Labour Law Notes

1PREPARED BY RADHIKA SETH, PLEASE VOTE , BALLOT No. 2 2 These notes are prepared by Radhika Seth, Law Centre 2. This is meant only for personal use of students. It is not meant for public or wholesale distribution. VOTE FOR MY PANEL ON 13TH SEPTEMBERELECTION DAY. RADHIKA SETH 2 FOR PRESIDENT ANUBHAV SINGH 1 FOR SECRETARY AMIT RANJAN 1 FOR CC HARSH TOMAR 3 FOR CC 1 Industry During the twentieth century and that too mainly in the post independence period a new branch of jurisprudence known as Industrial Jurisprudence has developed in India. This branch of law, i.e., the labour and industrial law, has modified the traditional law relating to master and servant and had cut down the old theory of laissez-faire based upon the 'freedom of contract' to protect workmen against victimization and unfair labour practices by the employer and to put an end to industrial disputes by peaceful methods. The old age right of PREPARED BY RADHIKA SETH, PLEASE VOTE , BALLOT No. 2 3 an employer to hire and fire his workmen at his will has been subjected to many restraints. Industrial Tribunals can extend an existing agreement or make a new one, or in general create new rights and obligations or modify the old ones even against the wishes of the employer or workmen or both. Moreover the right of workers to participate in management has been given legislative recognition. The departure from the old theories of law of contract and law of master and servant has not only been in India but all over the world. The industrial society everywhere has been moving during the present century from contract to status and this status is politico-economic juristic status. Thus Industrial Disputes Act which is one of the important industrial legislation was passed in 1947. The object of the Act as laid down in the preamble of the Act is "to make provision for investigation and settlement of industrial disputes and for certain other purposes." The main objects of the Act as analyzed by the Supreme Court in Workman of Dimarkuchi Tea Estate verses Management of Dimarkuchi Tea Estate, are as follows:— (1) The promotion of measures for securing amity and good relations between the employer and workmen. (2) The investigation and settlement of industrial disputes between employers and employers, employers and workmen or workmen and workmen, with a right of representation by a registered trade union or a federation of trade unions or association of employees or a federation or association of employers. (3) The prevention of illegal strikes and lockouts. (4) Relief to workmen in the matter of lay-off, retrenchment and closure of an undertaking (5) Collective bargaining. Definition of Industry Section 2(j) of Industrial Disputes Act, 1947 before the 1982 amendment defined industry as under: "Industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. This definition of 'industry' in the Industrial Disputes Act, 1947 had received conflicting interpretation by the Supreme Court at different times. The scope of the term 'industry' in S. 2(j) of the Act seemed to have had all the features of the games of snakes and ladders; the term being given a very wide interpretation in Hospital Mazdoor Sabha case (AIR 1960 SC 610), a narrow interpretation in Safdarjung Hospital case and again the widest interpretation in Bangalore Water Supply and Sewerage board case. The aforesaid definition of ‘industry' in S. 2(j) of the Act is in two parts. The first part says that it means any business, trade; undertaking, manufacture or calling of employers and the second part provides that it includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. 'Industry' as it was understood can be illustrated by some important decisions on the point. "The words used in the definition are very wide in their import and even so its latter part purports to provide an inclusive definition. The word "undertaking" according to Webster means "anything undertaken, any business work or project which one engages in or attempts, an enterprise". Similarly trade according to Halsbury, in its primary meaning' is "exchange of goods for goods or goods for money" and in its secondary meaning it is "any business carried on with a view to profit whether manual or mercantile, as distinguished from liberal arts or learned professions and from agriculture" whereas "business" is a wider term not synonymous with trade and means practically "anything which is an occupation as distinguished from a pleasure." The word "calling again is very wide; it means one's usual occupation, vocation, business, or trade"; so is the word "service" very wide in its import" (State of Bombay verses Hospital Mazdoor Sabha. There has not been any difficulty in ascertaining the meaning of the words business, trade, manufacture or calling of employers in order to determine whether a particular activity systematically carried on with the cooperation of employer and employers is an industry or not but the difficulties have arisen in interpreting the word "undertaking" in S 2(j) of the Act. For the first time the question arose in D.N. Banerji verses . RR. Mukherjee, which involved a dispute between a municipality and its employees. The municipality was held to be an industry and the dispute was held to be an industrial dispute. The Supreme Court observed that the non-technical ordinary meaning of 'industry' is "an PREPARED BY RADHIKA SETH, PLEASE VOTE , BALLOT No. 2 PLEASE VOTE . it was held that a hospital run by Government is included in the definition of "industry". business". In the second case Baroda Municipality verses . (b) Any calling. the court included non-profit undertakings in the concept of industry even if there is no private enterprise. In the case Corporation of City of Nagpur verses Employees. 2 . horticulture etc. or business. The term "undertaking" was held to cover it. tool etc. machines." These first two cases laid down that for an activity to be an industry it is not necessary that it must be carried on by private enterprise or must be commercial or result in profit. It found the definition to be very clear and not susceptible of any ambiguity and observed that all the words wide and that even if the meaning could be cut down. employment. takes its colour from other four words in the first part of the definition was not accepted. trade. it was held that a hospital is an industry even if it is run by Government without profit. that municipal activity cannot be truly regarded as business or trade. and the fact that the enterprise is financed by taxation and not by capital was considered irrelevant. 1947. That Act defined industry in a different manner. the main object. It was. It was said that this interpretation renders the word "undertaking" superfluous and the latter part of the definition unnecessary. and (c) Any branch of industry or a group of industries. The Supreme Court did not attempt to bring municipal activity within the word "undertaking" but brought it within the expression "trade. The Court laid down the following working principle: PREPARED BY RADHIKA SETH. handicraft or industrial occupation or avocation of employers.P. In this definition the qualifying words "manufacturing or mining" limited the word undertaking and it could not be given the wide meaning given earlier. BALLOT No.". Act. personal or casual services are not included and examples were given of such services. This result was achieved by extending the meaning of 'undertaking' to cover adventures not strictly trade or business but objects very similar. It was held that domestic. Holding however. that a municipal undertaking of the nature we have under consideration is an "industry" within the meaning of the word in Section 2(j) of the Industrial Disputes Act and includes disputes between the municipality and their employees in branches of work "that can be regarded as analogous to the carrying on of a trade. It is sufficient if the activity is analogous to the carrying on of a trade or business and involves co-operation between employers and employees. Therefore. The activity of the municipality was not attempted to be brought within expressions business and trade. The suggestion that the word "undertaking". Under that Act the term "industry" meant: (a) Any business. the question again arose whether a municipality comes within the scope of S. and Berar Act as disclosed in the preamble. the aims and objects of the C. The Supreme Court said: "It is now finally settled by the decision of this Court in 1953 SCR 302. the question whether and to what extent the Corporation of Nagpur was an industry under the C. Referring to the inclusion of public utility service in the scheme of the Act it was held that a dispute in a public utility services is an industrial dispute. Another test reaffirmed was to enquire whether my such activity be carried on by private individual or group of individuals. and Barar Industrial Disputes Settlement. services and undertakings. manufacturing or minning undertaking or calling of employers. The meaning of industry as an economic activity involving investment of capital and systematically carried on for profit for the production or sale of goods by employment of labour was again discarded because profit motive and investment of capital were considered not necessary. The Supreme Court considered whether it can mean "undertaking". and for making profits. again emphasized that an undertaking to be an industry must be analogous to trade or business. namely social justice demanded a wide meaning. But the court said that this is too wide and that every aspect of employer-employee connection does not result in industry.P. It was however recognised in that case that a line must be drawn to exclude some callings. 2(j). Workman. Answering that a hospital can be run by a private party for profit.4 undertaking where capital and labour co-operate with each other for the purpose of producing wealth in the shape of goods. The Court distinguished between (a) regal and (b) municipal functions of the Corporation and found that the latter analogous to business or trade because they were not regal and the activity was organised and services rendered. service. and an industry in this sense includes agriculture. In the case State of Bombay verses Hospital Mazdoor Sabha. however. R. the Club is identified with its members at a given point of time. Those members can deal with the club as they like. the question was whether bus drivers employed by the University were workmen. case. and its object is the satisfaction of material human needs. Thus it cannot be said that the Club has an existence apart from its members. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. this is the denotation of the term or what the words "business. however. undertaking manufacture or calling" comprehend. M. Such an activity generally involves the co-operation of the employer and the employees. was organised in a manner in which trade or business is organised and there was co-operation between employer and employees. However in the next case of National Union of Commercial Employees verses . was carried on with the help of employees. where the employers of a firm of solicitors demanded bonus and the case satisfied the test so far enumerated. (1964). trade. The agricultural operations were held to be industry. Thus the manner in which the activity in question is organised or arranged. State of Bombay.5 "As a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods for rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. The Court agreed that the material needs or wants of a section of the community was catered for but that was not enough. trade. (overruled by Bangalore Water Supply. State of Bihar. In its first part it means any business. manufacture or calling of employers. 2 . The second part views the PREPARED BY RADHIKA SETH. was completely missing' in a members club. case. no direct or essential nexus with the advice or services. Their contribution. it was held that the Madras Gymkhana Club being a members' club was not an industry. It was observed that the Association was providing material service to a part of the community. (overruled by Bang/ore Water Supply. In the case University of Delhi verses Ramnath. stated that it must not be understood as laying general proposition. Meher. That element the Court held. This part of the definition determines an industry by reference to the occupation of employers in respect of certain activities. These activities are specified by five words and they determine what an industry is and what the cognate expression "industrial" is intended to convey. nor must it be for one's self nor for pleasure. In the next case Madras Gymkhana Club Employees Union verses Management of Madras Gymkhana Club. overruled by Bangalore Water Supply. Their aim was education and the teachers' profession was not to be assimilated to industrial workers. Therefore." In the case Ahmadabad Textile Industry Research Association verses . organised like a trade and calculated to supply pleasurable utilities to members and others. the concept of service was narrowed and it was held that the educational institutions were not an industry. That must have been done as part of trade or Business or as an undertaking analogous to trade or business. In the next case of Harinagar Cane Farm verses . it was held. It was held that the agricultural operations were organised and carried on in the same manner as trade or business is carried on by a trader or businessman. a cane farm was purchased by a sugar factory and worked as a department for supply of sugarcane. it was held that an Association for the research maintained by the Textile Industry and employing technical and other staff was industry. case. The Court said: "The Club belongs to members for the time being on its list of members and that is what matters. It must not be casual. This case is also known as Solicitor's case. The Court. a new test was added that the association of capital and labour must be direct and essential. The Court said that industry involves the cooperation of employer and employees. BALLOT No. undertaking. In this way learned professions were excluded from the scope of industry. PLEASE VOTE . the condition of the cooperation between the employer and the employee necessary for its success and its object to render material services to the community can be regarded as some of the features which are distinctive of activities to which Section 2(j) applies. The case repeated the tests stated in the Hospital Mazdoor Sabha and applied them. The service of a solicitor was regarded as individual depending upon his personal qualifications and ability to which the employees did not contribute directly or essentially." With regard to the two parts of the definition of the term "industry" the Court observed as follows: "The definition of industry" is in two parts. under the force of the second part. 2(j) of the Industrial Disputes Act. because it was a part of the functions of the government. Likewise. the Supreme Court in Bangalore Water Supply case. mail delivery. run as a department of government. which was decided on the lines of Safdarjung Hospital case was also overruled by the Supreme Court in Bangalore Water Supply case. PLEASE VOTE . In the case of The Workmen of Indian Standards Institution verses The Management of Indian Standards Institution. in the bunch of appeals were not industries. (2) Tuberculosis Hospital. But the second part standing alone cannot define "industry". service. the ambit of the industry. while a painter uses both. New Delhi and (3) Kurji Holy Family Hospital. New Delhi. PREPARED BY RADHIKA SETH. (1970) (overruled by Bangalore Water Supply. it was an institution for research and training. Workmen the Federation of India Chambers of Commerce and Industry was held to be an industry within the meaning of S. It said: "A profession ordinarily is an occupation requiring intellectual skill. If the activity can be described as an industry with reference to the occupation of the employers. The Court said: "The Federation carried on systematic activities to assist its members and other businessmen and industrialists and even nonmembers as. water transportation. Only some working principles may be evolved which would furnish guidance in determining what are the attibutes or characteristics which would ordinarily indicate that an undertaking is analogous to trade or business. In the first case the Supreme Court took the view that a place of treatment of patients. Thus a teacher uses purely intellectual skill. Similarly in the case of 'Cricket Club of India (1961) (overruled by Bangalore Water of Suppy case the Cricket Club of India was held not to be an industry. BALLOT No. a sharp bend in the course of law came. the Court held that hospitals was wholly charitable and also was a research institute. often coupled with manual skill. The Court also took view that professions must be excluded from the ambit of industry. dealing with the Tuberculosis Hospital case. 1947. avoid formulating or adopting generalizations and hesitate to cast the concept of industry in narrow rigid mould which would not permit of expansion as and when necessity arises. In the next case Safdarjung Hospital. However. case. in taking up their cases and solving their difficulties and in obtaining concession and facilities for them from the Government. New Delhi verses Kuldip Singh. "The Court should. This part gives the extended connotation. In the case of Management of the FICCI verses . for instance. the Court concluded. In the third case the same factors plus the prohibition of profit were relied on by the Court. In any event. clubbed together and held that all the three institutions. case. Patna. the Supreme court held that the activities of the Indian Standards Institution fall within the category analogous to trade or business and must be regarded as "industry" as defined in S. employment. handicraft or industrial occupation or avocation of workman is included in the concept of industry. telephones and the like. (1) Safdarjung Hospital. they are not engaged in an occupation in which employers and employees co-operate in the production or sale of commodities or arrangement for their production or sale or distribution and their services cannot be described as material services. Material services involve an activity carried on through co-operation between employer and employees to provide the community with the use of something such as electric power.. Primarily." Thus the Supreme Court in Safdarjung Hospital case overruled the Hospital Mazdoor Sabha (Supra)." Dhanrajgirji Hospital. These activities are business activities and material services. 2(j). in giving them the right to subscribe to their bulletin. The court observed. the institution could not be described as industry. 2 . The Supreme Court considered the facts of the appeals. overruled the Safdarjung Hospital case and rehabilitated Hospital Mazdoor Sabha case. takes in the different kind of activity of the employees mentioned in the second part. therefore. was not an industry. Therefore. By the second part of the definition any calling. as far as possible. namely..6 matter from the angle of employees and is designed to include something more in what the term primarily denotes. regulation and resolution of industrial disputes between employer and workmen. Although Section 2(j) uses words of the widest amplitude in its two limbs. in organizing the cooperation between employer and employee may be dissimilar. The Supreme Court in this case by a majority of five with two dissenting overruled Safdarjung Solicitors' case. bears resemblance to what we find in trade or business. The ideology of the Act being industrial peace. 2. The following is the summary of the majority view in the words of Krishna lyer. 3. joint. making on a large scale Prasad or food). there is "industry" in that enterprise. (1978) a seven judge bench of the Supreme Court exhaustively considered the scope of industry. their meaning cannot be magnified to overreach itself. the range of this statutory ideology must inform the reach of the statutory definition. (d) If the organization is the trade or business it does not cease to be one because of philanthropy animating the undertaking. Gymkhana. (6) Charitable projects and PREPARED BY RADHIKA SETH. This yields the inference that all organised activity possessing the triple elements in I (supra) although not trade or business. BALLOT No.. Delhi University. so also service. private or other sector. PLEASE VOTE . the employer-employee basis. Applications of these guidelines should not stop short of their logical reach by invocation of creeds. if on the employment terms there is analogy. (3) Educational institutions.. adventures "analogous to the carrying on the trade or business." All features other than the methodology of carrying on the activity viz. i. (2) Organised by co-operation between employer and employee (the direct and substantial element is chimerical) (3) for production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geard to celestial bliss. (4) Co-operatives.e. the second by the former Chief Justice Beg. who gave the leading judgement: 1. J.. the third by Chief Justice Chandrachud and the fourth by Jaswant Singh. Dhanrajgiri Hospital and Cricket Club of India. The Court followed Banerji and Corporation of City of Nagpur cases. Nothing less. Industry as defined in S.. cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. (5) Research institutes. It rehabilitated Hospital Mazdoor Shabha and affirmed Indian Standards Institution. JJ. (b) Absence of profit motive or gainful objective is irrelevant. prima facie.7 In Bangalore Water Supply and Sewerage Board verses A. for himself and Tulzapurkar. (a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgement. J for himself. This takes into the fold 'industry' undertakings. There are four judgements: one by Krishna lyer. (a) The consequences are: (1) Professions. J. callings and services. Rajappa. (c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations. (2) Clubs. (a) Where (1) systematic activity. nothing more. 2(j) and explained in Banerji has a wide import. calling and the like. Bhagwati and Desai. 2 . be the venture in the public. may still be 'industry' provided the nature of the activity viz. J. compassion. private or other sector. joint. 4. (c) If. are hired. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status. PLEASE VOTE . We overrule Safdarjung. Absence of profit motive or gainful objective is irrelevant. be the venture in the public. (alone) qualify for exemption. and going by the dominant nature criterion. free or for small honoraria or like return. 2.g. prima facie there is an industry in the enterprise. volunteering to run a free legal service clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness. the Supreme Court laid down the following test which is practically reiteration of the test laid down in Hospital Mazdoor Sabha case: Triple test.8 (7) Other kindred adventures. marginal employees are hired without destroying the non-employee character of the unit. Such elementary or like undertakings alone are exempt not other generosity. some of which qualify for exemption. strictly understood. (b) Notwithstanding the previous clauses. 5. divinity or like central personality. if they fulfil the triple tests listed in (supra) cannot be exempted from the scope of Section 2(j). 2 . if there are units which are industries and they are substantially severable. others not. and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship. some of whom are not "workmen" as in the University of Delhi or some departments are not productive of goods and services is isolated. The true test is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations. such as lawyers. BALLOT No. (2) Organised by cooperation. (b) A restricted category of professions. sovereign functions. in a pious or altruistic mission many employ themselves. The following points were also emphasized in this case: 1. no employees are entertained but in minimal matters. clubs. If the organization is a trade or business." Thus in Bangalore Water Supply and Sewer age Board Y Rajappa. co-operatives and even gurukulas and little research clubs may qualify for the exemption if the simple ventures. then the institution is not an industry even if stray servants. between employer and employee and (3) For the production and/or distribution of goods and services calculated to satisfy human wants and wishes.. This is known as triple test. Gymkhana Delhi University (MR 1963 SC 1873). making on large scale prasad or food. Industry does not include spiritual or religious services geared to celestial bliss. 2(j). developmental passion or project. Dhanrajgiri Hospital and other rulings whose ratio runs counter to the principles enunciated above. even then the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur will be the true test. 3. (d) Constitutional and competently enacted legislative provisions may remove from the scope of the Act categories which otherwise may be covered thereby. The dominant nature test: (a) Where a complex of activities. not the welfare activities or economic adventures undertaken by government or statutory bodies. substantially. Where there is a (1) Systematic activity. it does not cease to be one because of philanthropy animating the undertaking. involves employees on the total undertaking. PREPARED BY RADHIKA SETH. mainly drawn by sharing in the purpose or cause. and Hospital Mazdoor Sabha is hereby rehabilitated. (c) Even in departments discharging sovereign functions. Solicitors' case . e. substantively. manual or technical. they can be considered to come within S. 4. then. BALLOT No. Even in those cases where the predominant activity could not be so classified. Exceptions. (5) Research institutions. and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship. many employ themselves. (4) Co-operatives. "calling" and the like. The word "undertaking" must suffer a contextual and associational shrinkage. (3) Educational institutions. The consequences are: (1) Professions. The inference is that all organised activity possessing the triple elements although not trade or business may still be industry provided the employer-employee basis. Sovereign functions. 2 . In fact. so also "service". involve employees on the total undertaking some of whom are not "workmen" or some departments are not productive of goods and services if isolated.9 5. divinity or like central personality. Even in departments discharging sovereign functions. Where a complex of activities some of which qualify for exemption. the two-Judge Bench of the Supreme Court said: "The definition of industry under the Industrial Disputes Act was held to cover all professions. A restricted category of professions. PLEASE VOTE . even then the predominant nature of the services and the integrated nature of the departments will be the true test. charitable projects and anything else which could be looked upon as organised activity where there was a relationship of employer and employee and goods were produced or service was rendered. clubs. Even in the case of local bodies and administrative organizations the Court evolved a 'predominant activity' test so that whenever the predominant activity could be covered by the wide scope of the definition as propounded by the Court. research institutions. If they fulfil the triple test. then they can be considered to come within section 2(j). co-operatives and even gurukulas and little research labs. bears resemblance to what we find in trade or business. (2) Clubs. strictly understood. their meaning cannot be magnified to over-reach each other. (alone) qualify for exemption. substantially and. compassion. free or for small honorarium or like return. clubs. Chandrachud. the Court included in the definition all those activities of the organization which could be so included as industry. mainly drawn by sharing in the purpose or cause. Dominant nature test. if there are units which are industries and they are substantially severable. and (7) Other kindered adventures. educational institutions. departing from its own earlier test that one had to go by the predominant nature of the activity. If in pious or altruistic mission. the local body or the organization would be considered as an industry. no employees are entertained but in minimal matters. Although S. such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness. going by the dominant nature criterion substantively. may qualify for exemption if in simple ventures. (6 charitable projects. J. manual or technical are hired. marginal employees are hired without destroying the nonemployee character of the unit. In Coir Board. not the welfare activities or economic adventures undertaken by Governmental or statutory bodies. (as he then was) observed that even a PREPARED BY RADHIKA SETH. cannot be exempted from scope of definition of industry under section 2(j) of the Act. the institution is not an industry even if stray servants. cooperatives. not other generosity. others not. developmental passion or project. 2(j) uses words of the widest amplitude in its two limbs. the whole undertaking will be "industry" although those who are not workmen by definition may not benefit by the status. Ernakulam verses Indira Devai PS (I) (1998). Such elementary or like undertakings alone are exempt. The Supreme Court observed. Explanation. Sovereign functions of the State as traditionally understood would also not be classified as industry though Government departments which could be served and labelled as industry would not escape the Industrial Disputes Act. Hence matter referred to larger Bench to reconsider the decision in that case. (1998). Constitutional and competently enacted legislative provisions may well remove from the scope of Industrial Disputes Act categories which otherwise may be covered thereby. observed that a larger bench should be constituted to reconsider Bangalore Water Supply & Sewerage Board M. however. be considered as an industry.10 defence establishment or a mint or a security press could." New definition of "industry" but not yet given effect till date The definition of "industry" was amended in 1982 and is reproduced below. the date to be notified. Difficulty in defining "industry". or (2) Hospital or dispensaries. It shall stand substituted w. (j) "Industry" means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency including a contractor) for the production. whether or not— (1) Any capital has been invested for the purpose of carrying on such activity. But does not include (1) any agricultural operation except where such agricultural operations' carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause and such other activity is the predominant one). The majority laid down the 'dominant nature test for deciding of whether the establishment is an industry or not. cannot be strictly defined but only be described.. or (3) Educational. therefore. In Coir Board verses Indira Devai RS. scientific. It was further observed that since the notification bring into effect the 1982 amendment to S. The Parliament must step in and legislate in a manner which will leave no doubt as to its intention. "Industry.f. or PREPARED BY RADHIKA SETH. leaves too wide a door open for speculation and subjective notions as to what is describable as an industry. the larger Bench of the Supreme Court held that the Bangalore Water Supply and Sewerage Board verses Rajappa decision "does not require reconsideration". 1951. (2000) 1 SCC 224. pious or religious missions were considered exempt even if a few servants were hired to help the devotees. research or training institutions. PLEASE VOTE . 2 . doubting the correctness of the tests laid down in Bangalore Water Supply & Sewerage Board verses Rajappa and pointing out the damaging effects of the extended meaning given to " industry" is this case. Rajappa decision. Or (2) Such activity is carried on with a motive to make any gain or profit. supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature). 2(j) of the Industrial Disputes Act has not been issued by the executive so far the matter should be judicially reexamined. For example. BALLOT No. and includes (a) Any activity of the Dock Labour Board established under section 5-A of the Dock Workers (Regulation of Employment) Act. (b) Any activity relating to the promotion of sales or business or both carried on by an establishment. Very restricted exemptions were given from the all embracing scope of the definition so propounded. a two-judge bench of the Supreme Court in Coir Board verses Indira Devai RS. Such a rule. It is best to look for a rough rule of guidance by considering what the concept of industry must exclude.. For the purpose of this sub-clause "agricultural operation " does not include any activity carried on in a plant at ion as defined in clause (f) of Sect ion 2 the Plantation Labour Act. Where normally no employees were hired but the employment was marginal the organization would not qualify as an industry.e. in a given case. However." Suggestion. 1948. Held that the activities carried on by the company fell within the ambit of the expression "industry" defined in S. scales of pay. J. e. social or philanthropic service. being an activity carried on by a co-operative society or a club or any other like body of individuals. Similar was the decision in Asha Rani verses Divisional Engineer. being a profession practiced by an individual or body of individuals. 2 . The functions which are carried on by All India Radio and Doordarshan cannot be said to be confined to sovereign functions as they carry on commercial activity for profit by getting commercial advertisements telecast or broadcast through their various Kendras and stations by charging fees. and the legislative view of the matter is made known and the confusion in the field is cleared up. etc. It may be noted that the amendment has not yet been brought into force. In Des Raj verses State of Punjab. electric repairs and replacing. or (a) Any activity. PLEASE VOTE . free supply of electricity. "It is appropriate that the same should be brought in force as such or with such further alterations as may be considered necessary. There were about 300 flats in those mansions which had been let out to tenants. or (5) Khadi or village industries. pumpmen. Telecom Department. in connection with those properties. verses State of West Bengal. lift service. Telecom Department of Union of India was held to be an 'industry'. the appellant company owned several mansion houses. BALLOT No. in Bangalore Water Supply and Sewerage Board case. or (8) any activity. electric and other mistries. it was held that "All India Radio" and "Doordarshan" are covered by the definition of "industry" within the meaning of S. washing and cleaning of floors and lavatories. verses Theyyam Joseph. or (6) any activity of the Government relatble to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence. Vaikan. A dispute arose between the employees of the company and the company with regard to wages. the definition of industry had been amended but the amendment has not yet been brought into force even after a lapse of six years. the irrigation Department of the State of Punjab was held to bean "industry" within the meaning of S. In SubDivisional Inspector of Post.. The Supreme Court applied the tests laid in various decisions of the Supreme Court and particularly the dominant nature test evolved by Krishna lyer. durwans. etc. if the number of persons employed by the co-operative society. The earlier definition of 'industry' still continues to be valid and effective. educational institutions.11 (4) Institutions owned or managed by organization wholly or substantially engaged in any charitable. In the event of the definition of industry being changed either by enforcement of the new definition of industry or by any other legislative change. atomic energy and space. but has excluded many activities like hospitals." In Karmani Properties Ltd. (2001) . it was held that running of tubewells by Government or Government owned corporation constitutes "industry". In General Manager.g. it was held that the functions of the Postal PREPARED BY RADHIKA SETH. research. 2(j) of the Industrial Disputes Act as it stands at present. 2(j) of the Act. club or other like body of individual in relating to such activity is less than ten. AIR 1998 SC 941. it would always be open to the aggrieved Irrigation Department to raise the issue again and the present decision would not stand in the way of such an attempt in view of the altered situation. 2(c) of the Amending Act 46 of 1982. 2(j) of the Industrial Disputes Act as constructed by the Supreme Court in Bangalore Water Supply and Sewerage Board case. In All India Radio verses Santosh Kumar. if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten. The Supreme Court further stated in the above case that though by S. bill collectors and bearers etc. Telecom verses A Srinivasa Rao. and for that purpose the company employed 50 liftman. The appellant provided various facilities to its tenants in these flats. In Gurmail Singh verses State of Punjab. This definition has incorporated the triple test laid down in Bangalore Water Supply case. or (7) Any domestic service. Court held that it requires reconsideration by a larger Bench for the following reasons: (1) The decision in Bangalore Water Supply case was not a unaminous decision. (1996) 2 SCC 293. verses Workmen. three had given a common opinion but the two others had given separate opinions projecting a view partly different from the views expressed in the opinion of the other three Judges. 1966 "are sovereign or inalienable functions of the state". is over expansive and one sided i. it was held that if a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not. (2003) 9 SCC 290. 2(j). (2001) 7 SCC 630. The Court distinguished this case and Chief Conservator of Forests v Jaganath Maruti Kondhare. on facts. Such employees would not be "workmen" under the Act. Dehradun. such a market committee was held to be an 'industry'. Telecom verses Srinivasa Rao (supra). it was held. that none of the functions of the Market Committee established under Karnataka Agricultural Produce Marketing (Regulation) Act. In the latter case the Forest Department of the State of Maharashtra was held to be an 'industry'. JJ) in Bangalore Water Supply & Sewerage Board verses . it is doubtful to hold it as an 'industry' under the definition given under S. a department of the Government cannot be held to be an industry and rather it is a part of the sovereign function.12 Department are part of the sovereign functions of the state. PLEASE VOTE .G.R verses Jai Bir Singh. (4) Judges in the said decision rendered different opinions at different points of time in some instances without going through opinion of other three Judges. it is. Ordinarily. the issue before the Supreme Court was whether a trust for promotion of art and culture could be called an 'industry'. it was held.e. In State of U. In this case on the basis of the assertion made by the Chief Conservator of Forests the Court held that the scheme that had been undertaken by the department of the State of Gujarat wherein the employee had been recruited cannot be regarded as a part of the sovereign functions of the state. Sharma. BALLOT No. A. This case was decided without reference to the Bangalore Water Supply case. In Physical Research Laboratory verses K. Without deciding the said issue finally. Engineering Department of Municipality (respondent Nagar Palika) was held an 'industry' Inclusion of municipality in the Constitution by itself would not change this position. (2000) 8 SCC 61. PREPARED BY RADHIKA SETH. though it is taking employees' co-operation in achieving its purpose. not "industry" for the purposes of S. J. five judge Bench of the Supreme Court observed that interpretation given by majority Judges (Krishna lyer. 2 . it was held that the decision in Theyyam Joseph case cannot be treated as laying down the correct law.M. to give positive facts for coming to the conclusion that it constitutes an 'industry'. not an 'industry'. In Bharat Bhawan Trust verses Bharat Bhawan Artists' Association. speaking for himself and Bhagwati and Desai. only worker oriented. the Physical Research Laboratory was held not an 'industry' because it is purely a research organization discharging governmental functions and a domestic enterprise than a commercial enterprise. 20) of the ID Act. (2005) 5 SCC 1. In Parmanand verses Nagar Palika. In G. Therefore. In Agricultural Produce Market Committee verses Ashok Harikuni. In Som Vihar Apartment Owners' Housing Maintenance Society Ltd. since Bharat Bhawan Trust is engaged only in promotion of art and preservation of artistic talent and its activities being not of those in which there can be a large scale production to involve co-operation of efforts of the employer and employee. it would be for the person concerned who claims the same to be an 'industry'. held. Rajappa. (3) Majority opinion expressed the view that their interpretation was only tentative and temporary till the Legislature stepped in and removed vagueness and confusion. Association or Society of apartment owners employing persons for rendering personal services to its members. (2) Of the five Judges who constituted majority. Industrial Disputes Act. In State of Gujarat verses Pratam Singh Narsingh Par mar. therefore. Unanimous decision of a Bench of Six Judges in Safdarjung Hospital. architects. Hence.13 (5) Worker-oriented approach in construing the definition of industry. (11) Interpretation should be a balanced one having regard to the interest of the workers. in order to encompass the activity within "industry" the activity must be "analogous to trade or business in a commercial sense". the employers as also the public. therefore. Object of the Act has to be kept in view. (10) Experience of past years showing that the majority view in Bangalore Water Supply. should not fall within "industry". PREPARED BY RADHIKA SETH. doctors. In State of Rajasthan verses Ganeshi Lal. chartered accounts. should be kept outside the purview of "industry". In Umesh Korga Bhandari verses Mahanagar Telephone Nigam Ltd. (1970) expressing the view that although "profit motive" is irrelevant. (8) The judicial interpretation seems to be one of the inhibiting factors in enforcement of the amended definition. is a one-sided approach and not in accordance with the provisions of the Act. BALLOT No. (7) Even though the Act was amended in 1982 yet it has remained unforced and confusion still prevails. (6) "Sovereign functions". 2 . PLEASE VOTE . hospitals and educational and research institutions. The Supreme Court concluded that it is. The helplessness of the legislature and the executive in bringing into force the amended definition makes reference imperative. (12) Liberal profession based on talent. should not be confined to its traditional concept but should comprehend public welfare activities which Government undertakes in discharge of its constitutional obligations and as such should fall outside the purview of "industry". etc. instead of ushering in industrial peace. present appeals to remain pending till decision of the larger Bench. it was held that the accepted concept of "Industry" cannot be applied to Law Department of the Government. they being the ultimate beneficiaries. for the large Bench of the Supreme Court to interpret the definition clause in the present context with the experience of all these years.. keeping in view the unenforced amended definition of "industry". skill and intellectual attainments such as those of lawyers. unmindful of the interest of the employer and the public who are the ultimate beneficiaries. has given rise to large number of awards granting reinstatement in service and huge amounts of back wages to workers compelling the employers having moderate assets to close down their industries causing harm not only to employers and workers but to the public in general. it was held (on the question whether MTNL included in the definition of industry as it stands) that in light of question as to scope of meaning of "industry" having been referred to larger Bench in Jai Bir Singh case (2005) 5 SCC 1. (9) In Bangalore Water Supply case not all the Judges in interpreting the definition clause invoked the doctrine of noscitur a sociis. etc. (2008) . The essential condition of a person being a workman within the term of the definition is that he must be employed in an industry. 1957. 16007. verses .e. draws wages exceeding one thousand six hundred rupees per mensem or exercises. there must be employment of his by the employer and there must be a relationship between the employer and him as between employer and employee or master and servant. BALLOT No. whether the terms of employment be express or implied. however.. 1950 or the Navy Act. discharged or retrenched in connection with. The definition of workman as given in the Act is analyzed as under: Analysis of Definition of Workman 1.f.14 2 Workman Definition of Workman Section 2(s) of the Industrial Dispute Act.' Merely a contract to do some work is not enough.e. An independent contractor is not under the control of the master. The person must be employed in an industry within the meaning of S. 21. In other words an independent contractor js not a workman. includes any such person who has been dismissed. not accepted as universally correct. PLEASE VOTE .1984) gives the definition of workman' which is reproduced below:"Workman" means any person (including an apprentice) employed in any industry to do any manual. Industry. The element of control distinguishes an employee from an independent contractor.8. being employed in a supervisory capacity. 2 . 1947 (as amended in 1982 w. Employer-employee relationship. i.R. technical. but does not include any such person(1) who is subject to the Air Force Act. There are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of a captain of a ship or chauffeur or report on the staff of a newspaper. or (4) who. and for the purposes of any proceeding under this Act in relation to an industrial dispute. 1982 to cover the supervisory staff whose wages do not exceed Rs. 1947. or the Army Act.per month. It is necessary that a person to be a workman must be in a 'contract o/service'. 2. and not contract for service. Act. or whose dismissal. Note: The scope of the term 'workman' has been enlarged by the Industrial Disputes (Amendment) Act. clerical or supervisory work for hire or reward. functions mainly of a managerial nature. For earlier definitions of 'workman' see H. PREPARED BY RADHIKA SETH. Before the amendment the limit was Rs.D. either by the nature of the duties attached to the office or by reason of the powers vested in him. unskilled. 500/-per month. State of Saurashtra. In Dharangdhara Chemical Works. The test is.2(j)of I. or (2) who is employed in the police service or as an officer or employee of a prison. operational. it was observed that the uniformally applied test to determine employer-employee relationship is the existence of the right in the master to supervise and control the work done by the servant not only in directing what work the servant is to do. 1950. but also the manner in which he shall do his work. Adyanthaya case. or as a consequence of that dispute. skilled. or (3) who is employed mainly in a managerial or administrative capacity. An independent contractor is excluded from the definition of workman as there does not exist the relationship of master and servant in such a case. discharge or retrenchment has led to that dispute. that a person can be workman even though he is paid not per day but by the job. Henderson Ltd. If he has. It is a question of fact to be decided by all the circumstances of the case." On the authority of Sadler verses Henlock. For example. and his power of suspension or dismissal is similarly affected. Vol. L. But it was further observed: "Modern industrial conditions have so much affected the freedom of the master in cases in which no one could reasonably suggest that the employee was. It was further pointed out that the question whether a particular person working in a factory was an independent contractor or a worker would depend upon the terms of the contract entered into between him and the employer and no general proposition could be laid down which would apply to all cases. (1946) AC 24 (HL). It was further observed in that case that to determine "whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. it will be incumbent on this House to reconsider and to restate these indicia. would be to consider whether having regard to the nature of work there was due control and supervision by the employer. page 112.. This PREPARED BY RADHIKA SETH. thereby converted into an independent contractor that.J. These matters are also affected by trade union rules which are at least primarily made for the protection of wage-earners.2(l) of the Factories Act. Henderson Ltd. PLEASE VOTE . the House of Lords gave four indicia of contract of service. it was held by the House of Lords that the principal requirement of a contract of service is the right of master in some reasonable sense to control the method of doing the work. (b) the payment of wages or other remuneration." In this case the Supreme Court held that the 'aghiaras' engaged in salt works (seasonal activity) who had agreed to work personally. and (d) the master's right of suspension or dismissal. (b) and (d) and probably also (c) are affected by the statutory provisions and rules which restrict the master's choice of men supplied by the labour bureau. The position in law is thus summarized in Halsbury's Laws of England. 2 . are workmen even though they employ other persons to assist them. but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do but also the manner in which the work is to be done. (c) the master's right to control the method of doing the work. W. The correct method of approach. (a) the master's power of selection of his servant.. In Chintaman Rao and Another verses State of M.. v State of Saurashtra." The principle which emerges from these authorities is that the prima facie test for determination of the employeremployee relationship is the existence of a right to control not only what is to be done by the servant but also the manner in which he shall do his work But the nature or extent of control which is required to establish the relationship of employer and employee varies from business to business and is by its very nature incapable of precise definition. (a). para 191:" Whether or not. (1946) AC 24 (HL). If a person is a worker and not a contractor it makes no difference that his work is piece work. W. 22. and on whom there was due control and supervision having regard to the nature of work. BALLOT No.15 In Short verses J. The greater the amount of direct control exercised over the person rendering the service by the person contracted for the stronger the grounds for holding it to be a contract of service and similarly the greater the degree of independence of such control the greater the probability that the services and that the contract is not one of service. if and when an appropriate occasion arises. or directed to him under the Essential Work provisions.. the relation of master and servant exists is a question of fact.R." Therefore. and until the position is restated as contemplated in Short verses J. in any given cases. in Simmons verses Health Laundry Company observed as follows: "In my opinion it is impossible to lay down any rule of law distinguishing the one from the other.2(s) of the Industrial Disputes Act would also apply to S. we may take it as the prima facie test for determining the relationship between master and servant. it was held that test laid down in Dharangdhara Chemical Works case (supra) with respect to S. In this connection Flecher Moulton. viz. therefore. then he is a workman and the fact that he takes assistance from other persons would not affect his status. Blake verses Thirst and Halsbury's Laws of England the Supreme Court field in Dharangdhra Chemical Works Ltd. What detenuines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If a person who agrees himself to work and so work is a workman.. A contractor on the other hand is required to do specific work for other persons without submitting himself to their control in respect of the details of the work. Myriad devices. the type of industry. for any reason. and may use his own discretion in things not specified before hand. The workman was broadly under the control of the management and rejected articles were directed to be rectified by the management. the right to reject the work or to refuse further work.R Luchnow and Others. be indicated once again. The presence of intermediate contractors with whom alone workers have immediate or direct relationship ex controctu is of no consequence when. that the real employer is the Management. A workman is under the command of his master as to the manner in which he shall do his work. with brevity. that the factory premises belonged to the management and the finished product was taken by the management for its own trade. 39. Shining Tailors verses Industrial Tribunal 11 U. 1947 in relation to an industrial dispute. An employee unlike the contractor is under the control and supervision of the employer in respect of the details of the work. Calicut verses The Alath Factory Tezhilali Union. half-hidden in fold after fold of legal form depending on the degree of concealment needed. In M/s. If he . chokes off. though draped in different perfect paper arrangement. In Hussainbhai case a number of workmen were engaged in the making of ropes in a factory of the petitioner but they were hired by contractors who had executed agreement with the factory to get such work done. discharge or retrenchment has led to that dispute. The Court further said: "The true test may. it was held that payment on piece rate by itself does not disprove the relationship of master and servant. of Saurashtra. A workman does not cease to be a workman by reason merely of the fact that he gets other persons to work along with him and that those persons are controlled and paid by him. the worker is. the latter agrees to get other persons to work. Dismissed and discharged workman is still a workman. it was held by the Supreme Court the they fell within the definition of'workman1. not the immediate contractor. An independent contractor is one who undertakes to produce a given result but so that in the actual execution of the work he is not under the control or order of the person for whom he does it. Kozhikode. 43 and 43-A of the Constitution. PREPARED BY RADHIKA SETH. Act. BALLOT No. For the purposes of any proceeding under the I. then he is a workman and the fact that he takes assistance from other persons would not affect his status.D. The court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances. the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer. or whose dismissal. verses Stat. 2 . based on Articles 38. that the raw material was supplied by the management. the. State of M. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business subststance. virtually. skill. Chintaman Rao verses ." "'Workman " and an Independent contractor compared. AIR 1978 SC 1410. workman includes any such person who has been dismissed. Dharangdhara Chemical Works Ltd. laid off. The broad distinction between a workman and an independent contractor lies in this that while the former himself agrees to work. held establish master servant relationship. and continued employment.R. discharged or retrenched in connection with. we discern the naked truth. The Court said: "The facts found art that the work done by the workmen was an integral part of the industry concerned. on lifting the veil or looking at the conspectus of factors governing employment. PLEASE VOTE . An industrial dispute arose when the factory refused employment to 29 workers atid the matter was refened by the State Government for adjudication. (1983) 4 SCC 464. 42. or as a consequence of that dispute." Thus it was held that the workmen were workmen of the petitioner Who is an employee in Labour Law? This was the short question raised in the instant case but covered by earlier decision. On [acts.16 was reiterated in Hussainbhai. Supervisory work. It involves minor duties such as typing letters.per month and he must not be working mainly in a managerial capacity. applicable in different facts and circumstances. Banking Regalation Act did not bar employment of persons on commission basis.. technical work or clerical work. It is a pure question of fact whether workers employees of principal employer or of contractor.B.. (2001) 3 SCC 36: Commission agents. verses A.. 1600/. (2004) 3 SCC 514: it was held that to determine whether a contract is a contract of service or contract for service and whether the employees concerned are employees of the contractor. supervisory work. Different test. Relationship of master and servant did exist between the bank and such workmen. The factors which would have bearing on the result are: (a) who is the appointing authority. Clerical work means the work relating to office clerks. verses Management Staff Association it was held by the Supreme Court that if the work done by an 'employee' is not skilled or unskilled manual work.P. recommending leave application. In this case marketing service society getting works done through third parties contracts. Chacko. verses Management Staff Association. Pant University of Agriculture & Technology verses State of U. e. (0 the nature of the job whether it is professional or skilled work.g. An example. although were not regular employees. BALLOT No. he would not be a workman. e. nonetheless covered. filing letters. Skilled work requires ability gained by special experience or training.G. the workers of the cafeteria. were held employees of the university.R. involves directing or managing the work of others. All relevant factors must be integrated. would be out of the scope of the word "workman" without having to resort to the exceptions.17 In G. test of organisation or control and supervision are not the only decisive tests. a carpenter. Technical work involves the application of scientific or technical knowledge. 3. writing cash book. . If the person is employed in a supervisory capacity he must not be drawing wages exceeding Rs. (h) the right to reject. South Indian Bank Ltd. the Supreme Court following May & Baker (India) Ltd. (1970) 3 SCC 248. required by regulations to be maintained in a residential university and to be compulsorily used by resident-students. (g) nature of establishment. (c) Who can dismiss. a Mali looking after the gardens. (d) how long alternative service lasts. e. Manual work involves hard physical work requiring use of hands. verses Workman. (e) the extent of control and supervision. It does not involve excessive physical or mental work. verses Its Workman. operational. clerical or supervisory work for hire or reward.g. which appear to be very clear. held. In Burmah Shell Oil Storage and Distributing Co. Unskilled work requires no special skill or training. and Anand Bazar Patrika (Private) Ltd. unskilled. held.. Technical means dealing with the practical. having regard to all relevant factors and circumstances. It was further held that mere financial difficulties could not justify taking of a view to the contrary. verses State of Tamil Nadu. The Apex Court applied the twin conventional tests of implicit obligation and overall control and supervision to determine the issue. while there may be employees who. If the provisions of the contract as a whole are inconsistent with its being a contract of service. deposit collectors of banks. In Workmen of Nilgiri Co-operative Marketing Society Ltd. it will be some other kind of contract and the person doing the work will not be a servant.g. keeping records etc. PLEASE VOTE . In Oil and Natural Gas Corporation Limited K. held that PREPARED BY RADHIKA SETH. not doing any such work. He may be doing technical work as well as supervisory work. will be that of a person employed in cavassing sales for an industry... e. labourers engaged by the second respondent for doing certain work for the appellant were held not workmen of the appellant. an employee is required to do more than one kind of work or he may be doing clerical work as well as supervisory work. industrial or mechanical arts or the applied sciences. In Burmah Shell Oil Storage and Distributing Co. 2 . such workers were not workers of the factory. held. technical. He may be doing manual work as well as supervisory work. (2003) III LLJ 289 AP. Nature of duties: To be a workman a person must be employed to do any manual. Frequently. Project Rajahmundry verses N. The specification of four types of work is obviously intended to lay down that an employee is to become a workman only if he is employed to do work of one of those types. a peon.g. In Indian Banks Association verses Workmen of Syndicate Bank. The Court further held that the burden of proof lies on the party setting up plea regarding the existence the impugned relationship. (b) who is the paymaster. skilled. Satyanarayan and Others. if the main work is of manual. It further held that the word 'skilled' must be read ejusdem generis to mean skilled whether manual or non-manual and as such medical representatives are not skilled workmen. PLEASE VOTE . verses R. clerical or of technical nature. conversely." In the above case.8. When an employee is required to do more than one kind of work it becomes necessary to determine under which classification under S.2(s) of the Industrial "Disputes Act.000 per annum (including commission) only included within the definition. Maim verses .R. The designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. unskilled. In S. if the main work done is of clerical nature. Adycmthaya verses Sandoz (India) Ltd. 9. Their work is not covered by any type of works mentioned in the main body of the definition. In Anand Bazar Patrika case the Court held that if a person is mainly doing supervisory work but incidentally or for a fraction of the time also does some clerical work.5. In Jaques verses Owners of Steam Tug Alexandra. Bhatia. 1976 (as originally stood prior to its amendment in 1986 w.1987) provided that sales promotion employees drawing wages not exceeding Rs. it was held that predominant nature of the service of a person is the true and proper test. AIR 1994 SC 2608. It was held that the definition clause is not discriminatory Workmen doing work can be classified on the basis of their income..18 principle is now well settled that a workman must be held to be employed to do that work which is the main work he is required to do even though he may be incidentally doing other types of works.f.e. In this case an accountant of a bank was held not to be employed mainly in a managerial or administrative capacity merely because of the fact that he used to sign salary bills of the staff. the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works. PREPARED BY RADHIKA SETH. 2 . 750 per mensum (excluding commission) or Rs.1984. the larger bench of the Supreme Court held as follows: "Whether or not an employee is a workman under S. a person must be employed to do any of categories of work mentioned in the main body of the definition (viz. the Supreme Court held that in order to fall within the definition of workman. skilled. Designation alone of the employee is not decisive and what really should go into consideration is the nature of his duties and the powers conferred upon.K. the employee will come within the purview of "workman" as defined in S. the employee should not be held to be doing supervisory work. on facts. it was held that a person shall be deemed to be employed to do that work which is his main work he is required to do even though incidentally does some other types of work also. manual. AIR 1975 SC 1898. 6.) and it is not enough that he is not merely covered by any of the four exceptions to the definition. The object of the legislation appears to be to give protection to the service conditions of the weaker sections of the employees belonging to the said category. he is employed in supervisory capacity. Incharge of shop was held not a workman The above case is based upon the definition of workman before it was amended by Act 46of 1982 w. if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work.f 21. (2001) 7 SCC 394. The determinative factor is the main duties being performed by the employee concerned and not some works incidentally done Viewed from this angle. Similarly in Punjab Co-operative Bank Ltd.. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases.e. 2(s) the employee will fall for the purposes of deciding whether he comes within the definition of workman or goes out of it. Ltd. the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity.S. (1921) 2 AC 399. nor 'technical' or 'operational' workers. BALLOT No.. and.2(s) of the Industrial Dispute Act is required to be determined with reference to his principal nature of duties and functions. In Hitssan Mithu Mhasvadkar verses Bombay Iron and Steel Labour Board. Carona Sahu Co. In H. Conversely. It is a matter of legislative discretion in which Court cannot interfere. technical. it was held by the House of Lords that the real test is the substantial nature of the employment. Section 2(d) of the Sales Promotion Employees (Conditions of Service) Act. operational etc. R. Adyanthaya case.D. Merely showing that the employee concerned had not been performing any managerial or supervisory duties does not ipso facto make him a workman. Sugar Mills Ltd. (1985) 3 SCC 371 are based on facts found in those cases. (1984) 2 SCC 569.. Ved Prakash Gupta verses Delton Cable India (?) Ltd. The appellant was held not workman. In this case the respondent workman. Sundarambal verses Government of Goa. (1970) 3 SCC 378. unskilled. records to evidence the duties performed by him. An Inspector appointed under s. technical. In Sonepat Co-op. of India Ltd. technical or operations duties. It is not enough that he is not covered by any of the four exceptions to the definition. Tripathi. verses Workmen. It was held that such a job would not make him a workman under Section 2(s). advertising managers. clerical or supervisory for hire or reward. the following cases were followed: H. cannot result in the conversion of the post of "Inspector" into any one of the said nature without which the appellant could not fall within the definition of "workman". Daman. (1983) 4 SCC 214. claimed to be a workman performing tasks of "legal clerical nature". PREPARED BY RADHIKA SETH. Tripathi.R. K. and cases following the same as approved in H. possessing a law degree appointed as a Legal Assistant. have all not been held to be workmen.K. (2004) 8 SCC 387. (1983) 4 SCC 214. (1994) 5 SCC 737... Senior Divisional Manager. It was held. verses . therefore. gate sergeant in charge of watch and ward staff in a tannary and a welfare officer in a commercial educational institution. clerical or supervisory work and the mere fact that in the course of performing his duties he had also to maintain. (1984) 2 SCC 569 and Ciba-Geigy. 15 of the I. The powers of an Inspector and duties and obligations casts upon him as such are identical and akin to law enforcing agency or authority and also on a par with prosecuting agency in the public law field. the following cases were rendered per incuriam and not good law (they have. incidentally. Whether same is being performed by an employee needs to be determined upon a finding as regards the dominant nature of the job performed. In Mukesh K.R. His letter of appointment clearly proved that he was appointed as apprentice and not to do any job that fitted the above descriptions. unskilled. (1985) 3 SCC 371.19 as well as the functions assigned to him. LIC. Adyanthaya but once the said decision has been held to have been rendered per incuriam it cannot be said to have laid down good law. He rendered legal opinions. 2(s) is exhaustive. K. day to day. May and Baker (India) Ltd. represented appellant before various courts/authorities and discharged quasi-judicial function as an enquiry officer in domestic enquiries against workman. S. Verma verses Mahesh Chandra. (1983) . it was held that to fall within the definition of workman. chemist employed in a sugar mill. drafted pleadings. The Court give instances that teachers serving in an educational institution.K. Verma. it was held that the definition of workman in S. PLEASE VOTE . In Mukesh K. BALLOT No. Act. In Mukesh K. operational. to be confined to those facts): S. The same must be established even if a person does not perform managerial or supervisory duties. (2004) 8 SCC 387. Adyanthaya verses Sandoz (India) Ltd. the appellant had not adduced any evidence whatsoever that he had preferred any skilled. Ajit Singh. They have. verses Burma Shell Management Staff Association. Verma. (1985). Delton Cable. technical. Tripathi verses . Arkal Govind Raj Rao verses Ciba Geigy India Ltd. The cases of S. (1964) 3 SCR 560. Respondent did not perform any stereotype job and the same involved creativity. on facts. operational. Hence the position in law as it obtains today is that a person to be a workman under the Industrial Disputes Act must be employed to do the work of any of the categories viz manual. skilled. Verma has not been expressly overruled in H. Delton Cable. Adyanthaya followed. unskilled. (2005). 1947 cannot be considered to be engaged in doing any manual. therefore. Burma Shell Oil Storage & Distribution Co. Instead ratio of May and Baker case. to be confined to those facts. 2 .R. (1984) and Ciba Geigy. S. job of employee concerned must fall within one or the other categories enumerated in the said expression. held to be not good law in the light of the Constitution Bench decision in H. Job of a clerk ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. manual. verses A. it was held that for determining the question as to whether a person employed in an industry is a workman or not. the essence of the matter should call for consideration. he had other independent functions such as preparation of draft enquiry reports and conducted domestic enquiries. verses . In National Small Industries Corporation Ltd. it was held that whether a particular employee comes within the definition of workman has to be decided factually. appellant was appointed as "Industrial Relations Executive" in 1977 and was terminated from service in September 1982. nature of work is really relevant. there may be inquiry into whether employee concerned is a "workman" or "apprentice". Sankaralingam. it was held that a workman employed on a part-time basis but under the control and supervision of an employer is a workman in terms of Section 2(s) of the Act and is entitled to claim the protection of Section 25-F. While determining the nature of the work performed by an employee. A person may claim to be a "workman" despite having been appointed as an apprentice if there is material to establish that. In New Delhi Assurance Co. Supervision contemplates direction and control. Oil Seedsgrowers' Union Ltd. Vellore Co-op. In order to hold the appellant as a workman in Section 2(s) prevailing on the date of dismissal should be taken into account. In Muir Mills Unit of NTC (U. PLEASE VOTE . Gupta verses Glaxo-Smithline Pharmaceutical Ltd. BALLOT No. He claimed to be a workman in view of his work being of skilled. (2008) 10 SCC 698. Krishnan verses . Designation or name of PREPARED BY RADHIKA SETH. (2007) 1 SCC 214. His conditions of service were different from those provided for the workers of the Company. The duties undertaken by the appellant overwhelmingly fell within managerial cadre. was held not a workman under Section 2(s). He had admitted in his evidence that apart from the advice to the management from time to time. he did not fall within the definition of "workman". without any authority to initiate departmental proceedings against the sub-ordinates. Sugar Mill. it was held that Section 18 of the Apprentices Act. Keeping in view the nature of duties performed by such officers and the powers vested in them they cannot be said to be engaged in any administrative or managerial work. He also admitted that on many occasions he had drafted management enquiries and it was his duty to hold conferences with advocates in relation to the Company's acts. In his cross-examination he had further admitted that he had tendered legal advice in all the four branches and factories of the Company at Worli. Whether following are workman or not Examples 1. (2008) 7 SCC 22. 1961 categorically provides that apprentices are not workers and provision of law with respect to labour shall not apply to or in relation to apprentices. it is necessary to prove that there were some persons working under him whose work was required to be supervised. In this case the employee being in charge of a section and that too a small one in the quality control department of an oil seedgrowers' cooperative society. verses Shileshkumar Harshadbhai Shah. It was further held that the amendment of 1984 was only prospective in operation. For the said purpose. In the present case.. verses Lakshminarayanam. In C. it was held that on the facts and in the circumstances of the case the absence of overtime slips disproved the claim of the supervisor to be workman. What is needed to be asked is as to what are the primary duties he performs. it was held that the respondent 1 having been appointed as a Legal Assistant on probation. Development Officer: A Development Officer of Life Insurance Corporation of India was held to be a workman. not only the nature of the work performed by him but also the terms of the appointment in the job performed are relevant considerations.20 In Anand Regional Co-op. In D. and the task he was assigned being those of a professional. The nomenclature is really not of any consequence. 2 . An undue importance need not be given for the designation of an employee or the name assigned to the class to which he belongs. Ltd. While deciding the status of the person. However. technical nature as per the amended definition of workman as per Amendment of 1984. verses Sway am Prakash Srivastava .R) Ltd. The claim was held not sustainable. there is no 'industry' or 'industrial dispute' or the employee concerned is not a 'workman". It was observed in this case that maintainability of reference should not be questioned. 1947 should be liberal and pragmatic so as to advance the object of the Act. (Staff) Regulations. AIR 1975 SC 1898]. 2 . The Blacks Law Dictionary defines 'skilled" as a person possessing practical knowledge of art. Clerks in the audit department of a Bank are workmen [Lloyds Bank Ltd. grant leave.N. State Sugar Corporation Ltd.R. (1994) 2 LLJ 462 (MP)]. Teachers: Even though an educational institution has to be treated as an "industry" the teachers employed by educational institutions cannot be called as workmen within the meaning of S. AIR 1967 SC 428]. on the other hand they indicate and emphasize the broad sweep of the definition which is designed to cover all types of persons employed in an industry. Shri Kishan Bhageria. 6. Daman and Dm. irrespective of whether they are engaged in skilled work or unskilled work. manual work. Gupta. Security Inspector: A Security Inspector deputed at the gate of factory was held to be a workman. verses P. 2. supervisory. verses Deputy Labour Commissioner. 3. Maintenance Engineer: Maintenance Engineer. 4. they may do." [S. He has no authority to bind the Life Insurance Corporation of India. the word "skilled" in the definition of workman is not qualified by "manual". such as. An Accountant of a bank was held not to be employed in a managerial capacity merely because of the fact that he used to sign salary bills of the staff [Punjab Cooperative Bank Ltd. 8. 1987 Supp. 1990 Lab 1C 645]. technical work or clerical work. Accountants: Accountants who are merely senior clerks with supervisory duties are workmen [South India Bank Ltd. Imparting of education is in the nature of a mission or a noble vocation. P. was held to be a workman [National Engineering Industries Ltd.K. Bhatia. 5.. AIR 1988 SC 329].C. Chacko. is as it should be. if any. was held as not workman [Vimal Kumar Jain verses Labour Court. SCC 40]. (1985) LLJ 401 (SC)]. are not intended to limit or narrow the amplitude of the definition of "workman.S.. That. PLEASE VOTE . Verma verses Mahesh Chandra. BALLOT No. Clerk of a University: University is an industry and a clerk of the university is a workman [Suresh Chandra Mathe verses Jiwaji University. is only incidental to their principal work of teaching [A. Quite obviously the broad intention is to take in the entire 'labour force' and exclude the "managerial force'. However. Sunder ambal verses Government of Goa. After analyzing the L. It was further held that interpretation of the provision of the Industrial Disputes Act.2(s) of the Act.I. 7. of course. The duty of the Security Inspector at the gate of the factory premises was neither managerial nor supervisory in nature in the sense in which those terms are understood in industrial law. performing supervisory work and authorised to make temporary appointments.21 the post is not a decisive factor. AIR 1964 SC 1522]. it may be noted that by 1982 amendment. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or Clerical work. AIR 1988 SC 1700]. Internal Auditor: Internal Auditor of a company with duties mainly to report or check up but without any authority to take decisions and bind the company thereby. Assistant Engineer: An Assistant Engineer employed in a sugar factory whose work was mainly technical in nature namely looking after the work of the workmen under him as well as the concerned machines with no power to sanction leave to any of the workmen under him or to take disciplinary action against them was held to be a workman [M/s U. verses R. especially by a public sector corporations. verses . manual. A Stenographer-cum-Accoutant who was appointed as Assistant and was designated as Group Leader W7as held to be a workman [Arkal Govind Raj Rao verses Ciba Geigy of India Ltd. supervisory work. 1960 it was found that a Development Officer has no subordinate staff working under him. Kanpur. "The words any skilled or unskilled. science or trade and has the ability PREPARED BY RADHIKA SETH. initiate departmental proceedings etc. technical or clerical work. verses A. Ved Prakash Gupta verses M/s. Delton Cables India (P) Ltd. on mere technical grounds. Gwalior. The clerical work. He is generally placed on par with subordinate and clerical staff. Sugar Mills Ltd. In this case the Court held that the connotation of the word "skilled" in S. (1992) 2 LLJ 33 (All). Sectional Engineer performing supervisory duties: A Sectional Engineer performing supervisory duties using technical knowledge is not a workman as use of technical knowledge does not change the dominant nature of his supervisory duty to technical [Ramesh S/o Ramarao Wase verses The Commissioner of Revenue Division. A teacher has knowledge and he is skilled in communicating knowledge and therefore it is argued that a teacher is a 'workman'. 12. PLEASE VOTE . on and from 6. (1992) 1 LLJ 745 (Mad). The work has to be construed ejusdem generis and thus construed. 1.R. PREPARED BY RADHIKA SETH. In Pramodini Parker verses Indian Cancer Society (1993) 1 LLJ 447. a person must be employed to do the work of any of the categories.22 to apply them in a proper and approved manner and with dexterity. As regards the "technical" nature of their work it has been expressly rejected by the Supreme Court in Burmah Shell case. In view of conflict of opinions of different Benches of the Supreme Court. In Management Sacred Heart Convent School verses State of Tamil Nadu. Medical or Sales Representatives: In order to fall within the definition.f. Madhusudan Sahu. In Jagdish PrasadSinha verses . 9. In Sonepat Co-op.600 per mensum and those employed or engaged in managerial or administrative capacity. though he may be skilled. 2 . (1996) ) Lab LJ 55 (Bom. manual. nor are they "technical" or "operational" workers. It is not enough that he is not covered by either of the four exceptions to the definition. Thus.f. 1976 all sales and medical representatives are workmen except those employed in a supervisory capacity drawing wages exceeding Rs..2(s) of I. would mean skilled work whether manual or non-manual. 11. matter referred to a larger bench in H. Act in the context in which it is used.D. clerical or supervisory. Appraiser engaged by bank: Appraiser engaged by bank purely on commission basis for weighing and testing gold ornaments offered to be pledged to the bank to secure loans is not workman as there is no master-servant relationship although he had undertaken to indemnify the bank for any loss [Puri Urban Cooperative Bank v. Artist: An artist engaged in the production of a drama or in theater management or to participate in a play can by no stretch of imagination be termed as "workman" because he does not indulge in any manual.e. technical. [Kesava Bhatt verses Shree Ram Ambulam Trust (1990) 1 Lab. LJ 192 (Ker)]. However. the Headmaster of a school was held not workman.e. 6-5-1987 and upon the capacity in which they were employed or engaged. 10. a teacher in handicrafts in Indian Cancer Society was held to be a workman. according to the amendment by the Act 48 of 1986 w. operational or clerical works. teachers serving in an educational institution have not been held to be workmen. verses Ajit Singh. Labour Court Lucknow. operational.)].3. the Physical Education Teacher was held not workman. will not include the work of sales promotion employee such as the medical representatives in the present case. Adyanthaya verses Sandoz (India) Ltd. viz. which is of the genre of the other types of work mentioned in the definition. AIR 1994 SC 2608: (1994) 5 SCC 737. 1976 the provisions of ID Act became applicable to the medical representatives depending upon their wages before 6-5-1987 and without the limitation on their wages w. As such the medical representatives are not skilled workers. 6-5-1987 in the Sales Promotion Employees (Conditions of Service) Act. AIR 2005 SC 1050. or technical. Thus their work is not covered by any type of works mentioned in the main body of the definition. Priest: A priest is not a workman as he cannot be equated with a mere wage earner and his services cannot be treated as manual or clerical etc. Presiding Officer. unskilled. unskilled. BALLOT No. The work of promotion of sales of the product or services of the establishment is distinct from and independent of the types of work covered by the said definition. AIR 1992 SC 1452].1976 by virtue of Sales Promotion Employees (Conditions of Service) Act. 13. 23 it is not such a work which can be read ejusdem generis along with other kinds of work mentioned in the definition given under S.2(s) of the I.D. Act. The work that the respondent artists perform is in the nature of a creative art and their work is neither subject to an order required from the Art Director nor from any of the artists. In performing their work, they have to bring to their work, their artistic ability, talent and a sense of perception for the purpose of production of drama involving in the course of such work the application of correct technique and the selection of the cast, the play, the manner of presentation, the light-and-shade effects and so on. [Bharat Bhawan Trust verses Bharat Bhawan Artists ' Association. PREPARED BY RADHIKA SETH, PLEASE VOTE , BALLOT No. 2 24 14, Commission Agents/Deposit Collectors of Banks: Commission Agents/ Deposit Collectors of banks, although were not regular employees, held, nonetheless covered by the definition of workman. It was further held that relationship of master and servant did exist between the bank and such workmen. [Indian Bank Association Workmen of Syndicate Bank, The following have been held to be workman: 1. Dismissed or discharged workman [S. 2 (s)]. 2. Retrenched workman [Cawnpur Tannery Ltd. verses S. Guha, 3. Ex-employees [Bennett, Coleman & Co. verses P.P. Das Gupta, (1969) 2 SCC 1]4. Manager of a hotel who had to write letters, file correspondence, enter - cash book, etc. [Indian Iron and Steel Co. Ltd. verses Workmen, 5. Clerk of a university [Suresh Chandra Mathe verses Jiwaji University, Gwalior, (1994) 6. Mails employed by mill for looking after gardens attached with officers' banglows which are situated in the Mill's colony. 7. Employees of municipality [Howrah Municipality verses Mansa Das Dev, (1965) 2 LLJ 135]. 8. Depot Superintendents whose duties were clerical [Burmah Shell Oil Storage and Distributing Co. India Ltd. verses Management Staff Association, 9. Assistant Medical Officer, Class II in the Railway as he performs technical work [Dr. Surender Kumar verses Union of India, (1986) Lab 1C 1516 (All) (DB)]. 10. Internal Auditor is a workman as his duties are mainly reporting and checking on behalf of the management and the person doing such work is not a supervisor [National Engineering Industries Ltd. verses Shri Kishan Bhageria and Others, (1988) 1 Lab LJ 363 (SC)]. 11. A Clerk in a bank is a workman [S. Rajendran verses Asst. General Manager, State Bank of Travancore, (1995) 1 LLJ 650 (Kerala)]. 12. Deposit Collectors of banks are workmen [Indian Bank Association verses Workmen of Syndicate Bank, (The following have been held to be not workman: 1. Assistant Secretaries of Rashtriya Mill Mazdoor Sangh as the word "skilled" used in S.2(7) of the Act calls for more attributes of manual dexterity than intellectual dexterity Further the Assistant Secretaries of the union are not carrying out their duty for hire or reward. [Dattatraya Gopal Paranjape verses Rashtriya Mill Mazdoor Sangh, (1989) 1 Lab LJ 61 (SC)]. 2. A practicing lawyer engaged by a company on retainer basis to look after the interest of the company before the Labour Court [Indian Sulphacid Industries Ltd. Labour Court, Rohtak, 3. Senior Assistant Editor of a newspaper [V.N.N. Sinha verses Bihar Journals Ltd., AIR 1954 Pat 1]. 4. Head Clerk in Rajya Transport Authority [Bihar State Road Transport Corporation verses State of Bihar 5. Car driver engaged by Bank Manager, who gets car allowance from the Bank [Punjab National Bank verses Ghulam Dastgir, (1978) 2 SCC 358]. The decision is limited to the facts of this case. 6. A shop manager, although incidentally doing some clerical work [S.K. Maini verses Carona Sahu Co., 7. A person working without any remuneration. 8. A pilot with Indian Air Force [exception (i) to S.2(s)] 9. A Jail Superintendent [exception (ii) to S.2(s)]. PREPARED BY RADHIKA SETH, PLEASE VOTE , BALLOT No. 2 25 3 Industrial Dispute Definition of Industrial Dispute According to Section 2(k) of the Industrial Disputes Act, 1947 "industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. From the definition it is clear that the following elements should be present to constitute an industrial dispute: (1) There must be a dispute or difference. (2) The dispute or difference must be between employers and employers, or between employers and workmen or between workmen and workmen. (3) The dispute or difference must be connected with the employment or with the conditions of labour of any person. Analysis of Definition of Industrial Dispute The definition of industrial dispute is in three parts. The first part refers to the factum of a real and substantial dispute; the second part, to the parties to the dispute; and the third, to the subject-matter of the dispute. The adjective 'industrial' relates the dispute to an industry as defined in the Act. 1. Factum of real and substantial dispute: There must be a real dispute. It should not be vague. The mere apprehension of dispute is not sufficient. The Act has not defined what is 'dispute'. The ordinary dictionary meaning of the word 'dispute' means a difference. A demand made which is not met gives rise to a difference. For a dispute to be industrial dispute it is necessary that a demand must be first raised on management and rejected by it. The term 'industrial dispute' connotes a real and substantial difference having some element of persistency and continuity till resolved. Written demand is not necessary for bringing into existence an 'industrial dispute'. In Feeders Lloyd Corporation Ltd. verses Lt. Governor of Delhi, AIR 1970 Delhi 60, it was held that where the demand is raised for the first time before the Conciliation Officer and he in turn communicated to the management which rejected the same was held not sufficient to constitute industrial dispute within the meaning of the Act. 2. Parties to the dispute: The dispute must be between (a) employers and employers, (b) employers and workmen, or (c) workmen and workmen. In Workman of ISI verses . ISI it was held that industrial dispute is not restricted to dispute between employer and a recognised majority union. It also means a difference between employer and workmen including a minority union. 3. Subject-matter of the dispute: The dispute must relate to the matters provided in the definition. It must be connected with the employment or non-employment or the terms of the employment or with the conditions of labour, of any person. Dispute regarding confirmation of workmen officiating in higher grade involves 'classification by grades' specified in entry 7 of third schedule and is an industrial dispute' which Tribunal constituted under S. 7-A is bound to adjudicate [Workmen verses . Hindustan Lever Limited, In Workmen of Nilgiri Corporation Marketing Society verses State of Tamil Nadu, it was held that nonemployment in the context of employment previously existing is different from non-employment referable to contemplated employment. Except proof of entitlement to employment such as provision in the certified standing order or memorandum of settlement requiring employer to employ certain persons, disputes regarding refusal to employ persons disregarding promise to give employment is not connected with employment or nonemployment within the meaning of S. 2(k). All disputes relating to the matters specified in the second schedule and in the third schedule constitute 'industrial dispute'. The Second Schedule PREPARED BY RADHIKA SETH, PLEASE VOTE , BALLOT No. 2 profit sharing. and that in a given case the decision should rest not merely on theoretical or abstract objections to contract labour but also on the terms and conditions of which contract labour is employed and the grievance made by the employees in respect thereof. 7-A is bound to adjudicate [Workmen verses Hindustan Lever Limited. provident fund and gratuity. 3. Discharge or dismissal of workmen including reinstatement of. Rationalization. Bonus. BALLOT No. Thus dispute need not be in respect of a workman but community of interest in the workman is necessary for the dispute to become an industrial dispute. or grant of relief to. Industrial tribunal can order abolition of contract labour if the facts justify' [National Iron and Steel Co. Any other matter that may be prescribed. (1966) 1 LLJ 717]. Compensatory and other allowances. PLEASE VOTE . Ltd. verses . Wages. verses Workmen (1960-11 LLJ 223) : (1960 SCR 466). namely Workmen verses Dahingeapara Tea Estate (1958 LLJ 498): (AIR 1958 SC 1026). Retrenchment of workmen and closure of establishment. The propriety or legality of an order passed by an employer under the standing orders.26 Matters within the jurisdiction of Labour Courts \. 3. Where the work was of permanent nature and part and parcel of the manufacturing process of the goods and the labour engaged by the contractor was deprived of the legal facilities enjoyed by other workers under the statute. and 6. it was held. Leave with wages and holidays. 2 . The application and interpretation of standing orders. means that the person may not be a workman but he may be someone in whose employment. Dispute raised by workmen demanding abolition of contract labour in a concern is an industrial dispute. The Third Schedule Matters within the jurisdiction of Industrial Tribunals 1. 2. 5. 8. 9. Classification by grades. Withdrawal of any customary concession or privilege. 5. All India Reserve Bank Employees PREPARED BY RADHIKA SETH. verses State of West Bengal. The above interpretation of the expression "any person'' in Workmen of Dimakuchi Tea State verses Management of Dimakuchi Tea Estate was followed by the Supreme Court in the subsequent cases also. community of interest. under the scheme of the Act. 4. Their Workmen. 2. the employment of contract labour was an unfair labour practice [Shibu Metal Works verses Workmen. Rules of discipline. Hours of work and rest intervals. Whenever a dispute is raised by workmen in regard to the employment of contract labour by any employer it would be necessary tor the tribunal to examine the merits of the dispute apart from the general consideration that contract labour should not be encouraged. including the period and mode of payment. The expression. [Standard Refining Company of India Ltd. Illegality or otherwise of a strike or lockout. 7. workmen wrongfully dismissed. 6. 10. AIR 1967 SC 1206].2(k) cannot mean any body or everybody in this wide world. (1960) SC 948 j. terms of employment or conditions of labour the workmen as a class have a direct or substantial interest with whom they have. Dispute regarding confirmation of workmen officiating in higher grade involves 'classification by grades' specified in Entry 7 of Third Schedule and is an 'industrial dispute' which Tribunal Constituted under S. Meaning and Scope of words 'any person': In Workman of Dimakuchi Tea Estate verses Management of Dimakuchi Tea Estate (AIR 1958 SC 353) it was held that the expression ""any person" occurring in the third part of the definition of industrial dispute as given in S. 4. All matters other than those specified in the Third Schedule. Shift working otherwise than in accordance with standing orders. and 11. Standard Vacuum Refining Co. Ltd. verses Satnijuddin Ahmed. In the latter case it would be open to that union to take up cause of the workmen. In this case the appellant employee raised dispute as to denial of promotion. In Western India Match Cu. it was held that the only condition for an individual dispute turning into an industrial dispute is the necessity of community of interest. (?) Ltd. it was held that the word "person'' in S. Industrial dispute can cover dispute of employer with those still not in his employment: A dispute raised by the employer's workmen in regard to the non-employment of others who may not be his workmen at the material time. 2(k) does not include non-workman employee. Existence of employer-employee relationship is necessary. majority support is not essential. (1960) 1 LLJ 228 it was held that once a ‘dispute has been referred it will not cease to be an industrial dispute because the workmen withdraw their support afterwards. Such dispute is 'connected with the terms of employment' relating to "classification of workmen" which employer is bound under the Standing Orders Act to provide for in the certified standing orders. Ltd.. 'The union" merely indicates the union to which the employee belongs even though it may be a union of minority of employees in the establishment. Their Workmen. Similarly in Binny Limited . the Supreme Court held : k*A dispute between employer and a single workman does not fall within the definition of industrial dispute/' but if the "workman as a body or a considerable section of them make a common cause with the individual workman" then such a dispute would be an industrial dispute. is an industrial dispute [Kays Construction Co. (2005) 3 SCC 202. Individual dispute and industrial dispute: In Central Provinces Transport Services Ltd. In Indian Cable Co. verses State Industrial Tribunal U. verses Forbes Gobak Ltd. Workers' Union. The community of interest must exist at the date of reference and the concerned workman need not be a member of the Union. verses Its Workmen. In Mukand Ltd. Mukand Staff and Officers' Association (2004) 10 SCC 460 : AIR 2004 SC 3905. (1957) LLJ 27 (SC). Lid.. it was held that where. Madras. Madras verses The Hindu. Dispute regarding confirmation of workmen officiating in higher grade is an industrial dispute: In Workmen Employed by Hindustan Lever Ltd verses Hindustan Lever Ltd. it was held that a dispute between workmen and employer regarding confirmation of workmen officiating in higher grade is an industrial dispute. (2001) SCC 557.P. (1970) 1 SCC 225. an industrial dispute existed at the time of making order of reference this dispute does not cease to be so merely because dispute relating to only one employee is left over and that the union which raised the dispute chooses not to represent a particular employee.P. In Newspaper Ltd. In Jadhav J. or the union of another establishment belonging to the same industry. it was held that individual dispute per se is not an industrial dispute but it may become one if it has the backing of substantial number of workmen of the establishment or of union. The objection in this case was that the union espousing the cause of workman was not the majority union but that objection was rightly rejected PREPARED BY RADHIKA SETH. The essential requirement in such a case is that there must be community of interest and cause of the aggrieved workman is supported by substantial or appreciable number of workmen who in turn are interested in their welfare. Ltd. verses . 2 . verses Workmen Industrial dispute will subsist in spite of closure or take over of industry: Where the dispute is over a claim to benefit by way of bonus for work done in the past. and Others. BALLOT No.H. Workman. it was held that a dispute relating to a single workman may be an industrial dispute must either be espoused by the union of workman or a number of workmen. (1962) 1 LLJ 409 (SC). In Bangaigaon Refinery and Petrochemicals Ltd. verses . AIR 1972 SC 1975. it was held that the words "any person" does not include a person who was offered appointment but was not allowed to join the service by not accepting his joining report. PLEASE VOTE . it was held that individual dispute may become an industrial dispute if it is taken up by a State Union or a number of workmen. Ltd verses Western India Match Co. it would be the duty of the Tribunal to complete the adjudication and make its award [U. In Working Journalist of Hindu.27 Association verses Reserve Bank of India (1965-11 LLJ 175) : [I960 (!) SCR 25] and Workmen verses Greaves Cotton & Co. Electric Sypply Co. verses Raghunaih Gopal Patwardhan. Jurisdiction of Civil Court impliedly barred In Jitendra Nath Biswas verses . retrenchment or termination of an individual workman is deemed to be an industrial dispute. Dispute regarding contract labour. terms of employment or conditions of labour the aggrieved workman has to take the support of the Union or his fellow workman to espouse his cause. 207 (Punjab & Haryana). it was held that a reference of an individual dispute under S.2-A would be valid even jf it is not espoused by the union of workmen and such reference would not take the dispute out of the purview of S. Industrial dispute can be raised in respect of non-workmen [Workmen verses Greaves Cotton & Co. dismisses. Dispute on lock-out in disguise of closure. retrenches or otherwise terminates the services of an individual workman any dispute or difference between the workman and his employer connected with or arising out of such discharge. Alteration of conditions of service of employees of a co-operative society. Section 2-A is of limited application. PREPARED BY RADHIKA SETH. In Algu Ram verses . Ltd. It does not declare all individual disputes to be an industrial dispute. The Supreme Court held that the High Court should not have upset the finding of the Tribunal without holding that the conclusion was irrational or perverse. PLEASE VOTE .J.28 by the Tribunal and wrongly accepted by the High Court. BALLOT No. (1989) 3 SCC 582 it was held that the scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the Civil Court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act. The Industrial Dispute (Amendment) Act. But as regards other disputes connected with the employment.. retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is party to the dispute. dismissal. (1971) 2 SCC 658]. Following have been held to be industrial dispute: 1. dismissal.L. 2. 5. 1965 has inserted a new Section 2-A which is a follows: "Where any employer discharges. nonemployment. 4." Thus an individual dispute concerning discharge. Demand for modification of standing orders.2-A. 3. Dispute between workmen and employer regarding confirmation of workmen officiating in a higher grade. State of Punjab (1977) If L. 6. When closure is a pretence. Empire of India and Ceylone Tea Co. 2 . The amendment has also added "natural calaminity" as one of the reason for lay-off. it was held that the Labour Commissioner can objectively consider the case of granting permission to lay-off the workmen on the ground of accumulation of stock. Lay-off means the failure. Note: The words in italics in cl.29 4 Lay-off and Retrenchment LAY-OFF Lay-off means to discontinue work or activity. It does not include financial stringency or stoppage of financial assistance. refusal or inability of an employer on account of shortage of coal. (2002) 1 LLJ 791 (MP). Explanation: Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid off for that day within the meaning of this clause: Provided that if the workman. it was held that when there was a sudden slump in the price of tea in the World Market which continued for nearly 18 months. or (d) natural calamity or (e) for any other connected reason.g. Mazdoor Union verses Labour Commissioner. e. Devan Tea Estate. The employer-employee relation does not come to an end but is merely suspended during the period of lay-off. power.A. or raw materials. It is merely a fact of temporary unemployment of the workman in the work of the industrial establishment. This has been made more clear by substituting the words "any other connected reason" for "any other reason ". Any other reason must be of the kind. Definition and Essentials of Lay-off Section 2 (kkk) of the Industrial Disputes Act. BALLOT No. (kkk) substituted by Act 46 of 1982 vide s. AIR 1964 SC 1458. he shall be deemed to have been laid off for one half of that day: Provided further that if he is not given any such employment even after so presenting himself. Indore and Others. for the purpose during the second half of the shift for the day and is given employment then. instead of being given employment at the commencement of any shift for any day is asked to present himself. (2) The failure or refusal or inability to employ a workman must be due to (a) shortage of coal. In Workmen verses . it was held that other causes beyond control should be similar to the cause that have preceded. Silchar. or (c) the breakdown of machinery. AIR 1966 SC 987. PREPARED BY RADHIKA SETH. Assam verses Management of Tea Estate of Cachar. PLEASE VOTE . Thus the following are the essential elements of " lay-off": (1) The employer fails or refuses or unable to provide employment for reasons beyond his control. then it is a reason beyond the control of the management. 1947 defines "lay-off" as under: "Lay-off" (with its grammatical variations and cognate expressions) means the failure. to dismiss or discharge temporarily.E. reasons beyond the control of the employer. The expression for "any other reason " appearing in the definition (before 1982 amendment) is to be construed ejusdem generis. refusal or inability of the employer on account of contingencies mentioned in clause (kkk) to give employment to a workman whose name is borne on the muster rolls of his establishment. or (b) the accumulation of stocks. he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day. as the other reasons stated in the definition. power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity or for any other connected reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched. In Cachar Chah Shramik Union. 2(f) for or for any other reason. 2 . In S. it was held that there is no provision in the I. In the absence of this right in the standing orders or in the contract of employment. this right must be located either in the standing orders or in the contract of employment. The clause (KKK) was added in Section 2 by an amendment to the Act in 1953. verses The Firestone Tyre and Rubber Co. In the M/s Firestone and Rubber Co. 2 . no such compensation shall be pay able in respect of period of the lay-off after the expiry of the first forty-five days. whether continuously or intermittently.30 (3) The name of the workman must be borne on the muster rolls of the industrial establishment. PLEASE VOTE . a workman is so laid off for more than forty-five days. Therefore. except for such weekly holidays as may intervene. compensation which shall be equal to fifty percent of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid off Provided that if during any period of twelve months. he shall be paid by the employer for all days during which he is so laid off. he shall be deemed to have been laid-off only for one-half of that day. The compensation will be equal to the 50% of the total of the basic wages and clearness allowance that would have been payable to the workman had he not been so laid off. At the same time Chapter VA (Section 25-A to 25-J) was introduced in the Act to provide for lay-off and retrenchment compensation. (5) The explanation attached to the sub-section provides that every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at commencement at he time appointed for the purpose during normal working hours on any day and is not given employment within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of S? KKK). he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day... The section is reproduced below: "Whenever a workman (other than a badli workman or a casual workman) whose name Is borne on the muster rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid off. If the workman. BALLOT No. of India (P) Ltd. According to section 25-A of the Act the provisions relating to lay-off.D. any compensation paid to the workman for having laid-off during the preceding twelve months may be set-off against the compensation payable for retrenchment. The compensation payable shall be for all days during which he is laid off. Right of Workmen laid off for Compensation Section 25-C of Chapter VA of the Act entitles a workman to get compensation from the employer for the period he is laid off. instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then. If he is not given any such employment even after so presented himself. if there is an agreement to that effect between the workman and the employer: Provided further that it shall be lawful for the employer in any case falling within the forgoing provisions to retrench the workman in accordance with the provisions in Section 25-F at any time after the expiry of first fortyfive days of lay-off and when he does so. shall not be applicable (a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calender month. 1947 which gives the power of lay-off to an employer. Act. (4) The workman must not have been retrenched. if he has completed one year of continuous service in the establishment" Thus a workman must fulfil the following conditions for claiming lay-off compensation: PREPARED BY RADHIKA SETH. or (b) to industrial establishments which are of seasonal character or in which work is performed only intermittently. contained in Sections 25-C to 25-E. the employer must pay wages to the laid-off workman. Thus the Industrial Disputes Act has modified the common law right of termination of service to one of the temporary unemployment of workman in the work of the industrial establishment. except for such weekly holidays as may intervene. Explanation — "Badli workman" means a workman who is employed in an industrial establishment in the pi ace of another workman whose name is borne on the muster rolls of the establishment but shall cease to be regarded as such for the purposes of the section. It would not be lay-off as contemplated in Section 2 (kkk). 25-B) For the purposes of lay-off and retrenchment. no such compensation shall be payable in respect of any period of the lay-off after the expirty of the first forty-five days. Rolling Mills verses M. It was held that onus is on the employee to show that he had worked for 240 days. Bansilal Abirchand Mills verses Labour Court.B. PLEASE VOTE . AIR 1962 SCI 533]. In Bank of India and Another verse. [K. PREPARED BY RADHIKA SETH. the term 'continuous service' is defined in Section 25-B. more careful. 2 . someone else is employed in his place on the days the workman remains absent.off as defined in Section 2 (kkk). Interruption on account of sickness or authorised leave or an accident or a strike which is not illegal. Provisions applicable to lay-off cannot be made applicable to lockout. [Tatanagar Foundry Co. Section 25-C does not recognize the inherent right of the employer to declare lay-off for reasons which he may regard as sufficient or satisfactory in that behalf. By virtue of Section 25-J the Jay-eff compensation provided by the statute cannot be refused by reference to the standing orders [R. any compensation paid to the workman for having been laid-off during the preceding twelve months may be set off against the compensation payable for retrenchment. verses Workmen. is not interruption within the meaning of this section and the service shall be deemed to be continuous. the respondents were badli workmen. Thus a badli workman is one whose name is not borne on the muster rolls of the establishment. then it would not be lay-off which is justified under Section 2 (kkk) and the . it is the laying. and more farsighted.R.]. According to the section 25-B(l) a workman is said to be in continuous service for a period if he is. When a workman whose name is actually borne on the muster rolls is absent. If the lay-off is mala fide in the sense that the employer has deliberately and maliciously brought about a situation where lay-off became necessary.relief provided to the laid off workmen under Section 25-C would not be the only relief to which they are entitled. the application for regularization of their service was untenable. When the laying off of the workmen is referred to in section 25-C. Therefore. BALLOT No.T. Definition of Continuous Service (S.] It would not open to the Tribunal to enquire whether the employer could have avoided the lay-off if he had been more diligent. even if he is a 'badli workman' is found on the muster rolls. or a lock-out or a cessation of work which is not due to the fault on the part of the workman. if the name of a workman. a workman is so laid off for more than forty-five days. (1962) 2 LLJ 667 (Bom. in uninterrupted service. then such other person is called a badli workman.)]. They had not completed 240 days of badli service. Therefore. The right of a workman to claim lay-off compensation is subject to the following limitations: (1) If during any period of twelve months. Payment of compensation is not a condition precedent to lay-off and compensation cannot be awarded in advance of actual lay-off.)]. [Workman verses Dewan Tea Estate. Badli.workman. the position would be same. (3) He must not be a badli or casual workman. If the lay-off has been declared in order to victimize the workmen or for some other ulterior purpose. They sought absorption under a scheme prepared by the appellant bank. (2) He must have completed at least one year's continuous service as defined in section 25-B. Tarun Kumar Biswas and Others. Ltd. (2) It shall be lawful for the employer in any case falling within the foregoing provisions to retrench the workman in accordance with the provisions contained in Section 25-F at any time after the expiry of the first forty-five days of the lay-off and when he does so. [Management of Kairhetta Estate verses Raja Manikam. if there is an agreement to that effect between the workman and the employer. workmen who can claim the benefit of section 25-C must be workmen who are laid off and laid off for reasons contemplated by Section 2 (kkk).31 (1) His name must be borne on the muster roils of an industrial establishment. Mehar. he is entitled to lay-off compensation [ Vijaya Kumar Mills verses Labour Court. Any such person ceases to be a badli workman after completion of one year's continuous service. for that period. (1960) 2 LLJ (Mad. and so. the date of retrenchment. even under the same employer or controlling authority would not amount to his being in "continuous service". it is necessary to take into account the days on which (1) he has been laid off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act. Panchayat verses Gangaben Laljibhai.32 Sub-section (2) defines continuous service for one year and for six months. Similarly in Sundernagar Distt. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. In most cases. it was held that employment of daily wager/casual employee in different establishments. 1947. so however. and (4) in the case of a female. and (2) 240 days. the attendance register. In Mohan Lal verses Bharat Electronics Ltd. but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date i. (3) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment. it was held that Section 25B(2) comprehends a situation where a workman is not in employment for a period of 12 calendar months.e. 1946 (20 of 1946) or under this Act or under any other law applicable to the industrial establishment. and (2) 120 days. 2 . in the case of a workman employed below ground in a mine. the claimant workman can only call upon the employer to produce before the court the nominal muster roll for the given period. the letter of appointment or termination. if the workman. it was reiterated that burden of proof that workman worked for 240 days continuous service in a given year lies on the workman. it was again held that the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer. (1985) II LLJ 539 (SC). it was held that for the purpose of determining continuous service a workman must have actually worked for 190 or 240 days as the case may be. It was further held that mere affidavits or self-serving statements made by claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. In R.M Yellati verses . Executive Engineer. during a period of six calender months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than: (1) 95 days. BALLOT No. in any other case. (b) for a period of six months. In Haryana Urban Development Authority verses Om Pal. . if the workman.. Similar was the decision in State of Haryana verses Ramesh Kumar Duty of an Employer to maintain Muster Rolls of Workmen (S. he is nevertheless deemed to be in continuous service under an employer— (a) for a period of one year. has actually worked under the employer for not less than: (1) 190 days in the case of workman employed below ground in a mine. In Workmen of American Express International Banking Corporation verses Management of American Express International Banking Corporation. that the total period of such maternity leave does not exceed twelve weeks. Even though a workman is not in continuous service for a period of one year or six months. (2) he has been on leave with full wages. etc. the wage register. in any other case. He would be deemed to be in continuous service for a period of one year for the purpose of Section 25B and Chapter VA of the Industrial Disputes Act. during a period of twelve calendar months preceding the date with reference to which calculation is to be made. Asstt. PLEASE VOTE . if any. 25-D) PREPARED BY RADHIKA SETH. According to the Explanation to this section for the purpose of calculating the number of days on which a workman has actually worked under an employer. she has been on maternity leave. earned in the previous year. Effect of Laws inconsistent with Chapter VA of the Act (S. 25-E) Section 25-E provides that a laid-off workman shall not be entitled to compensation: (1) if he refuses to accept any alternative employment in the same establishment from which he has been laid-off or in any other establishment belonging to the same employer situate in the town or village or situate within a radius of five miles from the establishment to which he belongs. PREPARED BY RADHIKA SETH.e. provided that the wages which would normally have been paid to the workman are offered for the alternative employment also." This duty is mandatory and the noncompliance of it will debar the employer to take advantage of Section 25-E (ii) of the Act. the decision of the appropriate Government thereon shall be final. Offer of the job of coolie to a skilled workman cannot amount to the offer of an alternative job.. The expression. however. Kanpur verses J. 25-D and 25-E "industrial establishment" means a factory. for lay-off and retrenchment. a mine a or a plantation as defined in the Factories Act. Cotton Spinning and Weaving Mills Company Application of Sections 25-C to Section 25-E (S. contract or service or otherwise.K. Provided that where under the provisions of any other Act or rules. Section 25-A(2) provides that if a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently. "can be done by the workman" is. Workmen not entitled to compensation in certain cases (S. 25-A (1) Sections 25-C to 25-E inclusive shall not apply to industrial establishment to which Chapter VB (Chapter on "Special Provisions Relating to Lay-off. (See ACC case). (3) if such laying-off is due to strike or slowing down of production on the part of the workman in another part of the establishment. orders or notifications issued there under or under any standing orders or under any award. It says "notwithstanding that workmen in any establishment have been laid off it shall be the duty of every employer to maintain for the purpose of this chapter a muster roll and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours. offer of one alternative job must be considered enough but that job must be like or similar to the original job from which the workmen concerned were laid-off. Mines Act and Plantation Labour Act respectively. It does not mean that a variety of jobs be offered. notwithstanding that he receives benefits in respect of other matter under this Act. 2 . or (b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently. The Explanation provides that in this Section and in Sections 25-C. in the opinion of the employer. Retrenchment and Closure in Certain Establishments" Sections 25-K to 25-S) applies. the workman shall continue to be entitled to the more favorable benefits in respect of that matter. or: (a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month. Meaning of alternative employment: The expression "any alternative employment" in Section 25-E of the Act must mean any other similar or like or equivalent employment to the original job. if. significant in conditions of Section 25-E and means not only physical capability but also its acceptability on the part of the workman.33 Section 25-D of the Act imposes a duty upon the employer to maintain a muster roll for the purpose of Chapter VA. 25-A) According to S. (2) if he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day. BALLOT No. PLEASE VOTE . 25-J) (1) The provisions of this Chapter (Chapter VA of the Act) shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) . a workman is entitled to benefits in respect of any matter which are more favorable to him than those to which he would be entitled under this Act. such alternative employment does not call for any special skill or previous experience and can be done by the workman. i. Industrial Employees' Union. It is reproduced below:"25-M Prohibition of lay-off: (I) No workman (other than a badli workman or a casual workman) whose name is borne on the muster-rolls of an industrial establishment to which this Chapter applies shall be laid off by his employer except with the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority). Special provisions relating to lay-off in certain establishments The Industrial Disputes (Amendment) Act. (6) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall. apply. the workmen concerned and the per sons interested in such lay-off. The provisions of this chapter apply to industrial establishments (not being as establishment of a seasonal character or in which the work is performed intermittently) in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months. after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer. review its order granting or refusing to grant permission under sub-section (4) or refer the matter or. Thus by virtue of S. 25-J the lay-off compensation provided by the statute cannot be refused by reference to the standing orders. within a period of thirty days from the date of commencement of such lay-off. subject to the provisions of sub-section (7). 25-S. PLEASE VOTE . either on its own motion or on the application made by the employer or any workman. but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of Chapter V-A of the Act. BALLOT No. may. The new sections introduced by this amendment are S. it shall pass an award within a period of thirty days from the date of such reference. (5) Where an application for permission under sub-section (I) or sub-section (3) has been made and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made. obtained on an application made in this behalf unless such lay-off is due to shortage of power or to natural calamity. (2) An application for permission under sub-section (I) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended lay-off and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner. be final and binding on all the parties concerned and shall remain in force for one year from the date of such order. have been laid-off under sub-section (1) for reasons of fire. (3) Where the workmen (other than badli workmen or casual workmen) of an industrial establishment. to the appropriate Government or the specified authority for permission to continue the lay-off (4) Where an application for permission under sub-section (I) or sub-section (3) has been made. excess of inflammable gas or explosion. in the prescribed manner. such lay-off is due also to fire. (7) The appropriate Government or the specified authority may. having regard to the genuineness and adequacy of the reasons for such lay-off. cause it to be referred. to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this subsection. 1976 inserted Chapter V-B dealing with special provisions relating to lay-off. being a mine. 2 . shall. the appropriate government or the specified authority. the interest of the workmen and all other relevant factors. flood. grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.34 (2) The provision of Chapter V-A shall not effect the provisions of any other law for the time being in force in any State in so far as that law provides for settlement of industrial disputes. flood or excess of inflammable gas or explosion. the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days. as the case may be. retrenchment and closure in certain establishments. in relation to such establishment. PREPARED BY RADHIKA SETH. 25-K to S. Section 25-M deals with prohibition of lay-off. and in the case of a mine. by order and for reasons to be recorded in writing. the employer. Within three days of the delivery of the judgement. Explanation.f.2(oo) gives effect to the ordinary accepted notions of existence in an existing industry. as the case may be. The definition of retrenchment as given in S. direct that (he provisions of subsection (1).8. but does not include— (a) voluntary retirement of the workman. S. Divelka.e. (9) Notwithstanding anything contained in the foregoing provisions of this section. " RETRENCHMENT Retrenchment means in ordinary parlance that the business itself is being continued but that a portion of the staffer the labour force is discharged as surplus age.25 FFF PREPARED BY RADHIKA SETH. if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the tike. J. natural and contextual meaning of the term 'retrenchment'. The constitution bench. or. or (c) termination of the service of a workman on the ground of continued ill-health. or where the permission for any layoff has been refused. a workman shall not be deemed to be laid off by an employer if such employer offers any alternative employment (which in the opinion of the employer does not call for any special skill or previous experience and can he done by the workman) in the same establishment from which he has been laid off or in any other establishment belonging to the same employer. 2 . said in the above case that retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of staff or labour force is discharged as a surplus age and the termination of service of all the workmen as a result of closure of business cannot be properly described as retrenchment. "for any reason whatsoever" mean that it does not matter why they are discharging the surplus. otherwise than as a punishment inflicted by way of disciplinary action. termination of services of all the workmen as a result of the closure of the business cannot be properly described as retrenchment. The definition of the term 'retrenchment* as given in S. For the purposes of (his section. PLEASE VOTE .25 FF and S.2(oo) is exhaustive. provided that the wages which would normally have been paid to the workmen are offered for the alternative appointment also.1984. 18. speaking through S. by order. (10) The provisions of Section 25-C (other than the second proviso thereto) shall apply to cases of lay-off referred to in this section. the appropriate Government may. BALLOT No. or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in the behalf. situate in the same town or village or situate within such distance from the establishment to which he belongs that the transfer will not involve undue hardship to the workman having regard to the facts and circumstances of his case. such lay-off shall be deemed to be illegal from the date on which the workmen had been laidoff and the workmen shall be entitled to all the benefits under any law for the time being in force as if they had not been laid-off. The ordinary meaning of the word retrenchment is that business itself is continuing though a portion of the staffer labour force is discharged as surplus age. The words. Das.D.K. sub-section (3) shall not apply in relation to such establishment for such period as may be specified in the order]. [Hari prasad Shiv Shankar Shukla verses A. Therefore. and it does not include the termination of service of all workmen in an industry when the industry itself ceases to exist on a bonafide closure or discontinuance of the business of the employer. . Thus retrenchment excludes closure. or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein. Thus the court adopted the ordinary.35 (8) Where no application for permission under sub-section (1) is made or where no application for permission under sub-section (3) is made within the period specified therein. It is reproduced below: "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever. it is necessary so to do. Note: Clause (bb) was inserted by Act 49 of 1984 w. Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge for service under agreement would nonetheless be retrenchment within the meaning of the expression in S. But termination of service does not include retirement and superannuation. Termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment under S. it would be retrenchment. verses Presiding Officer. AIR 1976 SC 1111. Similar was the decision in Anakpaila Co-operative Agricultural and Industrial Society Ltd. In Workmen of the Bangalore Woolen. [The Management of Mohan Lal verses Bharat Electronics Ltd.. According to the literal meaning the term 'retrenchment' means termination of the service of a workman for any reason whatsoever. (1983) 3 SCC 289 . 2(oo)]. natural and contextual interpretation of the word to mean termination by the employer of the service of a workman as surplus labour for any reason whatsoever. (ii) voluntary retirement of a workman (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf. 2 . such employment cannot be regarded as employment contemplated within the definition of the expression 'retrenchment'. natural and contextual meaning.. In M/s. [Binoy Kumar Chatterjee verses Jugantar Ltd. This is the wider literal interpretation as distinguished from the narrow. 2(oo) means termination by the employer of the service of a workman for any reason whatsoever. (1990) 3 SCC 682 :(1990) 2 LLJ 70]. [It may be noted that Sundra Money case was decided before the inclusion of clause (bb) to S. Ltd. If the requirements of the definition are fulfilled. 2(oo). (1978) 1 SCR 591]. AIR 1963 SC 1489. AIR 1976 SC 1111. the Supreme Court adopted the literal meaning of the term 'retrenchment'. except if the case falls within any of the excepted categories. verses . PLEASE VOTE .2 (oo). verses Its Management. If he is employed afresh thereafter for a term. Hariprasad case is not an authority for the proposition that S.2(oo) only covers cases of discharge of surplus labour and staff. (iv) termination of the service on the ground of continued ill health. verses Workmen. Sundar Money." Automatic termination. it was held that termination on ground of health is not "retrenchment". AIR 1981 SC 1253 : (1981) 2 LLJ 70]. It must as a corollary follow that if the name of the workman is struck off the rolls that itself would constitute retrenchment. conclude. "For any reason whatsoever" are the key words.36 were added so that compensation could be payable to workmen whose services are terminated on transfer or closure of an understanding "as if" the said termination was retrenchment although technically it is not retrenchment. PREPARED BY RADHIKA SETH. Cotton and Silk Mills Co. and those expressly excluded by the definition. It was held that the expression "for any reason whatsoever" was very wide and almost admitted no exceptions. namely (i) termination by way of punishment inflicted pursuant to disciplinary action. in landmark case of State Bank of India verses N. 2(oo) except in cases excepted in that section itself. [Punjab Land Development and Reclamation Corporation Ltd. Sundara Money. The termination of petitioner's service on the expiry of the period of his contract does not fall within the expression 'retrenchment' in S. [Delhi Cloth and General Mills Lid.2 (oo) is so clear and unambiguous that no external aids are necessary for its proper construction. of service on efflux of contractual period amounts to retrenchment. AIR 1962 SC 1963. 2(oo) the termination would be ipso facto retrenchment. it was held that retrenchment means "to end. 2(oo). Parry and C. The definition of 'retrenchment' in S. In State Bank of India verses N. it may be noted that the Supreme Court in Hariprasad case had adopted the narrow interpretation. The age of superannuation marks the end point of the workman's service. It is a well-settled position in law that if the termination of service of a workman is brought for any reason whatsoever. then it Is retrenchment. It is well settled that where the termination of service does not fall within any of the excluded categories mentioned in S. Shambhu Nath. However. The voider literal meaning has since been adopted by the Supreme Court in Simdra Money and subsequent cases rejecting the narrow. cease. The definition of the expression 'retrenchment' in S. other than those specified in S. otherwise than as a punishment inflicted by way of disciplinary action. BALLOT No. Ltd. it was further held in this case. 1992 LIC 451. Termination of service on the ground that initial appointment w< invalid amounts to retrenchment as it is not covered by any of the exceptior mentioned in S. It is not any illness but that which interferes with the usual orderly functioning of the duties of the post which would be attracted by the sub-clause. A departmental inquiry was held against him for four acts of misconduct and the inquiry officer came to the conclusion that two of the charges were fully proved and one charge was proved to a limited extent and the fourth charge was not established. In Will Cox Buck well India Ltd. PLEASE VOTE . Termination for unauthorized absence from duty by workman amounts to retrenchment as it is not covered by any of the exceptions mentioned: S. (1995) 1 LLJ 97 (Pat. Chalchitra Nigam Ltd.)]. Termination of service for very long unauthorized absence from duty does n amount to retrenchment [Managing Director verses Babasahib Devgenda Patil.2 (oo) of the Act. it was held that retrenchment means the discharge of surplus number of labourers by the employer. even if the illness does not affect general health or gene capacity and is restricted only to a particular limb or organ but affects the efficient working of the work entrusted. Southern Railway. namely. It was further h< that if on account of a workman's disease or incapacity. AIR 1990 SC 2034. verses Their Workmen. 2 . H. 1277 (All)] Retrenchment as defined in S." It was held that the termination of the employee in the instant case under paragraph 521(10) (c) of the Award was as a result of the disciplinar proceedings and was punitive. The competent authority decided to dismiss the employee for service. In State Bank of India verses Workmen. to show cause as to why the said punishment should not be imposed on him.P. AIR 19? SC 1003. 2(oo). Employee's PREPARED BY RADHIKA SETH. Conversely. verses Jagannath. termination has been assimilated to retrenchment for certain purposes. the termination per se is not illegal on group that the provisions of S. the disease or incapacity has to be categorised as i health for the purpose of the said clause. BALLOT No.)]. it will be covered by the phrase. 1991 LIC. Digwadih Colliery verses Workmen 27 FJR 364 relates to badli workers who had worked for more than 240 days and it was held that this amounted to retrenchment. 25 FF and S. 25 FF1 does not cover termination of service as a result of closure or transfer of a] undertaking though sue!. it was held that the expression "ill-health" used in sub-clause (c) of 2(oo) has to be construed relatively and in its context. and thereafter passed an order observing that though the employee may not be dismissed in view of the extenuating-circumstances but at the same time it would also not be desirable to retain him in the Bank's service and as such "be discharged on payment on the month's pay at the same time it would also not be desirable to retain him in the Bank's service an/ as such "be discharged on payment of one month's pay and allowances in lieu c notice. the resultant product or i service is likely to be affected in any way or to become a risk to the health* life property of the consumer. AIR 1970 SC 13 34. In terms of para 521(10)(c) of the Sastri Award this would not amount t disciplinary action. verses State of UP. The competent authority also gave him a hearing as required by the said provision. termination of temporary employee was held amounting to retrenchment. [Mithilesh Kumar Singh verses State of Bihar. (1981) LLJ 330 (SC)]. AIR 1974 SC 1166. Robert D'souza verses Executive Engineer. In the instant case. Cases of termination by employer for any reasons whatsoever otherwise than in four cases referred to in the definition would amount to retrenchment. In Anand Bihari verses Rajasthan State Road Transport Corporation. Termination of service on account of closure of business amounts t retrenchment as it is not covered by any of the exception mentioned in the definition of refreshment [U. 2(oo) read in the context of S.37 verses P.25F nave not been followed while effecting it. the employee concerned was working as a clerk in the appellant State Bank of India at the relevant time. 2(oo) would not amount to retrenchment Hence. it was held that workman suffering from fits of intermittent nature cannot be said to be suffering from continued ill-health. 2(oo) [L.C. the termination defective or sub-normal eye sight being covered by sub-clause (c) of S. It must have a bearing on t\ normal discharge of duties. It was therefore not "retrenchment" within the meaning of S. Hence there was no question of complying with S 25F of the Act. Pal and Other. the compensation payable to the workman whose services art terminated as a result of such closure.. In Bisra Stone Lime Co. Mineral and Industrial Corp. and issued a notice to him under paragraph 521(10)(a) of the Sastri Award. 19 Lab 1C 288 (Bom.P. A realistic and not a technic or pedantic meaning has to be given on the phrase. Haryana Urban Development Authority.R. [Chief Administrator. 1960. 1998 LLR 526]. Such termination being as per standing order under a relevant stipulation in the contract of appointment. Termination was effected under the stipulation contained in terms of appointment read with Regulation 14(4) (providing for discharge during probation) of the LIC of India (Staff) Regulations. The exclusionary clauses have to be necessarily constructed strictly having regard to the benefits given by the Act in S. (Amendment) Act. (1984) 1 SCC 244.J. it was held in Dilip Shirke verses Zila Parishad. Pal and Others. Act was applicable. Labour Court. 1984 mid hence S. Section 25-FF and S. Hyderabad. held. 15 F. S. this view has been overruled by the Supreme Court in M. But there is a possibility that the employer may exploit the labour by giving fixed term employment even when a vacancy or post exists. (1990) 1 Lab LJ 445 Bom. [Raj as than State Road Transport Corporation verses Ramavtar Sharma. (1980) 3 SCC 340. it was held that an employer is entitled to recognize his business in the manner he consider best. PLEASE VOTE . AIR 1970 SC 1334. If a person is engaged for a specific period. It was further held that even if I. Therefore. However. Srinivasa Rao verses Labour Court.D. 1994 LLR206(P&H)]. PREPARED BY RADHIKA SETH. clause (bb) would apply only to such cases where the work ceases or the post itself ceases or such other analogous cases where the contract of employment is found to be fair. [The Municipal Committee verses The Presiding Officer. or for the execution of a specific work and a clear stipulation is made in the contract of employment that the service shall be terminated at the expiry of the work. Ltd. 2 DO) thereof was not attached in view of clause (bb) thereof as introduced by I. thus requiring compliance with J5. Yavatmal. then it has to be excluded from the ambit of sub-clause (bb) and the definition of "retrenchment" has to be given full meaning. it did not amount to retrenchment thereby rendering compliance of section 25F unnecessary. justice. Rohtak. 2(oo).2(oo) covers termination of employment either because of non-renewal of the contract or because of expiry of the time stipulated in the contract of employment.D. 1990 LIC 174 (AP)]. 114]. verses Ram Kishan. verses M Boraiah. 25-F for those sought to be reti cached. Termination of services of a workman due to loss of confidence does not amount to retrenchment inflicted by way of disciplinary action which is an exception recognized in S. So long as this is done the Tribunal cannot question its propriety even if it results in retrenchment of surplus age of employees. In Santosh Gupta verses State Bank of Patiala. BALLOT No. 2(oo). 2 (oo) but it amounts to retrenchment [R. (i996) 1 LLJ 870 (SC)]. discharge of workman on ground of her/his failure to pass confirmation test. Termination of respondent's service during his probation period is a termination simplicitor and could not be regarded as punitive requiring enquiry or attracting principles of natural. Divisional Manager.38 Union verses State of UP. LIC (1994)2 SCC 323 : In this case services of appellant Development Officer (Class II) was terminated during the extended period of probation for non-fulfillment of condition of achieving minimum business target stipulated in the order of appointment. Industrial Tribunal-cum-Labour Court. it was held that discharge from employment or termination of service of a probationer would amount to retrenchment. Manimajra verses Presiding Officer. However in such a case disciplinary proceedings are necessary as a condition precedent. does not amount to retrenchment [Morinda Co-op.D. Venugopalv. they cease to work. amounted to retrenchment.C. Sub clause (bb) to S. verses P. [Kamal Kishore Lakshman verses The & Management of M/s Pan American World Airways. Similarly.. (1987) 1 LLJ 107]. In Parry and Co. Where workmen are employed during crushing season only in sugar mills and after the season. If the termination is meant to exploit an employee or to increase the bargaining power of th6 employer. 25-F of the Act was not invocable. 2 . the workman shall not be entitled to claim that he has been retrenched or that the action is violative of the provisions of the Act. Similarly in Karnataka State Road Transport Corp. 1994 LLR 454 (P&H) (DB)]. proper and bonaflde. 2(oo) of I. 25-FFF deal with compensation for workmen in case of transfer and closure of undertaking respectively Discontinuance of service of employees employed as labour on daily wages is not covered by exception (bb) to S. It was held that the operation of S. Hence.25F. termination of services of a workman on the ground of misconduct does not amount to retrenchment [Municipal Corporation verses Labour Appellate Tribunal. (1996) 7 SCO 139]. Sugar Mills Ltd. Act was excluded and termination was not deemed to be retrenchment under S. It is in two parts. Mere proof of employment of casual workers or daily-wagers iii a project or scheme and termination^ their services on the project or scheme coming to an end not enough to attract the exception sub-clause (bb). CPWD verses Madhukar Purshotam Kolharkar.M. Provision for automatic termination of service on account of absence is not covered by exception (bb) in S. Section 2(oo)(bb) is attracted where the respondent was initially appointed on scheme-based job for a period of six months and his services were continued thereafter on the same basis till the conclusion of the scheme. The first part contemplates termination of service of the workmen as a result of the non-renewal of the contract of employment or its expiry. Conditions precedent for Retrenchment of Workmen (S. 25-F) Section 25-F of Chapter V A of I.M. whereas the second part postulates termination of such contract Or employment in terms of stipulation contained in that behalf. Therefore. the Supreme Court in view of the facts and circumstances prevailing therein had no occasion to consider the second part of Section 2(oo)(bb) of the said Act. W. The decision of this case was followed in Haryana State F.M. 2(oo) (bb) would not be attracted. Termination of services of workmen appointed to seasonal posts for the whole season does not amount to retrenchment in view of Section 2(oo)(bb) [Ganga Kisan Sahkari Chini Mills Ltd. The respondent therefore was not appointed on a permanent or temporary basis. verses Shammi Bhan.C. BALLOT No. Nijajkar case . [MD. there was no necessity for compliance with Section 25-F. As sub-clause (bb) is not applicable in the present case. Store Ltd. Similar was the decision in Bhogpur Co-op. verses Harmesh Kumar. Nilajkar case it was held that S. Karnataka Handloom Development Corporation Ltd. it was held that the case is covered by Section 2(oo)(bb) and Section 25-F would be inapplicable. specific periods were mentioned and engagement had not been temporary in nature. Sugar Mills Ltd. Clarifying S. PLEASE VOTE . 2(oo) and hence S. held. Section 2(oo) (bb) of the Act will have no application. 2(oo).D. termination amounted to retrenchment [S. In all orders of engagement. Act provides as follows: 'Wo workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-(a) the workman has been given one month's notice in PREPARED BY RADHIKA SETH. Therefore the instant case is covered by second part of Section 2(oo)(bb) of the said Act. Workman was "retrenched" at the end of each period. employment must be shown to be under a contract which stipulates that it would come to an end with the expiry of the project or scheme and workers must be shown to have been made aware of such stipulation at the commencement of their employment.C. Nilajkar verses Telecom District Manager . Termination of service on termination of scheme. [Municipal Council Samrala verses Raj Kumar. A xvorkman was engaged for various spells of fixed periods from July 1982 to August 1986. was appointed thrice and disengaged thrice. the same was short-lived one and would be liable to termination as and when the appellant thought it fit or proper or necessary to do so.39 Termination effected under the stipulation contained in terms of appointment is not deemed to be retrenchment under S. (2002) 9 SCC 622. verses Ram Niwas. It was further held that in the absence of fixed term in the order of appointment provision under S. (2002) 5 SCC 654 and Executive Engineer. [Kishore Chandra Samal verses Orissa State Cashew Development Corporation Ltd. [State of Rajasthan verses Sarjeet Singh. verses Sri Mahadev Laxman /taw/. verses 'Jai Veer Singh.. is not an authority for the proposition that apart from a project or scheme temporary duration. In the present case the respondent. Therefore. AIR 1996 SC 1001. Section 2(oo)(bb) of the Act contains an exception. For applicability of Section 2(oo)(bb). does not amount to retrenchment where appointment letters categorically showing that appointment was purely contractual and for a fixed period in view of sub-clause (bb) of Section 2(oo). 25-F is not attracted [State Bank of Rajasthan verses Rameshwar Lal Gahlot. Uptron India Ltd. The respondent was categorically told that as per the terms of the contract. He further more understood that his services could be terminated at any point of time as it was on a contract basis. within a span of about 18 months. Yet again. 2 . (2007) 7 SCC 748]. " Section 25-F is not applicable in case of termination of service on expiry of contract of service for a fixed term in view of clause (bb) of S. held. it was held that if the termination of service was for misconduct. (2003) 4 SCC 628 : services of the respondent were terminated and he has asked to collect the dues before leaving. Hence termination. [Nor Singh Pal verses Union of India. It was held that since the said termination order did not specifically mention whether it included the amount contemplated under S. Haryana Roadways verses Rudhan Singh. average pay for every completed year of continuous service or any part thereof in excess of six months. since the respondent had worked in different departments of the appellant in broken periods he had therefore not been in "continuous employment" under the appellant for a period of 240 days prior to his dismissial. " In State Bank of India verses N. (2002) 5 SCC 654. The period of 240 days has to be counted from the date of joining even though it was on adhoc basis and not from the date of regular recruitment [Haryana SEB verses Randhir Singh. verses Workmen. at the time of retrenchment compensation which shall be equivalent to fifteen days. 2 (oo) as introduced by ID (Amendment) Act. (2005) 5 SCC 591]. Ambala Cantt. (2000) 3 SCC 588 : AIR 2000 SC 1401]. (2004) 8 SCC 129. (1976) 1 SCC 822 it was held that "if the workman swims into the harbour of S. PLEASE VOTE . Indian Cable Co. (b) the workman has been paid. On facts. BALLOT No. applied]. though workman had not been in service of employer for complete one year. (1962) 1 LLJ 409 : 1962 Supp (3) SCR 589. it was held that Section 25-F nowhere mentions that retrenchment compensation being made or tendered to the worker along with one month's notice. State of Rajasthan verses Rameshwar Lal Gahlot. 25-F or not. 25B(2). employer was engaged in the business of procurement and supply of wheat.W. In Haryana State EC. (2001) 5 SCC 540]. and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the official Gazette. In PramodJha verses State of Bihar. Acceptance of retrenchment compensation cannot validate an invalid order of termination. LIC(1994) 2 SCC 323. effected without complying with S. the termination order was not in compliance with S. [DGM Oil and Natural Gas Corporation Ltd. 1984[M Venugopal verses Divisional Manager. Different departments controlled by an apex corporation are distinct "employers". the question of payment of any retrenchment compensation or service of any statutory notice would not arise. 25-F he cannot be retrenched without payment at the time of retrenchment compensation as prescribed therein read with S.C. Assistant Line-Man. on the contrary. Harmohinder Singh verses Kharga Canteen. 25-F. [G. wages for the period of notice. Their appointment was on contract basis on daily wages (till three months in this case). verses Ram Niwas. Sundara Money. Store Ltd. did not entitle the watchmen/chowkidars to any relief.M. PREPARED BY RADHIKA SETH. 2 . clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment after the time when the retrenchment has taken effect would vitiate the retrenchment. is enough to satisfy requirement of Section 25-F.. It was held that termination of their service after clearance of the stock did not amount to retrenchment. verses Ilias Abdulrehman (2005) 2 SCC 183. 25-F of the ID Act. In Sain Steel Products verses Naipal Singh. In State of Punjab verses Jagir Singh.40 writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice. Ltd. 240 days' work in a period of 12 months. appointing watchmen/chowkidars for watching the stock of wheat lying in open area. ) (DB)]. Illegality of. [Umesh Saxena verses Labour Court. the making of appointment cannot be a ground to refuse to follow the provisions of S. Ltd. If engagement of workman is conditional and for specific period. . (2006)1 SCC 121]. (i) he is a workman under Section 2(s). PREPARED BY RADHIKA SETH. non-compliance with S. the case is covered by Section 2 (oo)(bb) and therefore Section 25-F would not be applicable. Pandya. BALLOT No. it being clearly indicated that on appointment of a regular employee. (iii) establishment in which he is employed is an "industry" within the meaning of the Act. A direction for reinstatement for non-compliance with Section 25-F would only restore to the workman the same status which he held when his services were terminated. Reserve Bank of India verses S. 25-F. (2005) 8 SCC 750]. 1995 SCC (L&S) 142]. Labour Court. if they have worked for more than 240 days in a year continuously immediately preceding the order of termination. [U. (2006) 1 SCC 667]. To get relief from court workman has to establish that he has right to continue in service and that his service has been terminated without complying with provisions of Section 25-F [Surendernagar District Panchayat verses Dohyabhai Amarsingh. These conditions are cumulative. Section 25-F is applicable even to a daily rated workman. (1984) 1 LLN 601 (Guj. The requirement of notice under this section is a condition subsequent.(1981) 3 SCC 225]. If any one is missing then Section 25-F will not be attracted.R verses Neeraj Awasthi. the respondent workmen would continue to be ticca Mazdoor after their reinstatement and they did not any right to get regular work. The principles of natural justice would be attracted only when the services of some persons are terminated by way of punitive measure or thereby a stigma is attached [State of U. Section 25-F is applicable to adhoc temporary employees also. (1987) 2 LLJ 85 (Del)]. AIR 1964 SC 1617]. verses A. Such action would entitle the workman to a declaration for continuation in service with full back wages. or irregularity in. To claim protection of Section 25-F the facts to be proved by workman are: (i) there exists relationship of employer and employee. the Supreme Court awarded monetary compensation in lieu of reinstatement. 25-F [Punjab Land Development and Reclamation Corp. verses Presiding Officer. Section 25-F is applicable also to badli workmen continuing in service for one year [Sarabhai Chemicals verses Subhash N. [Punjab SEE verses Darbarasingh. the employee's engagement was to come to an end. where 18 long years had lapsed since termination without complying with S. [Rolston John verses Industrial Tribunalcum-Labour Court. (1990) 3 SCC 682]. Clause 25-F (c) is directory in nature. Sankaralingam. (2008) 10 SCC 698]. 25-F would be void ab initio. Respondent was held entitled to 25% bank wages of the total wages payable during the relevant period. Retrenchment without complying with S. 25-F would vitiate such termination. Therefore. PLEASE VOTE . 2(oo) amounts to retrenchment. However.41 240 days of continued service does not by itself give rise to a claim of permanence. State Brassware Corporation Ltd verses Uday Narain Pandey. [Manager. [Hari Mohan Rastogi verses Labour Court. the question of complying with the principles of natural justice would not arise. Ltd. [Bombay Union of Journalists verses State of Bombay. A workman employed on a part-time basis but under the control and supervision of an employer is a workman in terms of Section 2(s) of the Act and is entitled to claim the protection of Section 25-F. (1993) 1 LLN 809 (All)]. [Mohan Lal verses The Management of Bharat Electronics Ltd. Therefore. [Workmen verses Municipal Corporation of Delhi. It is only intended for keeping the appropriate government informed and therefore.. failure to comply with it prior to effecting retrenchment does not invalidate retrenchment. Consequences of Invalid Retrenchment Termination of service not covered within the excepted or excluded categories mentioned in S. and (iv) he has put in not less than one year of continuous service as defined in Section 25-B under the employer. If retrenchment is effected under the Industrial Disputes Act. (2006) 1 SCC 479. [New India Assurance Co. A law. 2 .P. BALLOT No. The Supreme Court has upheld the constitutionality of S. New Delhi verses Judge. verses Second Additional Labour Court.]. 25-B. Conditions precedent for Retrenchment of Workmen [(Special Provisions) S. Central Industrial Tribunal. 2 . [Banwarilal verses Rajasthan S. Burden is on the management to prove existence of such grounds. Satyam.(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired. who is a citizen of India. 25-G) Where any workman in an industrial establishment. Ltd. (1992) 1 Lab 1C 678]. 25. or the workman has been paid in lieu of such notice. 25H). verses Workmen. Procedure for Retrenchment (S. PLEASE VOTE . The employer may take into account considerations of efficiency and trust worthy character of the workmen and if he is satisfied that a person with a long service is inefficient. wages for the period of notice: and PREPARED BY RADHIKA SETH. (1985) 1 LLJ 505 (Mad)]. The principle of Mast come first go' is not applicable in the following cases: 1. [State of U. (1991)1 SCC 691 ]. in the absence of any agreement between the employer and the workman in this behalf. to take into his employ any persons. But in such a case reasons must be recorded and the rules must be complied with. 25-F but was otherwise bonafide and reinstatement was likely to be destructive to the employer. in such manner as may be prescribed.42 Where the retrenchment is proper then the workers are not entitled to compensation in addition to the retrenchment compensation.R. the labour court can award suitable compensation in lieu of reinstatement and back wages. he shall. Thus S. 2. the employer shall ordinarily retrench the workman who was the last person to be employed in that category.25-N of Chapter VB] The provisions of Chapter V-B of the Act apply to industrial establishments (not being an establishment of a seasonal character on in which the work is performed intermittently) in which not less than 100 workmen were employed on an average per working day for the preceding 12 months.T. namely—'Last in first out' or Mast come first go'. Where the retrenchment infringed S. and such retrenched workmen who offer themselves for employment shall have preference over other persons (S. give an opportunity to the retrenched workman who are citizens of India to offer themselves for re-employ men. [Workmen of Sudder Workshop of jorehaut Tea Co. Departure from this rule is permissible on valid and justifiable grounds. unless for reasons to be recorded the employer retrenches any other workman (S. 25-F read with S. 3. it would be open to the employer to retrench his services.C. Termination of the services of a temporary employee on assessment of his work and suitability with terms and conditions of his service. [Om Oil & Oil Seeds Exchange Ltd. is to be retrenched and he belongs to a particular category of workmen in that establishment.'25-G has given legislative recognition to the well recognised principle of retrenchment.M Northern Railway. [Swadesamitran verses Workmen.. 25-G are directory but a departure from the principle of last come first go can be made only for sufficient grounds [G. unreliable or habitually irregular in the discharge of his duties. [Central Bank of India verses S. Section 25H is applicable to all retrenched workmen and not only those covered by S. verses The Management of jorehaut Tea Co. P. verses Kaushat Kishore Shukla. 25G). 25-H) Where any workmen is retrenched and the employer proposes.)(DB)]. Re-employment of Retrenched Workmen (S. Loss of confidence.. The provisions of S. who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until. Ltd. AIR 1980 SC 1454]. Section 25N is reproduced below: "(1) No workman employed in any industrial establishment so which this Chapter applies. [Mount Mettur Pharmaceuticals Ltd. (1985) 1 LLN391(Raj. (7) Where no application for permission under sub-section (!) is made.43 (h) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf (2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended retrenchment and a copy of such application shall also be served simultaneously on the workman concerned in the prescribed manner. the workmen concerned and the persons interested in such retrenchment. be final and binding on all the parties concerned and shall remain in force for one year from the date of such order. subject to the provisions of sub-section (6). 25-FF) Section 25-FF of Chapter VA of I. by order and for reasons to be recorded in writing. as the case may be. (4) where an application for permission has been made under sub-section (!) and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made. (6) The appropriate Government or the specified authority may. having regard to the genuineness and adequacy of the reasons stated by the employer. grant or refuse to grant such permission and a copy of such order shall he communicated to the employer and the workmen. the appropriate Government or the specified authority. may. if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like. Provided that where a reference has been made to a Tribunal under this subsection. to a Tribunal for adjudication. (9) Where permission for retrenchment has been granted under sub-section (3) o 'there permission for retrenchment is deemed to be granted under subsection (4). whether by agreement or by operation of law. at the time of retrenchment. " In Workmen verses Meenkshi Mills Ltd. (8) Notwithstanding anything contained in the foregoing provisions of this section. the appropriate Government may. or where the permission for any retrenchment has been refitsed. such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to be workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him. the interests of the workmen and the other relevant factors. Act provides for compensation to workmen. every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be PREPARED BY RADHIKA SETH. it is necessary so to do. own motion or on the application made by the employer or any workman. either on its. PLEASE VOTE . compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. review its order granting or refusing to grant permission under sub-section (3) or refer the matter or.D. cause it to be referred. direct that the provisions of subsection (I) shall not apply in relation to such establishment for such period as way be specified in the order. it shall pass an award within a period of thirty days from the date of such reference. (3) Where an application for permission under sub-section (1) has been made. Section is reproduced below: "Where the ownership or management of an undertaking is transferred. the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days. by order. after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer. every workman who is employed in that establishment immediately before the date of application for permission under this section shall be entitled to receive. (1992) 2 LIJ 294 The Supreme Court upheld the constitutionality of S25N. BALLOT No. from employer in relation to the undertaking to a new employer. (5) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall. Compensation to Workmen in case of Transfer of Undertaking (S. when the ownership or management of an undertaking is transferred either by agreement or by operation of law. 2 . roads. under the terms of such alternative employment or otherwise. BALLOT No. 25-FF when there is a transfer of the ownership or management of an undertaking. he shall be entitled to PREPARED BY RADHIKA SETH. canals. and on the same terms and conditions of service as were applicable to him. (2) Where an undertaking set up for the construction of buildings. and (c) the new employer is under the terms of such transfer or otherwise legally liable to pay the workman in the event of his retrenchment. if(a) the employer provides the workman with alternative employment with effect from that date of closure at the same remuneration as he was entitled to receive. in the event of the retrenchment. (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favorable to the workman than those applicable to him immediately before the transfer. bridges. exhaustion of the minerals in the area where such operations are carried on. (I-A) Notwithstanding anything contained in sub-section (I). legally liable to pay the workman. immediately before the closure. but if the construction work is not so completed within two years. Compensation to Workmen in case of Closing Down of Undertakings (S. beyond the control of the employer within the meaning of the proviso to this sub-section. as if the workman had been retrenched' Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer the compensation to be paid to the workman under clause (b) of Section 2 5-F shall not exceed his average pay for three months. An undertaking which is closed down by reason merely of-(1) financial difficulties (including financial losses). where an undertaking engaged in mining operations is closed down by reasons merely of exhaustion of the minerals in the area in which such operations are carried on. PLEASE VOTE . the expressions "minerals " and "mining operations " shall have the same meanings respectively assigned to them in clauses (a) and (c) of Section 3 of the Mines and Minerals (Regulation and Development) Act. 1957 (6) of 1657). and (c) the employer is. 2 . as if the workman had been retrenched: Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer. compensation on the basis that his service has been continuous and has not been interrupted by such alternative employment. compensation on the basis that his service has been continuous and has not been interrupted by the transfer. (l-B) For the purposes of sub-sections (I) and (I-A). be entitled to notice and compensation in accordance with the provisions of Sections 25-F. or (3) the expiry of the period of the lease or licence granted to it. if— (a) the service of the workman has not been interrupted by such transfer.25-F. or (iv) in a case where the undertaking is engaged in mining operations. no workman referred to in that sub-section shall be entitled to any notice or compensation in accordance with the provisions of Section 25-F. It is reproduced below: "(1} When an undertaking is closed down for any reason whatsoever. Explanation. " The liability to pay retrenchment compensation arises under S. no workman employed therein shall be entitled to notice and compensation under clause (b) of Section 25-F. 25FF.44 entitled to notice and compensation in accordance with the provisions of S. every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall. (b) the service of the workman has not been interrupted by such alternative employment. shall not be deemed to be closed down on account of unavoidable circumstances. 25-FFF) Section 25FFF of chapter VA provides for retrenchment compensation in case of closing down of undertakings. dams or other construction work is closed down on account of the completion of the work within two years from the dale on which the undertaking had been set up. It arises after the transfer of an undertaking and not before provided the cases does not fall under the proviso to S. or (2) accumulation of undisposed of stocks. subject to the provision of subsection (2). BALLOT No. It provides as follows:(1) An employer who intends to close down an undertaking shall serve. the appropriate Government. (2) Notwithstanding anything contained in sub-section (I) the appropriate Government may. there has been a closure and the tribunal or the court is not confined to any particular fact or set of facts or circumstances. having regard to the genuineness and adequacy of the reasons stated by the employer. "that the closure cannot be limited or restricted only td financial. PREPARED BY RADHIKA SETH. The essence of the matter is not the reason but the factum of closure by whatever reasons motivated. at least sixty days before the date on which the intended closure is to become effective. the Supreme Court observed. roads. in the prescribed manner. a notice. verses Their Workmen.M. bridges. subject to satisfying the prescribed conditions. the workmen and the persons interested in such closure may.. would be entitled to notice and compensation under S. economic or other considerations of the like nature. Procedure for Closing Down an Undertaking Section 25-O of Chapter VB of the ID Act provides as follows: (1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall. (4) An order of the appropriate Government granting or refusing to grant permission shall. (2) Where an application for permission has been made under sub-section (I). on the appropriate Government stating clearly the reasons. for prior permission at least ninety days before the date on which the intended closure is to become effective. or (2)) less than fifty workmen were employed on an average per working day in the preceding twelve months. " In Kalinga Tubes Ltd. by order. In S. 25-FFF(l). the interests of the general public and all other relevant factors. dams or for other construction work. bridges. (3) Where an application has been made under sub-section (1) and the appropriate Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made. canals. subject to the provisions of sub-section (5). after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer. dams or for other construction work or project. Sixty days notice to be given of intention to close down any undertaking A new Section 25FFA was added in 1972. Nilajkar verses Telecom. (b) an undertaking set up for the construction of buildings. if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do. Karnataka.The entire set of circumstances and facts have to be taken into account while endeavoring to find out. grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen. in the prescribed manner. the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days. for the intended closure of the undertaking: Provided that nothing in this section shall apply to (a) an undertaking in which(1) less than fifty workmen are employed. District Manager. in fact.. direct that provisions of sub-section (I) shall not apply in relation to such undertaking for such period as may be specified in the order. by order and for reasons to be recorded in writing.45 notice and compensation under the section for every completed year of continuous service or any part thereof in excess of six months. roads. apply. stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner: Provided that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings. Hence the workmen under the project or scheme. PLEASE VOTE . 25-F(b). it was held that "undertaking" is a concept narrower than industry Closure of a government project or scheme would attract the proviso to S. be final and binding on all the parties and shall remain in force for one year from the date of such order. 2 . to the appropriate Government. canals. The closure has to be genuine and bona fide in the sense in that it would in fact and not a mere pretence for closure. and strikes are an integral and frequently necessary part of that process. 2 . Mathew. State of Orissa. BALLOT No. It tests the economic bargaining power of each side and forces each to face squarely the need it has for the other's contribution. verses . It has to have regard to the genuineness and adequacy of the reasons stated by the employer.E. it was held that the substituted provision S. The very economic pressure of the strike is the catalyst which makes agreement possible. by order.46 (5) The appropriate Government may. (7) Notwithstanding anything contained in the foregoing provisions of this section. In this respect well-known writer R. There could be cases where the interest of the general public may require that no closure takes place. offers are extended. 21 -8-1984) has removed not only the procedural defects. merely because the reasons are genuine and adequate cannot mean that permission to close must necessarily be granted. the right to close down the business.f. if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like. but also the substantive vices pointed out in Excel Wear case (1978) 4 SCC 224. Undoubtedly where the reasons are genuine and adequate the interest of the general public must be of compelling or overriding nature. and compromises previously unthinkable become acceptable. The amended Section 25-O is very different from the unamended Section 25-O (as it then stood) the constitutional validity of which was upheld in Meenakshi Mills case. it shall pass an award within a period of thirty days from the date of such reference. Even when no strike occurs. or where the permission for closure has been refused. and management faces mounting losses. The amended S. Collective bargaining is a process of reaching agreement. it plays its part in the bargaining process. PLEASE VOTE . Strikes and Lock-outs The right to strike by workers is a recognised weapon available to them to settle their differences with the management and enforce the management to accept their demands. for the very prospect of the hardship which the strike will bring will force a party to compromise. direct that the provisions of subsection (I) shall not apply in relation to such under taking for such period as may be specified in the order. it is necessary so to do. It was further held that the restriction imposed are reasonable and in the interest of the general public. Labour Relations and the Law states as follows: "The strike is itself a part of the bargaining process. shall be entitled to receive compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. the workers' savings disappear.* permission under sub-section (I) is made within the period specified therein. the appropriate Government may. Strike is a part of the bargaining process. In Orissa Textile and Steel Ltd. (8) Where an undertaking is permitted to be closed down under sub-section (2) or where permission for closure is deemed to be granted under sub-section (3) every workman who is employed in that undertaking immediately before the date of application for permission under this section. the union treasury dwindles. As the strike progress. the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed down. Demands are tempered." Definition of Strike PREPARED BY RADHIKA SETH. Excel Wear case recognizes that in the interest of general public it is possible to restrict.25-O lays down guidelines which are to be followed by the appropriate government in granting or refusing permission to close down. However.e. either on its own motion or on the application made by the employer or any workman. 25-O (as substituted by Act 46 of 1982 w. (6) Where no application/o. review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this subsection. for a limited period of time. Duration of the cessation of work or refusal to work is immaterial. namely (1) general strike. it was held pen down strike covered under S. Mere cessation of work will not come within the definition of strike unless the cessation of work is a concerted action for the enforcement of an industrial demand. Gunuseelam. 33 of the Industrial Disputes Act. Thus strike means the stoppage of work by a body of workmen employed in an industry acting in concert. 1947 defines strike as follows: "Strike" means a cessation of work by a body of persons employed in any industry acting in combination. strike is "the act of quitting work done by mutual understanding by a body of workmen as a means of enforcing compliance with demands made on their employer. (1) General Strike: A general strike is one. (2) stay in. General strike is usually for a longer period. or a concerted refusal. (1972) 2 SCC 383 : it was held that if the employer substitutes the weekly rest day of Sunday by other rest day without giving a notice of change then it is an illegal change. There must be concerted action by a body of workmen for the enforcement of an industrial demand. tools down and pen down strikes. Cessation of work. where the workmen join together for a common cause and stay away from work. 2(q). 3. verses Their Workmen. 2 . In Punjab National Bank verses All India Punjab National Bank Employees' Federation.47 According to Webster's Dictionary. Token strike which is of short duration a few hours of a day etc. The workmen must be employed in an industry. it was held that when rationalization scheme is introduced contrary to S. sit down. verses M. The strike must be in an industry within the meaning of S. 4. to constitute a strike. On a plain and grammatical construction of the definition of strike in S. Refusal to give work in pursuance of illegal change will amount to lock-out. 2(q) it would be difficult to exclude a strike where workmen enter the premises of their employment and refuse to take their tools in hand and start their usual work. Employer-employee relationship. but there must be concerted refusal to work. verses Workmen. then refusal to act according to that scheme does not constitute 'strike'. 2. a stopping of work by workmen in order to obtain or resist a change in condition of employment. depriving the employer of their labour to run the industry. 1954-11 LLJ 656 (LAT). Industry. In Standard Vacuum Oil Co. Mere absence from work is not enough.G. It is submitted that this decision is not sound as all the ingredients of strike are present in the instant case. or a refusal under a common understanding.D. refusal to work or discontinuance of work is essential to constitute a strike. The Labour Appellate Tribunal held that there was no strike. Ltd.-whose main object is to draw the attention of the employer by demonstrating the solidarity and co-operation of the employees. The workmen applied enblock for casual leave. is also a kind of general strike. Types of Strike There are mainly two types of strike. There should be relationship of employer-employee between the employer and the striking workmen. According to the definition the essential ingredients of a strike are: 1. They requested the management to declare that day a holiday. The workmen were also ready to compensate the loss of work by working on Sunday. BALLOT No. In North Brook Jute Co. The management did not agree. Therefore. 2(q)." Section 2(q) of the Industrial Disputes Act. Concerted action. It is generally resorted to when the employer do not accept the demands of the employees by other means including a token strike which precedes a general strike.2(j) of the I. Cessation of the work by a body of persons or a refusal to continue to work or to accept employment. In TISCO Ltd. the refusal to work on the substituted day in this case did not amount to strike. PLEASE VOTE . Act. Refusal under common understanding to continue to work is a strike and in pursuance of such common understanding the employees entered the premises of the Bank and refused to take their pens in their hands that would no doubt be a strike under S. PREPARED BY RADHIKA SETH. The workman of factory wanted to celebrate "May Day". AIR 1960 SC 160 : (1960) 1 SCR 806. of any number of persons who are or have been so employed to continue to work or to accept employment. Right to Strike In T K. In the case of strike by teachers. In such cases the workmen enter the place of their work. In Piparich Sugar Mills Ltd. Gherao: It means "to surround" or "to confine". 2(q). Go-slow is not a 'strike' within the meaning of S. 1947. 2(q). Work to rule is not a strike within the meaning of S. AIR 1960 SC 1258. it was held that on a plain and grammatical construction of definition of strike as given in S. 2(q). Go-slow is a serious type of misconduct. In Punjab National Bank verses Their Workman. It is not really a strike but adoption of coercive method to achieve some objective. they have to resort to the machinery provided under different statutory provisions for redressal of their grievances. It would not be far from wrong to call it dishonest. It was held by the Supreme Court that in the above circumstances the concerted action of the workmen who went on hunger strike amounted to strike within the meaning of S. the management would be entitled to take disciplinary action against the workmen for their absence on the ground of breach of service. The Court explained why there is no such right. as the essential element of the intention to use it against the management is absent. It is a criminal offence. report to their duties but do not do any work. 2(q). sit down. PLEASE VOTE . In this case it was held that a 'pen down' strike is a strike within the meaning of S. 2(1). where dismissed workmen were staying on premises and refused to leave it was held to be a criminal trespass and not a 'stay-in' strike. tools down and pen down strikes: These are some of the variants of strike resorted to by workmen under different circumstances. the entire educational system suffers. many students are prevented from appearing in their examinations which ultimately affects their PREPARED BY RADHIKA SETH. Hunger strike: When a group of workmen resort to fasting on or near the place of work or the residence of the employer with a view to coerce the employer to accept their demands it is called hunger strike. In Mysore Machinery Manufacturer verses The State. BALLOT No. 2 .D. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse. In this case the workmen come to their place of work and do work also but with a slow speed in order to lower down the production and thereby causes loss to the employer. (2003) 6 SCC : that right to resort to strike is not a fundamental right. 2(q) as there is no stoppage of work. Co Slow. In this case the workmen strickly observe the rules while performing their duties and thus slow down the tempo of work which causes inconvenience to the public and embarrassment to the employer. it was held that when the workers in concert absent themselves out of sympathy to some cause wholly unrelated to their employment or even in regard to condition of employment of other workers in service under other managements. Work to rule: Work to rule is resorted to by workmen to circumvent the provisions of law governing their service conditions.48 (2) Stay in. certain workmen who held key positions in the appellants mill resorted to hunger strike at the residence of the managing director with the result that other workmen who came to do the work could not be given work. But under certain circumstances it may come under S. Further there is no legal/statutory right to go on strike and there is no moral or equitable justification to go on strike. The workmen who go on such a strike do not have any demand or grievance of their own. Act. Government employees cannot claim that they can take the society at ransom by going on strike. Rangarajan verses Government of Tamil Nadu. Madras. AIR 1966 Mysore 51. in a domestic welfare state. as presumed by some employees. 2(q). Even if there is injustice to some extent. the Supreme Court held that go-slow is one of the most pernicious practice that discontented or disgruntled workmen sometime resort. Sympathetic Strike: A sympathetic strike is resorted to in sympathy of other striking workmen to encourage or to extend moral support to them. a few more may be discussed below although some of them are not strikes within the meaning of S. 2(q) of the I. It does not fall within the meaning of strike in S. Strike as a weapon is mostly misused which results in chaos and total maladministration. such absence could not be held to be strike. 2(q). In Kambalingam verses Indian Metallurgical Corporation. However. 1964-1 LLJ 81. verses Their Workmen. it would be difficult to exclude a strike where workmen enter the premises of their employment and refuse to take their usual work. Similarly 'tools down' strike where factory workers refuse to work with their tools is strike under S. verses Jai Singh 1961 II LLJ 664. AIR 1960 SC 160. In Bharat Sugar Mills Ltd. the entire administration comes to a grinding halt. In addition to these two forms of strikes which are usually resorted to by the employees. PLEASE VOTE . 2 . they are part and parcel of the governing body and owe duty to the society. it may be resorted to as a security measure. In Shri Ramchandra Spinning Mills verses State of Madras. apart from conscious of rights. Out of the total income from direct tax. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it. verses Ram Sarup. Strike is a weapon in the hands of the labour to force the management to accept their demands. suspension of work. Similarly lockout is a weapon in the hands of the management to coerce the labour to come down in their demands relating to the conditions of employment. Singh verses Union of India. Temporary closing of a place of employment. it was held that a lockout may sometime be not at all connected with economic demands. 1947. 10-A (4-A). Definition of Lock-out Lock out is the antithesis of strike. or 3. Where the manager was violently attacked and other members of staff were threatened the lock-out was fully justified. On occasions. The liability of the employer in case of lock-out would depend upon whether the lock-out was justified and legal or not and the provisions regarding lay-off compensation are not applicable. 241. Kairbetta Estate verses Rajamanickam Distinction between Lock-out and Closure PREPARED BY RADHIKA SETH. strike cannot be justified on any equitable ground. 1947 defines lock-out as follows: "Lock-out" means the temporary closing of a place of employment. entire movement of the society comes to a standstill: the business is adversely affected and number of persons find it difficult to attend to their work. to move from one place to another or one city to another. it was held that right to strike though not a fundamental right but a recognised mode of redressal of grievances of workers. diligently and efficiently. approximately 90% of the amount is spent on the salary of the employees. (n Lord Krishna Sugar Mills Ltd. or the refusal by an employer to continue to employ any number of persons employed by him. BALLOT No. As in the case of strike so also in the case of lockout there is no severance of relationship of employer and employee. lock-out is withholding of employment by an employer and the whole or partial closing of his business establishment in order to gain concessions from employees. In case of lockout the workmen are asked by the employer to keep away from work. it was held that in case of lockout there is neither alteration to the prejudice of workmen of the conditions of the service applicable to them nor a discharge or punishment whether by dismissal or otherwise. in a democracy even though they are government employees. refusal to continue to employee any number of persons employed by the employer. For redressing their grievances. 22 and 23 of the Industrial Disputes Act. AIR 1956 Mad. There are about twelve lakh employees in the State of Tamil Nadu. According to Webster's Dictionary. The reason being. and therefore.R. Section 2(1) of the Industrial Disputes Act.. if employees were to do some more work honestly. (1989) 4 SCC 710. instead of going on strike. there has to be full awareness of duties. The definition has the following three ingredients of a lock-out: 1. it was observed that if the employer shuts down his place of business as a means of reprisal or as an instrument of coercion or as a mode of exerting pressure on employees or generally speaking when his act is what may be called act of belligerency there would be a lockout. In the prevailing situation. innocent patients suffer.R. responsibilities and effective methods for discharging the same. Saharanpur verses The State of U. In case of strike by doctors. In a society where there is large scale unemployment and number of qualified persons eagerly waiting for employment in government departments or in public sector undertakings. 1960-11 LLJ 76.49 whole career. public properties are destroyed or damaged and finally this creates bitterness among the public against those who are on strike. they are not under any obligation to present themselves for work. Earlier in B. In Lakshmi Devi Sugar Mills Ltd. or 2. or the suspension of work. such gesture would not only be appreciated by the authority but also by the people at large. These are to be found in Sections 10(3). in case of strike by employees of transport services. or (b) within fourteen days of giving such notice. Lock-out is caused by the existence or apprehension of an industrial dispute. Further. (1962) 2 LLJ 227. The strikes and lockouts in public utility services are not absolutely prohibited but certain conditions are to be fulfilled by the workmen before resorting to strike or by the employers before resorting to lockout. 2. Section 22(2) lays down similar conditions which an employer must fulfill before resorting to lock-out. On the other hand closure implies closing of industrial activity as a consequence of which workmen are rendered jobless. as otherwise it would result in great inconvenience to the general public and the society. indicates the closure of the place of business and not the closure of business itself. verses Chavan and Others." Thus a strike in a public utility can take place only when 6 weeks' notice has been served and 14 days have expired after serving the notice. In lock-out there is no severance of employer-employee relationship while in closure there is severance of such relationship. A closure need not be due to an industrial dispute. or (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.50 In the case of closure. bubhe closes the business itself. the Supreme Court gave the following points of distinction between the two: 1. a closure is closing down the business and thereby ending bargaining. The duration of the closure may be significant fact to determine the intention and bonafldes of the employer at the time of closure but it is not decisive of the matter. In General Labour Union (Red Flag) Bombay verses B. on the other hand. it was held that "the essence of the lock-out is the refusal of the employer to continue to employ workmen. the employer does not merely close down the place of business. or (c) before the expiry of the date of strike specified in any such notice as aforesaid. 3." Prohibition of Strikes and Lock-outs in Public Utilities Section 22 of the Act deals with prohibition of strikes and lock-outs in industries carrying public utility service. Lock-out. According to S. 2 . 22(3) notice of strike (within six weeks before striking) is not necessary when there is already a lock-out in existence in the public utility concerned. verses Their Workmen. (1985) 1 SCC 312. the Industrial Court in order to determine whether the employer is guilty of unfair labour practice must ascertain on evidence produced before it whether the closure was a device or pretence to terminate the services of workmen or whether it is bonafide and for the reasons beyond the control of the employer. The intention of the legislature in enacting the section was to provide sufficient safeguards in matters of public utility services. It provides as given below: "No employer carrying on any public utility service shall lock-out any of his workmen - PREPARED BY RADHIKA SETH. within six weeks before striking. BALLOT No. Any strike commenced in contravention of these provisions would be illegal. as herein after provided." To determine whether the employer has resorted to lock-out or closure "the true test is that when it is claimed that the employer has resorted to closure of industrial activity. Section 22( 1) provides as follows: "No person employed in a public utility service shall go on strike in breach of contract(a) without giving to the employer notice of strike. A lock-out is a weapon available to an employer to persuade the workers by coercive process to agree to his point of view. Thus it is a tactic in bargaining. In Express Newspapers Ltd. Subsection (1) of Section 22 and sub-section (2) of Section 22 prescribe the conditions which are to be fulfilled in case of strike and lockout respectively. Even if the suspension of work is ordered it would constitute lock-out. On the other hand. PLEASE VOTE . the employees should not go on strike before the expiry of the date of the strike during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. There is no intention to close the industrial activity. PLEASE VOTE . (6) If on any day an employer receives from any person employed by him any such notices as are referred to in sub-section (I) or given to any persons employed by him any such notices as are referred to in sub-section (2) he shall within five days thereof report to the appropriate government or to such authority as that government may prescribe. Strike notice has to be given in Form 4L' to the employer who in turn is required to inform the Government/ prescribed authority under Section 22(6). (2008) 7 SCC 594." Section 22(3) provides that no notice of lock-out is necessary where there is already in existence a strike in the public utility service concerned. or within fourteen days of giving such notice. or as the case may be lockout in the public utility service. Any purported notice of strike which does not observe the prescribed time period is not a valid notice under Section 22. Ltd.51 (a) (b) (c) (d) without giving them notice of lock-out as hereinafter provided. There is no provision for sending notice by workers direct. Tribunal or National PREPARED BY RADHIKA SETH. (5) The notice of lock-out referred to in sub-section (2) shall be given in such manner as may be prescribed. within six weeks before locking-out. Valid strike cannot commence before the expiry of six weeks' time under Section 22(1 )(a) and fourteen days thereafter under Section 22(1 )(b). Labour Court. (b) During the pendency of proceedings before a Labour Court. it was held that Section 22 provides for six week's advance notice for strike. verses Workmen. General Prohibition of Strikes and Lock-outs The prohibition of strikes and lock-outs contained in S. verses Jatin Chakaravarty. Ltd. verses Presiding Officer. it was held that during the pendency of conciliation proceedings between a public utility concern and one of its unions attracts the provisions of S. (5) and (6) of S. 22(I)(d) to the strike declared by another union of the same concern and makes the said strike illegal. It was further held that earlier strike which was illegal could not be remedied by a subsequent strike in compliance with Section 22. The section is reproduced below: "No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out(a) During the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings. (4) The notice of strike referred to in sub-section (1) shall be given by such number of person or persons and m such manner as may be given in such manner as may be prescribed. BALLOT No. 2 . such an invalid notice cannot also commence conciliation proceedings under Section 20. or during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. Section 22(3) further provides that the employer shall send intimation of such lock-out or strike on the day on which it is declared. In the absence of conciliation proceedings. approval of the Conciliation Officer under Section 33(2)(b) proviso was not necessary. In Essorpe Mills Ltd. the Supreme Court held that lock-out within seven days of conciliation proceedings not illegal if resulting as a consequence of illegal strike already started. or before the expiry of the date of lock-out specified in any such notice as aforesaid. to the Conciliation Officer. to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services. 23 is general in nature which applies to both public utility as well as to non-public utility establishments. In India General Navigation and Railway Co. 22 are reproduced below: "(3) The notice of lock-out or strike under this section shall not be necessary where there is already in existence a strike. Sub-sections (4). to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services." In Ramnagar Cane and Sugar Co. but the employer shall send intimation of such lock-out or strike on the day on which it is declared. Consequently. and fourteen days' time is given to the employer to consider the demand raised in the strike notice. the number of such notices received or given on that day. an arbitrator. verses Workmen. The section is reproduced below:— (1) A strike or a lock-out shall be illegal if. 23(3). 2 . where a notification has been issued under sub-section (3-A) of Section 10-A. It was further held in this case that the pendency of conciliation proceedings before the conciliation officer. 23(1) in respect of matter covered by a settlement envisaged by S. It may be noted that conciliation proceeding before a Conciliation Officer is no bar to a strike or lockout under this section. PLEASE VOTE . 24( 1) lays down that a strike or lock-out shall be illegal if. verses D. 24 read with S. BALLOT No. Justifiability of a Legal/Illegal Strike Case law regarding justifiability of strike is discussed below: In Chandramalai Estate verses Workmen. Ltd. 22 or S. In India General Navigation and Railway Co. In Workmen verses Motor Industries Co. which is clearly illegal. 23. (bb) during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings. (i) it is commenced or declared in contravention of S. In Management of Charukulam Tea Estate (P) Ltd. Dhanbad. C. (2) Where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of the reference of the dispute to a Board. the continuance of such strike or lock-out shall not be deemed to be illegal. does not render the strike illegal. 10-A (4-A) of the Act. In Ballarpur Collieries Co. If the strike is in the matter not covered by the settlement. 10(3) or S. or (ii) it is continued in contravention of an order made under S. 23. The award of payment of fifty percent of the total employments for strike period was set aside. 24 provide that a strike or lock-out shall not deemed to be illegal in the following cases: (1) If it at its commencement not in contravention of the provisions of the Act.I. it was held that a mere breach of standing order cannot render strike illegal. Illegal Strikes and Lock-outs Section 24 provides that a strike or lock-out in contravention of S. The Supreme Court held that the Industrial Tribunal cannot come to the conclusion that strike was half justified and half unjustified. it was held that illegal strike cannot be half legitimate. In Chemicals and Fibres of India Ltd.-T. Tribunal or National Tribunal. as distinct from the Board. in respect of any of the matter covered by the settlement or award. 23. (3) A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal. provided that such strike or lock-out was not at its commencement in contravention of the provisions of this Act or the continuance thereof was not prohibited under sub-section (3) of section 10 or sub-section (4-A) of 10-A. These two conclusions cannot in law coexist.G. Ltd. the Supreme Court held that it is difficult to understand how a strike in respect of a public utility service. could at the same time be characterized as perfectly justified. 23 is illegal. a Labour Court. it was held that there is a difference between a strike envisaged by S. Sub-section (2) and (3) of S. verses Their Workmen. verses Presiding Officer. or (2) It is continued in contravention of an order made under sub-section (3) of Section 10 or sub-section (4-A) of Section 10-A. it is not an illegal strike under S. PREPARED BY RADHIKA SETH.out. Bhoir & Others." Thus S. 10-A(4-A)." The object of these provisions is to ensure a peaceful atmosphere to enable a conciliation or adjudication or arbitration proceeding to go on smoothly.52 Tribunal and two months after the conclusion of such proceedings. it was held that pendency of a dispute between an individual workmen as such and the employer does not attract the provisions of S..G. (1) It is commenced or declared in contravention of S. 29. 10(3) of S. 22 or S. 22 or S. or (c) During any period in which a settlement or award is in operation. or (2) If its continuance was not prohibited under S. or (iii) if lock-out is declared in consequence of an illegal strike or a strike is declared in consequence of an illegal lock. it was held that workmen were entitled to wages for the strike period as their strike was not unjustified. The Supreme Court held that a strike may be illegal if it contravenes the provisions of sections 22. because in Kelawala 's case. BALLOT No. they do so knowing fully well its consequences. Umesh Nayak. Whether a particular strike is justified or not is a question of fact which has to be judged in the light of the facts and circumstances of each case. violence or acts of sabotage resorted to by workmen during a strike period which was legal and justified would disentitle them to wages for strike period. the strike should be legel and justified. unless the reasons for it are entirely perverse or unreasonable. they would not be entitled to wages for the whole day and hence they needed not report for work thereafter. verses Workmen. However. 23 or 24 of the Act or of any other law or the terms of employment depending upon the facts of each case. Rejecting their contention. 2 . Kelawala.S. it was held that a strike may be unjustified because the demands were pitched unreasonably high or that the strike was resorted to inspite of very reasonable attitude of the employer or because the demands were not made bonafide but with extraneous motives. whether the strike is legal or illegal. were genuinely desired to discharge their duties but could not do so for failure of the management to give necessary protection. Wages: In Crompton Greaves Ltd. it was held that when the reply by We management to the demands of the workmen was not such that a strike was necessary the strike would be unjustified. It appears that there is confusion between the strike as a legitimate weapon in the hands of the workmen and the liability of deduction of wages incurred on account of it. the workers are liable to lose wages for the period of strike and the liability to lose wages does not either make the strike illegal as a weapon or deprive the workers of it. In Dalmia Cement (Bharat) Ltd. verses Workers' Union. The use force. it was held that even if a strike is illegal. This position of law continued upto 1990. a strike PREPARED BY RADHIKA SETH. the management will not be justified in deducting wages without proper inquiry of such employees who. no pay". it cannot be castigated as unjustified. The legality of a strike only saves them from a disciplinary action since a legal strike is recognized as a legitimate weapon in the hands of workers to redress their grievances. the Bank deducted wages for the whole day which was impermissible as the Bank could have at the most deducted only pro rata wages. mainly for the purpose of embarrassing the employer. (1978) it was held that in order to entitle the workmen to wages for the period of strike. When the workers resort to it. A strike is legal if it does not violate any provision of the statute. (1990): (1990). But in a case where the employees went on strike during the crucial working hours which generated work for the rest of the day. The Division Bench of the Supreme Court commenting on the legal and illegal strikes that "whether the strike is legal or illegal. (1994).53 In Cropton Greaves Ltd. PLEASE VOTE . Similarly. that if they went on strike for the four hours as threatened. and the question of wages for justifiable and legal strike was not involved or commented upon. the Supreme Court held that normally that contention on the part of the workers would have been valid. in advance. (1957) 2 LLJ (LAT) (Bom). The question of wages for justifiable and legal strike was not involved in this case nor was it commented upon by the court. the Supreme Court invoked the principle of "no work. Consequences of Illegal Strike The workers have a right to go on strike as per the provisions of the Act. Umesh Nayak. the question arises whether they are entitled to wages for the strike period and whether the employer can take disciplinary action against those workmen. It was for this reason that the Bank had made it clear. 8 FJR 878 (LAT). In Nizam Sugar Factory Ltd. In this case the bank employees contended that although they had gone on strike for four hours and thereafter resumed their duties. the Supreme Court was only commenting on the legal and illegal strikes. the Supreme Court held that a strike may be justified or unjustified depending upon several factors. Workers' attendance after the four-hour strike was useless because there was no work to do during the rest of the hours. verses Workmen. In Bank of India verses T. and to permit its circumvention effectively. In Syndicate Bank verses K. to accept that argument was in effect to negate the purpose and efficacy of the remedy." It was further held in this case that deduction of wages for participation in such mass misconduct not dependent upon disciplinary proceeding. It cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. verses Workmen. In this case the Supreme Court held that there is no conflict between the decision in Kelawala 's case and earlier cases. The matter has been decided by the Constitution Bench of the Supreme Court in Syndicate Bank verses K. If the workmen go on an illegal strike. The consequence of illegal strike has been discussed below under the following heads: 1. lock-out in consequence of illegal strike although declared without following the procedure prescribed by S.M. For then. therefore. verses Their Workmen. It is not in the interest of the industry that there should be wholesale dismissal of all the workmen who merely participated in the strike. Ltd. But the Supreme Court held that the situation was not such that the dispute could not brook delay and await resolution by legal mechanism. both legal and justified. 22(3) of the Act or S. to be imposed on such workmen as had not only participated in the illegal strike but had fomented it. Violent strikes are those workmen who obstruct the loyal workmen frorn carrying on the work or take part in violent demonstrations and act in defiance of law and order. The strike was resorted on Bank's failure to implement immediately the settlements arrived between the parties conferring additional benefits to the employees. The High Court decided in favour of the employees. An Industrial Tribunal. the action is also illegal. resort to strike or lock-out as a direct action is prima facie unjustified. Under the Act. This is. held. even if justified. the interest of the society as a whole. affirmed and followed Bank of India verses T. In the Syndicate Bank case the Bank employees resorted to strike during conciliation proceedings despite Bank's circular for deduction of wages. When the law or the contract of employment or the service rules provide for a machinery to resolve the dispute. The Supreme Court further held in this case that wages during the strike period is payable only if strike is both legal and justified but not payable if strike is legal but not justified or justified but illegal. Thus the Court harmonized. Industrial Disputes Act.P. viz. particularly so when the provisions of the law or the contract or the service rules in that behalf are breached. and had been guilty of violence or doing acts detrimental to the maintenance of law and order in the locality where work had to be carried on. To decide the quantum of punishment a clear distinction has to be made between violent strikers and peaceful strikers. M. Umesh Nayak. It is certainly not in the interest of the workmen themselves. [Syndicate Bank verses K. 6(2) of the U. In India General Navigation and Railway Co. the question has to be decided by the industrial adjudicator. There is nothing in the decisions of the Supreme Court in Churukalam Tea Estate and Cropton Greaves cases which is contrary to the view in T. The High Court erred in recording findings on legality and justifiability of the strike and on that basis deciding the matter in favour of the employees. where the strike was illegal the Supreme Court held that in case of illegal strike the only question of practical importance would be the quantum or kind of punishment. Peaceful strikers are those workmen who are silent participators in the strike.S. the reasons for not resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules and regulations etc. the nature of demands of the workmen.54 may be justified or unjustified depending upon several factors such as the service conditions of the workmen. verses H. 2.T. verses Their Workmen . it being an industrial dispute within the meaning of the Act. the urgency of the cause or the demands of the workmen. The Supreme Court referred the dispute regarding deduction of wages for adjudication to appropriate authority. It has to be resorted to. followed]. The punishment of dismissal or termination of service. keeping in view the overriding consideration of the full and efficient working of the industry as a whole. Sincerely in H. (1996) 11 SCC 319: it was held that an illegal strike. BALLOT No. The violent strikers are to be dealt with more severally. Kelawala. has to consider the question of punishment. Dismissal of workmen: In Mis Burn & Co.S. it was laid down that mere participation in the strike would not justify suspension or dismissal workmen. 2 . T Head Office Employees' Association. has. Hence. Whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Every dispute between an employer and employee has to take into consideration the third dimension. PLEASE VOTE . does not entitle the workmen to wages. therefore. In HAL Employees' Union verses Presiding Officer. the workmen were not entitled to wages for the period of such lock-out. to compel the other party to the dispute to see the justness of the demand. Kalewala. the cause which led to the strike. It is not to be utilized to work hardship to the society at large so as to strengthen the bargaining power. It was further held in this case that the strike or lock-out as a weapon has to be used sparingly for redressal of urgent and pressing grievances when no means are available or when available means have failed to resolve it. Ltd. The PREPARED BY RADHIKA SETH. Ltd. while in case of lock-out the employer closes the place of business for some other reason. but when an inquiry has been properly held and the employer has imposed the punishment of dismissal on the employee who has been guilty of misconduct of joining the illegal strike. 23. the employment continues as far as workmen are concerned. Weapon of collective bargaining: Lay-off is resorted to by An’ employer for economic and trade reasons and it is not used as a weapon of collective bargaining. before any action was taken with a view to punishing strikers. power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity or for any other connected reason. refusal or inability of an employer on account of shortage of coal. a domestic inquiry must he held. (P) Ltd. 2. 3. power etc. Industrial dispute: Lay-off is resorted to by an employer without an industrial dispute. The following are the points of distinction between the two: 1. amounts to lock-out under S. In Bata Shoe Co. The Supreme Court reaffirmed the principle that mere taking part in an illegal strike without anything further would not necessarily justify the dismissal of all the workmen taking part in the strike. the workmen resorted to strike and as consequence the management terminated their services. AIR 1963 SC 1141. it was held that workmen by merely going on strike do not abandon their employment. it was held that in case of strike the employer may bar the entry of the strikers within the premises by adopting effective and legitimate method in that behalf. to give employment to a workman temporarily while lock-out means the temporary closing of a place of employment. Prohibition: The Act prohibits strikes and lock-outs in certain cases under S. or the suspension of work. In Punjab National Bank verses Their Workmen. it would be impossible to bring it within the scope of lay-off under S. Jullundur. (1961) 1 LLJ 303 (SC): the Supreme Court observed that participation in an illegal strike may not necessarily be punished with dismissal. Nature: Lay-off means the failure. and. Ganguli. it was held that even where the strike is illegal. In Express Newspaper (P) Ltd. Difference between Lay-off and Lock-out The concept of lock-out is different form the concept of lay-off'. verses D. Reasons: In case of lay-off the employer is unable to give employment to a workman on account of shortage of coal. verses Michael Mark. or the refusal by an employer to continue to employ any number of persons employed by him. On the other hand. unilaterally convert the absence from duty of striking workmen into abandonment of their employment. on their refusal to do so. Thus mere taking part in an illegal strike without anything further would not justify the dismissal of all the workmen taking part in the strike. It is a weapon available to the employers to persuade the workers by coercive process to agree to their point of view. There is no provision prescribing prohibition for lay-off. 2 . proceed to hold proper inquires according to the standing orders and pass proper orders against them subject to the relevant provisions of the Act. 5. In Oriental Textile Finishing Mills. PLEASE VOTE . Therefore. 4. He may call upon the employees to vacate.55 Court stressed the need for individual charge-sheet being delivered to individual workman so that the degree of misconduct of each can be separately considered. In Gujarat Steel Tubes verses Gujarat Steel Tubes Mazdoor Sabha. take due steps to suspend them from employment. Amritsar verses Labour Court. While lock-out is resorted to in case of an industrial dispute. by imposing a new term of employment. 2(kkfc). lock-out is antithesis of strike. where the closure of place of business. [Kairbetta Estate verses Rajamankkam AIR 1960 SC 893]. BALLOT No. 22 and S. 2(1). PREPARED BY RADHIKA SETH. The Supreme Court ordered the reinstatement of those workmen who were not found guilty of misconduct after a proper enquiry being held. The management cannot. if the strike is illegal take disciplinary action against the strikers.N. the Tribunal should not interfere unless it finds unfair labour practice or victimisation against the employee. It may well be that under the standing orders the management can. After 1918 a large number of trade unions were formed. their participation in the strike would itself disqualify them from claiming reinstatement. But in case of retrenchment. the relationship of employer-employee is only temporarily suspended. The All India Trade Union Congress was established which represented the economic. The modern factory system in India began after 1851. which ended in 1919. social and political interests of workers. Difference between Lay-off. 5. The declension of First World War in 1914. 3. 1927. Industrial dispute: Lock-out is resorted to due to and during an industrial dispute. Gradually the working force realized that they must unite to improve their conditions. 4. (4) allow the trade union to participate in political activities. (2) the doctrine of freedom of contract and (3) the prevalence of hire and fire rule. Therefore. resulted in high increase in the cost of living which created frustration among the workers class. (3) gives certain immunities to a registered trade union. it does not come to an end. such a relationship comes to an end at the instance of the employer. PLEASE VOTE . Weapon of collective bargaining: Lock-out is a weapon available to the employer to persuade the workers by coercive process to agree to their point of view. Economic reasons: Lay-off and retrenchment are resorted to for economic and trade reasons. 23 but no such prohibition is prescribed for lay-off and retrenchment. 2.56 6. (2) provides for their registration. it was enforced with effect from 1st June. and thereafter a number of factories began to be established in Bombay and Bengal. Objects of the Act PREPARED BY RADHIKA SETH. BALLOT No. Compensation: In case of lay-off the employer may be liable t6 pay compensation as provided in the Act. 22 and S. In case of lock-out the employees are not entitled to lay-off compensation but the liability of the employer to pay wages for the lock-out period will depend upon whether the lock-out was justified and legal or not. There was exploitation of workers due to the (1) policy of laisser-faire. But lock-out is resorted to persuade the workmen to bring down their demands or as a security measure." 6 The Trade Unions Act. Lock-out and Retrenchment j. Lay-off and retrenchment are not concerned with a dispute. 2 . Lay-off and retrenchment are not weapons of collective bargaining. The Act. Prohibition: The Act prohibits lock-out in certain cases under S. 1926 The Trade Union movement in India was originated in the British Rule period in 19th century on the establishment of certain factories and mills in Bombay and Bengal. The Trade Unions Act was passed in 1926 after a great hue and cry. when the first cotton mill was established in Bombay in 1851. Employer-employee relationship: In case of lay-off and lock-out. inter alia (1) legalizes Trade Union. we do not think that the general hypothetical considerations the pen down strikes may in certain cases lead to rowdy demonstrations of result in disturbances or violence or shake the credit of the bank would fustify the conclusion that even if the strikers are peaceful and non-violent and have done nothing more than occupying their seats during Office hours. PREPARED BY RADHIKA SETH. 1947. The most important right that the labour gained under the Act is with respect to immunity from civil and criminal prosecution. or the terms of employment. Machinery has been set up under the Act. The Act provides for the formation of a trade union. or non-employment. 2 . 1926 is almost identical with the definition of "industrial dispute" in the Industrial Disputes Act. and thereby to protect the union leaders from being victimized for legitimate trade union activities. which is connected with: employment. of any person. 1860. The first part of S.57 The main object of the Trade Union Act is to provide for the registration of trade unions. According to S. or with the conditions of labour. The Societies Registration Act. The definition of "trade dispute" in the Trade Unions Act. 1956 do not apply to registered trade unions. Thus the Act indirectly gives the workers the right to go on a strike and engage in collective bargaining. most of the discussion on "industrial dispute" given earlier will also be relevant here. PLEASE VOTE . Main features of the Act The Act provides for the registration of trade unions and defines the law relating to registered trade unions. or the terms of employment. which means a combination of seven or more persons formed for the purpose as contained in the definition of the trade unions. or the conditions of labour. the Co-operative Societies Act. and the Companies Act. Every trade union shall be a body corporate. 1912. BALLOT No. of any person and "workmen" means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises. Thus S. The Act also makes provision for the following matters: (1) Conditions governing the registration of trade unions. 1926 "trade dispute " means any dispute between employers and workmen or between workmen and workmen or between employers and employers which is connected with the employment or non-employment. Therefore. 2(g) gives the definition of "trade dispute" as well as that of "workmen". (2) The obligations to which a trade union is subject after registration. and (iii) the rights and privileges accorded to registered unions. The Act also lays down rights and liabilities of registered trade unions and permits the constitution of separate fund for political purposes. 2(g) of Trade Unions Act. or between employers and employers. for registration of trade unions. or between workmen and workmen. Definitions Trade Dispute. 2(g) which defines "trade dispute" is analyzed as under: "Trade dispute" means any dispute: between employers and workmen. whether temporary or permanent. There is a marked difference in the definition of workmen under the Trade Unions Act. 1926. gazettes and calendars. AIR 1962 Mad. In Rangaswami verses Registrar of Trade Unions. the Madras High Court held that reading S. Mahajan J. BALLOT No. The main part of the definition is analyzed as under: "Trade Union" means: PREPARED BY RADHIKA SETH. or (3) any agreement in consideration of the sale of the goodwill of a business or of instruction in any profession. 2(g) and S. Trade Union. therefore. Thus the scope of the word "workmen' is very wide under the Trade Unions Act. There can be little doubt that the Government Press has been manufacturing with the aid of printing press. 1926. The main difference arises because of the words "whether or not in the employment of the employer with whom the trade dispute arises" included in the definition under the Trade Unions Act. 1947 should not be used in interpreting the provisions of the Trade Unions Act. primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen. budget papers etc. 1976 Lab 1C 280 (Mad). 2(g) of the Trade Unions Act gives the definition of workmen as under: "workmen " means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises. 2(h) together. 'Manufacture' according to the same dictionary means "making of articles by physical labour or machinery especially on large scales. 1926 and the Industrial Disputes Act. Pondicherry. and on a large scale." It would be clear from this dictionary meaning of the words 'industry' and 'manufacture' that no profit motive is necessarily involved in an industry. In Registrar of Trade Union verses Government Press Employment Union. (3) branch of trade or 'manufacture'. it was held that the workmen employed in an industrial undertaking like the Government Press. 1926 defines 'Trade Union" which is reproduced below: "Trade Union " means any combination. as well as physical labour. i. etc. 1947.58 Workmen. being the persons employed in such an industry must be rightly regarded as 'workmen' within the meaning of the Act. 'industry' should be one as would amount to trade or business. be an industry within the meaning of the Trade Union Act. such as challans. Section 2(h) of the Trade Unions Act. because they were not employed in a trade or industry.. further held that it is wrong to interpret the word 'industry' used in the Act of 1926 in the light of the widely extended meaning to it by the Industrial Disputes Act. 1926. it was held that the word 'trade' means any business carried on with a view to profit and involves exchanges of goods for services or goods for money. or for imposing restrictive conditions on the conduct of any trade or business. 1926 and the Industrial Disputes Act. According to the Concise Oxford Dictionary. (2) any agreement between an employer and those employed by him as to such employment. 'industry' means—(1) diligence.. or between employers and employers. 2 . (2) habitual employment in useful works. It is doubtful whether the Trade Unions Act. The Court held in this case that employees of Madras Raj Bhavan could not get their Union registered under the Trade Unions Act. the definition of 'industry' in the Industrial Disputes Act. The latter part of S. 1947 can be read as pari material. The word "trade" and "industry" have not been defined in the Trade Union Act 1926. 1926. branch of such industry as woolen.e. are 'workmen' entitled to the benefits of Trade Union Act. (2) It is immaterial whether the persons employed are or are not in the employment of the employer with whom the trade dispute arises. 1947. It would. formed. The definition of "workmen" has two ingredients: (1) "Workmen" means all persons employed in trade or industry. 1926 and the respondents. 1926. In Mohan Gymkhana Club Employees' Union verses Gymkhana Club. a commercial undertaking. and therefore. trade or handicraft. and includes any federation of two or more Trade Unions: Provided that this Act shall not affect: (1) Any agreement between partners as to their own business. PLEASE VOTE . 231. I am very doubtful whether at all it could be said that the Industrial Disputes Act and the Trade Unions Act form as it were a system or code of legislation so that either could be read together as in pan materia. The single judge of the Madras High Court observed: "The term 'trade union' as defined under the Act contemplates the existence of the employer and the employees engaged in the conduct of a trade or business. (Mad. provided it is formed primarily for one of the purposes mentioned in clause (h) of Section 2 of the Act. 2 . or (b) For imposing restrictive conditions on the conduct of any trade or business. (3) to regulate relations between employers and employers. AIR 1962 Mad. The Court observed that the civil servants engaged in sovereign and regal activities of the State are not 'workmen5 within the meaning of the Trade Union Act. quasi-governmental agencies which are purely industrial in character. However. (1961) 1 LLJ 753 (Mad. 2(h) of the Trade Union Act. if it is formed primarily for one of the following purposes: (1) to regulate the relations between workmen and employers. workmen in independent corporations i. that is." PREPARED BY RADHIKA SETH. 1926. It is therefore. The single Judge concluded that it could not be said that the employees of Raj Bhavan were employed in a trade or business carried on by the employer. A single Judge of the Karnataka High Court observed: "If the said section is analyzed. (4) for imposing restrictive conditions on the conduct of any trade or business. . the Mysore State Employees' Provident Fund Employees' Union was held to be a Trade Union as the activity of the Provident Fund Organisation is 'industry'. The expression 'Trade Union' also includes federation of two or more Trade Unions. BALLOT No. e. But even assuming that definition could be imported for understanding the scope of the meaning of the term 'trade union' in Section 2(h). tehsildars etc. In the latter case. General Insurance Corporation. can form a Trade Union.. and it is obvious that the statute cannot be altered by contract. It is clear from the definition of the expression 'Trade Union' that it could be a combination either of workmen or of employees or of both. So much is plain from the definition of the term 'trade union' itself.e. In Registrar. or (3) employers and employers. PLEASE VOTE . .59 (1) any combination. 1926 so as to entitle it to registration there under. The Madras High Court upheld the decision of the Registrar.G. it will be clear that any combination. Trade Unions verses M. Similar was the decision in Non-Gazzetted Government Officers' Union verses Registrar. Trade Unions.) Madras Raj Bhavan Workers' Union did not come within the scope of the Trade Unions Act. Machine Tool Factory. whether temporary or permanent will be a Trade Union.). (2) to regulate the relations between workmen and workmen.P's Unions verses Registrar. 1926. 1947 Lab 1C 695 (Kant)." In Tamil Nadu N. 234.) was refused registration by the Registrar. or (2) workmen and workmen. a commercial undertaking. the Tamil Nadu Non-Gazzetted Government Officers' Union (including amongst its members submagistrates. The services rendered by them were purely of a personal nature. In Rangaswami verses Registrar of Trade Unions. The emphasis in Section 2(h) is on the purpose for which the Union is formed and not so much on the persons who constitute the Union. Mariswamy.e.. It further held that the concept of "collective barganing" which is the rationale behind the Trade Union movement is wholly inappropriate to Government servants whose terms and conditions are regulated by statute. whether temporary or permanent: (2) formed primarily for the purpose of (a) Regulating the relations between (1) workmen and employers. it is obvious that the industry should be one as would amount to a trade or business i. Life Insurance Corporation etc. as forming one system and interpreting one in the light of another. possible to have a Trade Union consisting only of employers. The definition of the term 'workmen' in Section 2(g) would prima facie indicate that it was intended only for interpreting the term 'trade dispute'. and (3) Includes any federation of two or more Trade Unions. Thus a ombination can be a "Trade Union" if it is made primarily for the purposes as provided in S.g. it was held that government servants engaged in sovereign activities of the government cannot be permitted to raise trade dispute and thus form a trade union. 2002] states that no Trade Union of workmen shall be registered unless it has on the date of making application not less than seven persons as its members. The principal object of the combination must be regulating the relation between workmen inter se. it was held that Registrar is the authority charged with the duty of administering the provisions of the Act.e. (2006) 10 SCC 417. 4. held. High Court's order designating the General Manager. engaged or employed in the establishment or industry with which it is connected are the members of such Trade Union. government servants cannot form a Trade Union under the Trade Unions Act. the elections directed to be held under the supervision of the Registrar or an officer designated by him for that purpose. It is a combination of two or more persons. Therefore. irrespective of the said wings being an industry or not. 2 . 1995 Supp (3) SCC 653. Employees Union verses 3rd ADJ. Therefore. The personnel must be either employers or workmen. In Tirmula Tirupati Devasthanam verses Commissioner of Labour. The registration of union of employees working in the aforesaid wings of the appellant could not be cancelled at the appellant's instance merely on the ground that its said wings weryiot an industry. left open.60 Thus for a Trade Union the following conditions must be present: 1. they must be employed in a trade or industry. Hence. 9. apply for registration of the Trade' Union under this Act. PREPARED BY RADHIKA SETH. There must be a contract of employment and potentiality to raise a trade dispute. In North Eastern Rly. The question as to whether the said wings were or were not an industry." The first proviso to the sub-section (1) [inserted by Act 01 200) (w.f. under the superintendence and direction of the Registrar. Sections 3(1) provides that the appropriate Government has to appoint a person to be the Registrar of Trade Unions for each State. Mode of Registration. on the date of making of application for registration.1. PLEASE VOTE . employees working in Power and Water Wings of Devasthanam. such power and functions of the Registrar. whichever is less. The appropriate government may specify and define the local limits within which any such additional or deputy Registrar shall exercise and discharge the powers and functions specified. North Eastern Railway as the authority to hold the election of the North Eastern Railway Employees Union was held erroneous. by subscribing their names to the rules of the Trade Union and by otherwise complying with the provisions of this Act with respect to registration. or one hundred of the workmen. 3.e. Section 4 of the Act prescribes the mode of registration of Trade Unions. BALLOT No. The object of the combination may be imposing restrictive conditions on the conduct of any trade or business. entitled to get their union registered. It cannot be disputed that the relationship between the appellant and the workmen in question is that of employer and employees.2002)] states that no Trade Union of workmen shall be registered unless at least ten per cent. Section 3(2) provides that the appropriate Government may appoint as many additional and deputy Registrars of Trade Unions as it thinks fit for the purpose of exercising and discharging. 2.f. The second proviso [inserted by Act 2001^w. or between employers inter se or between workmen and employers. According to sub-section 1 of Section 4 "Any seven or more members of a Trade Union may. Thus every trade union is an association but every association is not a trade union. 9. Where the persons are workmen. 1926. The word 'industry' must be understood in the sense of a commercial undertaking. The registration of the association of the said workmen as a trade union under the Act has nothing to do whether the said wings of the appellant are an industry or not. who are workmen engaged or employed in the establishment or industry with which it is connected. Registration of Trade Unions Appointment of Registrars.1. addresses and occupation of the office-bearers of the Trade Union. 5 a Trade Union may become a registered Trade Union in the following manner. ages. 13). the names. (3) Power to acquire and hold property. business. "every application for registration of a Trade Union shall be made in Form A". 15 of the Trade Unions Act. A registered Trade Union has the following advantages or privileges: (1) Body corporate. (2) Where a Trade Union has been in existence for more than one year before the making of the application for its registration. No other offence is protected by S. (2) Perpetual succession and a common seal. Thus a registered Trade Union has a separate legal entity. Registration of Trade Unions is not necessary." According to Regulation 3 of the Central Trade Union Regulations. some of the applicants but not exceeding half of the total number of persons who have made the application. Application for Registration. occupations and addresses of members making the application. According to S. and shall be accompanied by a copy of the rules of the Trade Union and a Statement of the following particulars. According to Regulation 8 the fee payable for the registration of Trade Union shall be Rs. 13). 2 . any office-bearer of the registered Trade Union or a member. The immunity is for any action done (1) in contemplation of a trade dispute to which a member or the Trade Union is party or (2) in furtherance of a trade dispute to which a member of the Trade Union is a party. A registered Trade Union shall have a perpetual succession and a common seal (S. such application shall not be deemed to have become invalid merely by reason of the fact that at any time after the date of the application. (aa) in the case of a Trade Union of workmen. (b) The name of the Trade Union and the address of its head office.61 Sub-section 2 of Section 4 prescribes that "where an application has been made under sub-section (I) for the purpose of registration of a Trade Union. 13). Section 18(1) grants immunity from civil action to registered Trade Union. 1938. It means that if only half or less than half of the members ceased to be members of the Union or disassociate themselves from applications as aforesaid. names. if the offence arises out of any agreement entered into between members whose purpose is to further the objects specified in S. a general statement of the assets and liabilities of the Trade Union prepared in such form and containing such particulars as may be prescribed. occupations and addresses of the place of work of the members of the Trade Union making the application. namely: (a) The names. The agreement should not be an agreement to commit an offence. A Union already formed can be registered. (4) Can sue and can be sued. or (2) that it is in interference with the trade. 5/-. On registration a Trade Union acquires the status of a body corporate by the name under which it is registered (S. have ceased to be members of the Trade Union or have given notice in writing to the Registrar disassociating themselves from the application". A registered trade union can sue and be sued (S. Regulation 7 prescribes that if the application is made by a Trade Union which has previously been registered by the Registrar of any State the Union shall submit with its applications a copy of the certificate of registration granted to it and copies of the entries relating to it in the Register of Trade Unions for the State. Section 17 grants immunity to office-bearers or members of a registered Trade Union from punishment under S. The section is reproduced below: "(1) Every application for registration of a Trade Union shall be made to the Registrar. 120-B(2) of the Indian Penal Code. and (c) The titles. PLEASE VOTE . The immunity is only for action made exclusively on (he ground (1) that such act induces some other person to break a contract of employment. the application for registration shall remain valid. Advantages of Registration. 13). but before the registration of the Trade Union. 17. A registered Trade Union shall have a right to acquire and hold both movable and immovable property (S. (5) Immunity from prosecution. employment PREPARED BY RADHIKA SETH. together with the application. BALLOT No. of the registered Trade Union. there shall be delivered to the Registrar. rightly set aside by High Court. Section 6 is reproduced below: "A Trade Union shall be entitled to registration under this Act unless the executive thereof is constituted in accordance with the provisions of this Act and the rules thereof provide for the following matters. right of some other person to dispose of his capital as he wills or right of some other persons to dispose of his labour as he wills.62 of some other person. 19). the Supreme Court held that an unrecognized union is not a superfluous entity. 2 . it is proved that person acted without the knowledge of or contrary to express instruction given by the executive of the trade union. (7) Certificate of registration. Provisions to be contained in the rules of a Trade Union. (a) The name of a Trade Union. However. For internal working and for governing the relationship between the members and the Trade Union a Trade Union is required to have certain rules dealing with certain matters specified in S. The management/employer cannot out rightly refuse to have such discussions with an unrecognized trade union. has to be decided by the management or its representative at the spot. The certificate of registration issued by the Registrar will be conclusive evidence that the Trade Union has been duly registered (S. 9). 6 of the Trade Unions Act and in the manner specified in Schedule II of the Central Trade Unions Regulation 1938. of which they were members would be useful. whether in certain matters concerning individual workmen discussion and negotiation with the unrecognized trade union. An agreement between 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 retraint of trade (S. SBI verses All Orissa State Bank Officers' Association. Hence provision in State Bank of India circular restraining its functionaries from entering into any dialogue or accepting any representation from the office-bearers of an unrecognized association. In Chairman. and also the admission of the number of honourary or temporary members as office bearers required under Section 22 to form the executive of the Trade Union. (e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected. PLEASE VOTE . namely. (2) three rupees per annum for workers in other unorganized sectors. and (3) twelve rupees per annum for workers in any other case. Thus an unrecognized trade union cannot participate in discussions relating to general issues concerning all workmen. (c) The whole of the purposes for which the general funds of a Trade Union shall be applicable. (2002) 5 SCC 669 : AIR 2002 SC 2279. held. (ee) the payment of a subscription by members of the trade Union which shall be not less than (1) one rupee per annum for rural workers. all of which purposes shall be purposes to which such funds are lawfully applicable under this Act. Unrecognized Trade Union. (b) The whole of the objects for which the Trade Union has been established. PREPARED BY RADHIKA SETH. It is entitled to meet and discuss with the management/employer about grievances of any individual member relating to his service conditions and to represent an individual member in domestic or departmental inquiry and proceedings before Conciliation Officer or Labour Court or Industrial Tribunal. BALLOT No. (d) The maintenance of a list of members of the Trade Union and adequate facilities for the inspection thereof by the office-bearers and members of the Trade Union. Section 18(2) affords immunity to a registered Trade Union in respect of any tortuous act done by an agent of the trade union in contemplation or furtherance of a trade dispute. (6) Enforceability of agreement. 63 (f) the conditions under which any member shall be entitled to any benefit assured by the rules under which any fine or forfeiture may be imposed on the member. PLEASE VOTE . PREPARED BY RADHIKA SETH. shall register the alteration in a register to be maintained for this purpose and shall notify the fact that he has done so to the Secretary of the Trade Union. It was contended that Rule 64 should be treated as void as it was inconsistent with the stated objects of the Union. it was held that the rules cannot be amended to provide for making the President of the Union as election authority. W. varied or rescinded. and adequate facilities for the inspection of the account books by the office-bearers and members of the Trade Union. Power to call for further particulars and to require alteration of name. empowering him to nominate all office-bearers and denying authority to the general body to remove the president from office before the expiry of his term. and (j) The manner in which the Trade Union may be dissolved. 6 and may refuse to register the Trade Union until such information is supplied. 6(g) 28(3). the Supreme Court held that S. 1938 provides that on receiving a copy of an alteration made in the rules of a Trade Union under S. Rules 4 and 64 of a registered Trade Union (respondent) were repugnant with each other.T. and annual audit. All the rules formed by the Union coexist. (1988) 1 LLJ 83 AP. In Indian Oxygen Limited verses Their Workmen. of the accounts thereof. BALLOT No. the Supreme Court held that the combined effect of S. in such manner as may be prescribed. The Court has no right to rewrite the rules of a registered Trade Union by deleting any of them. AIR 1969 SC 306." According to clause (b) of S. In this respect S. In Bokajan Cement Corporation Employees' Union verses Cement Corporation of India Ltd. (i) the safe custody of the funds of the Trade Union. 6 provides that the rules of a Trade Union must provide the manner in which the rules shall be amended. Commissioner. or that the Trade Union is entitled to registration under S. not one that provides for automatic cessation of membership on cessation of employment. 28 (3). 6(e) that ordinary members of a trade union shall be "persons actually engaged or employed in an industry" is only a condition for admission. 6(e) does not provide for automatic cessation of members of union on cessation of employment. Clause (g) of S. 5. AIR 1975 SC 506.V. Section 28 (3) lays down that a copy of every alteration made in the rules of a registered Trade Union shall be sent to the Registrar within fifteen days of the making of the alteration. (g) The manner in which the rules shall be amended varied or rescinded. The requirement in S. In B. (hh) the duration of period being not more than three years.S. The Supreme Court held that the Court has no right to assume some of the stated objects of the Union as primary to declare others in apparent conflict with them as of ho effect. Registrar. It deals only with eligibility conditions for admission of ordinary and executive members of a trade union.. Regulation 9 of the Central Trade Union Regulations. Section 29 empowers the appropriate Government to make regulations for the purpose of carrying into effect the provision of this Act. Bengal verses Indian Sugar Mills Association. 7 provides as follows: "(1) The Registrar may call for further information for the purpose of satisfying himself that any application complies with the provisions of S. for which the members of the executive and other office-bearers of the Trade Union shall be elected. (2004) 1 SCC 142 : AIR 2004 SC 245 : 2004 SCC (L&S) 23. 29 and 30 and Regulation 9 is that a registered Trade Union can alter its rules only in the manner provided in those provisions. In I. (h) The manner in which members of the executive and the other office bearers of the Trade Union shall be appointed and removed. 6 the rules of a Trade Union must provide for whole of the objects for which the Trade Union has been established. 2 . Section 30 makes it obligatory to publish Regulations in the official Gazette and they will come into force after such publication. unless he has reason to believe that the alteration has not been made in the manner provided by the rules of Trade Union. Hannmantha Rao & Another verses Deputy Registrar of Trade Union and Deputy Commissioner of Labour and Others. (1988) II LLJ 43 (Kerala). The Registrar. The Registrar is not justified in refusing to register a union on the ground that the Union applying for registration is a union declared to be unlawful by the government under a different name. In Tata Workers Union verses State of Jharkhand. It is only a Civil Court which has jurisdiction to decide that dispute under the Trade Unions Act. PLEASE VOTE ." Registration. it was held that no provision of law provides for holding of election under the supervision of Registrar. The Act does not require a Union applying for registration to give notice to all existing Unions. (2002) III LLJ 474 (Jhar HC). Minimum requirement about memberships of a Trade Union. 1926 an unregistered trade union or a trade union whose registration has been cancelled has no manner of right whatsoever. or one hundred of the workmen. 21. Certificate of registration continues to hold good until it is cancelled. Registrar of Trade Unions. Certificate of Registration.8.64 (2) If the name under which a Trade Union is proposed to be registered is identical with that by which any other existing Trade Union has been registered or in the opinion of the registrar so nearly resembles such name as to be likely to deceive the public or the members of the either Trade Union. it was held that the Registrar on being satisfied that the Trade Union has complied with all the requirements of the Act in regard to registration must register the Trade Union. There is no provision permitting or empowering the Registrar to refer internal disputes relating to officebearers for adjudication to any other forum. There may be rival Unions. 8 relate to only registration of a trade union. Singh verses State of Bihar. 1998 LLR 645. It is not created by statute." In re Inland Steam Navigation Workers Union. In Keshoram Rayon Workers Union . the particulars relating to the Trade Union contained in the statement accompanying the application for registration. In R. Trade Union. it is not amenable to writ jurisdiction. shall issue a certificate of registration in the prescribed form which shall be conclusive evidence that the Trade Union has been duly registered under this Act (S. Section 8 provides that the "the Registrar. it was held that a Trade Union registered under the Act is not a statutory body. 1947 w. and shall refuse to register the Union until such alteration has been made. & Others verses Kerala Medical and Sales Representatives Association. Therefore. The Registrar has no discretion in this matter.e.1984 defining a trade union to mean a trade union registered under the Trade Unions Act. it was held that workmen of an industrial establishment can form any number of Trade Unions. In ONGC Workmen's Association verses State of West Bengal and Others. 1947 have been limited only to those trade unions which are registered under the Trade Unions Act. 1926 by insertion of clause 2(qq) in the Industrial Disputes Act. To decide such a dispute an inquiry may be held by the Registrar in the presence of both the rival groups claiming to be office-bearers in this regard is administrative in nature. on registering a Trade Union under S. subject PREPARED BY RADHIKA SETH. In B. it was held the Registrar of Trade Union has no quasi-judicial authority to hold any injury by allowing parties to examine witnesses and decide the dispute as to who are the real office-bearers. BALLOT No. 1926. 2 . Even the rights available under the Industrial Disputes Act. The functions of the Registrar are limited to seeing that the requirements of the Act have been complied with. In Chemosyn (P) Ltd. Srinivasa Reddy verses Karnataka Urban Water Supply & Drainage Board Employee s Association. it was held that provisions of S. A registered Trade Union of workmen shall at all times continue to have not less than ten per cent.f. whichever is less. the Registrar shall require the persons applying for registration to alter the name of the Trade Union stated in the application.N. 8. (1988) II LLJ 335 (Cal). (2006) 11 SCC 731 (2): it was held that under the Trade Unions Act. on being satisfied that the Trade Union has complied with all the requirements of this Act in regard to registration. 9). shall register the Trade Union by entering in a register to be maintained in such form as may be prescribed. Under these circumstances the cancellation of registration on the ground of non-filing of return was held improper. he may call for such further particulars as he may deem necessary and may examine any officer of the Union. For this purpose. engaged or employed in an establishment or industry with which it is connected. 10 a certificate of registration of a Trade Union may be withdrawn or cancelled by the Registrar: (a) On the application of the Trade Union to be verified in such manner as . (2003) II LLJ 1100 (Bom). In Tata Electric Companies Officers Guild verses Registrar of Trade Unions. satisfy himself that the withdrawal or cancellation of registration was approved by a general meeting of the Trade Union. 2 . (c) If the registrar is satisfied that a registered Trade Union of workmen ceases to have the requisite number of members. to that Court or Tribunal. 11(2) the appellate Court may dismiss the appeal or pass an order directing the Registrar to register the Union and to issue a certificate of registration. In this case the Trade Union did not file return due to misunderstanding of accounting year and the return was filed soon after receipt of show cause notice from the Registrar. 6. According to S. Bombay. to such Court not inferior to the Court of an additional or assistant Judge or a principal Civil Court of original jurisdiction. or (aa) where the head office is situated in an area. that it has the approval of the majority of the members of the Trade Union. PLEASE VOTE . No such notice is necessary when the registration is withdrawn or cancelled on an application by the Trade Union itself. 1938 provides that any appeal made under S. or (5) Has rescinded any rule providing for any matter provision for which is required by S. According to S. Appeals. 10 of the Act is illegal and improper. or if it was not so approved. BALLOT No. According to S. Bombay. Calcutta or Madras) to the High Court. 19 of the Central Trade Union Regulations. it was held that for cancellation of registration of a Trade Union willful contravention of provision of the Act is necessary.65 to a minimum of seven. 11 (1) any person aggrieved by any refusal of the Registrar to register a trade Union or by the withdrawal or cancellation of a certificate of registration may. Mumbai verses Registrar Trade Unions. Section 11(3) enacts that for the purpose of an appeal under S. 11(1) an appellate Court shall. appeal: (a) where the head office of Trade Union is situated-within the limits of a Presidency town (i. 11(1) must be filed within 60 days of the date on which the Registrar passed the order against which the appeal is made). as the case may be. falling within the jurisdiction of a Labour Court or an Industrial Tribunal.may be prescribed. or (b) If the Registrar is satisfied that the certificate has been obtained by fraud or mistake. Regulation 9 of the Central Trade Union Regulations.e. The Court may also set aside the order for withdrawal or cancellation of the certificate. (b) where the head office is situated in any other area. In Bombay Fire Fighters Services Union. The Registrar must comply with any such order passed by the appellate Court. 1938 provides that the Registrar on receiving an application for the cancellation of registration shall. as its members (Section 9) Cancellation of Registration. before granting the application. within such period as may be prescribed (Regl. or (2) that the Trade Union has ceased to exist or (3) Has willfully and after notice from the Registrar contravened any provision of this Act or (4) Allowed any rule to continue in force which is inconsistent with any such provision. (1994) 1 LLJ 125 (Bom). PREPARED BY RADHIKA SETH. it was held that the cancellation of registration of a Trade Union in violation of mandatory provisions of S. as the appropriate Government may appoint in this behalf for that area. 10 requires that not less than two months' previous notice jn writing specifying the ground on which it is proposed to withdraw or cancel the certificate shall be given by the Registrar to the Trade Union before the certificate is withdrawn or cancelled otherwise than on the application of the Trade Union. The proviso to S. BALLOT No. According to S. the Registrar cancelled the registration of a Trade Union for contravention of the provisions of S. (6) Can sue and be sued under its name. Incorporation of registered Trade Unions. Later on. Notice of any change in the address of the head office shall be given within 14 days of such change to the Registrar in writing and the changed address shall be recorded in the register referred to in Section 8. (3) Common seal. 2 . According to Section 12 all communications and notices to a registered Union may be addressed to its registered office. 1912.66 so for as may be. If first registration is permitted it would be effective from the date thereof. In Mukandlron and Steel Works Ltd. (4) Power to acquire and hold both movable and immovable property. (2) Perpetual succession. allowance and expenses to office bearers of the Trade Union. namely:— (a) The payment of salaries. any such costs shall be recovered as if they had been awarded in a suit under the said Code. verses G.cannot withdraw the order of cancellation because of subsequent events. 1956. It was held that a Trade Union whose registration has been cancelled has remedies in the form of an appeal or in the form of an application for fresh registration. Once the Registrar cancels or withdraws the registration of a Trade Union he has no power to review it and thus. Bombay. Registrar of Trade Unions. If the appeal succeeds the order of cancellation could be held to be void ah inito and the Union would continue as if order of cacellation has not been passed. Certain Acts not to apply to registered Trade Union. Section 11(4) provides that in the event of the dismissal an appeal by any Court appointed under S. 13 a registered Trade Union shall have the following characteristics: (1) Body corporate. and may direct by whom the whole or any part of the costs of the appeal shall be paid. PREPARED BY RADHIKA SETH. 1960. PLEASE VOTE . (5) Power to contract. Registered office. Deshpande. 28 by not filing the annual returns. (b) The Co-operative Societies Act. (b) The payment of expenses for the administration of the Trade Union including audit of accounts of the general funds of the Trade Union. (c) The Companies Act. follow the same procedure and have the same powers as it follows and has when trying a suit under Code of Civil Procedure 1908. (1986) II LLJ 290 (Bom). ll(l)(b) the person aggrieved has a right of appeal to the High Court. Section 14 lays down that the following Acts shall not apply to any registered Trade Union and the registration of any such Union under any such Act shall be void: (a) The Societies Registration Act. Objects on which General Funds may be used Section 15 provides that the general funds of registered Trade Union shall not be spent on any other objects than the following. the Registrar withdrew the cancellation of registration on the ground that returns have been submitted subsequently. In Maria Raposo verses H. or (e) the holding of political meeting of any kind. or contributions to any cause intended to benefit workmen in general. (e) the compensation of members for loss arising out of trade disputes. PREPARED BY RADHIKA SETH. purchase of units of U. accidents or unemployment of such members. or under policies insuring members against sickness. 2 . and (k) subject to any conditions contained in the notification.67 (c) the prosecution or defence of any legal proceeding to which the Trade Union or any member thereof is a party. when such prosecution or defence is undertaken for the purpose of securing or protecting any rights of the Trade Union as such or any rights of the Trade Union as such or any right arising out of the relations of any member with his employer or with a person whom the member employs. from which payments may be made for the promotion of the civil and political interests of its members.T. either directly or indirectly by a candidate or prospective candidate for election as a member of any legislative body constituted under the constitution or of any local authority before. any other object notified by the appropriate Government in the Official Gazette. (g) the issue of on the undertaking of liability under policies of assurance on the lives of members. in furtherance of any of the objects specified below: (a) the payment of any expenses incurred. BALLOT No. old age. or (c) the maintenance of any person who is a member of any legislative body constituted under the constitution or any local authority. or (b) The holding of any meeting or the distribution of any literature or documents in support of any such candidate or prospective candidate. Bhandarkar and Others. (j) the payment in furtherance of any of the object on which the general funds of the Trade Union may be spent. or (d) the registration of electors or the selection of a candidate for any legislative body constituted under the constitution or for any local authority. (h) the provision of educational. (f) the allowances to member or their dependants on account of death. during or after the election in connection with his candidature or election.I. social or religious benefits for members including the payment of the expenses of funeral or religious ceremonies for deceased members or for the dependants of members. (d) the conduct of trade disputes on behalf of the Trade Union or any member thereof. accident or unemployment. by the office-bearers of the Union in their individual names out of General Gund of the Union. was held to be a speculative activity and not investment. (1994) II LLJ 680 (Bom). (i) the upkeep of a periodical published mainly for the purpose of discussing Questions affecting employers or workmen as such. PLEASE VOTE . Constitution of a Separate Fund for Political Purposes Section 16 provides that a registered Trade Union may constitute a separate fund from contributions separately levied for or made to that fund.M. sickness. provided that the expenditure in respect of such contributions in any financial years shall not at any time during that year be in excess of one-fourth of the combined total of the gross income which has up to that time accrued to the general funds of the Trade Union during that year and of the balance at the credit of those funds at the commencement of that year. or the distribution of political literature or political documents of any kind. " Thus S. There was a strike in 1918 by workers in Buckingham and Carnatic Mills. 17 confers immunity from liability in case of criminal conspiracy under S. But when the members of the Union resorts to unlawful confinement of persons or criminal tress pass or they indulge in criminal assault or mischief to a person or property there is no exemption from liability. 15 of the Act.. PLEASE VOTE . The section is reproduced below: "(1) No suit or other legal proceedings should 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 induces some other person to break a contract of employment or that it is in interference with the trade. 1926 was passed. Wadia under the common law principle of illegal conspiracy and combination in restraint of trade for organizing the strike. protection of S. Immunity from Civil Suits in Certain Cases Section 18 of the Trade Unions Act deals with the immunity from civil suits in certain cases. The Madras High Court awarded Rs. 1926 the workmen could not organise and participate in strikes for improvement of their conditions of service. This case led to the agitation by workers and to legalise the trade unions. Madras. 17 is not available. 75. Ruiker verses Emperor. business or employment of some other person or with the right of some other person to dispose of his capital or of his labour as he wills. 2 . (2) A registered Trade Union shall not be liable in any suit or other legal proceeding in any Civil Court in respect of tortuous act done in contemplation or furtherance of a trade dispute by an agent of the Trade Union if it is proved that such person acted without the knowledge of. The immunity is available only in respect of agreements made between the members for the propose of furthering any such object of the Trade Union as is specified in S. If the agreement is an agreement to commit an offence. 17 make the member of a Trade Union liable for criminal conspiracy.S. 17 of the Trade Union Act. In R. They are not liable civilly for such acts or criminally for conspiracy in the furtherance of such acts as Trade Unions Act permits. would under S. Indeed any agreement to commit an offence. unless the agreement is an agreement to commit an offence. AIR 1935 Nag. or placed in any respect either directly or indirectly under any disability or at any disadvantage as compared with other members of the Trade Union (except in relation to the control or management of the said fund) by reason of his not contributing to the said fund. 120-B of the IPC committed by an office-bearer or member of a registered Trade Union. make them liable for criminal conspiracy.68 It is further provided that no member shall be compelled to contribute to that fund constituted for political purposes and a member who does not contribute to the said fund shall not be excluded from any benefit of the Trade Union. B. but there is nothing in that Act which apart from immunity from criminal conspiracy allows immunity from any criminal offences. Immunity from Criminal Conspiracy in Trade Disputes Before the passing of the Trade Unions Act.." PREPARED BY RADHIKA SETH. 149. it was held that "Trade Unions have the right to declare strikes and do certain acts in furtherance of trade disputes. The effect of S. the Trade Unions Act.P." An agreement to commit an offence would under S.000 as damages and imprisonment for Mr. 17 is that an agreement by two or more members of a registered Trade Union to do or cause to be done any act in furtherance of a trade dispute shall not be punishable as a conspiracy unless such act if committed by an individual constitutes an offence. or contrary to express instructions given by the executive of the Trade Union. BALLOT No. and contribution to the said fund shall not be made a condition for admission to the Trade Union. Section 17 lays down that "no office bearer or member of a registered Trade Union shall be liable to punishment under sub-section (2) of Section 120-B of the Indian Penal Code (45 of 1860) in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in Section 15. L. It was further laid' down that movement or agitation or demonstration by the employees for the purpose of compelling employer to withdraw certain disciplinary proceedings initiated against some of them was in contemplation or in furtherance of trade dispute and thus immune from action the Civil Court.N. In West India Steel Company Ltd. In Reserve Bank of India verses Ashis Kusum Sen. Similarly in Rohtas Industries Limited . (1992) 1 Lab.). The employer is not entitled to claim any damages against the workmen of a registered Trade Union which are found guilty of participation in such illegal strikes. The decision of the Patna High Court was upheld by the Supreme Court in Rohtas Industries verses Staff Union.. PLEASE VOTE . 266 (Ker. In Simpson & Group Companies Workers & Staff Union verses Amco Batteries Ltd. or (b) such act is an interference (i) with the trade. verses Narender Anandji. (1976) 2 SCC 83. inducement for procurement of contract of employment in furtherance of a trade dispute or interference with the business of another person in furtherance of a trade dispute must be by lawful means and not by means which would be illegal or wrongful by other provisions of law. Ganesh verses State of Bombay. (1990) II LLJ 133 (Kerala). Right to picket limited by the equal right of others to go about their lawful affairs free from objection or intimidation. 388. 18( 1) provides immunity to registered Trade Unions. if it is proved that the agent acted: (a) without the knowledge of the executive of the Trade Union. In Rohtas Industries Staff Union verses State of Bihar. it was held that immunity under S. inside the factory is bound to obey the reasonable instruction PREPARED BY RADHIKA SETH. The methods of persuasion are limited to oral and visual methods and they do not extend to physical obstruction of a vehicle or person. etc. their office-bearers and members from civil suits or other proceeding of a civil nature in respect of any act done in contemplation or furtherance of a trade dispute on the ground only that: (a) Such act induces some other person to break a contact of employment (such as persuation exercised on Trade Union members and others to join a strike). It was further held in this case that to threaten to induce breaches of contracts of employment is not actionable. It was held that a worker. 18. vehicles and lorries carrying raw materials. Picketing may be accompanied by a polite request asking workers not to assist in the running of that establishment or customers not to pertronise that establishment. or (ii) with the right of some other person to dispose of his capital or his labour as he wills. staff. work-in-progress and finished products into and out of the factory premises. 18. AIR 1976 SC 425 the Supreme Court held that workers could not be asked to make good the loss suffered by the employer because of the illegal strike the object of which was inter-union rivalry. Rohtas Industries Staff Union. it was held that to get the protection of S. generally accompanied by the carrying and display of a sign or banner.69 Thus S. contractors. AIR 1961 Bom. business or employment of some other person. Thus if the acts done in contemplation or furtherance of a trade dispute involve any violence or other criminal offence then the immunity will not be available. a Trade Union leader obstructed work in the factory for five hours protesting against deputation of workman to work in another section of the factory. picketing has been defined as the marching to and fro before the premises of an establishment involved in a dispute. 18 of the Trade Unions Act. it was held that S. The acts of peaceful picketing are protected under S. Section 18(2) provides immunity to registered Trade Unions from liability in respect of tortuous acts done by their agents in contemplation or furtherance of a trade dispute. 1926 does not extend to physical interference or duress with free movement of executives. 2 . suppliers and other persons or physically obstructing the free movement of cars. or (b) contrary to the express instruction given by the executive of the Trade Union In Dalmia Cement Ltd. In D. 18 of the Trade Unions Act confers immunity even in cases of strikes which are illegal under Section 22 to 24 of the Industrial Disputes Act provided it is resorted to for the purposes of "furtherance of trade disputes". it was held that a registered Trade Union or their office bearers are liable in civil action in tort for an act of deliberate trespass. W. verses Azeez. including a Trade Union leader. BALLOT No.J. (1962) 73 Cal. 459. Section 19 provides that notwithstanding anything contained in any other law for the time being in force. are fulfilled. verses Management of Kamli Coop. The general rule that an agreement in restraint of trade is void as laid down S. 1926. The mere fact that such worker is a Trade Union leader does not confer him any immunity in this regard. 2 . Enforceability of agreements. an employee who has retired or has been restrenched shall not be construed as outsider for the purposes of holding an office in a Trade Union. employ or be employed. a member of the executive or any other office-bearer of a Registered Trade Union if: (1) he has not attained the age of 18 years. 27 of the Indian Contract Act. 19 states that nothing in this section shall enable any Civil Court to entertain any legal proceeding instituted for the purpose of enforcing or recovering damages for the breach of any agreement concerning the conditions on which any members of a Trade Union shall or shall not sell their goods. Disqualifications of office-bearers of Trade Unions Section 21-A states the disqualifications of office-bearers of Trade Unions. According to it a person shall be disqualified for being chosen as. specify. it was held that the trade union cannot enforce the right of recognition against the management by a writ petition. will not be void. It mean that the liability created under the Act relates to the enforcement of an agreement. Sub-section (3) provides that no member of the Council of Ministers or a person holding an office of profit (not being an engagement or employed in an establishment or industry with which the Trade Union is connected). shall be persons actually engaged or employed in the establishment or industry with which the Trade Union is connected. not to its validity. Except as otherwise provided above. whichever is less. In Workmen of Kamli Co-op. (1995) 1 LLJ 727 (Karnataka). Sugar Factory1 Ltd. hours of work etc. enjoy all the rights of a member and execute all instruments and give all acquaintances necessary to be executed or given under the rules. There is an important proviso to the rule laid down in S. The proviso to S. shall be a member of the executive or other office-bearer of a registered Trade union shall be persons actually engaged or employed in an PREPARED BY RADHIKA SETH. This right is subject to any rules of the Trade Union. For the purposes of this sub-section. The account books of a registered Trade Union and the list of members thereof shall be open to inspection by an officebearer or member of the Trade Union at such times as may be provided in the rules of the Trade Union (S. It means that the agreement between the members of a registered Trade Union not to accept employment unless certain conditions as to pay. 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. Normally it refers to conduct which is contrary to the accepted rules of morality whether it is or is not punishable as a crime. 19 of the Trade Union Act. The expression 'moral turpitude' is not defined in the Act. subject as aforesaid. and for being. An agreement ought to have been entered into between the trade union and the management for granting recognition. transact business. PLEASE VOTE . 21.. except not more than one-third of the total number of the office-bearers or five.70 given by his superiors and carry out the duties assigned to him. work. 20). (2) he has been convicted by a court in India of any offence involving moral turpitude and sentenced to imprisonment. Such a member. 1927 is affected by the provisions of S. in the Union or a State. all office-bearers of a registered Trade Union. BALLOT No. For the purpose of this section. "unorganized sector" means any sector which the appropriate Government may. Sugar Factory Ltd. Rights of minors to membership of Trade Unions According to S. any person who has attained the age of 15 years may be member of registered Trade Union. 1926.. Proportion of office-bearers to be connected with the Industry Section 22(1) provides that not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognized sector. unless a period of five years has clasped since his release. by notification in the Official Gazette. 19 of the Trade Unions Act. declare that the provisions of this section shall not apply to any Trade Union or class of Trade Unions specified in the order. This is subject to the condition that the votes of at least one-half of the members of each or every such trade union entitled to vote are recorded. The notice should be signed by seven members and by the Secretary of the Union.71 industry with which the Trade Union is connected. 25 (1) it is necessary to send to the Registrar notice in writing of every change of name. Section 25 requires that notice in writing of every amalgamation signed by the Secretary and by seven members of each and every Trade Union which is a party thereto. or in the opinion of the Registrar. PLEASE VOTE . According to Section 26. PREPARED BY RADHIKA SETH. and (3) a copy of every alteration made in the rules within fifteen days of the making of the alteration. 2 . According to S. by special or general order. BALLOT No. 25 (2) provides that if the proposed name is identical with that by which any other existing Trade Union has been registered. should be sent to the Registrar. 26. so nearly resembles such name as to be likely to deceive the public or the members of either Trade Union. However the appropriate government may. If the Registrar is satisfied that the dissolution has been effected in accordance with the rules of the Trade Union he has to register the fact of dissolution. the Registrar shall divide the funds amongst the members in such manner as may be prescribed. the change in the name of a registered Trade Union will not affect any rights or obligations of the Trade Union or render defective any legal proceeding by or against the Trade Union. 6. According to S. 25 (3) says that if the Registrar is satisfied that the provisions of this Act in respect of change of name have been complied with he shall register the name in the Register. 23. signed by the Secretary and seven members of the Trade Union. 28. with or without dissolution or division of funds. when a registered Trade Union is dissolved notice of dissolution has to be sent to the Registrar within fourteen days of dissolution. 27. This is subject to the provision of S. The amalgation shall have effect from the date of such registration. Where the dissolution of a registered Trade Union has been registered and the rules of the Trade Union do not provide for the distribution of funds of the' Trade Union on dissolution. Dissolution According to S. 25. 8. and that at least sixty per cent of the votes are in favour of the proposal. he shall register the Trade Union in the manner prescribed in S. S. Amalgamation of Trade Unions Section 24 authorities two or more Trade Unions to amalgamate into one Trade Union. S. Dissolution will take effect from the date of such registration. an amalgamation of two or more registered Trade Unions shall not prejudice any right of any such Trade Unions or any right of a creditor of any of them. the change of name cannot be registered. every registered Trade Union has to submit to the Registrar: (1) an audited general statement of receipt and expenditure and assets and liabilities of the Trade Union ending and existing on 31st December every year. In case the head office of the amalgamated Trade Union is situated in a different State the notice should be sent to the Registrar of such State. (ii) a statement showing all changes of office-bearers of the Trade Union with the statement mentioned in (1) above. any registered Trade Union may. and the change takes effect from the date of registration. Change of Name According to S. Returns According to S. with the consent of not less than two-thirds of the total number of its members change its name. If the Registrar of the State in which the head office of the amalgamated Trade Union is situated is satisfied that the provisions of this Act in respect of amalgamation have been complied with and that the Trade Union formed thereby is entitled to registration under S. account books. BALLOT No. registers and other documents relating to the Trade Union. 30). 29 is subject to the condition of the regulations being made after previous publication (S. Power to make Regulation The appropriate government may make regulation for the purpose of carrying into effect the provisions of this Act (A. The punishment is that of fine only. PLEASE VOTE . The power to make regulations conferred by S. 2 . 29).72 The Section further authorizes the Registrar or any officer authorised by him to inspect the certificate of registration. PREPARED BY RADHIKA SETH. Failure to submit returns Section 31 deals with penalties for certain acts and omissions.