perpetrator, but the
perception of the victim that should decide/matters.

- Payment of BONUS
o Payment of Bonus Act, 1965 (Unorganized Sector is not covered in the Act)
1. Bonus is appreciation for doing a good job
2. Incentive
o Muir Mills Case- (Came before the Act of 1965)- Para 7
1. Recognized that bonus is an incentive,
2. Way of sharing profit
3. Ex gratia payment
4. Attendance bonus case, etc.
o It also laid down methods of profit based bonus and payment of Bonus.
o Method for Computation (of bonus)
1. Gross Profits- Deductions (the Ebidta)
2. This gives you an available surplus, not whole amount of surplus is
used for computation, but an amount called the ‘allocable surplus’-
which for banking companies is 60% of the available surplus and
others it is 67%
3. Minimum- Maximum Bonus- Minimum is 8.33%, i.e. to say that even
if there is no profit, even then minimum of 8.33% of the salary or 100
rupees whichever is higher needs to be paid- Section 10
4. Maximum Bonus cannot be higher than 20% of salary, and if there is
more/extra allocable profit after that, then that is set off in the
subsequent year.
o Eligibility for Bonus- Section 8- An employee who has worked not less than
30 days in the last year.
o Disqualification from Bonus- Section 9
o Case: The Mumbai Kamgar Sabha, Bombay v Abdulbhai Faizullabhai and
Ors.
1. Here bonus was paid before the Act as a custom, but after the Act
they stopped claiming that the Act is based on profit based bonus.
o Justice Krishna Iyer said, Does that mean all other types of bonus do not
exist? NO, Section 17(a) provides for adjustments of customary bonus and
hence recognize it, so you cannot say that the Act does not recognize
customary bonus/ any other bonus and hence it may not be paid. Although
the Act is conceptualized on profit based bonus, but it doesn’t disregard
Customary bonus and other forms of bonus.
 o He further said that you need to look at the Act for profit based bonus, but
you need not look at it for customary bonus as it doesn’t lay it out
explicitly, but it also doesn’t completely rule it out.
o The limit of 20 people doesn’t exist beyond the purview of the Act and hence
in the current case, since we are dealing with customary bonus (this applies
to all other types of bonus, except profit based bonus), the 20 people limit
doesn’t apply, it only applies to profit based bonus.
- Can we then say that bonus is a statutory right?- this is the reading ma’am has of the
statute.

PAPER PATTERN
Hypotheticals + Theory questions
Read the questions very thoroughly- especially facts

Revision
Bangalore Water Supply jurisprudence- para 162/163- Very important- the triple test

Severability test under Bangalore Water supply- The Tirupati temple- prasad making
business- then prasad making business is industry and not the spiritual need fulfilling

Sovereign test

Don’t forget the 1982 amendment- it changed Bangalore Water Supply

Definition of workemen-
Adhyanta case, etc. the falling within the categories.
Exception- supervisory capacity, etc.
Test of employments-
Hussain bhai case- lifting the veil
DC Dewan- An application of Hussain Bhai

Industrial Disputes-
Dharampal-Premchand case-
When there is espousal by a sufficient people or a trade union then it’s an industrial dispute
Dhimakichu tea case- community interest
Hindu-Journalists case
For every other dispute- direct and substantial interest and community interest needs to be
established.

Appropriate govt.

Strike/Retrenchment/Lay off(apply the concept of ejusdem generis- understanding the word

in the context of its purpose, etc.)/Wages

Lockouts-
Lockout is “NO PAY”
Wages are given when Lock out is illegal and unjustified
However, if there is a Strike or lockout in response to an illegal lockout/strike will not be an
illegal strike or lockout.

Closure.

Retrenchment- “Any reason whatsoever” was interpreted.

Exceptions to retrenchment-

Trade Union
Who can form who cannot
registration
Recognition of TU- Establishment of majority
Name is similar then registration of TU can be withheld or challenged
Binding nature of the Recognized TU
Recognized TU’s decision binds everyone irrespective of membership
Termination of membership
No Immunity for Gherao
Recognition- first statute recognizing it- IRC

WAGES-
Equal Remuneration
Equal Pay for Equal Work
Affirmative Action
Beyond the Act- Cases for Equal Pay for Equal Work- Randhir Singh/ G Sreenivasa Rao, etc.
Equal Pay for Equal Work is a corollary to Article 14.

Minimum Wage- Fair Wage- Living Wage

All are relative to a change in Minimum Wage will change others too.
Minimum Wage is a fundamental right
If someone is paid lower than that, then it is forced labor and violative of Article 23.

Bonus-
Muir Mills Case- Calculation of Bonus + Allocable Surplus, etc.

POSH Act.
Definition of Aggrieved Women- very wide
Definition of employee is wide
Definition of Workplace is also very wide