NAME- VINITA CHOUDHARY

MODULE- LABOUR LAW II

BATCH- 2018-23

ENROLL NO.—312018017

CASE BOOK

1. State of U.P. v. Jai Bir Singh (2005) 5 SCC 1

The formation of a bigger bench is a much-belated response to the request of a five-determine

bench of the Court in State of Uttar Pradesh v Jaibir Singh for a bigger bench for
reconsideration of the BWSSB verdict. The majority judgment in the BWSSB case, authored
by means of manner of Justice Krishna Iyer, had famously laid down the ‘Triple Test’ wherein
any systematic interest, organised by means of the use of cooperation among organisation and
employee for the manufacturing and/or distribution of products and offerings could be
considered an company below Section 2(j) of Industrial Disputes Act, 1947 (IDA). The fine
exception the Court had regarded pertained to sovereign skills. Even even though this judgment
held sway because the ruling authority for almost 3 a long time, in an first rate selection in
2005, the Jaibir Singh bench held that the opinion of Justice Krishna Iyer couldn't be treated as
an authoritative precedent and requested for a connection with a bigger bench.

After greater than a decade, the seven-pick bench has ultimately been constituted and the
Bench, after concluding the being attentive to final week, has reserved its desire. News-reviews
on the listening to suggest that the Bench appears to be favourably disposed towards referring
the matter to a 9-decide bench. As we expect its choice, I revisit the critique of BWSSB
positioned forth by using the 5 decide-bench and observe the arguments of the petitioners
before the seven-decide bench inside the Jaibir Singh case. In this collection of posts, I present
the following arguments: 1) that Jaibir Singh’s statement that the Triple Test did now not have
the assist of the bulk of judges of the BWSSB Bench changed into primarily based mostly on
an misguided studying of the separate reviews if so, 2) that the reliance positioned by using
way of the petitioners in advance than the seven-judge bench on the analogy with Supreme
Court’s don't forget of the NEET Order to plead that BWSSB selection isn't always a judgment
in eye of law ignores the distinction between the 2 cases, three) that leaving at the back of the
Triple Test for a extra restrictive interpretation of business enterprise, with out enacting
parallel worker-protection regulation would be regressive and 4) that at the same time as Triple
Test offers an handy and coherent framework for defining organization, positive elements of
the BWSSB verdict do require further explanation. In this technique, I submit that a reference
ought to be made to a nine-pick bench. However, the bigger bench need to chorus from
discarding the Triple Test however have to alternatively make clear some of those questions
left unanswered by way of the BWSSB case.

Not the First Assault on BWSSB Prior to the BWSSB preference, one-of-a-kind benches of the
Supreme Court had grappled with the great amplitude of the terms listed in section 2 (j), leading
to, what Justice Krishna Iyer defined as, a “zigzag path of landmark instances.” In laying down
the Triple Test in BWSSB, Justice Iyer accompanied a beneficial method and carved out a
coherent and but smooth framework for the definition of company that would be applied across
one of a kind sports. It also very demonstrably superior the statutory motive of extending crook
protection to a miles broader constituency of employees.

Yet, the judgment had come beneath attack from severa quarters even before the Jaibir Singh
case. In reality, the Parliament amended segment 2 (j) in 1982 and took positive sports activities
out of the purview of the phrase ‘organization’.

But the choice of Jaibir Singh modified right into a frontal assault at the BWSSB judgment. As
cited in advance, the case suggested that the BWSSB majority opinion did now not even
constitute an authoritative precedent. This claim end up based mostly on the subsequent
propositions: a) that judges added specific critiques at special factors of time with out perusing
the opinion of different judges on the bench and Beg C.J. Who wrote a separate opinion
introduced in haste, first-class concurred with the realization that the BWSSB is an enterprise
and no longer with specific assertions inside the majority opinion and b) that every one the
opinions had referred to as for legislative intervention, while suggesting that their reviews had
been alleged to provide a possible solution till the legislature stepped in.

Held: The main aim of Industrial Dispute Act, 1947, is to alter and harmonize dating between
employers and personnel for preserving commercial enterprise peace and social concord.

Judgement--his present Appeal together with different related times has been indexed earlier
than this Constitution Bench of 5 judges on a reference made through a Bench of 3 Honourable
judges of this Court finding an apparent war a few of the choices of Benches of this Court in
the cases of Chief Conservator of Forests vs. Jagnnath Maruti Kondhare, (1996) 2 SCC 293 of
3 judges and State of Gujarat vs. Pratamsingh Narsinh Parmar, (2001) 9 SCC 713 of judges.

(2nd ) On the query of whether or not or not social forestry branch of State, that is a welfare
scheme undertaken for development of the surroundings, is probably included through the
definition of industry" beneath S.2(j) of the Industrial Disputes Act, 1947, the aforesaid
Benches (supra) of this Court culled out in any other way the ratio of the seven judges Bench
desire of this Court inside the case of Bangalore Water Supply and Sewerage Board vs. A.
Rajappa (1978) 2 SCC 213] (speedy hereinafter known as the Bangalore Water case). The
Bench of 3 judges in the case of Chief Conservator of Forests vs. Jagannath Maruti Kondhare
(supra) based totally totally at the choice of Bangalore Water case came to the notion that Social
Forestry Department is blanketed via the definition of corporation whereas the two judges
Bench choice in State of Gujarat vs. Pratamsingh Narsinh Parmar (supra) took a special view.

3rd. As the cleavage of opinion among the 2 Benches of this Court appears to were on the idea
of seven judges Bench choice of this Court in the case of Bangalore Water, the prevailing case
alongside side the opportunity connected instances, wherein correctness of the choice in the
case of Bangalore Water is doubted, has been positioned in advance than this Bench.

2. Municipal Corporation of Delhi v. Female Workers (Muster Roll) AIR 2000 SC 1274:
(2000) 3 SCC 224

In the case of Municipal Corporation of Delhi v. Female Workers, the Union of Female
Workers who have been not on ordinary rolls, but were treated as brief employees and
employed on Muster roll, claimed that they should also get maternity benefit like ordinary
employees. The court docket held that the provisions of the Act might indicate that they are
completely in consonance with the Directive Principles of State Policy (D.P.S.P.), as set
out in Article 39 and Article forty . A girl employee, on the time of superior pregnancy,
can't be pressured to undertake any form of tough labour as it might be damaging to her
body and the health of the toddler. It is because of this that it is furnished within the Act
that she might be entitled to maternity leave for 6 weeks in advance than and after shipping.

The Hon’ble Supreme Court of India in Municipal Corporation of Delhi vs Female Workers
(Muster Roll) & Anr, AIR 2000 SC 1274, & The Central Administrative Tribunal (CAT)
in a current case of Anuradha Arya v. The Principal & Ors. The benefits furnished beneath
the MB Act can be applicable to all ladies employees, whether or not engaged as casual
employees or on muster rolls or daily wages.

After analyzing the decision I discovered that here raised a name for for deliver of maternity
depart which modified into made available satisfactory to everyday female personnel but
was denied to them on the floor that their services were not regularised and, therefore, they
had been now not entitled to any maternity depart.

The case grow to be espoused and consequently, the following query come to be raised

“Whether the woman workers operating on Muster Roll ought to be given any maternity
advantage? If so, what guidelines are essential on this regard?”

Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) And Another – in this
situation, the Apex Court held that the provisions of the Act i.E. Maternity Benefit Act
entitled maternity depart even to women engaged on a informal basis or on muster roll basis
on each day wages and not only those in regular employment, the provisions of the Act in
this regard, held, are thoroughly in consonance with the Directive Principles of State Policy
contained in Arts 39 in particular in Articles forty two and forty 3.

The Central Administrative Tribunal (CAT) in a cutting-edge case of Anuradha Arya v.

The Principal & Ors. Categorically stated that advantages of maternity leave with full salary
can't be denied to a lady employee appointed on contractual foundation and they are entitled
to maternity go away as according to provisions of Section five of the Maternity Benefit
Act, 1961.

Thus none of above helping cannot be used for figuring out the applicability of MB for
‘Consultant’. Hence, shall can’t agree for your war of words as in keeping with the sporting
supplied.

Finally, to set up the applicability of MB on ‘Consultant’ shall need to refer the Ministry
of Labor and Employment issued an illumination beneath notification – S-36012/03/2015-
35-2, dated April 12, 2017 on MB (Amendment) Act 2017, wherein it emerge as expressed
that as there has been no revision to Section 2(O) of the Maternity Benefit Act of 1961, the
Act is pertinent to all women who are working in any manner, especially or via any business
enterprise i.E. Legally binding or expert work.
 3. Dharangadhra Chemical Works Ltd. v. State of Saurashtra

Then in Dhrangadhra Chemical Works Ltd. v. State of Saurashtra6, the Supreme Court held
that the test of supervision and control may be taken as prima facie test for determining the
relationship of employment. Since the nature or extent of control varied from business to
business it became impossible to precisely define the extent of control and supervision. The
judicial dicta therefore suggested that correct method of approach, would be to consider
whether having regard to the nature of work, there was due control and supervision by the
employer. It means the greater the amount of direct control exercised over the persons
rendering services by the persons contracting for them, the stronger would be the logic for
holding it to be a contract of service.
 4. Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR
1958 SC 353

The appellants are the workmen of the Dimakuchi Tea Estate represented with the aid of the
Assam Chah Karmachari Sangha, Dibrugarh and the respondent is the management of the
Dimakuchi tea estate, district Darrang, in Assam. Dr. K. P. Banerjee became appointed
assistant medical officer of the Dimakuchi tea property. He turned into appointed problem to a
great clinical file and on probation for 3 months in which his suitability for permanent
employment would be taken into consideration. If he turned into taken into consideration
incorrect for employment, he might get hold of seven days' notice in writing terminating his
appointment and if he became determined responsible of misconduct, he become at risk of
instantaneous dismissal. If he changed into found suitable he could be showed within the lawn’s
services. Dr. Banerjee was given increment of Rs. Five in line with mensem however then he
acquired a letter from one Mr. Booth, manager of the tea estate where it was said that his
services had been terminated but he might get hold of one month’s revenue in lieu of word.

ISSUES OF THE CASE

The predominant or the principle problem or query concerned in this situation turned into
whether a dispute when it comes to someone who isn't always a workman falls in the scope of
the definition of industrial dispute contained in Section 2(k) of the Industrial Disputes Act,
1947 and at the same time as doing so the Court has taken into consideration the Industrial
Disputes Act, 1947 as an entire and examined and interpreted the scope, ambit and applicability
of its salient provisions and their phrases.

RULES APPLIED

· Article 136 of the Constitution of India.

· Section 2 of Industrial Disputes Act, 1947.

Chief Justice S.R. Das and Justice S.K. Das gave the majority selection saying that the
enchantment of the appellants have failed and is subsequently dismissed but there will be no
order for charges.

On the opposite hand Justice A.K. Sarkar gave a minority dissenting judgment pronouncing
that the appeal could be allowed and sent again to the Industrial Tribunal for adjudication
according with regulation.
As in line with the rule of regulation, the majority judgment prevails and consequently the
attraction is disregarded. However whilst handling this trouble the court has additionally
thoroughly tested and scrutinized the Act to determine its scope and has laid down the
subsequent to be the most important objects of the Industrial Disputes Act, 1947:

The promotion of measures for securing and retaining amity and suitable relations among the
organisation and workmen.

Investigation and settlement of industrial disputes, between employers and employers,

employers and workmen, or workmen and workmen, with a proper of illustration through a
registered exchange union or federation of change unions or affiliation of employers or a
federation of institutions of employers.

· Prevention of unlawful strikes and lock-outs.

· Relief to workmen within the count number of lay-off and retrenchment.

· Promotion of collective bargaining.

· Provide machinery or authority for settlement of commercial disputes.

· Relief to workmen in case of switch and closure of challenge.

· Improving service situations of exertions.

Hence after a detailed and cautious perusal of the case, we can say that this situation highlights
and deals with the one of the most crucial and important exertions law of the day- Industrial
Disputes Act, 1947- its scope, ambit, framework, interpretation and application. The Supreme
Court has considerably dealt with the difficulty raised in this case. Since the idea of labor is
one of the maximum vital in any society, consequently after exhaustive discussions,
deliberations, arguments and consensus, the Honorable Court has delivered its judgment which
is not handiest affordable and truthful, however maintains up with the prevailing exertions
necessities and additionally upholds the concepts of justice, equity and proper moral sense.
 5. J.H. Jadhav v. Forbes Gokak Ltd. (2005) 3 SCC 202

Facts- dispute arises out of claim made with the aid of appellant regarding promoting as a clerk
to responded which become rejected.

Respondent contented that the dispute arises by the appellant was now not an business dispute
in the meaning of segment 2K of the commercial dispute act 1947 because the Workman turned
into neither supported by using howdy extensive variety of workmen nor through a majority
union and declare become rejected on the premise of deserves.

Jadav claimed the contrary and stated that was supported by the gokak mills workforce union
which became supported by means of trendy secretary of the union before the tribunals as a
witness.

Tribunal decision: tribunal regularly occurring the critiques rivalry that his dispute has been
uncovered with the aid of the union cease is juniors were promoted as clerk moreover new
record was produced to deduct that control had taken into consideration the appellant
manufacturing file performance attendance or behaviour while denying his merchandising
these amounted to unfair labour practice an award become exceeded in favour of the appellant.

High Court decision ---court docket assist that during gift kid dispute does no longer affect the
Internet of others Workman dispute turned into additionally now not taken via union
represented buy a full-size wide variety of personnel in addition no document changed into
shown that appellant changed into a member of union and dispute become no longer uncovered
through the union by using passing any resolution.

Reasoning--- weather any dispute by using the workmen is to be supported by way of majority
union to come beneath the definition of industrial dispute act in phase 2k of the act.

Judgement ----court docket allowed the attraction and set aside the selection of the High Court
the award of the economic tribunal was confirmed situation to the change that the
merchandising granted by using the award could be given impact to notionally for the duration
as indicated by the award as much as the date of the appellant dismissal from provider comfort
in recognize of the period next to the order of dismissal will be challenge to the final results of
the pending commercial dispute referring to the termination of the appellant service.
 6. H.R. Adyanthaya v. Sandoz (India) Ltd. (1994) 5 SCC 737

The problem of who is a "workman", and succinctly re-said the ratio that "someone to be
workman beneath ID Act must be hired to do the paintings of any of the kinds, viz., manual,
unskilled, skilled, technical, operational, clerical or supervisory. It is not sufficient that he isn't
protected via any of the 4 exceptions to the definition. We reiterate the said interpretation."

In view of the war between three 3-judge Bench choices of this Court in May & Baker (India)
Ltd. V. Their Workmen (1961)IILLJ94SC , Western India Match Co. Ltd. V. Their Workmen
(1963)IILLJ459SC and Burmah Shell Oil Storage & Distribution Co. Of India v. Burmah Shell
Management Staff Association and Ors. (1970)IILLJ590SC ) on the only hand and later three
judge Bench choices in S.K. Verma v. Mahesh Chandra and Anr. (1983)IILLJ429SC , Ved
Prakash Gupta v. Delton Cable India Ltd. (1984)ILLJ546SC and Arkal Govind Raj Rao v. Ciba
Geigy of India Ltd., Bombay (1985) Supp. 1 SCR 282 on the other, on the interpretation of
Section 2(s) of the Industrial Disputes Act, 1947 and therefore the repute of the medical/income
representatives prior to 6th March, 1976 when the Sales Promotion Employees (Conditions of
Service) Act, 1976 turned into introduced into force and additionally previous to twenty first
August, 1984 while the definition of "workman" underneath the Section 2(s) of the Industrial
Disputes Act was amended, we are of the view that propriety needs that the problem be heard
with the aid of a bigger Bench. We, consequently, refer the problem to a five-decide Bench to
be constituted via the found out Chief Justice of India for the cause. These papers be placed
before the found out Chief Justice for constituting the Bench.

On these records, the Court held that the work that they had been doing turned into neither
manual nor clerical nor technical nor supervisory, and in addition delivered that the work of
canvassing and selling sales could not be blanketed in any of the said four classifications and
the choice given through the Tribunal that they had been not workmen was legitimate.
 7. Management of Chandramalai Estate v. Its Workmen, AIR 1960 SC 902

Facts: On ninth August, 1955 union of the Workmen of the Chandramalai property submitted
needs to the control, out of which simplest few had been agreed to while important demands
remained unhappy. Matter became forwarded to the conciliation officer, Trichur by way of the
labour officer. On thirtieth November, 1955 day of ultimate assembly for conciliation, union
gave a strike word and workmen went on a strike from ninth Dec. 1955 which ended on fifth
Jan, 1956. On seventeenth Oct, 1957, Industrial Tribunal, Ernakulam granted workmen's
demands on all troubles. So, attraction changed into made by using the management of
Chandramalai Estate in opposition to Tribunal's award.

Issues:

Was the charge realised through the management for the rice bought to the people after
decentral immoderate; and if so, are the people entitled to get refund of the immoderate fee so
accrued?

Are the workers entitled to get cumbly allowance with retrospective effect from the
date it became stopped and what need to be the price of such allowance?

Are the workers entitled to get wages for the period of the strike?

Tribunal's Decision: Tribunal held that the management had charged extra than the price fee
an it needed to be refunded. Regarding the cumbly allowance, tribunal awarded Rs 39 in
keeping with workman. They held that strike came about because of each events, so
management has to pay workmen 50% of their general emoluments for the strike duration.

Key Legal Points Established by way of the Court: Are the employee's entitled for the wages
for the duration of the Strike?

No. Court observed workmen knew on 30th Nov, 1955 that conciliation tries had failed. In a
hurry, they gave notice of strike on 1st Dec, 1955 and went on strike from 9th Dec, 1955.
Conciliation officer could have submitted his record after which reference will be made to
Industrial gispute. There changed into no want of such hasty action.

Court held that strike is a legitimate and occasionally unavoidable weapon in the fingers of
labour it's miles equally critical to recall that indiscriminate and hasty use of this weapon should
not be encouraged. It will now not be right for labour to think that for any type of demand a
strike can be started out with impunity without onerous affordable avenues for non violent
fulfillment in their gadgets. There can be cases where the demand is of such an pressing and
extreme nature that it'd not be affordable to anticipate labour to attend till after asking the
Government to make a reference. In such instances, strike even earlier than any such request
has been made may well be justified. The present is not but one in all such cases.

Judgement: Court discarded the half justification system of tribunal and held the strike as
unjustified.
 8. T. K. Rangarajan v. Government of Tamil Nadu and others, (2003) 6 SCC 581

Facts: The tamil nadu government terminated the services of all the personnel 1, 70,241 who
have resorted to strike for his or her needs. Out of one, 70,241 employees and teachers 1, 56,106
were reinstated earlier than this judgement.

Issue: Whether the authorities employee has fundamental, statutory or equitable/ moral proper
to strike?

Decision the ultimate courtroom : The perfect courtroom held that authorities employees don't
have fundamental, statutory or equitable/ethical right to strike.

The court said: "regulation on this challenge is nicely settled and it has been repeatedly held
by means of this court that the personnel haven't any fundamental right to strike. In kameshwar
prasad verses kingdom of bihar this courtroom Held that the rule is so far because it prohibited
strikes changed into legitimate due to the fact there may be no essential right to hotel to strike

" In all india financial institution employees, affiliation verses countrywide industrial tribunal,
in which the charter bench of the excellent court held that even very liberal interpretation of
sub-clause (c) of clause (1) of article 19 "can't result in the conclusion that exchange unions
have a guaranteed right to an effective collective bargaining or to strike both as a part of the
collective bargaining or otherwise.

" Law at the subject is nicely settled and it's been repeatedly held by the supreme courtroom
that the employees have no fundamental proper to inn to strike. "take strike in any subject, it
may be effortlessly realized that the weapon does greater harm than any justice. Sufferer is the
society-—the general public at huge."

The court docket similarly stated that there may be prohibition to go on strike below the tamil
nadu government servants behavior guidelines, 1973. Rule 22 presents that "no government
servant shall interact himself in strike or in incitements thereto in comparable sports." as a
result it was held that there may be no statutory provision empowering the employees to head
on strike.
 9. Syndicate Bank v. K. Umesh Nayak (1994) 5 SCC 572

FACTS: There have been a strike on the bank which the personnel’ Federation said became
because of a put off inside the implementation of the agreement reached between the
management and the employees. The Federation said that they were willing to desist from any
direct motion if the management undertakes to enforce the agreement within a fixed time. The
representatives of the bank said that they needed to obtain previous permission of the
authorities for the identical. During this time, a strike changed into notified by means of the
Federation and subsequently passed off on a special day.

ISSUE: The issue in this example changed into whether an agency should deduct wages from
personnel who're on strike all through the strike and whether or not the legality of the strike
could be a relevant aspect.

JUDGMENT: This case re-examined and settled conflicting reviews which had been given by
means of the Supreme Court in selections of a smaller bench. The Court said that a strike might
be illegal if it is in contravention of the provisions of the commercial disputes act. The act states
that no workman who is hired in any industrial establishment shall go on strike in breach of
contract and no company of this kind of workman shall claim a lockout in the course of the
pendency of conciliation lawsuits before a Board and 7 days after the realization of such court
cases. The Court mounted that there has been neither a contravention of a provision of any
statute to render the strike unlawful nor inside the instances it can be held that the strike became
unjustified. It directed the Central Government to refer the dispute in regards to the deduction
of wages for adjudication to the best authority under the Act within eight weeks.
10. The Workmen of Fire Stone Tyre & Rubber Co. Pvt. Ltd. v. Fire Stone Tyre & Rubber
Co. Pvt. Ltd. (1976) 3 SCC 819:AIR 1976 SC 1775 184

Facts: The Workmen of Firestone Tyre and Rubber Co. Of India had a Dispute with its
enterprise concerning the termination of its workmen on a Domestic Enquiry locating. During
the pendency of the Dispute, the Industrial Tribunal Act were Amended in 1971, and Section
11A conferring the powers of Appellate Authority to the Industrial Tribunal over the Domestic
Enquiry decision have been inserted.

The Tribunal decided the case in desire of the Employer, refusing to have a Retrospective
impact of Section 11A.

Issues --What is the proper interpretation of phase 11A of the Industrial Disputes Act and
whether or not it has a retrospective utility (whether it applies to industrial disputes pending as
on 15-12-1971)

Judgment: Ratio Decidendi:

The Court determined that the proper to take disciplinary movement and to decide upon the
diploma of punishment is handiest part of the managerial features. However, if a dispute is
cited the Tribunal, the tribunal is prepared with the electricity to peer if the company’s
movement is justified. According to Indian iron and metallic Co. Ltd. Case, [2] the courtroom
can intrude in the dispute (i) whilst there is want of top faith; (ii) whilst there is victimization
or unfair Labour practice, (iii) while the management has been responsible of an mistakes or a
violation of the ideas of natural justice or (iv) when findings are completely baseless and
perverse as in step with the materials

When a right inquiry has been held by using an agency, and the finding of misconduct is
deemed to be a possibility the Tribunal, as an appellate body has no jurisdiction to oversee a
judgment and cross past the selection of the business enterprise. The interference with the
selection of the organisation will be justified and imposed most effective while the findings
arrived on the inquiry shows that control is responsible of exploitation, unfair exertions
practice, or malicious intentions. In the case of Madras v. Employees of Buckingham and
Carnatic agency Ltd.,[3] it turned into held that decision of the Management on the subject of
the fees towards the employee will now not be successful-if (a) there is want of bona fide, or
(b) it's far a case of victimization or unfair labor practice or violation of the concepts of herbal
justice, or (c) there's a basic mistakes of statistics or, (d) there has been a perverse finding at
the materials.

In instances whilst no inquiry has been held with the aid of an employer/if the inquiry held is
defective, the Tribunal can fulfill itself about the legality of the order best whilst it offers an
possibility to the company and worker to offer evidence before it. It is as much as the company
to adduce/present proof for the primary time justifying his movement and to the worker to
adduce evidence contra.

The Court additionally opined that the effect of an company not maintaining in inquiry is that
the Tribunal could now not must bear in mind only whether or not there has been a prima facie
case. The Court will the opine on the problem approximately the deserves of the impugned
order of dismissal and at the evidence adduced earlier than it a good way to determine for itself
whether the misconduct alleged is proved or not.

Obiter Dicta:

The Court emphasized that before implementing the punishment, an corporation is expected to
behavior a proper inquiry as regulated via the Standing Orders, and by using the concepts of
herbal justice. The inquiry cannot be an empty formality.

The mere truth that no inquiry has been held or that the inquiry has no longer been properly
performed can not absolve the Tribunal of its obligation to determine whether the case that the
workman has been responsible of the alleged misconduct has been made out. The proper way
of acting this duty is for the Tribunal to take proof of each sides in admire of the alleged
misconduct

A case of faulty inquiry stands on the same footing as no inquiry.

It cannot be identified that the Tribunal ought to straightaway reinstate an worker if itis
determined that no home inquiry or if it's far defective.

It is open to the Tribunal to cope with the validity of the home inquiry if one has been held as
a preliminary issue. If it’s locating on the concern is in choose of the management, then there
will be no event for added evidence being cited by means of the control. However if the locating
on this difficulty is in opposition to the industry’s management, the Tribunal allows the
organisation to provide more evidence which can justify his actions[8]
Even after Section 11A, the organization and worker can adduce proof concerning the legality
or validity of the domestic inquiry, if one were held by an enterprise.

There isn't any provision either on this statute or within the Act which states that an order of
dismissal or discharge is unlawful if it isn't always preceded by way of a proper and valid home
inquiry.

It changed into held that if the inquiry changed into defective or no inquiry were held, as
required with the aid of the Standing Orders, the whole case would be open before the Tribunal
and the employer would should justify, on evidence as well that its order of dismissal or
discharge turned into proper. (The industrial Employment (Standing Orders) Act 1946 applies
best to those industrial institutions that are included with the aid of Section 1(three). But the
sector of operation of the Act is a great deal wider and it applies to employers who may
additionally have no standing orders in any respect.)

The Tribunal, can't name for similarly or fresh proof, as an appellate authority might also
generally do under a selected statute when considering the correctness or in any other case of
an order exceeded by using a subordinate body.

Section 11A applies best to disputes which are referred for adjudication after the section has
come into pressure because the proviso in it refers to “in any proceeding beneath this phase”.
 11. Rangaswami v. Registrar of Trade Unions

FACTS: The Raj Bhavan of Ootacamund (also referred to as ooty) and Guindy who have been
the ‘Domestic Workers’ and they taken care of the governor and diverse visitors. They even
helped their families with bizarre sports. There have been basically, 2 corporations of workers.
One who had been presenting the home assist and their offerings were domestic in nature. The
other employee's duty turned into to preserve gardens and to sell the excess produce of the lawn
in the market in conjunction with the household assist and attending to the desires of governor,
his circle of relatives contributors and guests.

The 102 employees operating as the home helpers had been underneath the pensionable jobs
(like peon, carpenters, sweepers and so on.), whereas the 33 personnel working gardeners and
maistries of the Raj Bhavan had been no longer granted pension. There are separate policies
laid down for their offerings underneath article 309 of the Constitution. So, with a view to are
looking for better provider situation and to felicitate collective bargain, they thought to form
exchange union usa8 of the Trade Union Act. They carried out with the name of Madras Raj
Bhavan Workers’ Union, however the registrar cancelled their utility as consistent with the
electricity furnished united states of america10 of the act.

Because of which they filed a case in the courtroom u.S.A.11 of the act.

CONTENTIONS: The respondents argued that because the activity was no longer a alternate
in nature therefore they can not be allowed to shape Trade Union under the Trade Union Act
1926 by the registrar. Before the union is registered the contributors must be related to any
alternate or commercial enterprise of the organization. Whereas the pastime of presenting
domestic help does not match nicely inside the definition and as a consequence they were not
granted to shape union underneath the act although they could actually form an association if
wanted.

The applicant argued that there's no definition of the term ‘industry’ in the Trade Union act and
consequently they need to refer to the that means of Industrial Dispute Act 1947, which outline
to encompass an venture would be complete sufficient to cowl the case of personnel like those
engaged in offerings at Raj Bhavan who systematically do cloth services. For the gain of not
merely the members of Governor’s household however the site visitors and guest as properly.

JUDGEMENT: Industrial Dispute Act has the objective of securing business peace and rapid
treatment for labour unrest. This goal isn't relevant within the case. ‘Trade Dispute’ below the
Industrial Dispute Act way the man or woman hired in change or enterprise, whether or not or
not in the employment of the enterprise with whom the exchange dispute arises. It is plain that
the enterprise must be one as could quantity to a alternate or commercial enterprise, i.E. A
business undertaking.

The court referred to the case of Employees of Osmania University, Hyderabad v. Industrial
Tribunal, Hyderabad, which stated that if there is no relation among the labour and the capital.
Then the dispute cannot be termed as an commercial dispute.

The Madras High Court held that the employees aren't allowed to shape union beneath the act
as they do no longer have interaction in any trade or commercial enterprise. The services
rendered to the traffic and the guests had been ancillary and private services and are oblique to
their organisation. They are finished with positive regulations framed by means of the
authorities. The services rendered by means of them were in basic terms of personal nature.
They would no longer quantity to alternate and enterprise.
12. The Tamil Nad Non-Gazetted Government Officers' Union, Madras v. The Registrar of
Trade Unions

FACTS- The Non-Gazette Government Officers such as Sub-Magistrates, Tehsildars, Sub-

Treasuries and the people working under the Home Department and such of their ten members
went to register their Trade Union with the Registrar of Trade Union in Tamil Nadu. However,
the Registrar of Trade Union denies and rejects their application on the ground that the
Ministerial Employees and Government Officers cannot form a Trade Union and therefore a
registration cannot be done.

The case then goes to the Court which was adjudged by Ramachandra Iyer J., wherein the court
agrees with the Registrar of Trade Union and declares that the Associations of Government
Officers do not come under the ambit of section 2(g) and 2(h) of the Act.

This was then Appealed in the Madras High Court and was adjudged by the Bench of Justice
Anantanarayan and Justice Venkatadri.

ISSUE- Can Government Servants and other Non- Gazetted Officers form a Trade Union?

SECTIONS- Section 2(g) of the Trade Union Act-

"Trade dispute means any dispute between employers and workmen or between workmen and
workmen, or between employers and employers which is connected with the employment or
non-employment or the terms of employment or the conditions of labour, of any person, and
"workmen" means all persons employed in trade or industry whether or not in the employment
of the employer with whom the trade dispute arises."

Section 2(h) of the Trade Union Act-

"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."

CONTENTION OF COUNSEL FOR NON- GAZETTED OFFICERS-

The learned counsel for the Non-Gazetted Officers argued that as per section 7 of the Act, the
Registrar of Trade Union may call for further information for the purpose of satisfying himself
that an application has been made and complied with sections 5 and 6 of the Act, in order to
make it entitled to registration. However, in the instant case the Registrar did not call for any
further information under Section 7 and therefore he has no jurisdiction to decline the
registration of the Non Gazetted Officers.

It was further argued that the United Kingdom recognises Unions of Civil Servants of the State
as Trade Unions and the same principle should be followed here.

CONTENTION OF LEARNED JUDGE- The Hon’ble Judge considered section 2(h) of the
Trade Union Act and concluded that ‘Workmen’ under this section would only mean manual
labourers or workers of that particular class.

Another reason that is stated by the learned Judge was that the concept of ‘Collective
Bargaining’ is important in Trade Union Movement. However, this cannot be applied to
Government Servants. The Government Servants are employed as per the statute and
legislations enacted, wherein their salaries, incentives, and other formalities such as
termination and tenure is also mentioned. While the whole purpose of ‘Collective Bargaining’
is also to bargain upon and negotiate upon the salaries, incentives, tenure and termination of
the workers. Therefore it was concluded that the concept of ‘Collective Bargaining’ which is
important in Trade Union Movement cannot lie parallelly when applied to the Government
Servants.

JUDGEMENT BY MADRAS HIGH COURT-

The Court held that-

1. The civil servants are integrated with inalienable and regal functions of the Government
which are sovereign in nature. The functions that are performed by them cannot be concluded
as an ‘Industry’ as per the Industrial Dispute Act, 1947. Therefore, these civil servants cannot
be concluded as ‘Workmen’.

2. Further, sections 2(h) and 2(g) does not apply to these civil servants, therefore they cannot
form a ‘Trade Union’ or claim any dispute as ‘Trade Dispute’
3. Under Article 310 and Article 311 of the Indian Constitution, statutory safeguards are
provided against certain penalties such as removal or reduction in rank of a servant. To this,
the concept of ‘Collective Bargaining’ cannot be applied. In United Kingdom such concept
does not parallely run with Trade Unions, however it does in India while raising disputes.

4. The court further held that as per Section 16 and Section 22 of the Trade Union Act allows
permits to form a separate fund for political purposes and office bearers to be connected with
the Industry. However, both of these things cannot be done by Government Officers. This
concludes that Government Servants do not come under this Act.

The Court agreed with the view of Learned Judge Ramchandra and dismissed the appeal made
by the Non-Gazetted Officers.
 13. Re Inland Steam Navigation Worker's Union, AIR 1936

The feature of registrar to sign up the change union become absolutely mentioned in Re. Indian
steam navigation workers union, AIR 1936 Cal. 57.

In this situation employees of all of the inland steamer services in the province of W. Bengal
decided at a meeting to shape a union inside the name of "inland steam navigation people
union" An utility become filed earlier than the registrar of exchange unions for its registration.

An software was filed before the registrar of trade unions for its registration. But the registrar
refused the union on The floor that:

(i) the policies and the charter of the proposed union for all practical functions are equal, with
an current union, the predominant officials are not unusual to both and therefore the present
utility is an try to have the union which was already registered,

(ii) few days earlier than the application turned into filed, the overall secretary of the union
addressed te government of Bengal in a letter stated that he have been directed however the
general frame of IIndian steam navigation employees union formerly called RSN & IGN. Rly.
Workers union, toapproach the authorities and request that the notification affirming the RSN
& Rly. Worker

union as unlawful association, is probably withdrawn,

(iii) since the vintage union was declared unlawful by using a notification beneath phase
sixteen of criminallaw modification act, 1908, the proposed union that is not anything however
old union with a new name, and as a result it additionally an unlawful affiliation.

In an attraction to Calcutta High court, it was held as follows:

1. The registrar appears to have acted on a letter written by way of the secretary to the
authorities, without giving the appellant any word of it or with out giving them any possibility
of coping with the declaration therein set out. Such an Opportunity need to were given before
the registrar considered that letter if certainly he ought to have considered that letter at all.
 14. R S. Ruikar v. Emperor, AIR 1935

Facts:

• The applicant, who was convicted of abetment of the offence of molestation as defined
in Section 7 of the Criminal Law Amendment Act, has filed a petition for revision (23
of 1932).
• In order to strengthen a strike in 1934, the Nagpur Textile Union, whose President was
the petitioner, used a picketing method. In favour of the strike, the applicant delivered
speeches on the 3rd, 4th, and 6th of May 1934, during which he supported mill
picketing and sought for volunteers.
• Following police harassment of two female picketers on May 5th, the applicant put his
wife on one of the mill gates, telling her to picket and use violence if anybody interfered.
• Charges were filed under four headings, three of which were to remarks given on the
3rd, 4th, and 6th of May 1934, and the fourth to his wife's abetment of picketing on the
5th of May.

Decision of the trial court:

Accused was found guilty of aiding and abetting the crime of molestation as defined in Section
7 of the Criminal Law Amendment Act (23 of 1932), and was sentenced to six months in prison.

Decision of the appellate court:

On appeal, the sentence was affirmed by the appellate court.

Issues:

• Is there a contradiction between Section 7 of the Criminal Law Amendment Act and
the 1926 Trade Unions Act?
• Is Section 7 of the Criminal Law Amendment Act applicable to everyone?
• Is it possible to consider the offences stated in the charge to be part of the "same
transaction" as defined in Sec 235(1)?

Judgement:
The court found that the petitioner had completed all but six weeks of the sentence imposed
and had additionally served time in jail as an undertrial prisoner during his case's trial. His bail
is likewise denied due to a lack of evidence. As a result, the court determined that the sentence
was reasonable, but that due to the circumstances, the sentence should be reduced to the amount
already served.

Key legal points discussed in the case:

Is there a contradiction between Section 7 of the Criminal Law Amendment Act and the
1926 Trade Unions Act?

No court has ruled that trade unions have the authority to call strikes and take specific actions
in the course of resolving trade disputes. They are neither civilly responsible for such conduct
or criminally liable for conspiracy in furtherance of such acts as the Trade Unions Act provides,
but there is nothing in that Act that allows immunity from any criminal offences other than
criminal conspiracy. Indeed, any agreement to commit a crime would render them responsible
for criminal conspiracy under S. 17, Trade Unions Act. The Criminal Legislation Amendment
Act, S. 7, is part of the criminal law of the nation and constitutes a crime.

Whether Sec 7, Criminal Law Amendment Act has universal application?

In the course of settling trade disputes, no court has declared that trade unions had the ability
to initiate strikes or conduct particular actions. They are not civilly liable for such action nor
criminally liable for conspiracy in furtherance of such activities, as provided by the Trade
Unions Act, but nothing in that Act grants immunity from any criminal offence other than
criminal conspiracy. Indeed, under Section 17 of the Trade Unions Act, any agreement to
commit a crime makes them liable for criminal conspiracy. The Criminal Legislation
Amendment Act, S. 7, is a national offence.

The majority of the provisions of the act pertaining to subversive government operations do
not specify that, without reference to a declaration of aims and reasons, Sec 7 would be utilised
solely when opposing subversive government enterprises.

Whether the offences detailed in the charge can be taken as forming part of the “same
transaction” as defined in Sec 235(1)?
Yes , Drake- Brockman, J.C. established the criteria in Emperor v. Hari Raot, stating that the
actions performed must be sufficiently connected to one another in terms of intent, cause and
effect, or major and subsidiary acts to create one continuous person. It is not required for crimes
committed in the course of the same transaction to be in chronological order.

The crimes in question occurred over the course of four days, according to the court. Each day,
an appeal was made for the continuation of picketing as workers entered and exited the mills,
as well as for volunteers, and during his supervision of the operations, the applicant replaced
picketers who had been chased away by others, as well as a person of special significance, his
own wife, whom he believed the police would not dare to touch.

The transaction in which the offences accused were committed was brief, complete, and
definite, and its purpose was accomplished, and there is no dispute that picketing played a
significant role in achieving that goal.

Trade Unions have the rights to claim strikes and to do certain acts in furtherance of trade
disputes. They are not in charge with courtesy for such acts or criminally for conspiracy within
the

furtherance of such acts as alternate unions act permits, but there may be nothing inside the Act
which other than immunity from criminal conspiracy lets in immunity from any crook offences.

Indeed any agreement to commit an offence might below phase 17, Trade unions act, cause
them to responsible for crook conspiracy.

Immunity from civil suit in positive cases Section 18

(1) No match or different legal proceeding shall be maintainable in any Civil Court against any
registered Trade Union or any workplace-bearer or member thereof in respect of any act
performed in contemplation or furtherance of a exchange dispute to which a member of the
Trade Union is a party on the ground best that such act induces some other character to break
a contract of employment, or that it's miles in interference with the alternate, commercial
enterprise or employment of a few other individual or with the right of a few different person
to put off his capital or of his labour as he wills.

(2) A registered Trade Union shall no longer be dependable in any healthy or other criminal
intending in any civil court docket in admire of any tortious act executed in contemplation or
furtherance of a exchange dispute by using an agent of the Trade Union if it's miles proved that
such character acted without the information of, or contrary to specific instructions given by
means of, the government of the Trade Unions.

15. Rohtas Industries Staff Union v. State of Bihar

During the year 1948, workmen went on unlawful strike due to Trade Union contention.
The workmen were no longer paid wages for the strike length and the appellants lost their
earnings at some point of the duration. The employers and the workmen entered into an
agreement during the pendency of the conciliation proceedings and referred the claims of
workmen for salaries at some point of the strike duration and the claims of the employers for
repayment for loss due to the strike to the arbitration.

The arbitrators introduced their award and held that the workmen participating within
the strike have been no longer entitled towages for the strike period, the strike being unlawful.
The arbitrators however, awarded large repayment to the employers against the workmen for
the losses incurred through the employers during the strike period.
 The workmen challenged the award as illegal and void. The High Court upheld that part
of the award which directed that the workmen participating in the strike have been no longer
entitled to wages. The High Court but, quashed the part of the award which directed price of
compensation by the workers to the management.

According to the arbitrators, the strike was illegal being in violation of the Act. The
illegal strike became lively through inter-union power conflict and that it inflicted loss on the
control by using pressured closure and that the loss flowing from the strike become at risk of
be recompensed by using award of damages.

Here the question of regulation whether an illegal strike inflicting loss of profit justifies
award of damages is concerned. The SC held that arbitrator held within the affirmative and in
keeping with us it is an mistakes of regulation. After coming to the conclusion that the strike
turned into unlawful they held that reimbursement follows based on the guideline of English
not unusual regulation on the idea of tort of conspiracy and lack of commercial enterprise.

The workmen challenged the award as unlawful and void. The High Court upheld that
part of the award which directed that the workmen collaborating within the strike have been no
longer entitled to wages. The High Court but, quashed the a part of the award which directed
payment of repayment with the aid of the employees to the control.

According to the arbitrators, the strike was unlawful being in violation of the Act. The
illegal strike turned into animated with the aid of inter-union power warfare and that it inflicted
loss at the control via compelled closure and that the loss flowing from the strike was liable to
be recompensed by using award of damages. Here the query of regulation whether an
unlawful strike inflicting lack of earnings justifies award of damages is involved. The SC held
that arbitrator held within the affirmative and consistent with us it's far an blunders of law.
After coming to the realization that the strike became illegal they held that compensation
follows primarily based on the guideline of English commonplace regulation on the idea of tort
of conspiracy and lack of commercial enterprise.

16. Deepali Gundu Surwase v. Kranti Junior Adhyapak & Ors (2013) 10 SCC 324 199
In Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Ors.,[6]
(Surwase) the SC held that in the case of wrongful termination of a worker, reinstatement with
continuity of service and back-wages was a normal rule. However, the payment of back-wages
has to be determined as per the facts and circumstances of each case and cannot be
automatically granted on an order of reinstatement of the worker. The worker has to specifically
raise the claim for back-wages, as well as present supporting evidence demonstrating his
unemployment. The court also set out various factors for calculating the back-wages, which
include, among others: (a) the length of service of a worker; (b) the nature of misconduct, if
any, proved against a worker; and (c) the financial condition of an employer.

Therefore, the current judgment of the SC in Phool Chand reiterates the existing legal position
in relation to circumstances in which back-wages can be awarded.

Since the reasons cited by the SC in the Phool Chand case with regard to awarding back-wages
were in view of Article 142 (considering the period and money spent in litigation by the worker
and his representatives), the same is not in line with the criteria laid down by Surwase and
various other cases of the SC for determining back wages.

The position with regard to awarding 50% back-wages cannot be considered as binding on the
lower courts, since in the Phool Chand case, the SC exercised its special power under Article
142 of the Constitution.

17. Management of the Barara Cooperative Marketing cum Processing Society Ltd. v.
Workman Pratap Singh AIR 2019SC 228

Present appeal is directed against the final judgment passed by the High Court whereby the
Division Bench of the High Court dismissed the appeal filed by the Appellant herein and
affirmed the judgment passed by the Single Judge of the High Court by which the Respondent
herein was ordered to be reinstated into service with back wages.

There was no case made out by the Respondent (workman) seeking re-employment in the
Appellant’s services on the basis of Section 25(H) of the Industrial Disputes Act, 1947 (ID
Act). In the first place, the Respondent having accepted the compensation awarded to him in
lieu of his right of reinstatement in service, the said issue had finally come to an end; and
Second, Section 25(H) of the ID Act had no application to the case at hand.
In order to attract the provisions of Section 25(H) of the ID Act, it must be proved by the
workman that firstly, he was the “retrenched employee” and secondly, his ex-employer has
decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference
over those persons, who have applied against such vacancies for a job while seeking re-
employment in the services.

The case at hand is a case where the Respondent’s termination was held illegal and, i
consequence thereof, he was awarded lump sum compensation of Rs. 12,500 in full and final
satisfaction. The Respondent also accepted the compensation. This was, therefore, not a case
of a retrenchment of the Respondent from service as contemplated under Section 25(H) of the
ID Act. The Respondent was not entitled to invoke the provisions of Section 25(H) of the ID
Act and seek re-employment by citing the case of another employee (Peon) who was already
in employment and whose services were only regularized by the Appellant on the basis of his
service record in terms of the Rules.

The regularization of an employee already in service does not give any right to retrenched
employee so as to enable him to invoke Section 25(H) of the ID Act for claiming re-
employment in the services. The reason is that, by such act the employer does not offer any
fresh employment to any person to fill any vacancy in their set up but they simply regularize
the services of an employee already in service. Such act does not amount to filling any
vacancy.

There lies a distinction between the expression ’employment’ and ‘regularization of the
service”. The expression ’employment’ signifies a fresh employment to fill the vacancies
whereas the expression ‘regularization of the service’ signifies that the employee, who is
already in service, his services are regularized as per service Regulations. The Labour Court
was, therefore, justified in answering the reference in Appellant’s favour and against the
Respondent. The appeal is accordingly allowed. Impugned order is set aside and the award of
the Labour Court is restored.
 18. Essorpe Mills Ltd. v. P.O.; Labour Court (2008) 7 SCC 594

In this instance, the respondent went on strike, and one of them died in the blow room while
striking. The textile mills were shut down, and only a few of them remained on the premises
after the suspension. The Tamilnadu Workers' Union went on strike. During this, some
respondents were fired following a disciplinary hearing, and the labour court declared the strike
unconstitutional in 1994, awarding each worker $50,000. Since it is pending before the
conciliation officer for conciliation, both of them have filed a High Court appeal to the award
for non-compliance with section 33 (2) (b). He used the SLP to go to the Supreme Court.

The appellant argued that the high court erred in determining that a strike notice was
unconstitutional under section 22. Another High Court decision failed to recognise the meaning
of section 33 A, and there was no complaint filed with the conciliation officer in this case. The
goal of considered conciliation is to keep public utility services from being disrupted. The goal
of enacting sub-sections (a) and (b) of Section 22(1) is to ensure that employees do not rush to
strike and that the Conciliation Officer is given an opportunity to resolve the disagreement.

In this example, there was a strike in 1990, and they gave notice in 1991, so there are a few
factors to keep in mind.

Six weeks' notice is required.

The workers provide notice and are unable to strike before the deadline.

Any conciliation process is currently in progress.

Because the notice was not issued before the six-week period, it was determined that it could
not be considered a Section 22 notice. The result of not giving the employer notice is that he is
unaware of the proceedings. The conciliation process must adhere to all legal criteria. As a
result, the workers cannot go on strike without giving six weeks' notice under Section 22(1)(a)
and fourteen days' notice under Section 22(1)(b) (b).

19. Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer,
Labour Court (1990) 3 SCC 682 168
The extent and ambit of the word'retrenchment,' as defined in Section 2(oo) of the Industrial
Dispute Act, 1947, is the subject of this batch of eighteen special leave appeals. 112 One
of the appeals is by workers against a High Court order affirming the award of the Labour
Court refusing to interfere with the employer's order terminating their services for their
trade union activities, while the rest are by employers/managements against orders of High
Courts/Industrial Tribunals/Labour Courts setting aside orders terminating the services of
the illegal for non-compliance with the provisions of Section 25F of the Employment Act.

While the employers argue that "retrenchment" as defined in Section 2(oo) of the Act means
termination of a workman's service for any reason other than those expressly excluded by
the definition in Section 2(oo), the workers argue that "retrenchment" means termination
of a workman's service for any reason other than those expressly excluded by the definition
in Section 2(oo) of the Act.

In ruling on the appeals, the Court determined that the concept of "retrenchment" in Section
2(oo) encompasses the termination of a worker's employment by his or her employer for
any reason other than disciplinary action or those explicitly barred by the definition.

This Court's disposition of the appeals is as follows: "Definition of'retrenchment' in Section

2(oo) includes termination of a workman's employment by the employer for any cause,
other than as a penalty administered by way of disciplinary action and those specifically
prohibited by the definition." This is the broad literal understanding of the word, as opposed
to the limited, natural, and contextual sense, which means the employer's termination of a
worker's service as surplus labour for any cause.

Difficulty was made by expanding the definition of'retrenchment' beyond what it naturally
and customarily meant. Such a definition added complication since the draughtsman may
use the ordinary meaning instead of the specified meaning when designing the other
sections that use the definition. However, a judge who is faced with an interpretation
dilemma cannot just throw his hands up and blame the draughtsman.

The word'means' was used in the definition. "The definition is a hard-and-fast definition,
and no other meaning may be attributed to the expression than is stated forth in definition,"
states a legislation when it stipulates a word or phrase must'mean'-not only 'include'
particular items or activities.
 When the defining Clause Section 2(oo) is reviewed in the context of the major provisions,
Sections 25F, 25G, and 25H, there are apparent inconsistencies, but there is potential for
harmonious interpretation. The definitions in Section 2 are conditional on the subject or
context not being objectionable..

The stated absence of volitional elements in Section 2 (a) and (b), namely voluntary
retirement and retiring at superannuation age, suggests that they would have been included
otherwise. Termination due to abandonment of service, exhaustion of time, and failure to
qualify, albeit solely consequential or subsequent, would be included if such circumstances
were to be included, since they have not been omitted. Between the first section and the
exclusion part, there appears to be a gap. When a gap like this is discovered, the solution is
an amending Act. The Court must interpret and apply a provision to the facts. [150C-E]
[1980] Duport Steels v. Sirs 1 ER 529 has been referred to.

In the broadest meaning of retrenchment, Laws 2(00) and 25F, as well as other relevant
sections, may have impacted the employer's rights under standing orders and employee
contracts. Second, rights are not harmed or taken away as such; rather, a new social duty
has been 114 imposed on the employer to provide retrenchment benefits to those affected.
Perhaps for the sake of tiding over current financial difficulties, labourers. From this
perspective, there is an implied social policy. As the maxim goes, "Stat Pro ratione voluntes
populi" ("Stat Pro ratione voluntes populi"="Stat Pro ratione voluntes populi"="Stat Pro
ratione voluntes populi"="Stat Pro ratione

20. Sundarambal v. Government of Goa, Daman & Diu, AIR 1988 SC 1700

In this case, the petitioner is a schoolteacher, and the respondents are the Lt. Governor of Goa,
the Government of Daman and Diu, and the Union of India School.

The petitioner's service was terminated by the fourth respondent. She filed a labour dispute,
which was accepted by the conciliation officer. Conciliation officer submitted the failure
report. The petitioner wrote to the government, requesting that this disagreement be considered
by the relevant government under section 10 (1) of the Act, but they did not respond, citing the
fact that teachers are not considered workers for the purposes of the Act. With this petition, the
petitioner files a writ of Mandamus at the High Court under Article 227. On behalf of the
petitioner, the learned Advocate made three arguments.

• The ability to refer to Appropriate Government in section 10 does not include the
capacity to determine whether or not a person is a worker. The attorneys believe that
the question of whether or not a person is a worker should be resolved by an appropriate
adjudicatory authority.
• The second point raised by the attorney is that declining to send the teacher issue to the
Supreme Court violates Article 14 of the Constitution.
• Counsel further stated that under section 2(s) of this Act, teachers are considered
workers.
However, the Supreme Court declared in the case of Institution of Delhi v. Ramnath that a
university such as Delhi University is not an enterprise. However, the Supreme Court later
decided that education is an industry in and of itself.

The teacher has previously been excused from those four sorts of assignments.

• Is it feasible to argue that a teacher is supervising students? The answer is no, since a
teacher does not oversee somebody who works in the sector. Another point of view
expressed by Petitioner Counsel is that teachers engage in supervisory work because
they supervise students' work. However, the teacher supervises students, which raises
the question of whether they fall under the category of industry or not, and the point to
consider is that students come to the institution to receive education, not to work.

Furthermore, it is impossible to claim that teachers acted in a technical manner, as defined by

the Oxford English Dictionary as "of or related to the mechanical arts and applied sciences in
general, as in technical education, or technical school." However, the petitioner's lawyer stated
that it is extremely technical since the instructor imparts technical and expertise information
and has a high technical certification.

In one judgement, Justice Khalid stated that technical men do not have to be workers, but in
the case of Venkataraman v. Labour Court, the learned judge stated that a technical person
engaged as a teacher must undertake technical labour. So, based on the facts and circumstances,
the court determined that teachers cannot be classified as workers under the Act.

Test to Determine whether an Employee us a Workmen

• Dominant purpose of employment and not some additional duties.

• The nature of duties were important and not the designation of post.
• Employees decision could bind the company.
• Nature of supervisory duties.
• Does the employee have power to sanction leave.
• Does he have power to take disciplinary action.
• Power to assign duties
• Power to supervise the work and does that employee have any workmen working under
him.

21. U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey (2006) 1 SCC 479 189
This Court cited a slew of previous decisions on the issue of what remedies should be given
to a worker whose termination of employment is judged to be improper. While the Court's
previous position was that if a termination order was proven to be unconstitutional, the
customary remedy should be re-instatement with full back pay, it was recognised that this
was not the case in this case. However, as mentioned in the numerous reports,
With the passage of time, it became clear that a business should not be forced to pay a
worker for a period during which he seemed to have done little or nothing. After reviewing
a number of previous cases, the Court determined that the remedy to be awarded is
discretionary rather than automatic. In the aforementioned decision of this Court in U.P.
Brassware Corporation (above), it was said that a person is not entitled to something just
because it is legal to do so.
The changes brought about by successive rulings of this Court were noticeable, most likely
due to changes in the government's policy decisions in the wake of the dominant market
economy, globalisation, privatisation, and outsourcing. As a result, the customary
procedure for an unlawful termination of service is no longer re-employment with back
wages; instead, the Labour Court might award compensation.
The court has the authority under order 7 rule 7 to require the payment of 25% of the wage
due to the fact that the ID act was created to resolve disputes.