Q. 4 (a). Discuss the constitution and functions of the Labour Court constituted under the provisions of the Industrial Disputes Act, 1947.
Ans. Constitution of the Labour Court-The State Government or Central Government, whichever is the appropriate Government, may constitute one or more Labour Courts. One person is appointed as the presiding officer of the Labour Court.
Qualification for Presiding Officer of Labour Court-
(i) The person should be, or must have been, a Judge of High Court, or
(ii) He should have been a District Judge or Additional District Judge for a period not less than 3 years, or
(iii) He should have held any judicial office in India for not less than 5 years,
(iv) He must have been the Presiding Officer of the Labour Court constituted under any provision of State or provincial Act, for not less than five years. In State of Haryana v. The Haryana Co-operative Transport Lad AIR 1977 S.C. 237. The question of qualification was raised.
Functions of Labour Court- Where an industrial dispute is referred to a Labour Court for adjudication, it is bound to hold its proceeding expeditiously and thereafter as soon as it is practicable on the conclusion thereof, to submit its award to the appropriate Government.
Jurisdiction of the Labour Court. The matters specified in the Second Schedule of the Act come within its jurisdiction. These matters are as follows:
(i) the propriety or legality of an order passed by an employer under the standing orders,
(ii) the application and interpretation of standing orders,
(iii) discharge or dismissal of workmen, including reinstatement, of or grant of relief to workmen wrongfully dismissed,
(iv) withdrawal of any customary concession or privilege, illegality or otherwise of a strike or lock-out, and
(v) all matters other than those specified in the Third Schedule Jurisdiction means authority to decide. Ujjam Bai v. State of U.P., AIR 1962 S.C. 1621.
In Managing Director Bala Saheb Desai Shemkari S.K. Ltd. v Kashinath, (2009) 1 S.C.C. 372, Supreme Court has ruled that Labour Court ordinarily should not interfere with the discretion exercised by the employer unless the punishment is found disproportionate to the misconduct, absenteeism, reporting late to work The labour Court must exercise the discretion vested in it in a judicious manner. Award of reinstatement with continuity of service with 50% back wages was not just taking in view the gross misbehaviour of the workmen.
Powers of Labour Court. The Labour Court has the same powers. which are vested in the Civil Court for the trial of any case under the Code of Civil Procedure, 1908. They are as follows:-
(i) Compelling the attendance of any person and examining him on oath.
(ii) Compelling the production of documents and substantial objects.
(iii) Issuing commission for examining the witnesses.
(iv) Such other matters as may be prescribed.
In addition to these, the Labour Court may also use the following powers.
(i) Right to appoint two assessors to aid and advise in the proceedings. They must be expert in the concerning matters.
(ii) To be treated as a public servant under Section 21 of Indian Penal Code
(iii) Right to award costs of an incidental to, any proceedings before it. This is in the discretion of the Labour Court to give direction as to who shall pay the cost, how and to what extent and period of time
(iv) Right to award reinstatement of the workmen when it is satisfied that the dismissal or discharge was not justified. It may give such other appropriate relief. It shall submit its award which shall be in writing and signed by the Presiding Officer. The appropriate Government will publish the award within 30 days from the date of its receipt.
The Labour Court shall keep the matters before to the dispute referred. Divisional Suptt. S.C. Rly. Sholapur v. M.K. Kulkarni, (1982) ILLJ 64. It is confidential as provision of Section 21 requires.
It was held in Dwarikesh Sugar Industries Ltd v. Presiding Officer Labour Court, (2010) 5 ADJ 682 that there is no provision which permits labour Court to decide one issue as preliminary issue if there are more than one issues. All issues are to be tried together and decided by single judgment. Labour Court cannot make a declaration that the seasonal workman in a Sugar factory is permanent workman [AIR 2009 SC 304).
Labour/Industrial Court is not functus officio for considering application to set-aside ex-parte award which has become enforceable. [M/s Haryana Suraj Malting Ltd. v. Phool Chand, AIR 2018 SC 2670]
Q. 4 (b). Discuss the constitution, and function of National Tribunal as provided under the Industrial Disputes Act, 1947.
Ans. Constitution of the National Tribunal. The Central Government may, by notification in the Official Gazette constitute one or more industrial National Tribunals for the adjudication of industrial disputes relating to any matter of national importance specified in second and third schedules or in which Central Government and State Government have interest of the matter is related to industry situated in more than one State, or the dispute may affect the other connected or allied industry. Only one person shall be appointed as Presiding Officer of the National Tribunal.
Qualification of Presiding Officer. A person cannot be appointed as Presiding Officer of a Tribunal unless,-
(a) he is, or has been a Judge of the High Court.
He shall be deemed disqualified under Section 7 (c) (a) if he is not an independent person or
(b) he has attained the age of 65.
The appropriate Government may appoint, if it thinks fit, two persons as assessors to advise the Tribunal in respect of proceedings before it.
Functions of the National Tribunal. The scope and jurisdiction of the National Tribunal is very wide and it depends on the orders and reference of industrial disputes to it. Its main function is to adjudicate and submit its award which shall be published within 30 days of its receipt. Section 15 prescribes that where an industrial dispute has been referred to for adjudication, it should hold its proceedings expeditiously and must, as soon as it is practicable on the conclusion thereof, submit its award to the appropriate Government. Tribunal should confine its jurisdiction to those points referred to it.
Powers of National Tribunal.-(1) National Tribunal can exercise all those powers which are vested in the Civil Court under the Code of Civil Procedure, 1908, as compelling the attendance of witnesses and examining them.
(2) It has right to receive evidence, administer oath, compel production of documents and substantial objects etc.
(3) It can interfere in the orders and actions of the management such as. retrenchment, discharge or dismissal.
(4) It can award costs and other appropriate relief whatever it thinks fit. It can attach retrospectively the revised pay scale-See Tata Consulting Engineers v.Workmen. AIR 1901S.C. 422.
Q. 4 (c). What is Award? When does an Award become enforceable on whom Awards are binding in a Industrial Dispute proceeding?
Ans. Definition of Award. According to Section 2 (b) Award means an interim or final determination of any industrial dispute or of any question relating thereto, by any Labour Court, Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10 (A).
It is worthwhile to understand from the aforesaid definition that the question of any industrial dispute should have been decided on its merits.
Publication of an Award. The award must be in writing and signed hy the Presiding Officer. It should be published by the appropriate Government within 30 days of its submission and receipt. It will be published in the manner the Government thinks fit. This provision of Section 17 is mandatory but the provisions concerning the time period of publication are directory in nature. But it should not be published when a settlement is arrived at before publication.-A 1964 SC 1603.
When does an Award become enforceable?-According to Section 17A (1) an award (including an arbitration award) becomes enforceable on the expiry of 30 days from the date of its publication. If award is totally accepted, it will be enforced in its true spirit. If it is partly amended, it will be enforceable only after the approval of the amendment by the Parliament or the State Legislature, as the case may be. The appropriate Government is empowered to reject the award on the ground that there will be too much financial burden and national economy will be adversely affected thereby. Award will be enforceable from the specified date and in case no date is specified, then generally after 30 days from the expiry date of the publication.
Persons on whom awards are binding. Section 18 contains the provision regarding the binding nature of an award-
(i) A settlement arrived at by agreement between the employer and the workmen, otherwise than within the course of conciliation proceedings is binding on the parties to the agreement.
(ii) An arbitration award, which has become enforceable is binding on the parties to the agreement who referred the dispute to arbitration.
(iii) An award of Labour Court, Tribunal or National Tribunal which has become enforceable is binding on.
(a) All parties to the industrial dispute. 1
(b) all other parties summoned to appear in the proceedings as parties to the dispute unless they are so summoned without proper cause as per record of the opinion of the Labour Court or Tribunal.
(c) Employers, his heirs, successors, or assigns in respect of the establishment to which the dispute relates.
(d) Workmen, at the time and date of referring the dispute for adjudication, in service and also those workmen, who are subsequently employed in that establishment or part thereof. It is not binding on members of a union which was not party to the reference-Dunlop India Lad Their Workmen, 1972 Lab IC 1067
Q. 5 (a). What is Strike? When a strike in an industrial establishment other than public utility service is illegal?
OR
What is strike? How are strikes permissible under the Industrial Disputes Act, 1947? Distinguish it from lock-out.
Ans. Definition of strike-Section 2 (q) defines strike as follows-
“As a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment.”
The definition makes it very clear that the main element of strike is collective behaviour, consultation, concerted effort and common understanding. It is immaterial, how many persons participate into the strike and how is it made.
Essential Elements of Strike
(1) The existence of any industrial establishment
(2) The refusal to work or accept the employment by a section of the workmen.
(3) To mount pressure on the employer to accede to their demands raised by them.
It may be noted that the strike is a useful weapon in the hands of the workmen to compel the employer to accept their demands.
Conditions for going on Strike.- No person shall go on strike in public utility service in breach of contract:
(a) without giving the employer, a notice of strike, within 6 weeks before striking, or
(b) without 14 days of giving such notice, or
(c) before expiry of the date of strike specified in any such notice, or
(d) during the pendency of any conciliation proceeding pending before the Authority concerned and 7 days after the conclusion of such proceeding
Supreme Court has held that obligation of giving nonce is necessary naly in case of strike of public utility services, not the industries of general nature. ((2004) 4 S.C.C. 268].
When Strike is Illegal. The strike shall be illegal in the following circumstances.
(i) When strike is commenced in public utility service in contravention of the provisions of Section 22.
When strike is made in the industrial establishment in contravention of Section 23.
If the strike is made in violation of any order of the appropriate Government.
But strike shall not be illegal in the following events-
(1) If there is no violation of any provision of the Act at the time of commencement of the strike.
(2) If it is not prohibited by any order of the Government.
(3) If the strike is made when the employer has declared lockout.
There is no provision regarding the termination of relationship of employer and employee and deeming the period of strike as unauthorized absence. [See U.P. State Bridge Corporation Joint Workmen’s Union v. U.P. Bridge Corporation, 2000 LLR 151 All].
Distinction between Strike and Lock-out
Strike :
1. In strike, the work is stopped in an industry by a section of workmen in common understanding.
2. Strike is a very powerful weapon in the hands of the workmen to compel the employer to concede to their demands.
3. In case of strike, the workmen refuse to work.
Lock-out :
1. In lock-out, the employer closes the place of employment.
2. Lock-out is the weapon in the hands of the employer to discourage and check the strike.
3. In lock-out the employer refuses to give employment to the workmen.
Q. 5 (b). Discuss whether strike by workers and lock-out by employers are the fundamental rights granted by the Constitution?
Ans. The freedom of strike and lock-out does not figure in the 6 fundamental rights guaranteed by Article 19 of the Constitution. Under the provision of Article 19, the employers and the workmen have every right to form association or Trade unions of their own, and can go to that extent for compelling the other party to concede to their demands, where there is no restriction on exercise of such rights under Article 19 (2). The Supreme Court, while deciding and giving judgment in Kameshwar Singh v. State of Bihar, AIR 1962 S.C. 1166 and A.K. Ghosh v. E.R. Joseph, AIR 1970 S.C. 86, has made it very clear that the right of strike is not a fundamental right and putting restriction on it is not unconstitutional. However right of strike by the workmen may be exercised in accordance with the provisions contained in Sections 22 and 23 of the Industrial Disputes Act, 1947. This can be exercised to a limited extent. A control or restriction is put on this right under the Act.
On the one hand, the strike is a powerful sharpened weapon in the hands of the workmen as against their employers of stubborn nature, on the other hand the lock-out is the same type of weapon in the hands of the employers against the unsocial workers of wicked nature bent upon breaking the law and spreading the violence. Although, these weapons are recognized under sub-sections (2) and (3) of Section 24 of the Industrial Disputes Act, 1947, but the use of such weapons is not guaranteed by the Constitution as a fundamental right. Although the right of strike, is not fundamental one, even then the right of strike cannot be declared illegal, putting a full restriction thereon. If such restriction is imposed at all, the fear and possibility will be that a party may be uncontrolled thus becoming dominant on the other. So, the Act imposes some restriction in some certain conditions through the provisions contained in Section 22. The strike can be declared illegal under certain conditions mentioned under Section 24. Section 26 contains provision which makes the strike illegal and provides punishment, imprisonment or fine or both. This provision is made to minimize the strikes and discourage the attitude of going on strike.
Supreme Court, while deciding the case of India General Navigation and Railway Company Ltd. v. Workmen, AIR 1960 S.C. 219, said in plain words that it is difficult to understand that a strike, which is illegal and made in the public utility service, how can it be called justifiable? These two conclusions cannot be accepted simultaneously from the legal point of view. No such classification of strike can be made in law, which is justifiable at one hand and unjustified and illegal at the other.
Q. 5 (c). Define lock-out when and under what circumstances a lock-out shall be illegal. Distinguish it from Retrenchment.
Ans. Definition of Lock-out.-“Lock-out” means the temporary closing of place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him.
Lock-out is such a weapon in the hands of management or the employer, by which the workmen are compelled to work under the conditions of employment and to accept the direction of the employer.
Essential elements of lock-out
(i) Temporary or permanently closing the place of work or just giving employment.
(ii) Such method is adopted to put pressure on the workmen.
(iii) Such lock-out is made in an undertaking which falls under the definition of industry.
(iv) Lock-out is made to the industrial dispute.
Conditions of Lock-out. The existence of any industrial establishment is a must for declaration of lock-out.
No employer shall give notice of lock-out in public utility service in breach of contract-
(i) without giving the workmen or their union a notice of lock-out within 6 weeks before lock-out, or
(ii) within 14 days of giving such notice, or
(iii) before the expiry of date of lock-out specified in any such notice.
ог
(iv) during the pendency of any conciliation proceeding, and 7 days thereafter.
It is well settled, as pointed out by the Supreme Court, in Express News Papers v. Their Workmen, 1962 11 LLJ 227 S.C., that a lock-out involves merely the closing of the place of business and not the business itself.
When lock-out is illegal.- (a) When the lock-out is declared in contravention of the provision contained under Section 22.
(b) If lock-out is declared in violation of provision of Section 23.
(c) If lock-out is made against any order of the appropriate Government.
Distinction between a lock-out and Retrenchment
Lock-out
1. Lock-out is made temporarily
2. The relation between the employer and workmen is not terminated but subsists and is suspended for a temporary period.
3. The lock-out is declared by way of reprisal against the workmen.
4. The lock-out is related with the place of employment.
Retrenchment
1. Retrenchment is made forever. It is permanent.
2. The relation subsisting between the employer and the workmen is terminated forever.
3. The main aim of the retrenchment is to remove a number of workmen with a view to decrease their number.
4. The retrenchment is totally concerned with employment workmen. of the the workmen
Q. 5 (d). Who are “Protected Workman”. What protection has been given by this Act to protect workman against any change made in their service condition prejudicial to them or dismissing or discharging or punishing by the employer?
Ans. The term “Protected Workman” is used in the sub-clause (3) of Section 33 of the Act of the Industrial Disputes Act, 1947, under the Act the term has meaning of that workman (i) who being an officer of a Registered Trade Union connected with establishment is recognized as such in accordance with the Rules made in this behalf, (ii) who is recognized as such in accordance with Rules made in this behalf [Industrial Disputes (Central) Rules 1956].
There is a definite percentage in every establishment who can be said to be a protected workman. According to the Act the said percentage is one of the total number of the workmen employed therein subject to a minimuni number of 5 and maximum number of one hundred.
Section 33(3) provides that during the pendency of any proceeding in respect of an industrial dispute no employes without the express permission in writing of the authority (means Conciliation Officer or a Board or of any proceeding before Labour Court, Tribunal or National Tribunal) before which the proceeding is pending shall 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, or
(b) by discharging or punishing, whether by dismissal or otherwise such protected workınan.
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 dispute is pending for conciliation or adjudication.
The protected workman should prove that action taken by the employer is to the prejudice to 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. This is a check on his uncalled for action against the workmen. If victimization is proved, the Labour Court/Tribunal can set aside the order of punishment. (Air India Corpn. v. V.A. Rebello, AIR 1972 SC 1343).
Q. 6 (a). Define 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. Definition of 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, or
(ii) break-down of machinery, or
(iii) for any other reason to give employment to a workman-
(a) whose name is borne on the muster-roll of his industrial establishment, and
(b) who has not been retrenched.
The lay-off is the refusal to give employment to workman or workmen due to the aforesaid factors as mentioned in the definition. The circumstances must be beyond the control of the employer to give work. It is due to some unavoidable circumstances that the employer is bound to refuse to give work, although he has to suffer a lot for suspension of work in his establishment. During such period the relationship between the employer and the workmen is only suspended and not terminated. The employer shall be deemed laid-off for that day on which he presents himself for work but does not get the work to do even after waiting for 2 hours or so provided his name is borne on the muster roll. 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 wholeday. The lay-off shall be treated valid (lawful) 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. 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 wholeday, and 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. Thus, a Badli Workman, or casual workman is not entitled to such compensation. Compensation shall be paid according to the provision. See Workmen of Firestone Tyre and Rubber Co. v. The Company, AIR 1946 S.C. 1775.
It may be mentioned here that 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. It is better to retrench the workmen in such circumstances, where the days of lay-off are more than 45 days in a year. If the workman is retrenched, then he shall be entitled to get retrenchment compensation, but the amount already paid by way of lay. off compensation during the preceding 12 months, shall be set off. During the period of lay-off the relationship between the employer and the workmen is suspended only, not broken.
No compensation shall be paid in the following conditions-
(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 atleast for a period of two hours, to get work.
(ii) 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 Badali workman.
(v) He has not completed one year of complete service.
(vi) If the permission for lay-off is sought (obtained) 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 kilometres and also does not require extra labour, experience, or technical knowhow.
(viii) In establishment, the number of workers is less than 50.1
Claim for lay off compensation not covered in voluntary retirement scheme. [A. Satyanarayan Reddy v. Presiding Officer, Labour Court, AIR 2016 SC 4556].
Q. 6 (b). What is Retrenchment? State the conditions precedent to retrenchment and procedure for retrenchment under Industrial Disputes Act, 1947.
Ans. Definition of retrenchment. Section 2(oo) defines retrenchment. ‘Retrenchment’ means the termination by the employer of the service of the workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but do not include-
(a) termination by way of punishment inflicted pursuant to disciplinary action, or
(b) voluntary retirement of the workman, or
(c) retrenchment of the workman on reaching the age of superannuation, if the contract of employment between the employer and the workman contains a stipulation in that behalf; or
termination of the service of a workman on the ground of continued il! health.
The Supreme Court has held in Anand Bihari v. Rajasthan State Transport Corporation, (1954) 1 LLJ 243 that the termination of service of a workman on the ground of his continued ill health cannot be termed as retrenchment. Retrenchment on the age of superannuation is valid.-B.K. Chatterji v. Jugantar Ltd., (1983) II LLJ 8 S.C.
Voluntary abandonment of service is not retrenchment. [Manju Saxena v. Union of India, AIR 2019 SC 257]
Workman awarded lump-sump compensation towards full and final satisfaction cannot be treated as retrenched employee. [Management of the Barara Co-operative Marketing and Processing Co. Ltd. v. Workman Pratap Singh, AIR 2019 SC 228]
Conditions precedent to Retrenchment.-A workman, who has been employed in any industry and has worked atleast for complete one year in the employer’s service, shall not be retrenched by the employer unless and until.
(a) (i) the workman has been given one month’s written notice indicating the reasons of retrenchment and the period of notice has expired, or
(ii) the workman has been paid, in lieu of such notice, wages for the period of the notice,
(b) 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 except of six months, and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as it may specify by Gazetted notification.
It may be noted that these are the mandatory provisions non-compliance of notice will render the retrenchment invalid. Kishan Kumar v. Union of India and others, (1982) Lab IC 108 Raj.
Conditions precedent for valid retrenchment must be complied with. It is a mandatory provision, otherwise the retrenchment made will be illegal and inoperative [see Rajasthan Lalit Kala Academy v. Radhey Shyam, (2009) 1 S.C.C. 287]. Supreme Court held in this case of invalid termination, the relief is reinstatement with back wages. In Samiti Dugdh Utpadak Sahkari Samiti Ltd. v. Presiding Officer, [2010 (4) E.S,C. 2373 (All.)]. Justice B.K. Narayana made it categorically clear, that the provisions of Industrial Disputes Act are not applicable to employee of Co-operative societies registered the Registration Act concerned. Hence the impugned award of reinstatement by Labour Court is set aside.
In the cases of retrenchment of workman, notice to State Governmen is mandatory and condition precedent. [Raj Kumar v. Director of Education AIR 2016 SC 1855].
Procedure for retrenchment.- According to Section 25 (g) the principle of “last come first go” must be strictly followed by the employer, except in cases, wherever it becomes unavoidable on technical grounds. In the absence of any agreement between the employer and the workman in this behalf, the employer must ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded, the employer retrenches any other workman. The need to observe this principle is the rule, while a departure from the same is the exception This principle will be applicable when the workman is citizen of India, and is employed in an industrial establishment. Employer has to give special reason for by passing this rule. Pary and Co. v. P.C. Pal & others, 1970 II LLJ 429.
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. See Kanpur Tannery Ltd. v. V.S. Gua, (1961) II LLJ 110 S.C.
Right to Compensation in the case of retrenchment.- The employer is bound to pay the retrenched workman compensation which is equivalent to 15 days average pay, to every completed year of continuous service or any part thereof, in excess of 6 months. It has been held by the Supreme Court in Workman of American Express International Banking Corporation v. Management, (1985) II LLJ 539 (S.C.) that while calculating the days, the Sundays and holidays also shall be included, and wages of those days shall be paid to the workman.
Distinction between Retrenchment and
Lay-off
‘Retrenchment
(1) In case of retrenchment the services of the workmen are terminated forever.
(2) The main reason for the retrenchment is the excess number of the workmen. Aim to minimize their number.
(3) The principle of “last come, first go” has to be ordinarily observed and applied, except in special unavoidable circumstances.
(4) During the period of retrenchment, the workmen are not the employees of the employer. Their relation is terminated.
(5) In case of retrenchment, the mode of compensation is two-fold. Three months wage have got to be paid in lieu of notice of retrenchment.
Lay-off
(1) In case of lay-off, the workmen are not permanently terminated.
(2) The reasons for the lay-off are prescribed or specified. Lay-off in contravention of the causes mentioned will make it illegal.
(3) Such principle is not observed in case of lay-off. Lay-off may be of any number of workmen employed in the industry. It applies equally to all the employees without any distinction whatsoever.
(4) During the period of lay-off the relation between the employer and the employees remains intact and not broken. It subsists.
(5) In case of lay-off the mode of payment of compensation is different from that of retrenchment. It is paid only for the days of lay-off.
Q. 6 (c). Explain provision of re-employment of retrenched workmen.
Ans. Chapter V-A (Sections 25-A to 25-J) of the Industrial Disputes Act, 1947 lays down for lay off and retrenchment. Section 25-G and 25-H laid down the Principle of “Last come first go” to be applied in the another of retrenchment and of preference being given to the retrenched employees in case of re-employment.
Retrenchment means discharge of surplus labour by the employer otherwise than by way of punishment.
Section 25-H of the Act makes a mandatory provision in the regard of re-employment of retrenched workmen. Atleast ten days before the date on which any vacancies are to be filled by an employer shall arrange for the display on notice board in a in the conspicuous place mises, deta premises. details of those vacancies, intimate retrenched workmen by registered post or personal delivery, to their address. If the vacancy is for less than one month, employer is not bound to give individual notice. As far as possible, the employer shall re-employ retrenched workmen in order of their seniority and that too category-wise.
Section 25-H imposes an obligation upon the employer to give first preference to retrenched workman whenever he decides to increase the strength of his establishment. He should first offer the job to retrenched workman before he can engage any other person. The section does not confer any right to workman to secure employment on his previous terms and conditions of service, it simply provides for the preference to employment to the retrenched workmen.
Object of Section 25-H.-Object of Section 25-H is to give preference to retrenched employee over other persons. [Management of the Barara Co-operative Marketing-cum-Processing Co.Ltd. v. Workman Pratap Singh, AIR 2019 SC 228]
For the application of Section 25-H following conditions should be satisfied-
(a) The workman should be ‘retrenched’ before the re-employment.
(b) He should be a Indian Citizen.
(c) He should offer himself for re-employment in response to the notice by the employer and
(d) He should be from the same category in which the employment is proposed.
In the case of Industrial Hume Pipe Co. Ltd. v. Baliram and Crujbhiya (1965 (II) LLJ 610) the Hon’ble Bombay High Court has clearly been held that there is nothing in section 25-H which gives a workman the right to secure re-employment on his previous terms and conditions.
In the case of New Bharat Hindi Daily, Nagpur v. Nav Bharat Shramik Sangh and another, (1985) 1 LLJ 470 (Bom) the Bombey High Court has held that section 25-F and 25-G are independent of each other and either of them have to be complied with at the time of retrenchment. Failure to comply either of the two, would render the retrenchment invalid.
Where conduct of workman constitute voluntary abandonment of service, once abandoned, employee ceased to be in continuous service, Such employee was not entitled to reinstatement. [Manju Saxena v.Union of India, AIR 2019 SC 257]
Q. 6 (d). Explain the meaning of “Unfair Labour Practice” and discuss the law relating to the unfair labour practice as provided in the Industrial Disputes Act, 1947.
Ans. Meaning of the Unfair Labour Practice. According to Section 2 (ra), unfair labour practice means any of the practices specified in the Fifth Schedule. The provisions about such practices are contained in Sections 25 and 25U newly inserted by the Amendment Act, 1982 and they provide for a restriction on unfair labour practice. Such unpractices 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 25Q, 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. 1,000 or both.
For restriction of such unfair labour practice, a new Chapter V-C was added by the amending Act, 1982.
Following are unfair labour practices-
(1) To interfere, prohibit and stop forcibly, the organizing of the workmen, forming union, or participating therein, or assisting or for the purpose of collective gain or, any other mutual benefit or the use of their rights in self defence.
(a) Threatening the discharge or dismissal of the workmen so as to stop them to join the Trade Union.
(b) If Trade Union is formed, to threaten the lock-out or lay-off.
(c) In order to frustrate the organization of the Trade Union pay the wages at the enhanced rate in the transitory period of the Trade Union.
(2) To refuse bargain collectively with the employer by any recognized Trade Union.
(3) To be engaged in the coercive activities against the collective representation.
(4) To organize, or encourage, or instigate such coercive activities, suchas, go slow work, picketing after, the period of work, or gherao, the managerial, or other staff or intimidate them.
Q. 6 (e). What do you understand by the term “Reference” under the Industrial Disputes Act, 19477 Discuss the procedure, requisites and effect of competent and valid references?
Ans. Section 10 of the Industrial Disputes Act, 1947 lays down the provisions of making reference of the disputes to a Board, Court or Tribunal adjudication of the same by the appropriate Government. It has been laid down in Virendra Bhandari v. Rajasthan S.R.T.C., (2002) 9 SCC 104 that the object of reference is to maintain industrial peace and not mere adjudication of disputes between two private parties. It was further held in this case that non-appearance of party does not mean that dispute did and exist on ceases to exist second reference will be valid when one party did not appear. The condition precedent for the reference is that either any dispute exists or is apprehended.
The following are the various authorities to which reference regarding any industrial dispute on any matter connected or relevant thereto, may be made by appropriate Government-
(i) Board of conciliation for promoting settlement thereof, or
(ii) Court of Inquiry for inquiring into the facts, or
(iii) Labour Court for adjudication, or
(iv) National Tribunal.
Following are the provisions regarding reference to Labour Court-
(i) dispute relates to any matter specified in the third Schedule, and
(ii) such dispute is not likely to affect more than one hundred workers, and
(iii) the appropriate Government thinks it fit to be referred to a Labour Court under clause (e) law relating to reference in public utility service.
Following are the prerequisites to be satisfied for the reference of Industrial Dispute to Industrial Tribunal (Public Utility Services)-
(i) the dispute must relate to public utility service, and
(ii) a note under section 22 has been given,
(iii) in the estimation of appropriate Government the notice has been frivolously or vexatiously given, or
(iv) such approval for reference is in expedient.
While other prerequisites are fulfilled irrespective of the fact that other proceedings under this Act in respect of dispute is panding, the appropriate Government can allow for reference to Industrial Tribunal.
When Central Government is of opinion that any Industrial Disputes involves any question of national importance or industrial establishments situated in more than one State and that dispute should be adjudicated by the National Tribunal then Central Government whether it is or not an appropriate Government refer the dispute or matter at any time by order in writing to National Tribunal and on such reference no Labour Court or Tribunal shall have power to adjudicate the same and accordingly: –
(i) If the matter under adjudication before the National Tribunal is also pending before Labour Court or Tribunal it shall be deemed to have been quashed on such reference to National Tribunal.
(ii) It shall not be lawful for the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency before National Tribunal.
Matters under consideration before the Labour Court or Industrial Tribunal can be sent to the National Tribunal for adjudication but not reverse, doing so will vitiate the proceeding where any industrial disputes in relation to which the Central Government is not the appropriate Government is referred to a National Tribunal then notwithstanding anything contained in this Act, any reference in sections 5, 17, 19, 33-A, 33-B and 36-A to the appropriate Government in relation to such dispute shall be construded to Central Government but save as aforesaid and as otherwise expressly provided in this Act any reference to any other provision of this Act to the appropriate Government in relation to that dispute shall means a reference to the State Government.
Making reference is the discretionary power of the Government and not mandatory neither judicial nor quasi judicial. [Government of India v. National Tobacco Co., 1977 A.P. 250]
Section 10(2-A) shall specify such period within which such Labour Court, Tribunal or National Tribunal shall sufficient referred. Industrial dispute its award to Appropriate Government.
Requisites of valid reference.– (a) Appropriate Government; (b) Opinion; (c) Government must have acted bona fide in making the reference: (d) Industrial dispute; (e) Matter must be relevant with the dispute; (f) Industries must be existing or alive and not to be dead; (g) Order of reference not to be contrary to the provision of Section 10(i) and other statutory provisions of the Act; (h) Res judicata will be applied; (i) Order must be in writing and oral order will be invalid; (j) No form of reference is prescribed; (k) Reference not required to be published.
Effect of competent and valid references. The making of a reference by the Government is an administrative act and the function of the Government being administrative in nature no writ of certiorari could be issued to correct the decision (1956) 1 LLJ 56. Power of reference of Government is discretionary and not mandatory, neither judicial nor quasi judicial, its refusal of making reference it can be compelled to give reasons by filing a petition if the refusal is arbitrary or contrary to law (Government of India v. National Tobacco Co., 1977 A.P. 250). The Government is exercising the administrative power while referring the industrial dispute and as such cannot judicially adjudicate the same. Kuldeep Singh v. Instrument Design Development and Fertilizer Centre, (AIR 2011 SC 455). The Industrial Tribunal cannot go into the Validity of Reference on National Engineering Industries Ltd. v. State of Rajasthan (AIR 2000 SC 469). The Labour Court cannot go out of the reference U.P. State Electricity Board & others v. Presiding Officer, Labour Court, [(2002) 2 AWC 975]. It was held in Hotel Imperial New Delhi v. Hotel Workers Union, (AIR 1990 SC 1224) that Labour Court, Tribunal or National Tribunal cannot go beyond reference.
Limitation. No period of limitation is prescribed. Limitation Act does not apply. [Prabhakar v. Director, Sericulture, AIR 2016 SC 2984].
THE TRADE UNIONS ACT, 1926
Q. 7 (a). Trace the development of Trade Union Movement in India.
Ans. History of Trade Movement Union in India. The Trade Union Movement in our country has passed through the conditions of England after the advent of factory system in India. The First Cotton Mill in India was established in 1851 in Bombay and the first Jute Mill in 1855 in Bengal. This was the beginning of the Modern factory System in India.
Prof. S.N. Dhyani has observed that the year 1875 is landmark in the history of Trade Union Movement. For the first time in India factory workers united together for securing better working conditions in the factories. The First Factory Commission was appointed in Bombay in the year 1875 and the first Factories Act was passed in 1881. The Act proved highly inadequate consequently another Factory Commission was appointed in 1889. Mr. Lokhandey organized a conference of workers in Bombay and draw up a memorandum signed by some 5300 workers to be presented to the Factory Commission. This was the beginning of Modern Trade Union Movement in India. In the year of 1890 the Bombay Mill Hands Association was established under the Presidentship of Mr. Lokhandey. This was the First Labour Association in India. The Bombay Mill hands Association cannot however, be classified as a genuine Trade Union because the workers did not have affective organization of their own it had no existence as an organized body having no roll of membership, no funds and no rules.
The declaration of war in 1914 had very much helped in the growth of labour movement in India. The entire economic situation was changed. During the period following the termination of the First World War, intense industrial unrest grow in various parts of India, due to high costs of living. The political agitation accelerated this unrest. Consequently, the workers restored to strikes from time to time to solve grievances and various Action Committee came into existence which used to guide the strikes. The Madras Labour Union was the First Trade Union of modern type in India. The All India Trade Union Congress was established in the year of 1920. The success of these strikes, the world wide uprising of labour consciousness and the establishment of the International Labour Organisation helped the growth of Trade Unionism in India.
Since success of Trade Unionism depends on democratic spirit and education in India the majority of the labourers in illiterate, the progress in the direction has neither to been hardly satisfactory. Its progress before pre- independence also was hardly satisfactory but after we became free its progress was tremendous. How, there is Trade Union in every field and in every establishment.
The passing of the Indian Trade Union Act in 1926, which was amended in the year of 1964, the word “Indian” was dropped by Act No. 38 of 1964. From its title since then it is called “The Trade Unions Act 1926”, is an important landmark in the history of the Trade Union Movement in the country. It gives a legal status to the registered Trade Union because before 1926 trade unions were treated as illegal bodies. It was only after 1926 onwards that the movement acquired a big spurt and dynamism in bringing together the elements which were hitherto scattered divided and disunited. It was a grate success rather a leap forward which they achieved after a prolonged struggle suffering and sacrifice.
Q. 7 (b). Define the term ‘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. Definition of 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, or imposing terms and conditions on conduct of any profession or handicraft, and it also includes the federation of two or more than two unions. It is provided that this Act will not affect.
(1) Any consent regarding the business among the partners.
(2) Agreement entered into by the employer and the workmen in relation to any employment.
(3) Any consent, or agreement in relation to any business, handicraft, in connection with the consideration of sale of good-will of any business.
Membership of a Trade Union. The Act does not provide as to how the membership of a Union can be obtained. Section 25 of the Act lays down that any person can obtain the membership of the union provided that he has completed 15 years of age. It is clearly mentioned that person between the age of 15 to 18 years, can be the member of the Trade Union.
but he cannot be elected as office-bearer of the union. For being an office-bearer, he must have attained the age of 18 years, ie, he must be a major.
It may be noted that the membership of union does not automatically discontinue. There is no provision as such in the Act as is ruled by the Supreme Court in Bokazen Cement Corporation Workers’ Union v. Cement Corporation of India, [AIR 2004 SC 245].
Disqualification for Authorities (office-bearers) 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 or she 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. But Section 22 puts this restriction. The number of outsider, shall in no case exceed more than 50% of the total membership. Atleast 1/2 of the office-bearer shall be elected or nominated from amongst the members who are employed in that industry. Thus it is clear that number of outsiders as office-bearers shall not be more than 50% of the total membership of the Union concerned.
Q. 7 (c). “In a welfare State, Social interests have top priority.” Write a short essay on this statement adverting to the legal status of Trade Union in India.
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.
Section 2 (h) of the Act, defines Trade Union as “any organization formed temporarily or permanently, for regulating mainly the relations between the employer and workmen or between workmen and workmen or between employer and employer or imposing terms and conditions on the conduct of the business, or handicraft, and it also includes the federation of two or more than two unions.
Regarding the legal status of the Trade Unions, Section 13 is the magna carta of the rights of Trade Unions in India. The whole edifice of the Trade Unions is based on this, which declares as has been confirmed in the decision given in Hardy and Lane v. Chilton, (1928) 1 KB 663 that “Every Trade Union registered is a body corporate in its own name, and it will have consistent perpetual common seal, 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 result follows from this section-
(1) From the legal point of view, it makes rules for the registered Trade Unions.
(2) It will have its own name.
(3) It will have perpetual succession.
(4) It can acquire and possess movable and immovable property.
(5) It will have right to enter into contract. Any agreement entered into union and the management is to be given higher place than the judicial decision. This view was expressed by the Supreme Court in T. Chalam v. Manager of Lotus Mills.
The Act provides three privileges 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.
The meaning of the Trade Union is not negative only. There are many positive aspects as well. 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. 8 (a). Which modes is appointed the Registrar? Explain the powers and functions of a Registrar of a Trade Union? When he can cancel the Registration Certificate of a Trade Union. Discuss.
Ans. Appointment of the Registrar. Section 3 of the Trade Unions Act, 1926 is deals with appointment of Registrar it provides that appropriate Government shall appoint a person to be the Registrar for each State. By the Amending Act 42 of 1960 the Parliament has further empowered the State Governments to appoint as many Additional and Deputy Registrars of Trade Unions as they thinks fit. Sub-section (2) of the Section 3 speaks of the Appointment of Additional Registrars and Deputy Registrars.
The Additional and Deputy Registrars are appointed where the Registrar is unable to exercise and discharge the powers and functions due to excessive work load. In such situation the appropriate Government appoints these officers to function under the superintendence and direction of the Registrar and demarcate local limits and also specify powers and functions to them.
Subject to the provisions of the sub-section (2) where an Additional or Deputy Registrar exercises and discharges the powers and functions of a Registrar in area within the registered office of a Trade Union is situated, the Additional or Deputy Registrar shall be deemed to be the Registrar in relation to the Trade Union for the purposes of this Act.
Powers and Functions of the Registrar-The Registrar has following powers and functions under the Act-
(1) According to Sections every application shall be made to the Registrar. Registrar may accept such application or reject the same.
(2) Section 7(1) of the Act lays down that the Registrar may call for further information for the purpose of satisfying himself that any application made for registration complies within the provisions of section 5.
(3) Registrar under the powers given under Section can refuse the registration till such further informations as refused by him are applied.
(4) Power to alter the name of the Trade Union. Registrar under sction 7
(2) require a trade union to alter its name if:-
(a) the name is identical with another Union already registered, or
(b) reasonable so nearly to some other name as to be likely to deceive the public or the members of other union.
If the trade union does not alter the name as required by the registrar he shall refuse to register the Union until such alteration has been made.
(5) The Registrar is entitled to call for evidence that the application for registration has been duly authorized by members of the union, if he has reason to believe that the applicants have not been duly authorized to make the application.
(6) The Registrar has no power to refuse the registration of the Trade Union if the technical requirements are complied with and the registration cannot be denied on the ground that it attempts to revive an old unlawful union into new name.
Section 8 imposes the statutory duty upon the Registrar to register Trade Union on being satisfied that it has complied with all the requirements of the Act. (ACC Rajanka Lime State Quarries Mazdoor Union v. Registrar of Trade Union, AIR 1958 Pat. 470).
(7) According to Section 9 Certificate of Registration to be issued by the Registrar after the Trade Union is registered. The Certificate issued by the Registrar shall be conclusion evidence that the Trade Union has been duly registered under this Act.
(8) Power regarding election in North Eastern Railway Employee’s Union and others v. A.D.J. III Farrukhabad and others, (1988) (2) LLJ 332 (SC) the Apex Court held that the Registrar of Trade Union is only the authority who has to discharge the duty of supervising the elections or administer the provisions of the Act.
(9) Cancellation of registration– Section 10 makes the provision for the cancellation or withdrawal a certificate of Registration issued to a Trade Union. Registrar may withdraw or cancel a certificate of registration on no less than 2 months previous notice specifying ground in writing.
(10) Under Section 27 of the Act the dissolution of the Trade Union shall be registered by the Registrar if he is satisfied that the dissolution has been effected in accordance with the rules of the Trade Union.
(11) Withdrawal of Recognition (Section 28-G)- Where the recognition of a Trade Union has been directed under Section 28-G. The Registrar may apply in writing to the Labour Court for withdrawal of recognition on any of the grounds:
(a) that the executive or the members of the Trade Union have committed any unfair practice set out in section 28-J.
(b) failed to submit any return referred to in Section 28-J. (c) Trade Union has ceased to be representative of the workmen referred to in clause (b) of Section 28-D.
Cancellation of registration. According to Section 10 of the Act, 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’s member.
(2) At the will of Registrar.
(1) On the application of Trade Union’s member. The Registration of the union be cancelled and in such an event the Registrar before granting the application he shall satisfy himself that the withdrawal or cancellation of registration was approved by getting of the trade union and after not less than 2 months previous notice in writing specifying the grounds for the proposed. Cancellation or withdrawal given to the Trade Union concerned.
(2) At the will of Registrar. It is Registrar of Trade Union on whose satisfaction the certificate of registration is issued to the Trade Union. If the Registrar does not remain satisfied in positive direction he may withdraw or cancel the certificate of registration on any one of the following grounds-
(a) that the certificate has been obtained by fraud or mistake; or
(b) that the Trade Union has ceased to exist; or
(c) that the Trade Union wilfully and after notice from the Registrar contravened any provision of the Act;
(d) that the Trade Union has allowed any rule to continue in force which is in consistent with any such provision of the Act;
(e) that the Trade Union concerned has rescinded any Rule provision for which is required by section 6 of the Act;
(f) if the Registrar is satisfied that a registered Trade Union of workmen ceases to have the requisite number of members.
In Tamil Nadu Press Workers Association v. Additional Registrar of Trade Union, (2004 LLR 9 Mad.) the Madras High Court has held that there is the necessary requirement of two months written notice for cancellation of registration of Trade Union. It is also necessary to show in the notice that on what grounds the cancellation of registration has been proposed.
Q. 8 (b). What is the law relating to penalities and their procedure under the Trade Unions Act, 1926?
Ans. Chapter 5 Sections (31 to 33) of the Trade Unions Act, 1926 provides for Penalties and Procedure.
Section 31-deals with failure to submit returns.
Section 32-deals with supplying falls information regarding trade unions.
Section 33-deals with procedure.
Failure to submit returns (Section 31) Section 28 deals with the submission of returns and 31 provide for penalty for the default or failure to submit such returns or notice as required by the provisions of the Act. According to Section 31(1) if default is made on the part of any registered Trade Union in giving any notice or sending statement or other document a required by or under the provisions of this Act-
(a) every office bearer, or
(b) other persons bound by the rules of the Trade Union to give or send the same;
(c) if there is no such office bearer or person, every member of the executive of the Trade Union.
shall be punishable with fine which may extend to Rs. 51 and in case of continuing default with the additional fine which may extend to rupees five for each week after the first during which the default continues. The proviso to sub-section (1) lays down that in any case the total fine shall not exceed fifty rupees.
Sub-section (2) of section 31 further provides that any person who wilfully makes or causes to be made any false entry or any omission from the general statement required under section 28 of the Act; or from any copy of rules or alterations of rules sent to the Registrar under that section, shall be punishable with fine which may extend to five hundred rupees treating it a more severe offence.
Supplying false information regarding Trade Unions.- Section 32 provides that any person who with intent to deceive, gives to any member of a registered Trade Union or to any person intending or applying to become a member of such Trade Union, any document purporting to be a copy of the rules of the Trade Union or any alterations to the same which he knows, or has reason to believe is not correct of such rules or alterations as are for the time being in force or any person who with the like intent, gives a copy of any rules of an unregistered Trade Union to any person on the pretence that such rules are the rules of a registered Trade Union, shall be punishable with fine which may extend to two hundred rupees.
For the punishment under the section two elements are required to be proved-
(a) the false information is given with the intent to deceive, and
(b) with the knowledge or has reason to believe that the same is not correct.
The offence under the section which are punishable are as follows-
(i) gives a copy of document purporting to be rules of the Trade Union, knowingly that the same is not correct copy of the rules, or
(ii) gives a copy of any unregistered Trade Union on the pretence that such rules are of registered Trade Union.
Procedure. Section 33 of the Act provides for procedure. Section 33(1) lays down that no Court inferior to that of Presidency Magistrate or a Magistrate of the First Class shall try any offence under this Act. Sub- section (2) provides that no court shall take cognizance of any offence under this Act unless the complaint thereof has been made by or with the provisions sanction of the Registrar or in the case of an offence under Section 32, by the person to whom the copy was given, within six months of the date on which the offence is alleged to have been committed.
The cognizance of an offence cannot be taken by any Court unless –
(i) a complaint has been made by the Registrar, or
(ii) with his provisions sanction by any person, or
(iii) in the case of an offence under Section 32 of the Act by the person to whom such copy has been given.
Limitation for complaint. Complaint must be made within six months from the date on which the offence is alleged to have been committed.
Q. 8 (c). What are the provisions of Law relating to appeals against any refusal of the Registrar to register a Union, or withdrawal or cancellation of a certificate of registration in the Indian Trade Unions Act, 1926.
Ans. It is the practice of every legislation to provide for judicial control over the exercise of powers and functions by the executive authority. The Trade Unions Act also contains for judicial review of the functions performed by the Registrar of Trade Unions. The Trade Unions Act under its Section 11 makes provision that any such person aggrieved by order of the Registrar has right to appeal within such period as may be prescribed, in the Court of comptent jurisdiction against the order of the Registrar. The following orders are appealable-
(i) Any refusal of the Registrar to register a Trade Union;
(ii) Withdrawal of the registration certificate; or
(iii) Cancellation of the registration certificate.
It has been held in Mysore Iron and Steel Works Labourers’ Association v. Commissioner of Labour and Registrar of Trade Unions, Bangaore, (1972 Lab IC 799) that as there is no definition of the word person in the Act so the definition given in Section 3(42) of the General Claus Act must be looked into for the definition of the term and accordingly, the person under this section includes natural as well as artificial person for the purposes of filing a suit against the order of the Registrar and it must be deemed that the term “Person” in Section 11(1) includes also a judicial person like a Trade Union.
Where the appeal is to be filed. The appeal may be filed in-
(a) The High Court in cases where the Head Office of the Trade Union is situated within the limits of a Presidency-Town; or
(b) Where the Head Office is situated in an area falling within the jurisdiction of a Labour Court, or an Industrial Tribunal to that Court or Tribunal as the case may be after insertion of Amendment Act, 2001 as “section aa”.
(c) Such Court, not inferior to the Court of an Additional or Assistant Judge or a principal Civil Court or original jurisdiction as the appropriate Government may appoint in this behalf for that area, in cases where the head office of the Trade Unions situated in other area.
The words “High Court” occurring in Section 11 of the Indian Trade Unions Act means and include the High Court in its original jurisdiction as well as appellate jurisdiction. (M.K. Gooha v. Registrar of Trade Union, West Bengal, AIR 1961 Cal. 165.
Limitation. As per rules the period of limitation for filing an appeal is sixty days from the order of Registrar.
Powers of Appellate Court.– Sub-section (2) of Section 11 lays down the powers of the Appellate Court as follows-
(a) Appellate Court may dismiss the appeal; or
(b) may pass an order directing the Registrar to register the Union and issue a certificate under Section 9; or
(c) may set aside the order for withdrawal or cancellation of the certificate as the case may be.
Procedure to be adopted by the Appellate Court.- The sub- section (3) of Section 11 lays down that for the purposes of an appeal. Under section 11(1) of the Act an Appellate Court shall so far as may be follow the same procedure and have the same powers as it follows and as when trying a suit under the Code of Civil Procedure, 1908 and may direct by whom the whole or any part of the costs of the appeal shall be paid such costs shall be recovered as it they had been awarded in a suit under the said Code.
Section 11(4) provides for secord appeal in those matter in which the appeal under Section 11(1) has been heard and dismissed by any Court appointed under clause (b) of sub-section (1) of Section 11. The person aggrieved shall have a right of appeal to High Court and High Court shall for the purpose of such appeal, have all the powers of Appellate Court under sub-sections (2) and (3) and the provisions under this sub-sections shall apply accordingly.
The High Court under this section has the power to hear an appeal against the order of the Registrar where head office of the Trade Union is situated within the limits of a Presidency town. According to the decision given in Registrar. Trade Unions, West Bengal v. Mihir Kumar Guha, (AIR 1963 Cal. 56) there in no provision of second appeal in the Act that against the order of the Single Judge Bench. But however it was held that the second appeal can be preferred under clause 15 of the Letters Patent.
Q. 8 (d). What is the mode of registration of Trade Unions and in what circumstances a Certificate of Registration of Trade Union may be withdrawn?
OR
What are the requirements and procedure for registration of a Trade Union under the Trade Unions Act.
OR
State the procedure for registration of a Trade Union. What are the duties of Registrar while considering the application for Registration of a Trade Union?
OR
Discuss the provisions of the Trade Unions Act relating to registration of a Trade Union. What is the remedy if registration is refused to Union? Can registration be cancelled?
Ans. Application 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 alongwith 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 atleast 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, in the register kept for that purpose, 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 in the Union register kept in his office.
Certificate of Registration. The Registrar, registering the Union under Section 8, will issue a certificate of registration on the prescribed form. This certificate shall be the conclusive proof of the fact that the union concerned has been duly registered. The registration will hold good unless it is cancelled.
Cancellation of Registration. The Registrar is empowered under Section 10 to cancel or withdraw 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.
When the Registrar wants to take any action against the Trade Union suo motu, he shall give a prior two months notice to that effect. It is mandatory provision. Mysore Iron and Steel Works Labourer’s Association v. Commissioner of Labour and Registrar of Trade Unions, Bangalore, (1972) Lab IC 799.
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. [See Tamil Nadu Government Press Worker’s Union v. Additional Registrar, (2004) LLR 99 Mad]. If registration is got by concealing the facts or by fraud, this is sufficient ground for cancellation of registration.
Sometimes, the office-bearers of the Trade Union may appeal the Registrar to get the registration expensed, for this they have to prove that a proposal to this effect is passed in the general meeting of the members and the union is extinct no more in existence. Dissolution is one of the grounds for cancellation of the registration.
Appeal. Appeal may be preferred in the following circumstances within 60 days from the order of Registrar.
(1) Where the application for registration is not accepted.
(2) Registrar cancels or withdraws the registration. Appeal may be presented within 60 days from such an order, by the office-bearers by passing a resolution to this effect.
Appeal may be presented in the following Court-
(i) to the High Court, of the principal office of the Trade Union is situated in any of the Presidency towns,
(ii) in the case the office of the Trade Union is situated in other than the aforesaid towns to the Civil Court of original jurisdiction.
Advantages of Registration. The Trade Union is vested with the following rights after its registration-
(1) Such a Trade Union becomes a body corporate.
(2) It gets the right of perpetual succession and common seal.
(3) It can obtain and possess movable and immovable property.
(4) It can sue and be sued in its own name.
(5) It can enter into a contract through its agents.
(6) It can constitute a separate political fund.
(7) It can change its name and amalgamate into other union.
Q. 8 (e). Discuss the 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.-Some limitations are imposed on the rights of the registered Trade Union under the Act. It is the duty and liability of the Trade Union to present the account books and other relevant documents for examination by its office-bearers and members and give copy if any on demand. It is the liability of the Trade Union that it should observe fully the provisions of the Act otherwise it may be penalized for disobedience.
Q. 9 (a). 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 fulfilment of the following object (for no other object).
(1) Payment for salary, allowances and expenses for its members.
(2) 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.
(3) For the conduct of any legal action or prosecution by or against any of its members.
(4) Defence of its office-bearer or member in the industrial dispute by the Trade Union or its member.
(5) Compensation to the member due to the loss caused by industrial dispute.
(6) 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. See Mario Ra Pass v. H.M. Bhandarkar and others, 1969 Lab IC 1926.
(7) 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.
(8) Payment for the educational, social, or religious profits of its members or their dependants and funeral expenses or expenses relating to religious rites.
(9) Papers published mainly for the analysis of the questions which may influence the employer and the workmen.
(10) Payment for the contribution for the extension of the aims of the items on which general fund may be spent.
(11) 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. 9 (b). On what items 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. This fund may be utilized for the enhancement and advancement of the Civil and political interests of the members. The interest realized on the political fund and shall form the part of the political fund and gifts, subscriptions etc. can be accepted for this fund.
It may be mentioned here that no member of the Trade Union can be compelled to contribute to the aforesaid constituted fund, and such member shall not be deprived of any benefit of the union only on the ground of his non-contribution to the political fund and such member shall be placed in any disability as compared to the other members, whether directly or indirectly. It shall not be the condition precedent that the membership will be accepted only on condition of paying subscription for the political fund. But such member will not take part in the administration and control of the political fund.
The political fund may be utilized for the following objects or purposes.
(1) 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.
(2) The holding of any mecting or the distribution of any literature or documents in support of any such candidate or prospective candidate.
(3) The maintenance of any person who is the member of any legislature, or any local authority.
(4) The registration of electors or the selection of a candidate for any legislative body constituted under the constitution or local authority, or
(5) The holding of political meetings of any kind, or the distribution of political literature or political documents of any kind.
Q. 10 (a). Explain fully the privileges and immunities granted to Registered Trade Union under Trade Unions Act.
OR
Discuss the extent to which a Trade Union is exempted from committing a crime.
Ans. Privileges and Immunities of a Registered Trade Union- Sections 17 to 19 of the Trade Unions Act, provides privileges to the registered Trade Union, which are concerned with criminal, civil and contractual liabilities. They are explained as follows-
(1) As to Criminal Liability. According to Section 17 of the Act, no office-bearer, or member of a registered Trade Union shall be liable to punishment under sub-section (2) of Section 120-B I.P.C., in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in Section 15, unless the agreement is an agreement to commit an offence which if proved shall make the union criminally liable. Thus this right is not absolute in nature. Union may take appropriate action for conduct of any trade dispute, but they cannot agree to commit an offence for the conduct of their trade disputes. The union can go on strike or advise and induce the members to stop work but not to commit any offences. Dr. P.H. Danie v. Krishna lyer, (1982) 11 LLJ 353 Ker
(2) As to Civil Liability. Section 18 (1) of the Act provides that no suit or other legal proceedings shall be maintainable in any Civil Court against any registered Trade Union or any office-bearer or member thereof in respect of any act done in contemplation or furtherance of a Trade dispute to which a member of the Trade Union is a party on the ground only that such act includes some other person to break a contract of employment, or that it is an interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or labour as he wills.
Section 18 (2) provides immunity from a tortious liability to the registered Trade Unions which shall not be liable in any suit or other legal proceeding in any Civil Court for any tortious act done in contemplation or furtherance of a trade dispute by an agent of the Trade Union, if it is proved that-
(i) such person acted without the knowledge, or
(ii) contrary to instructions of the executive of the Trade Union.
But Section 18 does not speak of or afford immunity to Trade Union, its office-bearers or members for an act of deliberate trespass or gherao.- Jay Engg. Works Ltd. v. State of West Bengal, AIR 1968 Cal 407.
(3) As to contractual liabilities-Enforceability of agreement. Section 19 lays down that notwithstanding anything contained in any other law for the time being in force, an agreement between the members of a registered Trade Union shall not be void or voidable merely by reason of the fact that any of the objects of the agreement are in restraint of trade. The proviso to Section 19 lays down that provisions of this section shall not enable any Civil Court to entertain any legal proceeding instituted for the express purpose of enforcing or recovering damages for the breach of any agreement concerning the conditions on which any member of Trade Union shall or shall not.
(a) sell their goods or, transact business or
(b) work or employ or
(c) be employed.
It may be noted that provision of Section 27 of the Indian Contract Act, do not govern the agreement made by the members of the registered Trade Union which are made regarding working conditions, terms of employment, sale of goods, and business transaction etc.
Q. 10 (b). Explain the law relating to change of name, amalgamation and dissolution of Trade Union.
Ans. Change in name of Trade Union. A Registered Trade Union can change its name in the following ways.
(1) When the two-third number of the total members of the union have consented for this purpose.
(2) For the act of change of name, all the members have been duly informed by giving notice and their opinion is sought.
The notice of change of name or amalgamation. The notice for the change of name of the Trade Union or the amalgamation thereof, shall be signed by the secretary and atleast seven members of the union, and in case of amalgamation, by general secretary and seven members of each and every union respectively. Thereafter, the notice shall be sent to the Registrar of the Trade Unions, if the registered office of each amalgamating union is situated at different places, then in that situation the notice shall be served to every Registrar of those states being duly signed in the manner aforesaid.
When two or more Trade Unions, amalgamate and form a new union or federation, whether there is dissolution thereof, or there is distribution of the fund or not. It is provided that atleast 50% of the members of each union should be in favour of the change of name or amalgamation and 60% members have consented for such proposal or resolution sub-section (2) of Section 25 provides the powers to the Registrar who can refuse to change the name-
(a) if the proposed name is identical with that of another registered Trade Union; or
(b) in the opinion of the Registrar, so nearly resembles such name as to likely to deceive the public or members of either Trade Union.
The Registrar, shall, if he is satisfied that the provisions of the Act have been complied with respect of the changing of name, shall register the change of name in the register kept for registering the Trade Unions. The change shall take effect from the date of such registration by the Registrar.
Effects of change of name. According to Section 26 (1) of the Act, the change of name of a registered Trade Union, shall not affect any rights or obligations of the Trade Union, or render defective any legal proceeding by or against the Trade Union and any legal proceeding which might have been continued or commenced by or against it by its former name may be continued or commenced by or against it by its name. According to Section 26 (2) amalgamation shall not prejudice any right of such Trade Unions which are parties to it or any right of a creditor or any of them.
Dissolution of Trade Union. The dissolution of Trade Uniens depends on the consent of all its members. Dissolution may be due to so many reasons as, withdrawal of membership by members at large, or fulfilment of the aim and object of the Trade Union. When a registered Trade Union dissolved, a notice in writing duly signed by the secretary and seven member’s thereof, within 14 days of the dissolution be sent to the Registrar. If Registrar is satisfied that the dissolution has been effected in accordance with the rules of the Trade Union, he shall register the dissolution which shall have effect from the date of dissolution.