Answers to IMPORTANT QUESTIONS ON LABOUR LAW

Q.1 What is industrial disputes?

Unique Page 11 to 13

How industrial disputes will be resolved as per Industrial Disputes Act 1947.
Explain in detail.
Ans on FB pagehttps://www.facebook.com/LLBNOTESFIRSTYEARRELIABLE/
Also See Unique Page 43-44 and Pages 38-40
Whether Individual disputes can be treated as industrial dispute?.Explain in detail.
Ans:Unique Page No.14
Q.2 Sec-11 A of Industrial Disputes Act gives discretionary power to labour court, Industrial
tribunal, and National tribunal to give appropriate relief to discharged or dismissed workmen.
Explain in detail.
Ans;On FB Pagehttps://www.facebook.com/LLBNOTESFIRSTYEARRELIABLE/
Q.3 What is lock out? Whether a notice is necessary before declaring lock out? If so under what
circumstances a notice can be dispensed with? what are the consequences of illegal lockout?
Illustrate your answer.
Ans:See Unique Page No.33-35
Q.4 what is the jurisdiction of labour court under Industrial Disputes Act? Also mention its
power and duties.
Ans:Page 51 -54of Unique
Q.5 Discuss the object and scope of Industrial Disputes Act.
ansUnique Page 15-18
Explain the various authorities under the act with special reference to settlement of Industrial
dispute.Unique Page 43-44
Q.6 What do you mean by "Industry". Do hospital, university, education institution and other
organization come within this definition of Industry. Explain your answer with decided case
laws.
Ans;On Our FB Pagehttps://www.facebook.com/LLBNOTESFIRSTYEARRELIABLE/
Q.7 What is strike? Whether a notice is necessary before declaring strike? When a strike
becomes illegal? Explain the provision regarding imposing of penalty on a parties to illegal
strike.
Ans:Unique Pages 33-35
Q.8 what do you understand by "Retrenchment". Explain the provision regarding procedure of
retrenchment. Discuss the relief provided under the Act to a Retrenched person.
Ans:Unique page 65-68.See also page 103-106
Q.9 What is trade union? what is the mode of registration of trade union and under what
circumstances a certificate of registration of trade union may be withdrawn or cancelled by
Registrar?
Ans:Unique Pages 76-81
Q.10 Discuss the Rights and immunities available to a registered trade union under the trade
union Act-1926.
Ans:Unique Pages 82-87
Q.11 Discuss the qualification and disqualification of office bearer and members of trade union,
can a minor be a member of trade union ?If yes under which provision. Is it necessary for office
bearer to be connected with Industry?
Ans:Unique 87-89
Q.12 Write a short note on the followings -
1. Difference between strike and lock-out.-Unique-page 40
2. Kinds of strike.-Our FB pagehttps://www.facebook.com/LLBNOTESFIRSTYEARRELIABLE/
3. Difference between retrenchment and lay-off.-Unique Page 42
4. Closure.-Unique Page 25 and 111
5. Amalgamation of Trade union –Unique Page 97
6. Change of Name of Trade union-Unique Page 85 and 97
7. Procedure of Dissolution of Trade union-Unique Page 98
8. Award.-Page 25 Unique
9. Employer.-Unique Page 26
Question:How industrial disputes will be resolved as per Industrial Disputes Act 1947
Ans:Methods for Settlement of Industrial Disputes
The three methods for settlement of industrial disputes are as follows:
1. Conciliation
2. Arbitration
3. Adjudication.
Failure of the employees and the employers to sort out their differences bilaterally leads to the
emergence of industrial disputes. The Industrial Disputes Act, 1947 provides legalistic
machinery for settlement of such disputes by involving the interference of a third party.
The settlement machinery as provided by the Act consists of the three methods:
1. Conciliation
2. Arbitration
3. Adjudication
These are discussed one by one.
1. Conciliation:
In simple sense, conciliation means reconciliation of differences between persons. Conciliation
refers to the process by which representatives of workers and employers are brought together
before a third party with a view to persuading them to arrive at an agreement by mutual
discussion between them. The alternative name which is used for conciliation is mediation. The
third party may be one individual or a group of people.
In view of its objective to settle disputes as quickly as possible, conciliation is characterised by
the following features:
(i) The conciliator or mediator tries to remove the difference between the parties.
(ii) He/she persuades the parties to think over the matter with a problem-solving approach, i.e.,
with a give and take approach.
(iii) He/she only persuades the disputants to reach a solution and never imposes his/her own
viewpoint.
(iv) The conciliator may change his approach from case to case as he/she finds fit depending on
other factors.
According to the Industrial Disputes Act 1947, the conciliation machinery in India consists of the
following:
1. Conciliation Officer
2. Board of Conciliation
3. Court of Enquiry
A brief description of each of these follows:
Conciliation Officer:
The Industrial Disputes Act, 1947, under its Section 4, provides for the appropriate government
to appoint such number of persons as it thinks fit to be conciliation officers. Here, the
appropriate government means one in whose jurisdiction the disputes fall.
While the Com¬missioner /additional commissioner/deputy commissioner is appointed as
conciliation officer for undertakings employing 20 or more persons, at the State level, officers
from central Labour Commission office are appointed as conciliation officers, in the case of
Central government. The conciliation officer enjoys the powers of a civil court. He is expected to
give judgment within 14 days of the commencement of the conciliation proceedings. The
judgement given by him is binding on the parties to the dispute.
Board of Conciliation:
In case the conciliation officer fails to resolve the dispute between the disputants, under Section
5 of the Industrial Disputes Act, 1947, the appropriate government can appoint a Board of
Conciliation. Thus, the Board of Conciliation is not a permanent institution like conciliation
officer. It is an adhoc body consisting of a chairman and two or four other members nominated
in equal numbers by the parties to the dispute.
The Board enjoys the powers of civil court. The Board admits disputes only referred to it by the
government. It follows the same conciliation proceedings as is followed by the conciliation
officer. The Board is expected to give its judgment within two months of the date on which the
dispute was referred to it.
In India, appointment of the Board of Conciliation is rare for the settlement of disputes. In
practice, settling disputes through a conciliation officer is more common and flexible.
2. Arbitration:
Arbitration is a process in which the conflicting parties agree to refer their dispute to a neutral
third party known as ‘Arbitrator’. Arbitration differs from conciliation in the sense that in
arbitration the arbitrator gives his judgment on a dispute while in conciliation, the conciliator
disputing parties to reach at a decision.
The arbitrator does not enjoy any judicial powers. The arbitrator listens to the view points of the
conflicting parties and then gives his decision which is binding on all the parties. The judgment
on the dispute is sent to the government. The government publishes the judgment within 30
days of its submission and the same becomes enforceable after 30 days of its publication.
In India, there are two types of arbitration:
Voluntary and Compulsory.
Voluntary Arbitration:
In voluntary arbitration both the conflicting parties appoint a neutral third party as arbitrator.
The arbitrator acts only when the dispute is referred to him/her. With a view to promote
voluntary arbitration, the Government of India has constituted a tripartite National Arbitration
Promotion Board in July 1987, consisting of representatives of employees (trade employers and
the Government. However, the voluntary arbitration could not be successful because the
judgments given by it are not binding on the disputants. Yes, moral binding is exception to it.
Compulsory Arbitration:
In compulsory arbitration, the government can force the disputing parties to go for compulsory
arbitration. In other form, both the disputing parties can request the government to refer their
dispute for arbitration. The judgment given by the arbitrator is binding on the parties of dispute.
3. Adjudication:
The ultimate legal remedy for the settlement of an unresolved dispute is its reference to
adjudica-tion by the government. The government can refer the dispute to adjudication with or
without the consent of the disputing parties. When the dispute is referred to adjudication with
the consent of the disputing parties, it is called ‘voluntary adjudication.’ When the government
herself refers the dis¬pute to adjudication without consulting the concerned parties, it is known
as ‘compulsory adjudication.
The Industrial Disputes Act, 1947 provides three-tier machinery for the adjudication of industrial
disputes:
1. Labour Court
2. Industrial Tribunal
3. National Tribunal
A brief description on these follows:
Labour Court:
Under Section 7 of the Industrial Disputes Act, 1947, the appropriate Government by notifying
in the official Gazette, may constitute Labour Court for adjudication of the industrial disputes
The labour court consists of one independent person who is the presiding officer or has been a
judge of a High Court, or has been a district judge or additional district judge for not less than 3
years, or has been a presiding officer of a labour court for not less than 5 years. The labour
court deals with the matters specified in the second schedule of the Industrial Disputes Act,
1947.
These relate to:
1. The properiety or legality of an employer to pass an order under the standing orders.
2. The application and interpretation of standing orders.
3. Discharge or dismissal of workers including reinstatement or grant of relief to workmen
wrongfully dismissed.
4. Withdrawal of any statutory concession or privilege.
5. Illegality or otherwise of a strike or lockout.
6. All matters other than those reserved for industrial tribunals.
Industrial Tribunal:
Under Section 7A of the Act, the appropriate Government may constitute one or more
Industrial tribunals for the adjudication of industrial disputes. Compared to labour court,
industrial tribunals have a wider jurisdiction. An industrial tribunal is also constituted for a
limited period for a particular dispute on an adhoc basis.
The matters that come within the jurisdiction of an industrial tribunal include the following:
1. Wages, including the period and mode of payment.
2. Compensatory and other allowances.
3. Hours of work and rest periods.
4. Leave with wages and holidays.
5. Bonus, profit sharing, provident fund, and gratuity.
6. Classification by grades.
7. Rules of discipline.
8. Rationalisation.
9. Retrenchment of employees and closure of an establishment or undertaking.
10. Any other matter that can be prescribed.
National Tribunal:
This is the third one man adjudicatory body appointed by the Central Govern¬ment by
notification in the Official Gazette for the adjudication of industrial disputes of national
importance. The central Government may, if it thinks fit, appoint two persons as assessors to
advise the National Tribunal. When a national tribunal has been referred to, no labour court or
industrial tribunal shall have any jurisdiction to adjudicate upon such matter.
The main highlights revealed are gleaned as follows:
1. That referring of disputes conciliation machinery is a common practice is well indicated by a
large number of disputes taken for conciliation.
2. On average, around one-third of the disputes referred for conciliation failed. Of these, about
60 to 90 per cent of cases were referred to adjudication. Only one per cent of the cases were
referred for arbitration. These underline the ineffectiveness of conciliation machinery in settling
industrial disputes. Thus, the existing machinery for the settlement of industrial disputes, as
provided under the Industrial Disputes Act, 1947, needs to be strengthened.
3. Adjudication has proved the most popular way of settling industrial disputes in India. This is
because adjudication is the last recourse for disputing parties to settle their disputes.
Here it is noteworthy that the data given in the Table 25.7 is incomplete in the sense that in no
year did all the States and Union Territories send all the information. For example in some years
as many as 12 States and Union Territories did not furnish information to the Union Ministry of
labour, as can be verified from the latter’s annual reports for the years decrease in the number
of disputes taken for conciliation from 47,788 in 19801 in 981 is explained by the same reason,
i.e. non-furnishment of information on dispute conciliation by all States and Union Territories.
Finally, following are a few suggestions to make the settlement machinery more effective:
1. The trained and experienced officers who are well acquainted with the problems of industrial
workers should be entrusted with the responsibility of dealing with conciliation machinery
Political and administrative interference should not be allowed to cloud the functioning of
conciliation machinery.
2. One way to strengthen the adjudication machinery is to substitute it by setting up Industrial
Relations Commissions (IRCs), both at the Central and the State level, on the lines suggested by
the National Commission on Labour. The IRC should also be empowered to oversee the working
of the conciliation machinery.
3. In order to make arbitration fair, the arbitrator chosen for settling disputes be mutually
acceptable to both the union and the management. This can be facilitated if the government
prepares the panel of experienced arbitrators at the national and the state levels so that
arbitrators are chosen from the panel, as and when required.
4. The government should refrain from actively intervening in the matters of industrial disputes
unless it is must for her to intervene in the disputes.
Source:http://www.yourarticlelibrary.com/…/3-methods-for-se…/35436/
The objects and characteristics of Industrial Disputes Act, 1947.
Objects of Passing the Industrial Dispute Act, 1947-
1. To harmonise the relations between the employer and employees.
2. To restore and maintain industrial peace.
3. Provide effective machinery for settlement of industrial dispute.
4. Compensation to prohibit and restrict strikes and lock outs.
5. To provide retrenchment compensation to retrenched employees.
6. To provide certain rules regarding lay off.
Characteristics of Industrial Dispute Act, 1947-
1. Any industrial dispute may be referred to an industrial tribunal by an agreement of parties to
the dispute or by the State Government if it deems it expedient so to do.
2. An award shall be binding on both the parties to the dispute for the specified period not
exceeding one year. It shall be normally enforced by the Government.
3. Strike and lock-outs are prohibited---
(1) During the pendency of conciliation and adjudication proceedings;
(2) During the pendency of settlements reached in the course of conciliation proceedings;
(3) During the pendency of awards of Industrial Tribunal declared binding by the appropriate
Government.
4. In public interest or emergency the appropriate Government has power to declare the
transport (other than railways), coal, cotton textiles, food stuffs and iron and steel industries to
be a public utility service for the purposes of this Act, for a maximum period of six months.
5. In case of lay off or retrenchment of workmen the employer is required to pay compensation
to them.
6. Provision has also been made for payment of compensation to workmen in case of transfer or
closure of an undertaking.
7. A number of authorities such as, Works Committee, Conciliation Officers, Board of
Conciliation, Courts of Inquiry, Labour Courts, Tribunal and National Tribunal are provided
provided for settlement of industrial disputes.
8. The nature of powers, functions and duties of these authorities differ from each other but
each one of them plays an important role in ensuring industrial disputes and industrial peace.
Synopsis-Labour Law
Q. Explain the following terms under the Industries Disputes Act, 1947.
(i) Average pay ---
Ans. According to Section 2 (a), ‘Average Pay’ means the average of the wages payable to
workman-
(1) In the case of a monthly paid workman, in the three complete calendar months,
(2) In the case of a weekly paid workman, in the four complete weeks,
(3) In the case of daily paid workman, in the twelve full working days.
(ii) Conciliation Proceeding ---
Ans. According to Section 2 (e), ‘ Conciliation Proceeding’ means any proceeding held by a
conciliation officer or Board under this Act.
(iii) Employer ---
Ans. The head of the department or the chief executive officer of an authority.
(iv) Independent Person ---
Ans. A person is deemed to be independent with reference to his appointment, when he is
appointed the presiding officer, of a Board, Court or Tribunal or as a member.
(v) Public Utility Service ---
Ans. According to Section 2 (n), ‘Public Utility Service’ means ---
(1) Any railway service, or any transport service, for the carriage of passengers or goods by air,
(2) Any service in or in connection with the working of any major port or dock,
(3) Any section of industrial establishment on working of which the safety of the establishment
or the workmen employed therein depends,
(4) Any postal, telegraph or telephone service,
(5) An industry which supplies power, light or water to the public,
(6) Any system of public conservancy or sanitation.
(vi) Industrial Establishment or undertaking ---
Ans. This term means an establishment or undertaking in which any industry is carried on. But if
several activities are on union establishment, any one or some of such activities are , an
industry, then---
(1) If any unit of such establishment or undertaking carrying on any activity, being an industry is
severable from the other unit , such, unit shall be deemed to be separate establishment or
undertaking.
(2) If the predominant activity carried on in such establishment or any unit thereof is an
industry and other activity is not severable from and is, for the purpose of carrying on of such
predominant activity, the entire establishment or undertaking, as the case may be unit there of
shall be deemed to be an industrial establishment or undertaking.
(vii) Working Committee ---
Ans. Section 3 provides that in industrial establishment in which 100 or more workmen are
employed the appropriate government may by general or special order, require the employer to
constitute a works committee in the prescribed manner. Consisting of representatives of
employers and workmen in equal number. There cannot be more than 20 members in all. The
members from amongst the workmen shall be elected by the prescribed mode of election in
consultation with Trade Union if any registered under the Trade Unions Act, 1926.
(viii) Conciliation Officer ---
Ans. The appropriate Government may by Gazetted notification, appoint conciliation officers in
such number and for such area, as it thinks fit either permanently or temporarily. Their main
aim is to mediate in the settlement of industrial disputes and to promote their settlement.
Conciliation officer may be appointed for any specified industries in a specified area. The
jurisdiction, powers and functions of the conciliation officer shall be notified in the official
gazette.
(ix) Court of Inquiry ---
Ans. Section 6 contains the provision for Court of inquiry. The appropriate Government may, as
occasion arises by notification in official gazette, constitute a Court of inquiry for inquiring into
any matter appearing to be connected with or relevant to any industrial dispute.
(x) Collective Bargaining ---
Ans. Collective bargaining is a process, wherein the Trade Unions and the employers, put
forward their reasons and come to some certain settlement on the points of issues of disputes
or differences. There is full trial of strength in the process of the collective bargaining. This
process has been in vogue for a long time. For the better progress of the industries, the disputes
of Collective bargaining need settlement at the top priority and amity and good understanding
must be promoted and established between the two disputing parties, the employers and the
workmen.
Q. What is the definition of “Industrial Dispute” under Industrial Dispute Act, 1947 ? When does
it arise ? When does an ‘Individual dispute’ become an ‘Industrial Dispute’ ?
Ans. According to section 2(k), ‘Industrial Dispute’ means any dispute or difference between ---
(a) Employers and employers
(b) Employers and employees
(c) Workmen and workmen; which is connected with:
(1) Employment or non-employment
(2) The terms of employment
(3) With the condition of labour of any person.
An Industrial dispute can be said to have arisen and to be in existence only when the demand is
made by the workmen and is rejected by the management or vice-versa. If the demand is made
by the workmen and is accepted by the employer and if the workmen are satisfied no industrial
dispute will ever come Into existence.
The individual dispute may be held to be an industrial dispute it is necessary that it must fulfil
two conditions ---
(1) That the workmen as a body or a considerable section of them must be found to have made
common cause with the individual workman,
(2) That the dispute was taken up or sponsored by the workmen as a body or a considerable
section of them at a time, before the date of reference.
Or
Whether the followings comes under the definition of Industrial disputes or not ? ---
(1) A dispute between a single workman and his employer.
(2) A dispute between a dismissed employee and his employer.
Ans. (i) A dispute between a single workman and his employer --- A dispute between employer
and an individual workman, cannot be an industrial dispute. It is only an individual dispute
outside the scope of the Industrial Disputes Act.
(ii) A dispute between a dismissed employee and his employer --- Section 2(a) has been inserted
by Act. 35 of 1965 which provides that where any employer discharges, dismisses, retrenches or
otherwise terminates the services of any individual workman any dispute or difference between
that workman and his employer connected with, or arising out of such discharge, dismissal
retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that
no other workman nor any union of workmen is a party to the dispute.
Q. What are the various authorities under the Industrial dispute Act, 1947 ? Discuss the
constitution and function of the authorities.
Or
Discuss machineries which the Industrial Disputes Act, 1947 provide for the settlement of the
Industrial Disputes ? Are these measures sufficient in your opinion in the direction of achieving
the aim ?
Ans. The following machineries or Authorities are provided under the Act for the settlement and
adjuration of the Industrial Disputes.
(1) Conciliation machinery - This machinery consists of the following machinery ---
(i) Working Committee - Section 3 provides that in industrial establishment in which 100 or
more workmen are employed the appropriate government may by general or special order,
require the employer to constitute a works committee in the prescribed manner. Consisting of
representatives of employers and workmen in equal number. There cannot be more than 20
members in all. The members from amongst the workmen shall be elected by the prescribed
mode of election in consultation with Trade Union if any registered under the Trade Unions Act,
1926.
(ii) Conciliation Officer - The appropriate Government may by Gazetted notification, appoint
conciliation officers in such number and for such area, as it thinks fit either permanently or
temporarily. Their main aim is to mediate in the settlement of industrial disputes and to
promote their settlement. Conciliation officer may be appointed for any specified industries in a
specified area. The jurisdiction, powers and functions of the conciliation officer shall be notified
in the official gazette.
(iii) Conciliation Board – This is also constituted by the appropriate Government for the
settlement of
industrial disputes through mutual agreement. The parties to the dispute sit together and try to
reach at a meeting point acceptable to them. The chairman of the Board is an independent
person, not being interested in any of the parties or having no concern with dispute in question.
In addition to the chairman, there are equal number of representatives of the employers and
the workmen as members as the appropriate Government thinks fit. The representatives are
appointed with the consent of the parties.
(2) Adjudication machinery – It consists of the following three authorities ---
(i) Labour Court – Such Court is constituted by the appropriate Government under Section 7 of
the Act. Labour Courts adjudicate such industrial disputes which are referred to them by the
appropriate Government under Section 10. Such disputes may be related to the matters of the
second schedule. The Court is presided over by single judge.
(ii) Industrial Tribunal – Such tribunal is constituted by the appropriate Government under
Section 7 (a) of the Act. Tribunals adjudicate the industrial dispute which are referred to them
by the appropriate Government for that purpose under Section 10 (1). Such disputes may be
related to any items of second or third schedule of the Act.
(iii) National Industrial Tribunal – Such tribunal is constituted by the appropriate Government
under Section 7 (b) of the Act. This tribunal adjudicates only such industrial disputes which are
connected with any matter of public utility service or are of national importance, or any dispute
in which State and the Central Government has interest or such industries which are spread in
more than one State.
(iv) Court of Inquiry - Section 6 contains the provision for Court of inquiry. The appropriate
Government may, as occasion arises by notification in official gazette, constitute a Court of
inquiry for inquiring into any matter appearing to be connected with or relevant to any
industrial dispute. There is one independent person as a chairman of the Court appointed by
the appropriate Government and two or more members duly appointed by the Government.
(v) Arbitration Machinery – Section 10 (a) contains the provision for referring the industrial
disputes for arbitration voluntarily by the employers and the workmen with free consent. The
number of arbitrators shall be equal from both the parties. The parties can refer the disputes by
their mutual agreement reduced in writing provided they are not already referred to Labour
Court or tribunal for adjudication under Section 10 of the Act. Disputes cannot be referred for
adjudication and arbitration at one and the same time. That will be illegal procedure.
(vi) Grievance Settlement Authority – The provision for such authority was made by
adding/inserting a new Section 9 (c) through an amendment made in 1982. The employer of
such establishment, where the number of the workmen is 100 or more, is bound to appoint
such authority for the purpose of settlement of individual dispute. Now, the individual industrial
dispute should be referred to the Grievance Settlement Authority. This is mandatory provision.
It is only on the non-acceptance of the decision of the authority, that the dispute may be
referred for adjudication under Section 10 (1).
Are these measures sufficient- Inspite of the fact of the said provision of the constitution of five
machineries, there is no decreasing trend in the industrial disputes and at the same time it has
not been possible to wipe out the differences between the employers and the workmen. The
increasing dissatisfaction and inimical attitude is not satisfactorily removed or lessened. The
Central Government is well acquainted with such a situation. This is why the Standing
Committee of the Central Labour Ministry is very seriously thinking of introducing a new system
for the settlement of the industrial disputes.
Q. Examine the constitution, powers and functions of the Board of Conciliation constituted
under the Industrial Disputes Act, 1947. Discuss the consequences does if the Board fails to
reach any conciliation ?
Ans. Constitution of Conciliation Board - Section 5 of the Industrial Disputes Act, 1947 contains
the provision for the constitution of the conciliation Board, a body constituted by the
appropriate Government by the notification in the Official Gazette for purpose of settling the
industrial disputes arising between the employers and employees. The Board shall consist of a
chairman, two or four members as the appropriate Government deems fit. The chairman shall
be an independent person and the members of the parties shall be equal in number and be
appointed on the recommendation of the employers and workmen respectively. If any party
fails to appoint its representative in the prescribed time, then the Government will appoint such
persons as it thinks fit for purpose of that party’s representation. The number of Board shall 3 or
5. If the quorum is complete, the Board may function even if the Chairman is absent or any
member. But if the appropriate Government notifies that the services of the chairman or any
member shall not be available, the Board will not function till the chairman or the member, as
the case may be, is not appointed.
Power and Duties of the Conciliation Board – Section 13 of the Act mentions the functions to be
performed by the Conciliation Board. The function of the Board commences only when any
industrial dispute is referred to it by the appropriate Government. Some of the powers of the
Civil Court are vested in the Board. The Board shall complete its function and send the report of
settlement within the period of 60 days prescribed for this purpose. This period of two months
may be extended, but with the consent of both the parties. The consent must be in writing,
signed by an agreement of the parties. The members of the Board may enter the premises
occupied by any establishment to which the dispute relates. The Board has power of ----
(a) Enforcing the attendance of any person and examining him on oath,
(b) Compelling the production of documents and material objects,
(c) Issuing commission for the examination of witnesses,
(d) Such other matters as may be prescribed.
The report of the Board shall be in writing signed by all the members of the Board. Any member
may record a minute of dissent. The report when submitted shall be published by the
appropriate Government within 30 days of its receipt.
Q. Write short notes on the following under the Industrial Dispute Act, 1947------
Ans. (1) Award - According to Section 2 (b), of the industrial dispute Act, 1947 ‘Award’ means an
interim or a final determination of any industrial dispute or of any question relating thereto by
any labour court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration
award made U/S 10-A.
Ans. (2) Closure – According to Section 2 (oo) ‘closure’ means the permanent closing down a
place of employment or part thereof. The clause (oo) defining the expression closure has been
inserted by Act No. 46 of 1982 with effect from 21-8-1984.
Ans. (3) Controlled Industry – According to Section 2(ee) ‘Controlled Industry’ means any
industry the control of which by the Union has been declared by any Central Act to be expedient
in the public interest.
Ans. (4) Court – According to Section 2 (f) ‘Court’ means a Court of Inquiry constituted under
this Act.
Ans. (5) Industry – According to Section 2 (j) ‘industry’ means any business, trade, undertaking,
manufacture or calling of employers and includes any calling, service, employment, handicraft
or industrial occupation or avocation of workmen.
Ans. (6) Strike – ‘Strike’ means a cessation of work by a body of persons employed in any
industry acting in combination of any number of persons who are employed to accept
employment.
Ans. (7) Tribunal – According to Section 2 {r}, ‘Tribunal’, means an industrial Tribunal constituted
U/S 7-A and includes an Industrial Tribunal constituted before the 10th day of March, 1957
under this Act.
Ans. (8) Unfair Labour Practice – According to S(ra), ‘Unfair Labour Practice’ means any of the
practices specified in Fifth Schedule. It contains several practices. In category I, it contains 16
practices which are said to be unfair practices on the part of employers or their trade unions.
For example, to interfere with, restrain from, or coerce workmen in the exercise of their right to
organize, form , join or assist a trade union or to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, to establish employer sponsored
trade unions of workmen, to discharge or dismiss workmen by way of victimization, to recruit
workmen during a strike which is not an illegal strike etc.
Ans. (9) Wages – According to Section 2 (rr) , the term ‘wages’ as contained in the Act means all
remuneration which can be expressed in terms of money which is paid to a workman in respect
of his employment according to terms and conditions of his employment. It includes all
allowances including D.A. to which a workman is entitled to get, value of any house
accommodation supply of food grains, or any other articles of the kind or supply of any service.
It also includes any travelling concession paid to the workman or any commission on the
promotion of sales or business or both.
Ans. 10. Workman – The term ‘workman’ has been defined U/S 2(s) of the Industrial Disputes
Act. It means any person (including an apprentice) employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether
the terms of employment be express or implied and for the purposes of any proceeding under
this Act in relation to an industrial dispute, includes any such person who has been dismissed,
discharged or retrenched in connection with, or as a consequence of the dispute, or whose
dismissal, discharge or retrenchment has led that dispute.
Ans. 11. Continuous Service – Continuous service means uninterrupted service and includes
service which may be interrupted merely on account of sickness or authorized leave or an
accident or strike which is not illegal or a lock-out or a cessation of work which is not due to any
fault on the part of workman.
Ans.12. Lay-Off – According to Section 2 (kkk), ‘lay-off’ 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 for any other reasons, to give employment to a
workman whose name is borne on the muster roll of his industrial establishment and who has
not been retrenched.
Ans. 13. Lock-out – According to Section 2 (e), ‘lock-out’ means----
(1) Temporary closing of a place of employment,
(2) The suspension of work,
(3) The refusal by an employer to continue to employ any number of persons employed by him,
but it does not include the discharge of employees by an employer.
Ans. 14. Appropriate Government – According to Section 2(a), the Central Government as well
as the State Government are vested with various powers and the duties in relation to matters
dealt with in this Act. In relation to some industrial disputes the Central Government and in
relation to some others the State Government concerned are the Appropriate Government to
deal with such disputes. Therefore, to avoid repetition, it was expedient to use a phrase which
may be used in the same sense in different sections of the Act.
Labour Law-Synopsis
Q. What do you mean by lay-off ? What are the rights of a laid-off workman to claim
compensation ? Under what circumstances a workman is not entitled to receive compensation
for lay-off ?
Ans. Lay-off --- Section 2(kkk) defines lay-off as follows-----
A ‘Lay-off’ means the failure, refusal or inability of an employer on account of
(i) Shortage of coal, power, or raw materials or the accumulation of stocks,
(ii) Break-down of machinery
(iii) For any other reason to give employment to a workman--------
(a) Whose name is borne on the muster-roll of his industrial establishment,
(b) Who has not been retrenched.
The lay-off is the refusal to give employment to workmen due to the aforesaid factors as
mentioned in the definition. The circumstances must be beyond the control of the employer
.The employer is bound to refuse to give work, although he has to suffer a lot for suspension of
work in his establishment. If the employer fails to provide work within 2 hours of his presenting
at the place of work for one shift, the workman may be asked to come for the second or third
shift. But if he does not get work for that shift too, even after waiting for 2 hours, he will be
deemed to have been laid off for the whole day. The lay-off shall be treated valid if the
employer is unable to give employment due to the factors mentioned in the definition including
natural calamities.
Right to get compensation in case of lay-off ----
Section 25(c ) makes it clear that a workman shall be entitled to receive compensation for the
period, during which he was laid-off. The employer shall give compensation at the rate of or
equal to 50% of basic wages and Dearness allowance for laying-off the workmen due to the
circumstances beyond his control. The compensation shall be paid for the days the workman
has been laid-off . If he is laid-off for one shift only he will be deemed to have been laid-off for
half of the day, but if he is called and presents himself at the place of work, he is deemed to
have been laid-off for the whole day, thus entitled to get compensation for half day or full days,
as the case may be. Only that workman will be entitled to lay-off compensation, who has
completed not less than one year of continuous service under the employer and his name is
borne on the muster roll.
No compensation shall be paid in the following condition---
(i) If the workman does not present himself on the place of work at the scheduled time he is
called for, to work shift-wise,
(ii) Although he presents himself, but does not wait at least for a period of two hours, to get
work.
(iii) He does not present himself at the place of work for the second shift, if he is not given the
work in the first shift.
(iv) He is a casual or Badli workman.
(v) He has not completed one year of complete service.
(vi) If the permission for lay-off is sought from the prescribed authority or the appropriate
Government.
(vii) If he refuses to accept an alternative work assigned to him in the same establishment or a
branch of it but not far away from the main establishment and is within the radius of 5
kilometers and also does not require extra labour, experience or technical knowledge.
(viii) In establishment, the number of workers is less than 50.
(ix) The workman will not get compensation for the days other than first 45 days of lay-off,
provided there is a contract between the employer and the workmen to that effect.
Q. What do you understand by Retrenchment ? Discuss the condition precedent to
retrenchment and procedure for retrenchment under Industrial Disputes Act, 1947.
Ans. Retrenchment – According to Section 2 (oo), Retrenchment means the termination by the
employer of the service of a workman for any reason whatsoever, otherwise than as a
punishment inflicted by way of disciplinary action , but does not include----
(i) Termination by way of punishment inflicted pursuant to disciplinary action,
(ii) Voluntary retirement of the workman,
(iii) Retirement of the workman on reaching the age of superannuation,
(iii) if the contract of employment between the employer and the workman contains a
stipulation in that behalf or
(iv)termination of the service of a workman on the ground of continued ill health.
Conditions precedent to Retrenchment ---- A workman, who has been employed in any industry
and has worked at least for complete one year in the employer’s service, shall not be
retrenched by the employer unless and until,
(i) The workman has been given one month’s written notice indicating the reasons of
retrenchment and the period of notice has expired,
(ii) The workman has been paid, in lieu of such notice, wages for the period of the notice,
(iii) the workman has been paid at the time of retrenchment, Compensation which is equivalent
to 15 days average pay for every completed year of continuous service or any part thereof, in
excess of six months,
(iii) Notice in the prescribed manner is served on the appropriate Government or such authority
as it may specify by Gazette notification.
Procedure for retrenchment ---- Section 25 (A) contains prescribed the procedure for re-
employment of retrenched workman provided he is bodily sound, willing and ready to accept
the job, at the preliminary level of wages and the re-employment is not for only fewer days.
Q. Explain the “Unfair Labour Practice” and discuss the law relating to the unfair labour practice
as provided in the Industrial Disputes Act, 1947.
Ans. According to Section 2(ra), Unfair Labour Practice means any of the practice’s specified in
the fifth schedule. The provisions about such practices are contained in Sections 25 and 25 U
newly inserted by the Amendment Act, 1982 and they provide for a restriction on unfair labour
practice. Such unfair labour practices are 16 in number. The Schedule has two parts--- one part
deals with the unfair labour practices by the Trade Union. Section 25 provides that no employer
or workman or a Trade Union, whether registered under the Trade Unions Act, 1926, or not,
shall commit any unfair labour practice. According to Section 25, if a person commits any unfair
labour practice, he shall be punishable with imprisonment for a term which may extend to six
months or with fine which may extend to Rs. 1000 or both.
Trade Union-Synopsis
Q.’Trade Union ?’ Who are disqualified to be the member and office-bearer of the registered
Trade Union ? Can an outsider be an office-bearer of a registered Trade Union ? If so, in what
proportion ?
Ans. Trade Union – Trade Union means any organization, formed temporarily or permanently,
for regulating the relations mainly between, employer and the workmen, or between the
workmen and workmen, or between the employer and the employer, imposing terms and
conditions on conduct of any profession or handicraft, and it also includes the federation of two
or more than two unions.
Disqualification for Authorities of Trade Union -----
Following persons cannot be elected as the office-bearer or member of the executive of the
Trade Union -----
(1) If he has not completed the age of 18 years. Office bearer must be major according to the
law which he is subject.
(2) If he has been punished with imprisonment for any offence related to moral turpitude and 5
years have not passed from the date of such punishment.
Can an Outsider be an office-bearer -----
The Act does not prohibit any outsider from being elected or nominated as office-bearer of the
Trade Union. The number of outsider, shall in no case exceed more than 50% of the total
membership. At least ½ of the officer-bearer shall be elected or nominated from amongst the
members who are re-employed in that industry.
Q. “In a welfare State, Social interests have top priority.” Comment.
Ans. The aim and object of the Trade Unions Act, 1926, was to interpret the registration of the
Trade Unions and formulate a law relating to the Trade Union registered in the provinces of
India.
“Every Trade Union registered is a body corporate in its own name, and it will have consistent
perpetual common sea., and succession and right to possess and acquire movable and
immovable property, right to enter into contract, it can sue and be sued in its name.”
The Act provides three privilege to the Trade Unions----
(1) Any office bearer or the member of the Trade Union shall not be held responsible for
criminal conspiracy for any act done for the Union.
(2) It has been provided some defence under civil law.
(3) It shall not be held responsible for any agreement in restraint of trade.
Union may create a work culture by enforcing the agreement entered into by the parties and
not putting any hindrance in the production. A trend of degradation of union is seen since
independence.
Q. Requirements and procedure for registration of a Trade Union under the Trade Union under
the Trade Unions Act. Duties of Registrar while considering the application for Registration of a
Trade Union. What is the remedy if registration to a union is refused ? Can registration be
cancelled ?
Ans. Requirements for registration – According to Section 4 any Trade Union which consists of
seven or more members, may present an application for registration before the Registrar. The
application, shall be presented along with a copy of the rules of the Trade Union and a
statement containing following particulars----
(1) The names of the members of the applicant, occupations and their addresses,
(2) The name of the Trade Union and the name and address of its principal office, and
(3) The titles of the office-bearers of the Union, their names, age, addresses and occupation.
Where the Trade Union has been in existence for the preceding one year, it has to give
particulars of its capital, liability, in such way as may be specified in this behalf. Application
should be signed at least by seven persons.
Procedure for registration – According to the provisions of Section 8, the Registrar on being
satisfied that all the necessary formalities have been fulfilled for registration under the Act, will
register the name of the Trade Union, and write down the particulars relating to the Trade
Union, when the Registrar finds any defect in the application, he may call for further
explanation. If those conditions and formalities are not fulfilled by the applicant, then the
Registrar is not bound to register the name of the Union.
Cancellation of Registration ---- The Registrar is empowered under Section 10 to cancel the
registration of any Trade Union in the following circumstances----
(1) When an application has been presented for the cancellation of its registration or
recognition.
(2) When the registration has been obtained fraudulently or by any other wrongful means or
mistake.
(3) The Trade Union has ceased to exist.
(4) The Trade Union has violated any of the provisions of the Act.
(5) When the primary or statutory aims of the Trade Union has extinguished or it has become
impossible to obtain them.
(6) The Trade Union has failed to amend its rule being advised and asked to do so by the
Registrar.
Registration may be cancelled in two ways----
1. On initiative of the Registrar.
2. On application of the union itself.
When registrar comes to know that union has failed in achieving its goal or is doing illegal acts,
he may cancel the registration of such union but he has to give two months prior notice in
writing making it clear in the notice itself the ground on which the cancellation is proposed.
Q.Rights and liabilities of a registered Trade Union.
Ans. A registered Trade Union has the following rights---
(1) A registered Trade Union is a body corporate. It has its full rights.
(2) It has a right as perpetual succession and common seal.
(3) It can buy and sell movable and immovable property in its own name.
(4) It can enter into contract in its own name.
(5) It can bring a suit in its own name and can be sued in that name.
(6) It has right to negotiate and correspond on various matters and issues which may lead to
dispute.
(7) It has right to punish its own members.
(8) Such a union has right to have its own notice board and realize the membership fees from its
members from the premises and departments of the establishment.
(9) It can change its own name and has also the right to transfer its own office from one place to
another.
(10)It has right of amalgamation with other union.
(11)It can form a federation also.
Liabilities of a Registered Trade Union---- The Trade Unions Act imposes following liabilities on
the unions registered under this Act----
1. Duty to Make Provisions in the Rules of Certain Matters – Some of which are the rules
declaring the objects for which the Trade Union has been established, the purposes on which
general funds of the Trade Union may be spent, admission of members to the Trade Union, the
manner in which the Trade Union may be dissolved etc.
2. Duty to Constitute Executive as Required – The provisions relating to the constitution of
executive of the Trade Union are contained U/Sc. 21-A and 22 of the Act. There are two duties
imposed by the provisions of the Act as conditions precedent to the process of registration.
Unless these duties are complied with, the Registrar is empowered to refuse to register the
proposed Trade Union.
3. Duty to Spend General Funds as Required – The Trade Union is under statutory duty to spend
general funds of the Trade Union in accordance with Section 15 of the Act which enumerates
certain specified objects on which only the general funds can be spent and not otherwise.
4. Duty to Constitute a Separate Political Fund – The Trade Union, if decides to promote civil and
political interests of its members, has to constitute a separate fund commonly known as
political fund in accordance with Section 16 and it may be spent on the objects specified
therein.
5. Duty to Provide Access to Books of Trade Union – The account books and list of members
shall be kept open by a Registered Trade Union for inspection by an office-bearer or member of
the Trade Union at such times as may be provided for in the rules of the Trade Union.
6. Duty to Send Notice to the Registrar - The Trade Union is under duty to send notice to
Registrar in cases of every change of its name, every amalgamation, any change in the address
of the head office of Trade Union and dissolution thereof.
7. Duty to Send Notice to the Registrar – There shall be sent annually to the Registrar, on or
before such date as may be prescribed, a general statement audited in the prescribed manner,
of all receipts and expenditure of every Registered Trade Union during the year ending on the
31st day of December, next preceding such prescribed date, and of the assets and liabilities of
the Trade Union existing on such 31st day of December.
Q. What are the objects on which the general funds of a Trade Union may be spent ?
Ans. Objects on which the general funds may be spent – According to the provisions of Section
15 of the Act, any registered Trade Union may spend the general fund on the fulfillment of the
following object----
(i) Payment for salary, allowances and expenses for its members.
(ii) Payment for the expenses relating to the administration of the Trade Union, including the
expenses of the audit of the general fund of the union.
(iii) For the conduct of any legal action or prosecution by or against any of its members.
(iv) Defence of its office-bearer or member in the industrial dispute by the Trade Union or its
member.
(v) Compensation to the member due to the loss caused by industrial dispute.
(vi) Allowance to the members of the union or their family, in case of their death, old age,
disease, accident or unemployment. Fund cannot be utilized in speculative matters.
(vii) To defray the liabilities of the insurance policy of its members, or accept the liabilities on
death, accident, unemployment, or ill-health of the members related to the life insurance
policy.
(viii) Payment for the educational , social or religious profits of its members or their dependants
and funeral expenses or expenses relating to religious rites.
(ix) Papers published mainly for the analysis of the questions which may influence the employer
and the workmen.
(x) Payment for the contribution for the extension of the aims of the items on which general
fund may be spent.
(xi) Payment for any other object under any condition mentioned in the notification; which has
been published by the appropriate government in the Official Gazette.
Q. Discuss the items upon which the political fund may be spent ?
Or
How the political fund may be collected ? How can it be used ?
Ans. Constitution of a separate fund for political purposes ---- Section 16 of the Act provides the
Registered Trade Union can constitute a separate fund by contribution and realization of
separate fees and contributions. The interest realized on the political fund and shall form part of
the political fund and gifts, subscriptions etc. can be accepted for this fund.
The political fund may be utilized for the following objects or purposes-----
(i) The payment of any expenses incurred either directly or indirectly, by a candidate or a
prospective candidate for election as a member of any legislative body constituted under the
constitution or local authority, before or during the election.
(ii) The holding of any meeting or the distribution of any literature or documents in support of
any such candidate or prospective candidate.
(iii) The maintenance of any person who is the member of any legislature or any local authority.
(iv) The registration of electors or the selection of a candidate for any legislative body
constituted under the constitution or local authority or
(v) The holding of political meetings of any kind or the distribution of political literature or
political documents of any kind.
Q. Discuss the grounds on which registration of a Trade Union can be withdrawn or cancelled by
the Registrar of Trade Union.
Ans. Grounds on which Registration of a Trade Union can be withdrawn or cancelled – According
to Section 10, a certificate of registration of a Trade Union may be withdrawn or cancelled by
the Registrar in one of the following two ways----
1. On the application of Trade Union --- When an application for the cancellation of the
registration of any particular Trade Union is given, the Registrar on receiving such application
shall, before granting the application, satisfy himself that the withdrawal or cancellation of
registration was approved by a general meeting of the members of the Trade Union.
Cancellation of the registration of a Trade Union is effected by the Registrar only and resolution
passed by the majority of the members of the Trade Union. In the event of cancellation or
withdrawal of registration on the application of Trade Union two months prior notice by the
Registrar to the Trade Union concerned is not necessary.
2. At the will of the Registrar --- If the Registrar does not remain satisfied in positive direction ,
he may cancel the certificate of registration on any one of the following grounds---
i) That the certificate has been obtained by fraud or mistake.
ii) That the Trade Union has ceased to exist.
iii) That the Trade Union has willfully and after notice from the Registrar contravened any
provision of the Trade Unions Act.
iv) That the Trade Union has allowed any rule to continue in force which is inconsistent with any
such provision contained in the Trade Unions Act.
v) That the Trade Union concerned has rescinded any rule providing for any matter, provision for
which is required by Section 6 such as manner of appointment and removal of the executive
and other office-bearers of the Trade Union, the manner of dissolution of the Trade Union etc.
Q. Who is a protected workman? How many of them are permissible in an Industrial
establishment and how are they chosen? What protection does the Act provide for “protected
workmen”, in the case of prejudicial alteration of conditions of their service or punishment
during the pendency of a proceeding under the Act?
Ans. Section 33(3) of Industrial Disputes Act, 1947 defines and says that protected workmen
means----
(i) A workman who is the member of the executive or other office bearer of a registered trade
union connected with the establishment and
(ii) Who is also recognised as “protected workman” under the rules applicable to the
establishment.
According to Section 33(4), in every establishment the number of recognised protected
workmen shall be one percent of the total number of workmen employed therein. There shall
be minimum 5 and maximum 100 protected workmen. The appropriate Government may make
rules for choosing and recognizing them.
No employer shall, during the pendency of any conciliation proceeding before a Conciliation
Officer or a Board or of any proceeding before a Labour Court, Tribunal or National Tribunal in
respect of any industrial dispute, take any action against any protected workman concerned in
such dispute—
(a) By altering, to the prejudice of such protected workman, the conditions of service applicable
to him immediately before the commencement of such proceedings,
(b) By discharging or punishing whether by dismissal or otherwise, such protected workman,
save with the express permission in writing of such authority before which the proceeding is
pending.
Only the protected workmen are entitled to take the benefit of this provision and not others.
But this protection may be availed of only when any Disputes is pending for conciliation or
adjudication. The protected workman should prove that action taken by the employer is to the
prejudice of him. This remedy will be available only when a dispute is pending for settlement or
adjudication before the authority and there is contravention of Section 33. This section gives
protection to the workman against victimization by the employer. If victimization is proved, the
labour court/ tribunal can set aside the order of punishment.
Q.Powers of the appropriate Government regarding the transfer of proceedings under the
Industrial Disputes Act, 1947?
Ans. Section 33-B of Industrial Disputes Act, 1947 says that the appropriate Government may,
by an order in writing and for reasons to be stated therein, withdraw any proceedings under this
act pending before a Labour Court, Tribunal or National Tribunal as the case may be, for the
disposal of the proceedings and the Labour Court, Tribunal or National Tribunal to which the
proceeding is transferred may subject to special directions of the order of transfer, proceed
either de novo or from the stage at which it was transferred. It is up to the transferee authority
to decide from where to start with. There will be no direction from the side of the appropriate
Government in this respect. The transfer of proceeding should be made on appropriate solid
grounds and not arbitrarily.
Any Tribunal or National Tribunal subject to the other provisions, if so authorised by the
appropriate Government may transfer any proceeding U/S 33 or Section 33-A pending before it
to any one of the Labour Courts specified for the disposal of such proceedings by the
appropriate Government by notification in the Official Gazette and the Labour Court to which
the proceeding is so transferred shall dispose off the same.
If the appropriate government does not record the reasons and give opportunity to the parties
to the dispute , to represent their stand, the decision shall be fatal to the transfer and will vitiate
it.