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Labour Law-1
Labour Law-1
Labour Law-1
Objective of IDA
To make provision for investigation and settlement of IDs or certain
other purposes.
History of IDA
In 1920, there was Trade Dispute Act which provided for courts of enquiry &
consolation board. However it did not provide any machinery for settlement
of Industrial Disputes. Therefore it was repealed and replaced by Trade
Dispute Act, 1929.
The 1929 Act was amended in 1938; it authorized Central & Provisional
Government to intermediate at the time of IDs.
Further Govt. introduced Defense of India Rules post World War II. Rule 81A
gave powers to the Government to intervene in the Industrial Disputes so as
to provide speedy remedies. Further Standing Orders of 1946 were also
passed.
On the basis of Trade Dispute Act, 1938, Defense of India Rules & Standing
Orders, 1946,
ID Bill was introduced in the Central Legislative Assembly on 08/10/1945
which embodied the essential principles of Defense of India Rules & Trade
Dispute Act, 1938 concerning Industrial Disputes.
The Bill was passed in March 1947 & became a law from 1947 which came
to be known as IDA, 1947.
Industry
Definition of the term industry first originated from IDA, 1947.
Section 2(j) of IDA was amended in 1982, which substituted a new definition
but since no enforcement date has been notified so far, the original
definition remains in force.
Scope of Industry
The definition of Industry under IDA is a comprehensive one, and it is in two
parts:
First part says that it means any business, trade, undertaking, manufacture
or calling of employers.
Second part says that it includes any calling, service, employment,
handicraft, or industrial occupation or avocation of workmen.
One part defines it from the standpoint of the employers and the other from
the standpoint of the employees. Therefore, any activity which falls within
either of these two parts automatically becomes an industry.
Madras Gymkhana Club Employee’s Union vs. Gymkhana Club (1967) 2 LLJ
720.
In this case it was held that the first part of the definition determines an
industry by reference to the occupation of the employers in respect of
certain activities which are specified by five words namely business, trade,
undertaking, manufacture or calling.
These words determine the scope of the word industry & they describe what
the cognate expression Industry is intended to convey. This is the
significance or denotation of the term.
Business
It is a word of wide import. It is wider than trade and is not synonymous
with it and means practically anything which is not an occupation as
distinguished from pleasure.
In this case Lord Wright after referring to the definition of ‘trade dispute’ and
‘workmen’ contained in the order of reference to the National Arbitration
Tribunal held that the word “industry” would include within its scope what
might not strictly be called “trade or business”.
Trade
It is not only in the etymological or dictionary sense, but in legal use as well
it is a term of wide scope. It may mean the occupation of a small shopkeeper
just as well as that of a commercial magnate while it may also mean skilled
craft.
Undertaking
According to Webster dictionary, an undertaking means anything
undertaken or any business, work or project which one engages or one
attempts as an enterprise.
Manufacture
It is a kind of productive activity in which the making of articles or material
often on a large scale is by physical labour or mechanical power.
Employment
It means contract of service between an employer and an employee.
Avocation
It means the way a man passes his life or spends his time.
The Court further stated that neither investment of capital nor profit making
motive is essential to constitute an industry as they are generally necessary
in a business.
In this case the Court observed that those branches of work of the
municipalities which could be regarded as analogous to the carrying-on of a
trade or business would be industry and the dispute between municipalities
and their employees would be treated as an industrial dispute.
There was an appeal in the Supreme Court. The question for consideration
was “Whether & to what extent the activities of Corporation of Nagpur came
under definition of Industry as per Section 2(14) of CP & Berar Industrial
Dispute Settlement Act, 1947?”
Courts cleared that Corporation will not come under the definition of
undertaking as per Section 2(14) of CP & Berar Industrial Dispute
Settlement Act, 1947, but will come under the definition of business, trade
as per Section 2(14) of CP & Berar Industrial Dispute Settlement Act, 1947.
The Court distinguished between legal & municipal functions of
Corporation, & held that legal functions will not come under the definition of
industry & such legal function should be excluded from the ambit of
definition of industries & that other functions will come under the ambit of
definition of business or trade.
Conclusion
Corporations will come under the definition of industry as per Section 2(j) of
IDA 1947.
This is the 1st case before Supreme Court in which the question whether
hospitals will come under the definition of Industry was considered.
The Court held that the group of hospitals was run by the State for giving
medical relief to citizens and imparting medical education. The SC held
group of hospitals to be industry and held as follows:
In this case, SC held that KURJI Holy Family Hospital was not an industry
on the ground that it was essentially charitable institution carrying on work
of training, research, treatment, Safdar Jung hospital and Tuberculosis
hospital were also held not to be industry.
In this case, the SC following the ration in Safdar Jung Hospital case
clarified that the hospital run by the State Government were held outside
the purview of industry.
Conclusion
It can be concluded that at present Hospitals would be considered as
Industry as per the definition given in Section 2(j) of IDA, 1947.
The Delhi University challenged the decision of the Tribunal in the Supreme
Court by way of an SLP on the ground that activity carried on by the
University is nit industry.
The SC held that DU is not an industry and gave the following 2 grounds as
reasons:
a) The teachers are not workmen under Section 2(s) of IDA, 1947 and
hence any disputes between them and the institution which employed
them are outside the scope of the Act.
b) The work of the University cannot be equated with that of any trade,
business, undertaking or calling of services within the meaning of
Section 2(j) of IDA, 1947.
The Court said that education could not be treated as an Industry for the
benefit of a very minor and insignificant number of people who may be
employed by the University for subordinate services.
The Supreme Court overruled the Delhi University ruling in this case. In this
case, the majority opinion of the Court was that the predominant activity of
the educational institutions is that of imparting education which is a service
to the community and therefore, it will come under the definition of Industry
as per Section 2(j) of IDA, 1947. However, the Court emphasized that those
employees of the University who 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.
The Court concluded that the case of Delhi University was wrongly decided
and educational institutions will come under the definition of Industry.
Conclusion
It can be concluded that at present Educational Institutions would be
considered as Industry as per the definition given in Section 2(j) of IDA,
1947.
Conclusion
It can be concluded that at present those clubs are considered as an
Industry whose activities respond to the Triple Test.
Whether CO-OPERATIVE SOCIETIES will come under the
definition of an industry?
This question whether co-operative societies will come under the definition
of an industry was decided on the basis of 2 Australian cases i.e. Queen v.
Marshall and Ex Parte Federated Clerks Union of Australia.
SC after analysing various Indian and foreign rulings held that the co-
operative societies ordinarily cannot fall outside the definition of industry
and gave the following reasons:
In this case the Rajasthan High Court held that Rajasthan Co-operative
Credit Institution Cadre authority is an industry.
Conclusion of industry
Coir Board Ernakulam Kerala State v. Indira Devai P.S. (2000) 1 SCC 224.
In this case the Court cleared that the definition expressly states that not all
disputes or differences of all sorts but only those which bear upon the
relationship of employer and workman and the terms of employment and
conditions contemplated.
The Court further held that the expression ‘any person’ occurring in the
third part of the definition clause cannot mean anybody and everybody in
this wide world, because a person in respect of whom the employer-
employee relation never existed or can never possibly exist cannot be the
subject-matter of an industrial dispute.
The SC held that in the instant case Dr. K.P.Banerjee was not a ‘workman’.
He belonged to the medical or technical staff – a different category altogether
from the ‘workmen’ and therefore the provisions of IDA, 1947 would not be
applicable to him.
In this case the question arose as to what type of disputes can be considered
as an Industrial Dispute. The Court held that the disputes or differences
must be something fairly definite and of real substance and not a mere
personal quarrel or grumbling or an agitation.
In this case, the concept of Industry has been exhaustively considered and
clear principles have been laid down in this regard.
It may be observed that the persons engaged in the establishment which are
covered in the definition of industry under Section 2(j) of IDA, 1947 become
workman if they satisfy the definition of workman as contained in Section
2(s) of IDA, 1947 and dispute on various matters among them or dispute
between employers and employers or dispute between employers and
workman or dispute between workman and workman are all disputes within
the meaning of the Act provided they are connected with the employment or
non-employment or terms of employment or conditions of labour.
Individual dispute
In this case, the Court held that a dispute between an employer and a single
workman cannot be an Industrial Dispute.
In this case, the Court held that a dispute between an employer and a single
workman can be regarded as an Industrial Dispute.
In this case, the Court held that a dispute between an employee and single
workman cannot per se be an Industrial Dispute but may become one if it is
taken up by the trade union or a number of workmen.
In this, the Court said that a dispute raised by a single workman cannot
become an Industrial Dispute unless it is supported either by his union or
in the absence of union by a substantial number of workmen.
The principle in the above case was again reiterated in the case of Workmen
of Indian Express Newspaper Private Limited v. Management (1970) 2 LLJ
132.
The SC held that Bombay Union of Journalist does not have competence to
raise the issue and even if they have the competence the same cannot be
considered as an Industrial Dispute.
In this case, the Court held that a dispute relating to the termination of
service, discharge or dismissal of a workman referred to adjudication under
Section 2A cannot be settled by the Union with the management by entering
into a settlement pending such adjudication without the consent of the
worker.
In this case, it was held that except the dispute relating to the discharge,
dismissal, retrenchment or otherwise termination of service, all other
disputes relating to the terms of employment or conditions of labour of an
individual labour such as transfer, wages, bonus, increments or promotion
etc. will require espoused (support or adoption) by a substantial number of
fellow workmen in order to partake the character of an Industrial Dispute.
In this case, the SC held that in order that an individual dispute may
become an Industrial Dispute it has to be established that it had been taken
up by the union of employees or by an appropriate number of employees of
the establishment.
In this case, it was held 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.
Express Newspapers (Private) Limited v. First Labour Court, West Bengal and
Others.
It was held in this case that 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.
In this case, the Court held that where an industrial dispute existed at the
time of making order of reference this dispute does not cease to be so merely
because dispute relating to only one employee is left over and that the
union which raised the dispute chooses not to represent a particular
employee.
Workman
The term ‘workman’ has been defined under Section 2(s) of IDA, 1947.
Meaning of Apprentice
The expression apprentice has not been defined in IDA, 1947.
The Court herein held that an apprentice governed by Apprentice Act, 1961
is not a workman for the purpose of IDA, 1947 and the provisions of IDA,
1947 would not be applicable to him. The Court clarified that for the
purpose of Section 2(s) of IDA, 1947 a person who is designated as an
apprentice but is not governed by the Apprentices Act would be a workman
governed by the provisions of IDA, 1947.
In this case it was held that even workmen who do not work with their
hands but work with their legs or remain standing on duty would be doing
manual work.
For instance members of watch and watch staff employed for the security of
the properties or of a concern do manual work.
Unskilled Work
Any person who does any work which does not require any special skill to
perform the work assigned is termed to be doing unskilled work.
Skilled Work
After the amendment any type of skilled work performed by the employee
will fall within the definition of Section 2(s) of IDA, 1947.
The work of a personal manager who was a qualified lawyer in giving advice
and guidance to the management with respect to labour laws was held not
to be of technical nature.
Operational Work
It means an operative person who is to do physical operation by hand or
machines, occupation in productive labour are skilled or unskilled person
employed in any industry. One who operates or works in any industry, trade
or profession a workman in any industry are an artisan or a mechanic.
(Something is wrong with the definition…check!!)
Clerical Work
It is similar with routine stereotype work which does not involve any
initiative, control or dignity.
Essentials of Lay-off
The analysis of definition of lay-off as provided under Section 2(kkk) of IDA,
1947 brings out following essentials:
a) There must be
i) A failure;
ii) Refusal; or
iii) Inability
In the case of Central India Spinning, Weaving and Manufacturing Co. Ltd.,
Nagpur v. State Industrial Court,{ (1959) 1 LLJ 468 (Bom). } the Bombay High
Court held that the key to the definition is to be found in the words “the
failure, refusal or inability of an employer”. These words make it clear that
the unemployment has to be on account of a cause which is independent of
any action or inaction on the part of workmen themselves.
Classification of Lay-off
As per the definition of lay-off in Section 2(kkk) of IDA, 1947 lay-offs may be
classified on the basis of duration as follows:
a) Lay-off for a day occurring when work is denied within 2 hours of his
presenting himself for work.
b) Lay-off for one half of day occurring when work is denied in the first
half of the shift but the workman is called in the second half of the
shift for doing work.
c) Lay-off for more than a day but not amounting to retrenchment.
Badli Workman
Badly workman means a workman who is employed in an industrial
establishment in the place of another workman whose name is borne on the
muster rolls of the establishment but ceases to be regarded as Badli
workman if he has completed one year of continuous service in the
establishment.
When the laying off of the workmen is referred to in Section 25-C it is the
laying off, as defined in Section 2(kkk) and so, workmen who can claim the
benefit of Section 25-C must be workmen who are laid off and laid off for
reasons contemplated by Section 2(kkk); that is all that Section 25-C means.
Section 25-E provides for the cases wherein workmen are not entitled to
compensation. It provides that no compensation will be paid to a workman
who has been laid off:
a) It must be a justified lay-off effected bona fide and not mala fide.
b) The stoppage of work if resorted to during working hours must be
notified by notice put on the notice board and must be in accordance
with the standing orders.
c) The period of detention of workmen if stoppage occurs during working
hours should not exceed two hours after the commencement of
stoppage.
d) If the unemployment caused by lay-off is for a short period, the
unemployment should be treated as compulsory leave wither with or
without wages.
e) If the lay-off is for an indefinitely long period, the services may be
terminated by due notice or payment of notice pay in lieu of notice.
f) The compensation must be paid at the rates for period specified in
Section 25-C of IDA, 1947.
In the case of Raga Textiles Ltd. v. Their Workers, (1952) 1 LLJ 247 it was
held by the Court that the period of lay-off should not be left indefinite.
Lock-out
Lock-out has been defined under Section 2(l) of IDA, 1947.
Basis of Lock-Out
Lock-out is a weapon in the hands of employers. Lock-out mainly happens
when:
Essentials of Lock-Out
Following are the essentials of a lock-out:
a) Both lock out and lay off are of a temporary nature and they are
warranted only in the case of emergency, however the nature of
emergency in each case is different.
b) In both the cases, there is temporary suspension of employees and the
relationship of employment is suspended temporarily.
c) Both lay-off and lock-out are weapons in the hands of employer.
The Court in this case clarified the intention of legislature behind using the
expression ‘for any whatsoever’. The court said it means that it does not
matter why the surplus have been discharged if all other requirements of the
definition are fulfilled then it would be retrenchment.
Essentials
1) Termination of an employee by the employer.
2) Termination must be on the ground of surplus labour.
3) Service which is terminated must have capacity to be continued.
4) Termination shouldn’t be because of victimisation of labour or unfair
labour practices by employer.
5) Termination must be for proper reason as of economy, installation of
new labour saving machinery.
Laxman Das V. Indian Express Newspapers Bombay Pvt. Ltd. 1977 LIC 823
The definition of retrenchment given in Section 2(oo) of the IDA, 1947 makes
it clear that retrenchment is a type of termination of service and as such
cases which would not amount to termination would be out of the scope of
retrenchment.
The definition specially excludes the following cases of termination as
retrenchment:
a) Termination of service as a punishment inflicted by wasy of
disciplinary action. e.g. discharge of efficiency, or suspension for
dishonesty etc.
b) Voluntary retirement of workmen where they left their services on
receiving notices of retrenchment and did not attend work during
notice period.
c) Termination under expressly stipulated contracts or non-renewal of
contracts of employment on expiry of such contracts.
d) Retirement on reaching superannuation age. Two requirements must
be complied with in order to bring a case under this clause:
There must be a stipulation on the point of retirement in the
contract of employment; and
The stipulation must be in regard to the age of superannuation.
e) Termination of service on the ground of continued ill health. E.g. an
employee suffering from senile debility; physical unfitness’ infirmity on
account of old age etc.
Harvillas Kushwah v. Sports Authority of India (1996) 1 LLJ 450 (MP)
Termination on the ground that the employee was suffering from
diabetes was held to be illegal. The court held that mere ill health is
not sufficient to take the termination outside the ambit of
retrenchment. Such termination would amount to retrenchment only
when it is proved that it was on the ground of continuous ill health.
Bisra Stone Lime Co. Ltd. v. Workmen (1992) 1 LLJ 616 (Ori.)
In this case, it was held that continuous ill health suggests that it is
prolonged for a considerable period and that ill health which is
intermittent cannot be termed as continuous.
Retrenchment: how different from other concepts
Compared with strike and lockout, in retrenchment no employment
relationship subsists while in strike and lock out it continues.
strike
Strike is one of the oldest and most effective weapons of labour in its
struggle with capital for securing economic justice. The basic strength of a
strike lies in the labour’s privilege to quit work and thus bring a forced
readjustment of conditions of employment.
Essentials of Strike
a) There must be cessation of work.
b) The cessation of work must be by body of persons employed in the
industry.
c) The persons carrying out a strike must be acting in a combination.
d) Strikers should be working in an establishment which could be called an
industry within the meaning of Section 2(j) of IDA, 1947.
e) There must be a concerted refusal.
f) Strikers must stop work for some demand relating to employment or
non- employment or terms of employment or conditions of labour of any
person.
Tata Iron and Steel Co. Ltd. v. its Workmen (1967) 1 LLJ 381 (Pat.)
In this case, the Court has held that mere cessation of work does not come
within the purview of strike unless it can be shown that such cessation of
work was a concerted action for the enforcement of an industrial demand.
The cessation of work may take any form. It must, however, be temporary
and not for ever and must be voluntary. No duration can be fixed for this.
Objects of Strike
Following are usually the objects behind Strike:
The question whether the strike is a FR came up for consideration before the
SC in this case. It was contended that when Art 19(1)(c) guarantees the right
to form association, a guarantee is also implied that the fulfilment of every
object of an association so formed is also a protected right and every
association shall effectively achieve the objects for which it was formed
without any interference by law except on the grounds set out in Article
19(4).
The Court rejecting the contention held that the right to form union
guaranteed under Article 19 (1)(c) thus does not carry with it a FR in the
union so formed to achieve every object for which it was formed and
therefore, there is no FR to strike.
Go Slow Strike
Bharat Sugar Mills Ltd. v. Jaisingh