Labour Law I Unit 2 KSLU II SEM Answers previous papers PDF

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II SEMESTER KSLU

LABOUR LAW 1 QUESTION ANSWERS

UNIT 2

BASED ON THE PREVIOUS QUESTION PAPERS

PREPARED BY MAHESHABABU M G

ID ACT, 1947 Introduction Meaning and Object: Among all the labour and industrial legislations, the Industrial Disputes Act, 1947 is of the great importance. The Industrial Disputes Act was passed in 1947 and it came into force from 1 st April, 1947. The Act embodied the essential spirit of 81-A of the Defence of India Rules (which were in vague during the Second World War), which empowered the Government to refer industrial disputes to adjudication bodies and enforce their awards. Prior to 1949, Trade Disputes Act, 1927 (before the Second World War) was in force and the scope and provisions of the Act were limited. The Industrial Disputes Act, 1947 is a comprehensive piece of legislation envisaging elaborate machinery for prevention and settlement of industrial disputes. The Act embodies both substantive and procedural law aimed at promoting industrial peace and preventing industrial disputes. It incorporates inter alia the provisions for the investigation and settlement of industrial disputes. The main object of the Act is to harmonize the relations between the employer and employees so as to maintain industrial peace and to ensure social justice. The Act is a piece of legislation calculated to ensure social justice to both the employers and the employees and advance the progress of the industry by bringing about harmony and cordial relationship between the parties. After examining the salient provisions of the Act, the Supreme Court through S.K. Das, J. in Workmen of Dumakuchi Tea Estate vs. The Management of Dumakuchi Tea Estate (1958)1, L.L.J. 500 (S.C.) summed up the principal objects of the Act as follows: A. Promotion of good/cordial relations between the employer and workmen; B. An investigation and settlement of industrial disputes between: a) Employers and Employers; b) Employer and Workmen: and c) Workmen and Workmen. C. Prevention of illegal strikes and lock-outs; D. Relief to Workmen in the matter of lay-off and retrenchment; and E. Collective Bargaining. Application of the Act: The Industrial Disputes Act, 1947 is a central legislation. It applies to all industrial establishments throughout India except the State of Jammu and Kashmir. It applies to workmen employed in both private and public Sector industries, which fall under the definition of Section 2 (j) of the Act. Hence, the definition of employer, workmen, industry, industrial dispute are relevant and form basis for application of the Act. Scheme of the Act: At the time of passing of the Act, it contained 40 Sections and 5 schedules. Some more Sections were added to the Act, by the subsequent amendments from time to time. Now, the Act contains 80 Sections divided into 12 chapters apart from 5 schedules. Chapter I contains Sections 1 to 2-A. Section 1 speaks about preliminary aspects viz., short title, extent and commencement. Section 2 provides for certain definitions viz., appropriate Govt., Award, Employer, Workman, Industry etc. Chapter II containing Sections 3 to 9 provides for the authorities under the Act, viz., Board of Conciliation, Labour Court, Industrial Tribunal etc. Chapter II-A contains Sections 9-A and 9-B which provide for notice of change and power

of Government to exempt respectively. Chapter II-B containing Section 9-C provides for setting up of Grievance Settlement Authorities and reference of certain individual disputes to such authorities. Chapter III contains Sections 10 and 10-A which deals with 'Reference of Disputes to Boards', Courts or Tribunals and voluntary reference of disputes to Arbitration respectively. Chapter IV containing Sections 11 to 21 (including Sections 11-A, 17-Aand 17-B) lays down the provisions relating to Procedure, Powers and Duties of the Authorities under the Act. Chapter V containing Sections 2 2 to 25 deals with the provisions relating to 'strikes and lock-outs'. Chapter V A containing Sections 25-A to 25-J lays down the provisions relating to "Lay off and Retrenchment". Chapter V-B containing Sections 25-K to 25-S makes special provisions for Lay ott, Retrenchment and Closure in certain establishments. Chapter V-L contains two Sections, 25-T and 25-U, which make provisions to deal with Prohibition of Unfair Labour Practices and penalty for committing unfair practices respectively. Chapter VI containing Sections 26 to 31 lays down the provisions to impose 'Penalties' and finally Chapter VH containing Sections 32 to 40 contains the miscellaneous provisions. In addition, there are five schedules as Stated below First Schedule: Industries which may be declared to be public utility services under sub-clause (vi) of clause (n) of Section 2. Second Schedule: Matters within the jurisdiction of Labour court. Third Schedule: Matters within the jurisdiction of Industrial Tribunals. Fourth Schedule: Conditions of service for change of which notice is to be given. Fifth Schedule: Unfair Labour Practices. Main features of the Act: The main features of the Act are (a)It is applicable to industries and certain categories of industrial workers. (b)It lays down a comprehensive machinery for the prevention and settlement of industrial disputes. (c) The main emphasis of the Act is on compulsory adjudication besides conciliation and voluntary arbitration of industrial disputes. (d)It empowers the Government to make a reference of the dispute to an appropriate authority, viz. Labour Court Industrial Tribunal and National Tribunal depending noon the nature of the dispute besides making a reference bv the Government on the request of the parties (e) The award given by the above authorities bind the parties for a specified period not exceeding one year. The award is normally enforced by the Government concerned. (f) The right to strike by the workers and lock-out by the employers has been subjected to restrictions as laid down in the Act and such rights are not absolute rights. (g)In the public interest, the Government has been empowered to declare certain industries as public utility services for the purposes of the Act for a period of 6 months. 2. Definitions (a). Appropriate Government (Sec. 2 (a)) Section 2 (a) of the Industrial Disputes Act, 1947 defines "Appropriate Government" from the angle of Central Government and State Governments. Section 2 (a), which defines the appropriate Government runs as follows i. in relation to any industrial disputes concerning any industry carried on by or under the authority of the Central Government, or by a railway

ii.

company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute concerning a Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948) or the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956 (1 of 1956), or the Employees' State Insurance Corporation established under Section 3 of the Employees' State Insurance Act, 1948 (34 of 1948), or the Board of Trustees constituted under Section 3-A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948), or the Central Board of Trustees and the State Boards of Trustees constituted under Section 5Aand Section 5-B, respectively, of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the Life Insurance Corporation of India established under Section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956), or the Oil and Natural Gas Corporation Limited registered under the Companies Act, 1956(1 of 1956), or the Deposit Insurance and Credit Guarantee Corporation established under Section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established under Section 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established under Section 3 of the Unit Trust of India Act, 1963 (52 of 1963), or the Food Corporation of India established under Section 3 or a Board of Management established for two or more continuous States under Section 16 of the Food Corporations Act, 1964 (37 of 1964), or Airports Authority of India constituted under Section 3 of the Airports Authority of India Act, 1994 (55 of 1994), or a Regional Rural Bank established under Section 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India Limited, the Banking Service Commission established under Section 3 of the Banking Service Commission Act, 1975, or an air transport service or a banking or an insurance company, a mine, an oilfield, a cantonment board, or a major port, the Central Government, and in relation to any other industrial dispute, the State Government.

In light of the above definition, appropriate Government under Section 2 (a) includes (i) the Central Government, and (ii) the State Government Central Government as the Appropriate Government: Under sub -clause (1) of Section 2 (a) the Central Government is the appropriate Government in relation to any industrial dispute concerni ng the industrial undertaking of establishments Stated below i. Any industry carried on by or under the authority of the Central Government; ii. Any industry carried on by a Railway Company; iii. Any 'Controlled industry' so specified by the Central Government; iv. Corporations under Central Statutes; v. The Unit Trust of India; vi. Banking Company, Insurance Company; vii. Mines, oil fields;

viii.

Cantonment Board, Major Ports etc.

Controlled Industry: In order that the "appropriate Government" under Section 2 (a) (i) be the Central Government, it is necessary not only the industry is a controlled industry, but further that the Central Government must issue a notification specifying such controlled industry for the purpose of Section 2 (a) (i) of the Act. (ii) State Government as Appropriate Government: Subclause (ii) of Section 2 (a) States that in relation to any industrial dispute other than those specified in sub-clause (i), the appropriate Government would be the State Government. In light of the above definition, a question arises what are the determining tests to be applied to come to the conclusion that a particular establishment or industry is under the control of the Central Government. Broadly it can be said that it depends upon the nature of dispute and the contents of the industrial dispute. In Indian Naval Canteen Board vs. Industrial Tribunal (1965) II L.L.J. 336), it was held by the Kerala High Court that merely that the question as to whether an industry is carried on by or under the Central Government, is essentially a question of fact depending upon the circumstances of each case. The mere fact that an industry is a "Controlled Industry" or acquires a "licence" from the Central Government to carry on business do not make them as industries regulated and controlled by the Central Government as an appropriate Government will be the Central Government when it is specified in this behalf that the industry concerned is controlled industry. The essential ingredient, therefore, is in whom control lies of a particular industry. If it lies under the State Government, then, in that case the State Government is the "appropriate" Government and if it lies with the Central Government then Central Government is the appropriate Government.

Award (Sec. 2 (b)) Section 2 (b) of the Industrial Disputes Act, 1947 defines 'Award' as follows "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 under Section 10-A. Ingredients: To constitute 'award' under Sec. 2 (b) of the Industrial Disputes Act, the following ingredients are to be satisfied. i. An award is an interim or final determination of an industrial dispute. ii. It is an interim or final determination of any question relating to such dispute. iii. Such interim or final determination is made by a Labour Court or by an Industrial Tribunal or by a National Industrial Tribunal. iv. Award of Arbitrators under Section 10-A is an award. An award includes interim award also. According to Section 16 of the Act, the award of a Labour Court or Industrial Tribunal or National Tribunal shall be in writing and signed by the presiding officer. Section 17 of the Act envisages the publication of the Arbitration award or award by the Labour Court, Tribunal or National Tribunal shall be published within 30 days from the date of its receipt

by the appropriate Government as it thinks fit. However, the appropriate Government or the Central Government, may, within 90 days from the date of publication of the award make an order rejecting or modifying the award. The order rejecting or modifying the award must be placed before the State Assembly or the Parliament as the case may be. The modified award becomes enforceable on the expiry of 15 days from the date on which it is laid before the legislature.

Settlement (Sec. 2 (p) Section 2 (p) of the Industrial Disputes Act, 1947 defines 'Settlement' as "Settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorized in this behalf by the appropriate Government and the conciliation officer. Distinction between Award and Settlement: Following are the notable points of distinction between the Award and Settlement:

(i) (ii)

(iii) (iv)

Award Sec. 2 (a) of the I.D. Act defines Award. It is the decision given by Arbitrator, Labour Court or Industrial Tribunal. It resembles the judgement of a Court. It is to be signed by the Presiding Officer.

Settlement Sec. 2 (p) of the I.D. Act defines 'Settlement'. (ii) It is arrived at as a result of conciliation between parties to the settlement. (iii) It resembles a gentleman agreement. (iv) It is signed by the parties to the dispute. (i)

On whom Awards and Settlements are binding (Sec. 18): According to Sec. 18 of the I.D. Act, 1947 awards and settlements are binding on the following persons (1) A settlement arrived at between the employer and workman shall be binding on the parties to the agreement. (2) An arbitration award shall be binding on the parties who referred the dispute to arbitration. (3) A settlement arrived at in the course of conciliation proceedings and an award of a Labour Court, Tribunal and National Tribunal shall be binding on: a) all parties to the industrial dispute; b) all the parties summoned to appear as parties to the dispute, unless they were summoned without proper cause; c) the heirs, successors, assignees of the employer; d) all persons who were employed in the establishment on the date of dispute, and subsequent to the dispute. Section 19 of the Act, provides for the period of operation of Awards and Settlement. Period of operation of Award:

(i)

An award shall remain in operation for a period of one year from the date on which it becomes enforceable. But the appropriate Government may reduce or extend the period of operation. Such extension can be made for one year at a time. However the total period of operation of the award cannot exceed three years from the date on which it came into operation. (ii) The award does not cease to be effective after the expiration of the period of its operation. It continues to be binding thereafter on the parties until notice has been given by one of the parties of the intention to terminate it. The award ceases to be binding on the expiry of two months from the date of such notice. (iii) If there is material change in the circumstances since the award was made, the appropriate Government may refer the award or a part of it to Labour Court or Tribunal to decide whether it shall be continued r>r not. The decision of the Labour Court or Tribunal in this regard is final. Period of operation of Settlement: i. A settlement shall come into operation on the date agreed upon by the parties to the dispute. If no date Is agreed upon by the parties to the dispute, a settlement shall come into operation on the date on which the settlement is signed. ii. A settlement is binding for such period as is agreed upon by the parties. If no such period is agreed upon, it remains binding for six months from the date it was signed. Penalty for breach of Settlement or Award: Any person who commits breach of any terms of a settlement or award is liable for punishment. The punishment provided for is imprisonment which may extend to six months or with fine, or with both.

Employer (Sec. 2 (g): According to Section 2(g) of the Industrial Disputes Act, 1947, an Employer means (i) in relation to an industry carried on by or under the authority of any department of the Central Government, or a State Government the authority prescribed in this behalf, or when no authority is prescribed, the head of the department. (ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive of that authority. Therefore, the employer means the Central Government or the State Government or the local authority in relation to industries carried on by or under their authority respectively. At one time it was contended that only industries carried on by the Government came under the purview of the Act. This contention was rejected by the Federal Court in the case of Western India Automobile Association vs. The Industrial Tribunal (A.I.R. 1949, F.C. 111). The Federal Court in this case held, "The purpose of Section 2 (g) is to define the word 'employer' only in relation to industries specified in it and not to give an exhaustive or inclusive definition. Therefore, it will not warrant the confining of the application of the Act to industries or undertakings carried on by the Government or local bodies and exclusive private industries from its ambit" (Ibid). The Central or State

Government is the employer in relation to industries carried on directly by a department under its control and authority or one carried by such department through the instrumentality of an agent {Heavy Engineering Mazdoor Union vs. State of Bihar, A.I.R. 1970, S.C. 82). Similarly, in the case of Municipality or Corporation, the local authority is an employer as such bodies are juristic persons (Workmen Faridabad Municipality vs. K.L. Gosain, A.I.R. 1970, Punjab 287) in the eyes of the law and can be employer like private persons. Therefore, the provisions of the Act are applicable to all the 'employers' who fall within the above definition of Industrial Disputes Act, 1947.

Workman (Sec. 2 (s) Section 2(s) of the Industrial Disputes Act, 1947 defines 'Workman' as "Workman" 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 award, whether the terms of employment be expressed or implied, and for the purpose 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 that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person (i) who is subject to the Air Force Act, 1950 (40 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding Rs. 1,600/- per mensem or exercises either by ...