LABOUR LAW- I

UNIT I

Procedures for the Registration of Trade Unions

The four procedure involved in registration of trade unions are as follows:
1. Appointment of Registrar
2. Mode of Registration
3. Rights and Duties of Registrar
4. Legal Status of Registered Trade Union.

1. Appointment of registrar; Section 3 of the act provides for the appointment of the registrar
of a trade union. The section authorizes the appropriate government to appoint additional
and deputy registrars for each state if it thinks fit. The additional and deputy registrars are
appointed where the registrar of a trade union is unable to discharge the powers and
functions as prescribed. He may exercise such powers and functions of Registrar with a
local limit as may be specified for this purpose.

2. Mode of Registration: Any seven or more persons who want to form trade union, can
apply for its registration to the Registration of Trade Unions under Section 4 (1) of the
Trade Unions Act, 1926. These applicants must be members of a trade union.

In order to check the multiplicity of trade unions, one school of thought has proposed the

number of persons farming a trade union for the purposes of registration be reasonably increased

to 10 per cent of employees of the unit, subject to minimum of seven persons employed therein

This is expected to strengthen the trade union movement. The application for registration must be
sent to the Registrar of Trade Unions in Form “A” as required by the Trade Union Act, 1926 under

Section 5.

Every application must be accompanied with the following particulars:

1. The names, occupations and addresses of the members making application.

2. The name of the trade union and the address of its head office.

3. The titles, names, ages, addresses and occupations of the office bearers of the trade union.
4 If a trade union has been in existence for more than one year prior to application of its

registration, a financial statement showing its assets and liabilities prepared in the prescribed form

has also to be submitted to the Registrar along with the applica-tion for registration.

5. Besides, every application must be accompanied with a copy of Rules of Trade union complying

with the items as specified under Section 6 of the Trade Unions Act, 1926.

The Supreme Court in Tirumala Tirupati Devasthanam held that, “any group of employees may

be registered as a trade union under the Act for the purpose of regulating the relations between

them and their employer or between themselves.”

A trade union can be registered only when its constitution fulfils the following rules:

1. Name of the trade union;

2. The whole of the objects for which the trade union has been established;

3. The whole of the purposes for which the general funds of a trade union shall be applicable

4. The maintenance of a list of the members of the trade union and adequate facilities for the

inspection thereof by the office-bearers and members of trade union;

5. The payment of a subscription by members of the trade union which shall be not less than 25

naya paise per month per member;

6. The manner in which rules will be amended varied and/or rescinded;

7. The manner in which the members of the executive and the other office-bearers of the trade

union shall be appointed and removed;

8. The manner in which the funds of the trade union shall be kept and audited and inspection of

the books of accounts by the office bearers and members of the trade union be made;
9. The conditions under which any member shall be entitled to have benefits under the rules and

under which fine or forfeiture shall be imposed on the members; and The manner in which the

trade union shall be dissolved.

3. Rights and Duties of Registrar:

Section 7 of the Act empowers the Registrar of Trade Union to make, if required so, further

enquiries on receipt of an application for registration to fully satisfy himself that the application
complies with the provisions of section 5. However, such enquiries can be made only from the

application and not from any other source.

The duties of the Registrar of Trade Unions in matters of registration of trade union are laid down

under Section 8 of the Act. On having being satisfied with the requirements for the registration of

the union, the Registrar shall register the trade union by entering in a register. The letter to this

effect will be issued to the Trade Union. In case of non-satisfaction of registrar with the compliance

of require-ments, the refusal for registration will be issued to the trade union.

No time limit for the grant or refusal of registration has been prescribed in the Trade Union Act,

1926. However, there are legal directives issued by the Court to the Registrar of Trade Unions to

perform me statutory duty imposed upon mm under sections 7 and 8 to deal with the application

of the Trade Union according to law at an early date

The National Commission on Labour has suggested 30 days excluding the time which the Union

takes in answering queries from the Registrar for the grant or refusal of registration by the

Registrar. The Trade Unions (Amendment) Bill, 1982 has provided for insertion of the words

“within a period of 60 days from the date of such compliance” after the words “Register the Trade

Unions” in Section 8 of the Trade Unions Act, 1926. Where, however, Registrar refuses to grant

registration to a trade union, he is under an obligation to state reasons for refusing to grant
registration.
The Societies of Registration Act, 1860, Co-operative Societies Act, 1912 and the Companies Act,

1956 do not apply to trade unions and registration thereof under any of these Acts is void ab initio.
In North Central Railway Employees Sangh and Ors.,[5] it has been held:
“Whether the registration is rightly is rightly given or not, can be examined only by the competent
statutory authority established under the Trade Unions Act. The police authorities have no
competence to give opinion on this aspect.”
In Inland Seam Navigation Workers’ Union,[6] a request for registration was made through an
application by the workers’ union but it was turned down by the Registrar declaring it unlawful on
the basis of its object to be for all practical purposes.
In ONGC Workmen’s Association,[8] the Court held that,
“Any order passed under Section 8 by the Registrar must be administrative in nature. The
Registrar is not deemed to be a quasi-judicial authority to decide any disputed question of fact or
law. He has no authority to ask for any of the parties to lead evidence and to give opportunity to
the other party to cross examine any witness.”
Therefore, under section 8, the scope of inquiry by the registrar is very limited.
4 . Legal Status of Registered Trade Union:
Upon the registration, a trade union assumes to a corporate body by the name under which it is

registered. A registered trade union shall have perpetual succession and its common seal. A

regis-tered trade union is an entity distinct from the members of which, the trade union is composed

of It enjoys power to contract and to hold property both moveable and immoveable and to sue and

be sued by the name in which it is registered.

Certificate of Registration
The Registrar, on registering a Trade Union under section 8, shall issue a certificate of registration
in the prescribed form under Section 9 of the Act. The certificate will act as conclusive evidence
that the Trade Union has been duly registered under this Act.

Rights and liabilities of registered trade unions.

Rights of Trade Union:
The trade union are granted rights so that they may be able to take appropriate actions for the
attainment of objectives for which they have been formed. Under section 15-28 rights, liabilities
and immunities which granted to registered trade union is given.
1. Under section 15 a registered trade union has a right to establish a general fund.
 2. Under section 16 a regitered trade union has a right to establish a political fund. For
member subscription to this fund is not mandatory.
3. Under section 23 a registered trade union can change the name with minimum 2/3 majority
and all requirement of section 25 must be fulfilled.
4. Section 24 gave the right to amalgamation: any two or more than two trade unions may
amalgamate into one with or without dissolution of funds but atleast 50% of majority votes
is recorded and atleast sixty percent of those votes are in favour of amalgamation
5. Any member of Trade Union may inspect the books himself or through agent under section
20.
6. Section 21 confer the right of minor membership: minor more than 15 years of age can
become a member but cannot hold the office until the attainment of 18 years of age.
7. As a legal person some rights are granted:
1. Right to have perpetual succession
2. Common seal in its own name.
3. Right to acquire, hold and dispose of both movable and immovable property in its own
name.
4. Right to contract in its own name.
5. Can sue and can be sue.[iv]
Immunities:
Under section 17,18 and 19 a registered trade union have immunity in certain criminal, civil and
contractual proceedings.
Section 17 confers immunity from liability in the case of criminal conspiracy under sec
120-B of Indian Penal Code, 1860 committed by a office- bearer or member, this immunity
available only with repect to the legal agreements created by the members for the
furtherance of valid object of a trade union under sec 15 of Trade Union Act.Noone can
claim immunity for an offensive act. They have right to do in furtherance of their trade
dispute such as calling strikes and persuading matters.
A trade union leader has no immunity against disobeying the orders of employers when they
already accepted terms and conditions.A trade union leader or any worker doesnot have any right
by law to share managerial responsibilities. In the case of West India Steel Company Ltd. v. Azeez
1990 kerala.[v]
Section 18 confers immunity from civil proceedings in certain cases to a trade union office
bearers or its members However, there is no immunity against violence, threat or any other
illegal means.
Strike per se is not an actionable wrong and trade union officers and it members are immune
against legal proceeding linked with the strike which confer in section 18.It was held in case P
Mukundan and others v. Mohan Kandy Pavithran 1992 Kerala.[vi]
In another leading case Rohtas Industries Staff Union v. State of Bihar[vii], it was held that
employers do not have the right to claim damages against the employee participation in an illegal
strike and thereby causing loss of production and business.
In the case Simpson & Group Companies Workers and Staff Union v. Amco Batteries Ltd.[viii],
it was held that physical obstruction of movement of management officials, contractors, goods, or
vehicles carrying raw materials is not an trade union right or a fundamental right under Article 19.
Immunity under sec 18 cannot be claimes for such activities.
An agreement of restraint in trade is void under sec 25 of Indian Contract Act. But here section
19 of Trade Union Act confer that such agreement is neither void nor voidable between trade
union members.
Liabilities:
Restriction to spend fund: The trade union cannot spend the fund for any voluntary reasons.
They can only spend for specific activities which is enumerated in section 15.
Office bearers of a trade union invested the money from general fund into the share of UTI.
This was held invalid because it is a speculative investment, it was held in the case Mario
Raposo v. H M Bhandarkar and others 1994[ix]
If trade union decides to promote its civil and political activites, then a separate political
fund has to constitute under section 16. However, no trade union can force its members to
subscribe to political funds.
Trade union must make available all records, its books of accounts and list of membership for
inspection which confered in section 20 upon request of any member or his representatives.
Minors more than 15 years of age can be a member as per section 21 but they can’t hold
office.
8. Under section 21-A trade union cannot appoint a person who has been convicted for a
crime involving moral turpitude or has been imprisonrd for 6 months or more within last 5
years.
9. Under section 22 at least half of the office bearers of union must be engaged or employed
in an industry to which trade union is connected and they also use the power judiciously
while removing any member.
10. Under section 28, general statement, audit report in prescribed manne, all income and
expenses and assests and liabilities existing on such 31st day of december must be sent to
the register every year.
11. The trade union has to send notice to registrar in case of every change of its name[x],
amalgamation of trade unions[xi], any change in the address of head office, for
dissolution[xii] and a copy of every alteration made in the rules of registered trade union
which confered by section 25 and section 28.
UNIT II
. ‘INDUSTRY’ UNDER THE INDUSTRIAL DISPUTES ACT
Section 2(j) of the Industrial Disputes Act, 1947 defines the term ‘industry’ “Industry” means any
business, trade, undertaking, manufacture or calling of employers and includes any calling, service,
employment, handicraft or industrial occupation or avocation of workmen.
It is to be mentioned here that according to the phraseology of this definition one can easily brand
any business activity or trade as an industry in order to attract the provisions of the Industrial
Disputes Act, 1947. Normally speaking by industry it is meant production of goods, and wealth
and with the cooperation of labour and capital, but it is not so under this Act.
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
industry, under the force of the second part takes in the different kinds of activities 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 purposes of industrial dispute although industry is ordinarily something
which employers create or undertake.” However concept that “industry is ordinarily something
which employers create or undertake” is gradually yielding place to the modern concept which
regards industry as a joint venture undertaken by the employers, and workmen, an enterprise which
equally belongs to both.
Further it is not necessary to view the definition of industry under section 2(j) in two parts. The
definition read as a whole denotes collective enterprise in which employers and employees are
associated. It does not consist either by employers alone or employees alone.1 An industry exists
only when there is relationship employers and employees, the former engaged in business, trade,
undertaking, manufacture or calling of employees and the latter engaged in any calling, service,
employment, handicraft or industrial occupation or avocation. There must, therefore, be an
enterprise in which the employers follow their avocations as detailed in the definition and employ
workmen.
Thus, a basic requirement of ‘industry’ is that the employers must be ‘carrying on any business,
trade, undertaking, manufacture or calling of employers.’ There is not much difficulty in
ascertaining the meaning of the words business, trade, manufacture, or calling of employers in
order to determine whether a particular activity carried on with the co-operation of employer and
employees is an industry or not but the difficulties have cropped up in defining the word
‘undertaking’.
“Undertaking” means anything undertaken, any business, work or project which one engages in or
attempts, or an enterprise. It is a term of very wide denotation. But all decisions of the Supreme
Court are agreed that an undertaking to be within the definition in section 2(j) must be read subject
to a limitation, namely, that it must be analogous to trade or business.[Workmen, I.S. Institution
vs. I.S. Institution, AIR 1976 SC 145] Some working principles have been evolved by the Supreme
Court in a number of decisions which furnish guidance in determining what the attributes are or
characteristics which would indicate that an undertaking is analogous to trade or business. First of
these principles was stated by Gajendragadkar, J. in Hospital Mazdoor Sabha case as follows:
“As a working principle it may be stated that 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.
Such an activity generally involves the co-operation of the employer and the employees; and its
object is the satisfaction of material human needs. It must be organized or arranged in a manner in
which trade or business is generally organized or arranged. It must not be casual, nor must it be
neither for one’s self nor for pleasure. Thus the manner in which the activity in question is
organized or arranged, the condition of the co-operation between the employer and the employee
necessary for its success and its object to render material service to the community can be regarded
as some of the features which are distinctive of activities to which section 2(j) applies.”

TRIPLE TEST LAID DOWN IN BANGALORE WATER SUPPLY VS. A. RAJAPPA

In Bangalore Water Supply vs. A. Rajappa; a seven judge’s bench of the Supreme Court
exhaustively considered the scope of industry and laid down the following test which has
practically reiterated the test laid down in Hospital Mazdoor Sabha case:
Triple Test: where there is systematic activity, organized by cooperation between employer and
employee for the production and/or distribution of goods and services calculated to satisfy human
wants and wishes, prima facie, there is an “industry” in that enterprise. This is known as triple test.
The following points were also emphasized in the case:
1. Industry does not include spiritual or religious services or services geared to celestial bliss,
example, making, on a large scale, Prasad or food. It includes material services and things.
2. Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint,
private or other sector.
3. The true focus is functional and the decisive test is the nature of the activity with special
emphasis on the employer-employee relations.
4. If the organisation is a trade or business it does not cease to be one because of philanthropy,
animating the undertaking.
Therefore the consequences of the decision in this case are that professions, clubs, educational
institutions cooperatives, research institutes, charitable projects and other kindred adventures, if
they fulfil the triple test stated above cannot be exempted from the scope of section 2(j) of the act.

Meaning of inustrial dispute and cases.

Industrial Dispute-Sec. 2 (k)

Industrial Dispute is “any dispute of difference between employers and employers or between
employers and workmen; or between workmen and workmen, which is connected with the
employment or non-employment or the terms of employment or with the conditions of labour of
any person.”
Industrial dispute as defined under Sec. 2(k) exists between-
Parties to the dispute who may be
1. Employers and workmen
2. Employers and Employers
3. Workmen and workmen
a) There should be a factum of dispute not merely a difference of opinion.
b) It has to be espoused by the union in writing at the commencement of the dispute. Subsequent
espousal will render the reference invalid. Therefore date when the dispute was espoused is very
important.
c) It affects the interests of not merely an individual workman but several workmen as a class who
are working in an industrial establishment.
d) The dispute may be in relation to any workman or workmen or any other person in whom they
are interested as a body.
Chandrakant Tukaram Nikam and others vs. Municipal Corporation of Ahmedabad and
another[i]: It was held by the Supreme Court that the Jurisdiction of the Civil Court was impliedly
barred in cases of the dismissal or removal from service, The appropriate forum for such relief was
one constituted under Industrial Disputes Act, 1947.
Jadhav J. H. vs. Forbes Gobak Ltd.[ii]: In this case, it was held that, a dispute relating to a single
workman may be an industrial dispute if either it is espoused by the union or by a number of
workmen irrespective of the reason the union espousing the cause of workman was not the majority
of the union.

When An Individual Dispute Becomes An Industrial Dispute

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
Supreme Court and majority of Industrial Tribunals held that, a dispute raised by a dismissed
employee would not be treated as an industrial dispute, unless it is supported by a trade union or
by a body or Section of workman.
1. For an individual dispute to be declared as an Industrial Dispute, the following conditions
are to be satisfied:
2. A body of workmen (trade Union ) or a considerable number of workmen, are found to
have made common cause with the individual workman;
That the dispute (individual dispute) was taken up or sponsored by the workmen as a body (trade
union) or by a considerable Section of them before the date of reference.
Bombay Union of Journalists vs. The Hindu[iii]: A person working in ‘The Hindu, Madras’ was
terminated for claiming as full time employee. The Bombay Union of Journalist raised the dispute.
It was found that, there were ten employees of which seven in administrative side and only three
in journalism side. Of these three, only two were the members of the union. Therefore, the Supreme
Court held that the Bombay Union of Journalists is not competent to raise this dispute. Even if it
had raised, it could not have become an industrial dispute.
Workmen of Indian Express Newspapers Ltd. vs. Management Indian Express Newspapers[iv]: A
dispute relating to two workmen of Indian Express Newspapers Ltd, was espoused by the Delhi
Union of Journalists which was an outside union. About 25 percent of the working journalists of
the Indian Express were members of that union. But there was no union of the journalists of the
Indian Express. It was held that the Delhi Union of Journalists could be said to have a
representative character Qua the working journalists employed Indian Express and the dispute was
thus transformed into an industrial dispute.
Thus, an individual dispute to fall within the definition of industrial dispute, it must be sponsored
by the Trade Union of the workmen or if there is no trade union, it must be sponsored by the
majority of the workmen or it must comply with the requirements of Section 2-A of the Industrial
Disputes Act, 1947.
Section 2-A provides that “where any employer discharges, dismisses, retrenches or otherwise
terminated the services of any individual workman, any dispute or difference between that
workman and his employer connected with, or arising out of such discharge, dismissal,
retrenchment or termination shall be deemed to be an industrial dispute, notwithstanding that no
other workman nor any union of workmen, is a party to the dispute.”
Any workman may make an application directly to the labour court or Industrial Tribunal for
adjudication of such dispute after the expiry of 3 months when an application was made before the
conciliation officer. This has been done to prevent inordinate delay.
The said application however should be made within 3 years of the date of dismissal, discharge,
retrenchment or termination of service.
The court shall proceed to hear the matter as if it was referred to it U/S 10 of the ID Act.
Section 2A does not declare all individual disputes to be industrial disputes. It is only when a
dispute is connected with a discharged, dismissed retrenched or terminated workman that it shall
be treated as an industrial dispute. If the dispute or difference is connected with some other matter
e.g. payment of bonus/ gratuity etc. 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 it. (State of Bihar
vs. kripa Shankar Jaiswal[v])
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 on unconnected with the employer or the industry concerned.
(Express Newspapers (Private) Ltd. Vs. First Labour Court, West Bengal & Others[vi])
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.

UNIT III
Lay-off
Definition and Explanation:
Lay-off” means the failure, refusal or inability of an employer--
 1. on account of the shortage of coal, power or raw materials or the accumulation of stocks
or the breakdown of machinery [or natural calamity or for any other connected reason]
2. to give employment to a workman whose name is borne on the muster rolls of his industrial
establishment
3. and who has not been retrenched.
Lay-off is a measure to cope with the temporary inability of an employer to offer employment
to a workman to keep the establishment, as going. It results in immediate unemployment, though
temporary in nature. It does not put an end to the employer-employee relationship, nor does it
involve any alteration in the conditions of service.
Further, lay-off occurs only in continuing business. When the industrial establishment is closed
permanently or its lock-out is declared by the employer, the question of lay-off has no relevance.
Lay-off is justified only when it is in conformity with the definition given under Section 2 (kkk)
of the Industrial Disputes Act.
Essential Conditions
Essential conditions for lay-off are as follows
1. The number of workmen employed in an industrial establishment should not be less than
50 on an average per working day in the preceding calendar month.,
2. The industrial establishment should not be of season character,
3. The unemployment should be due to the failure, refusal or inability of an employer on
account of reasons beyond his control (there should not be mala fide on the part of the
employer).
4. The name of the workmen should be borne on the muster roll of the industrial
establishment.
5. The workmen should have presented himself for work on the establishment at the time
appointed for the purpose during normal working hours.
6. The workmen should not have been given employment within two hours of his so
presenting himself.

Conditions to be fulfilled by the laid-off workman for claiming a compensation

Before a workman may claim lay-off compensation, he must fulfil some conditions like[3]:
1. His name must be borne on the muster roll and he should not have been retrenched.
2. He must have completed not less than one year of continuous service (as defined in Section
25B)
3. The workman must not be a badli (a workman employed in the place of another workman)
or a casual worker.
If these requirements are fulfilled, a workman shall be paid compensation for all days during which
he is laid off, except for such weekly holidays. The amount of compensation payable to such
workman shall be half of the total of basic wages and dearness allowance.
When the workman is not entitled to compensation
Section 25E of the Industrial Disputes Act explains situations where the workman will not be
entitled to compensation. These can be broadly understood as the following:
1. Refusal to accept alternate employment in the same establishment or any other
establishment owned belonging to the same employer, provided similar wages are offered
to the workman in the alternate employment as well.
2. Where the workman does not come to work during normal working hours at least once a
day
3. Where the lay-off is because of a strike or slowing-down of production due to workmen in
another part of the establishment.
In K.T. Rolling Mills v. M.R. Meher[4] it was held that provisions for payment of lay-off
compensation does not mean that the employer can pay compensation and declare lay-off. Further,
compensation cannot be awarded in advance of actual lay-off and on grounds of social justice.
It is also necessary that the alternate employment is something which can be done by the workman.
This means that not only should the workman have the physical capability to do the alternate work
but it should be acceptable to the workman.
Therefore, in Industrial Employees’ Union, Kanpur v. J.K. Cotton Spinning and Weaving
Mills Company[5] it was held that offering the job of a coolie to a skilled workman cannot amount
to the offer of an alternative job.
Retrenchment
Definition and Explanation
The ordinary meaning of Retrenchment is that business s itself is continuing though a portion
of staff or labour force is discharged as surplusage. In the Industrial Disputes Act, 1947,
Section 2(oo) defines retrenchment. The essential points that can be gathered from the definition
in the statute are as follows:
1. Retrenchment is the termination of a workman for any reason whatsoever, otherwise than
as a form of punishment, given as a means of disciplinary action.
2. Retrenchment does not include the following:
• Voluntary retirement of the workman
• Retirement of the workman on reaching an age of superannuation as stipulated in the
contract of employment
• termination of service due to non-renewal of the contract of employment on the contract’s
expiry, or the contract being terminated.[6]
• Termination of the service of a workman on the ground of continued ill-health.
Essential conditions to be fulfilled prior to retrenchment
Section 25F of the Industrial Disputes Act talks about essential conditions precedent to
retrenchment. These conditions can be summarised and understood as follows:
3. The workman has to be given one month written notice, which includes the reasons for
retrenchment, or the workman has been paid in lieu of such notice, wages for the period of
the notice
 4. The workman has to be paid, at the time of retrenchment, compensation equal to the
average pay of fifteen days [for every completed year of continuous service]
5. The notice is also to be served on the appropriate Government.
Procedure of Retrenchment
Section 25G of the Industrial Disputes Act lays down the procedure of retrenchment. It provides
that if any worker is to be retrenched, and that workman belongs to a particular category of
workmen in that establishment, then generally, that workman will be retrenched by the employer
who was the last person to be employed in that category.
The exceptions to this rule of the procedure are if there is a contract between the employer and the
workmen which is to the contrary, or the employer records his reasons to retrench any other
workman. The employer can also retain an employee possessing special qualifications whose
services are necessary in the interests of business in a bona fide manner.
This rule shows that the system of Last in, First out is to be followed in retrenching. From this
rule, it also follows that it is required from the employer that they maintain a seniority list of the
workmen. The general principle of retrenchment is that the retrenchment should start with the
latest, newest worker, and progressively go up to employees higher up in the seniority list.
Important Judgments
The Supreme Court in Byram Pestonji Gariwala v. Union Bank of India and Others had
restricted the definition of ‘retrenchment’ under Section 2(oo)(bb) and held that retrenchment can
be said to occur only when there is a ‘discharge of excess labour’ by the employer.
Later, the Supreme Court in State Bank of India v. N. Sundara Money[8], Punjab Land
Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour
Court, Chandigarh v. Presiding Officer, Labour Court, Chandigarh[9] and subsequent
decisions rejected the narrow interpretation adopted by the Court in the earlier decision and held
that any retrenchment, as defined in Section 2(oo), means termination by the employer of the
service of a workman for any reason whatsoever otherwise than, as a punishment inflicted by way
of disciplinary action and those expressly excluded by clauses (a), (b) and (c) of the definition.
In the State Bank of India v. Sundara Money judgement, the Supreme Court adopted the literal
meaning of retrenchment, which is very exhaustive and comprehensive and held that the
expression “for any reason whatsoever” was very wide and admitted almost no exceptions.
Hence, retrenchment means termination of a worker’s services for any reason whatsoever, other
than those specified in Section 2(oo), and in view of these subsequent decisions it cannot be said
that retrenchment means termination by the employer of the service of a workman as surplus
labour.
The Supreme Court excluded closure from the scope of retrenchment in Hariprasad Shivshankar
Shukla v. A.D. Divelkar.
The Madras High Court, in State Bank of India v. Sundaramony[11] held that wherein the
court held that an analysis of the definition reveals four essential ingredients, namely;

• There must be a termination of the service of a workman.

 • The termination must be by the employer,
• For any reason whatsoever, and
• Otherwise than as by way of punishment inflicted by way of disciplinary action.

Basis for comparison Layoff Retrenchment

The discharge of surplus
labour by the employer for
The provisional termination
any reasons whatsoever
Meaning of the employee, at the
otherwise than as a
instance of the employer.
punishment inflicted by way
of disciplinary action.
Nature Temporary Permanent
Continues even after the
Operation of the company Stops after the declaration.
declaration.
Employee's connection with
Re-appointment As soon as the lay-off period the organisation is severed
immediately.

Definition of strike and lockout under Industrial dispute act, 1947.

Ans. Strike [Sec. 2 (q)]: Strike means "a cessation of work by a body of persons employed in any
industry acting in combination or a concerted refusal under a common understanding of any
number of persons who are or have been so employed, to continue to work or to accept
employment". Mere stoppage of work does not come within the meaning of strike unless it can be
shown that such stoppage of work was a concerted action for the enforcement of an industrial
demand.
Lockout [Sec. 2(1)]: Lockout means "the temporary closing of a place of employment, or the
suspension of work, or the refusal by an employer to continue to employ any number of persons
employed by him". Lockout is the antithesis of strike.
It is a weapon of the employer while strike is that of the workers. Just as a strike is a weapon in
the hands of the workers for enforcing their industrial demands, lockout is a weapon available to
the employer to force the employees to see his points of view and to accept his demands. The
Industrial Dispute Act does not intend to take away these rights. However, the rights of strikes and
lockouts have been restricted to achieve the purpose of the Act, namely peaceful investigation and
settlement of the industrial disputes. In the case of General Labour Union v. B.V. Chavan and
Ors, Supreme Court of India held "Imposing and continuing a lockout deemed to be illegal under
the Act is an unfair labour practice’’.
What are the procedures of strike and lockout?
Ans. PROCEDURE OF STRIKES
According to Sec. 22(1) No person employed in a public utility service shall go on strike in breach
of contract-
(a) without giving to the employer notice of strike, as hereinafter provided, within six weeks before
striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven
days after the conclusion of such proceedings.
PROCEDURE OF LOCKOUTS
According to Sec. 22(2), No employer carrying on any public utility service shall lock-out any of
his workman
(a) without giving them notice of lock-out as hereinafter provided, within six weeks before
locking-out; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of lock-out specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven
days after the conclusion of such proceedings.
Legal strikes and Lockouts
A strike or a lockout shall be illegal, if employers or worker who ever disobeys or fails to follow
[Sec 22, 23, 10(3), 10-A (4-A)] for commencing strikes or lockout, those strikes and lockout are
said to illegal.
Section 22 provides Prohibition of strikes and Lockouts (Notice is mandatory in public utility
services) and Section 23 provides General prohibition of strikes and Lockouts (if said matter is
pending before board, a Labour Court, Tribunal or national tribunal or arbitrator as mentioned
under Sec 10 & 10A or settlement or about is in operation)
Section 24 (3) says that a lock-out declared in consequence of an illegal strike or a strike declared
in consequence of an illegal lock-out shall not be deemed to be illegal.
Penalties for illegal strikes and lockouts under the act?
Ans. Penalty for illegal strikes and lock-outs.- (1) Any workman who commences, continues or
otherwise acts in furtherance of, a strike which is illegal under this Act, shall be punishable with
imprisonment for a term which may extend to one month, or with fine which may extend to fifty
rupees, or with both.
(2) Any employer who commences, continues, or otherwise acts in furtherance of a lock-out which
is illegal under this Act, shall be punishable with imprisonment for a term which may extend to
one month, or with fine which may extend to one thousand rupees, or with both.

UNIT IV
Award means an interim or final determination of any industrial dispute or of any question relation
thereto.
Publication of the Report and Award: The section 17 of the act mentions about publication
procedure of the award decided after the due course. The clause (1) of the section states: Every
report of Board or Court together with any minute of dissent recorded therewith, every arbitration
and every award of a Labour Court, Tribunal or National Tribunal shall within a period of thirty
days from the date of its receipt by the appropriate Government, be published in such manner as
the appropriate Government thinks fit. The second clause of the same section provides for
immunity against any legal proceedings, thus avoiding any further delay, to the award finalised.
Commencement of the Award: Commencement of award is described under section 17-A of the
act. It goes as follows:
An award (including an arbitration award) shall become enforceable on the expiry of the thirty
days from the date of its publication under section 17. But if the Central Government is of opinion,
in any case where the award has been given by National Tribunal will be inexpedient on public
grounds affecting economy or social justice to give effect to the whole or any part of the award the
appropriate Government, or as the case may be, the Central Government may, by notification in
the Official Gazette, declare that the award shall not become enforceable on the expiry of the said
of thirty days:
Where any declaration has been made in relation to an award under the proviso to sub section (1),
the appropriate Government may, within ninety days from the date of publication of the award
under sec. 17, make an order rejecting or modifying the award, and shall, on the first available
opportunity, lay the award together, with a copy of the order before legislature of the state, if the
order has been made by the Central Government.
Where any award as rejected or modified by an order made under sub section (2) is laid before the
Legislation of a State or before Parliament, such award shall become enforceable on the expiry of
fifteen days from the date on which it is so laid: and where no order under sub section (1), the
award shall become enforceable on the expiry of the period of ninety days referred to in sub section
(2).
In “Sangham Tape Co. v. Hans Raj” (2005) 9 SCC 331 the court held that an application for recall
of an ex parte award may be entertained by the Industrial Tribunal or Labour Court only in case it
is filed before the expiry of 30 days from the date of pronouncement or publication of the award.
In “Radhakrishna Mani Tripathi v. L.H Patel and another” (2009) 2 SCC 81 the opposite view
was taken by the Apex Court. To solve this confusion, this matter was referred to a larger 3 Judge
Bench.
In “Anil Sood v. Presiding Officer, Labour Court II” (2001) 10 SCC 534 the Supreme Court
followed the Grindlays Case. In many other cases, court took the same stand and thus reaffirming
the same viewpoint.
In “Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. and Another”
(2005) 13 SCC 777 the Supreme Court observed:
“…The recall of the award of the Tribunal was sought not on the ground that in passing the
award the Tribunal had committed any procedural illegality or mistake…but on the ground that
some matters which ought to have been considered by the Tribunal were not duly considered.
Apparently the recall or review sought was not a procedural review, but a review on merits.
Such a review was not permissible in the absence of a provision in the Act”.
In a recent case of “M/s . Haryana Suraj Malting Ltd. v. Phool Chand” in 2018 the Supreme
Court held that “Merely because an award has become enforceable, does not necessarily mean
that it has become binding. For an award to become binding, it should be passed in compliance
with the principles of natural justice.”
Enforcement of an Award: An award may be enforced of 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. Where any money is payable by the employer to a workman, the workman may move the
Appropriate Government for recovery of the money due to him under award.
3. The party in whose favour the award has been granted may file a suit and obtain a decree, which
shall be enforced by execution under the provisions of the Civil Procedure Code.
What are the dispute settlement authorities under the act, their power and duties?
The following authorities are for Investigation and Settlement of industrial disputes:
1. WORKS COMMITTEE (Section 3):
The works committee is a committee consisting of representatives of employers and workmen
(section3). The works committee is a forum for explaining the difficulties of all the parties. The
main objective of the works committee is to solve the problems arising in the day-to-day working
of a concern and to secure industrial harmony. The function of the working committee is to
ascertain the grievances of the employees and to arrive at some agreement. The committee is
formed by general or special order by the appropriate Government in an industrial establishment
in which 100 or more workmen are employed or have been employed on any day in the preceding
12 months. It consists of the representatives of employers and workmen engaged in the
establishment. It shall be the duty of the working committee to promote measures for securing and
preserving amity and good relations between the employers and workmen.
2. CONCILIATION OFFICER (Section 4):
For promoting and settlement of industrial disputes the appropriate Government may by
notification in the Official Gazette, appoint such number of conciliation officer as it thinks fit. The
main objective of appointing conciliation officer is to create congenial atmosphere within the
industry and reconcile the disputes of the workers and the employers. He may be appointed for a
specified area or for specified industries in a specified area or for one or more specified industries
and either permanently or for a limited period.
The duty of the conciliation officer is not judicial but administrative. He has to hold conciliation
proceedings, investigate the disputes and do all such things as he thinks fit for the purpose of
inducing the parties to arrive at a fair settlement of the disputes. The conciliation officer is entitled
to enter an establishment to which the dispute relates, after reasonable notice and also to call for
and inspect any document which he consider relevant. He has to send a report and memorandum
of settlement to appropriate Government. The report by the conciliation officer has to be submitted
within 14 days of the commencement of the conciliation proceeding or shorter period as may be
prescribed by the appropriate Government.
3.
BOARDS OF CONCILIATION (Section 5):
The appropriate Government may by notification in the Official Gazette, constitute a Board of
Conciliation for the settlement of industrial disputes. The Board shall consist of a chairman and 2
or 4 other members in equal numbers representing the parties to the disputes as the appropriate
Government thinks fit. The Chairman shall be an independent person. A person is “independent”
for the purpose of appointment to a Board, Court or Tribunal if he is uncommitted with the dispute
or with any industry directly affected by such dispute. Where the appropriate Government is of the
opinion that any industrial disputes exist in an industry, it may refer by order in writing to the
Board of Conciliation for settling industrial disputes.
The Board of Conciliation has to bring about a settlement of the dispute. He has to send a report
and memorandum of settlement to appropriate Government. He has to send a full report to the
Appropriate Government setting for the steps taken by the Board in case no settlement is arrived
at. The Board has to submit its report within 2 months of the date on which the dispute was referred
to it within the period what the appropriate Government may think fit. The report of the Board
shall be in writing and shall be signed by all the members of the Board.
4. COURT OF INQUIRY (Section 6):
The appropriate Government may by notification in the Official Gazette, constitute a court of
inquiry into any matter appearing to be connected with or relevant to settlement of industrial
disputes having an independent person or of such independent persons as the appropriate
Government may think fit. The court consists of two or more members one of whom shall be
appointed by the Chairman. Within a period of 6 months, the court has to send a report thereon to
the appropriate Government from the commencement of its any inquiry. This period is not
mandatory and it may be extend.
It has the same powers as are vested in a Civil Court under the Code of Civil Procedure 1908, in
the following matters—
• enforcing the attendance of any person and examining him on oath,
• compelling the production of documents and material objects,
• issuing commissions for the examination of witnesses,
• in respect of such other matters as may be prescribed.
The report of the Court must be signed by all the members. A member can submit a note of dissent.
The Report together with the dissenting note must be published by the appropriate Government
within 30 days from its report. A court of enquiry has no power to improve any settlement upon
the parties.
 5. LABOUR COURT (Section 7):
The appropriate Government may by notification in the Official Gazette, constitute one or more
labour court for adjudication of industrial disputes relating to any matters specified in the Second
Schedule. A labour court consists of one person only to be appointed by the appropriate
Government. The main function of the labour court is to hold its proceedings expeditiously and
submit its award as the proceeding concludes.
A person shall be presiding officer of a labour court unless —

• he is or has been, a Judge of the High court,

• he has for a period of not less than three years, been a District Judge or an Additional
District Judge or
• he has held any judicial office in India for not less than seven years; or
• he has been the presiding officer of a Labour Court constituted under any provincial Act
or State Act for not less than five years.
• he must be an “independent” person and must not have attained the age of 65 years.
6. LABOUR TRIBUNALS (Section 7- A):
The appropriate Government may by notification in the Official Gazette, constitute one or more
Industrial Tribunals for adjudication of industrial disputes. A Tribunal shall consist of one person
to be appointed by the appropriate Government. The Appropriate Government may appoint two
persons as assessors to advise the Tribunal. The person shall be not qualified unless—
• he is, a Judge of the High court,
• he has for a period of not less than three years, been a District Judge or an Additional
District Judge.
The appropriate Government may, if it so thinks fit, may appoint two persons as assessors to advise
the Tribunal in the proceeding before it.
The functions of the Tribunals are very much like those of a body discharging judicial functions,
although it is not a Court. Its power is different from that of a Civil Court. The proceedings before
an Industrial Tribunal are quasi-judicial in nature with all the attributes of a Court of Justice.
7. NATIONAL TRIBUNALS (Section 7 B)
The Central Government may, by notification in the Official Gazette, constitute one or more
National Industrial Tribunals for the adjudication of industrial disputes. National Industrial
Tribunals are involve only in case of the questions of national importance or if they are of such a
nature that industrial establishments situated in more than one State are likely to be interested in,
or affected by, such industrial disputes. It consists of one person only to be appointed by the Central
Government. The person shall not be qualified for appointment as the presiding officer unless he
is, or has been, a Judge of a High Court. Beside these, the Central Government may, if it thinks fit,
appoint two persons as assessors to advise the National Tribunal in the proceedings before it.
Section 15: Duties of Labor Courts, Tribunals and National Tribunals
At the point when an industrial contest has alluded to a working court, council or national court
for mediation, it should hold its procedures quickly and will, inside the predetermined period
broaden and should present the honour to the fitting government.
Parties to make available all relevant papers for the proper decision of a dispute
All the parties have to provide the relevant papers for proof, as then only it will give proper
decision of the dispute.
Jurisdiction and Powers of Tribunal and Court
At the point when an industrial contest has alluded to a working court, council or national court
for mediation, it should hold its procedures quickly and will, inside the predetermined period
broaden and should present the honour to the fitting government.
Modification of pleadings
Pleadings can be modified as and when required.
Discharge or Dismissal of a workman
When the issue has been reported to the court, labour court, tribunal, national tribunal regarding
the unfair discharge or dismissal of the workman, the court or the tribunal can award the
reinstatement of the workman into the establishment.
Limitation on power to make award
The powers of the courts can give an award to the parties who deserve the award if anything wrong
has been done with them.
Power of High Court to interfere with the award
If the party tries to file a complaint in the high court, the award can be given to the party whoever
the judge feels worthy and they will be obliged to perform it.
Power of Tribunal to grant interim relief
When an issue or dispute regarding the industrial dispute has been referred to the labour court,
tribunal, national tribunal for referring, and after proper referring done by the respective
courthouse, it could provide an award to the party if it’s satisfied that discharge or dismissal was
not justified. Also, if it thinks fit, it may also provide relief to the workman and also the award of
lesser punishment.
UNIT V
Partial and Total Disablement
a. Partial Disablement
It has been defined under Section 2 (1) (g) to mean where,
the disablement is of a temporary nature, such disablement as reduces the earning capacity of a
workman in any employment in which he was engaged at the time of his accident resulting in the
disablement, and where,
the disablement is of permanent nature, such disablement as reduces the earning capacity in every
employment which he was capable of undertaking at that time provided that every injury specified
in Part II of Schedule I shall be deemed to result in permanent partial disablement.
When an accident occurs and the workman sustains injury, it results into loss of earning capacity
of that workman. Such condition of incapacity of doing work is called disablement. If the earning
capacity of a workman is reduced by the disablement merely in the particular employment in which
he was engaged at the time of his accident, it is known as partial disablement of temporary nature,
on the other hand if the earning capacity of a workman is reduced as result of disablement in every
employment which he was capable of undertaking at the time of the accident, it is known as partial
disablement of permanent nature.
Lipton (India) Ltd. v. Gokul Chandra Mondal In this case Gokul Chandra Mondal was the
workman in the wage group of Rs. 300-400 per month under Lipton (India) Ltd., sustained an
injury in the left eye by the fall of iron particles with the consequent loss of vision in an accident
arising out of and in the course of employment. He filed an application before the commissioner
claiming a sum of Rs. 3780 as compensation at the rate of 30% loss of his earning capacity. The
appellant denied permanent partial disablement because the workman remained disabled only for
14 days and thereafter he resumed his duties. The Commissioner after considering evidence
adduced by both the parties including medical evidence came to the conclusion that the workman
has sustained permanent partial disability in the left eye and so the workman was entitled to
compensation at the rate of 30% loss of his earning capacity as fixed by item No. 26 of Part II of
the First Schedule overruling the contention of the appellant that item 26 was not applicable and
that compensation was to be determined under Section 4 (1) (c) (ii) and consequently he directed
payment to him by the appellant of the sum of Rs. 3780/-.
In appeal the High Court of Calcutta confirmed the view taken by the Commissioner and observed
that we are unable to accept the contention that unless there is complete loss of vision of one eye
item 26 is not attracted. There is nothing in item 26 which excludes partial loss of vision. In welfare
legislation if any particular provision is capable of two interpretations, the one that is more
favourable to the persons for whose benefit the legislation has been made should be adopted. There
can be no doubt that partial loss of vision of one eye comes within the purview of item 26.
Calcutta Electric Supply Corp. v. HC Das, No compensation is granted for any physical disability
unless there was loss of earning capacity. It is only in the case of scheduled injury that such loss
is presumed. Where the injury is not scheduled injury, the loss of earning capacity must be proved.
b. Total Disablement
It has been defined under Section 2 (1) (l) to mean such disablement whether of a temporary or
permanent nature as incapacitates a workman for all work which he was capable of performing at
the time of accident resulting in such disablement and every injury specified in Part I of Schedule
I or combination of injuries specified in Part II of Schedule I where aggregate percentage, as
specified in Part II against those injuries amounts to 100% or more.
The total disablement may be of two kinds, first temporary total disablement and secondly,
permanent total disablement. In temporary total disablement the earning capacity of a workman is
lost for a temporary period and in permanent total disablement the earning capacity of a workman
is lost forever with regard to all work which he was capable of performing at the time of the
accident resulting in such disablement. It has been expressly provided that in total disablement,
100% earning capacity is lost as a result of any injury specified in Part I of Schedule I or as a result
of two or more injuries specified in Part II of Schedule I. The loss of earning capacity has to be
determined by taking into account the diminution or destruction of physical capacity as disclosed
by the medical evidence. Then it has to be seen to what extent such diminution or destruction
should reasonably be taken to have disabled the affected employee from performing the duties
which a workman of his class ordinarily performs. The medical evidence as to physical capacity
is an important factor in the assessment of loss of earning capacity.
The certificate of a medical expert can only say what the injury is, its effect temporary or total and
to an extent the physical incapacity of the man. It is however, for the Court to find having regard
to the evidence before it whether the workman has suffered partial or total disablement. Pratap
Narain Singh Deo v. Shrinivas Sobata and another, The Supreme Court observed that the
expression total disablement has been defined in Section 2 (1) (l) of the Act. It has not been
disputed that the injury was of such a nature as to cause permanent disablement to the respondent,
and that the question for consideration is whether the disablement incapacitated the respondent for
all work which he was capable of performing at the time of the accident. The Commissioner has
examined the question and recorded his finding as follows:
―The injured workman in this case is carpenter by profession. By loss of the left hand above the
elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry
cannot be done by one hand only‖. The Court held this finding as reasonable and correct.
V. Jayraj v. T. P. Transport Corpn. Ltd., A conductor working in State owned Transport
Corporation lost his hearing capacity due to shock received by him in an accident in the bus in
which he was working. He claimed compensation under item 6 in Part I of Schedule I of the Act.
The Commissioner fixed the loss of earning capacity at 20% even though the medical certificate
showed that there is 100% sensorineural hearing loss on right ear and 73.5% hearing loss on the
left ear. Hence the appeal was filed under Section 30 of the Act was filed.
It was held that the loss of earning capacity has to be calculated in terms of permanent partial
disability which the workman has been subjected to. The fact that the workman is continued in the
employment and gets old wages will not absolve the employer from paying the compensation. The
employer may continue him in the old post and give him old wages by way of grace, but that would
not disentitle the employee to claim compensation. It was observed that fixing of loss of earning
capacity at 20% by the commissioner cannot be upheld. Having regard to the fact that the appellant
had lost the hearing in the right ear at 100% and in the left ear at 73.5%, the loss of earning capacity,
could be fixed at 60%. Thus allowing the appeal the amount of compensation was enhanced by
the High Court.
 Samir U. Parikh v. Sikander Zahiruddin, The question before the Court was whether the
Commissioner has power to assess the loss of earning capacity more than what is provided in the
Schedule against a particular injury. In this case the Commissioner determined the actual loss of
earning capacity at 80% even though the Schedule fixed it at 40%. The Bombay High Court held
that the percentage of the loss of earning capacity stated against the injuries in Part II of Schedule
I of the Act is only the minimum to be presumed in each case and the applicant is entitled to prove
that the loss of earning capacity was more than the minimum so prescribed. The Commissioner is
therefore, empowered to come to his own conclusion with regard to the loss of earning capacity in
each case on the basis of the evidence led before him.
K. Janardhan v. United Insurance Company Ltd., In this case the appellant tank driver met with
an accident and was severely injured. His right leg was amputated up-to knee joint. The
Commissioner held it to be 100% disability and awarded compensation. In appeal based on the
opinion of the doctor, the High Court held it to be 65% disability. Relying upon the ratio laid down
in the judgement of Pratap Narain Singh Deo v. Shrinivas Sabata and another, the Apex Court held
the appellant had suffered 100% disability and he was not in a position to work as a driver.

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 employment. 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 the
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 discharge. The
words “arising out of the employment‟ are understood to mean that during the course of the
employment, injury has resulted from some risks incidental to the duties of the service which
unless engaged in the duty owing to the master, it is reasonable to believe the workman otherwise
would not have suffered. There must be a causal relationship between the accident and
employment. If the accident had occurred on account of a risk which is an incident of the
employment ; the claim for compensation must succeed unless ofcourse the workman has exposed
himself to do an added peril by his own imprudence. This expression applies to employment as
such, to its nature, its conditions, its obligations and its incidents and if by reason of any of these,
a workman is brought within a zone of special dangerand so injured or killed, the Act would apply.
The employee must show that he was at the time of injury engaged in the employer‟s business or
in furthering that business and was not doing something for his own benefir or accomodation. The
question that should be considered is whether the workman was required or expected to do the
thing which resulted in the accident, though he might have imprudently or disobediently done the
same. In other words, was the act which resulted in the injury so outside the scope of the duties
with which the workman was entrusted by his employer as to say the accident did not arise out of
his employment.
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 necessiated by workman‟s employment.
Another important questionout 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, a workman, by obeying them merely passes
into 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 authorised to employ him. An injury received within a
reasonable limits of time and space, such as while satisfying thirst or bodily needs, taking food or
drink is to be regarded as injury received in the course of employment.
CASE LAWS;
In State of Rajasthan V. Ram Prasad and Another[2001] , the workman died due to natural
lightening while working at the site. In was held by the Supreme Court that in order that a workman
may succeed in his clain for compensation it is no doubt true that the accident must have casual
connection with the employment and arise out of it. But if the workman is injured as a result natural
force of lightening, though it in itself has no connection with employment of deceased Smt. Geeta,
the employer can still be held liable if the claimant shows that the employement exposed the
deceased to such injury. In the present case the deceased was working on the site and would not
have been exposed to such hazard of lightening had she not been working. Therefore the appellant
was held liable to pay compensation.
In Chairman Madras Port Trust, Madras V. Kamala, [1970] it was held that fetching food is part
of employee‟s duty. Therefore, accident to an employee while fetching food is in the course of
employment.
In Public Works Department V. Kaunsa Gokul, (1967)) a gang while going to collect salary of the
labourers from the office of the Public Works Department was murdered in the way at a place on
which he sat down to take his meals near a well. He was found dead at a considerable distance
from the place where other members of his gang were actually working on the road. The Court
held that the death of Gokul was an accident arising out of his employment because the accident
would not have happened had he not been engaged in that employment. In this case the accident
arose because of the nature of employment that exposed him to some particular danger.
In Shakuntala Chandrakant Shresthi V. Prabhakar Maruti Garveli and Another[2007]the appellant
was the mother of a wrokman (cleaner in motor vehicle). The workman died of a cardiac arrest
while travelling in the vehicle. The Commissioner for Workmen‟s Compensation granted
compensation. On appeal, the High Court held the conclusion that workman died as a result of an
accident during course of employment was not sustainable. Hence this appeal was filed before the
Supreme Court.
The Supreme Court dismissing the appeal held that there must be a causal connection between
injury and accident occuring in the course of employment and the onus was on applicant to show
that strain resulted from work. It was further observed that unless evidence was brought on record
that death of workman by way of cardiac arrest had occurred because of stress or strain (which
was held not proved in this case) the Commissioner had no jurisdiction to grant damages.
Test to detect “ arising out of employment”
 In Ravuri Kotayya v. Dasari Nagavardhanamma [1962] Andhra Pradesh High Court has laid down
the test by which is accident has arisen out of and in the course of employment can be established
:
The workman was employed on or performing the duties at the time of accident.
That the accident occurred at or about the place where he was performing these duties or where
the performance of the duties required him to be present.
That the immediate act which led to or resulted in the accident has some form of casual relation
with the performance of these duties, and such casual connection could be held to exist if the
immediate act which led to the accident is not so remote from the sphere of his duties or the
performance thereof , as to be regarded as something foreign to them.
There are certain exception to the above rule like the accident involve some risk common to general
public and if he by his own act expose himself to some added peril and has accident.