Chapter 12 - she Industrial Disputes Act;'1947 ‘s Industrial Disputes Act, 1947 is an important piece of sae sition. The object of. the Act is to make provision for; investigation and iqement of industrial disputes and for certain other, purposes.;The Act is inarily meant for (a) regulating the relations betwe | employers and ‘iyen, past, present and future; (b) encouraging collective bargaining; and ‘jmaintaining industrial peace by preventing illegal strikes ind léck-outs pato provide for lay-off and retrenchment compensatioi i. ‘The Industrial Disputes Act, 1947 has been dmended several, ti y rogressiv i piece of legislation to suit the modern industrial set up and settle jedisputes by setting up judicial machinery and thereby marching towards tegoal of maintaining cordial and peaceful atmosphere between employees andemployers. : gee © jon ois aidgit b bisi es eaor Objects of the Act A afl .2igur viuloede ‘The Supreme Court in the famous case, The Workmen of Dimakuchi Tea Exate vs, The Management of Dimakuchi Tea Estate (AIR. 1958'S.C. 353) has summed up the principal objects of the Act as follows 2/01! F084 @ of measures for securing and preserving amity-and good promotion relations between the employers and workmen; (ii) investigation and settlement of industrial disputes; (iii) prevention of illegal strikes and lock-outs; “ (iv) relief to workmen in the matter of lay-off and retrétichitient)) (v) promotion of collective bargaining; and. oo (vi) ameliorate the conditions of ‘workmen. yo1qgA rormr9vow) (6) 1 ue yaa (9) 139voD) Broad Features of the Act The Industrial Disputes Act is consideredia landmarkin the development oflabour laws in India. Its salient features are as underi 1900 sleiqoaqs 1. The Act extends to the whole of India including the State ofJammu and Kashmir. 4 novteg Yas eoRoM 2. It is applicable to industries and certain categories; of industrial workers. It is interesting to observe that whereas other labour laws re restricted in their application to factories or establishments employing a certain minimum number of, employees, this Act does hot impos aby auch restriction eee et ue 3. It provides for setting up of works committees as a machinery for. mutual consultation between employers ‘and employees, 80, a8.{0 promoee Ecvainl woleGene ne ere (193)INDUSTRIAL RELATIONS 194 d the way for setting up a permanent conciliation . It has paves , ic ‘ 7 r the speedy and amicable settlement of industrial machinery fo disputes. 5. It is intended to encourage ar! employers and employees. 6. It lays down time limits for various stages of conciliation and arbitration so as to eliminate delays. It also provides teeth for the enforcement of settlement arrived at in the course of conciliation proceedings. 7. The main emphasis of the Act is on compulsory adjudication besides conciliation and voluntary arbitration of industrial disputes. 8, The Act empowers the Government to make a reference of the dispute to an appropriate authority viz. Labour court, Industrial Tribunal, and National Tribunal, depending upon the nature of the dispute either on its own or on the request of the parties. The award of such authority shall be binding on both the parties to the dispute for the specified period not exceeding one year. The right to strike by the workers and lock-out by the employers has been subjected to the restrictions as laid down in the Act and such rights are not absolute rights. The Act prohibits strikes and lockouts during the pendency of conciliation and arbitration proceedings and it empower, the government to prohibit strikes in public utility service in the interest of the public. bitration over the disputes between 2 12.1 DEFINITIONS Appropriate Government [Sec. 2(a)] It means the Central Government in relation to any dispute concerning : (a) any industry carried on by or under the authori any dos rity of the Central (6) any industry carried on by a railway company ; or (©) any such controlled industry, as may be speci any auch eo y be specified by the Central In relation to any other industrial dispute, th erament i appropriate Government, ute, the State Government is the Arbitrator. [Sec. 2(aa)] It includes an umpire. In common parlance, it , i means any person who is appointed to ine di between two parties. 2 Aetermine differences and disputes Average pay, [Sec. 2(aaa)] Thi e ; lause lays di caleulating the average pay for the purmoc Y6 down the manner of th ii Purpose of payment 4 B ey ofretonchiment ofa workman. The determination pensation atthe paid workmen, and (ie ae nte case of @) monthly paid ramet ata be Fa cletmet and Gi) daily paid workmen. The averag ene id) weekly manner forthe different categories of worker” emated in ‘orkers,> RIAL DISPUTES ACT, 1947 nous 195 Inthe case of monthly paid workmen, t! . for three complete calender months. he average ofthe wages paid .. In the case of weekly paid workmi F ” for four complete wed SUS Te (ii) In the case of daily paid workmen, the average of the wages paid for twelve full working days. The period of three months, four weeks or twelve days as specified above ust precede the day on which the average pay becomes payable. In case of a orkman who has not worked for the period specified above, the average pay shall be calculated as the average of wages paid to the workman for the period heactually worked. Wages. [Sec. 2(rr)] It means all remuneration capable of being expressed in terms of money which woulG, if the terms of employment were fulfilled, be payable to a workman in respect of his employment or of work done in such employment. The following essential payment can be called wages : 1. It should be by way of remuneration ; 2. It should be capable of being expressed in terms of money ; 3. It should be payable to a workman in respect of his employment or work done in such employment ; 4. It should be payable if the terms of employment are fulfilled. The Act has include the following payments in the term of wages : (i) Such allowances (including dearness allowance) as the workman is for the time being entitled to; (ii) The value of any house accommodation or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles ; (iii) Any travelling concession ; and (iv) Any commission. payable on the both. But the following payments hi definition of wages— (a) any bonus ; (b) any contribution paid or payable by the fund or provident fund ; (c) any gratuity payable on the termination of service. Lay-off compensation paid to an employee is not wages within the meaning of the Act. But gratuity payable to a labour on retirement becomes part of the wages under the Act. Award. [Sec. 2(6)] An award is— (a) an interim or final determination; (b) of an industrial dispute or any question relating thereto; i) requirements have to be fulfilled before a promotion of sales or business or ave been expressly excluded from the employer to any pension and —INDUSTRIAL RELATIONS (c) by a Labour Court, Jndustrial Tribunal, National Industrial Tribunal or an Arbitrator under Section 10-A. Interim award means a provisional or temporary relief. Determination implies decision one way or the other. An order of Labour Court, Industrial ‘Tribunal or National Industrial Tribunal granting or refusing to grant any of the reliefs which have been asked by the parties to the industrial dispute for would fall within the term ‘award’. Industry. [Sec. 2(é)] The definition of much discussion from time to time culminating ultimately in Bangalore Water ‘Supply and Sewerage Board v. Rajappa.! The judgement of the Supreme Court in this case paved the ground for amending the definition of industry. The Industrial Disputes Act, 1947 was amended in 1982 and the new definition was incorporated. Industry means any systematic activity carried on by co-operation between an employer and his workmen whether such workmen are employed by such employer directly or by or through any agency including a contractor for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not— (any capital has been invested for the purpose of carrying on such activity ; or (ii) such activity is carried on with a motive to make any gain or profit, and includes— (a) any activity of the Dock Labour Board established under Section 5A of the Dock Workers (Regulation of Employment) Act, 1948 : (6) any activity relating to the promotion of salt i . ] les or business or both carried on by an establishment, but does not include : (1) any agricultural operation excey agrict 1 pt where such rt spate aal gertin xen here sh, acta activity (being any such activity as is referred to i fore eae Provisions of this clause) and such other activity is th medameraht eee ity is the predominant ‘Industry’ has been the subject of. (2) hospitals or dispensaries ; or (8) educational, scientific, research or training institut ions ; or (4) instituti institutions owned or managed by organisations whol jolly or substantially engaged in any char; services; ore ™ aBY charitable, social or philanthropic 2 Khadi or village industries ; or any activi 1 ae ety of the Government relatable to th: i ernment including all the activiti a earriad eo tn te departments of the Central esearch, atomic energy and eemment dealing with defence, or u oY AlRisreSG5 548, .> yousTRIal DISPUTES ACT, 1947 a 0 a fo) any domestic service ; or (9) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten ; or (9) any activity, being an activity carried on by a co-operative society or any other like body of individuals, if the number of persons employed by the co-operative society, or any other like body of individuals in relation to such activity is less than ten. ‘the Supreme Court has laid down the following four tests to decide ighether an activity is ‘Industry"— (a) Where systematic activity is organised by co-operation between the employer and employees for production and or distribution of goods or services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to ‘celestial bliss’, namely, the making on a large scale of ‘Parsad’ (or food), prima facie there is an ‘industry’ in that enterprise. (b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or any other sector. (c) The true focus is functional and decisive test is the nature of activity with special emphasis on employer-employee relations. (d) Ifan organisation is a trade or business, it does not cease to be one because of philanthropy animating the undertaking. ‘The Supreme Court observed in the above case, “It is the character of activity which decides the question as to whether the activity in question attracts the provisions of section 2(j), who conducts the activity and whether it is conducted for profits or not do not make a material difference.” Thus, a free or charitable hospital is an industry, Sovereign functions strictly understood (¢.g., police, judiciary, military) alone qualify for exemption, not the welfare activities or ‘economic’ adventures undertaken by government or satutory bodies. Even in departments discharging sovereign functions, if there are units which are industries and they are substantially serviceable, then they can be considered to come within the scope of industry’. bad Industrial Dispute. (Sec. 2.(k)] It means any dispute or difference pelzeaty esrlvers and employers, or between employers and workmen or bet ae men aad ‘workmen which is connected with the employment or . r ; a see aoloy e terms of employment or with the conditions of labour The definition of ‘i ial di ot following parts: industrial dispute’ given above can be divided into the 1. There must be some difference or dispute. 2. The difference or dispute must be between— (a) employers and employers ; or se 2 Be jangalore Water Supply and Sewarage Board v. Rajappa, AIR 1978 8.C. 548INDUSTRIAL RELATIONS 1s (b) employers and workmen ; or (c) workmen and workmen. 3. The dispute should be connected with— (a) the employment or non-employment; or (b) the terms of employment ; or (c)_ the conditions of labour of each person. 4, The dispute should relate to an ‘industry’ as defined in Section 2()). ‘The expression dispute or difference means a controversy fairly definite and of real substance, It must be connected with the employment or non-employment or with the terms of employment or conditions of labour of any person, The dispute must be an existing one. Again for a dispute to be an industrial dispute, it is necessary that a demand must be first raised before - the management and rejected by them. Where the demand was raised for the first time before the conciliation officer and he in turn communicated it to the management which rejected the same, it was held not sufficient to constitute industrial dispute within the meaning of the Act. (Feeders Lloyd Corporation Ltd. v. Lt-Governor of Delhi AIR, 1270 Delhi 60). Certain disputes can never fall within the scope of this definition. For instance, disputes between government and an industrial establishment or between workmen and non-workmen are not the kis i i “5 ae ¢ kinds of disputes of which the definition takesundertaking. Layoff. [Sec. 2 (kkk)] It means the failure, refusal or inability of an employer to give employment to a workman whose name is borne on the muster-rolls of his industrial establishment and who has not been retrenched. The failure, refusal, or inability to give employment may be due to: (i) shortage of coal, power or raw materials, or (ii) the accumulation of stocks, or (iii) the breakdown of machinery, or (iv) natural calamity or for any other connected reasons. The following conditions are to be fulfilled for ‘layoff ; (a) There must be failure or refusal or inability of employer to continue workman in his employment. (b) The employees laid off must be on the muster-rolls of the establishment. (c) The employees must not have been retrenched. (d) The layoff must be due to something beyond the control of the employer, such as shortage of materials, shortage of coal or power, accumulation of stocks, breakdown of machinery or natural calamity. A workman shall be deemed to have been laid off for any day if he presents himself for work at the establishment at the appointed time for duty and during the normal working hours of his attendance, But if the workman, instead of being given employment at the commencement of any shift for any day, is asked to present himself for the purpose during the second half of the shift for the day and is given employment then he shall be deemed to have been laid off only for one half of the day. Ifhe is not given any such employment even after so presenting himself, he shall not be deemed to have been laid off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowances for that part of the day. Thus, a layoff is a temporary non-employment of a workm i an. Under it the workmen are not totally thrown out of employment but are provided with partial wages for a short period. The employer need not resort to closure or lockout of industrial establishment and the workmen need not resort to strike Whether a layoff at any particular time is prope; the circumstances of each case. ge = aust iopend upon Lockout. [Sec. 2(1)] It means the ter i Mporary clo: emplayment, or the suspension of work, or the refesel fee eee of continue to employ any number of: Persons employed by him. oe The conditions to be satisfied in a locko : (@) There is temporary closing of the place of employment, or the suspension of work or withholdi sus or withholding of work by the employer in some ut are as follows :_ypUSTRIAL DISPUTES ACT, 1947 wel 201 (b) There is an element of enforce ‘ing demands, mi employment may not be locko u ere refusal to give , Al ut unless it was done with a view to exercise Coercion to make employees accept the demands of the employer. (c) There is an intention to re-employ the workers if th demands of the employer. °y accept the The words “the refusal by an employer to continue to employ any number ofpersons employed by him” do not include the discharge of employees by an employer. Therefore, discharge of employees would not fall within the definition of lockout. Similarly, , termination of employment of one or more employees does not amount to lockout. The term ‘Lockout’ as defined under the Act does not cover the following : (a) retrenchment of some workmen on the ground of rationalisation of the plant ; (b) prevention of employees from coming to place of work after termination of their services , (c) refusal by an employer to allow Jate-comers on a day to work on that day. Lockout and layoff are entirely different concepts and so are their consequences. In case of layoff, some of the workers are refused employment while under lockout all the employees are refused work. Under layoff, the place of employment need not be closed. Layoff is a measure to cope with temporary inability of an employer to offer em, ployment and to keep the establishment running. But lockout is a measure to force the workers to accept the employer's point of view. Lockout is due to an industrial dispute. Lockout continues during the period of dispute but layoff, is not connected with a dispute with the workman. In case of layoff the employer may be liable to pay compensation under Sec. 25 but this liability cannot be invoked in case of a lockout unless the lockout is illegal. Closure. [Sec. 2. (cc)] It means the permanent closing of a place of employment or part thereof. However, there is no bar on the employer to Testrict operations. Whether a closure was temporary or permanent, it must be decided with reference to the intention of the applicant at the time of. closing down the plant [Hamidia Match Mfg. Co. v. State of Bhopal, AIR (1954) Bhopal 1). Retrenchment. [Sec. 2(00)] It means that the termination by the employer of the service of a workman for any reason whatsoever, otherwis than as a punishment inflicted by way of disciplinary action. It does not include : (a) voluntary retirement of the workman 3 Tata IronINDUSTRIAL RELATIONS 202 e workman on reaching the age of superannuation i t of the cave aie tract of employment contains a stipulation in that provided the cont behalf. th (c) termination of the service of a workman as a result of the non-renewal of the contract of employment after expiry of the stipulated period of the contract. (d) termination of the service of workman on the ground of continued illhealth. ‘Thus, the definition of retrenchment is very wide covering termination of service for any reason whatsoever except those specifically excluded in the definition. “Termination of service’ implies cessation of relationship of master and servant. It has been held that termination of service to be called retrenchment must be discharge of surplus labour and in an industry which is a continuing one and not closed or transferred®. Discharge of surplus labour in a scheme of reorganisation is retrenchment.° Termination of service in terms of contract of employment is retrenchment but termination of service in accordance with rules of service is not retrenchment.’ Compulsory retirement amounts to termination of service and, is therefore, retrenchment.” Lockout vs, Retrenchment 1, Lockout is due to an industrial dispute and continues during the period of the dispute. But retrenchment is not related to any industrial dispute. 2. The motive of lockout is to prescurise the workmen to accept the employer's demands ; on the other hand, the purpose of retrenchment is to dispense with surplus labour. 3. Lockout involves suspension of industrial relationship between enna and workmen. The relationship remains alive in spite of cessation of work. But retrenchment i industrial relationship, results in total severance of 4. Lockout is temporary while retrenchment is permanent. Retrenchment vs. Closure 1. In retrenchment, a part of the labor is di ur force is di ile it case of closure, the entire labour force is discharged. eed Wile in 2. Under retrenchment, the business itself cont ; ; ae the business itself is discontinued. . Rel ‘ are affects only some of the employees, bt employees jobless, vn coma 4. Retrenchment is or trade reasons n account of surplus labour while closure is for all kinds of which are tinues while in case of 7 vt.) Ltd. ve. Thei ” ? 10. Hindustan Steel Lid. vs, Stan Of Orisa nee ie ATR (1956) SC 10. IC 345DISPUTES ACT, 1947 jxpusTRIAl pn 203 ‘ ut vs. Closure ye L Under lockout only the place of employment is closed while in closure the business itself is closed. 9, Lockout is a temporary suspension of relationship while closure is final and irrevocable severance of relationship between employer and employees. 3, Closure is a fundamental right of an employer but lockout is not. 4, Lockout is a weapon of employer to coerce employees while closure is generally for trade reasons. Lock out is a tactic in bargaining but closure is shutting of employment. 5, Lockout is caused by the existence or apprehension of an industrial dispute whereas closure need not be in consequence of any industrial dispute. Strike. [Sec. 2(q)]. It means— (i) acessation of work by a body of persons employed in any industry acting in combination ; or (ii) a concerted refusal of any number of persons who are or have been so employed to continue to work or to accept employment ; or (iii) refusal under a common understanding of any number of such persons to continue or to accept employment. Strike is a weapon of employees just as lockout is a weapon of employer. Workers resort to strike to force the employer to accept their demands. Strike isa nevessary safety valve in industrial relations when properly resorted to. Strike is a legitimate weapon in the hands of the workmen for pressing their demands. There are several types of strike, e.g., in case of stay in strike and tools down strike, workmen occupy their work place but refuse to perform work. 5 The essentials of a strike are as follows : 1. There must be employer-employee relationship. | 2. There should be an industrial dispute, ie., workers have demands which employer is not conceding. 3, Mere absence from work would not constitute a strike unless there is some evidence to show that the absence of the workmen was the result of some concern or combination between the workmen. The | object of the combination or common understanding should be to stop working or to refuse to perform the normal duties. No definite time period is necessary for a strike. Cessation of work even for a few hours as a result of the concerted action of the workers amounts to strike. ‘The following have been held to be ‘strike — a arrbving leave en mesge and refusal to resume work. | {Partial refusal to work, e.g., refusing to assist one another in loading or unloading their earts which was part of their duties. > 2 Tat : {atanagar Foundry Co, Lid. vs. Their Workmen, AIR (1970) SC 1960.INDUSTRIAL RELATIONS (ii) Concerted refusal by workers to clean the looms which was part of their duties. (iv) Refusal to work overtime when overtime is habitually worked in an industry. (v) Refusal of members of an orchestra at theaters to attend rehearsals. (vi) Doing only half of the allotted work in concert. (oii) Refusal to work on holiday despite prior agreement and compensatory holiday. ‘kers thereby preventing employer from (viii) Pen down or stay in by worl engaging other workers to carry on his business, and refusing to vacate their seats. ‘The following have been held to be not strike : (a) Mere passing of a resolution of a strike by a properly constituted union.’ (b) Go slow or work to rule to slow down production.’® (c) Refusal to work overtime ‘when no legal obligation is cast on employees to do overtime work." (@) Refusal by dismissed workmen to leave the premises.!” Public Utility Service. [Sec. 2(n)] It means— (@ any railway service or any transport service for the carriage of passengers or goods by air ; or in connection with the working of, any major port (ii) any service in, or dock ; (iii) any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends ; (iv) any postal, telegraph, or telephone service ; (v) any industry which supplies power, light or water to the public ; (vi) any system of public conservancy or sanitation ; : (vii) any industry specified in the First Schedule to this Act, which the appropriate Government may, if satisfied that public emergency or 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. The period so specified shall not, in the first instance, exceed six months. But it may, by a lik rot fention, be extended from time to time by any period not easeating es a at any time if in the opinion of the appropriate overnment, public emergency; ic it it pala Pt ‘gency or public interest requires such ae 13, Punjab National Bank Ltd. vs. Their Workmen, Al Id. The Minister vs. Kane (1944) 13 AR NSW 192 IaGADED) SRE 15. Sasa Musa Sugar Works Put. Ltd vs. Shabrati Kh 16. Anthony vs. Fresh Food & Co. (1946) 45 ARONSW)6A (dene) 80,628. 17. Mysore Machinery Mfrs. vs. State, AIR (1966) Mysore 51wr DISPUTES ACT, 1947 RIAL st 205 THE FIRST SCHEDULE ries which may be Declared to be Public Utility Services 1sdvs (The First Schedule) nsport (other than railw: i F easy ees ays) for the carriage of passengers or 9, Banking 3, Cement 4, Coal 5. Cotton Textiles 6. Foodstuffs 1. 8. 9, . Iron and steel . Defence establishments . Service in hospitals and dispensaries 10. Fire brigade service 11. Indian Government Mints 12, Indian Security Press 13, Copper, Lead, Zinc, Pyrites, Phosphorite, Magnesite and Iron ore mining 14. Service in any oil field 15. Service in the uranium industry 16, Security Paper Mill, Hoshangabad 11. Currency Note Press 18. Manufacture or production of oils 19. Service in the International Airports Authority of India 20. Service in Bank Note Press, Dewas. Settlement. [Sec. 2(p)] It means— (1) a settlement arrived at in the course 0 | and includes (2) awritten agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding, provided : (®) such agreement has been signed by the parties thereto in such manner as may be prescribed, and (i a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer. The agreement under (2) above is binding only on the parties to the 4 isbi fees But a settlement arrived at in the course’ of conciliation not only on the parties to the industrial dispute but miso on allother f a conciliauon proceeding,EEE Ee INDUSTRIAL RELATIONS 206 specified in Sec. 18 of this Act.'® The Points of difference between persons e settlement are as follows : “we we quasi-judicial machinery is generally involved in case vs steer : whereas in case of settlement, the voluntary speenes the parties with or without conciliation is predominan _ Ch 2, Under an award, the parties to the dispute do not influence tl e " decision of the independent body. On the other hand, in settlemen amicability of the parties to the dispute is of prime significance. 3. An award is judicial in nature whereas settlement is purely a non-judicial agreement. 12.2 AUTHORITIES UNDER THE ACT Works Committee [Sec. 3] 1. In the case of any industrial establishment in which one hundred or rece garkmen are employed or have been employed on any day in the Preceding twelve months, the appropriate Government may by general or Wari order require the employer to constitute in the presevibel manner, a manner from among the workmen engaged in thy establishment and in consultation with th fe d eir trade union, if an i under the Indian Trade Unions Act, 1926, Y meeieced 2. It shall be the duty of the Works Committee to 2. | af Promote meas; seating ree ee and good Telations between the employer acy n and, at end, to comment upon matters of the i Or concern and endeavour to ial dit eee inoreat respect ofsuch matt © SOMPORE any material git ee of opinion in The Works Committee should be so constituted that the number of numberof ropes en employenittee should not be lese than the yer. Works i i fi unions for thy committee is not intended Tgaining. is Purpose of collectiv, then away fricti ieee workmen and the Management in day dagen that erties between the Duties of Works Committee @® To Promote and pres; pe ™mon interes In Tespect of such matters = material difference, of _ Th ot define exact} cti object isto secure industring *=°tlY the functions dustrial harmonyt® ne iconcerne ft Committ, Its '8. Ramnagar Gy fhe prob 19 Famahrsh Taming maee ranahraborty, arp ane tricity Board, ear AIR (1960) gc 5 TST T LLY 4 1012. 3,, iRDUSTRIAL DISPUTES. ACT, 1947 ml am wrisin in the day-to-day working of an industrial ostablishment, Thess include supervision of recreational facilities, welfare of workers, working conditions, leave, houra of work, ote, But it cannot discuss the grievances arising out of disciplinary action or to arrive at some agreemont on behalf of workmen. The recommendations of the Works Committes are not binding and aro purely of advisory nature, The Works Committee cannot take matters which fall under the purview of standing orders, Conciliation Officers (Sec. 4) 1, The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit to be conciliation officers, 2. The duty of the conciliation officers shall be to mediate in and promote the settlement of industrial disputes. 8. A conciliation officer may be appointed for a specified area or for specified industries in a specified area and either permanently or for a limited period. 4. A conciliation officer shall be deemed to be a public servant within the meaning of Sec. 21 of the Indian Penal Code, 1860. Duties of Conciliation Officer (Sec. 12) 1, Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Sec. 22 has been given, shall, hold conciliation proceedings in the prescribed manner. 2. In order to bring about a settlement of the dispute, the conciliation officer shall, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof. He may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. But he has no authority to make a final decision or to pass a final order directing the parties to act in a particular manner. 3. If a settlement of the dispute is arrived at in the course of conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate Government. Alongwith the report he shall send a memorandum of the settlement signed by the parties to the dispute. 4. If no settlement is the arrived at, the conciliation officer shall, immediately after the close of investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof. He shall also state the reasons on account of which a settlement could not be arrived at. 5. The conciliation officer must submit the report within 14 days of the commencement of the conciliation proceedings or within such shorter periods &S may be fixed by the appropriate Government.” ee eee *. Allahabad Bank Employees Union vs. Union of India and Others 1988 (56) FLR 161 (Bom, HC),208 INDUSTRIAL RELATIONS 6. If, on consideration of the report submitted by the conciliation officer, appropriate Government is satisfied that there is a case for reference to any authority under the Act, it may make such reference. Where the appropriate Government chooses not to make such a reference, it shall record and communicate the reasons for not referring the dispute to the contending parties.2! ; While exercising its discretion, the appropriate Government must act in a bonafide manner and on consideration of relevant and material facts. The reasons must be such as to show that the question was carefully and properly * considered. 7. The duty of a conciliation officer is administrative and not judicial. After reporting that no settlement could be arrived at, the conciliation officer cannot be debarred from making further efforts to bring about a settlement.’ Board of Conciliation (Sec. 5) 1. The appropriate Government may by a notification in the Official Gazette constitute a Board of Conciliation for Promoting the settlement of an industrial dispute. 2. The Board shall consist of a chairman and two or four other members, as the appropriate Government thinks fit, 3. The chairman shall be an independent person (i.e. unconnected with the dispute or with any industry directly affected by such dispute). 4. The other members shall be persons appointed in equal niiinber to represent the parties to the dispute, in 5. A person appointed to represent a party shall bé appointed on'thé recommendation of the party, a 1 ao Tf any party fails to make a recommendation! Within’ the prescribed Period, the appropriate Government shall appoint sud persons as it thinks fit to represent that party. . a T 905 brs 1 7. A Board of Conciliation: having the prescribed quorum, ; 7 a may, act, notwithstanding the absenge ofthe chairman or,any.af its montane any vacancy in its number,,:, ,,. ,.. , &. If the appropriate Government notifies the Board that the sez; I ee Pe chairman or any other member have ceased to be available, the Beard should not act until a new chairman or member, as the case may be, has been 9. A'Boatd of Coneiliation cannot admit a’ dispute ineésesy ce: _ of Con a ca ad pute ‘in’ conciliation on'its own. It can “act only when’ référence’ iaputé Whde te Gietamanter? 1 bneene Teference'‘of a dispute ismade to it'by ‘the Duties of Board of Conciliation [See. 13(1)] y |. \G) Where a.dispute has been referred to a Board it 2 . . hi bring, about a settlement of the same. It. shall, without ae eee to - 1 ni ved 21. V.1 Shiva Shankar ve. State of Karnataka, (1981) 1.) Lab IC-648-—— 22) Praga Tools Ltd., Secunde TLLJ 218, Underabad vs. Proga Tools Ltd: Mazdoor Sabha, (1976)_P jaf INDUSTRIAL DISPUTES ACT, 1947 209 . d all matters affecting the meri i gispute an iF ig the merits and the right settl r may also do all such things as it thinks fit for th : ate ie i i e purpose of inducii arties to come to fair and amicable settlement of the dispute, indueing the (i) Ifa settlement of the dispute is arrived at in the e¢ iliati } ‘ourse of conciliation proceedings, the Board shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. (iii) If no settlement is arrived at, the Board shall, as soon as practicable after the close of the investigation, send a report to the appropriate Government stating the facts and circumstances, the steps taken, the reasons why no settlement was arrived at, and its recommendation of the dispute. (iv) If no settlement is arrived at, the government may refer the dispute to the Labour Court, Industrial Tribunal or National Tribunal. In case it does not do so, it shall record and communicate to the parties concerned the reasons thereof. (v) The Board must submit its report within two months of the date on which the dispute was referred to it or within such shorter period as may be fixed by the appropriate Government. (vi) The appropriate Government may, from time to time, extend the time for the submission of the report by such further periods not exceeding two months in the aggregate. (vii) The time for submission of report may also be extended by such period as may be agreed to in writing by all the parties to the dispute. (viii) The report of the Board shall be in writing and shall be signed by all the members of the Board. A member of the Board may record any note of dissent from report or from any recommendation made therein (Sec. 16(1)]. (ix) Further the report together with the note of dissent recorded therewith shall be published by the appropriate Government within thirty days from the receipt thereof [Sec. 17(1)]. (x) A Board of Conciliation can only try to bring about a settlement. It has no power to impose a settlement on the parties to the dispute. Court of Inquiry (Sec. 6) ; 1. The appropriate Government may, by notification in the Official Gazette, constitute a Court of Inquiry for inquiring into any matter appearing to be connected with or relevant to an industrial dispute. 2. A Court of Inquiry may consist of one independent person or of such number of independent persons as the appropriate Government may think fit. 3. Where a Court of Inquiry consists of two or more numbers, one of them ; _ Shall be appointed as the chairman. , 4. A Court having the prescribed quorum may act notwithstanding the absence of the chairman, or any of its members or any vacancy in its members. 5. If the appropriate Government notifies the Court that the services of the chairman have ceased to be available, the Court shall.not act until a new chairman has been appointed., WOAISTUNAL wih ations 0 6, All members of the Court shall be deemed to be public wervants within the meaning of Hee, 21 of the Indian Penal Code, 1460, * 1, A Court of Inquiry have the same powers an are vented in a Civil Court under the Code of Civil Procedure 1908, 4, Every Inquiry or investigation by 4 Court shall be deemed to bea Judicial proceeding. 9. A Court may, If t no thinks fit, appoint one or more persons having special knowledge of the matter under consideration as asscasor or assenerne to advine it in the proceeding before it (Sec, 11(5)), Duties of Court of Enquiry (Bec. 14) (©) A court shall inquire into the matters referred to it. and report thereon {0 the appropriate Government ordinarily within a period of six months fron the commencement of the inquiry, (i) ‘The report of the Court uhall be in writing and signed by all the embers of the Court, Any member of the Court may record any minute of (iit) The report together with any minute of dissent recorded therewith shall be published within a period of thirty days of its receipt by the ‘appropriate Government (Sec. 17(1)}, ‘Thus, a Court of Inquiry is a fact finding body and it is not required to make recommendations for the settlement of an industrial dispute. It has no Power to impose any settlement upon the parties, Labour Court (Sec, 2D 1. The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for adjudication of industrial disputes relating to any matter Specified in the Second Schedule, 2. These Courts shall aleo ch i cree Perform such other functions as may be 3. A Labour Court shall consist of Ppointed appropriate Government. ‘padres ly tae m ire 4. A person shall not be qualified f i Presiding officer of a Labour Court, unless : 4 paintnent as the ding (a) he is, or hag been, a Judge ofa High Court; or of Labour Court constituted sie ‘ than five years, ‘ding ere, Shall PPointed to, oF continue ; Presiding officer ofa Labour Court, i Ne im, the office of the ‘Person ; or of 65 years, (@) heis not an independent (6) he has attained the age Se- ‘ig INDUSTRIAL DISPUTES ACT, 1947 THE SECOND SCHEDULE [Matters within the Jurisdiction of Labour Courts | (i) The propriety or legality of an order passed by an employer under | . | the standing orders ; | (ii) The application and interpretation of standing orders ; (ii) Discharge or dismissal of workmen including reinstatement of, grant of relief to, workmen wrongfully dismissed ; (iv) Withdrawal of any customary concession or privilege ; (v) Megality or otherwise of a strike or lock-out ; and (vi) All matters other than those specified in the Third Schedule. Duties of Labour Court (i) It is the duty of the Labour Court to adjudicate upon the industrial disputes relating to any matter specified in the Second Schedule and to perform such other functions as are assigned to it. i) The jurisdiction of the Labour Court is circumscribed and it cannot deal with matters not specified in the Second Schedule. It cannot act as the guardian of an industrial establishment. (iii) Where an industrial dispute has been referred to a Labour Court for adjudication, it shall hold its proceedings expeditiously and shall, within the period specified in the order referring such dispute, submit its award to the appropriate Government. (iv) The award of the Labour Court shall be in writing and shall be signed by its presiding officer. (v) It shall be published in such manner as the appropriate Government thinks fit within a period of 30 days from the date of its receipt by the appropriate Government. Industrial Tribunal (Sec. 7-A) 1. The appropriate Government may, by notification in the Official Gazette, constitute one or more industrial tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or Third Schedule, and for performing such other functions as may be assigned to them under this Act. 2. The Tribunal shall consist of one person only to be appointed by the appropriate Government. 3. A person shall not be qualified for appointment as the presiding officer of an Industrial Tribunal unless (a) heis, or has been, a Judge of a High Court ; or (6) he has, for a period of not less than three years, been a District Judge or an Additional District Judge. 4.No person shall be appointed to or continue in the office of the presiding Officer of a Tribunal, if (a) he is not an independent person ; or (6) he has attained the age of 65 years.212 INDUSTRIAL RELATIONS 5. The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it. ‘THE THIRD SCHEDULE Matters within the Jurisdiction of Industrial Tribunals 1. Wages, including the period and mode of payment. . Compensatory and other allowances. Hours of work and rest intervals. Leave with wages and holidays. Bonus, profit sharing, provident fund and gratuity. . Shift working otherwise than in accordance with standing orders. . Classification by grades. . Rules of discipline, . Rationalisation. . Retrenchment of workmen and closure of establishment. . Any other matter that may be prescribed. Duties of Industrial Tribunal (é) Where an industrial dispute has been referred to an Industrial ‘Tribunal for adjudication, it shall hold its proceedings expeditiously. (ii) It shall within the specified period submit its award to the appropriate Government. (iii) The award shall be in writing and shall be signed by its presiding officer. (iv) The award shall within a period of thirty days, from the date of its receipt by the appropriate Government be published in such manner as the appropriate Government thinks fit. (v) An Industrial Tribunal is a quasi-judicial body and, therefore, it must serve notice upon the parties to the reference by name before making any award. (vi) It is the duty of the Industrial Tribunal to decide the matter before it on the merits after taking into account all material facts and circumstances.”* (vii) It must always consider the evidence producéd before it objectively and must arrive at a conclusion in a judicial manner. (viii) It must confine its jurisdiction to the points refe i Government's order and matters incidental thereto, erred in the (éx) Article 136 of the Constitution confers a power on the Supreme C: to grant, in its discretion, special leave to appeal from any judgement, ‘dewee, determination, sentence or order in any case or matter passed or made by any Court or Tribunal. Thus, ifthe Supreme Court grants special leave, an appeal Bien elaine 23, Rohtas Sugar Ltd. vs. Mazdoor Sewa Sangh, AIR (1960) SC.671 24. Associated Cement Companies Ltd, vs, Their Workmen, ATR (1959) SC 957rv qh INDUSTRIAL DISPUTES ACT, 1947 213 can be made against the decision of an Industrial Tribunal as it is a “determination in any cause or matter by the Industrial Tribunal.” (x) An Industrial Tribunal can adjudicate industrial disputes and pass effective awards to maintain industrial peace. (xi) It is an ad hoc body appointed to adjudicate upon the particular case referred to it and is not a permanent body. After reference of an industrial dispute to an Industrial Tribunal, the appropriate government may interfere on the following grounds : (a) there is lack of good faith ; or (b) there is victimisation or unfair labour practice ; or (c) the management has been guilty of violation of principle of natural justice ; or (d) the finding is completely baseless and perverse. National Tribunal (Sec. 7-B) 1. The Central Government may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals for the adjudication of industrial disputes : (a) involving questions of national importance ; or (6) which are of such a nature that industries in more than one State are likely to be interested in, or affected by, such disputes. The Central Government may also refer to the National Tribunal for adjudication any matter appearing to be connected with or relevant to the dispute whether it relates to any matter specified in the Second Schedule or the Third Schedule. 2. A National Tribunal shall consist of one person only to be appointed by the Central Government. 8. A person shall not be qualified for appointment as the presiding officer of a National Tribunal unless he is, or has been, a Judge of a High Court. 4. No person shall be appointed to, or continue in, the office of the Presiding officer of a National Tribunal, if (a) he is not an independent person ; or (b) he has attained the age of 65 years. 5. The Central Government may, if it so thinks fit, appoint two persons 88 assessors to advise the National Tribunal in the proceedings before it. Duties of National Tribunal ia a Where an industrial dispute has been referred to a National Tribunal judication, it hall hold its proceedings expeditiously. wots ae within the specified period submit its award to the appropriate ent. ‘éti) The award shall be in writing and shalll be signed by the presiding officer ofthe National Tribunal. _ i ofthe National Tribunal.4 INDUSTRIAL, RELATIONS, (iv) Tt shall, within a period of 80 daya from the dato of ita receipt by the Central Government, be publiahed in such mannor aa lt thinks fit, Reference of Disputes to Boards, Courts or Tribunals (Seo, 10) 1. Whore the appropriate Government fools that any induatrial diapute oxists or is apprehended, it may, at any time, by ordor in writing (a) rofer the dispute to a Board of Conciliation for promoting: a sottloment thereof; or (b) refer any matter connected with, or relovant to, the dispute to a Court of Inquiry for inquiry ; or rofer the dispute or any matter connect dispute if it relates to any matter spec toa Labour Court for adjudication, ¢ (d)_rofor the dispute or any matter appearing to bo connected with, or relevant to, the dispute, whothor it relates to any matter specified in the Second Schedulo or the Third Schedule, to n Tribunal for adjudication, 2, Where tho dispute relates to any mattor specified in the Third Schedule and is not likely to affect more than 100 workers, tho appropriate Government, if it so thinks fit, mako the reference ton Labour Court. 3. Wher the dispute relatos to a public utility sorvico and a notico under See. 22 has been given, the appropriate Governmont shall mako a reference under this section notwithstanding that any othor proceeding undor this act n respect of the dispute may have commenced. But if tho appropriate vernment considers that the notice has been frivolously or yoxatiously xriven or that it would be inexpedient so to do, it may not make a reference, 4. Where the dispute is in relation to which the Central Government is the appropriate Government, it shall be compotent for that government to refer the dispute ton Labour Court or an Industrial Tribunal, ns tho caso may be, constituted by the Stato Government. 5, Where the parties to an industrial dispute apply in tho proscribed manner, whether jointly or separately, for a reference of the dispute to a Board of Conciliation, Court of Inquiry, Labour Court, Industrial Tribunal or National ‘Tribunal, the appropriate Government, if satisfied that the peraons applying represent the majority of cach party, shall make the reference accordingly. 6, An order referring an industrial disputo to a Labour Court, Industrial ‘Tribunal or National Tribunal shall specify tho period with in which such Labour Court, Industrial Tribunal or National ‘Tribunal shall submit its award on such dispute to tho appropriate Government, 7. Where such industrial dispute is connected with an individual workman, period specified for the submission of the award shall not exceed three months, 8, ‘Tho parties to an industrial disputo may apply for extension of the peri’ specified for tho submission of tho award by citing the reason, Where od with, or rolovant to, tho jod in the Second Schodulo, )a — sig INDUSTRIAL DISPUTES ACT, 1947 21s the authorities consider it necessary or expedient to extend such period, they may, for reasons to be recorded in writing, extend such period. g. No proceeding before a Labour Court, Industrial Tribunal or National jbunal shall lapse merely on the ground that any period specified for the submission of the award has expired without such proceedings being completed. 10. An order of the government referring the dispute cannot be challenged, except on the following grounds : (a) that the order is void ab-initio or without jurisdiction ; (b) that the order made is malafide ; (c) that the appropriate Government had no material before it ; (d) that the Government did not apply its mind to a materal ; (e) that it did not consider vital facts which ought to have been considered. 11. Where an industrial dispute has been referred to a Board of Conciliation, Labour Court, Industrial Tribunal, National Tribunal, the appropriate Government may by order prohibit the continuance of any strike or lockout in connection with such dispute which may be in existence on the date of the reference. 12. Before an order prohibiting a strike is passed, two conditions must be satisfied. First, there must be an industrial dispute in existence and, secondly, such dispute must have already been referred to adjudication.