LABOUR LAW
UNIT -1
1.1 INTRODUCTION TO LAW OF INDUSTRIAL DISPUTES ACT ,1947
During the twentieth century a new branch of jurisprudence known as Industrial Jurisprudence has developed in our country. Industrial jurisprudence is a development of mainly post-independence period although its birth may be traced back to the Industrial revolution. Before independence it existed in a rudimentary form in our country. The growth of industrial jurisprudence can significantly be noticed not only from increase .in labour and industrial legislations but also from a large number of industrial law matters decided by the Supreme Court and High Courts. It affects directly a considerable population of our country consisting of industrialists, workmen and their families. Those who are affected indirectly constitute a still larger bulk of the country's population. This branch of law 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' in the larger interest of the society because that theory was found wanting for the development of harmonious and amicable relations between the employers and employees. Individual contracts have been in many respects substituted by a standard form of statutory contract through legislation and judicial interpretation. The traditional right of an employer to hire and fire his workmen at his will has been subjected to many restraints. Industrial Tribunals can' by their award make a contract which is binding on. Both the parties creating new right and imposing new obligations arising out of the award: There is no question of the employer agreeing to the new contract; it is binding even though it is unacceptable to him. The creation of new obligations is not by the parties themselves. Either or both of them may be opposed to it, nevertheless it binds them. Thus, the idea of some authority making a contract for the workmen and employer is a strange and novel idea and is foreign to the basic principle of the law of contract.
Similarly there is change in the concept of master and servant. One who invests capital is no more a master and one who puts in labour is no more a servant. They are employer and employees, the former may hire the latter but he can no more fire them at his will.
The interest of the employees is in many respects protected by legislation. Both are now parties in an enterprise, without one yielding to the higher status of another but as co-sharer in the partnership. Even the right of labour participation in the management has been given legislative recognition to the utter despair of the capitalist. Most of the benefits claimed by a workman are not part of his bargain with the employer when the latter employed him or are not due to them on account of any contract but of "status". The industrial society all over the world has been moving during the present century from contract to status and this status is a politico-socio-economic juristic status.
1. Definition clause
1.2 Scope and object:-
The object of industrial relations legislation in general is industrial peace and economic justice. The prosperity of any industry very much depends upon its growing production. The production is only possible when the industry functions smoothly without any interruptions. There are some other factors that influence the production, namely absence of disputes, i.e., harmonious relationship between the labour and the management.
Objects of the Act as analyzed by the Supreme Court are as follows
1. The promotion of measures for securing amity and good relations between the employer and workmen;
2. An 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 Federation of Trade Unions or Association of employers or a federation of association of employers;
3. The prevention of illegal strikes and lock-outs;
4. Relief to workmen in the matter of lay-off, retrenchment and closure of an undertaking;
5. Collective bargaining.
The Industrial Disputes Act is a progressive measure of social legislation aiming at the amelioration of the conditions of workmen in industry.'
Main Features of the Act
Some of the distinguishing features of the Industrial Disputes Act, 1947 may be summarized as under
1. Any industrial dispute may be referred to an industrial tribunal by an agreement of parties to the dispute or by the State Government if it deems it expedient so to do.
2. An award shall be binding on both the parties to the dispute for the specified period not exceeding one year. It shall be normally enforced by the Government.
3. Strike and lock-outs are prohibited:
a. During the pendency of conciliation and adjudication proceedings;
b. During the pendency of settlements reached in the course of conciliation proceedings; and
c. During the pendency of awards of Industrial Tribunal declared binding by the appropriate Government.
4. In public interest or emergency the appropriate Government has power to declare the transport (other than railways), coal, cotton textiles, foodstuffs and iron and steel industries to be a public utility service for the purposes of this Act, for a maximum period of six months.
5. In case of layoff or retrenchment of workmen the employer is required to pay compensation to them.
6. Provision has also been made for payment of compensation to workmen in case of transfer or closure of an undertaking.
7. A number of authorities such as, Works Committee, Conciliation Officers, Board of Conciliation, and Courts of Inquiry, Labour Courts, Tribunal and National Tribunal are provided for settlement of industrial disputes. The nature of powers, functions and duties of these authorities differ from each other but each one of them plays an important role in ensuring industrial peace.
1.3 Appropriate Government :-
The Central Government as well as the State Government are vested with various powers and the duties in relation to matters dealt with in this Act. In relation to some industrial disputes the Central Government and in relation to some others the state Government concerned are the Appropriate government to deal with such disputes. Therefore to avoid repetition. It was expedient to use a phrase which may be used in the same sense in different sections of the Act. The appropriate Government the Central Government in relation to the following:
(i)(a) Any industry carried on by or under authority of the Central Government or By a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government:
(i)(b) A Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act. 1948, or the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956, or the Employees' State Insurance Corporation established under Section 3 of the Employees' State Insurance Act. 1948, or the Board of Trustees constituted under Section 3-A of the Coal Mines Provident Fund and Miscellaneous Provision Act. 1948 or the Central Board of Trustees and the State Boards of Trustees constituted under Section 5-A and Section 5-B, respectively of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 or the Life Insurance Corporation of India established under Section 3 of the Life Insurance Corporation Act. 1956 or the Oil and Natural Gas Corporation Limited registered under the Companies Act. 1956, or the Deposit Insurance and Credit Guarantee Corporation established under Section -3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961, or the Central Warehousing Corporation established under Section 3 of the Warehousing Corporations Act, 1962 or the Unit Trust of India established under Section 3 of the Unit Trust of India Act. 1963 or the Food Corporation of India established under Section 3, or a Board of Management established for two or more contiguous States under Section 16 of the Food Corporations Act, 1964 or the Airports Authority of India constituted under Section 3 of the Airports Authority of India Act. 1994 or a Regional Rural Bank established under Section 3 of the Regional Rural Banks Act, 1976, or the Export Credit and Guarantee Corporation Limited or The Industrial Reconstruction Bank of India or The National Housing Bank established under section 3 of the National Housing Bank Act. 1987 or
The Banking Service Commission established under section 3 of the Banking Service Commission Act. 1975 or an air transport service or a banking or an insurance company, a Mine, an Oil Field, a Cantonment Board, or a Major port.
In all other cases the Appropriate Government is the State Government, within whose territory the industrial dispute arises.
Whether the Appropriate Government is the Central Government or the State Government depends on the subject-matter of the dispute.
Bharat Glass Works (Private) Ltd. V State of West Bengal
In this case, the appellant carried on an industry in the manufacture of glass and ceramics. Their contention was that it was a industry' in the and as such the Central Government being the Appropriate Government, the reference made by the Government of West Bengal was bad. It was held that "an industry mentioned in the first Schedule of the Industries (Development and Regulation) Act, 1951 is a 'controlled industry', but it is not necessarily an industry carried on by or under the authority of the Central Government. For an industry to be carried on under the authority of the Central Government, it must be an industry belongs to the Central Government, i.e., its own undertaking".
The Kerala High Court in India Naval Canteen Control v. Industrial Tribunals.
In this case, has held that "the question as to whether an industry is carried on by or under the authority of the Central Government. is essentially a question of fact depending on the circumstances of each case". As such a business carried on by a Naval Canteen Control Board was held not to be carried on by or under the authority of Central Government, even if the trust was constituted by the Central Government.
In the light of the above two cases we come to the conclusion that simply because an industry is a "controlled industry" or the necessary license is granted by the Central Government, the industry is not necessarily one carried on by or under the authority of the Central Government.
What the section requires is not only that the industry should be a controlled industry but also that Central Government must specify "in this behalf' that the industry concerned is a controlled industry. In other words, the specification must be taken by Central Government by reference to, and for the purposes of this Act, in order that the Central Government may itself
Become the appropriate Government qua such industry under this provision. When Banking or Insurance Company has its branches in more than one states, the Appropriate Government, in case of an industrial dispute relating to such company is the Central Government.
1.4 Award and settlement :-
Award means an interim or final determination of any industrial dispute or of any question relating thereto. The determination must be by any labour Court, Industrial Tribunal, or National Tribunal It includes an arbitration award made under Section 1O-A.
The definition of award falls in two parts. The first part covers a determination, final or interim, of any industrial dispute. The second 'part takes in a determination of any question relating to an industrial dispute. But the basic postulate common to both the parts of definition is the existence of an industrial dispute, actual or apprehended. The "determination" contemplated by definition is of the industrial dispute or a question relating thereto on merits. In order to be an award a determination must be an adjudication of a question or point relating to an industrial dispute which has been specified in the order of reference or is incidental thereto, and such adjudication must be one on merits.'
Award includes final as well as an interim determination. The tribunal can grant only such interim awards which they are competent to grant at the time of final award, because the relief, which the Tribunal has no right to grant at the time of final determination, shall be outside its authority at any stage of the proceedings.
Enforcement of an award
An award may be enforced in the following ways;
1. The aggrieved party may apply to appropriate Government for prosecuting the defaulting party under Section 29 or Section 31 of this Act.
2. The party in whose fovour the award has been granted a may file a suit and obtain a decree, which shall be enforced by execution under the provisions of the Civil Procedure Code.
1.5 Industry :-
"Industry" means any business, trade, undertaking, and manufacturer ca ling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workman.
This definition is in two parts. The first says that industry 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. "If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part takes in the different kinds of activity of employees mentioned in the second part. But the second part standing alone cannot define industry. By the inclusive part of the definition the labour force employed in any industry is made an integral part of the industry for the purpose of industrial disputes although industry is
Is hospital an industry?
In state of Bombay v. Hospital Mazdoor Sabha
In this case, the Hospital Mazdoor Sabha case the Hospital Mazdoor Sabha was a registered Trade Union of the employees of hospitals in the State of Bombay. The services of two of its members were terminated by way of retrenchment by the Government and the Union claimed their reinstatement through a writ petition. It was urged by the State that the writ application was misconceived because hospital did not constitute an industry. The group of hospitals was run by the State for giving Medical relief to citizens and imparting medical education. The Supreme Court held the group of hospitals to be industry and observed as follows:
1. The State is carrying on an 'undertaking' within section 2(j) when it runs a group of hospitals for purpose of giving medical relief to the citizens and for helping to impart medical education.
2. An activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking.
3. It is the character of the activity in question which attracted the provisions of Section 2(j). Who conducts the activity and whether it is conducted for profit or not makes a material difference.
4. The conventional meaning attributed to the words, trade and business has lost some of its validity for the purposes of industrial adjudication...it would be erroneous to attach undue importance to attributes associated with business or trade in the popular mind in days gone by.
In Management of Hospitals, Orissa v. Their Workmen
It was held that "hospital run by the Government as a part of its function is not an industry. Hospitals run by the State of Orissa are places where persons can get treated. They are run as departments of Government lead to the inference that the hospitals are run as a business in a commercial way. Primarily, the hospitals are meant as free service by the Government to the patients without any profit motive."
In Dhanrajgiri Hospital v. Workmen
It was held that Dhanrajgiri Hospital, Solapur was not an industry because it was not carrying on any economic activity in the nature of trade ort business. It was not rendering any material service by bringing in any element of trade or business in its activity. The main activity of the hospital was imparting of training in nursing and the beds in the hospital were meant for their practical training. But in view of the decision of the Supreme Court in Bangalore Water Supply V.A. Rajappa10 Dhanrajgiri hospital case has been overruled and all hospitals fulfilling the test laid down in Bangalore Water Supply case will be industry.
Educational Institutions
In University of Delhi v. Ram Nath
In this case, the respondent Mr. Ram Nath was employed as driver by University College for women. Mr. AsgarMashin was initially employed as driver by Delhi University but was later on transferred to the University College for women in 1949. The University of Delhi found that running the buses for transporting the girl students of the women's college has resulted in loss. Therefore it decided to discontinue that facility and consequently the services of the above two drivers terminated. The order of t4ermination was challenged on the ground that the drivers were workmen and the termination of their services amounted to retrenchment. They demanded payment of retrenchment of their services amounted 25-F of the Act by filing petitions before the Industrial Tribunal. The Tribunal decided the matter in favour of the drivers and hence the University of Delhi challenged the validity of the award on the ground that activity carried on by the University is not industry. It was held by the Supreme Court that the work of imparting educations is more a mission and a vocation and a vocation than profession or traded or4 business and therefore University is not an industry. By this case has been overruled by the Supreme Court in Bangalore Water Supply case and in view of the triple test laid down in Bangalore Water Supply3 case even a University would be an industry although such of its employees as are not workmen within the meaning of Section 2(s) of the Act. May not get the desired benefits to which a workman in an industry may be entitled to.
In Osmania University v. industrial Tribunal Hyderabad,
In this case, a dispute having arisen between the Osmania University and its employees, the High Court of Andhra Pradesh, after closely examining the Constitution of the University, held the dispute not to be in connection with an industry. The correct test, for ascertaining whether the particular dispute is between the capital and labor, is whether they are engaged in co-operation, or Whether the dispute has arisen in activities connected directly with Or attendant upon, the production or distribution of wealth.
Clubs
Clubs or self-service institutions or non-proprietary member's club will be industry provided they fulfill the triple test laid down in Bangalore Water Supply v. A. Rajappa7. The Cricket Club of India case and Madras Gymkhana Club case (discussed below) which were the two leading cases, on the point so far have been overruled by Bangalore Water Supple case. In Cricket Club of India v. Bombay Labour Union8 the question was whether the Cricket Club of India, Bombay which was a member's club and not a proprietary club, although it was incorporated as a company under the Companies Act was an industry or not. The club had membership of about 4800 and was employing 397 employees. It was held that the club was a self service institution and not an industry and "it was wrong to equate the catering facilities provided by the club to its members or their guests (members paying for that), with a hotel. The catering facility also was in the nature of self service by the club to its members". This case has now been overruled.
In N.N.U.C. Employees v. Industrial Tribunal Solicitor Firm or Lawyers Office.
In this case, the question was whether a solicitor's firm is an industry or not. It was held that a solicitor's firm carrying on the work of an attorney is not an industry, although specifically considered it is organized as an industrial concern. There are different categories of servants employed by a firm, each category being assigned separate duties working together with parties is service which is essentially individual; it depends upon the professional equipment, knowledge and efficiency of the solicitor functioning either individually or working together with parties is service which is essentially individual; it depends upon the professional; equipment, knowledge and efficiency of the solicitor concerned. Subsidiary work which is purely incidental type and which is intended to assist the solicitor in doing his job has no direct relation to the professional service ultimately rendered by the solicitor. The work of his staff has no direct or essential nexus or connection with the advice which it is the duty of the solicitor to give to his client. There is, no doubt, a kind of co-operation between the solicitor and his employees, but that co-operation has no direct or immediate relation to the professional service which the solicitor renders to his client. This case has been overruled in Bangalore Water Supply case4 and now a solicitors' firm employing per song to help in catering the needs of the clients is an industry.
Amended definition of Industry
'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 contract) for the production, 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), whether or not,
i) Any capital has been invested for the purposes of carrying on such activity; or
ii) Such activity is carried on with a motive to make any gain or profit, and includes.
a. any activity of the Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 ;
b. any activity relating to the promotion of sales or business or both carried on by an establishment
But does not include-
Any agricultural operation except where such "agricultural operation" is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provision of this clause) and such other activity is the predominant one.
1.6 Industrial Dispute :-
The main objective of the Act, as pointed out in the preamble is "to make provision for the investigation and settlement of industrial dispute". Therefore the definition of "industrial dispute" has special significance. The following elements should exist to constitute an industrial dispute:
1. A dispute or difference between (a) employers and employers, or (b) employers and workmen, or (c) workmen and workmen and workmen;
2. The dispute or difference should be connected with (a) employment or non-employment or conditions of labour of any person;
3. The dispute may be in relation to any workman or workmen or any other person in whom they are interested as a body.
The expression "of any person" appearing in the last line of Section 2(k) means that the person may not be a workman but he may be some one in whose employment, terms of employment or conditions of labour the workmen as a class have a true and substantial interest . Industrial dispute is not restricted to dispute between employer and a recognized majority union. It also means a difference between employer and workmen including a minority union.
For coming into existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service. The very words in the definition of industrial dispute in Section 2(k) are 'dispute or difference'. The term 'industrial dispute' connotes area land substantial difference having some element of persistency and continuity till resolved and likely, if not adjusted. To endanger the industrial peace of the undertaking or the community.
In Workmen of Hindustan Lever Ltd. V. Hindustan Lever Ltd.,
The question was whether a demand to confirm employees employed in an acting capacity in a grade would unquestionably be an industrial dispute without any thing more.
Individual dispute and industrial dispute
Whether a single workman, who is aggrieved by an action of the employer can raise industrial dispute.1 Section 2(k) of the Act speaks of dispute between employer and workman i.e., plural form has been used. Before insertion of Section 2-A of the Act an individual dispute could not per se be an industrial dispute, but it could become one if taken up by the Trade Union or a number of workmen. The provision of the Act leads to the conclusion that it applicability to an individual dispute as opposed to dispute involving a group of workmen is excluded unless it acquires the general characteristics of an industrial dispute, viz, the workmen as a body or a considerable section of them make common cause with the individual workman".
It was held in Jagdish Narain Sharma and another v. Rajastha Patrikaa Ltd. And aanother.3 that a dispute relating to transfer of a workman will become an industrial dispute only when it is espoused by a union of workmen or by a substantial number of workmen employed in an industry. Without such espousal the dispute cannot be treated as an industrial dispute and cannot be referred to a Labour Court.
Section 2-A is of limited application. It does not declare all individual disputes to be an industrial dispute. A dispute connected with a discharged. Dismissed. Retrenched or terminated workman shall be an industrial dispute. If the dispute or difference is connected with other matter then it would have to satisfy the test laid down in judicial decisions. Thus only a collective dispute could constitute an Industrial dispute but collective dispute does not mean that the dispute should either be sponsored by a recognized union or that all or majority of the workmen of an industrial establishment should be parties to it4. A dispute is an industrial dispute even where it is sponsored by a union which is not registered but the Trade Union must not be one unconnected with the employer or the industry concerned 5. Where an individual dispute is espoused by union the question of the employee being a member of the union when the cause arose is immaterial. Those taking up the cause of the aggrieved workman must be in the same employment, i.e., there must be community of interest when the act complained against happened and not when the dispute was referred to But even if there is a community of interest between workman and a person who is not a workman the question of non-employment of the latter cannot form the subject-matter of an industrial dispute. In order to make a dispute industrial dispute it is not necessary that there should be a resolution of substantial or appreciable number of workman. What is necessary is that there must be some expression of "collective will" of substantial or appreciable number of workmen taking up the cause of the aggrieved workman.
A maximum of 18 per cent employees including dismissed employees supporting individual dispute were considered not sufficient to convert it into industrial dispute.10 From this it appears that the workman must be a member of the sponsoring union on the date of dispute. Once a dispute has been referred, it will not cease to be an industrial dispute because the workmen withdrew their support afterwards.
1.7 Strike and Lock-Out :-
Introduction
Strike and Lock-out are two Powerful weapons in the hands of the workers and employers. Ludwig Teller says that the Word strike signifies the suspension or stoppage of work by the worker. He stipulates four essential ingredients to. Constitute a strike. They are'
1. An established relationship between strikers and the person or persons against whom the strike is called
2. The continuance of that relationship as one of the employer and the employee
3. The existence of a dispute between the parties and utilization by labour of the weapon of concerted refusal to continue to work as the method of persuading or coercing compliance with the workers demands;
4. The contention advanced by workers that although the work ceases, the employment relationship is deemed to continue albeit in the state of belligerent suspension.
Lock-out, a similar weapon at the disposal of the employer is used for compelling persons employed by him to accept his terms or conditions. The employer resorts to this coercive step by shutting do n or closing the place of business.
The right to strike or lock-out is recognized in all democratic societies with reasonable restraints on their use. The degree of freedom granting for its exercise varies according to the social, economic and political variants in he system. For safeguarding public interest, the resort to strike and lock-out and the duration of either are subject to rules and regulations either voluntarily agreed to by the parties or statutorily imposed.
Strike and the Constitution
The Supreme Court in Kameswar Prasad v. State of Bihar.' held that there is no fundamental right to strike. The Bihar Government service conduct rules prohibiting strikes and demonstrations were challenged on the ground of infringement of the rights guaranteed under Article 19(1) (a), (b) and (c). The court held that even though the right to demonstration is guaranteed and so it cannot be Restricted except according to the article 19(2), (3) or (4), the rule prohibiting strike cannot be attacked under Article 19:- Yet strike is recognized as an ordinary right of social importance to the working class to ventilate their grievances and thereby resolve industrial conflict.
The National Commission on Labour observed as follows
"The democratic ideals of the State prevent it from abridging individual freedom, but .socialist objectives justify the Governments Regulation of such freedom to .if in--a reasonable measure with the, interest of the society. What seems called for, therefore, is a re-conciliation of these two points of view. While we are not in favour of a ban on the right to strike or lock-out, we are also not in favour of any unrestricted right to direct action. In our view, the right to strike is a democratic right which cannot be taken away from the working class in' a constitutional set up like ours. Even from a practical point of view, we will not favour such a step-' of taking away the right of the workers to strike, may force the discontent to go underground and lead the other forms of protest which may be equally injurious to good labour management relations.
1.8 Definition of strike :-
Section 2(q) of the Industrial Disputes Act defines strike as a cessation of work for any length of time under a common understanding to put pressure on an employer on an employer to accept their demands. The following ingredients are essential
1. It must be a body of persons employed in any industry
2. Cessation of work or refusal to do work in an industry by the workmen acting in a body or in combination
3. Concerted action; and
4. The relationship of employment
a. The persons who refuse to work must have been employed in an industry as defined Section 2(j). If the establishment in which the alleged strike took place does not come within the definition of an industry it cannot be said to be a strike.
b. The persons SQ. employed cease or refuse to do work under a common understanding. The refusal to work or the cessation of work should be pursuant to a common understanding. It must be an act in combination among the workers. The-common understanding to the cessation of work or .refusal to do work must be to pressurize the employer to enforce their (workers) demand. It will not be a strike within the meaning of Section 2(q) if the cessation of work or refusal to do work is not with the common object of enforcing an industrial demand."
c. Duration of stoppage of work.-The definition does not specify any period of time minimum or maximum to constitute strike. Stoppage of work even for a "few hours will be a strike if it is with common Understanding to put pressure on the employer to concede their demand.
d. The strike must be by the persons employed in the industry. There must be a contract of employment in which, there is an express or implied term to the effect that the workman work according to he rules of the establishment cessation of work or refusal to work must be in breach of a cont ct to constitute strike
1.9 Kinds of Strike :-
1. General strike
A general strike is one where the workmen join together for a common cause and stay away from work as a mark of protest, thus depriving the employer of their labour to run the industry in such form -of strike the collective action is taken by the workmen to negotiate the settlement of dispute. The common forms of such strikes are organized by central trade unions in railways, post and telegraph, etc. Hartals and bundhs also fall in this category.
2. Stay in, Sit down, Tool down and pen down strikes
These 'are some forms of strikes resorted to by the workmen under different circumstances. Here the workmen enter the place of work but do not do any work. The simply occupy their place or work and either stay in or, sit down. The employer is not allowed to carry on his business. In nose forms there is an element of trespass. Factory workers staying inside the premise a refusing to work will also be known as stay ill or sit down strike. Similarly, when they refuse to work with their tools it's known as tool down strike; if a clerical worker then it is known as pen down strike."
3. Go-slow
Go-slow strike occurs when workers attend to their work but do it slowly. This may cause heavy loss to the employer. This form of strike is not covered by the definition because there is no cessation of work by the workers who mere y refuse to do the usual amount of work they are required to do as per the standing orders. It has been held in V.G.M. Rao v. Gujarat Works Limited that a go-slow strike amounts to a serious misconduct as it causes financial injury to the employer. The Supreme Court in Bharat Sugar Mills Ltd. v. Jain Singh, held that go-slow is considered to be a serious type of misconduct and observed that "Go-slow" which is a picturesque description of deliberate delaying of production by workmen pretending to be engaged in the factory is one of the most pernicious practices that discontent or disgruntled workmen sometimes resort to. It would not be wrong to call this dishonest. For, while thus delaying production and thereby reducing the output, the workmen claim to have remained employed and thus to be entitled to full wages. Apart from this go-slow is likely to be much more harmful than total cessation of work by strike. For, while during a strike much of the machinery can be fully turned off, during the 'go-slow' the machinery is kept going at a reduced peed which is often extremely damaging to the machinery parts. For all these reasons 'go-slow' has always been considered a serious t e of misconduct.
Sympathetic strike
A sympathetic strike is one which is called for the purpose of indirectly aiding others. The striking employees have no demand or grievance of their own and the strike has no direct relation to the advancement of the interest of the strikers." Such strike is unjustifiable interference on the right of the employer and therefore, unlawful. In Kambalingam v. India Metal and Metallurgical Corporation, Madras." it was held that when the workers in concert absent themselves out of sympathy to some cause not related to their employment such absence would not be held to be strike, since the essential element of the intention to use it against the management is absent. So sympathetic strike will not come within the definition of strike.
1.10 Lock-out :-
It is a temporary closure of the place of business by the employer to bring pressure on his workmen to accept his terms. Section 2(1) of the Act defines lock-out to mean the closing of a place of business or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him. In lock-out the employer shuts down his place of b sinless as a means of reprisal or as instrument of coercion or as mode of exercising pressure on toe employees. The contention that the definition gives a wider dimension by giving a color of lock-out to any closure of a place of business even one causal by flood or fire or earthquake cannot sustainable. However, the courts have clarified the definition. A permanent discontinuance of business is not a lock-out because a lock-out is a closure of a place of business and not a termination of the business itself.
Lock-out is distinct from closure
The following are the differences between lock-out and closure
1) In the Case of closure, the employer closes or winds up his business permanently and irrevocably. But in lock-out the place of business alone is closed while the business continues. The business is not terminated. Lock-out occurs in a continuing business.
2) Lock-out is a weapon in the hands of the employer to compel the employees to accept his proposals, whereas closure is a matter of policy of the employer as to whether he should run or not the business.
3) A lock-out does not result severance of employer-employee relationship." The conditions of service of workers are not affected adversely nor any inflictment of punishment takes place by a lock-out," In the case of closure the services of the workers are terminated.
4) A lock-out which is legal and justified does not involve payment of wages or compensation. But a closure of the business entitles the workers with Closure compensation as provided in chapter VA of the Industrial Disputes Act.
1.11 Restrictions on strikes and Lock-out :-
The Industrial Disputes Act does" not prohibit the right to strike or lock-out. It only lays down certain conditions which are to be complied with before resorting to such direct action. Hence, the short titles of Sections 22 and 23 ought to have been as restrictions instead of prohibitions. Because the terms prohibition and restriction are not synonymous but different in connotation and contents. It is true that some of the restrictions may reach the border lines of prohibitions. The Act is streamlined to compel the parties to exhaust the remedies to arrive at some settlement by conciliation or adjudication before resorting to an extreme step of strike or lock-out as the case may be. Hence, in public utility services the giving of notice is mandatory, the non-compliance of which may result in illegality of the strike or lock-out. Sections 22 to 24 of the Act deal with restrictions of strikes and lock-outs. The Act classifies industries into public utility service and others. It restricts strikes and lock-outs in public utility services more stringently. Section 22 of the Act restricts strikes and lock-outs in industries carrying on public utility services.
Differences between Sections 22 and 23
1. Section 22 applies to public utility services only. Section 23 is applicable to both public utility and non-public unity concerns.
2. Section 23 does not prohibit strike or lock-out during the pendency of conciliation of proceedings before the conciliation officer, whereas Section 22 prohibits it.
3. Under Section 22 notice of strike or lock-out is necessary; under Section 23 no such notice is required.
4. Both Sections 2 and 23 are applicable to public utility services whereas Section 23 alone is applicable to non-public utility services.
Therefore, in case of strike- or lock-out in a public utility service the prohibitions contained in Section 22 a well as in Section 23 will apply; since no notice is necessary in non-public utility services a sudden strike or lock-out is not prohibited under this Act.
1.12 Illegal Strikes illegal lock-out :-
All strikes are not illegal strike or lock-out will be illegal only if it contravenes the mandatory provisions under Sections 22 and 23 of the act under the law in India strikes and lock-out are illegal when penalties have been imposed for them for the violation of the provisions of Sections 22, 2'3 and Act. Under The right to strike is an inherent right of every worker and the same could not be abridged or taken away except in conformity with statutory provisions. Strike in breach of contract is not by itself sufficient to make the strike illegal in a non-public utility service. The other conditions required by clauses (a), (b) or (c) of Section 23 must be fulfilled before a strike can be held to be illegal. Section 24 thus deals with grounds when a strike or lock-out will be treated as illegal.
Grounds of illegal strikes or illegal lock-out
Section 24 lays down the grounds which make strike and lock-out illegal. They are;
1. A strike or lock-out will be illegal if it is commenced or declared contravening Section 22 in a public utility service.
2. A Strike or lock-out will be illegal if it is commenced in contravention of Section 23 in any industrial establishment
3. A strike or lock-out will be illegal if it is continued in contravention of an order made by the appropriate Government under Section 10 (3) or Section 10-A(4-A) of the Act.
UNIT - II
2.1 LAY-OFF AND RETRENCHMENT
Originally the Industrial Disputes Act did not provide for lay-off and retrenchment. The explosive situations due to enormous accumulation of stocks, particularly in the textile mills, with the consequence of probable closure, large scale lay-off and retrenchment in many mills provoked to introduce some effective measures to prevent large scale industrial unrest in the country. The ordinance promulgated for this purpose in 1953 was replaced by the Industrial Disputes (Amendment) Act, 1953 which commenced retrospectively from 24th October, 1953. Thus, chapter VA was introduced into the Act to regulate lay-off, retrenchment, transfer and closure of undertakings. The provisions under this Chapter have much impact in some of the rights and privileges of the employers who are subjected to certain new liabilities and restrictions in the event of lay-off, retrenchment, transfer or closure of undertakings. In 1976, a new Chapter VB, was added to the Industrial Disputes Act incorporating more stringent conditions against lay-off, retrenchment and closure of certain establishments.
Application of Chapter VA- Section 25-A makes it clear that the provisions of Section 25-C to 25-E shall not apply to:
1. industrial establishments in which less than fifty workmen on an average per industrial working day have been employed in the preceding calendar month; or |
2. Industrial establishments which are of a seasonal character or in which work is performed only intermittently. |
Hence, the provisions relating to lay-off will not be applicable to industrial establishments with less than 50 workers in the preceding calendar month1 or in case of seasonal character or with intermittent works, industrial establishment for this purpose is defined to mean: |
a. a factory as defined in the Factories Act, 1948; or |
b. a "mine" as defined in the Mines Act, 1952; or |
c. a "plantation" as defined in the Plantation Labour Act, 1951. |
"Seasonal Character, intermittently"
The above expressions are not to mean the same. They are distinct to mean seasonal or otherwise intermittent2. The term intermittent denotes no continuity. Seasonal characters are when there are breaks or when the work is not regular in nature. "Seasonal" implies dependence on season or nature and hence neither the employer nor the employee in the particular industrial establishment has any control.
Government decide "Seasonal Character" intermittence
Clause 2 of section 25-A empowers the appropriate Government to decide the "Seasonal Characters" or the "intermittent" nature of work in the industrial establishment, if that becomes a point of dispute. The decision of the Government on this will be final.
The legislature has given exclusive jurisdiction to the appropriate Government in this matter and hence when such an issue becomes a point of dispute the Tribunal instead of deciding that should refer that question to the appropriate Government or direct the parties to move the appropriate Government to give its decision. Till the Government had give its decision the Tribunal should postpone its proceedings on the matter referred to it. In Tata oil mills Co. v. the workmen of the Kanitta Establishment, the question referred to the Tribunal related to the seasonal closure of copra purchasing depot of the petitioner at Alleppey. However, the pleadings of the parties raised the question as to whether the industrial establishment at Alleppey was of a seasonal character or not. The tribunal found that it is not of a seasonal character and on that basis it gave the award directing the petitioner to give continuity of service to the workmen from the date of their entry to the petitioner's service holding that the intermittent closure every year by the management of their depot at Alleppey was unjust and unreasonable. This was struck down on the ground that the Tribunal had no such jurisdiction and that the appropriate Government and that Government alone has jurisdiction to decide the question of the "Seasonal Character" of the industrial establishment or the intermittent nature of the work thereon.
2.2 Definition of lay-off :-
Section (2KKK) defines lay-off to mean the failure, refusal to inability of an account of shortage of coal, power or raw materials, or the accumulation of stock or the break down of machinery of for any other reasons to give employment to a workman, whose name is borne in the muster roll of his industrial establishment and who has not been retrenched.
"For any other reason"
The words 'for any other reason' in Section 2(KKK) do not mean for any reason whatsoever, or for whatever be the reason. They convey to mean for some reason analogous to the reasons specified in the section, and not for any other reason of whatever character.3 The words "for any other radon in Section 2(KKK)" must be considered eluded generic with the words that precede them, and the circumstances which would justify a lay-off must be integrally connected with production A lay-off merely on ground of financial depression of the employer is not comprehended by the definition.
2.3 Right of workmen laid off for compensation :-
Section 25-C of the Industrial Disputes Act lays down the conditions and extent of compensation to workers who are laid-off. The provision which was introduced in 1953 underwent a recast in 1956 and in 1965. After the 1965 amendment to Section 25-C the conditions for lay-off compensation are the following.
1. The establishment must have employed fifty or more workmen in an average during the calendar month preceding the lay-off;
2. The industrial establishment in question must not be of a seasonal character or in which work is performed intermittently.
3. The claimant should come within the definition of workman;
4. He should not be a badli workman; or casual workman;
5. His name must be borne on the muster roll and he should not have been retrenched,
6. He must have completed not less than one year of continuous service;
7. Each one year continuous service must be under the same employer;
8. Lay-off compensation must be half of basic wages and dearness allowance;
9. Maximum period for entitlement of lay-off compensation is forty-five days during any period of twelve months;
10. No right to lay off compensation for more than forty-five days during 12 months if there is an agreement to that effect;
11. In the absence of a contrary agreement, lay-off compensation is payable for subsequent periods beyond 45 days during the same 12 months; if such subsequent period is/are not less than one week or more at a time.
12. Beyond 45 days the employer can escape liability if resorting to retrenchment after payment of retrenchment compensation;
13. Finally, the lay off in question should not be by way of mala fide or victimization or with other ulterior motives.
Amount of compensation
A workman with one year's continuous services is entitled to lay-off compensation for all days of lay-off except weekly holidays. The amount of compensation payable to each workman shall be half the total of basic wages and dearness allowance. Lay-off compensation payable under Section 25C is not wages within the meaning of the term 'wages' in the Payment of Wages Act, 1936 This is by way of temporary relief to a workman who is forced to undergo involuntary unemployment, of course for reasons stated in the definition clause of Lay-off. The employer, for reasons beyond his control, is unable to provide work and hence as a social security measure and in the general social interest, a duty is imposed upon the employer to give compensation to the workman who is deprived of his opportunity to work and hence forced to lose wages.
Period of lay-off compensation
Lay-off compensation is payable for all days of lay-off. However, the maximum period for which compensation payable is 45 days during any period of 12 calendar months4 In the absence of a contrary agreement, if the lay-off exceeds 45 days during a period of 12 months, then the workman is entitled to the same rate of compensation for such period beyond the 45 days, whether in continuation of it or subsequently, on other occasions. However, such period of lay-of beyond the 45 days should be for minimum of one week or more to entitle the compensation thereof. But in such situation s the employer may either:
(a) go on paying on lay-off compensation for such subsequent periods: or
(b) Retrench the workmen after the expiry of 45 days of lay-off on paying he retrenchment compensation as in Section 25F.
2.4 Retrenchment :-
Definition
Section 2(00) of the Act defines retrenchment as termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action. But it does not include-(a) voluntary retirement of the workman; (b) retirement on reaching the age of superannuation1; (bb) termination of the service of the workman as a result of the non-renewal of the contact of employment between the employer and the workman concerned on the expiry of the contract being expiry of the contact being terminated under a stipulation contained therein; or (c) termination of services on ground of continued ill health.
"For any reason whatsoever" in earlier decisions the courts held that retrenchment in its ordinary meaning connotes that he business itself is being continued but a portion of the staff or labour force is discharged as surpluses. Hence, termination of service of all workmen due to closure of the business is not retrenchment.
In Sundarmany's case Justice Krishna Iyer gave wide content to the definition of retrenchment. The words "for any reason whatsoever" were interpreted to mean" termination for any reason whatsoever in other words, whatsoever be the reason, every termination of service will be comprehended in the definition of retrenchment.1 In the Sundarmany's case the bank employed respondent as a temporary employee joined duty, Sundarman's services were dispensed. The court observed that had the bank known the laws, half a month's pay would have concluded the story. But that did not happen, and now some years have passed and bank has to pay for the service rendered. Even so, hard case cannot make bad law and hence the reinstatement of the employee was the only result.
Probationer entitled to benefit
In Karnataka S.R.T. Corpn. V. Sheikh Abdul Khadar
The Supreme Court held that discharge from employment or termination of service of probationer would also amount to retrenchment. As such while discharging a probationer if the requirements of Section 25-F had not been complied with, the same were void.
Termination of Casual Worker's service is not retrenchment
Termination of casual worker engaged for particular urgent work on completion of such work will not amount to retrenchment. Where the workman was engaged on casual basis without a written service contract or letter of appointment, for doing a particular urgent work, his service automatically came to an end when the work was over and there was no retrenchment when his service terminated. Therefore, the question of complying with the procedure for retrenchment does not arise in such case. Further in such a case merely because the workman was required repeatedly for doing the urgent work and thus had to work for considerable time, the termination of service would not amount to retrenchment.
Retrenchment can be only in a live industry
Since the termination of the services of a workman who is employed in an industry constitutes retrenchment, it clearly indicates, that there must be an "industry" which must be running or in existence. It required and industry which is alive and not closed. As in the case of strike lock-out or lay-off there cannot be a retrenchment within the meaning of Section 2(OO) of the Act.
Termination not as punishment
Termination of the services of a workman as punishment inflicted by way of disciplinary action will not be a retrenchment. The facts of the case are to be considered whether a particular termination is retrenchment or by way of disciplinary action. Hence, the termination of services on ground of misconduct, ill-health10 and inefficiency of the workmen are declared to be not retrenchment.
Exclusion from the retrenchment
i. Voluntary retirement. Being an act of the employee in Terminating the services by abandoning or resigning from the service such as voluntary retirement will not be covered by the definition.
ii. Superannuation.-To attract termination of service on superannuation it is necessary that:-
a. there must be stipulation on the point of retrenchment in the contract of employment between the employer and employee; and
b. the stipulation must be with regard to the age of superannuation.
iii. Termination on non-renewal of service contract or on expiry of fixed term contract.-When the employment was for a stipulated time period under a contract then the non-renewal of the contract of employment on the expiry of the stipulated period would not amount to retrenchment.
iv. Continued ill-health.4 Termination owing to the continued ill-health of the workman is not covered in retrenchment. Ill-health contemplated not only physical but mental ill-health as well. Continued ill-health' includes any physical defect or infirmity incapacitating a workman for future work for an indefinite period.
Condition of valid retrenchment
Under Section 25(F), the following conditions must be satisfied before retrenchment of a workman in any industry having continuous service of not less than one year. Such a workman shall not be retrenched unless:
(a) He is given one month's notice of it with reasons, or one month wages in lieu of such notice. Provided no such notice is necessary if it is under an agreement specifying the date of termination of service:
(b) he is paid compensation equivalent to 15 days average pay for every completed year of company's service or any part of it exceeding six months: and
(c) Notice is served on the appropriate Government or on such notified authority.
2.5 Retrenchment Compensation :-
In Pramod Jha v.Bihar
In this case, the Supreme Court highlighted the twofold object to Section 25-F as follows_ (1) a retrenched employee must have one month time to search for alternate job; (2) the workman must be paid retrenchment compensation at the time of retrenchment so that once he is retrenched there is no need for him to go to his employer demanding retrenchment compensation.
Rate of compensation
Under Clause (b) of Section 25-F, the workman is entitled to 15 days average pay for every completed year of continuous service or any part thereof in excess of six months continuous service. In case, of death of the workman, his legal heirs are entitled to the retrenchment compensation.
Compensation by Money Order
Sending the retrenchment compensation by Money Order when the workman refused to accept the offer of payment of compensation is sufficient of Section 25-B.
Payment by Cheque
Payment of compensation by cheque will be sufficient provided the cheque could be cashed before the retrenchment is affected. But when the cheque would towards the retrenchment compensation was given after the banking hours and thus the cheque would be cashed only on the next day, it was held that the retrenchment order issued on the day when the cheque was given cannot be valid.
Procedure of retrenchment
Section 25-G incorporate the well recognized principle of retrenchment in industrial law, namely, the "last come first go" or "first come last go." The Section becomes applicable only if all the conditions laid down therein are fully and cumulatively satisfied .The conditions are:-
1. The person claiming protection should be a workman as defined in Section 2(s);
2. He should be a citizen of India ;
3. The "Industrial establishment" employing such workman must be an "industrial" under Section 2(j);
4. He should belong to a particular category of workman in that establishment ; and
5. There should not be an agreement between the employer and the workman contrary to the procedure of "last come first go."
2.6 Last come first go :-
The principle of "Last come first go" is statutorily incorporated in Section 25-G. If a case for retrenchment is made out, it would normally be for the employer to decide which of the employees should be retrenched. However, the ordinary industrial rule of retrenchment is "Last come first go" and where other things are equal this rule has to be followed by the employer in effecting retrenchment. However, this rule is not intended to deny the freedom of the employer to depart from it for sufficient and valid reasons." It is not as if industrial Tribunal insists inexorably upon compliance with the industrial rule of retrenchment. What they insist on is their being satisfied whatever the rule is departed from the departure is justified by sound and valid reason." 1 The rule "Last come first go" is intended to afford a very healthy safeguard against discrimination of workmen in regard to retrenchment.
The 'last come first go' rule is evolved to ensure in industrial peace, a frequent cause of labour unrest being the victimization of employees in the guise of retrenchment.1 The rule is intended to secure an equitable treatment to the employees when, having regard to the exigencies of the business , it is necessary to retrench some employees. But in the application of the rules, the interest of business cannot be overlooked. The rule has to be applied where other things are equal. The management of the business must act fairly to the employees.2 if it is genuine closure Section 25-G does not apply.
Departure from the rule of "last come first go."
The rule is that the employer shall retrench the workman who came last, first, popularly as 'last come first go.' It is not inflexible rule and extraordinary situations may justify variations. For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is one up is retrenched. But there must be valid reason for this deviation. The burden is on the management to substantiate the special ground for departure from the rule. Absence of mala fides by itself is no absolution from the rule in Section 25-G. affirmatively, some valid and justifiable grounds must be proved by the management to be exonerated from the 'last come first to' principle.
In the 1980 Supreme Court Jorehaut Tea Co. case, out of 23 workmen 16 were retrenched in accordance with Section 25-G .But the remaining 7 workmen's retrenchment deviated from Section 25-G .Hence, it was set aside by the Tribunal and endorsed by the High Court from which this appeal arose. Dismissing the appeal Supreme Court observed that grading for the purposes of scales of pay and like considerations will not create new categorization. It is confusion or unwarranted circumvention to contend that within the same category of grades for scales of pay, based on length of service, etc. are evolved , that process amounts to creation of separate categories. 'Last come first go' is not an immutable rule and that for valid and sufficient reasons the employer may depart from it.6 However, it is incumbent upon the employer to record the relevant circumstances and the reasons for deviation from the rule like the efficiency, unreliability, or habitual irregularity of the workmen who is retrenched , so that the tribunal to which the dispute is taken will be able to ascertain whether the departure is justified by sound and valid reasons.1 Therefore, employer's order of retrenchment deviating the 'last come first go' rule must be a 'speaking order.' If the Tribunal finds that the reasons given by the employer are not valid or satisfactory, then the action of the employer deviating from the 'last come first go' rule will be treated as mala fide or amounting to unfair labour practice and victimization.
2.7 Standing Order :-
Schedule I Rule 13 provides that employer or workman should give in writing notice for terminating employment of a permanent workman. In case of monthly paid workman it should be one month notice or one month pay in lieu of notice, for others it must be two weeks' notice or two weeks' pay.
Temporary workman or probationers are not entitled to the above notice. However, the service of a temporary workman should not be terminated as a punishment without giving him an opportunity to explain the changes of misconduct as stated in Rule 14. Rule 14 provides for disciplinary action against misconduct of workmen:
1) a workman may be fined up to two per cent of his monthly wages in a month for certain acts and omissions specified ;
2) ii) workman may be suspended for not exceeding 4 days at a time or dismissed without notice or without compensation in lieu of notice, if he is found guilty of misconduct ;
3) iii) the following acts and omissions shall be treated as misconduct ;
4) willful insubordination or disobedience in lawful or reasonable order of a superior;
5) theft, fraud or dishonestly connected with employment, property or business;
6) willful damages to or loss of employer's goods or property;
7) taking or giving bribes or an illegal gratification;
8) habitual absence without leave for more than 10 days;
9) habitual late attendance;
10) Habitual Brach of law applicable to the establishment ;
11) Riotous or disorderly behavior during working hours or any act subversive of discipline;
12) Habitual neglect of work;
13) Frequent repetition of inflictment of fine;
14) (k) Striking work or inciting others to strike against any law rules in force.
15) No such dismissal order can be passed unless the workman is
16) Informed in writing of the alleged misconduct and is given an
17) Opportunity to explain the circumstances alleged against him. The dismissal must be approved by the manager of the establishment after instituting independent enquiries
18) The suspension order must be in writing and will take effect only on delivery of it to the workman. The order must setout the alleged mason misconduct and "the workman shall be given opportunity to explain the circumstances against him.
19) In awarding punishment, the manager shall take into account the gravity of the misconduct, the previous record of the workman, and any other extenuating or aggravating circumstances that may exist. Copy of the order by the manager shall be given to the workman.
2.8 Disciplinary proceedings :-
One of the vexing problems that continues to ·generate tension and friction in industrial relations is the area of disciplinary action. The Industrial Truce Resolution, 1947, the Industrial Employment (Standing Orders) Act, the Industrial Employment (Standing Orders) Central Rules, 1946, the Industrial Policy Resolutions of 1948, the Code of Discipline Some steps and schemes to reduce tension and industrial strife and thereby maintain industrial and harmony.
1. Disciplinary Action
Depending upon the gravity of the offence committed the following punishments are generally inflicted in disciplinary action against proved misconduct of a workman by his employer in his disciplinary jurisdiction:
1) warning,
2) fine,
3) vetoing increment,
4) demotion,
5) suspension,
6) discharge,
7) Dismissal.
The first five are routine punishments whereas the last two are severest punishments around which a lot of law is evolved.
2. Procedure in disciplinary action
Neither the Industrial disputes Act nor the rules there under provide any procedure in disciplinary action. Nevertheless, it is essential that the case should be heard in a judicial spirit and in accordance with the principles of natural justice. Even action then there is obligation to adapt forms of legal procedure taking disciplinary action. Broadly the following requirements are necessary for inflicting punishment upon a workman. They are:
(a) Charge sheet ;
(b) holding domestic enquiry into the changes;
(c) report of enquiry officer ;
(d) show cause notice ;
(e) order of punishment
In Dutt and Company v. Workmen
In this case, the workman was charge sheeted by the company alleging that he come to work drunk, based officers and threatened them with physical violence. The company sought to dismiss him for misconduct and grave indiscipline, without conducting any domestic enquiry he was dismissed. The supreme court held that such action without proper domestic enquiry cannot be sustained that it is too late for an employer to claim the right "to hire and fire" an employee as the employer pleases. The right is now subject to industrial adjudication.
In Phulpari Tea Estate. Workmen
In this case, the Supreme Court highlighted the importance of complying with the rules of natural justice in disciplinary proceedings. In this case the manager who conducted the enquiry against the alleged theft of company property by the workman, took statement of some persons in the absence of eh workman. Copies of these statements were not given to the workman. During the enquiry the workman was asked to put questions to those persons who gave evidence against him. The supreme Court deprecated this practice of taking of evidence behind the back of the workman amounting to violation of rules of natural justice. The workman is deprived of effective cross-examination due to this and so the action of the manager was held to be not sustainable.
Code of Discipline in Industry, 1958-The code of discipline, inter alia, provides that;
(i) The management agrees not to support or encourage any unfair labor practices such as:-
1) Interference with right of the employee to enroll or continue union members;
2) Discriminating, restraint or coercion against any employee because of recognized activities of trade unions;
3) Victimization of any employees and abuse of change in any form;
(ii) The unions agree to discourage unfair labour practices such as:-
1) Negligence of duty;
2) Damage to property
3) Careless operation;
4) Interference with or disturbance to normal work; and
5) Insubordination.
It may be noted that the code imposes only certain moral obligations and that nobody is legally bound by it. However, Schedule V added to the industrial Disputes Act by the 1982 amendment enumerates a long list of unfair labour practices on the part of eh employer, union and workmen Such practices are prohibited and penalized by Section 25-T and 25-U of the Act.
2.9 Unfair Labour Practices :-
A new Schedule V has been added by the Industrial Disputes (Amendment) Act, 1982. In this Schedule unfair labour practices have been defined. It contains a list of such practices as are treated unfair on the part of the employers or their Trade Unions, or on the part of workmen and their Trade Unions.
i) Unfair labour practices on the part of employers and trade unions of employers.
1) To interfere with, restrain from, or coerce, workmen in the exercise of their rights to organize, from join or assist a Trade Union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say
a. threatening workmen with discharge or dismissal, if they join a trade union;
b. threatening a lock-out or closure, of a trade union is organized ;
c. Granting wage increase to workmen at crucial periods of the union organization.
2) To dominate, interfere with or contribute support, financial, or otherwise, to any trade union, that is to say
(1) an employer taking an active interest in organizing a trade union of his workmen ; and
(2) an employer showing partiality or granting favour to one of several trade union attempting to organize his workmen or to its members where such a trade union is not a recognized trade union.
3) To establish employer sponsored trade unions of workmen.
4) To encourage or discourage membership in any trade union by discriminating against any workman, that is to say-
(i) discharging or punishing a workman, because he urged other workmen to join or organize a trade union ;
(ii) discharging or dismissing a workman for taking part in the strike (not being a strike which is deemed to be an illegal strike under this Act) ;
(iii) changing seniority rating of workmen because of trade union activities ;
(iv) refusing to promote workmen to higher posts on account of their trade union activates ;
(v) giving unmerited promotions to certain workmen with aa view to creating discord amongst other workmen, or to undermine the strength of their trade union ;
(vi) Discharging office-bearers or active members of the trade union on account of their trade union activities.
5) to discharge or dismissed workmen-
a. By way of victimization;
b. Not in good faith, but in the colorable exercise of the employer's right;
c. By falsely implicating a workman in a criminal case on false evidence or on concocted evidence;
d. For patently false reasons;
e. On untrue or trumped up allegations of absence without leave;
f. In utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;
g. For misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman thereby leading to a disproportionate punishment.
6) To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike.
7) To transfer a workman mala fide from one place to another, under the guise of following management policy.
8) To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a pre-condition to allowing them to resume work?
9) To show favoritism or partiality to one set of workers regardless of merit.
10) To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent workmen.
11) To discharge or discriminate against any workmen for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.
12) To recruit workmen during a strike which is not an illegal strike?
13) Failure to implement award settlement or agreement.
14) To indulge in acts of force or violence.
15) To refuse to bargain collectively, in good faith with the recognized trade unions.
16) Proposing or continuing a lock-out deemed to be illegal under this Act.
ii) Unfair labour practices on the part of workmen and trade unions of workmen
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-organization or to joining any trade union, that is to say-
1) for a trade union or its members to picketing in such a manner that non-striking workmen are physically debarred from entering the work places ;
2) To indulge in acts of force or violence or to hold out threats of intimidation in connection with a strike against non-striking workmen or against managerial staff.
3. for a recognized uni8on to refuse to bargain collectively in good faith with the employer.
4. To indulge in coercive activities against certification of a bargaining representative.
5. To stage, encourage or instigate such forms of coercive actions and willful 'go slow', squatting on the work premises after working hours or 'gherao' of any of the members of the managerial or other staff.
6. To stage demonstrations at the residences of the employers or the managerial staff members
7. To incite or indulge in willful damage to employer's property connected with the industry.
8. To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work.
UNIT - III
3.1 TRADE UNIONS ACT 1926
Introduction
Indian Trade Union Act. 1926 and a few other labour legislations show that our Legislature has been very wisely benefited by the experience of other countries in the matter of the development of the trade union movement and has made progressive, just and fair provisions governing the important problem of industrial relationships, the formation of trade union and the settlement of industrial disputes. It to mean "Any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employer or between workmen and workmen or between employers and employers or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more trade unions
Object and Scope
The Trade Union Act provides elaborate provisions for registration of trade unions and cancellation thereof. The machinery for this under different levels is also contemplated. The Act lays down the objectives of the Trade Union and enumerates the rights, liabilities and immunities of Trade Unions.
The Trade Union Act provides elaborate provisions for registration of trade unions and cancellation thereof. The machinery for this under different levels is also contemplated. The act lays down the objectives of the Trade Union and enumerates the rights, liabilities and immunities of Trade Unions.
3.2 Trade Union-Definition :-
Under Section 2(h), any combination
(a) For regulating the relation between:-
(i) Workmen and employers; or
(ii) Workmen and workmen; or
(iii) Employers and employers; or
(b)Imposing restrictive conditions on the conduct of any trade or business can be said to be a trade union. Such combination may be temporary or permanent and will include any federation -of two or more Trade Unions.
The definition makes it clear that the combination or association must be by persons engaged in trade, business or industry. Further, such combination must be with the object of regulating relationi1t employers or employees or imposing restrictive conditions on the conduct of any trade or business.
Elements or minimum requirements for Trade Union
The minimum conditions precedent forms bringing in the definition of Trade Union under the Act are;-
1. There must be combination of workmen or employers';
2. There must be trade or business; and
3. The main object of the Union must be to regulate relation of employers and employers and employees or to impose restrictive conditions on the conduct of any trade or business
3.3 Appointment of Registrars :-
The appropriate Government shall appoint a person to be the Registrar of Trade Unions for each State. The appropriate Government is also authorized to appoint Additional and Deputy Registrars of Trade Unions. They shall work under the superintendence and direction of the Registrar. The Appropriate Government shall by an order specify and define the local limits within ~ which any Additional or Deputy Registrar shall exercise and discharge his powers and functions. The Additional and Deputy Registrar shall exercise and discharge such powers and functions of the Registrar as may be specified by an order issued by the appropriate Government. If any such Additional or Deputy Registrar is appointed and exercises and discharges the powers and functions of a Registrar in an area within which the registered office of a Trade Union is situated, he shall be deemed to be Registrar in relation to the Trade Union for the purpose of this Act.
3.4 Mode of Registration :-
A Trade Union may be a registered, unregistered or a recognized Trade Union. There is basic distinction between these different Trade Unions. The members of a recognized and registered Trade Union enjoy such benefits as the members of an unregistered Trade Union do not.
Any seven or more members of a Trade Union may apply for registration of the Trade Union. All the members applying for registration must subscribe their names to the rules of the Trade Union and also comply with the provisions of the Act relating to registration of Unions:
Provided that no Trade Union of workmen shall be registered unless at least ten percent, or one hundred of the workmen, whichever is less, engaged or employed in the establishment or industry with which it is connected are the members of such Trade Union on the date of making of application for registration:
Provided further 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 who are workmen engaged or employed in the establishment or industry with which it is connected.
Application of Registration
According to the provisions of the Act a trade Union' may become a registered Trade Union in the following manner:
1. An application should be sent .to the Registrar in which seven or more members of such Union must subscribe their names. At least seven members must subscribe names to the rules of the Trade Union.
2. The application in form "A" should be accompanied with a copy of rules of the Trade Union and a statement of the following particulars:
(a) The names, occupations, and addresses of the members making the application
(aa) in the case of a Trade Union of workmen, the names, occupations and addresses of the place of work of the members of the Trade Union making the application;
(b) The name of the Trade Union and the address of its head office; and
(c) The titles, names, ages, addresses and occupations of the office bearers of the Trade Union.
3. A general statement of the assets and liabilities of the Trade Union prepared in the prescribed form and containing such particulars as may be required should be sent with the application to the Registrar where a Trade Union has been in existence for more than one year before the making of an application for its registration.
Provisions to be contained in the rules of a Trade Union
Every registered Trade Union is required to have written rules dealing with certain matters specified in Schedule II of the Central Trade Union Regulations, 1938. These rules generally determine and govern the internal administration of the Trade Union. Trade Union shall be entitled to registration under this Act, if: the executive of the Trade Union is constituted in accordance with the provisions of this Act ; and the rules of Trade Union provide for the following matters, namely :
a. The name of the Trade Unions;
b. The whole of the objects for which the Trade Union has been established
c. The whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes shall be purposes to which such funds are lawfully applicable under this Act
d. The maintenance of a list of the members of the trade Union and adequate facilities for the inspection thereof by the office bearers and member of the Trade Union.
e. The payment of a minimum subscription by members of the Trade Union which shall not be less than-
(i) one rupee per annum for rural workers;
(ii) Three rupees per annum for workers in other unorganized sectors; and.
(iii) twelve rupees per annum for workers in any other case;
f. the conditions under which any member shall be entitled to any benefit assured by the rules and under which any fine or forfeiture may be imposed on the members ;
g. The manner in which the rules shall be amended varied or rescinded;
h. The manner in which the members of the executive and the other office bearers of the Trade Union shall be elected and removed;
hh. the duration of period being not more than three years, for which the members of the executive and other office-bearers of the trade Union shall be elected;
i. the safe custody of the funds of Trade Union, and annual audit, in such manner as may be prescribed, of the accounts thereof, and adequate facilities for the inspection of the account books by the office bearers and members of the Trade Union ; and
j. The manner in which the Trade Union may be dissolved.
Registration
The Registrar will register the Trade Union if he is satisfied that the Trade Union has complied with all the requirements of this Act in regard to registration. The Registrar shall register the Trade Union by making necessary entries in the register; to be maintained in such form as may be prescribed. The particulars relating to the Trade Union contained in the statement accompanying the application for registration shall be entered in the register.
Cancellation of Registration
Power to withdraw or cancel registration of a trade Union is given to the Registrar. The Registrar can exercise his power in the following cases;-
1. On the application of the Trade Union to be verified in the prescribed manner.
2. If the Registrar is satisfied that the certificate of registration has been obtained by fraud or mistake.
3. Where the Trade Union has ceased to exist.
4. If the Union has willfully and after notice from the Registrar contravened any provisions of this Act or allowed any rule to continue in force which is inconsistent with the provisions of the Act.
5. Where the Union has rescinded any rule providing for any matter provision for which is required to be made by section 6.
6. According to clause (c) of Section 10 if the Registrar is satisfied that a registered Trade Union of workmen ceases to have the requisite number of members, the registration can be cancelled,
The Registrar on receiving an application from the Union for withdrawal or cancellation of registration must before granting the prayer, satisfy himself that the withdrawal or cancellation of registration was approved by a general meeting of the Trade Union or if it was not so approved it had the approval of the majority of the members of the Trade Union, For this purpose he may call for such further particulars as he thinks necessary and may also examine any officer of the Union.'
Except when the registration is withdrawn on an application by the Union itself, the Registrar must give to the Trade Union not less than two months' previous notice in writing specifying the ground on which it is proposed to withdraw or cancel the certificate of registration, It is quite clear from the provisions of section 10 of this Act that no such notice as aforesaid by the Registrar to the Union is necessary, when the registration is withdrawn or cancelled on an application by the Union itself.
The Registrar is empowered to withdraw or cancel registration of a trade union if he is satisfied that the certificate of registration was obtained by fraud or mistake or that the union has ceased to exist, or has willfully contravened the Trade Union Act or rules there under. The Registrar should give not less than two months notice stating ground for such withdrawal or cancellation if it is not on the application of the trade union. If The Registrar refuses to register the trade union or withdraws or cancels I certificate of registration, the aggrieved person can prefer an appeal within sixty days 1 before the' High Court, if the head office of the trade union is situated within the limits of a presidency town and in other cases before the local Civil Court of original jurisdiction as the appropriate Government may appoint," The appeal court may dismiss the appeal or direct the Registrar to register the unions or set aside the order of withdrawal or cancellation of registration. From the dismissal order of the local Civil Court a second appeal is maintainable before the High Court. The appeal courts are to follow the procedure under the Civil Procedure Code. Once the registration is cancelled, the Registrar cannot review and withdraw the same
In Radheyshyam Singh v. Balaazdoor Union.
In this case, the Registrar of Trade Unions, Bihar, cancelled the respondent unions' registration under Section 10(b) on the ground that the respondent willfully refused the appellant and a few others to enroll as ~ members of the union and thus contravened Section 21 of the Act. The Registrar gave only a notice of show cause contemplated under the proviso to Section l0 and that no other prior notice stating the allegation was given. Upholding the order of the appellate Court which set aside the cancellation order of the Registrar, the High Court observed that the word 'willfully I introduces means rea or blameworthy mind and that the alleged, contravention of the provisions of the Act mayor may not be willful. Only contravention of the provisions of the Act can be a ground for a cancellation. To Sectional and that no other prior notice stating the allegation was given. Upholding the order of the appellate Court which set aside the cancellation order of the Registrar, the High Court observed that the word. Willfully I introduces means rea or blameworthy mind and that the alleged, contravention of the provisions of the Act mayor may not be willful. One contravention of the provisions of the Act can be a ground for a cancellation. Hence, the Registrar must ascertain whether contravention was willful or otherwise. For this purpose notice must be given to the union.
3.5 Amalgamation of Trade Unions :-
The method, for amalgamation of two or more Unions is provided for in section 24 of. The Act. Any two or more registered Trade' Unions may become amalgamated together as one Trade Union with or without dissolution or division of the funds of such Trade Unions. But to support any amalgamation the votes of at least one-half of the members of each and every such Trade Union entitled to vote must be recorded and also that at least sixty per cent of the votes recorded must be in favour of the proposal of amalgamation.
Section 25 of the Act 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 shall be sent to the Registrar. Where the head office of the amalgamated Trade Union is situated in a different State, notice of amalgamation shall be sent to the Registrar of such State.
The Registrar of the State in which the head office of the amalgamated Trade Union is situated, shall, if he is satisfied that the provisions of this Act in respect of amalgamation have been complied with and the Trade Union formed thereby is entitled to registration under section 6, register the Trade Union in the manner provided in section 8 of the Act. The amalgamation shall have effect from the date of registration.
3.6 Rights and liabilities of Trade Union :-
Finance of Trade Unions
General Funds.-Finance is an all important pre-requisite for effective functioning of trade union. The right to collect and conserve the fund is recognized to register trade unions by the Trade Union Act. Two kinds of funds, namely general and political, are contemplated in the Act. The general and separate or political funds should not be mixed up and that no compulsion shall be exerted against members to contribute towards political funds. The general funds shall be utilized only for the purpose stipulated in Section 15 they are:-
(a) For the payment of salaries, allowances and expenses to the office bearers of the trade unit
(b) For the payment of expenses of the administration of the trade union, including audit of accounts thereof
(c) For the prosecution or defense of any legal proceeding to which the trade union or any member of it is a party when such prosecution or defense is undertaken for the purpose of securing or protecting any rights of the trade union as such or any rights arising out of the relations of any For the conduct of trade disputes of the trade union or any member thereof member with his employer a person whom the member employees
(d) For the conduct of trade disputes of the trade union or any member thereof
(e) For giving compensation to members for loss arising out of trade disputes
(f) For giving allowances to members or their dependants on account of death, old age, sickness, accident or unemployment of such members
(g) For the issue of or the undertaking of liability under policy of assurances on the lives of members against sickness, accident or unemployment
(h) For providing education, social, religious benefits to the members or for their dependants;
(i) To the upkeep of periodicals published for the purposes of discussing questions affecting employers or workmen
(j) For the payment in furtherance of any of the objects of which the general fund of the trade union may be spent, etc. and to other objects notified by the appropriate Government in the official Gazette.
3.7 Workmen's Compensation Act, 1923 :-
Introduction
In any industrial society the problem of labour management relations becomes so important that some sort of social insurance becomes necessary to provide adequate protection from losses caused to the labourers by accidents. With a view to improve the condition of the workmen some social insurance legislations have been enacted. The Workmen's Compensation Act is one of the earliest measures adopted to benefit the labourers. It was passed in 1923 and enforced on 1st July, 1924. Since then a number of amendments have been made from time to time so as to suit the changing needs and conditions of the workmen.
It was as early as 1884, that the question of payment of compensation to workmen involved in serious or fatal accidents was raised when the factory and mining inspectors drew the attention of the Government to this human problem which warranted immediate legislative protection of workmen. But its importance was realized by the Government of India only at the end of 1920, when public opinion was invited on connected issues. A committee consisting of members of the Legislative Assembly, employers, workers or representatives of workers, medical and insurance experts was constituted.
It was on the basis of the recommendation of the committee that Workmen's Compensation Act was enacted in 1923 which provided for setting up of Tribunals on the American model to decide disputes, appointment of special Commissioners with wide powers and a limited right of appeal to the High Court.
Dependant
Section 2(1) (d) of the Act defines dependant. Under this sub-section relations of a workman are divided into three classes. Dependants belonging to any category may claim simultaneously.
(a) The first category includes a window, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter and a widowed mother. They are deemed in law as dependants of a workman whether they are in fact dependant on the earnings of the workman or not.
(b) In the second category of dependants are included a son and a daughter, they have to fulfill the following conditions namely:
(1) they must be wholly dependent on the earnings of the workman at the time of his death;
(2) They must be infirm; and
(3) They must have attained the age of 18years.
(c) The following are included in the third category of dependants provided they are wholly or in part dependant on the earnings of the workman at the time of his death:
(i) a widower,
(ii) a parent other than a widowed mother,
(iii) i. a minor illegitimate son,
ii. An unmarried illegitimate daughter.
iii.A daughter whether legitimate or illegitimate or adopted if married and
minor, or if widowed
(d) a minor brother or an unmarried sister or a widowed sister if a minor,
(e) a widowed daughter-in-law,
(f) a minor child of a predeceased son,
(g) a minor child of a predeceased daughter where no parent of the child is alive or,
(h) a paternal grandparent if no parent of workman is alive.
3.8 Partial Disablement :-
Section 2(1) (g) defines partial disablement. Such disablement is of two kinds.
a. Temporary partial disablement.
b. Permanent partial disablement.
The test of such disablement is the reduction in the earning capacity of the workman. If the earning capacity of a workman is reduced in relation to the employment he had been at th4e time of the accident resulting in such disablement, it is temporary partial disablement. If the injury caused by an accident results in the reduction of the earning capacity in respect of employment which the workman was capable of undertaking at the time of accident it is permanent partial disablement.
The following propositions are helpful in deciding the nature of disablement:
1. Earning is not the same as earning capacity. There is difference between earning of a person and his capacity to earn.
2. Rise in earning may be because of various factors and rise in wages is no decisive of no loss of earning capacity.
3. Loss of physical capacity is not co-extensive with loss of earning capacity.
4. Loss of physical capacity or physical incapacity may be relevant in assess in to what extent there is loss of earning capacity for every employment which the workman was capable of undertaking at that time or the employment in which he was engaged at the time of the accident as the case falls for consideration.
In Upper Doaba Sugar Mills Ltd. v. Daulat Ram
In this case, a blacksmith had lost the index and middle finger, the rest of the hand, namely, thumb and other two fingers could be utilized in work. The test laid down in this case to determine the nature of disablement was that: "It is not enough if it is found that the workman is disabled from performing his duties of a blacksmith fitter: the Court should consider whether he has been incapacitated from undertaking any employment and whether in that other employment the rest of the hand could be utilized.
3.9 Total Disablement :-
Total Disablement' is defined in section 2(1) (1) of the Act. When a workman is incapacitated of doing any work which he was capable of performing at the time of accident resulting in such disablement, it is total disablement. Incapacity for all work is different from the incapacity for the work which a workman was doing at the time of accident.
It was held in National Insurance Co. Ltd. V. Mohd, Saleem Khan and another that if the workman is in capacitated to do all the work which he was capable of performing at the time of accident it is a case of total disablement. It may be that in view of the injuries the workman is capable enough to render some other sort of work, but still when there is incapacity to do the work which he was capable of performing by the date of the accident it is a case of total disablement. The certificate of the doctor of physical impairment and loss of physical function is not material in deciding the question of total disablement.
In Hutti Gold Mines Co. v. Ratnam
In this case, it was held that, "where an employee was discharged by the employer as if his injury rendered him unfit for any kind of work, it is clear proof that there was total disablement. The Court should not accept the explanation which is tendered for the first time before it that the employer did not make any offer to the employee of any other employment since no such employment was possible or available". The proper inference in such a case would be that not even that employer had in mind any doubt that there was no employment which such employee could hold after the injury. It would be, in such a case, for the employer to suggest in the course of proceedings that the employee could obtain suitable employment commensurate with his physical condition after the injury sustained by him. If, there was no such suggestion by the employer, it was surely unnecessary for the employee to produce evidence that he went from one place to another in search of employment but could find none agreeable to employ him.
The definition of 'total disablement' speaks of 'incapacity for all work', and not 'incapacity to work'. The use of preposition "for" instead of "of" makes it amply clear that it is the incapacity to get employment which is relevant and not the physical incapacity to undertake any work.
Wages
The term "wages" as defined in section 2(1) (m) includes any privilege or benefit which is capable of being estimated in money, the definition is not exhaustive. The following are not wages:
a. Travelling allowance or the value of any travelling concession;
b. Contribution paid by the employer of a workman towards;
(i) any pension, or
(ii) Any provident fund;
c. Any sum paid to a workman to cover any special expenses incurred on him by the nature of his employment.
d. Leave carried forward to next year.
The term "wages" has different meanings under the Payment of Wages Act, the Factories Act and Industrial Disputes Act. Compensation to an injured employee under the Workmen's Compensation Act is determined on the basis of wages of the injured employee. The wages has to be determined according to the definition of "wages" provided in this Act.
3.10 Workman :-
According to section 2(1) (n) workman means any person WHO IS:
(i) A railway servant as defined in clause (34) of section 2 of the railways act, 1989 except those who are permanently employed in any administrative district or sub-divisional office of a railway. Out of this class also if a person is employed in any capacity as is specified in schedule 11 he will be a workman.
(ia)Any person who is-
(2) a master, seaman or other member of the crew of an aircraft;
(3) a captain or other member of the crew of an aircraft;
(4) a person recruited as driver ,helper ,mechanic, cleaner or in an any other capacity in connection with a motor vehicle,
(5) a person recruited for work abroad by a company, And who is employed out side India in any such capacity as is specified in schedule 11 and the ship, aircraft or motor vehicle, company, as the case may be, is registered in India, or;
(ii) (a) Any person who is employed in any such capacity as is specified in Schedule 11, whether the contract of employment was made before or after The passing of this Act and whether such contract is express or implied, or Oral or in writing.
(2) where the workman is dead any reference to a workman shall include Dependants as defined in this Act.
The following are not workman:
(1) Any person working in the capacity of a member of the Armed Forces of the Union of India.
3.11 Employer's liability for Compensation :-
The liability of an employer to pay compensation is limited and is subject to the provisions of the Act. Under sub-section (1) of section (3) the liability of the employer to pay compensation is dependent up on the following four conditions
(a) personal injury must have been caused to a workman:
(b) such injury must have been caused by an accident:
(c) the accident must have been arisen out of and in the course of employment:
(d) The injury must have resulted either in death of the workman or in his total or partial disablement for a period exceeding three days.
Personal injury
Injury ordinarily refers to a physiological injury. Personal injury does not mean only physical or bodily injury but includes even a nervous shock, a mental injury or strain which causes a chill. It is a term wider than bodily injury. In Indian News Chronicle v. Mrs. Lazarus, a workman, employed as an electrician had frequently to go to a heating room from a cooling plant, was attacked by pneumonia and died after a short illness of five days. The Court held that the injury caused by an accident is not confined to physical injury and the injury in the instant case was due to his working and going from a heating room to a cooling plant as it was his indispensable duty. In case of personal injury caused to a workman by an accident arising out of and in the course of employment unless the right to compensation is taken away under section 3(5), the employer becomes liable to pay the compensation as soon as the aforesaid personal injury is caused to the workman.
3.12 Accident :-
The expression "accident" has not been defined in the Act. It means any unexpected mishap, untoward event, or consequence brought about by some unanticipated or undesigned act which could not be provided against. The basic and indispensable ingredient of the accident is the unexpectation. Whether a particular occurrence is accident or not, it must be looked upon not only from the point of view of the person who suffers it. All though an accident means a particular occurrence which happens at a particular time but it is not necessary that the workman must be able to locate it in order to succeed in his claim. There would be cases, where a series of tiny accidents, each producing some unidentifiable results and operating cumulatively to produce the final condition of injury constitute together an accident within the meaning of this section.
Arising out of and in the course of employment.-The expression "arising out of" suggests the cause of accident and the expression "in the course of" points out to the place and circumstances under which the accident takes place and the time when it occurred. A casual connection or association between the injury by accident and employment is necessary. The onus is on the claimant to prove that accident arose out of and in the course of employment3.the employment should have given rise to the circumstances of injury by accident. But a direct connection between the injury caused by an accident and the employment of the workman is not always essential. Arising out of the employment does not mean that personal injury must have resulted from the mere nature of employment and is also not limited to cases where the personal injury is referable to the duties which the workman has to discharge4.The words "arising out of employment" are understood to mean that "during the course of the employment, injury has resulted from some risk incidental to the duties of the service which unless engaged in the duty owing to the master it is reasonable to believe the workman would not otherwise have suffered. There must be a causal relationship between the accident and employment. If the accident had occurred on account of risk which is an incident of the employment; the claim for compensation must succeed unless of course the workman has exposed himself to an added peril by his own imprudence.
In the course of employment refers to the period of employment and the place of work. It is neither limited to the period of actual labour nor includes acts necessitated by the workman's employment. "Another important question", as pointed out by Francis H. Bohlen, is, "how far a servant is entitled to go outside his appointed sphere in obedience to the orders of a superior". Of course, if such superior has the power to fix the spheres of labour for the workman, by obeying them, merely passes into the a new "course of employment", but even if he has not, it seems that the servant is justified if he honestly believes that such superior is authorized to employ him.
UNIT- IV
4.1 THE EMPLOYEES STATE INSURANCE ACT - 1948
Establishment of ESI Corporation
Pursuant to the power granted to the Central Government under Section 3 of the Act the Central Government established the corporation on 1-10-1948 by the issue of notification in the official Gazette. The Corporation is a body corporate having perpetual succession and a common seal and shall sue and be sued.
Constitution of the Corporation
The corporation consists of the member representing the governments at the Centre and States. Parliament, medical council, employers and employees. The Chairman and Vice Chairman of the Corporation are nominated by the Central Government. The Director General of the Corporation will be and ex-officio member. He is vested with the powers to manage the affairs of the corporation. The other members of the corporation are chosen as follows:-
1) not more than five members nominated by the Central Government ;
2) one person nominated by the state government of each state in which the Act is in force;
3) one person nominated by the Central Government of each State the Union territories
4) five persons representing employers to be nominated by the Central Government in consolation with the employees organization;
5) five persons representing employees nominated by the Central Government in consolation with the employees' organization;
6) two persons representing medical profession to be nominated by the Central Government after consulting organization of medical practitioners;
7) three members of Parliament of whom two shall be from the Lok Sabha and one from the Rajya Sabha who are elected by the concerned houses.
4.2 Standing Committee :-
Constitution
Standing committee is constituted from among the members of the corporation as follows:-
i. a chairman nominated-by Central Government
ii. three members of the corporation nominated by Central Government
iii. three .members of the corporation representing three State Governments as nominated by the Central Government ;
iv. 8 members elected by corporation from among its members ;
v. three representing employers, three representing employees;·
vi. one representing medical profession; and
vii. One representing the Parliament.
The chairman and representatives of the Central and State Governments 'hold office during the pleasure of the Central Government. The other members of the committee elected by the corporation hold office for two years from the date on which election is notified. However, any member may continue after the expiry of his tenure until election of his successor is notified.
Powers of the Standing Committee.-Standing Committee is 'constituted to administer the affairs of the corporation. It is to function in accordance with the regulations framed by the corporation. Its activities are controlled and supervised by the corporation.
The committee has powers, to administer the affairs of the corporation under the general provision and matters as specified in the regulations for the corporation's consideration and decision.
Regional Provident fund commissioner V/s Srikrishna Metal manufacturing Company
In this case, prescribed the following tests to find out whether particular' activity can be brought within the definition of factory:
1. Where a factory is engaged in industrial activities, one of which is its primary or dominant activity, the latter will determine the character of the factory
2. where a factory is engaged simultaneously in different industrial activities and one of these is in relation to the industry specified in schedule I, such a factory can be said be engaged in the industry mentioned in the schedule ; and
3. Whether or not factory is engaged in any industry is a question of fact to be determined in terms of the facts and circumstance: of each case.
a. Hence, where a company carried on four industries comprising
b. manufacture of brass, copper and 'kasa' circular sheets ;
c. milling body ;
d. flour mills ; and
e. a saw mill in the same premises and engaged more than persons (now 10 persons) it was held that it fell within scope of Section 1(3)(4).
4.3 Medical Benefit Council :-
Constitution
Medical benefit council set up by the Central Government to advise the corporation on medical questions consists of the Director General of Health Services as its official chairman, Deputy Director General, Medical Commissioner of the Corporation, three members representing employers nominated by Central Government, three members representing medical profession nominated by Central Government and one representative from every State nominated by State Government. Deputy Director General holds office during the pleasure of the Central Government. Similarly, representatives of the State Government hold office during the State Government's pleasure. Representatives of the employers, employees and medical profession hold office for four years from their nomination.
The powers and duties of the Council
The council is to advise the Corporation and the standing committee regarding matter relating to administration of medical benefits, certification for purposes of the grant of benefit and other concerned matters. The council enjoys such powers and performs such duties as may be prescribed in relation to the administration of medical benefits, in connection with medical treatment and assistance. The council also performs other duties in connection with medical treatment and assistance as specified in the regulations.
Disqualifications
A person is disqualified to be chosen or to continue as a member of the corporation, standing committee or medical benefit council if :-
(1) he is declared to be of unsound mind by a competent court ; or
(2) He is. an undercharged insolvent; or
(3) he has directly or indirectly by means or by his partner any interest in a subsisting contract with any work being done for the corporation except as a medical practitioner or a shareholder (not being a director) of a company; or .
(4) He is convicted of an offence involving turpitude whether before or after this Act came into force.
In C.A.R. & A. V. Service v. Regional Provident Fund Commissioner the petitioner, a cultural organization registered under the Societies Registration Act, 1860 was rendering specialized service in India in the field radios, television and audio visual aids to the Christian churches and Christian agencies. There were 42 persons in the permanent employment of the petitioner. It was not run on commercial line but wholly dependent on the benevolence and grants received from several churches and other charitable agencies. The respondent issued memo holding that the petitioner comes within the purview of schedule I head "Trading and Commercial Establishment" and directed to depose provident fund amount of Rs. 35,644/- under Section 7-A(3) of the Act.
. Purposes for which the E.S.I. Fund can be utilized
Section 28 enumerates various purposes as follows:
(1) payment of benefits and revision of medical treatment' and attendance to insure persons and their families
(2) to meet the charges and costs in connection with medical attempt and attendance to insure persons ail their families;
(3) payment of fees and allowances to members of the Corporation, Standing Committee, medical benefit council, regional board, local Committee and regional and local benefit councils ;
(4) Payment of salaries and allowance gratuities, compensatory allowances, bonus contribution to provident fund and other benefit funds to officers and servants of the Corporation.
(5) Meet the expenditure in respect of officers and other services set up for the purposes of giving effect to the provisions of the Act;
(6) establishment and maintenance of hospitals, dispensaries and other institutions and the provisions of medical and other ancillary services for the benefit of insured persons and their families
(7) payment of contribution to any State Government, legal authority, private body or individual l towards the cost of medical treatment and assistance to insured persons and to their families
(8) to meet the cost including. all expenses of auditing accounts of the Corporation
(9) to meet the cost including all expenses of employees insurance court set up under the Act
(10) payment of any sums under any contract entered into for the purposes of this Act by the Corporation, Standing Committee or an officer duly authorized by them
(11) payment of any sums under any decree, order or award of any Court or Tribunal against the Corporation or officer or servant for any act done in the execution of his duty or under the compromise or settlement of any suit or claim instituted or more against the Corporation ;
(12) to meet the cost and other charges instituting or defending any civil or criminal proceedings arising out of or under the Act.
(13) To meet the expenditure within the limit prescribed for the improvement of health and welfare of the insured persons and for the rehabilitation, re-employment of insured persons; and
(14) Such other expenses as may be authorized by the Corporation with previous approval of eh Central Government
Rate of Contribution
No contributions are payable by or on behalf of an employee whose daily wages are below Rs 50.5 Employer's share is 5 per cent" of the basic pay plus dearness allowance. Employee's share is fixed at 1.3/4%. The method for computing average daily wages is laid down in the first schedule of the Act. The principal employer is to pay both' the employer's contribution and the employee's contribution of each week in respect of the whole or part of which wages are payable to the employee and not otherwise.
~--
4.4 Benefits under the Act :-
The E.S.I. Act which is primarily focused to introduce certain welfare measures provides the following benefits to the' insured persons
(1) sickness benefit by way of periodical payment during the period of certified sickness ;
(2) sickness benefit by way of periodical payment during the period of certified sickness ;
(3) temporary disablement benefit, paid periodically during the certified period of disablement due to employment injury
(4) temporary disablement benefit, paid periodically during the certified period of disablement due to employment injury
(5) Funeral benefit.
Sickness Benefit
Sickness benefit is payable to an insured person in the form of periodical payment. The sickness is to e certified by a "duly appointed medical practitioner or any other person authorized by the corporation. To avail of the sickness. benefit the sickness should have occurred during any benefit period as defined in the Act and if during the corresponding contribution period weekly contribution in respect of him were payable for not less than 13 weeks.
Sickness benefit is not pa able for more than '56 days in any two consecutive benefit periods.
The following conditions are to be specified to entitle sickness benefit
i. the person must be under medical treatment at the dispensary, hospital or institution provided under the Act and must carry out the instructions given by the medical officer ;
ii. while under treatment he must not do anything might reduce his chances of recovering
iii. he should not leave the area in which medical treatment provided under the Act is being given, without the permission of the medical officer or such other authority
iv. He must allow himself to be examined by any duly appointed officer of sick visitor authorized by the Corporation.
Maternity Benefit
This is in the form of periodical payment made available to insured woman in cases of confinement. Miscarriage, sickness arising out of pregnancy of premature birth of child.
Extent of Benefit
She is entitled to maternity benefit at the daily rate specified in the first schedule for all days of which does not work during a period of 12 weeks out of which not more than six/weeks shall precede the expected day of confinement. if the insured woman dies during her confinement or during the period weeks immediately following ' confinement leaving behind a new of six week immediately following her confinement leaving behind a new born child, to maternity benefits are payable for the whole of the period. If the child also dies during the above period then the benefit payable to the person nominated by the woman and if there is no sue nominee to the legal representatives.'
Disablement Benefit
The Act provides for disablement benefit to insured persons suffering from disablement due to employee injury sustained to an employee a factory or establishment to which the Ac applies.
Employment injury means personal Injury to an employee caused b. accident or occupational disease .arising out of and in the Course of his employment which is an insurable employment whether the accident Occurs or the occupational disease is contracted within or outside the territorial Limits of India.
The disablement benefit is payable to an insured person as follows:
a. for tern temporary disablement at full rate if the disablement continues for not less than three days excluding the day of .accident ;
b. For permanent total disablement at full rate; and
c. For permanent. Partial disablement resulting from an employment injury at a percentage of the full rate as provided in Section 4 of the Workmen's Compensation Act.
Medical benefit
Medical benefit is available to an insured person and to his family members. The benefit is made after medical treatment or assistance In the case of injury, etc. in the of out patient treatment, by visiting the home of the insured-person and also by treatment inpatient in hospital or other medical benefit The insured person and his family members are entitled to medical bene 0 such account and ~ such scale as may e provided by the Government or the Corporation." Only such medical treatment as is provided by the dispensary, hospital or other institution to which the insured person or his family is allotted as available to the insured person or his family. No claim for re-imbursement from the corporation of any expenses incurred in respect of any medical treatment is allowed except as provided under the regulations
UNIT-V
5.1 THE MINIMUM WAGES ACT 1948
Concept of wage
Economists and Sociologists have followed different theories regarding! Concept of wage. Subsistence wage theory, bargaining theory, purchasing power theory, marginal productivity theory, wages fund theory are some of them' Though these theories explain many aspects of wage problems, none is adequate as a general theory applicable in all circumstances.
The Supreme Court in Express Newspapers v. Union of India classified wages into three categories, namely, living wage, fair wage and minimum wage.
Living wage is one which as appropriate for the normal needs of the average e employee regarded as a human being living in a civilized community. It must provide not merely for absolute essentials such; as food, shelter and clothing but for a condition of frugal comfort estimated by current human standard. Marriage being a necessary factor, a wage which does not allow for matrimonial condition and the maintenance of about five persons in a home would not be treated as a living wage . Thus, a living wage should enable a male wage-earner to provide for himself and his family not merely the bare essentials of food, cloth and shelter but a measure of frugal comforts including education for children, protection against ill health, requirements of essential social needs -and a measure-of measure of insurance against more important misfortunes including old age.
'Article 43· of our Constitution provides that the State shall Endeavour to secure to all workers living wages, conditions of ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunity.
Fair Wage
Fair wage stands in between the .minimum wage and living wage. Fair wage is said to be a step towards the progressive real Title on of a living wage. A fair wage is settled above the minimum wage and goes through the process of approximating towards a living wage. While the lower limit to fair wage must obviously be the minimum wage, the upper limit is set by capacity of the industry to pay. That is, it depends on the present economic position as well as the future prospects of that industry. Factors like the productivity of labor, the prevailing rates of payment in similar occupations in the same and neighboring localities, the level of national income and it distribution and the place of the industry in the economy of the country are considered in fixing fair wages.
Minimum Wages
Minimum wages is one which can only provide for a bare subsistence. It is one which is sufficient to cover the bare physical needs of a worker and his family. Minimum wage is different from statutory minimum wage. The former is one which could be sufficient to cover the bare physical needs of a worker and his family; this is to be paid to the worker irrespective of the capacity of the industry to pay. If an industry is unable to pay its workmen at least the bare minimum wage it has no right to exist. The statutory minimum wage is one prescribed by statute and it may be higher than the bare subsistence or minimum wages providing for some measure of education, medical requirement and other amenities. The Minimum Wages Act, 1948 provides for fixing minimum wages in certain employments. It empowers the appropriate Government to fix different minimum rates of wages for different schedule employment, different classes of work in the same schedule employment, adult, adolescents, children and apprentices arid for different localities. Such minimum rates of wages would be fixed by the hour, day or by any longer period as may be prescribed.
The level of national income in India at present being so low it is not possible to prescribe by law of minimum wages which would correspond to the concept of living wage. The National Commission on Labour in its report observes that it is not possible to recommend fixation of minimum wage for the country's economy as a whole. It suggested that different minima for different industries fixed region wise will have greater appeal and function.
Wages
Wages means all remuneration, capable of being expressed in terms of money, which would if the terms of the contract of employment, express or implied, were fulfilled, be payable to person employed in respect of his employment or of work done in such employment and includes house rent allowance.
Wages do not include:
i. The value of:
(a) Any house accommodation, supply of light, water, medical attendance; or
(b) Any other amenity or any service excluded by general or special order of the appropriate Government;
ii. Any contribution paid by the employer to pay Pension Fund or Provident Fund or under any scheme of social insurance;
iii. Any travelling allowance or the value of any travelling concession.
Where a trip allowance was prescribed by a notification, the notification was held to be invalid because trip allowance is mean to compensate the extra cost which an employee is likely to incur when he moves out of his headquarter in connection with his employment; it clearly partaker's of the character of travelling allowance and travelling allowance according to the definition of the expression "wages" cannot form a component of the wages..
iv. Any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment Any gratuity payable on discharge.
Fixation of minimum rates of wages:-
Section 3 of the Act empowers the appropriate Government to fix minimum rate of wage payable to the employees employed in any emploYl1lent mentioned in part or part II of the schedule.' The Government shall review minimum rates of wages to fix and revise the minimum rate if necessary at such intervals as it may think fit.
The internals statue shall not .exceed five years. Under sub-section (I-A), the appropriate Government may re am from fixing wage in respect of employment where the number of employees in the whole State happened to be less than 1,000 engaged in such employment. Section 3 (l-A) makes it discretionary for the Government to fix minimum wages even for employments in which there are less than 1000 employees." Section 3(2) provides that the Government may fix minimum rates of wages for time work, that is (a minimum time rate) minimum rate of wages for piece work (minimum piece rate). When piece rate is fixed every worker will not earn the same amount for the day. Difference may exist from person to person in respect of the work done by each.
In fixing or revising the minimum rate of wages different minimum rate of wages may be fixed for:
a. Different scheduled employments ;
b. Different class of work in the same scheduled employment;
c. Adult, adolescent, children and apprentice;
d. Different localities
The minimum rates of wages may be fixed:
(a) By the hour
(b) By the day
(c) By the month or
(d) by such other longer wage period as may be prescribed.
Section 4 empowers the Government to fix or revise minimum wages consistent with the factors mentioned therein." -
The following circumstances are immaterial in fixation of wages:
1. The difficulties of the employer to carryon his business on the basis of minimum wages;
2. The financial capacity of the employer to pay the minimum wages;
3. The fact that the employer company has incurred loss' during the previous years
4. The employer's difficulties to import raw materials.
However, as held in Hydro Pvt. Ltd. v. Tillie Workmanship" fixing fair wages the financial capacity of employer and the wage scales prevailing in, the comparable industries in the region are some of the relevant considerations. Minimum wages must be paid irrespective of the extent of the profit, the financial condition of the seta fitment or the availability of the workmen on lower wages.
5.2 Different minimum rates of wages :-
Under Section 3(3) while fixing r revising minimum rates of wages different minimum rates may be fixed .y the Government for:
1) Different scheduled employments;
2) Different class of work in the same scheduled employment
3) Adults, adolescents, children and apprentices;
4) Different localities.
The minimum rates of wages may be fixed for different wages peri0d
i) by the hour
ii) by the day
iii) by the month;
iv) by such other long wage period as may be prescribed.
The provision authorizes the Government to fix different rates of wages for different class of works in the same scheduled employments. Therefore, it is within the power of the State Government to further classify the skill employees and fix different rates of minimum wages' in respect of different class of skilled employees. In fixing the rates, the Government can consider nature, experience; merit and quality of work involving skill of different kinds of skilled employees.
5.3 Procedure-for fixing or revising Minimum wages :-
Section 5 of the Act provides that in fixing minimum rate of wages in respect of any scheduled employment under the Act or in revising the minimum wages so fixed the Government shall either?
(i) Appoint as many committees and sub-committees as it considered necessary to hold enquiries and advice it in respect of such fixation or revision as the case may be ;or
(ii) By notification in the official Gazette published its proposals for the information of persons likely to be affected thereby and specify the information of persons likely to be affected thereby and specify a date not less than two months from the date of notification on which the proposals will be taken into consideration.
The Government are considering the advice of the committee and all representations may by notification fix or revise the minimum rate of wages which shall come into fork after the early of three months unless otherwise Provided in the notification. In the case of fixing or the revision of the minimum rate under (b) above, the appropriate Government shall consult the advisory board also. Power conferred upon the Government under section 5 is not an arbitrary one or an arbitrary one. The fixation of minimum wages upon the prevailing economic conditions, the cost of living in the place, the nature of the work to be performed and the conditions in which the work is performed.
The purpose of specifying the date in the notification is only to give an opportunity to such persons who may like to file objections within the time. It is not with the object of hearing objections on the specified date." The Full Bench of the Kerala High Court in Malayalam Plantations v. State of Kerala held that: "The whole idea behind specifying the date as required by Section 5(1) (b) is that the person - who is likely to file objection against the draft proposals should know till what date they have to make it, so that the Government is precluded from taking a decision upon the draft proposals until the expiry of the date specified. There is, however, nothing in the statute which requires that the Government should consider it on that date and not thereafter. In fact, it seems to us that it will be impossible for Government to consider all the representations received of one and the same date, viz., the date specified." The above view of the Kerala High Court is followed by the Allahabad High court.
Overtime
Section 14 provides that where an employee works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him overtime. An employee entitled to overtime must be such whose minimum rate of wage is fixed under this Act by the hour, by the day or by such a longer wage period as may be prescribed. The overtime shall be payable for every hour or for part of an hour so worked in excess at the rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher. Nothing in this Act shall prejudice the operation of the provisions of Section 59 of the Factories Act, 1948 in any case where those provisions are applicable.
Wages of worker who works for less than normal working day
Section 15 provides that if an employee whose minimum rate of wages have been fixed under this Act by the day, works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day, he shall be entitled to receive wages for a full normal working day, unless the failure to work is caused by his unwillingness to work and not by the omission of the employer to provide him with work, and in such other cases and circumstances as may be prescribed.
5.4 The Factories Act 1948 :-
Introduction
Increasing number of accidents involving workers has drawn our Attention towards safety measures in the factories. Accidents not only affect workers losing their livelihood but also employers in terms of Compensation to be paid to the workers. Accidents are a significant Cause of dispute between workers and management. With the coming in of new set up of industries e.g., steel production, engineering, Fertilizers, chemicals and petro-chemicals, oil refining etc., and increasing Use of machine power, industrial complexities in terms of process of Production has increased. This has given rise to hazards and risks. Safety measures are to be adopted against such risks and hazards. The Factories act, 1948 has laid down certain measures for the safety of Workers employed in the factories. In this lesson, we shall study about the safety measures in factories.
1. Need for safety measures
Safety measures result in improving the conditions under which workers are employed and work. It improves not only their physical efficiency, But also provides protection to their life and limb. Inadequate provision of safety measures in factories may lead to increase in the number of Accidents. Human failure due to carelessness, ignorance, inadequate Skill, and improper supervision have also contributed to accidents, and the consequent need for safety measures. Other factors giving rise to the need for safety measures are:
· Rapid industrialization with its complexities in manufacturing process and layout;
· Expansion or modifications in existing factories;
· Setting up of new industries involving hazards not known earlier;
· Lack of safety consciousness on the part of both workers and management;
· Inadequate realization of the financial implications of accidents.
2. Safety Measures
Safety measures which are provided in the Factories Act, 1948, are considered to be minimum in terms of adequacy. Such measures are required to be effectively implemented. In addition to implementing safety measures provided in the Factories Act, there is also need for Providing training in safety to workers, and installing safety equipment in the factories. Employers should take the initiative in providing training in safety to employees. Workers' unions should take interest in safety promotion. Periodic training courses in accident prevention can be organized. Safety should become a habit with employers and the workers alike. The Factories Act provides for the following safety measures:-
(i) Fencing of Machinery
In every factory, measures should be taken for secured fencing of machinery. Safeguards of substantial construction must be raised and constantly maintained and kept in position while the parts of machinery (they are fencing) are in motion or in use. Fencing is necessary in respect of:
Ĝ every moving part of a prime mover;
Ĝ headrace and tailrace of every water-wheel and water turbine;
Ĝ every part of an electric generator, a motor or a rotary convertor;
Ĝ every part of transmission machinery; and
Ĝ every dangerous part of any other machinery.
Walker V/S Bletechley Fetters Ltd.
In this case a machine is dangerous if it is a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to occur.
(ii) Work on or near Machinery in Motion
Where in any factory, it becomes necessary to examine any part of machinery, while the machinery is in motion, such examination shall be carried out only by specially trained adult male workers. Such workers shall wear tight fitting clothing and their names shall be recorded in the register prescribed in this connection. The machinery in motion with which such workers would otherwise be liable to come in contact during the course of its examination, shall be securely fenced to prevent such contact. No woman or young person shall be allowed to clean, lubricate or adjust any part of a prime mover or transmission machinery, while the machinery is in motion.
(iii) Employment of Young Persons on Dangerous Machines
The Factories Act prohibits employment of young person's on certain types of machines as specified under Sec.23 of the Act. They can work only after they have been fully instructed as to the dangers arising in connection with the machines and the precautions to be observed. They should have received sufficient training in work at such machines. They should be under adequate supervision by a person who has a thorough knowledge and experience of the machines.
(iv) Striking Gear and Devices for cutting off Power
In every factory -
1. suitable striking gear or other efficient mechanical appliances shall be provided and maintained, and used to move driving belts to and from fast and loose pulleys which form part of transmission machinery. Such gear or appliances shall be so constructed, placed and maintained as to prevent the belt from creeping back on to the fast pulley.
2. driving belts when not in use, shall not be allowed to rest or ride upon shaft in motion. In every factory, suitable devices for cutting off power in emergencies from running machinery shall be provided and maintained in every workroom.
(v) Self-acting Machine
No traversing part of a self-acting machine in any factory, and no material carried thereon shall, if the space over which it runs, is a space cover which any person is liable to pass, whether in the course of his employment or otherwise, be allowed to run on its outward or inward traverse within a distance of eighteen inches from any fixed structure which is not a part of the machine. This is to safeguard the workers from being injured by self-acting machines.
(vi) Casing of New Machinery
Every set screw, bolt or key on any revolving shaft, spindle, wheel, or pinion shall be so sunk, encased or otherwise effectively guarded as to prevent danger in all machinery driven by power and installed in the factory. The State government is authorized to make rules specifying further safeguards to be provided in respect of any dangerous part of any particular machine or class or description of machines in this connection.
(vii) Prohibition of Employment of Women and Children near Cotton openers
No women or child shall be employed in any part of a factory where pressing a cotton-opener is at work.
(viii) Hoists and Lifts
In every factory-
1. hoists and lifts shall be of good mechanical construction, sound material and of adequate strength;
2. they shall be properly maintained, and shall be thoroughly examined by a competent person at least once in every period of six months. A register shall be kept containing the prescribed particulars of each such examination;
3. every hoist way and lift way shall be sufficiently protected by an enclosure fitted with gates, and the hoist or lift and every such enclosure shall be so constructed as to prevent any person or thing from being trapped between any part of the hoist or lift and any fixed structure or moving part.
(ix) Lifting Machines, Chains, Ropes and Lifting Tackles
'Lifting machine' means any crane, crab, winch, eagle, pulley block, gin wheel, and runway. 'Lifting tackle' means chain slings, rope slings, hooks, shackles and swivels. In every factory, following safety measures shall be adopted in respect of every lifting machine (other than a hoist and lift) and every chain, rope and lifting tackle for the purpose of raising or lowering persons, goods or materials-
a) All parts including the working gear of every lifting machine and every chain, rope or lifting tackle shall be
· of good construction, sound material and adequate strength, and free from defect;
· properly maintained ; and
· thoroughly examined by a competent person at least once in every period of twelve months.
b) No lifting machine and no chain, rope, or lifting tackle shall be loaded beyond the safe working load which shall be plainly marked on it.
c) While any person is employed or working on or near the wheel track of a travelling crane in any place where he would be liable to be struck by the crane, effective measures shall be taken to ensure that the crane does not approach within twenty feet of that place. A lifting machine or a chain, rope or lifting tackle shall be thoroughly examined in order to arrive at a reliable conclusion as to its safety.
(x) Revolving Machinery
Effective measures shall be taken in every factory to ensure that the safe working peripheral speed of every revolving vessel, cage, basket, flywheel, pulley disc or similar appliance driven by power is not exceeded. A notice indicating the maximum safe working peripheral speed of every revolving machinery shall be put up in every room in a factory in which the process of grinding is carried on.
(xi) Pressure Plant
If in any factory, any part of the plant or machinery used in a manufacturing process is operated at a presure above atmospheric pressure, effective measures shall be taken to ensure that the safe working pressure of such part is not exceeded.
(xii) Floors, Stairs, and Means of Access
In every factory-
a) all floors, steps, stairs and passages shall be of sound construction and properly maintained, and where it is necessary to ensure safety, steps, stairs, and passages shall be provided with substantial hand rails;
b) there shall, so far as is reasonably practicable, be provided, and maintained safe means of access to every place at which any person is at any time required to work.
Davies V/S Havill and Aircrafts Co. Ltd.
In this case no breach of statutory duty imposed under this section is occasioned if an injury in caused by accumulation of rain water in tillle depression in the concrete of the passage.
(xiii) Pits, Sumps, openings in floor etc.
Which may be a source of danger, shall be either securely covered or securely fenced. Securely fencing a pit means covering or fencing it in such a
Way that it ceases to be a source of danger.
(xiv) Excessive Weights
No person shall be employed in any factory to lift, carry or move any load so heavy as to be likely to cause him an injury.
(xv) Protection of Eyes
If the manufacturing process carried on in any factory is such that it involves (a) risk of injury to the eyes from particles thrown off in the course of the process or (b) risk to the eyes by reason of exposure to excessive lights, effective screens or suitable goggles shall be provided for the protection of persons employed on, or in the immediate nearness of, the process.
Finch V/S Telegraph Construction and Maintenance Co, Ltd.,
In this case, held that hanging of goggles in the office room is not enough, but the workers must be informed of their whereabouts, only then the requirements of Section 35 of the Act can be said to have been complied with.
(xvi) Precautions against Dangerous Fumes and use of Portable Light
1. No person shall enter any chamber, tank, vat, pit, pipe or other confined space in a actory in which dangerous fumes are likely to be present to such an extent as to cause risk of persons being overcome thereby;
2. No portable electric light of voltage exceeding twenty four volts shall be permitted in any factory for use inside any confined space. Where the fumes present are likely to be inflammable no lamp or light, other than of flame-proof nature, shall be allowed to be used.
3. No person in any factory shall be allowed to enter any confined space, until all practicable measures have been taken to reverse any fumes which may be present and to prevent any ingress of fumes.
4. Suitable breathing apparatus, reviving apparatus and belts and ropes shall be kept in every factory for instant use. All such apparatus shall be periodically examined and certified by a competent person to be fit for use.
5. No person shall be permitted to enter in any factory, any boiler, furnace, chamber, tank, pipe, or other confined space for the purpose of working or making any examination until it has been sufficiently cooled by ventilation or otherwise to be safe for persons to enter.
(xvii) Explosive or Inflammable Dust, Gas etc.
If any manufacturing process in the factory produces dust, gas, fume, or vapour of such a nature as is likely to explode on ignition, measures shall be taken to prevent any such explosion
by:
v effective enclosure of the plant or machinery used in the process;
v removal or prevention of the accumulation of such dust, gas, fume or vapour;
v exclusion or effective enclosure of all possible source of ignition.
Measures shall also be adopted to restrict the spread and effects of the explosion by providing in the plant or machinery of chokes, baffles, vents, or other effective appliances.
(xviii) Precautions in case of fire
a) Every factory shall be provided with such means of escape in case of fire as may be prescribed;
b) In every factory, the doors affording exit from any room shall not be locked so that they cannot be easily and immediately opened from the inside while any person is within the room, and all such doors, unless they are of sliding type, shall be constructed to open outwards.
c) Every door, window or other exit affording a means to escape in case of fire shall be distinctively marked in a language understood by the majority of the workers. Such marking should be in red letters of adequate size or by some other effective and clearly understood sign.
d) An effective and clearly audible means of giving warning, in case of fire, to every person shall be provided in the factory.
e) A free passage-way giving access to each means of escape in case of fire shall be maintained for the use of all workers in the factory.
f) Effective measures shall be taken to ensure that in every factory all workers are familiar with the means of escape in case of fire and have been adequately trained in the routine to be followed in such a case.
(xix) Safety of Building and Machinery
In case it appears that any building, machinery or plant in a factory is in such a condition that it is dangerous to human life or safety, the manager of the factory may be served an order specifying measures to be adopted as prescribed. Further, in case it appears that the use of any building, machinery or plant in a factory involves imminent danger to human life or safety, an order may be served prohibiting the use of such building or machinery, until it has been repaired or altered.
L.K. V/S H.M.T. Ltd. and others
In this case a welfare officer in respondent company was charged inter alia with using indecent language against another officer. He was first suspended and after inquiry dismissed from service. The labour commissioner allowed an appeal preferred by the welfare officer against his suspension. The respondent company challenged the labour commissioner's order in a writ petition that was allowed. The Supreme Court rejected the contention of the appellant that the disciplinary proceedings were actuated by malice. In this case suspension of the appellant was not passed a measure of penalty and his subsequent dismissal was therefore in order.
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