B- Industrial Dispute-

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The Industrial Disputes Act, 1947Preliminary:

The Industrial Disputes Act, 1947 extends to whole of India. It came intooperation on the first day of April, 1947. This Act replaced the Trade Disputes Act

of 1929. The Trade Disputes Act imposed certain restraints on the right of strikeand lockout in Public Utility Services. But no provision was existing for thesettlement of Industrial Disputes, either by reference to a Board of Conciliation orto a Court of Inquiry. In order to remove this deficiency, the Industrial DisputesAct, 1947 was passed.

Scope and Objects (Sec. 1) ,

The objects of the industrial relation's legislation in general are to maintain

industrial peace and, to achieve economic justice. . .

The prosperity of any industry very much depends upon its growingproduction. Production is possible when the industry functions smoothly without

any disturbances. This means industrial peace through harmonious relationshipbetween labour and management. Therefore every industrial relations legislatiqnnecessarily aims at providing conditions congeniel to the industrial peace.

Economic justice is another objective of industrial legislation. Almost allindustrial interuptions in production are due to industrial disputes. Dissatisfactionwith the existing economic conditions is the root cause of industrial disputes. Thelabour demands for fair return is expressed in varied forms; e.g. increase inwages, resistance to decrease in wages and grant of allowance and benefits etc.If a labourer wants to achieve these gains individually, he fails because of hisweaker bargaining power against the sound economic footing of themanagement. Therefore, the economic struggle of labour with capital can be

fought collectivity by organised labours. It is with this object to provide economicjustice by ensuring fair return to the labour, the State, being the custodian ofpublic interest, intervenes by 'State legislation' Economic justice has also beenensured to the people of India by our Constitution.

Thus the main object of all labour legislation is to ensure fair wages and toprevent disputes so that the production might not be adversely affected2. Theprincipal objects of Industrial Disputes Act as analyzed and interpreted by theSupreme Court are as follows.3

(1) The promotion of measures for securring and preserving amity andgood relations between employers and workmen;

(2) Investigation and settlement of industrial dispute between employersand employers, employers and workmen, or between workmen and workmen

with a right of representation by a registered Trade Union or . Federation ofTrade Unions or Association of Employers or a Federation of Association ofEmployers.

(3) The prevention of illegal strikes and lock-outs;

(4) Relief to workmen in the matter of lay-oft, retrenchment and closure ofan undertaking. .


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(5) Collective bargaining.

Main Features or Characterstics of the Act::

Some of the important features of the Act may be summearised as

below:

1. Anyindustrial dispute may be referred to an industrial tribinal by mutualConsent of parties to dispute or by the State Government, if it deems expedientto do so.

2. An award shall be binding on both the parties to the dispute for theoperated period, not exceeding one year;

3. Strike and lockouts are prohibited during:(a) The pendency of conciliation and adjudication proceedings;

(b) the pendency of settlements reached in the course of conciliationproceedings, and .

(c) the pendency of awards of Industrial Tribunal declared binding bythe appropriate Government.

4. In public interest or emergency, the appropriate Government haspower to declare the transport (other than railways), coal, cottontextiles, food stuffs and iron and steel industries to be public utilityservices for the purpose of the Act, for a maximum period of six

months.5. In case of lay-oft or retrenchment of workmen, the employer is

requested to pay compensation to them. This provision stands inthe case of transfer or closure of an undertaking.

6. A number of authorities (Works Committees, Conciliation Officers,Board of conciliation, Courts of Inquiry, Labour Courts, Tribunal

and National Tribunal) are provided for settlement of Industrialdisputes. Although the nature of powers, functions and duties ofthese authorities differ from each other, everyone plays importantrole in ensuring industrial peace.

Definitions (Sec.2) :

(a) Appropriate Government: The Central Government as well as the

State Government are vested with various powers and duties inrelation to matters dealt with in this Act. In relation to someindustrial disputes the Central Government and in relation to someothers, the State Government concerned are the appropriate

Government to deal with such disputes.Under sub-section [(i) (a)] and [(i)(b)] of the Act,Companies/Corporations/Trusts/Boards/ Authorities, etc. established under the Act of

Parliament; the Central Government is the Appropriate Authority.In all other cases, the Appropriate Government is the

State Government within whose territory the industrial dispute ariesSub-section (ii).


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(aa) Arbitrator- Arbitrator includes an umpire.(aaa) Average Pay - "Average Pay" means the average of the

wages payable to a workmen, Average pay in the case of workmenmeans:

(i) In the Case of monthly paid workman- The average of monthly

wages payable in three complete calendar months.(ii) In the case of weekly paid workman - the average of the weeklywages payable in four complete weeks.

(iii) In the case of daily paid workman - the average of the wages fortwelve full working days.

(b) Award - 'Award' means an interim or final determination of any'industrial

dispute or of any question relating thereto. The determination must bemade by any Labour Court, Industrial Tribunal or National Tribunal.Enforcement of an award - An award may be enforced in thefollowing ways:

(1) The aggrieved party may apply to Appropriate Government forprosecuting the defaulting party under Sec. 29 or 31 of this Act.(2) Where the work man 'isto claim money from the employer, theworkman may move the Appropriate Government for recovery of

the money due to him under the award.(3) The party in whose favour the award has been granted may file

a suit and obtain a decree, which shall be enforced extension underprovisions of the Civil Procedure Code.

Where the interim order did not determine any part of the industrial dispute orany other question relating there to, but only determined whether the IndustrialTribunal has been properly constituted to which the industrial dispute could be

referred for adjudication, such order cannot be said to be an award as defined inSec. 2(b)2(bb) Banking Company - 'Banking Company' means a banking company

as defined in Sec.5 of the Banking Companies Act, 1949. (c) Board - 'Board' means a Board of Conciliation constituted under thisAct.(cc) Closure - 'Closure' means the permanent closing down of a place of

employment or part thereof

Penalty for closure (Sec. 25R)

1. Any employer who close down an undertaking without complying withthe provisions of the Sub-Sec. (1) of Sec. 25-0 shall be punishable

with imprisonment up to 6 months, or with fine up to Rs. 5,000 orwith both.

2. Any employer, who contravenes a direction given under Sub-sec. (2)of Sec. 25-0 or Sec. 25-P, shall be punishable with imprisonmentup to one year, or with fine up to Rs. 2,000 for every day duringwhich the contravention continues after the conviction.

3. Any employer who contravenes the provisions of Sub Sec. 25-0 shallbe punishable with imprisonment up to one month, or with fine up


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to Rs. 1000 or with both.(d) Conciliation Officer - 'Conciliation Officer' means a conciliation

officer appointed under the Act. .(e) Conciliation Proceeding- 'Conciliation Proceeding' means any

proceeding held by a Conciliation Officer or Board under the Act.

(ee) Controlled Industry- "Controlled Industry" means any industry thecontrol of which, by the Union has been declared by any Central Actto the expedient in the public interest. That is, an industry which iscontrolled by the Central Government. But it must also be declaredby the Central Act to be controlled by the Union.

(f) Court - "Court" means a Court of Inquiry constituted under this Act. (g)(g) Employer- "Employer" means, in relation to industries carried onby or under the authority of (i) Central Government, (ii) StateGovernment, or (iii) Local Authorities.

(h) Executive - "Executive", in relation to a Trade Union means the bodyby whatever name called, to which by management of the affairs of

the Trade Union is entrusted.(i) Independent - Means, for the purpose of appointment of a person asChairman or other member of a Board, Court or Tribunal. In orderthat a person may be eligible for his appointment to these bodies,he must possess the following qualifications:

(i) . He must be unconnected with industrial dispute in question, or.(ii) He must be unconnected with any industry directly affected by

such dispute.(j) Industry- Industry means any business, trade, undertaking, manufacture

or any service, employment, handicraft or industrial occupation orvocation of workmen.

In a Case In Banglore Water.Supply v. A Rajappa 1 a bench of theSupreme Court consisting of seven judges exclusively considered the scope ofindustry and laid down the following test which has practically reiterated asunder:"Where there is (i) systematic activity, (ii) organised by co-operation betweenemployer and employee, (iii) for the production and/or distribution of goods andservices calculated to satisfy human wants and wishes, prima facie, these is an"Industry" in that enterprise." This is known as Triple Test.

The Following points were also emphasised in the said case:(1) Industry does not include spiritual or religious services or services geared to

celestial bliss, e.g. making on a large scale, "parsed" or food.

(2) Absence of profit motive or gainful objective is irrelevant but, be theventure in the public, joint, private or other sector.(3) The true focus is functional and the decisive test is the nature of theactivity with special emphasis on the employer-employee relations.

(4) If the organisation is a trade or business, it does not cease to be one becauseof philanthropy animating the undertaking.Therefore, the consequences of thedecision in this case are that professions, clubs, educational institutions, co-operatives research insthtions, charitable projects and other kind of adventures, if


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settlement or an award or for layoff or retrenchment, the workman himself orany other person authorised by him in writing in this behalf, or in the case of thedeath of the workman, his assignee or heirs may, without prejudice to any othermode of recovery, make an application, within one year from the date on whichthe money became due to the workman, to appropriate Government for the

recovery of money due to him, and if the appropriate Government is satisfiedthat any money is due to him, it shall issue a certificate for that amount to theCollector who shall proceed to recover the same in the same manner as anarrear of land revenue.

Penalty for layoff without permission (Sec. 25Q)

Any member who contravenes the provisions of Sec. 25M shall bepunishable with imprisonment for a term which may extend to one month, or withfine which may extend to Rs. 1000, or with both.

(I) Lock out - Means the closing of a place of employment, or the

suspension of work, or the refusal by an employer to continue toemploy any number of persons employed by him.While strike is a weapon in the hands of the labour to force the

management to accept their demands, lockout is a weapon in thehands of the management to coerce the labour to come down in

their demand srelating to the conditions of employment.Lockouts has been described by the Supreme Court as theantithesis of strike.1

Difference between lockout and lay-off:

(1) Lockout is an act on the part of the employer to pressurise the labour;while layoff is for trade reasons, beyond the control of the employer;

i.e., it is not intentional act.(2) Lockout is exercised due to an industrial dispute and continues during

the period of dispute; layoff is not necessiorily concerned withdispute with workmen.

Difference between lock-out and retrenchment:

(1) Temporary or permanent: Lockout is temporary measure, whileretrenchment is permanent.

(2) Relationship: In lockout the relationship of employer and employee isonly suspended; it does not come to an end. In retrenchment such arelationship is severed at the instance of the employer.

(3) Motive: Lockout is with a motive to coerce the workmen; the intention

of retrenchment is to dispense with surplus labour.(4) Trade dispute: Lockout is due to an industrial dispute, whereas in

case of retrenchment, there is no such dispute


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Difference between lock-out and closure

(1) Temporary/Permanent: Lockout is temporary measure, whereas

closure is permanent. .

(2) Weapon of coercion: Lockout is a weapon of coercion in the hands of

employer; while closure is generally made for trade reasons.(3) Trade Dispute: Lockout is declared during an industrial dispute, whilein case of closure, there need not be any dispute.

(Ia) Major Port: Means a port as defined in clause 8 of Sec. 3 of the IndianPort Act. 1903; which reads as follows:

"Any port which the Central Government may by notification in officialGazette declare or may by any law for the time being in force, havedeclared to be a major port".

(I b) Mine: Means a mine as defined in clause (j) of sub-section (1) of Sec. 2 ofthe Mines Act, 1952, Which reads as under:"Mine means any excavation where any operation for the purpose of

searching for or obtaining minerals has been, or is being carried on, andincludes, (unless exempted by the Central Government by notification inthe official Gazette) any premises or part thereof, on which any processancillary to the getting, dressing or preparation for sale of mineral or ofcoke is being carried on :"

(II) National Tribunal: Means a National Tribunal constituted under Sec. 78 ofthe Act.

(III) Office Bearer: In relation to a Trade union, it includes any member of theexecutive thereof, but does not include on auditor. (m) Prescribed: Meansprescribed by rules made under this act. (n) Public utility services: The followingare public utility services as laid down by the Act :

(i) any railway service;(ii) any transport service for the carriage of passengers or goods by

air;(iii) any service in or in connection with the working of any major port

or dock;(iv) any section of an industrial establishment, on the working of

whichthe safety of the establishment or the workmen employed therein

. depends;

(v) any postal, telegraph or telephone service;(vi) any industry which supplies power, light or water to the public;

(vii) any system of public conservancy or sanitation.(viii) any industry specified in the First Schedule which theappropriate

Government may, if satisfied that public emergency or publicinterest so requires, by notification in the Official Gazettedeclare to be a public utility service for the purpose of thisAct, for such period as may be specified in the notification.

(0) Railway company - Means a Railway Company as defined in Sec.8 of the


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Indian Railway Act, 1890. Sec 3(5) of the Indian Railways Act states,"Railway Company" includes any person whether incorporated or notwho are owners or lessees of a railway or parties to any agreement forworking a railway."Sec. 3(4) of the Indian Railways Act defines the term"Railway" as. "Railway means a railway, or any portion of a railway, for

the public carriage of passengers, animals or goods. and includes:(a) all lines of rails, or branches worked over the purpose of or inconnection with a railway.(b) all stations, Offices, Workhouses, Wherever, workshops, Fixed plantand machinery and other works constructed in connection with a railway,

and(c) all ferries, ships, boats and rafts which are used in inland waters for thepurpose of traffic of railway and belong to or are hired or worked bythe authority administering the railways." .

(00) Retrenchment - Means the discharge of surplus labour or staff by theemployer

for any reason What-so-ever.'The term "retrenchment" defines under the section 2(00) may be analysedas:

(1) Retrenchment means the termination by the employer of the servicesof a workman.

(2) The termination may be for any reason what so ever.(3) But the termination should not be as a measure. of punishment by wayof disciplinary action.

Conditions of retrenchment:

According to Sec. 25F of the Act no workman employed in any industrywho has been in continuous service for not less than one year under an

employer shall beretrenched by the employer until: .

(a) the workman has been given one month's notice in writing indicatingthe reasons for retrenchment, or the workman has been paid in lieuof such notice, wages for the period of notice;

(b) the workman has been paid, at the time of retrenchment,compensation which shall be equivalent to 15 days average pay forevery completedyear of continuous service or any part thereof, in excess of 6months, and

(c) notice in the prescribed manner is served on the appropriate

Government or such authority as may be specified by theappropriate Government by notification in the Official Gazette.

Re-employment of retrenched workmen

According to Sec. 25H of the Act, where any workmen are retrenched andthe employer proposes to employ any persons, be shall, in such manner as maybe prescribed, give an opportunity to retrenched workmen who are citizens ofIndia offer themselves for the re-employment, and the retrenched workmen who


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offer themselves for re-employment, shall have preference over others. But thissection cannot be applied retrospectively [Case: R,S Ramdayal v. LabourAppellate Tribunal (Sec. 567) -1964].

The following cases are not retrenchment

(a) Voluntary retirement of a workman, or(b) retirement of a workman on reaching the age of superannuation if the

contract of employment between the employer and the workmanconcerned contains a stipulation in that behalf; or

(bb) Termination of the service of a workman as a result of the non-renewal of the cortract of employment between the employer andthe workman concerned on its expiry or of such contract beingterminated.

Difference between retrenchment and closure

(1) Retrenchment affects only some of the workman, whereas closure

affects all workman.(2) In retrenchment the trade or business remains uninterrupted as it

continues; while in closure the business itself is discontinued.(q) Strike - Strike means (1) cessation of work by a body of personsemployed in any industry acting in combination, or (2) a concertedrefusal of any number of persons who are or have been employed inany industry to continue to work or to accept employment; or (3) torefusal under a common understanding of any number of personswho are or have been employed in industry to continue to work or toaccept employment.

Features of strike

(1) It is the stoppage of work by a body of workmen acting in concert witha view to bring pressure upon the employer to concede to theirdemands.

(2) The workmen must be employed in any industry.(3) More cessation of work does not come within the preview of strike,

unless it can be shown that such cessation of work was a concertedaction for the enforcement of an industrial demand1.

Kinds of strike

These are three kinds of strikes, namely: (1) General strike, (2) Stay-in-strike,

and (3) Go slow strike.

(1) General strike:A general strike is one, where the workmen join togetherfor common cause and stay away from work, depriving the employer of

their labour needed to run the factory.

(2) Stay-in-strike: A stay-in-strike is also known as "total-dawn-strike" or

'pen-dawn-strike". It is the form of strike where the workmen report to

their duties, occupy the premises, but do not work. The employer is

thus prevented from employing other labour to carryon his business.

(3) Go-slow strike:In a 'Go Slow' strike, the .workmen do not stay away


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from work, they do come to their work and work also, but with a slow speed in

order to lower down production, and thereby cause loss to the employer.

In addition to these three forms of strike a few more may be cited,

although some of them are not strike within the meaning of Sub-

Section 2(q). Such forms are:

(i) Sympathetic strike: A sympathetic strike is resorted to in sympathyof other striking workmen. Its aim is to encourage or to extend

moral support to or indirectly to aid the striking workmen. The

sympathisers resorting to such strike have no demand of grievance

of their own.

(ii) Hunger strike:In hunger strike, 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.

(iii) Work to rule : The employers in this case of "work to rule" strictly

adhere to rules while performing their duties which ordinarily they

do not observe. This causes the slowing down the tempo of work.

It is not a strike because there is no stoppage of work at all.

(qq) Trade Union:Means a trade union registered under the Trade Union

Act, 1926.

(r) Tribunal:Tribunal means an Industrial Tribunal constituted under Sec.

7 -A of the Act. It also includes an Industrial Tribunal constituted

before 10th March, 1957 under this Act. (ra) Unfair labour practice: It means any of the practices specified in the

Fifth Schedule.. (rb) Village Industries: It has the meaning assigned to it in clause (h) of

Sec.2 of the Khadi and Village Industries Commission Act, 1956.(rr) Wages: It means all remuneration capable of being expressed in

terms of money, which would, if the terms of payment, expressed orimplied were fulfilled, be payable to a workman in respect of hisemployment or of work done in such employment. Wages alsoincludes(i) dearness allowance as the workmen is for the time beingentitled to; (ii) the value of any house accommodation, or of thesupply of light, water, medical benefits or any concessional, supplyof food grains or other articles; (iii) any travelling concession; (iv)any commission payable on sales promotion or business, or both.However, the following are not wages:- (a) any bonus; (b) anycontribution paid or payable by the employer to any pension fund orprovident fund., (c) any gratuity payable on the termination ofservice of workman.

(s) Workman: 'Workman" means any person (including an apprentice)employed in any industry to do any manual, unskilled, skilled,technical, operational, clerical or supervisory work for hire orreward, whether the terms of employment be express or implied,.and for the purpose of any proceeding under this Act. ."Workman" does not include any such person - (i) who is subject to


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the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act,1957, or (ii) who is employed in the Police Service or as an officeror other employee of a prison, or (iii) who is employed mainly in amanagerial or administrative capacity, or (iv) who, being employedin a supervisory

capacity, draws wages exceeding Rs. 1600/- per mensem, orexercises functions mainly of management nature.

Difference between workman and independent contractor:

(1) For any person to be a workman, it is necessary that he should be inthe employment of an employer. Merely a contract to do some workis not enough to be called as worker.

(2) Relationship of master and servant must be implied in the term of"employed" as a workman. In the absence of such a relationshiponecannot be admitted or established as a workman.

Authorities under the ACT

Power and DutiesThe adjudication of industrial disputes has been kept out of the jurisdiction

of Municipal Courts at the first instance so that effort may be made for settlementof such disputes through some other agencies. The various modes of settlementof industrial disputes provided by the Act. may be classified under three heads:(1) Conciliation (2) Adjudication and (3) Arbitration

Authorities make use of conciliation

The authorities that make use of conciliation on the sole method ofsettlement of disputes are:

(1) Works Committee

. (2) Conciliation Officer(3) Board of ConciliationThe adjudicating authorities that decide any dispute under the Act.are:(1) Court of Inquiry(2) The Labour Court(3) Industrial Tribunal;(4) National Tribunal, andSec. 10-A of the Act. makes provision for voluntary reference of disputes

to arbitration. Apart from the above, provision has also been made forconstitution of Court of Inquiry, whose main function is inquire into any matter

appearing to be connected with or relevant to an industrial dispute1. Work committee (Sec.3)

The works committee is considered to be powerful social institution only tosecure cooperation between workers and employers, but to make the will of theemployees effective on the management. According to sec.3 of the IndustrialDisputes Act, 194"1, in the case of an industrial establishment in which 100 ormore workmen are employed or have been employed oh any day in thepreceding 12 months, the appropriate Government may, by general or special


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order, require the employer to constitute a Works committee consisting ofrepresentatives of employers and workmen engaged in the establishment. Thenumber of representatives of workmen on Works Committee shall be not beingless than that of the representatives of the employers.The representatives of the workmen shall be chosen from among the workmen in

consultation with their trade union, if any registered under the Indian Trade UnionAct.1926. .The duties of the Works Committee are to promote measures for securing

and preserving amity and good relations between the employers and workmenand to comment upon matters of their interest or concern and to endeavour tocompose any material difference of opinion in respect of matters of commonintents or concern of employers and workmen.

2. Conciliation Officers (Sec.4)

The appropriate Government may by notification in the official gazette,interest appoint conciliation officers for any specified area or for one or morespecified industries, either permanently or for a limited period of time.

Conciliation officers are charged with the duty of holding conciliatoryproceedings for the purpose of bringing about a fair and amicable settlement ofany industrial dispute. The jurisdiction, powers and other matters in respect ofthe Conciliation Officer ~hall be published in the GazettePowers of Conciliation Officer: According to Sec.11 of the Act, conciliationofficer may, for the purpose of inquiry into any existing or apprehended industrialdispute, after giving reasonable notice, enter the premises occupied by anyestablishment which the dispute relates. He may call for and inspect anydocument which he has ground for considering to be relevant to the industrialdispute or be necessary for the purpose of verifying the implementation of anyaward or carrying out any duty imposed on him under the Act. and for the

aforesaid purposes. He will have the same powers as one vested in a Civil Court,in respect of compelling the production of documents.

Under Sec 11(6), Conciliation Officers are members of Board or Courtand the Presiding Officer of Labour Court Tribunal or National Tribunal shall bedeemed to be public servants within the meaning of Sec.21 of IPC.

Duties of Conciliation Officers (sec.12):

For the purpose of bringing about fair and amicable settlement of anindustrial dispute, the Conciliation Officer is required to discharge the followingduties- .

(1) where any industrial dispute exists or is apprehended, the

Conciliation Officer, shall hold conciliation proceedings. He willinterview both the workmen concerned with the dispute andendeavour to bring about a settlement.

(2) The conciliation Officer shall, for the purpose of bringing about asettlement of the dispute, investigate the dispute and all mattersaffecting the merits and the right settlement thereof and may do allsuch things as he thinks fit for the purpose of inducing the partiesto come to a fair


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and amicable settlement of the dispute. .(3) If a settlement of the dispute or of any of the matters in dispute is

arrived at in the course of the conciliation proceedings, theConciliation Officer shall send a report thereof to the settlementsinged by the parties

to dispute. .(4) If no such settlement is arrived at, the Conciliation Officer shall, assoon as practicable after the close of the investigation, send to theappropriate Government a full report setting forth the steps takenby him for ascertaining the facts and circumstances relating to thedispute and for bringing about a settlement thereof, together with afull statementof such facts and circumstances, and the reasons on account ofwhich, in his opinion, a settlement could not be arrived at.

(5) The report must be submitted within 14 days of the commencementof the conciliation proceedings or within such shorter period asmay be fixed by the appropriate Government: provided that,subject to the approval of the Conciliation Officer, the time for thesubmission of the report may be extended by such period as maybe agreed upon in writing by all the parties to the dispute.

(6). If, on a consideration of the report in respect of failure of settlement,the appropriate Government is satisfied that there is a case forreference to Board, Labour Court, Tribunal or National Tribunal, itmay make such reference. Where the Government does not makesuch a reference, it shall record and communicate to the partiesconcerned it's reasons thereof

3 Board of Conciliation (Sec.5)

The appropriate Govt. may as occasion arises by notification in the in theOfficial Gazette constitute a Board of Conciliation for promoting the settlementof an industrial dispute. A Board shall consist of a Chairman and two or four othermembers, as the appropriate Government thinks fit. The Chairman shall be anindependent person and shall be appointed on the recommendation of the partythey represent. The quorum for a meeting is two where the total number is three,and three where the number is five. A Board, having a quorum, may act notwithstanding the absence of the chairman or any of its members, or any vacancyin it's number. But; if the Government informs the board that the services of theChairman or any other member have ceased to be available, the board must notact until a new Chairman or member has been appointed.

Powers of Conciliation OfficerConciliation Officer has all powers of a Civil Court when trying a suit in respect

Duties of Conciliation Officer (Sec.13)

Conciliation Officer has to endeavour to bring about a settlement of adispute referred to him and to do anything to induce the parties to come to a fairand amicable settlement. Where a settlement is reached a similar report and amemorandum of settlement have to be submitted to the appropriate


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Government. But in case of failure, apart from furnishing all the details asrequired in the case of a report, by a Conciliation Officer, he is also required tosubmit his recommendations for tha determination of the dispute. The time limitprescribed for submission of such reports is 2 months of the date on which thedispute was referred to him or within such shorter period as may be fixed by the

appropriate Government or all the parties to the dispute may, however, furtherextend the period by agreement in writing. Where a dispute, in which the Boardhas failed to bring about a settlement, relates to a public utility service and theGovernment does not refer it to a Labour Court, Tribunal or National Tribunal, hemust inform the parties concerned the reasons for not doing so.

Courts of Inquiry (Sec.G)

The appropriate Government may, as occasion arises, by notification inthe official Gazette, constitute a Court of Inquiry for inquiring into any matterappearingto be connected with or relevant to an industrial dispute. Such a Court mayconsist of one or more independent persons, as the Government may appoint.Where it consists of more than one member, one of them shall be appointed asChairman. The Court having the prescribed quorum may act even if theChairman or a member is absent; but not if the services of the Chairman haveceased to be available, and on other Chairman has beer' appointed. The Courtshall inquire into the matters referred to it and report thereon to the appropriateGovernment within 6 months from the date of commencement of the inquiry.

Members of Court of Inquiry shall deemed to be public servants within themeaning of Sec. 21 of IPC. The Court of Inquiry, if it so thinks fit, appoint one ormore persons having special knowledge of the matter under consideration asassessor or assessors to advise it In the proceeding before it.

On a perusal of the relevant Sections 22, 23 and 33 of the Act. relating tothe Court during the pendency of a proceeding before a Court of Inquiry, thefollowing right remain unaffected, such as:

(i) The right of a workman to go on strike(ii) The right of an employer to lookout his business. and(iii) The right of the employer to dismiss or otherwise to punish theworkman in certain cases under Sec.33

Duties ofCourts ofInquiry (Sec. 14)

The Court of Inquiry of shall inquire into the matters referred to it and thereport of Inquiry thereon be presented before the appropriate Government;

ordinarily within a period of 6 months from the commencement of inquiry.

The report of the Court of Inquiry shall be in writing and be signed by allthe members of the Court, provided that a member may record a minutes ofdissent also. Labour Court

The appropriate Government may, by notification in the Official Gazette,constitute one or more Labour Courts for the adjudication of industrial disputesrelating to any of the following matters or for performing such other function asmay be assigned to them under the Act. The functions of the Labour Court asprovided in the


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. Act. are:

(i) Adjudication of industrial disputes relating to any matter specified in theSecond Schedule

(ii) Performing of such other functions as may be assigned to themunder this Act. 1 he following matters are specified in the Second

Schedule, namely(i) The propriety or legality of an order passed by an employer underStanding Orders; .

(ii) The application and interpretation of Standing Orders;(iii) discharge or dismissal of workman including re-instatement of, orgrant of relief to; workmen wrongfully dismissed;(iv) withdrawal of any customary concession or privilege;(v) illegality or otherwise of a strike or lockout; and(vi) all matters other then those specified in the Third Schedule.

. According to sec.? (2) a Labour Court shall consist of one person onlywho shall be appointed by the appropriate Government. But no person shall be

appointed as Presiding Officer of a Labour Court, unless (a) he is, or has beena judge of a High Court; or (b) he has for a period not less then 3 years been aDistrict Judge; or (c) he has held the office of the Chairman of any othermember of any tribunal, for a period of not less then two years; or (e) he hasbeen the presiding Officer of a Labour Court constituted under any provincialAct for not less than five years.

Powers of the Labour Court (Sec. 11)

Powers of the Labour Court to give appropriate relief in case of discharge ordismissal of workman are as under.

(1) Subject to any rule that may be made in this behalf, the labour Court

may follow such procedure that it may think fit.(2) The Presiding Officer of the Court may, for the purpose ofinquiry into any existing or apprehended dispute, enter into thepremises occupied by any establishment to which the disputerelates.

(3) The Labour Court shall have all the powers as are vested to a CivilCourt.

(4) If it thinks fit, appoint one or more persons, having special knowledge.of the matter under consideration, as an assessor to advise it in theproceedings before it.

Duties of Labour Court (Sec. 15)

Where an industrial dispute has been referred to Labour-Court, foradjudication, it shall hold its adjudication expeditiously and shall, submit itsaward to the appropriate Government. The award of Labour Court shall be inwriting and be signed by its Presiding Officer (Sec.16)

Every award of Labour Court, shall within a period of 30 days from thedate of its receipt by the appropriate Government, be published by if in theofficial Gazette. The award published by the. appropriate Government shall befinal and binding on the parties to dispute. Sec.17 -A provides that an award


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(including arbitration award) shall become enforceable on the expiry of 30 daysfrom the date of its publication under Sec. 17. The award shall not becomeenforceable on the expiry of 30 days:. (a) if the appropriate Government is of opinion, in any case where the

award has been given by a Labour Court or Tribunal in relation to

an industrial dispute to which it is a party that it will be in expedientto give effect to the whole or any part of the award on publicgrounds effecting: .(i) national economy, (ii) social justice. .

(b) if the Central Government, in any case where the award has beengiven by a National Tribunal, on similar grounds in of the opinionthat it would be in expedient to give effect to the whole .or part ofthe award.

For the purpose of stopping the enforcement of any award, a notification inthe Official Gazette is necessary.

Industrial Tribunals (Sec. 7 A)

. Industrial Tribunals were created for it's first time by the Industrial DisputeAct.1947. Commenting upon the starts of these tribunal, the Supreme Courthas observed that tribunals under the Act. are invested with many trappings ofa Court; but do not have the same status as courts'. The Tribunal is the judicialbody or at any rate, a quasi-judicial body2.

The appropriate Government may by notification in the Official Gazette,constitute one or more industrial tribunals for the adjudication of industrialdispute s relating to any matters specified above as in the case of LabourCourt, or the followingmatters, namely

(1) Wages including the period and mode of payment(2) Compensatory and other allowances;(3) Hours of work and rest intervals;(4) Leave with wages and holidays;(5) Bonus, profit sharing, provident fund and gratuity;(6) Shift working otherwise than in accordance with standing orders;(7) Classification by grades;(8) Rules of discipline;(9) Rationalization;(10) Retrenchment of workmen and closure of establishment; and(11) Any other matter that may be prescribed.

A Tribunal shall consist of one person only to be appointed by the

appropriate Government. A person to be appointed as a Presiding Officer of aTribunal must .be, or must have been, a judge of a high Court; or if he has for aperiod of not less than three years, be a District Judge or on Additional District-Judge. Only experienced persons of high integrity can be appointed as ProvidingOfficer of the Tribunal. It is provided by Sec.7-A(4) that the AppropriateGovernment, if thinks fit, may appoint two persons as assessors to advise theTribunal in the proceedings before it.

Industrial Tribunals shall have the same power vested in a Civil Court


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when trying a suit, such as: (a) enforcing the attendance of any person andexamining him on oath, (b) compelling the production of document and materialobject, (c) issuing commissions for the examination of witness and any suchmatters as may be prescribed.. .

National Tribunals (Sec 78) .. .

The Central Government may, by notification in the Official Gazette,constitute one or more National Industrial Tribunals for the adjudication ofindustrial disputes which, in the opinion of the Central Government involvequestions of national importance or are of such a nature that industrialestablishments situated in more than one State are likely to be interested in, oraffected by, such disputes.

A National Tribunal shall consist of one person only to be appointed bythe Central Government. In order to be qualified as a Presiding Officer of aNational Tribunal, a person must be or must have been a Judge of a HighCourt, or must have held the office of the Chairman or any other member of the

Labour Appellate Tribunal for at least 2 years. The Central Government mayappoint two assessors to advise the National Tribunal, in proceeding before it..

Disqualifications for Presiding Officiers of Labour Courts, Tribunals AndNational Tribunals (Sec.7 - C).

No person shall be appointed to, or continue in the office of the PresidingOfficer of a Labour Court, Tribunal or National Tribunal if (a) he is not anindependent person or (b) he has attained the age of sixty five years.

Filling of Vacancies (Sec. 8)

If a vacancy occurs in the office of the Presiding Officer of a Labour

Court, Tribunal or National Tribunal, the appropriate Government shall appointanother person in accordance with the provisions of the Act. A vacancymay arise due to transfer resignation or acquisition of any disqualification asprovided in Sec. 7 -C of the Act.

Finality of orders constituting boards (Sec. 9)

The main object of enacting Sec. 9 of the Industrial Disputes Act is to makeimmune, any order of the appointment made under Sections 5 to 7 of the Act,from being called in question. Therefore, no question can be raised whether anappointment was legally and properly made or not. Sec. 9 (1) of the Act providesthat no order of the appropriate Government or of the Central Governmentappointing any person as the Chairman or any other member of the Board or

Court, or as the Presiding officer of a Labour Court, Tribunal or National Tribunalshall be called in question in any manner on the ground of merely of theexistence of any vacancy in, or defect in the constitution of such Board or Court.

Reference to grievance settlement authorities (Sec. 9-C)

A new Chapter II - B has been instead by Industrial Disputes(Amendment) Act, 1982 whereby a new Sec. 9 - C hasbeen added But thisChapter has not been enforced till now.


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According to Sec. 9 - C:

(1) The employer in relation to every industrial establishment in which 50 ormore workmen are employed or have been employed on any day in thepreceding 12 months shall provide for a grievance settlement authority forsettlement of industrial disputes with an individual workman employed in

the establishment in accordance with the rules made' in this behalf underthe Act.

.(2) Where an individual dispute connected with an individual workman arises inan establishment referred to in sub. sec. (1) a workman or any tradeunion cf workmen of which such workman is member, may refer in suchmanner as may be prescribed such dispute to Grievance SettlementAuthority provided for, by the employer, for settlement.

(3) The Grievance Settlement Authority shall follow such procedure andcomplete its proceedings within such period as may be prescribed.

(4) 'No reference shall be made under Chapter III with respect to any disputereferred to in this section unless such dispute has been referred to the

Grievance Settlement Authorities concerned and the decision of theGrievance Settlement Authority is not acceptable to any of the parities tothe dispute.

Powers of National Tribunals (Sec.11)1. Subject to any rules that may be made in this behalf, National Tribunal shall

follow such procedure as the arbitrator or other authority concerned maythink fit.

2. The presiding officer of National Tribunal may for the purpose of inquiry intoany existing or apprehended industrial dispute, after giving reasonablenotice, enter the premises occupied by any establishment to which the

dispute relates.3. Every national Tribunal shall have the same powers as are vested in only

experienced persons of high integrity can be appointed as presiding offerof the TribunaL It is. provided by Sec. 7 - A (4) that the AppropriateGovernment of it thinks fit may appoint two persons as assessors toadvise the Tribunal in the proceedings before It a Civil Court under CPC,1908 when trying a suit, in respect of the fo!!owing matters, viz.,-(a)enforcing the attendance of any person and examining him on oath; (b)compelling the production of document and material objects; (c) Issuedcommissions for the examination of witness; (d) in respect of such othermatters as may be prescribe: and every by a Board, Court, Labour Court,

Tribunal or National Tribunal shall be deemed to be a judicial proceedingwithin the meaning of Sec. 193 arid 228 of the Indian Penal Code.

(4) National Tribunal may, if it so thinks fit, appoint one or more persons havingspecial knowledge of the matter under consideration as assessor orassessors to advise it in the proceeding before it.

(5) All the Presiding Officers of a National Tribunal shall be deemed to be publicservants within the meaning of Sec. 21 of the Indian Penal Code.

(6) Subject to any rules made under this Act, the costs of, and incidental to, any


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proceeding before a National Tribunal shall be in the discretion of thatNational Tribunal, and shall have full power to determine by and to whomand to what extent and subject to what conditions, of any, such costs are.top be paid, and to give all necessary direction for the purpose aforesaidand such costs may, on application made to the .appropriate Government

by the person entitled, be recovered by the Government in the samemanner as an arrear of land revenue.(7) Every National Tribunal shall be deemed to be a Court for the purpose ofSec. 480, 482 and 484 of the Criminal Procedure Code, 1948.

Note: The procedure and power of different authorities laid down underSec. 11 of the Act, are equally applicable in the case of ConciliationOfficers / Board, Court of Inquiry, Labour Court, And Tribunals.

Persons on whom settlement and awards are binding (Sec. 18)

For this purpose, settlements are classified into two catagories, namely(i) Settlement arrived at otherwise than in the course of conciliation

proceedings, i.e. without the aid of statutory agency; and

(ii) settlement arrived at in the course of conciliation proceedings; Le. withthe aid of statutory agency.

In the first case, a settlement under Section 18(1) arrived at byagreement between the employer and workmen otherwise than in the course ofconciliation proceedings, shall be binding on the parties to the agreement. Butany such settlement; in order to be binding must be signed by the parties thereto in the manner prescribed by rule and a copy of it must also be sent theappropriate Government. .

In the second case Sec. 18 (2 and 3) provide that an arbitration awardwhich has become enforceable shall be binding on the parties to the agreementwho referred the disJ3ute to the arbitration. This section 18(3) provides that

(i) a settlement arrived at in the course of conciliation proceeding underthis Act.

(ii) an arbitration award in a case where a notification has been issuedunder sub section (3-A) of Sec. 10-A; or

(iii) an award of a Labour Court, Tribunal or National Tribunal which hasbecome enforceable shall binding on;(a) all parties to the in industrial dispute.(b) all other parties summoned to appear in the proceedings asparties to the. dispute,(c) where a party referred to is an employer, his heirs, successors or

assigns in respect of the establishment in which the dispute relates.(d) where a party referred to in clause (a) or (b) is composed of

workmen, all persons who were employed in the establishment orpart of the establishment, as the case may be, to which thedispute relates on the date of the dispute and all persons whosubsequently become employed in that establishment or partthere of.


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Certain matters to be kept confidential (Sec. 21)

This section of the Act. provides that certain matters are to be keptconfidential. Therefore, such things shall not be included in any report or awardmade under the Act. Any information obtained by a Conciliation Officer, Board,Court, Labour Court, Tribunal, National Tribunal or an Arbitrator in the course of

any investigation on inquiry, which relates to a Trade Union on any individualbusiness (whether carried on by a person, firm or company) which is notavailable otherwise than through the evidence given before any such authority,shall not be included in any report or award; if the parties concerned or inquestion has made a request in writing to treat such information as confidential.

REFERENCE OF DISPUTES TO BOARDS, COURTS OR TRIBUNALS

Section 10(1) of the Industrial Disputes Act.,1947 provides that where theappropriate Government is of the opinion that any industrial dispute exists orapprehended, it may, at any time:

(a) refer the dispute to a Board of conciliation for promoting a settlementthere of; or

(b) refer any matter appearing to be Connected with or relevant to thedispute to a Court for Inquiry; or

(c) refer the dispute or any matter appearing to be connected with, orrelevant to the dispute to a Labour Court for adjudication provided thedispute relates to any matter specified in the Second Schedule; or

(d) refer the dispute or any matter appearing to be connected with orrelevant to the dispute to a Tribunal for adjudication, where it relates toany matter specified in the Second or Third Schedule., provided that:

(i) where the dispute relates to any matter specified in the Third

Schedule and is not likely to effect more than 100 workmen;the appropriate Government may make the reference to aLabour Court.

(ii) where the dispute in relation to which the Central Government isthe appropriate Government, it shall be competent for theGovernment to refer the dispute to a Labour Court / Tribunalconstituted by the State Government

(iii) where the dispute relates to a public utility service and a noticeof strike or lockout under Sec. 22 has been the appropriateGovernment shall be competent to refer the dispute to aLabour Court or any Industrial Tribunal, Constituted by the

Government.Under Sec.1 0(1-A), the Central Government may refer any dispute to aNational tribunal for adjudication, if it is the opinion that:(i) any dispute exists or is appended; and

(ii) the dispute involves any question of national importance; or(iii) the dispute is of such nature that industrial establishment situated in

more than one State are likely to be interested in, or affected bysuch dispute; and


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(iv) the dispute should be adjudicated by National Tribunal (the referenceto National Tribunal shall be made by the Central Government only).

Sec.10(3) of the Act. provides that where an industrial dispute has beenreferred to Board, Labour Court, Tribunal or National Tribunal, under Sec. 10 ofthe Act, the appropriate Government may issue an order prohibiting the

continuance of any strike or lockout in connection with such dispute which maybe in existence on the date of reference.Sec.10(6) of the Act. provides that where any reference has been made

under sub-section (1-A) to a National Tribunal, then notwithstanding anythingcontained in this Act., no Labour Court or Tribunal shall have jurisdiction toadjudicate dicta upon any matter which is under adjudication before the NationalTribunal.

Sections 10 and 1 O-A are the alternative remedies to settle industrialdispute. Once the parties have chosen the remedy under Sec.1 O-A, theGovernment cannot refer the same dispute for adjudication under Sec. 10. If anysuch reference is made, it is invalid.1

Voluntary Reference of Disputes to Arbitration (Sec. 10-A)This section provides that where any industrial dispute exist or is

apprehended, the employer and the workman agree to refer the dispute toarbitration, they may refer the dispute to arbitration: Such referen


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STRIKES AND LOCKOUTS IN INDUSTRIAL UNITS

Strike is collective stoppage of work by workmen undertaken in order tobring pressure upon the employer. It is a spontaneous and concerted withdrawalof workmen from production. A strike in usually organized by common agreementon the part of the workers with a view to obtaining or resisting change to their

conditions of work.Lockout is a weapon in the hands of the employer; which is used to curb

the militant spirit of the workers. In Lock-out, an employer shuts down his placeof business as a result of reprisal, or 2S an instrument of coercion or as a modeof exerting pressure upon the employees with a view it dictate his own terms tothem.

Strikes and lockouts have now become important factors in the employer -employee relations.

Prohibition of strikes and lockouts (Sec. 22 and 23)

Sec.22 of the Industrial Disputes Act provides that:

(1) No person employed in a public utility service go on strike in breach ofcontract:(a) without giving notice of strike to the employer within six weeks

before striking, or(b) within 14 days of giving notice, or(c)before the expiry of the date of strike specified in any such

notice as aforesaid, or(d) during the pendency of any conciliation proceedings and 7 days

after the conclusion of such proceedings.(2) No employer on any public utility service shall lockout any of hisworkmen

(a) without giving them notice of lock-out as herein after providedwithin six weeks before locking out; or

(b) within 14 days of giving such notice; or(c) before the expiry of the date of lockout specified in any such

notice as aforesaid; or(d) during the pendency of any conciliation proceeding beforeConciliation Officer and seven days after the conclusion of suchproceedings.

However, notice of strike or lockout will not be necessary where there isalready in existence a strike or lockout in the public utility service. The employerin such a case must notify to concerned authority as may be appointed by the

appropriate Government, of the declaration of a strike or lockout. The notice ofstrike or lockout shall be given by such number of persons in the prescribedmanner [Sec.22(4&5)]

General provisions of strikes and lockouts:

Sec.23 of the Act provides that, "no workmen who is employed in anyindustrial establishment shall go on strike in breach of contract and on


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employer of any such workmen shall declare a lockout:(i) during the pendency of conciliation proceeding before a Board, and 7

days after its conclusion.(ii) during the pendency of proceeding before Labour Court, Tribunal or

National Tribunal, and 2 months after its conclusion.

(iii) during pendency of arbitration proceedings before an arbitratorandtwo months after completion of such proceedings, where a notificationhas been issued under Sub sec.(3-A) of Sec. 10-A; or(iv) during the period of which a settlement or award is in operation inrespect of the matters covered by such settlement or award.

Illegal strikes and Lockouts (Sec. 24)

Sec. 24 of the Act provides that a strike or a lockout shall be illegal if it is:(a) commenced or declared in contravention of Sec. 22 or 23, and(b) continued in contravention of the prohibitory order made byappropriate Government after the dispute has been referred under Sec.10(3) or sub-section( 4-A) of Sec.1 ()"A of the Act.

Prohibition of financial aid to illegal strikes and lockouts (Sec. 25)

This section of the Act prohibits financial aid to illegal. strikes andlockouts.

This section has the following ingradients: .(1) spending or applying money:(2) money spent or applied in direct furtherance or support of an illegal

strike,

Punishments (Sec. 28)

For any violation of provisions of Sec. 25, punishment is imposed by

Sec. 28 of the Act. According to the provision, even a person who is not aworkmen can be penalized violating the provisions of Sec. 25. The effect ofSections 25 and 28 is the prosecution to support a conviction for breach ofSec.25 must prove that:

. (i) the strike or lock-out in question was illegaL(ii) the accused had knowledge that

(a) the strike or lockout was iIIegal and(b) the money spent or applied by him was in direct furtherance or

support of a strike or lockout.(iii) that the money was actually spent or applied by the accused.However, assistance to strikers in any other from, for example, supplying

clothes, food, etc. is not prohibited under Sec. 25 of the Act.LAY-OFF AND RETRENCHMENT: COMPENSATION THERE OF

The Industrial Disputes Act, 1947, as originally enacted made no provision forthe payment of "Lay-Off" or "Retrenchment" compensation. Therefore, there

were no uniform rule that can be said to have observed by the adjudicatingbodies in the case of payment of compensation for "lay-off" or "retrenchment". In

order to overcome the situation, the President of India promulgated the IndustrialDisputes (Amendment) Ordinance in Oct., 1953 to the effect from 24th Oct.


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1953. The said Ordinance was repealed and replaced by the Industrial Disputes

(Amendment) Act, 1953 took effect from 23rd Dee ember 1953. According to thisamendment, Section 25-A to Section 25-J were added by this Amendment Act of

1953.According to Sec. 25A (application of Sections 25-C to 25E inclusive) shall

not apply to industrial establishment to which Chapter V-B applies, or :(a) to industrial establishment in which less than 50 workmen, on an average

per working day have been employed in the preceding calendar month,and

(b) to industrial establishment which are of a seasonal character or in whichwork is performed only intermittantly.Thus, where the exemption under Sec 25-A applies, the workmen are not

entitled to lay-off compensation and the Tribunal has no right to grant relief on

any fanciful notices of Social Justice.Sec 25 B of the Act defines continuous service. Sub-sec.2 defines

continuous service for a period of one year or a period of six months Clause (a)

of Sub-Section (2) provides that a workman. shall be deemed to have been incontinuous service for a year, if

1. he has been in employment for 12 calendar months; and

2. he actually worked for not less than(a) One hundred and ninety days in the case of a workmen

employed below ground in a mine; and(b) Two hundred and forty days in any other case.

The following conditions must be fulfilled by a workman to entitle him for acontinuous service of six months:(1) The workman has been in employment for a period of six calendar

months;

(2) Such workman has actually worked for not less than:(a) Ninety five days in the case of his being employed below ground

in mine, and(b) One-hundred and twenty days in any other case.

Rights of workman laid-Off for compensation (Sec.25-C)

This section of the Act entitles a workman to get compensation from the

employer for the period he is laid off. When the employer is unable to providework to his workmen for reasons beyond his control, he owns duty to pay lay-off

compensation to such workmen. For a workman to be eligible to claim lay-offcompensation, he must fulfil the following conditions:

(1) his name must be borne on the muster rolls of an industrialestablishment and

(2) he must have completed at least one year's continuous service (andefined in Sec. 25-B)

The above rule is subject to the following limitations:

(1) If a workman is laid off for more than 45 days during any period of 12

months, no compensation shall be payable in respect of any period


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of the lay-off after the expiry 45 days, provided these is anagreement between the workman and the employer to this effect.

(2) Where a workman is laid off for a period of 45 days during 12 months.the employer has a right to retrench such workman at any time afterthe expiry of 45 days of lay-off. When an employer decides to

retrench a workman he musf comply with the requirements ofSec.25F of the Act(as stated below)..

Workmen not entitled to Compensation in Certain Cases (Sec. 25-E)

This section of the Act provides that a laid off workman shall not be entitled tocompensation:

(1) If he refuses to accept alternative employment provided that suchalternative employment is offered in the same establishment or inany other establishment belonging to the same employer in thesame town or village within a radius of 5 miles from the

establishment he belongs.(2) If he does not present himself for work at the establishment at theappointed time during normal working hours at least once a day.

(3) If the lay-off is due to strike or slowing down of production on the partof workmen in another part of the same establishment.

Conditions precedent to retrenchment of workmen (Sec. 25 F)

This section lays down the requirements for a valid retrenchment of anemployed who has been in continuous service for not less than one year.

This section prescribes three conditions for a valid retrenchment; namely.(a) The workman should be given one months notice in writing indicating

the reasons for retrenchment. .(b) The workman has been paid, at the time of retrenchment,compensation equivalent to 15 days average pay for every completed year ofcontinuous service or any part thereof in excess of 6 months.

(c) Notice in the prescribed manner is served on the appropriateGovernment or such authority as may be specified by the appropriateGovernment by notification in the Official Gazette.

Compensation to workmen in case of transfer of undertakings (Sec. 25 FF)This section provides that in case of transfer of ownership or management of an

undertaking from one employer to another, every workman:

(a) shall, before such transfer entitled to notice, and

(b) shall also be entitled to compensation in accordance with provisions ofSec. 25-F, as if the workman had been retrenched.

In order to entitle a workman compensation under this section, the following

conditions must be simultaneously complied with:

(1)the service of the workman has not been interrupted by the transfer,

and

(2) terms and conditions of service to the workrnan, after such transfer, are

not in any way less favourable to the workman than those applicable


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immediately before the transfer.

Notice to be given of intention to close down any undertaking (Sec. 25FFA)

Any employer who intends to close down an undertaking shall serve, at

least 60 days before the date on which the intended closure is to becomeeffective, in a prescribed manner on the appropriate Government, stating thereinthat noting in this section shall apply to :

(a) an undertaking in which (i) less than 50 workmen are employed, or (ii)less than fifty workman were employed, on an average, per workingday in the preceding 12 months;

(b) an undertaking set-up for the construction of building, bridges,roads,

canals. dams or for other construction work or project.

Compensation to workmen in the case of closing down ofundertaking (Sec. 25-FFF)

The purpose of this section is to create a sense of security in a workmanthat if he sticks to his work, he will not be thrown away out of his employment incase of closing down of the undertakingProcedure for Retrenchment

The well recognised principle of retrenchment in industrial law is 'first comelast go' and 'last come first go'. This principle has been incorporated in Sec 25-Gof the Act. The protection provided under this section can be claimed by aworkman on fulfilment of the following conditions:

(1) The workman must be a workman within the meaning of Sec. 2(8) ofthe Act. (2) The workman should be an Indian Citizen.(3) The workman should be employed in an establishment which is an

industry within the meaning of Sec. 2(J) of the Act.(4) The workman should belong to a particular category of workmen in the

establishment; and(5) There should be no agreement contrary to the principle of 'first come

last go' between the employer and workman.

Re-employment of retrenched Workman (Sec. 25H)

According to this section, when a workman has been retrenched byemployer on the ground of surplus staff. such a workman should first be given anopportunity to join service whenever an occasion to employ another hand arises.In order to claim preference in employment under this section, a workman mustsatisfy thefollowing conditions:

(1) He should have been retrenched prior to re-employment.(2) He should be a citizen of India; and(3) He should have been retrenched from the same category of service.

Special provisions relating to lay-off, retrenchment and closure in

certain establishments:

By-an amendment made in the year 1978, a new Chapter V-B has been added


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to the Industrial Disputes Act (Sec. 25-K) .

The provision of this Chapter shall apply to an industrial establishment, not

being an establishment of a seasonal character

For the purpose of this chapter V-B, Sec. 25-L, defines (a) Industrialestablishment means:

(i) a factory as defined in clause (m) of Sec.2 of the Factories Act. 1948;(ii) a mine as defined in clause (j) of sub-section (1) of Sec.2 of the Mines

Act, 1952; or(iii) a plantation as defined in clause (f) of Sec.2 of the Plantations Labour

Act, 1951;

Prohibition of Lay-Off (Sec. 25-M)

No workman (other than a 'bad Ii' workman or a casual workman) whosename is borne on the muster rolls of an industrial establishment to which thisChapter V-B applies shall be laid off by employer except with the priorpermission of the appropriate Government or such authority as may be specified

by the Government by notification in official gazette (Sub.Sec.1).Where the workman of an industrial establishment being a mine, have

been laid off under sub-section (1) above, for reasons of fire, flood or excess ofinflammable gas or explosion, the employer in relation to such establishment,shall within a period of 30 days from the date of such lay-off apply in thepresented manner, to the Appropriate Government or the specified authority(Sub Sec. (3))

Where an application for permission under Sub. See (1) and (3) has beenmade to appropriate Government after making inquiry as it thinks fit and afterbeing heard to the employer, the workmen concerned and the person interestedin such lay off, grant or refuse to grant, permission. A copy of such order shall be

communicated to the employer and the workmen.Conditions precedent to retrenchment of Workmen (Sec. 25-N) :

No workman employed in any industrial establishment, who has been incontinuous service for not less than one year under an employer shall beretrenched by the employer, until the workman has been given three monthsnotice in writing indicating the reasons for retrenchment or the workman hasbeen paid wages in lien of notice period, if the period of notice has expired.

Procedure for closing down an undertaking (Sec. 25-0) :

An employer who intends to close down an undertaking of an industrialestablishment shall, in the prescribed manner, apply to the appropriate

Government for prior permission 90 days before the intended closure is tobecome effective, stating the reasons for the intended closure. A copy of suchapplication shall also be served on the representative of the workmen in theprescribed manner (Sub Sec. (1 )).

On receipt of application, the appropriate Government, makes inquiry as itthinks fit and after giving reasonable opportunity of being hard to the employer,the workman and the persons interested in such closure may grant or refuse togrant permission, and a copy of such order shall be served to the employer and


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the workmen.

Special Provisions as to Restarting of closed down undertaking(Before Commencement of the Industrial Disputes (Amendment) Act,1976, (Sec. 25-P)If the appropriate Government is of opinion in respect of any understanding of

an industrial establishment which was closed down before the commencementof Amendment Act, 1976

(a) that it was closed down otherwise than on account of unavoidablecircumstance beyond the control of the employers;

(b) that there are possibilities of restarting the undertaking;(c) that it is necessary for the rehabilitation of the workmen employed

before its closure or for the maintenance of supplies and servicesessential to the life of the community to restart the undertaking; or both;and (d) that the restarting of the undertaking will not result in hardship tothe employer in relation to the undertaking.

After it may after giving an opportunity to such employer and workmen,

the appropriate Government may direct by order published in official Gazettethat the undertaking shall be restarted within such time published in the officialGazette, (not being less than one month from the date of order) as may be

specified in the order.

Penalty for Lay-Off and Retrenchment with Previous Permission (Sec. 25-

Q)

Any employer who contravenes the provision of Sec. 25 M or Sec. 25 N, shall

be punishable with imprisonment for a term which may extend to one month, orwith fine which may extend to Rs. 1000/-, or with both.Penalty for Closure (Sec. 2 R)

Any employer who closes down an undertaking without complying withthe provisions of sub-section (1) of Sec. 25-0 shall be permissible withimprisonment for a term which may extend to six months, o(with fine which mayextend to Rs. 5000/ -, or with both.

Similarly, any employer who contravenes an order refusing to grant

permission to close down an undertaking under sub-section (2) of Sec. 25-0 or adirection given under Sec. 25-P, shall be permissible with imprisonment for aterm which may extend to Rs. 5000/-, or with both. Where the contraventioncontinuous further, with a further which may extend to Rs. 2000/- for every day

during the contravention continues after the conviction.No employer or workmen or a Trade Union, whether registered under Trade

Union's Act, 1926, or not, shall commit any unfair labour practice (Sec. 25-T)Any person who commits any unfair labour practice shall be punishable

with imprisonment for a term which may extend to six months or with fine whichmay extend to Rs. 1000/- or with both.


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UNFAIR LABOUR PRACTICES

No employer or workmen or a Trade Union, whether registered under TradeUnion's Act, 1926, or not, shall commit any unfair labour practice (Sec. 25-T)

Any person who commits any unfair labour practice shall be punishable

with imprisonment for a term which may extend to six months or with fine whichmay extend to Rs. 1000/- or with both.

Unfair labour practices on the Part of Employers and Trade Unions of

Employers (as per New Schedule V added with Industrial Disputes(Amendment) Act, 1982).

As defined in Schedule V, unfair trade practices are:1. To interfere with, restrain from, or coerce, workmen in the exercise of

their rights to organise from, join or assist a trade union or to engagein concerted activities for the purposes of collective bargaining or

other mutual aid or protection, that is to say


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10. To recruit workmen during a strike which is not an illegal strike.11. Failure to implement award, settlement or agreement.12. To indulge in acts of force or violence.13. To refuse to bargain collectively in good faith with the recognisedtrade unions.

Unfair labour Practices on the part of Workmen and Trade Unions ofWorkmen (as per New Schedule V added with Industrial Disputes(Amendment) Act, 1982.

They include the following:1. To advise or actively support or instigate any strike deemed to be illegal

under this Act.2. To coerce workmen in the exercise of their right to self-organisation or

to join a trade union or restrain from joining any trade union, such as:

(a) for a trade union or its members to picketing in such a mannerthat non-striking workmen are physically debarred from entering

the work places;(b) to indulge in acts of force or violence or to hold out threats ofintimidation in connection with a strike against non-strikingworkmen or against managerial staff.

3. For a recognised union to refuse to bargain in good faith ..vith theemployer.

4. To indulge in coercive activities against certification of a bargainingrepresentative.

5. To stage demonstrations at the residence of the employers or themanagerial staff members.

6. To incite or indulge in wilful damage to employer's property connected

with the industry, etc.Victimization

Victimization means one of two things. One is when the workmenconcerned is innocent and yet he is punished because he has in some waydispleased the employer. For example, by being an active member of the unionof workmen who were acting prejudicially to the interests of the employer1. Thesecond instance is where an employee has committed an offence but is given apunishment quite out of prosportion to the gravity of the offence, simplybecause he has incurred the displeasure of the employer, or where thepunishment is shockingly disproportion to the misconduct.

PENALTIES AND MISCELLANEOUS PROVISIONSPenalty for illegal strikes and lockouts (Sec. 26)

This section prescribes penalty imposed on any workman who continues orotherwise acts in furtherance of a strike which is illegal under this Act. Anyworkman found guilty of participating in an illegal strike shall be punishable withimprisonment for a term which may extend to one month orwith a maximum fine


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of 50/-, or with both..In the case of employer, sub section (2) of Sec. 26 provides that the

employer shall be punishable with imprisonment extending to one month or witha maximum fine of Rs. 1000/-, or with both, if:

(1) such employer commences, continues or otherwise; acts in

furtheranceof lock-out; and(2) such lock-out is illegal under the Act.

Penalty for instigation, etc.(Sec. 27):

This section makes the following acts punishable:(1) Instigation or incitement to others to take part in an illegal strike or

lockout;(2) Otherwise acting in furtherance of a strike or lockout which is illegal

under the Act.Any person, other then employer and workmen, who has no personal

interest in a dispute, instigate or inciting of an illegal strike or lockout is more

severely punishable under the Act. There must be something tangible inevidence to show that the persons are responsible for instigating or inciting thestrike.

Penalty for giving Financial Aid to illegal strike and lockout (Sec. 28)

Any person who knowingly extends or applies any money in directfurtherance or support of any illegal strike shall be punishable under thissection. Punishment may extend to six months imprisonment, or Rs. 1000/- asfine, or with both.

Penalty for breach of settlement of award (Sec. 29)

In order to be penalised a person under this section, the following factsmustbe proved:

(1) An award or settlement was in operation at the time of breach;(2) Such award or settlement must be valid,(3)The award or settlement must be binding on the accused,(4)The accused must be responsible for committing breach of such award orsettlement.(5) The appropriate Government must have made complaint regarding thebreach.

If these requirements are cumulatively fulfilled the accused shall bepunishable with imprisonment extending to 6 months or with fine or with both. Ifthe breach is continuing a further fine which may extend to two hundred rupees

for every day during which the breach continues after the conviction for the firstbreach.

Penalty for disclosing confidential Information (Sec. 30)

Any person who discloses any information in contravention of Sec. 21(confidential matters) shall be penalised under Sec. 30 of the Act. Punishmentprovided is imprisonment extending to 6 months or fine upto Rs. 1000/-, or withboth. For valid exercise of power under this section, the following conditions must


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be satisfied:(1) A complaint must have been made by or on behalf of (a) the TradeUnion, or (b) the individual members affected. (2) Complaint should bemade to the appropriate Government. (3) It should be against any personwho wilfully disclose any such information and the disclosure must be in

contravention of the provisions of Sec.21.Penalty for closure without notice (Sec.3D-A)

Any employer who closes down any undertaking without complying withprovisions of Sec. 25 FFA shall be punishable with imprisonment for a termwhich may extend to six months or with fine, which may extend to Rs. 5000/-, orwith both.

Penalty for other offences (Sec. 31)

This section provides that at any employer who contravene the provisionsof Sec. 33 shall be punishable with imprisonment for a term which may extend tosix months or with fine which may extend to Rs. 1000/-, or with both (sub. Sec.1)

A Criminal Court has jurisdiction to try any employer for violation of Sec.33 these two sections 31 and 33 are intended to protect the right of workmenpending industrial dispute and for that purpose the employer is prohibited fromdoing anything to the prejudice of workmen without express permission orapproval of the authorities before whom a reference is pending. .

(Sec.33 ensures against victimization of workmen by theemployer).

Offence by companies etc. (sec.32).

This section provides that where a person committing an offence underthis Act. is a company, or other body corporate or an association of persons

(whether incorporated or not) every director manager, secretary, agent or otherofficer or person concerned with management thereof shall, that the offence wascommitted without his knowledge or consent, be deemed to be guilty of suchoffence.

Conditions of service, etc. to remain unchanged (Sec. 33)

The purpose of this section is to maintain status quo during the pendingof certain proceeding under this Act. This section applies during the pendencyof the following proceedings:

(a) conciliation proceedings before a Conciliation Officer or Board.(b) any proceeding before an Arbitrator; and(c) any proceeding before Labour Court, Tribunal or National Tribunal.

Sec. 33(3)'of the Act deals with the right of protected workman. Theemployer shall not take the following action against a "protected workman" inregard to any matter connected with the pending dispute:

Special provision for adjudication as to whether conditions of service etc.changed during the pendency of proceedings (Sec.33-A).

Where an employer contravenes the provisions of Sec. 33 du ring thependency of proceedings before a Conciliation Officer, Board, an


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Arbitrator, a Labour Court, Tribunal or National Tribunal, an employeeaggrieved by such contravention may make compliant in writing, in theprescribed manner, to such authority before it the matter is pending,The object of Sec. 33 and 33-A is to protect workmen against

victimization by the employer.

Recovery of money due from an employer (Sec. 33-C)This section deals with the proceeding for recovery of money due to a

workman from an employer under a settlement or an award or under theprovisions of Chapter VA or VB

The application for recovery of money due may be made to theappropriate Government. If the Government is satisfied that the claim ingenuine it shall issue a certificate for that amount to the District Collector, whoshall recover the amount, as shown in the recovery certificate as an of landrevenue.

Every application for recovery shall be made within one year from thedate on which the money becomes due to the workman from the employer.

However, the appropriate Government may consider the application which waspresented even after one year if it is satisfied that the applicant had sufficientreason for not making the application within the period of one year.

Cognizance of offences (Sec. 34).

This section provides that a Court shall take cognizance of any offencepunishable under this Act or of the abatement of any such offence, if acompliant to that effect is made either:

(i) by the appropriate Government, or(ii) under the authority of the appropriate Government. [sub sec. (1)]Sub section (2), provides that any Court inferior to the Court of

MetropolitanMagistrate or a Judicial Magistrate of tha first class shall not try any offencepunishable under this Act.

Protection of persons (Sec. 35).

No person refusing to take part or to continue to take part in any strike orlockout which is illegal under the Act shall, by reason of such refusal or byreason of any action taken by him under this section, be subject to expulsionfrom any trade or society, or to any fine or penalty, or to deprivation of anyright or benefit to which he or his legal representatives would otherwise beentitled, either directly or indirectly,

. under any disability or at any disadvantage as compared with other membersof the Union or Society, anything to the contrary in the rules of a trade union orsociety notwithstanding.

This section further provides that nothing ill the rules of a Trade Union orSociety requiring the settlement of disputes shall apply to any proceeding forenforcing any right or exemption secured by this section and in any suchproceeding, the Civil Court may, in lieu ordering a person who has beenexpelled from membership of a Trade Union or Society to be restored to


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membership, order that he be paid out of the Trade Union funds such sum byway of compensation or damages as that Court thinks fit.

Representation of parties (Sec. 36)

According to sub section (1), a workman who is a party to a dispute shall beentitled to be represented in any proceeding under this Act by:

(a) any member of the executive or other office bearer of a registered TradeUnion of which he is a member;

(b) any member of the executive or officer bearer of a Federation of TradeUnion to which the Trade Union is affiliated;

(c) where the workman is not a member of any Trade Union, by any memberof executive or other office bearer of any Trade Union connected with it

or by any workman employed in, or the industry in which the worker isemployed and authorized in such manner as may be prescribed.

In the opinion of the appropriate Government, any difficulty or doubtarises as to interpretation of any provision of the award, or settlement, it mayrefer the matter to such Labour Court / Tribunal/National Tribunal; as it maythink fit (Sec 36-A).

The decision of the Labour Court ITribunal1 National Tribunal shall befinal and binding on all the parties.Power to exempt from the provisions of the Act (Sec 36-B) Para Where theappropriate Government is satisfied in relation to any industrial establishment orundertaking carried on by a department of the Government that adequateprovisions exist for the investigations and settlement of industrial disputes; suchclass of establishments or undertaking, it may, by notification in the officialGazette, exempt, conditionally or unconditionally such establishments, orundertakings from all or any of the provisions of this Act.

Protection of action taken under the Act (Sec. 37)No suit, prosecution or other legal proceeding shall exist against any

person for anything done in good faith or intended to be done in pursuance ofthis Act, or any rule made there under.

Power to make rules (Sec. 38)

The appropriate Government may make rules for the purpose of givingeffect to the provisions of this Act. Such rules may provide for all or any of thefollowing matters; namely

(a) the powers and procedure of Conciliation Officers, Boards, Court,Labour Courts, Tribunals or National Tribunal, including rules as to

the summoningof witness, the production of document concerned.(aa) the form of arbitration agreement.(aaa) the appointment of assessors in proceeding under this Act,(ab) the constitution of Grievance Settlement Authorities.(b) the constitution and functions of, and the filling of vacancies in Works

Committees, and the procedure to be followed by it.(c) the allowances admissible to members of Courts and Boards and


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Presiding Officers of labour Courts, Tribunals and National Tribunal.(d) the ministerial establishment which may be allotted to a Court, Board,

Tribunal or National Tribunal.(e) the manner in which and the persons by and to whom notice of strikeor lockout may be given and mode of communication.

(f) the conditions subject to which parties may be represented by legalpractitioners in proceeding under this Act before a Court, Labour Court,Tribunal or National Tribunal

(g) any other matter which is to be or may be prescribed.

Delegation of powers (Sec. 39)

The appropriate Government may by notification in the official Gazette,direct that any power exercisable by it under the Act or rules made there under,shall be exercisable by:(a) by such officer or authority subordinate to the Central Government,

(where the appropriate Government is the Central Government) orby the State Government or by such officer or authority subordinate

to the state Government as may be specified in the notification; and(b) where the appropriate Government is a State Government, by such

officer or authority subordinate to the state Government, as may bespecified in the notification.

Power to amend schedules (Sec. 40)

If the appropriate Government or the Central Government feels itnecessary in the public interest, can amend the schedule by notification issued inthe official Gazette. The first; second or third schedule can be amended.

CAUSES CONSEQUENCES AND SETTLEMENT OFINDUSTRIAL DISPUTES

Industrial Disputes Act provides for a machinery for just and equitablesettlement of Industrial disputes by adjudication, negotiation and conciliation. Itpromotes measures for securing and preservin

B- Industrial Dispute-

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