Académique Documents
Professionnel Documents
Culture Documents
CASE EXAMPLE In the case of Workmen of Dimakuchi Tea Es a e !s" Dimakuchi Tea Es a e , AI# 19$% &' ($(, the &upreme 'ourt laid down following ob"ectives of the Act) ## *romotion of measures of securing and preserving amity and good relations between the employer and wor men! Investigation and settlement of industrial disputes between employers and employers, employers and wor men, or wor men and wor men with a right of representation by registered trade union or federation of trade unions or an association of employers or a federation of associations of employers! ## *revention of illegal stri es and loc outs! ## #elief to wor men in the matter of lay+off and retrenchment ! ## *romotion of collective bargaining!
10
free medical centre or ashramites wor ing at the bidding of the holiness, divinity or li e central personality and the services are supplied fee or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then the institution is not an industry even if stray servants, manual or technical, are hired! &uch underta ings alone are other generosity compassion, developmental compassion or pro"ect!
Section 2(j) - as Amended by Amendment Act 1992 [date of effect is yet to be notified]
In view of the &upreme 'ourt decision in 'an(a)ore Wa er Su**)+ case, the definition of 8Industry8 is proposed to be elaborated! The amendments may be noted!
An 3industrial dispute3 means any dispute or difference between employers and employers, or between employers and wor men, or between wor men and wor men, which is connected with the employment or non+ employment or the terms and conditions of employment of any persons! -&ec ./ 01!
CASE EXAMPLE An industrial dispute has three ingredients, vi9/a0 there should be real and substantial dispute or difference: /b0 the dispute or difference must be between employers and or wor men: /c0 the dispute or difference must be connected with /i0 the employment or non+employment or /ii0 terms of employment, or /iii0 with the conditions of labour of any person!-S an%ar% !acuum Refinin( Co of In%ia L % !s" Their Workmen /19;<0 AI# &' 94%1 =nless there is a demand by the wor men and that demand is not complied with by the management, there cannot be any industrial dispute within the meaning of &ection ./ 0! >ere participation by the employer in the conciliation proceedings will not be sufficient -WS Insu)a ors of In%ia L % !s" In%us ria) Tri-una)$ .a%ras 1977+II ?abour ?aw @ournal ..$1 'ertain individual disputes relating to dismissal, discharge, retrenchment or termination of services of a wor man, are also covered under this Act, since the Act applies even to industrial establishments employing a single wor man) Aut dispute in relation to a person who is not a 3wor man3 within the meaning of the Act is not an industrial dispute under &ection ./ 0 -Workmen of Dimakuchi Tea Es a e !s" Dimakuchi Tea Es a e, AI# 19$% &' ($(1!
CASE EXAMPLE Stri&e ' a (ea$on of co""ecti)e bar*ainin* &tri e can ta e place only when there is a cessation of wor or refusal to wor by the wor men acting in combination or in a concerted manner! Time factor or duration or purpose of the stri e is immaterial! It is enough if the cessation of wor is in defiance of the employerEs authority! A concerted refusal or a refusal under a common understanding of any number of persons to continue to wor or to accept employment will amount to a stri e! A general stri e is one when there is a concert of combination of wor ers stopping or refusing to resume wor ! Foing on mass casual leave under a common understanding amounts to a stri e! 7owever, the refusal by wor men should be in respect of normal lawful wor , which the wor men are under an obligation to do! #efusal to do wor which the employer has no right to as for performance, such a refusal does not constitute a stri e -Nor h-rooke /u e Co" L % !s" Their Workmen$ AI# 19;< &c %791! If on the sudden death of a fellow+wor er, the wor men acting in concert refuse to resume wor , it amounts to stri e - Na iona) Te0 i)e Workers1 Union !s" Shree .eenakshi .i))s /19$10 II ??@ $1;1
Ty$es of stri&e
(i)+ Stay-in, sit do(n, $en do(n or too" do(n stri&e (ii)+ -o-s"o(
11
(iii)+ .un*er Stri&e (i))+ Wor&-to-ru"e ())+ Sym$at etic stri&e W en stri&e and "oc&out bot are i""e*a" - `Doctrine of apportionment of blame8
In .arine Ser&ice P& " L % !s" Their Workman AI# 19;( &' $.%, the &upreme 'ourt evolved the 8Doctrine of apportionment of blame8! According to this doctrine, when the wor men and the management are e2ually to be blamed, the 'ourt normally awards half of the wages! The &upreme 'ourt in several cases followed this doctrine!
CASE E3A.PLE The &upreme 'ourt in the case of 5or men of Su-on( Tea Es a e !s" Su-on( Tea Es a e /19;40 1 ??@ (((, laid down following principles with regard to retrenchment) + The management can retrench is employees only for proper reasons, which means that it must not be actuated by any motive of victimi9ation or any unfair labour practice! It is for the management to decide the strength of its labour force, and the number of wor men re2uired to carry out efficiently the wor in his industrial underta ing must always be left to be determined by the management in its discretion!
18
If the number of employees e,ceeds the reasonable and legitimate needs of the underta ing, it is open to the management to retrench them! 5or men may become surplus on the ground of rationali9ation or on the group of economy reasonably and bona fide adopted by the management or of other industrial or trade reasons!
`'losure`[Section 2 (cc)]
(ribunals (Section )%) A$$ro$riate *o)ernment may notify constitution of Industria" Tribuna"
19
The appropriate government may notify constitution of one or more Industrial Tribunals! A @udge of a 7igh 'ourt or District "udge or an Additional District @udge with three years e,perience as such shall be 2ualified for appointment as the *residing Hfficer! 7e shall be an independent person and not more than ;$ years of age!
*ational (ribunals (Section )+) 0entra" -o)ernment may notify constitution of 2ationa" Tribuna"
The 'entral Fovernment may, constitute one or more Cational Industrial Tribunals! It shall consist of one person only to be appointed by the 'entral Fovernment! The *residing Hfficer shall be 2ualified for appointment as the presiding officer of a Cational Tribunal unless he is, or has been, a @udge of a 7igh 'ourt!
REFERENCE OF DISPUTES TO BOARDS% COURTS OR TRIBUNALS 3eference of dis$utes to 4oards, courts or Tribuna"s ' by a$$ro$riate *o)ernment in (ritin* (Section 15)
5here the appropriate government is of opinion that any industrial dispute e,ists or is apprehended, it may at any time, by order in writing+ (a) refer the dispute to a $oard for promoting a settlement thereof* or (b) refer to a court for in&uiry* or (c) refer to a 'abour "ourt (d) refer to a +ribunal
1:
The court shall in2uire into the matters referred to it and report thereon to the appropriate government ordinarily within a period of si, months from the commencement of its in2uiry /&ection 140! Burther, the Ad"udicating authority shall hold its proceedings e,peditiously and shall submit its award to the appropriate government, within the specified period in the order referring such industrial dispute or the further e,tended period as may be fi,ed by the concerned authority! /&ection 1$0 The 'entral or &tate Fovernment shall ma e a reference under this section where the dispute relates to a public utility service and a notice of &tri e or ?oc +out /section ..0 has been given!
3eference by State or 0entra" -o)ernment ( en notice of Stri&e or /oc&-out *i)en ' $ub"ic uti"ity ser)ices
3eference by 0entra" -o)ernment of industria" dis$ute of nationa" im$ortance or affectin* more t an one state - to 2ationa" Tribuna"
5here the 'entral Fovernment is of opinion that any industrial dispute e,ists or is apprehended an% the dispute involves any 2uestion of national importance or is of such a nature that industrial establishments situated in more than one &tate are li ely to be interested in, or affected by such dispute, an% that the dispute should be ad"udicated by a Cational Tribunal! Thereupon, the 'entral Fovernment may, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant thereto, to a Cational Tribunal for ad"udication! &uch may relate to any matter specified in the IInd &chedule or IIIrd &chedule! The persons representing the ma"ority of each party to an industrial dispute may apply in the prescribed manner, whether "ointly or separately, for a reference of the dispute to a Aoard, court, ?abour 'ourt, Tribunal or Cational Tribunal! The appropriate government, if satisfied, shall ma e the reference accordingly! An order referring an industrial dispute to a ?abour 'ourt, Tribunal or Cational Tribunal shall specify the period within which it shall submit its award on such dispute to the appropriate government 5here such industrial dispute is connected with an individual wor man + period shall be three months! The parties to an industrial dispute may apply in the prescribed manner, whether "ointly or separately, to the ?abour 'ourt, Tribunal or Cational Tribunal for e,tension of such period or for any other reason! This period may however, be e,tended by the presiding officer, for reasons to be recorded in writing as considers necessary or e,pedient to e,tend such period, Co proceedings before a ?abour 'ourt, Tribunal or Cational Tribunal shall lapse merely on the ground that any period specified under this sub+section had e,pired without such proceedings being completed! 5here an industrial dispute has been referred to a Aoard, ?abour 'ourt, Tribunal or Cational Tribunal, the appropriate Fovernment may by order prohibit the continuance of any stri e or loc +out in connection with such dispute which may be in e,istence on the date of the reference! The appropriate government in an order referring an industrial dispute to a ?abour 'ourt, Tribunal or Cational Tribunal or in a subse2uent order may specify the points of dispute for its ad"udication! Co proceedings pending before a ?abour 'ourt, Tribunal or Cational 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 wor man, and such ?abour 'ourt, Tribunal or Cational Tribunal shall complete such proceedings and submit its award to the appropriate government
,oluntary %rbitration (Section -. %) 9m$"oyer and Wor&man may refer t e dis$ute to Arbitration
Aefore an industrial dispute is referred to a ?abour 'ourt or Tribunal or Cational Tribunal, the employer and the wor men may refer the dispute to arbitration of any person or persons of their choice, by means of a written arbitration agreement! A copy of the arbitration agreement, signed by representatives of both the parties representing ma"ority of each party should be forwarded to the Fovernment and the conciliation officer! 5ithin one month from the date of the receipt of such receipt of such copy, publish the same in the Hfficial Fa9ette!
1;
The arbitrator/s0 shall investigate who shall within one month of the receipt thereof, publish the same in into the dispute and submit the arbitrator award to the government, the Hfficial Fa9ette!
PROCEDURE% PO&ERS AND DUTIES OF AUTHORITIES Adjudicatin* aut orities may $rescribe $rocedures
An arbitrator, a Aoard, court, ?abour 'ourt, Tribunal or Cational Tribunal shall follow such prescribed rules besides the procedure as the arbitrator or other authority concerned may thin fit! A conciliation officer or a member of a board or court or the presiding officer of a ?abour 'ourt, Tribunal or Cational Tribunal may for the purpose of in2uiry into any e,isting or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates! Gvery in2uiry or investigation by a Aoard, court, ?abour 'ourt, Tribunal or Cational Tribunal, shall be deemed to be a "udicial proceeding within the meaning of sections 19( and ..% of the Indian *enal 'ode! Gvery Aoard, court, ?abour 'ourt, Tribunal and Cational Tribunal shall have the same powers as are vested in a 'ivil 'ourt under the 'ode of 'ivil *rocedure, 19<%, when trying a suit, in respect of the following matters, namely)+ /a0 enforcing the attendance of any person and e,amining him on oath: /b0 compelling the production of documents and material ob"ects: /c0 issuing commissions for the e,amination of witnesses: /d0 in respect of such other matters as may be prescribed, A court, ?abour 'ourt, Tribunal or Cational Tribunal may, if it so thin s fit, appoint one or more persons having special nowledge of the matter under consideration as an assessor or assessors to advise it in the proceeding before it! &uch costs may, on application made to the appropriate government by the person entitled, be recovered by that government in the same manner as an arrear of land revenue!
/o&ers of
abour 'ourt (ribunal0 and *ational (ribunal to 1i2e appropriate relief in case of disc#ar1e or dismissal of &orkmen (Section --%)
5here an industrial dispute relating to the discharge or dismissal of a wor man has been referred to a ?abour 'ourt, Tribunal or Cational Tribunal for ad"udication and, in the course of the ad"udication proceedings, it is satisfied that the order of discharge or dismissal was not "ustified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the wor man on such terms and conditions, if any, as it thin s fit, or give such other relief to the wor man including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may re2uire!
'ommencement of t#e a&ard (Section -%) A(ard becomes enforceab"e after ;5 days< of $ub"ication
An award /including an arbitration award0 shall become enforceable on the e,piry of thirty days from the date of its publication! The 'entral Fovernment may, by notification in the Hfficial Fa9ette, declare that the award shall not become enforceable on the e,piry of the said period of thirty days!
In $ub"ic interest 0entra" -o)t+ may notify ' t e A(ard not enforceab"e 7rder rejectin* A(ard by A$$ro$riate=0entra" -o)t+ ' to be "aid before .ouse (it in 95 days<
1<
The appropriate government or the 'entral Fovernment may, within ninety days from the date of publication of the award ma e an order re"ecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the ?egislature of the &tate! &uch award shall become enforceable on the e,piry of fifteen days from the date on which it is so laid! 5here no re"ection order is made, the award shall become enforceable on the e,piry of the period of ninety days from the date is it so laid!
/ayment of full &a1es to &orkman pendin1 proceedin1s in #i1#er courts (Section -+) Wor&man not em$"oyed in any estab"is ment and fi"es an affida)it
5here in any case, a ?abour 'ourt, Tribunal or Cational Tribunal by its award directs reinstatement of any wor man and the employer prefers any proceedings against such award in a 7igh 'ourt or the &upreme 'ourt, the employer shall be liable to pay such wor man, during the period of pendency of such proceedings in the 7igh 'ourt or the &upreme 'ourt, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the wor man had not been employed in any establishment during such period and an affidavit by such wor man had been filed to that effect in such court!
/ersons on &#om settlements and a&ards are bindin1 (Section -5) Sett"ement sacrosanct
A settlement arrived at by agreement between the employer and wor man shall be binding on the parties to the agreement! This is enforceable and shall be binding on+ /a0 all parties to the industrial dispute: /b0 all other parties summoned to appear in the proceedings as parties to the dispute,: /c0 an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates: /d0 all persons who were employed in the establishment or part of the establishment!, to which the dispute relates on the date of the dispute and all persons who subse2uently become employed in that establishment or part!
/eriod of operation of settlements and a&ards (Section -6) Sett"ement to become o$eration from
A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute! An award shall, sub"ect to the provisions of this section, remain in operation for a period of one year or may be further e,tended so that total period of operation of the award does not e,ceed three years from the date of operation! 5here the appropriate government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate government may refer the award or part of it to a ?abour 'ourt, or Tribunal or to Cational Tribunal, as the case may be, for decision whether the period of operation should not, by reason of such change, be shortened and the decision of ?abour 'ourt or the Tribunal, shall be final! The award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award! The Cotice under this &ection is re2uired to be given by a party representing the ma"ority of persons bound by the settlement or award, as the case may be!
>a"idity $eriod of A(ard ' one year6 A$$ro$riate -o)ernment may e1tend u$ to ma1+ ; years
7n materia" c an*es in circumstances a$$ro$riate *o)t+ may refer to t e A(ard 0ourt or Tribuna"
1=
*roceedings before an arbitrator or before a ?abour 'ourt, Tribunal or Cational Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or ad"udication, as the case maybe, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under section If any information is obtained by a 'onciliation Hfficer, Aoard, 'ourt, ?abour 'ourt, Tribunal, Cational Tribunal or an arbitrator, in the course of any investigation or in2uiry as to a trade union or as to any individual business /whether carried on by a person, firm or company0 2hich is no a&ai)a-)e o her2ise han hrou(h he e&i%ence (i&en -efore such officer$ 'oar%$ cour $ La-our Cour $ Tri-una)$ Na iona) Tri-una) or ar-i ra or
1?
ay!off
An employee is said to have been laid+off on any day, if the employer fails, refuses or is unable to provide him employment on that day within two hours of his presenting himself for wor at the normal appointed time, on account of shortage of coal, power or raw materials, or accumulation of stoc s or brea +down of machinery or natural calamity or for any such other reason!
*otice of ay!off
The employer is re2uired to give a notice of layoff of wor ers in Borm <+1 within 7 days of such layoff! Cotice of withdrawal of lay+off is also to be given in Borm <+., within 7 days of such withdrawal!
1,
5here any wor men are retrenched, shall be given preference for re+employment!
EMPLO+EE
5'LIBATI5NS /10 To assist and co+operate with the conciliation officer6board, arbitrator and other authorities, in resolving any industrial dispute! /.0 Cot to participate in, support or finance an illegal stri e! /(0 To abide by all agreements, settlements and awards! /40 Cot to indulge in unfair labour practices!
RIBHTS /10 #ight to be informed by means of a notice, before any change is made in the service conditions, or before loc +out, lay+off, retrenchment or closure of the underta ing! /.0 #ight to receive compensation for lay+oft, retrenchment or closure! /(0 #ight to recover any legal dues! /40 #ight to be represented by an officer of a registered trade union or any other wor man, in relation to any industrial dispute! /$0 #ight to appeal against an award of the labour 'ourt or Industrial Tribunal.
80