Question Bank : Labour and Industrial Law-I

Roll no.
18bal

073

2. How is “appropriate government” defined under Industrial

Dispute Act,1947? Appropriate Government [Sec. 2(a)]: Appropriate 074
Government means the Central Government in relation to any industrial
dispute concerning any industry carried on by or under the authority of the
Central Government, any industry carried on by a Railway Company, any
controlled industry specified by the Central Government, The Unit Trust of
India. Corporations under the Central Statutes, Banking company,
Insurance company. Mines. Oil field, Cantonment board, Major ports, etc.
In relation to any other industrial dispute, the appropriate Government is
the State Government.

3. How is “controlled industry” defined under the Industrial Dispute

Act, 1947? 75 "

Ans 3. controlled industry" means any industry the control of

which by the Union has been declared by any Central Act to
be expedient in the public interest. [Section 2(ee)]

4. Who is an ‘employer’ for the purposes of Industrial Dispute Act,

1947? 76

As per Section 2(g) of the ID act, "employer" means—

(i) in relation to an industry carried on by or under the authority of any

department of [the Central Government or a State Government], the
authority prescribed in this behalf, or where no authority is prescribed,
the head of the department;

(ii) in relation to an industry carried on by or on behalf of a local

authority, the chief executive officer of that authority;

For an industry in collaboration of central and state government, The

HOD of Central government will be considered to be the employer.

For private industries, CEO will be considered to be the employer

the person authorized to do the work in the capacity as

an employer under the leadership of either the Central
Government or the state government or the local authority.

5. What can be considered to be an ‘industrial establishment

or undertaking ‘as per the Industrial Disputes Act, 1947? 77

"industrial establishment or undertaking" means an

establishment or undertaking in which any industry is carried
on: Provided that where several activities are carried on in an
establishment or undertaking and only one or some of such
activities is or are an industry or industries, then,--

(a) if any unit of such establishment or undertaking carrying on

any activity, being an industry, is severable from the other unit or
units of such establishment or undertaking, such unit shall be
deemed to be a separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant

activities carried on in such establishment or undertaking or any
unit thereof is an industry and the other activity or each of the
other activities carried on in such establishment or undertaking or
unit thereof is not severable from and is, for the purpose of
carrying on, or aiding the carrying on of, such predominant
activity or activities, the entire establishment or undertaking or,
as the case may be, unit thereof shall be deemed to be an industrial
establishment or undertaking.

6. What is ‘public utility services’ as defined in the ID Act , 1947?

78
Public utility services according Section 2(n) of the ID act means:

any railway service 2*[or any transport service for the carriage of
passengers or goods by air]; *[(ia) any service in, or in connection
with the working of, any major port or dock;]
 (ii) any section of an industrial establishment, on the working of
which the safety of the establishment or the workmen employed
therein depends; (

iii) any postal, telegraph or telephone service;

(iv) any industry which supplies power, light or water to the

public;

(v) any system of public conservancy or sanitation;

(vi) any industry specified in the which the appropriate

Government may, if satisfied that public emergency or public
interest so requires, by notification in the Official Gazette, declare
to be a public utility service for the purposes of this Act, for such
period as may be specified in the notification.

Public Utility are those organizations, company or corporations

which provide the essential services to the public. The
undertakings which supply the basic necessary services such as
electricity, water, gas, power, transport etc. comes under the
purview of the public utility services.

7. What constitutes an ‘industry’ under the ID Act, 1947?

79
Sec. 2 (j) of the Industrial Disputes Act, 1947 defines
'industry' as any business, trade, undertaking, manufacture,
or calling of employers and includes any calling, service,
employment, handicraft or industrial occupation or avocation
of workmen”.

1. Systematic activity

2. Organised by co-operation between employer and employee

3. For the production and/or distribution of goods and services

Calculated to satisfy human wants and wishes

8. Can a ‘club’ be considered industry as per the ID Act, 1947?

82
Clubs or self-service institutions or non-proprietary
member's clubs will be industry provided they fulfill the triple
test laid down in Bangalore 'Water Supply v, A. Rajappa.

The triple test provides that a) systematic activities b) organized

by cooperation between employer and employees c) for the
 production of goods and services calculated to satisfy human
wants and wishes would constitute industry.

1. Can ‘cooperative -societies’ be considered industry as per the ID

Act, 1947? 83

Depends on the nature.

A co-operative housing society cannot be termed as an industry

within the meaning of Section 2(j) of the Industrial Disputes Act
merely because it carries on some commercial activity, not as its
predominant activity, but as an adjunct to its main activity.
Where there is a complex of activities, some of which may
qualify the undertaking as an industry and some would not,
what one has to consider is the predominant nature of services
or activities.

To be qualified as an industry, a test laid down in Bangalore

Water Supply and Sewerage Board vs. A. Rajappa comes handy,
wherein it was held that if the predominant nature is to render
services to its own members and the other activities are
merely an adjunct, the undertaking is not an industry.

10. Can a ‘book shop’ be considered as an industry as per the ID Act,

1947 ? 84

A book shop will constitute an industry within the meaning

given under Section 2(j) of the ID Act. In accordance with the
requirements in the section, the case of Bangalore water supply v.
A Rajappa laid down the ‘triple test’ to determine the
qualification of industry.

The triple test provides that a) systematic activities b) organized

by cooperation between employer and employees c) for the
production, supply or distribution of goods and services
calculated to satisfy human wants and wishes would constitute
industry.

In the case of a book shop, all three requirements as mentioned

above are met, hence qualifying it as an industry.
11. What can be the subject matter for Industrial Dispute under the
ID Act, 1947? 85

a dispute or difference between workmen and employers or

between workmen and workmen, which is connected with
employment or non-employment or the terms of employment or with
the conditions of labour. (Section 2(k) of ID Act).

12. How can Industrial disputes be raised and settled under the ID
Act, 1947? 86

A workman can raise a dispute directly before a Conciliation Officer in

the case of discharge, dismissal, retrenchment or any form of termination
of service. In all other cases listed at 2 above, the dispute has to be raised
by a Union / Management.

The ID Act provides for the appointment of Conciliation Officers, Board

of Conciliation, Courts of Inquiry, Labour Courts, Tribunals, and
National Tribunals for settlement of disputes. Another method recognised
for settlement of disputes is through arbitration

13. Under what conditions can an individual dispute become an

industrial dispute? 87

For an individual dispute to be declared as an Industrial Dispute,

the following conditions are to be satisfied:

1. A body of workmen (trade Union ) or a considerable

number of workmen, are found to have made common
cause with the individual workman;
2. 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.

90
15. Who will not be a workman as per the ID Act, 1947?
91
Section 2(s) defines workman as any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled, technical,
operational, clerical or supervisory work, for hire or reward, terms of
employment be express or implied and includes any such person who has
been dismissed, discharged or retrenched in connection with, or as a
consequence of dispute.

Who cannot be workmen under ID act:-

1.It excludes persons employed in army/Navy/Air Force .( Persons

subjected to Air force , navy and army act).

2. who is employed in the police service or as an officer or other

employee of a prison; or

3. A person working in purely managerial and/or supervisory capacity

who draws wages exceeding one thousand six hundred rupees per
mensem or exercises(now Rs. 10,000/-), either by the nature of the duties
attached to the office or by reason of the powers vested in him, functions
mainly of a managerial nature does not fall within the definition of
workman under ID Act. However, when a person performs multifarious
functions, the nature of the main function performed by the person has to
be considered to determine if the person is a "workman." The designation
of a person is not a conclusive factor in determining the nature of work.
Even if a person is designated as supervisor, the employer has to prove
that his work and his duties were in nature of a supervisor.

.
92

17. State the classifications of ‘lay-off’?

93
Lay-Off for the full day
-Lay-Off for the half-day
-Lay-Off for more than a day
Max 45 days
18. Whether the employer has a right to lay-off?
94
Veiyra M.A. vs Fernandez C.P. And Anr. - The Act does not
confer any right upon the employer to lay off an employee. Such
a right must be conferred upon the employer by contract of
service between him and the employee. If such a

contract does not confer a right, that right cannot arise out of
the provisions of the Act.

19. What are the circumstances in which a workman is not deemed to

be laid off under the ID Act, 1947? 95

Ans 19. A workman shall not be deemed to be laid- off by an

employer if such employer offers any alternative
employment (which in the opinion of the employer does not
call for any special skill or previous experience and can be done
by the workman) in the same establishment from which he
has been laid- off or in any other establishment belonging
to the same employer, situate in the same town or village,
or situate within such distance from the establishment to
which he belongs that the transfer will not involve undue
hardship to the workman having regard to the facts and
circumstances of his case, provided that the wages which
would normally have been paid to the workman are offered for
the alternative appointment also.

20. What is the procedure for retrenchment under the ID act, 1947?
96
Ans . Action section 25g laids down the procedure of
retrenchment Where any workman in an industrial
establishment, who is a citizen of India, is to be retrenched
and he belongs to a particular category of workmen in that
establishment, in the absence of any agreement between the
employer and the workman in this behalf, the employer shall
ordinarily retrench the workman Who was the last person to be
employed in that category. Employer is required to maintain
seniority list of workman With a system of last in , first out.

21. What are the conditions precedent for a valid

retrenchment under ID Act, 1947? 97

S. 25 F): • According to this section, the employer must

satisfy the following conditions before retrenching an
employee employed for a period of continuous period of
not less than one year - • a) the workman has been given
one months notice in writing indicating the reasons for
 retrenchment and the period of notice has expired, or the
workman haş been paid in lieu of such notice, wages for
the period of the notice. • b) the workman has been paid,
at the time of retrenchment, compensation which shall
be equivalent to fifteen days average pay {for thereof in
excess of six months; and every completed year of
continuous service] or any part • c) notice in the
prescribed manner is served on the appropriate
Government [or such authority as may be specified by the
appropriate Government by notification in the Official
Gazette].

22. What rule needs to be followed for retrenchment of

workmen under ID Act,1947? 100

First Come Last Go” or “Last Come First Go”

23. Can retrenched workmen be reemployed as per the provisions of

ID Act, 1947? 101

ANS- As per section 25H of ID Act, a workman retrenched from employment

should be given the first preference in cases of fresh employment by the same
employer. Section 25H of the Act states that

“where any workmen are retrenched, and the employer proposes to take into his employ
any persons, he shall, in such manner as may be prescribed, give an opportunity to the
retrenched workmen who are citizens of India to offer themselves for re-employment, and
such retrenched workmen who offer themselves for re-employment shall have preference
over other persons.”

In terms of the aforesaid provision, in order to avail the benefits enshrined therein,
it is necessary for the retrenched workmen to be a citizen of India and to
offer himself for reemployment at the time when the former employer
provides an opportunity for reemployment. Needless to say, the workman
must have been retrenched and not dismissed, discharged, or superannuated.

24. What conditions does section 25FF of the ID Act, 1947 state?
102
ANS 24. Section 25FF of the ID Act provides for Compensation to

workmen in case of transfer of undertakings. According to this

provision where the ownership of management of an undertaking

 is transferred from the old employer to a new employer, a

workman is entitled to notice and compensation. However, the

conditionid that the workman shall have been in continuous service

for minimum one year in that undertaking immediately before such

transfer.

25. What is the difference between ‘closure’ and retrenchment’?

103
In closure the entire business is shutdown where as in retrenchment whole
business is not shut but only the employee is removed.

In clousure no rule is applicabl;e where as in retrenchment rule is applicable of

First Come Last Go” or “Last Come First Go”

105

27. What is the procedure stated for closing of an undertaking under

the ID Act, 1947? 106

Ans. Procedure for Closure of an Undertaking is given in IDA under

Chapter V-A Section 25-FFA.

• Any employer who intends to close down an undertaking shall

serve, at least sixty days before the date on which the intended
closure is to become effective, a notice,
• in the prescribed manner
• on the appropriate Government
• stating clearly the reasons for the intended closure of the
undertaking.

Exceptions:

(a) an undertaking in which less than fifty workmen are employed,

or less than fifty workmen were employed on an average per working
day in the preceding twelve months,
(b) an undertaking set up for the construction of buildings, bridges,
roads, canals, dams or for other construction work or project.

*However, the appropriate Government may, if satisfied that owing to

such exceptional circumstances (like an accident in the undertaking or
death of the employer), by order, direct that provisions of sub-section (1)
shall not apply in relation to such undertaking for such period as may be
specified in the order.

28. What is the penalty stated under the ID Act, 1947 for illegal
closure of an undertaking ? 107

nemployer who closes down an undertaking without complying with the

provisions of sub-section (1) of Section 25-O shall be punishable with
imprisonment for a term which may extend to six months, or with fine which
may extend to five thousand rupees, or with both.

(2) Any employer who contravenes 2[an order refusing to grant permission to
close down an undertaking under sub-section (2) of Section 25-O or a direction
given under Section 25-P] shall be punishable with imprisonment for a term
which may extend to one year, or with fine which may extend to five thousand
rupees, or with both, and where the contravention is a continuing one, with a
further fine which may extend to two thousand rupees for every day during
which the contravention continues after the conviction.

29. Is ‘right to strike’ a fundamental right ?Decide.

108
Right to Strike is not recognized as a Fundamental Right under
our constitution. ... Right to Strike is considered as a
legal right with its own restrictions mentioned under the Industrial
Disputes Act, 1947. The Trade Unions Act, 1926 highlights that
trade unions can also pursue their activities peacefully

30. Differentiate between ‘legal’ and ‘illegal’ strikes?

109
A strike would be legal if it does not violate the restrictive
conditions imposed by sections 22 or 23 as the case may
be. Similarly, a strike would be illegal if it violates the two
conditions specified u/s 24(1) of the Act.

No person employed in a public utility service shall go on strike in breach of

contract-

1. (a) without giving to the employer notice of strike, as hereinafter

provided, within six weeks before striking; or
2. (b) within fourteen days of giving such notice; or
3. (c) before the expiry of the date of strike specified in any such notice
 as aforesaid; or

4. (d) during the pendency of any conciliation proceedings before a

conciliation officer and seven days after the conclusion of such

proceedings.

31. A group of workers go on strike. Subsequently the employer

declared a lock-out. THe workmen contend that the lockout is illegal as 110
no notice has been given by the management in respect of the same.
Decide.

Answer: If the industry is not engaged in public utility

services, then by not giving a notice, it does not stand in
contradiction of Section 22 of the Industrial Disputes Act. Just as
strikes are a weapon in the hand of the workers, who use it to
compel the employer to agree to their demands, the employer can
use lockouts to compel workers.

If the industry is carrying on public utility services, then

furnishing a notice is essential as given in Section 22, within 6
weeks of lockout, which can’t be implemented within 14 days
of the notice being furnished.

.
111

33. Lockout was declared by the employer. Then the appropriate

government referred the dispute for adjudication. But the employer did 112
not lift the lockout. Is the lockout illegal? Decide.

As per section 24(2),Where a strike or lock- out in pursuance of an

industrial dispute has already commenced and is in existence at the time
of the reference of the dispute to a Board, an arbitrator, or any
adjudicating authority like Labour Court, Tribunal or National Tribunal,
the continuance of such strike or lock- out shall not be deemed to be
illegal, provided that such strike or lock- out was not at its
commencement in contravention of the provisions of this Act or the
continuance thereof was not prohibited under sub- section (3) of section
10 or sub- section (4A) of section 10A].
Section 10(3) mentions that if the dispute has been referred to
board,arbitration or adjudicating authority, appropriate
Government may by order prohibit the continuance of any strike or
lockout.

Herein there is no contravention of section 10(3) and not of other

provisions of the act, hence lockout is not deemed to be illegal.

.
113

35. What is the penalty stated under the ID Act, 1947 for providing
financial aid to illegal strikes and lockouts? 115-

Section 28. Penalty for giving financial aid to illegal strikes and
Lockouts

Any person who knowingly expends or applies any money in

direct furtherance or support of any illegal strike or lock-out shall
be punishable with imprisonment for a term which may extend to
six months, or with fine which may extend to one thousand
rupees, or with both.

36. What is the penalty stated for disclosing confidential information

under the ID act, 1947? 116

Any person who willfully discloses any such information as is

referred to in section 21 which talks about matter which are
confidential in contravention of the provisions of that section
shall, on complaint made by or on behalf of the trade union or
individual business affected, be punishable with imprisonment for
a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
37. What is the objective and purpose of Trade Union Act, 1926?
117
The primary function of the Trade Unions Act is to protect the
interests of workers against discrimination and unfair labor
practice and also provide them a blanket cover to stand up for
their interests through the formation of trade unions.

• Ensure Security of Workers:

This ensured continued employment of workers, prevent
retrenchment, lay off or lock-outs. Controlled application of “fire”
or dismissal or discharge and VRS.
• Obtain Better Economic Returns:
This ensured wages hike at periodic intervals, bonus at higher
rate, other admissible allowances, subsidized canteen and
transport facilities.
• Secure Power To Influence Management:
This ensured workers’ participation in management, decision
making, role of union in policy decisions affecting workers, and
staff members.
• Secure Power To Influence Government:
This ensured influence on government to pass labour legislation
which improves working conditions, safety, welfare, security and
retirement benefits of workers and their dependents, seek
redressal of grievances as and when needed.

.
118

39. State three prerequisites for effective collective bargaining?

119
1) Strong bargaining agent

Responsible management

Mutual faith and trust between management and trade union

Mutual recognition of their rights and responsibilities

5) Reliance on facts rather than emotions

Honouring Agreements
 120

41. Does ILO recognise the right of collective bargaining?

121
Yes. Declaration III of the Philadelphia Declaration poses an
obligation on the ILO to recognise the right of collective
bargaining.

42. Is collective bargaining agreement enforceable in law in India ?

123
In India, Industrial Disputes Act, 1947 provides that, in case of any
industrial establishment in which 100 or more workmen are
employed or have been employed on any day in the previous
twelve months, the appropriate Government may by general or
special order require the employer to constitute a Works
Committee consisting of the representatives of employers and
workmen engaged in the establishment. The Works Committee
under Section 3 and conciliation machinery under Section 4 of the
Industrial Disputes Act, 1947 is also based on the essential
principle of collective bargaining. Section 10-A was inserted in the
Industrial Disputes Act, 1947 to provide for voluntary arbitration
which was expected to be used as a device to make a shift from
the compulsory adjudication to the collective bargaining.

43. What can be the reasons for failure of collective bargaining

agreement in India ? 124

ANSWER:

Though it is argued that collective bargaining has grown in India due to

the statutory provisions and voluntary measures, its success is limited.
Collective bargaining has not made much headway in India when
compared to other industrial nations. Collective bargaining machinery
essentially is a reflection of a particular social and political climate. The
Indian trade unions are weak in collective bargaining. This is because of
various political, economical and social factors prevailing in India.

The reasons are:

i. Weak unions: Collective bargaining process mainly depends

on the strength of unions. Indian unions are marked with
multiplicity, inter and intra-union rivalry, weak financial
position and non-recognition. Weak trade unions cannot initiate
strong arguments during negotiations. All in all, the lack of
unified and strong trade union movement represents a missing
link in the existing industrial relations framework.

ii. Problems from Government: The Government has not been

making any strong efforts for the development of collective
bargaining. The regulatory framework covering the industrial
relations scene is quite tight, leaving very little room for
bargaining to flourish on a voluntary basis.

iii. Legal problems: Now adjudication is easily accessible. No

attempt has been made by the Government to rationalise or
simplify the multifarious laws covering labour management
relations.

iv. Attitude of Management: Employers have failed to read the

writing on the wall, they do not appreciate the fact that unions
have come to stay with almost equal bargaining strength. Such
negative attitudes have come in the way of negotiating with
unions voluntarily.

v. Employer’s uncertainty about who is the recognised bargaining

agent Employers quite often are not very sure who the
recognised bargaining agent is. When there are multiple unions,
bargaining with one union may prove to be a tough battle.

vi. Statutory fixation of conditions of work: Areas of collective

bargaining have not grown in view of the encouragement given
to wage boards, pay commissions, statutory fixation of other
conditions of work and social security measures.

vii. Political interference: Almost all unions are associated with

some political party or the other. The political parties interfere
in the smooth functioning of the union. Because of funding to
unions, the political party gains power and hence, interferes.
Some of the politically affiliated Central trade unions in India
are:BMS- Bharatiya Mazdoor Sangh (linked with far right
political party BJP)- members: 6 million, INTUC- Indian
National Trade Union Congress (linked with centrist Congress
party)- members: 3.8 million, AITUC- All India Trade Union
 Congress (linked with Communist party of India)- members:
3.3 million etc.

viii. Outsiders in the process of collective bargaining: The Trade

Unions Act, 1926, permits outsiders to be the office bearers of
a union to the extent of half the total number of office bearers.
So, it permits one to be the leader of the union who does not
actually work in the industry. Sometimes a dismissed employee
working as a union leader may create difficulties in the
relationship between the union and the employer. Nevertheless,
experience shows that outsiders who have little knowledge of
the background of labour problems, history of labour
movement, fundamentals of trade unionism and the technique
of the industry and with even little general education assume
the charge of labour union and become the self-appointed
custodian of the welfare of the workers. The employers,
therefore, have been reluctant to discuss and negotiate
industrial matters with outsiders, who have no personal or
direct knowledge of day to day affairs of the industry.
Accordingly, employers refuse recognition to the unions which
are either controlled by the politicians or affiliated to a
particular political party or controlled by a particular
individual. Government cannot morally compel employers to
accord recognition to unions without driving out the politicians
from them. Critic says that the presence of outsiders is one of
the important reasons for the failure of collective bargaining in
India.

ix. Industrial relations framework: Collective bargaining is a

voluntary process. It presupposes an appropriate industrial
relations framework which provides scope for effective
interaction of the parties within the parameters set by the
requirement of peaceful existence of civilisation. It has been
opined that in India, the conditions necessary for such
interaction are either non-existent or not feasible thus making
the industrial relations framework less hospitable for the
development of a collective bargaining relationship in
machinery.

x. Other factors: The unorganised trade unions in India are also

the root cause of inefficient collective bargaining of trade
unions. In India the Government policies are not conducive to
the trade unions. This leads to weakness on part of trade unions
to negotiate effectively with management. There is no apex
body of trade unions in India. This further lowers the chances
of proper collective bargaining.

Unfortunately in India, due to certain factors such as interunion

and intra-union rivalry, multiplicity of trade unions, self-
seeking politicians dabbling in trade unions, encouragement to
 the workers for indulging in coercion measures, intimidation,
violence, etc. collective bargaining has mainly been distributive
bargaining. However, instances of two-way traffic are
available. There have been agreements when there is noticeable
shift towards integrative bargaining.

44. How is ‘trade union’ defined under the Trade Union Act, 1926?
125
2h Trade Union" means any combination, whether temporary or permanent,
formed primarily for the purpose of regulating the relations between
workmen and employers 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:

Provided that this Act shall not affect-

(i) any agreement between partners as to their own business;
(ii) any agreement between an employer and those employed by him as to such
employment; or
(iii) any agreement in consideration of the sale of the goodwill of a business or
of instruction in any profession, trade or handicraft.

45. Who has the power to register the trade union under the Trade
Union Act, 1926? 126

ans. According to Section 8 of the Act, if the registrar has fully

satisfied himself that a union has complied with all the necessary
provisions of the Act, he may register such union by recording all
its particulars in a manner specified by the Act.

46. What are the mandatory rules for a Trade Union to follow under
the TU Act, 1926? 128

Ans. According to Section 6, a Trade Union shall not be

entitled to registration under this Act, unless the executive
thereof is constituted in accordance with the provisions of this act,
and the rules thereof provide for the following matters,
namely:—

a. the name of the Trade Union;

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- 11

bearers] and members of Trade Union;

e. the admission of ordinary members who shall be persons
actually engaged or employed in an industry with which the Trade
Union is connected, and also the admission of the number of
honorary or temporary members as [office-bearers] required under
11

section 22 to form the executive of the Trade Union;

[(ee) 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 unorganised
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
11 13

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 the Trade Union, an 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
11

Union; and
j. the manner in which the Trade Union may be dissolved.

47. Who can apply for registration of the Trade Union ?

130
Any seven or more members of a Trade Union may, by subscribing their
names to the rules of the Trade Union and by otherwise complying with
the provisions of this Act with respect to registration, apply for registration of
the Trade Union under this Act.
2
[(2) Where an application has been made under sub-section (1) for the
registration of a Trade Union, such application shall not be deemed to have
become invalid merely by reason of the tact that, at any time after the date of
the application, but before the registration of the Trade Union, some of the
applicants, but not exceeding half of the total number of persons who made the
application, have ceased to be members of the Trade Union or have given
notice in writing to the Registrar dissociating themselves from the application.]

48. What Acts are not applicable to a registered Trade Union as per
the Trade Union Act, 1926? 131

Societies registration act, 1860

Co-operative society registration act, 1912

Companies act, 1956

49. Does a trade union have a right of immunity from criminal

liability ? How ? 132

Yes. Sec. 17 of the Trade Unions Act, 1926 grants immunity to office
bearers and members of a registered trade union from criminal
liability. This immunity is conferred in cases of criminal conspiracy
under Sec. 120B(2) of the IPC. However, this immunity is only available
in the following situations:

a. When agreements are made between members of the trade union,

b. When the agreement is made to further any such object of the
trade union as mentioned in Sec. 15, and
c. When the agreement is not to commit an offence.

50. Does a trade union have a right of immunity from civil liability ?
How ? 133

Yes, a trade union has right of immunity from civil liability under
Section 18 of Trade Unions Act, 1926.

AVAILABLE TO: a) any registered trade union

b) any office bearer

c) any member of registered trade union

4 REQUIREMENTS: a) Trade Union which is seeking remedy must be

registered under TU Act, 1926.

b) The act should be in contemplation of furtherance of Trade dispute.

c) Member of Trade Union doing such kind of act should be party to trade
dispute.

d) Claim of immunity under section 18 can be made only on grounds

expressly mentioned under section 18.

GROUNDS FOR IMMUNITY U/S 18: a) Such act induces some other
person to break contract of employment.

b) The act is tortious in nature and in furtherance of trade dispute. That

act is done to interfere with trade, business, employment of some other
person.

c) Such act interferes with the right of distribution of capital or labor as

he (employer)wills.

51. Does the trade union have a right to enter into agreements in restraint
of trade? 134
Section 19- Enforceability of agreements.- Notwithstanding anything
contained in any other law for the time being in force, an agreement
between the members of a registered Trade Union shall not be void or
voidable merely by reason of the fact that any of the objects of the
agreement are in restraint of trade:
Provided that nothing in this section shall enable any Civil Court to
entertain any legal proceeding instituted for the express purpose of
enforcing or recovering damages for the breach of any agreement
concerning the conditions on which any members of a Trade Union
shall or shall not sell their goods, transact business, work, employ or be
employed.

52. Can a minor obtain membership of a trade union?

135
If a person has attained the age of 15 years, he can be admitted
as a member of a registered trade union provided that there is no
prohibition in the rules of the trade union on admitting
any minor as its members.

53. What liability does Section 15 of the Trade Union

Act,1926 impose on the registered trade unions? 136

The general funds of a registered Trade Union shall not be spent on any other
objects than the following.-namely:--

(a) the payment of salaries, allowances and expenses to 1[office-bearers] of

the Trade Union;
(b) the payment of expenses for the administration of the Trade Union, including
audit of the accounts of the general funds of the Trade Union;
(c) the prosecution or defence of any legal proceeding to which the Trade
Union or any member thereof is a party, when such prosecution or defence
 is undertaken for the purpose of securing or protecting any rights of the Trade
Union as such or any rights arising out of the relations of any member with his
employer or with a person whom the member employ;
(d) the conduct of trade disputes on behalf of the Trade Union or any
member thereof;
(e) the compensation of members for loss arising out of trade disputes;
(f) allowances to members or their dependants on account of death, old
age, sickness, accidents or unemployment of such members;
(g) the issue of, or the undertaking of liability under, policies of assurance on
the lives of members, or (under) policies insuring members against
sickness, accident or unemployment;
(h) the provision of education, social or religious benefits for members (including
the payment of the expenses of funeral or religious ceremonies for
deceased members) or for the dependants of members;
(i) the upkeep of a periodical published mainly for the purpose of discussing
questions affecting employers or workmen as such;
j) the payment, in furtherance of any of the objects on which the general funds
of the Trade Union may be spent, of contributions to any cause intended to
benefit workmen in general provided that the expenditure in respect of such
contributions in any financial year shall not at any time during that
year be in excess of one-fourth of the combined total of the gross income which
has up to that time accrued to the general funds of the Trade Union during that
year and of the balance at the credit of those funds at the commencement of
that year; and
2
(k)subjecttoanyconditionscontainedinthenotification,anyotherobjectnotifiedbythe
[appropriate Government] in the Official Gazette.

54. State difference between registered and unregistered trade unions

? 137

ANSWER:

REGISTERED TRADE UNION:

1. Once registered a trade union becomes a Juristic Person. It starts acting

as a body corporate.

2. As a Legal Person a registered trade union has the power to sue or be

sued.

3. A registered trade union has perpetual succession

4. Can acquire property whether movable or immovable in its own

name.

5. Can enter into a contract in its own name.

6. Once a trade union is registered it acquires affiliation from national

trade union as well as international trade union federation.

7. Members have the privilege to actively negotiate and participate in the

action of collective bargaining.
8. Obligated with certain duties wherein the T.U. has to account for funds and
submit returns in the prescribed period of time to the registrar.

9. Once registered, both the trade union and the members have certain rights
and immunities mentioned in Sections 17 and 18 of Trade Union Act,
1926. They provide immunity in case of both civil and criminal liabilities.

10. Compulsion upon the trade Unions to create 2 funds namely General
Funds; Civil and Political Funds and to be maintained separately.

UNREGISTERED TRADE UNION:

1. An unregistered trade union is just an association.

2. Does not hold the power to sue or be sued.

3. No perpetual succession can take place in the Unregistered Trade Union.

4. Cannot acquire either movable or immovable property in its own name.

5. Cannot enter into a contract in its own name.

6. Does not get affiliation from the national trade union or international trade
union federation.

7. An unregistered trade union can claim a right to collective bargaining,

however, the members are not allowed to negotiate or participate in the
action of collective bargaining.

8. No compulsion or necessity to maintain proper accounts or to submit

returns to the registrar.

9. Rights and Immunities as mentioned in section 17 and 18 are not

available to the members of an unregistered trade union.

10. Does not need to maintain 2 separate funds.

55. What are the core labour standards which are recognised by ILO?
139
1) Freedom of association and the effective recognition of the right
to collective bargaining; 2) Elimination of all forms of forced or
compulsory labor; 3) Effective elimination of child labor; and 4)
Elimination of discrimination in respect of employment and
occupation.
.
140

58. What landmark case gave extensive recomeedations to tackle

child labour situation in India ? 99 -

M.C Mehta vs. State of Tamil Nadu (1996)

59. Which articles of the Indian Constitution in the nature of

fundamental rights gives constitutional protection to labour ? 72

Article 19 (1) (a) (b) (c ) (d), Article 23 (1), Article 24.

Article 21 proclaims that "no person shall be deprived of

his life or personal liberty except according to
procedures established by law". With passage of time,
and compelling social needs, however, the courts have given
a very liberal and wide interpretation of the terms "life" or
"Personal Liberty". In Bandhua Mukti Morcha vs. union of
India-SC 1984, it was held that Article 21 assures a citizen
the right to live with human dignity free from exploitation.
The Govt. is bound to ensure observance of social welfare
and labour laws enacted to secure for workmen a life
compatible with human dignity. Again in Ogla Tellis12-
Dec-06 vs. Bombay Municipal Corporations - S.C. 1985,
this was affirmed.

Article 23 and 24 guarantee the right against

exploitation. Clause(1) of Article 23, prohibits traffic in
human beings; and any form of forced labour and makes
them punishable offence. In People's Union for
 Democratic Rights vs. Union of India Sc. 1983, it was held
that labour or services for a remuneration less than a
minimum wage amounts to "forced labour".

Article 24 of the Constituion prohibits the employment

of children below the age of 14 years in factories, mines
or any other hazardous work. The idea is to protect the
health and well being of children. However, the article does
not prohibit the employment of children in easy and less
strenuous work. Articles 32 to 35 guarantee the right to
constitutional remedies, as right without a remedy is a
meaningless formality.

60. Which articles of the Indian Constitution in the nature of DPSPs

imposes duty on the States with respect to labour ?

Article 39 (a) , (d), (e), (f), Article 41, Article 42, Article 43, Article
43-A
39. Certain principles of policy to be followed by the State.—The State
shall, in particular, direct its policy towards securing—
(a) that the citizens, men and women equally, have the right to an
adequate means of livelihood;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced
by economic necessity to enter avocations unsuited to their age or
strength;
[(f) that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral
and material abandonment.]
41. Right to work, to education and to public assistance in certain
cases.—The State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work, to
education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want.
42. Provision for just and humane conditions of work and maternity
relief.—The State shall make provision for securing just and humane
conditions of work and for maternity relief.
43. Living wage, etc., for workers.—The State shall endeavour to
secure, by suitable legislation or economic organisation or in any other
way, to all workers, agricultural, industrial or otherwise, work, a living
wage, conditions of work ensuring a decent standard of life and full
enjoyment of leisure and social and cultural opportunities and, in
particular, the State shall endeavour to promote cottage industries on an
individual or co-operative basis in rural areas. 1