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Labour Law 1 Model Answer 2020
Labour Law 1 Model Answer 2020
Labour Law 1 Model Answer 2020
B
LABOUR LAW-1
MODEL ANSWER 2020
INTRODUCTION.
The freedom of association has been the cornerstone of society. This freedom finds
its best expression in a democratic form of Government. India, being a democratic
country confers the freedom of association through its constitution.
The main function of trade union is to enable the workers to act together, the
individual by himself being in a weak bargaining position to negotiate with
employers that is to make possible collective bargaining the strike being their
weapon of last resort to be used only after negotiation have broken down.
TRADE UNIONISM
It is the beliefs, policies and practices of trade union (organization that represent
the people who work in a particular industry). Trade unionism is based on the
belief that we all work better when we work together.
Trade unionism to be fully effective, demands two things: a democratic spirit and
education.
The term of trade unionism in India can be traced back to the year 1890,
when for the first time an association of mill workers was formed in the name and
style of “Bombay Millhands Association”.
This association was formed for the redressal of grievances of the Bombay Mill
wokers. It is difficult to treat this association as Trade Union in the strict sense in
which this expression is used now-a-days.
After the first world war over the cost of living considerably increased. The
political agitation against foreign rule was also gaining momentum throughout the
country. The increase in cost of living and country-wide political upsurge found its
way in economic discontent amongst masses, particularly in industries.
On many occasions these strikes were successful in getting the demands of the
workers fulfilled. The trade union movement in India got impetus by the success of
strikes in India and the world-wide uprising of labour consciousness.
The original Trade Union Act of 1926 made provisions in respect of,
conditions governing the registration of the act, obligations imposed upon the
registration of the trade union, rights & privileges of the registered trade union.
The Trade Union Act has been amended in the year 1947, the royal commission
pleaded for recognition of representative trade union in spirit as well as in letter.
The matter was discussed before labour ministers conferences & the standing
committee, consequently the act was amended in the year 1947 which required for
compulsory recognition by employers of the representative‘s trade Union. The
Trade Union bill of 1950, on the basis of the decision held in standing labour
committee a Trade Union Bill, seeking to make some new provisions was
introduced in parliament in February 1950. This Bill lapsed with the dissolution of
parliament. The desirable of enacting suitable legislation was considered by the
Indian Labour conferences held in October 1952. The Indian Trade Union
Amendment Act of 1960 made some changes in section 2(f), 3,4,6,14,16, &28 of
the act.
INTRODUCTION
The Trade Union Act 1926 provides detailed provisions for formation, procedure,
registration and immunities available to the union and its leaders.
Any seven or more members of a Trade Union may apply for registration of the
Trade Union. All the members applying for registration must subscribe their names
to the rules of the Trade Union and also comply with the provisions of the Act
relating to registration of unions.
Provided that no Trade Union of Workmen shall be registered unless at least ten
percent, or one hundred of the workmen, whichever is less, engaged or employed
in the establishment or industry with which it is connected are the members of such
Trade Union on the date of making of application for registration.
Provided further that no trade union of workmen shall be registered unless it has on
the date of making application not less than seven persons as its members who are
workmen engaged or employed in the establishment or industry with which it is
connected.
If more than half of the members who applied for registration of Trade Union,
cease to be members of the Trade Union or dissociate themselves from the
application by giving a notice in writing to the Registrar before the registration is
granted to the Trade union, the application shall be deemed to have become
invalid. In all other cases when only half or less than half or the members cease to
be members of the Union or dissociated themselves from the application as
aforesaid, the application for registration shall be valid.
b. The name of the Trade union and the address of its head office; and
c. The titles, names ages, addresses and occupation of the office bearers of the
Trade union.
3. A general statement of the assets and liabilities of the Trade Union prepared
in the prescribed form.
Every registered Trade union is required to have written rules dealing with certain
matters specified in Schedule II of the Central Trade Union Regulations, 1938.
These rules generally determine and govern the relationship between the Trade
Union and its members.
They also provide guidance for the internal administration of the Trade Union. A
trade union shall be entitles to registration under this Act, if:-
f. The conditions under which any member shall be entitled to any benefit
assured by the rules and under which any fine or forfeiture may be imposed
on the members;
g. The manner in which the rules shall be amended, varied or rescinded;
h. The manner in which the members of the executive and the other office
bearers of the Trade Union shall be elected and removed.
hh. The duration of period being not more than 3 years, for which the members
of the executive and other office-bearers of the trade union shall be elected.
i. The safe custody of the funds of Trade Union, and annual audit, in such
manner as may be prescribed, of the accounts thereof, and adequate facilities
for the inspection of the account books by the office bearers and members of
the Trade Union; and
j. The manner in which the Trade Union may be dissolved.
In this case it was held that if subscriptions are not paid accordance with by
laws of the trade union, person who failed to pay shall not be considered as
members of Trade Union.
In this case the rules of Hyderabad Allwyn worker’s union were amended to
provide for making the President of the union as election authority, empowering
him to nominate all office bearers and denying authority to the general body to
remove the President from office before expiry of his term.
It was held that the amendments were contrary to the letter and spirit of the Trade
Union Act.
The resident who is vitally interested in the conduct of elections cannot be the
person who can be entrusted with the authority to prepare the voters list appoint
returning officer and conduct elections.
The registration of a Trade Union will be refused by the Registrar if the name
under which a Trade union is proposed to be registered is identical with that of
any existing Trade Union or so nearly resembles such name as to be likely to
deceive the public or the members of either Trade Union.
In such a case the Registrar may require the persons applying for such registration
to change the name of the Trade Union, and it shall be registered only after such
alteration.
The Registrar may also ask for further information which he thinks necessary for
the purpose of satisfying himself that the application complies with the provision
of section 5 and 6.
TATA WORKERS UNION V. STATE OF JHARKHAND AND ANOTHER
(2002) III ILJ 474 (JHARKHAND)
There were 2 rival groups of union. The Registrar of Trade Union by an order took
a decision to supervise the election of office bearers to the petitioner union.
This order was challenged the High Court held that Registrar cannot interfere in
elections.
The Registrar will register the Trade Union if he is satisfied that the Trade Union
has complied with all the requirements of this Act in regard to registration. The
registrar shall register the Trade Union by making necessary entres in the register,
to be maintained in such form as may be prescribed. The particulars relating to the
Trade Union contained in the statement accompanying the application for
registration shall be entered in the register.
If the registrar takes no action even after 3 months of application of Trade union, a
writ under Art 226 can be issued.
If two set office bearers are filed by 2 rival groups in a Trade Union, the registrar
has no power to hold quasi-judicial inquiry.
CHENOSYM (P) LTD & OTHERS V.S KERALA MEDICAL AND SALES
REPRESENTATIVES ASSOCIATION. (1988) II LLJ 43 (KER)
It was held that if 2 rival groups to be office bearers is not a trade dispute under
section 2(g) of the act and it is private nature and civil court can only adjudicate it.
A Registered Trade Union shall have atleast 10% or 100 of workmen, which ever
is less subject to 7 yrs, engaged or employed in an establishment or industry with
which it is connected.
INTRODUCTION :-
The Trade Union Act 1926, chapter -3 section 15 and 16 states about general and
political funds collections and mode of expenses to be done.
CHAPTER –III
it will be illegal to spend the union funds for any other purpose other than those
stated above.
Union funds in support of an illegal strike or lockout and a union can be restrained
by injunction.
Section 15 does not allow to use union funds for speculative activity.
A trade union can have civic and political object and can raise separate funds.
INTRODUCTION
Section 17 and 18 of the Trade Union Act 1926 states the immunities/priviliges for
a registered Trade union.
That a suit for perpetual injunction restraining the workmen from indulging in
unfair labour practice is deemed as one of civil nature and hence cognizable under
section 9 of the Civil procedure code.
Therefore where the court has barred the workmen from holding meeting, dharna
and interfering in the rights of a company, such a restraint does not curtail the just
trade union activities of the workers. It cannot be construed as unjust and the
workmen are at liberty to carry on legitimate trade union activities peacefully.
INTRODUCTION
Section 10 of the Trade Union Act 1926 states about the withdrawal and
cancellation of registration of Trade union by Registration for following reasons.
Where cancellation application is given by union itself, the Registrar must give to
the Trade union not less than 2 months previous notice in writing specify the
ground on which it is proposed to withdraw or cancel the certificate of registration.
An appeal was filed by the union the order of Registrar cancelling its registration
for continued contravention of Section 28 of Trade union Act 1926.
The High court held that said order was in violation of the mandatory provision of
section 10 of the Act.
The respondent Registrar had not addressed a previous show cause notice in
writing to the appellant union as its correct address.
INTRODUCTION.
There can be no growth of industrial structure unless the employers and the
workers realized the special significance of their natural relations and
responsibilities laid upon each other.
The very preamble of the Industrial Dispute Act says that the objects of the
enactment of Act is the proper adjustment of relations between labour class and
capitalist class, While at the same time law and order is also maintained and there
must also be the increase in the Industrial production.
After the select committee’s Report on 3rd Feb 1947 with some amendments. It
was passed in March 1947 and became Law on 1st April 1947
The Supreme Court has held in the case that the overriding purpose of the Act is
the benefit of the community at large and not the benefit of the class of employees
or the employer. The purpose of the Act is to maintain industrial harmony.
In this case Justice Gajendragadkar stated the first of such principles as follows.
Thus the manner in which the activity in question is organized or arranged, the
condition of the co-operation between the employer and the employee necessary
for its success and its object to render material service to the community can be
regarded as some of the features which are distinctive of activities to which section
2(j) applies.
this lead case on this provision the SC gave a vide amplititute to bring within its
scope hospitals, clubs, & educational , reaserch & chariatable institutions .
The SC in this case held that,
1. If in an enterprise there is systematic activity
2. Organized by the co-operation b/w the employer & the employee
3. For production or distribution of goods & services calculated to satisfy human
wants & wishes, then that is an industry. And this is known as the triple test.
An establishment can be taken out of the review of industry only if it exercises
sovereign functions .Even in discharging sovereign functions if there are units
which are industries & there are substantially severable, and then they can come
under the meaning of Industry.
This definition widening the coverage of industry did not receive the approval of
the parliament & by the Industrial disputes amendment act 1982.
This definition has been amended in 1982. Though the definition is amended it has
not been notified by the central govt, hence the amended definition has not come
into force.
The SC has interpreted the definition of the term industry in various cases ,
In State of Bombay V/S Hospital Mazdoor Sabha , in this case the SC held that
the hospitals are industries.
University of Delhi V/S Ram Nath, in this case this case the SC held that the
workmen of imparting education is mor a mission an avocation than business or
therefore university is not an industry.
Madras Gymkhana Club Employees Union V/S Management , madras
Gymkhana club was a member club with the membership of about 1200 its main
object was to provide for a venue for sports & games & fecilities of recreation &
entertainment .it was running a catering department which provided food &
refreshment . the court held that the club is not an Industry. .
The Cricket Club of India V/S Bombay Labour Union
This club is a company under the Companies Act 1964 the club had membership of
about 4800. It employed 397 employees. The court said it provides catering
facilities to its members or to their guests. The court held that the club is a self
service institution & not an Industry.
Safdarjung Hospital V/S KS Seithi , in this case the SC over-ruled its decision in
Hospital Mazdoor Sabha & held that Hospitals were not Industry .
Dhanrajgiri Hospital V/S Its Workmen, in this case the court held that
Dhanrajgiri Hospital is not an Industry because it was not carrying on any
economic activity in the nature of trade or business. The main activity of the
hospital was to imparting of training in nursing & the beds in the hospital was
meant for their practical purposes.
Section 10 of the Industrial Dispute Act of 1947 lays down the provisions of
making reference of the disputes to a Board, court or Tribunal for adjudication of
the same, by the appropriate Government.
Section 10(1): provides that where the appropriate Government is of the opinion
that any industrial dispute exists or is apprehended, it may at any time by order in
writing:-
Provided that where the dispute relates to the matter specified in the 3 rd Schedule
and is not likely to affect more than one hundred workmen, the appropriate
Government may, if it so thinks fit, make the reference to a Labour court under
Clause (c).
It is further provided that where the dispute relates to a public utility service and a
notice under section 22 has been given, the appropriate Government shall, unless I
considers that the notice has been frivolously or vexatiously given or that it would
be inexpedient so to do, make a reference under this sub-section notwithstanding
that any other proceedings under this Act in respect of the dispute may have
commenced.
Provided also that where the dispute in relation to which the Central Government is
appropriate Government, it shall be competent for that Government to refer the
dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted
by the State Government.
It is held that the object of reference is to maintain industrial peace and not mere
adjudication of disputes between two private parties. It was further held in this case
that non-appearance of party does not mean that dispute did not exist or ceases to
exist.
Section 10 (1-A) provides that where the Central Government is of opinion that:-
If the dispute is connected with an individual workman, such period shall not
exceed 3 months.
If the parties jointly or separately apply for extension of such period in prescribed
manner, and the presiding officer consider for extension of such period , he may
for reasons in writing extend such period by such further period as he may think
fit.
Provided also that in computing any period specified in this sub-section, the
period, if any, for which the proceedings before the Labour Court, Tribunal or
National Tribunal had been stayed by any injunction or order of a civil court shall
be excluded.
Section 10(3):- provides that where an industrial dispute, has been referred to a
board, Labour Court, Tribunal or National Tribunal under this section, the
appropriate Government may be order prohibit the continuance of any strike or
lock-out in connection with such dispute which may be in existence on the date of
reference.
Section 10 (6) it is provided that where any reference has been made under Sub-
section (1-A) to a National Tribunal, then notwithstanding anything contained in
this Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate upon
any matter which is under adjudication before the National Tribunal, accordingly:-
It has been held that state Government has power and discretion to make reference
to Labour Court for resolving an industrial dispute. If a dispute is squarely covered
by the definition of Industrial dispute, the State Government is fully competent to
refer the dispute to Labour Court.
Section 10-A of the Act differs from Section 10 of the Act mainly in one respect.
Section 10 of the Act provides for reference of an Industrial dispute by the
Government either on its own or on an application having been made to it by the
parties to making such reference.
But Section 10-A of the Act authorizes the parties to a dispute themselves to
choose their own arbitrator, including a Labour Court, Tribunal or National
Tribunal.
Section 10-A (1) provides that where any industrial dispute exists or is
apprehended and the employer and the workmen agree to refer the dispute to
arbitration, they may refer the dispute to arbitration. Such reference by agreement
may be made at any time before the dispute has been referred under Section 10 to a
Labour Court, Tribunal or National Tribunal.
Section 10-A (1-A) provides that where an arbitration agreement provides for
reference of the dispute to an even number of arbitrators, the agreement shall
provide for the appointment of another person as umpire who shall enter upon the
reference, if the arbitrators are equally divided in their opinion. The award of the
umpire shall prevail and shall be deemed to be an arbitration award for the purpose
of this Act.
Sub Section 10-A(3-A) provides that where an industrial dispute has been
referred to arbitration and the Appropriate Government is satisfied that the person
making the reference represent the majority of each party, the Appropriate
Government may within one month from the date of the receipt of such copy, issue
a notification in the prescribed manner. When any such notification is issued the
employers and workmen who are not parties to the arbitration agreement but are
concerned in the dispute, shall be given an opportunity of presenting their case
before the arbitrator or arbitrators.
Under Section 10-A(4) the arbitrator or arbitrators shall investigate the dispute
and submit to the Appropriate Government the arbitration award signed by the
arbitrator or all arbitrators as the case may be.
Under Sub-section (4-A) where an industrial dispute has been referred to
arbitration and a notification has been issued under sub-section (3-A), the
Appropriate Government may prohibit the continuance of any strike or lock-out in
connection with such dispute which may be in existence on the date of the
reference. The Appropriate Government shall do so by issuing an order.
In this cast the respondent conductor was charged for non-checking of cash bag
and non-examination of the ticket-less passengers. Domestic enquiry was held and
he was dismissed. However, the Labour Court set aside the order of dismissal and
ordered reinstatement. The order was confirmed by the single Judge of the High
Court. The writ appeal was dismissed as not maintainable. Hence an appeal was
preferred to the Supreme court.
Therefore, when the conductor himself admits that he had not issued Tickets to 20
passengers, their non-examination is really of no consequence and the order of
dismissal is to be substituted.
Engineer Mazdoor Sabha V. Hind Cycles Ltd (1962) II LLJ 760 (S.C)
In which the court observed that some of the features, which characterize the
proceedings before the Industrial Tribunal before an award is pronounced and
which characterize the subsequent steps to be taken in respect of such an award,
are common to proceedings before the arbitrator and the award that he may make.
An arbitrator under Section 10-A cannot be equated with a statutory Tribunal like
an Industrial Tribunal.
The Arbitrators appointed by agreement are bound to act according to law as they
are appointed by virtue of statute and are within the High Court’s power of
superintendence. The Freedom of choosing arbitration does not make any
difference in their duties and functions.
INTRODUCTION
Before insertion of section 2-A of the Act an individual dispute could per se be an
industrial dispute, but it could become one if taken up the Trade union or a number
of workmen.
The provision of the Act leads to the conclusion that its applicability to an
individual dispute as opposed to dispute involving a group of workmen is excluded
unless it acquires the general characteristics of an industrial dispute the workmen
as a body or a considerable section of them make common cause with the
individual workman.
Section 2-A is of limited application. It does not declare all individual disputes to
be an industrial dispute. A dispute connected with a discharged dismissed,
retrenched or terminated workman shall be an industrial dispute. If the dispute or
difference is connected with other matter then it would have to satisfy the test laid
down in judicial decision.
Thus only a collective dispute could constitute an industrial dispute but collective
dispute does not mean that the dispute should either be sponsored by a recognized
union or that all or majority of the workmen of an industrial establishment should
be parties to it.
About 25 per cent of the working journalists of the Indian Express were members
of that union. But there was no union of the journalists of the Indian Express. It
was held that the Delhi Union of Journalists could be said to have a representative
character quo the working journalists employed in Indian Express and the dispute
was thus transformed into an industrial dispute.
Where an industrial dispute existed at the time of making order of reference this
dispute does not cease to be so merely because dispute relating to only one
employee is left over and that the union which raised the dispute chooses not to
represent a particular employee.
INTRODUCTION:-
Ludwig Teller states in his book “Labour Dispute and Collective Bargaining”
the ‘the word strike in its broad significance has reference to a dispute between
an employer and his workers, in the course of which there is a concerted
suspension of employment”.
Strike means the stoppage of work by a body of workmen acting in concert with
a view to bring pressure upon the employer to concede to their demands during
an industrial dispute.
The workmen must be employed in any industry. Mere cessation of work does
not come within the purview of strike unless it can be shown that such cessation
of work was a concerted action for the enforcement of an industrial demand.
The essential element of strike is cessation of work. If there is no cessation of
work there is no strike.
Mere absence from work is not enough but there must be concerted refusal of
work, to constitute a strike.
Case law:-
In this case the workers of a company wanted to celebrate “May Day”. They
requested the employer of company to declare that day a holiday. They were
also ready to compensate the loss of work by working on a Sunday. On the
comapany’s failure to declare “May Day” as a holiday the workers enbloc
applied for leave. It was held that there was no “Cessation of Work” or
concerted refusal to work and the action of the employees to apply for causal
leave enbloc did not amount to strike”.
KINDS OF STRIKE:-
1. GENERAL STRIKE
2. STAY-IN-STRIKE
3. GO SLOW
1. GENERAL STRIKE:-
A general Strike is one, where the workmen join together for common cause and
stay away from work, depriving the employer of their labour needed to run his
factory.
Token strike is also a kind of general strike. Token strike is for a day or a few
hours or for a short duration because its main object is to draw the attention of the
employer by demonstrating the solidarity and co-operation of the employees.
General strike is for a longer period. It is generally resorted to when employees
fail to achieve their object by other means including a token strike which generally
precedes a general strike.
1. STAY-IN-STRIKE
Where dismissed workmen were staying on premises and refused to leave them it
was held not to amount to stay in strike but an offence of criminal trespass.
2. GO SLOW
In a Go-Slow strike, the workmen do not stay away from work, they do come to
their work and work also, but with a slow speed in order to lower down the
production and thereby cause loss to the employer. Go-Slow strike is not a ‘strike’
within the meaning of the term in the Act, but is serious misconduct which is
insidious in its nature and cannot be countenanced.
In addition to these three forms of strike which are frequently resorted to by the
industrial workers, a few more may be cited although some of them are not strike
within the meaning of section 2(q).
In this case some workers in concert were absent themselves out of sympathy to
some cause wholly unrelated to their employment or even in regard to condition of
employment of other workers in service under other management, such absence
could not be held to be strike as the essential element of the intention to use it
against the management is absent.
In Hunger Strike a group of workmen resort to fasting on or near the place of work
or the residence of the employer with a view to coerce the employer to accept their
demands.
Certain employees who held key positions in the Mill resorted to hunger strike at
the residence of the Managing Director, with the result that even those workmen
who reported to their duties could not be given work. It was held that the concerted
action of the workmen who went on hunger strike amounted to strike within the
meaning of this sub-section
The employees in case of ‘work to rule’ strictly adhere to the rules while
performing their duties which ordinarily they do not observe. Thus strict
observance of rules results in slowing down the tempo of work, causes
inconvenience to the public and embarrassment to the employer.
INTRODUCTION
RETRENCHMENT:-
It connotes in its ordinary acceptation that the business itself is being continued,
but that a portion of the staff of labour force is discharged as surplusage.
It means the discharge of surplus labour or staff by the employer for any reason
whatsoever.
PROVISION OF CHAPTER VA
It lays down the requirements for a valid retrenchment. However, these conditions
apply in case of retrenchment of an employee who has been in continuous service
for not less than one year.
The section prescribes three conditions for a valid retrenchment, namely.
a. The workman should be given one month’s notice in writing indicating the
reasons of retrenchment. Retrenchment should be effected after the expiry of
the period of notice. If no such notice is given, the workman must be paid in
lieu of such notice wages for the period of notice.
b. The workman has been paid, at the time of retrenchment, compensation,
equivalent to fifteen days’ average pay for every completed year of
continuous service or any part thereof in excess of six months.
c. Notice in the prescribed manner is served on the appropriate Government or
such authority as may be specified by the appropriate Government by
notification in the official Gazette. Provisions relating to notice of
retrenchment are contained in Rule 76 of the Industrial Disputes (Central)
Rules 1957
Termination of service of a workman for any reason other than those expected in
section 2(oo) amounts to retrenchment. If pre-requisites for a valid retrenchment
have not been complied with, the termination of service would be void ab initio.
In this case the respondent was employed as a casual labourer in appellant project.
After completion of the project, he was relieved of his job, which was challenged
by him. The Industrial Tribunal held the termination bad for violation of section
25-F, Industrial Disputes Act, 1947. That was affirmed by the High Court. Hence
the present appeal to the Supreme court which was allowed.
The Supreme Court observed that the effect of section 2(oo) (bb) of the ,
Industrial Disputes Act, 1947 had been completely lost sight of the by the
Tribunal.
In this case the date of termination of service was written in the appointment order
itself. The question was whether a stipulation in the appointment order regarding
termination of employment amounts to termination of services within the meaning
of section 2(oo) of Act so as to attract the provisions of section 25-F(bb) for the
purposes of payment of compensation.
Justice Krishna Iyer. J. held that an employer terminates employment not merely
by passing an order as the service runs, he can do so even by writing a composite
order, on giving employment and the other ending or limiting it.
In this case the tribunal considered the evidence given by the employee that it is
usual practice that a conductor and driver in a bus will work only 15 days in a
month and according to the evidence of the employer they will work for 20 days
in a month and their duration of working hours in a day is 10 to 12 hours.
They are not paid any overtime wages. Although a bus crew will work only for 20
days they were paid wages for one month of the assumption that they had worked
for a whole month.
In the light of above finding the Industrial Tribunal rejected the contention of the
employer that the workman had not worked for 240 days in a calendar year
immediately preceding the date of his retrenchment.
It was held by the High Court that the finding of the Tribunal is justified in the
light of the provisions of section 25-F of the Act.
The Supreme Court held that gratuity is intended to help a workman after
retirement, whatever may be the cause of retirement, whatever may be the cause of
retirement and retrenchment compensation is expected to give some relief to tide
over the difficulties caused to sudden termination of employment.
The law as pointed out by the court does not prevent payment of both gratuity and
retrenchment compensation and the gratuity schemes for that purpose may provide
that either retrenchment compensation shall be payable in lieu of gratuity or
gratuity shall be payable in addition to the retrenchment compensation.
1. The workman must be a workman within the meaning of section 2(s) of the
Act.
2. The workman should be an Indian Citizen.
3. The workman should be employed in an establishment which is an industry
within the meaning of section 2(j) of the Act.
4. The workman should belong to a particular category of workmen in the
industrial establishment; and
5. There should be no agreement contrary to the principle of ‘last come first go;
between the employer and workman. Any provision in the standing orders to
the above effect shall be deemed to be agreement for the purposes of this
section.
For the application of section 25-G all the above 5 conditions must be
simultaneously complied with. If these conditions are fulfilled the principle of
“last come first go” shall be ordinarily adhered to by the employer.
The use of the word “ordinarily” connotes that the above procedure can be
departed from where circumstances especially applicable to the industry in
question so demand. But in case of any departure from the established principle of
retrenchment, the reasons therefor must be recorded by the employer.
Thus any departure from the above principle is possible in two cases, namely:-
It is noteworthy that the above principle has to be applied with respect to different
categories of workmen employed in an industrial establishment and retrenchment
is that management should start with the latest recruit and progressively retrench
employees higher up in the list of seniority. The management in matter of
retrenchment must act fairly.
Similarly, even a senior employee can be retrenched against the principle if there is
sufficient recorded evidence of his in efficiency or irregularity.
THE MANAGEMENT OF STATE BANK OF BIKANER AND JAIPUR V.
SANTOSH KUMAR AND ANOTHER.
In this case the respondent was employed as watchman for a fixed period from
September 20, 1982 to December 8, 1982 i.e for 80 days.
After the expiry of the specified term his services stood terminated.
On a reference the Industrial Tribunal ordered reinstatement with back wages. The
award, was challenged before High court. On the legality of the impugned award,
the High court interpreted the scope of Section 25-G of the industrial Dispute Act
held that the said section was subject to an agreement contrary to the principle of
“last come first go” embodied in that section and the agreement could be implied
also. In the present case the agreement was implied as the contract of employed
specified the date of its cessation i.e, 8th December 1982. Thus there has been an
agreement contrary to the said principle.
This section is based on the principle “when a workmen has been retrenched by
employer on the ground of surplus staff, such workman should first be given an
opportunity to join service whenever an occasion to employ another hand arises.
Only a retrenched workmen can claim the benefit under section 25-H. A dismissed,
discharged or a superannuated workman has no claim under this section.
Q.NO.12. EXPLAIN THE CIRCUMSTANCES UNDER WHICH AN
EMPLOYER IS LIABLE TO PAY COMPENSATION UNDER THE
EMPLOYEES COMPENSATION ACT, 1923.
INTRODUCTION
The object of the Act was to make provision for the payment of compensation by
certain class of employers to their employees for injury by accident.
The employer shall not be liable to pay compensation in the following cases:
a. If the injury did not result in total or partial disablement of the employee for
a period exceeding three days;
b. In respect of any injury not resulting in death or permanent total disablement
the employer can plead.
i. That the employee was at the time of accident under the influence of
drinks or drugs.
ii. That the employee willfully disobeyed an order expressly given or a
rule expressly framed for the purpose of securing safety of employees;
and
iii. That the employee having known that certain safety-guards or safety
devices are specifically provided for the purpose of securing the safety
of employee, willfully disregarded or removed the same.
The employer can succeed in his plea only if he can establish that the injury was
attributable to any one of the above factors.
The list of the occupational diseases is contained in Schedule III of the Act.
Schedule III is divided into 3 parts, A,B, and C.
Part A of Schedule III:- The employer shall be liable to pay compensation for an
injury resulting from an occupational disease mentioned in part A of the Schedule
III, if an employee employed in any employment specified in Part A of Schedule
III contracts any disease specified therein as an occupational disease peculiar to
that employment.
The contracting of the disease shall be deemed to be an injury by accident and
unless the contrary is proved the accident would be deemed to have arisen out of
and in the course of employment.
Where an employee contracts any disease specified in Part C of the Schedule III
the employer shall be liable.
If the above two conditions are fulfilled, the contracting of the disease shall be
deemed to be an injury by accident within the meaning of section 3 of the Act and
unless contrary is proved the accident shall be deemed to have arisen out of and in
the course of the employment.
Section 3 (5):- Nothing herein contained shall be deemed to confer any right to
compensation on a *[employee] in respect of any injury if he has instituted in a
Civil Court a suit for damages in respect of the injury against the employer or any
other person; and no suit for damages shall be maintainable by a *[employee] in
any Court of law in respect of any injury--
(a) if he has instituted a claim to compensation in respect of the injury before a
Commissioner; or
(b) if an agreement has been come to between the *[employee] and his employer
providing for the payment of compensation in respect of the injury in accordance
with the provisions of this Act.
The employer shall not be liable to pay compensation in the following cases:
c. If the injury did not result in total or partial disablement of the employee for
a period exceeding three days;
d. In respect of any injury not resulting in death or permanent total disablement
the employer can plead.
iv. That the employee was at the time of accident under the influence of
drinks or drugs.
v. That the employee willfully disobeyed an order expressly given or a
rule expressly framed for the purpose of securing safety of employees;
and
vi. That the employee having known that certain safety-guards or safety
devices are specifically provided for the purpose of securing the safety
of employee, willfully disregarded or removed the same.
The employer can succeed in his plea only if he can establish that the injury was
attributable to any one of the above factors.
a. The workman must have sustained personal injury. Personal injury does not
mean only physical but includes mental strain and disbalance also.
b. The personal injury must be caused by an accident.
c. The accident must have arisen out of and in the course of his employment.
d. The personal injury caused to the workman must have resulted either in total
or partial disablement of the workman for a period exceeding three days or it
must have resulted in death of the workman.
The employer shall not be liable for personal injury caused to workman by
accident to the following cases.
INTRODUCTION
SECTION 2 (6) Corporation ” means the Employees’ State Insurance Corporation
set up under this Act ;
CHAPTER II
CORPORATION, STANDING COMMITTEE AND MEDICAL BENEFIT
COUNCIL
Section 3. Establishment of Employees’ State Insurance Corporation. — (1)
With effect from such date as the Central Government may, by notification in the
Official Gazette, appoint in this behalf, there shall be established for the
administration of the scheme of Employees’ State Insur State Insurance
Corporation.
(2) The Corporation shall be a body corporate by the name of Employees’ State
Insurance Corporation having perpetual succession and a common seal and shall
by the said name sue and be sued.
Section 4. Constitution of Corporation. — The Corporation shall consist of the
following members, namely : —
(a) a Chairman to be appointed by the Central Government ;
(b) a Vice-Chairman to be appointed by the Central Government ;
(c) not more than five persons to be appointed by the Central Government ;
(d) one person each representing each of the States in which this Act is in force to
be appointed by the State Government concerned ;
(e) one person to be appointed by the Central Government to represent the Union
territories ;
(f) ten persons representing employers to be appointed by the Central Government
in consultation with such organisations of employers as may be recognised for the
purpose by the Central Government ;
(g) ten persons representing employees to be appointed by the Central
Government in consultation with such organisations of employees as may be
recognised for the purpose by the Central Government ;
(h) two persons representing the medical profession to be 3[appointed] by the
Central Government in consultation with such organisations of medical
practitioners as may be recognised for the purpose by the Central Govern-ment ;
(i) three members of Parliament of whom two shall be members of the House of
the People (Lok Sabha) and one shall be a member of the Council of States (Rajya
Sabha) elected respectively by the members of the House of the People and the
members of the Council of States ; and
(j) the Director-General of the Corporation, ex-officio.
Section 5:- Term of office of the members of the Corporation. — (1) Save as
otherwise expressly provided in this Act, the term of office of members of the
Corporation, other than the members referred to in clauses (a), (b), (c), (d) and (e)
of section 4 and the ex-officio member, shall be four years commencing from the
date on which their appointment or election is notified.
Provided that a member of the Corporation shall notwithstanding the expiry of the
said period of four years, continue to hold office until the appointment or election
of his successor is notified.
(2) The member of the Corporation referred to in clauses (a), (b), (c), (d) and (e) of
section 4 shall hold office during the pleasure of the Government appointing them.
Section 6: Eligibility for re-appointment or re-election. — An outgoing member
of the Corporation, the Standing Committee, or the Medical Benefit Council shall
be eligible for re-appointment or re-election as the case may be.
Section 7: Authentication of orders, decisions, etc. — All orders and decisions
of the Corporation shall be authenticated by the signature of the Director-General
of the Corporation and all other instruments issued by the Corporation shall be
authenticated by the signature of the Director-General or such other officer of the
Corporation as may be authorised by him.
INTRODUCTION
The need to protect the wages earned by the worker had been felt from the early
years of the 12th century, but it was as early as 1925 that a private bill called the
weekly payment bill’ was for the first time introduced in the Legislative Assembly.
INTRODUCTION
Section 7 of the Act provides for the permissible deductions by the employer
Section 7. Deductions which may be made from wages.- (1) Notwithstanding the
provisions of 11[the Railways Act, 1989 (24 of 1989)], the wages of an employed
person shall be paid to him without deduction of any kind except those authorised
by or under this Act.
Explanation I.- Every payment made by the employed person to the employer or
his agent shall, for the purposes of this Act, be deemed to be a deduction from
wages.
Explanation II.- Any loss of wages resulting from the imposition, for good and
sufficient cause, upon a person employed of any of the following penalties,
namely—
(i) the withholding of increment or promotion (including the stoppage of
increment at an efficiency bar);
(ii) (ii) the reduction to a lower post or time-scale or to a lower stage in a time-
scale; or (iii) suspension; shall not be deemed to be a deduction from wages
in any case where the rules framed by the employer for the imposition of
any such penalty are in conformity with the requirements, if any, which
may be specified in this behalf by the State Government by notification in
the Official Gazette.
(2) Deductions from the wages of an employed person shall be made only in
accordance with the provisions of this Act, and may be of the following kinds
only, namely-
(a) fines;
(b) deduction for absence from duty;
(c) deductions for damage to or loss of goods expressly entrusted to the employed
person or custody; or for loss of money for which he is required to account, where
such damage or loss is directly attributable to his neglect or default;
(d) deductions for house-accommodation supplied by the employer or by
Government or any housing board set up under any law for the time being in force
(whether the Government or the board is the employer or not) or any other
authority engaged in the business of subsidising house-accommodation which may
be specified in this behalf by the appropriate Government] by notification in the
Official Gazette;
(e) deductions for such amenities and services supplied by the employer as the
State Government 6[or any officer specified specified by it in this behalf] may, by
general or special order authorise.
Explanation.- The word “services” in 7[this clause] does not include the supply of
tools and raw materials required for the purposes of employment;
(f) deductions for recovery of advances of whatever nature (including advances for
travelling allowance or conveyance allowance), and the interest due in respect
thereof, or for adjustment of over-payments of wages;
(ff) deductions for recovery of loans made from any fund constituted for the
welfare of labour in accordance with the rules approved by the State Government,
and the interest due in respect thereof;
(fff) deductions for recovery of loans granted for house-building or other purposes
approved by the State Government and the interest due in respect thereof;
(g) deductions of income-tax payable by the employed person; (h) deductions
required to be made by order of a Court or other authority competent to make such
order;
(i) deductions for subscriptions to, and for payment of advances from any
provident fund to which the Provident Funds Act, 1925 (19 of 1925), applies or
any recognised provident fund as defined 1[in clause (38) of section 2 of the
Income-tax Act, 1961 (43 of 1961) or any provident fund approved in this behalf
by the appropriate Government, during the continuance of such approval;
(j) deductions for payments to co-operative societies approved by 4[the appropriate
Government] 5[or any officer specified by it in this behalf] or to a scheme of
insurance maintained by the Indian Post Office;
(k) deductions, made with the written authorisation of the person employed for
payment of any premium on his life insurance policy to the Life Insurance
Corporation of India established under the Life Insurance Corporation Act, 1956
(31 of 1956), or for the purchase of securities of the Government of India or of any
State Government or for being deposited in any Post Office Savings Bank in
furtherance of any savings scheme of any such Government;]
(kk) deductions made, with the written authorisation of the employed person, for
the payment of his contribution to any fund constituted by the employer or a trade
union registered under the Trade Unions Act, 1926 (16 of 1926) for the welfare of
the employed persons or the members of their families, or both, and approved by
10[the appropriate Government], or any officer specified by it in this behalf, during
the continuance of such approval;
(kkk) deductions made, with the written authorisation of the employed person, for
payment of the fees payable by him for the membership of any trade union
registered under the Trade Unions Act, 1926 (16 of 1926);
(l) deductions for payment of insurance premia on Fidelity Guarantee Bonds;
(m) deductions for recovery of losses sustained by a railway administration on
account of acceptance by the employed person of counterfeit or base coins or
mutilated or forged currency notes;
(n) deductions for recovery of losses sustained by a railway administration on
account of the failure of the employed person to invoice, to bill, to collect or to
account for the appropriate charges due to that administration, whether in respect
of fares, freight, demurrage, wharfage and cranage or in respect of sale of food in
catering establishments or in respect of commodities in grain shops or otherwise;
(o) deductions for recovery of losses sustained by a railway administration on
account of any rebates or refunds incorrectly granted by the employed person
where such loss is directly attributable to his neglect or default.
(p) deductions, made with the written authorisation of the employed person, for
contribution to the Prime Minister's National Relief Fund or to such other Fund as
the Central Government may, by notification in the Official Gazette, specify.
(q) deductions for contributions to any insurance scheme framed by the Central
Government for the benefit of its employees.]
(3) Notwithstanding anything contained in this Act, the total amount of deductions
which may be made under sub-section (2) in any wage-period from the wages of
any employed person shall not exceed- (i) in cases where such deductions are
wholly or partly made for payments to co-operative societies under clause (j) of
sub-section (2), seventy-five per cent of such wages, and (ii) in any other case, fifty
per cent of such wages: Provided that where the total deductions authorised under
sub-section (2) exceed seventy-five per cent or, as the case may be, fifty per cent of
the wages, the excess may be recovered in such manner as may be prescribed.
(4) Nothing contained in this section shall be construed as precluding the employer
from recovering from the wages of the employed person or otherwise any amount
payable by such person under any law for the time being in force other than the
Railways Act, 1989 (24 of 1989)].
(1) Every factory shall be kept clean and free from effluvia arising from any drain,
privy or other nuisance, and in particular-
(a) accumulation of dirt and refuse shall be removed daily by sweeping or by any
other effective method from the floors and benches of workrooms and from
staircases and passages, and disposed of in a suitable manner;
(b) the floor of every workroom shall be cleaned at least once in every week by
washing, using disinfectant, where necessary, or by some other effective method;
(c) where a floor is liable to become wet in the course of any manufacturing
process to such extent as is capable of being drained, effective means of drainage
shall be provided and maintained;
(d) all inside walls and partitions, all ceilings or tops of rooms and all walls, sides
and tops of passages and staircases shall-
(i) where they are painted otherwise than with washable water-pain or varnished,
be repainted or revarnished at least once in every period of five years;
(ia) where they are painted with washable water paint, be repainted with at least
one coat of such paint at least once in every period of three years and washed at
least once in every period of six months;
(ii) where they are painted or varnished or where they have smooth impervious
surfaces, be cleaned at least once in every period of fourteen months by such
method as may be prescribed;
(iii) in any other case, be kept whitewashed or colourwashed, and the
whitewashing or colour washing shall be carried out at least once in every period
of fourteen months;
(dd) all doors and window frames and other wooden or metallic framework and
shutters shall be kept painted or varnished and the painting or varnishing shall be
carried out at least once in every period of five years
(e) the dates on which the processes required by clause (d) are carried out shall be
entered in the prescribed register.
(2) If, in view of the nature of the operations carried on in a factory or class or
description of factories or any part of a factory or class or description of factories,
it is not possible for the occupier to comply with all or any of the provisions of
subsection
(1), the State Government may be order exempt such factory or class or description
of factories [or part] from any of the provisions of that sub-section and specify
alternative methods for keeping the factory in a clean state.
Section 17 Lighting. (1) In every part of a factory where workers are working or
passing there shall be provided and maintained sufficient and suitable lighting,
natural or artificial, or both.
(2) In every factory all glazed windows and skylights used for the lighting of the
workrooms shall be kept clean on both the inner an outer surfaces and, so far as
compliance with the provisions of any rules made under sub-section (3) of section
13 will allow, free from obstruction.
(3) In every factory effective provision shall, so far as is practicable, be made for
the prevention of-
(a) glare, either directly from a source of light or by reflection from a smooth or
polished surface;
(b) the formation of shadows to such an extent as to cause eye-strain or the risk of
accident to any worker.
(4) The State Government may prescribe standards of sufficient and suitable
lighting for factories or for any class of description of factories or for any
manufacturing process.
Section 18. Drinking water. (1) In every factory effective arrangements shall be
made to provide and maintain at suitable points conveniently situated for all
workers employed therein a sufficient supply of wholesome drinking water.
(2) All such points shall be legibly marked "drinking water" in a language
understood by majority of the workers employed in the 19.
Latrines and urinals.
Section 20. Spittoons. (1) In every factory there shall be provided a sufficient
number of spittoons in convenient places and they shall be maintained in a clean
and hygienic condition.
(2) The State Government may make rules prescribing the type and the number of
spittoons to be provided and their location in any factory and provide for such
further matters relating to their maintenance in a clean and hygienic condition.
(3) No person shall spit within the premises of a factory except in the spittoons
provided for the purposes and a notice containing this provision and the penalty for
its violation shall be prominently displayed at suitable places in the premises.
(4) Whoever spits in contravention of sub-section (3) shall be
Section 24. Striking gear and devices for cutting off power. (1) In every factory-
(a) suitable striking gear or other efficient mechanical appliance shall be provided
and maintained and used to move driving belts to and from fast and loose pulleys
which form part of the transmission machinery, and such gear or appliances shall
be so constructed, placed and maintained as to prevent the belt from creeping back
on to the fast pulley;
(b) driving belts when not in use shall not be allowed to rest or ride upon shafting
in motion.
(2) In every factory suitable devices for cutting off power in emergencies from
running machinery shall be provided and maintained in every work-room:
Provided that in respect of factories in operation before the commencement of this
Act, the provisions of this sub-section shall apply only to work-rooms in which
electricity is used as power.
(3) When a device, which can inadvertently shift from "off" to "on" position, is
provided in a factory to cut off power, arrangements shall be provided for locking
the device in safe position to prevent accidental starting of the transmission
machinery or other machines to which the device is fitted.
Section 26:- Casing of new machinery. (1) In all machinery driven by power
and installed in any factory after the commencement of this Act,-
(a) every set screw, bolt or key on any revolving shaft, spindle, wheel or pinion
shall be so sunk, encased or otherwise effectively guarded as to prevent danger;
(b) all spur, worm and other toothed or friction gearing which does not require
frequent adjustment while in motion shall be completely encased, unless it is so
situated as to be as safe as it would be if it were completely encased.
(2) Whoever sells or lets on hire or, as agent of a seller or hirer, causes or procures
to be sold or let on hire, for use in a factory any machinery driven by power which
does not comply with the provisions of sub-section (1) or any rules made under
sub-section, shall be punishable with imprisonment for a term which may extend to
three months or with fine which may extend to five hundred rupees or with both.
(3) The State Government may make rules specifying further safeguards to be
provided in respect of any other dangerous part of any particular machine or class
or description of machines.
Section 33:- Pits, sumps, openings in floors, etc. every fixed vessel, sump, tank,
pit or opening in the ground or in a floor which, by reason of its depth, situation,
construction or contents, is or may be a source of danger, shall be either securely
covered or securely fenced.
(2) The State Government may, by order in writing, exempt, subject to such
conditions as may be prescribed, any factory or class or description of factories in
respect of any vessel, sump, tank, pit or opening from compliance with the
provisions of this section.
Section 34: Excessive weights. (1) No person shall be employed in any factory to
lift, carry or move any load so heavy as to be likely to cause him injury.
(2) The State Government may make rules prescribing the maximum weights
which may be lifted, carried or moved by adult men, adult women, adolescents and
children employed in factories or in any class or description of factories or in
carrying on any specified process.
Section 36. Precautions against dangerous fumes, gases, etc. (1) No person shall
be required or allowed to enter any chamber, tank, vat, pit, pipe, flue or other
confined space in any factory in which any gas, fume, vapour or dust is likely to be
present to such an extent as to involve risk to persons being overcome thereby,
unless it is provided with a manhole of adequate size or other effective means of
egress.
(2) No person shall be required or allowed to enter any confined space as is
referred to in sub-section (1), until all practicable measures have been taken to
remove any gas, fume, vapour or dust, which may be present so as to bring its level
within the permissible limits and to prevent any ingress of such gas, fume, vapour
or dust and unless-
(a) a certificate in writing has been given by a competent person, based on a test
carried out by himself that the space is reasonably free from dangerous gas, fume,
vapour or dust; or
(b) such person is wearing suitable breathing apparatus and a belt securely attached
to a rope the free end of which is held by a person outside the confined space."]
Section 37. Explosive or inflammable dust, gas, etc. (1) Where in any factory
any manufacturing process produces dust, gas, fume or vapour of such character
and to such extent as to be likely to explode on ignition, all practicable measures
shall be taken to prevent any such explosion by--
(a) effective enclosure of the plant or machinery used in the process;
(b) removal or prevention of the accumulation of such dust, gas, fume or vapour;
(c) exclusion or effective enclosure of all possible sources of ignition.
(2) Where in any factory the plant or machinery used in a process such as is
referred to in sub-section (1) is not so constructed as to withstand the probable
pressure which such an explosion as aforesaid would produce, all practicable
measures shall be taken to restrict the spread and effects of the explosion by the
provision in the plant or machinery of chokes, baffles, vents or other effective
appliances.
(3) Where any part of the plant or machinery in a factory contains any explosive or
inflammable gas or vapour under pressure greater than atmospheric pressure, that
part shall not be opened except in accordance with the following provisions,
namely:--
(a) before the fastening of any joint of any pipe connected with the part or the
fastening of the cover of any opening into the part is the cover of any opening into
the part is loosened, any flow of the gas or vapour into the part of any such pipe
shall be stopped by a stop-valve or other means;
(b) before any such fastening as aforesaid is removed, all practicable measures
shall be taken to reduce the pressure of the gas or vapour in the part of pipe to
atmospheric pressure;
(c) where any such fastening as aforesaid has been loosened or removed effective
measures shall be taken to prevent any explosive or inflammable gas or vapour
from entering the part or pipe until the fastening has been secured, or, as the case
may be, securely replaced:
Provided that the provisions of this sub-section shall not apply in the case of plant
or machinery installed in the open air.
(4) No plant, tank or vessel which contains or has contained any explosive or
inflammable substance shall be subjected in any factory to any welding, brazing,
soldering or cutting operation which involves the application of heat unless
adequate measures have first been taken to remove such substance and any fumes
arising therefrom or to render such substance and fumes non-explosive or non-
inflammable, and no such substance shall be allowed to enter such plant, tank or
vessel after any such operation until the metal has cooled sufficiently to prevent
any risk of igniting the substance.
(5) The State Government may by rules exempt, subject to such conditions as may
be prescribed, any factory or class or description of factories from compliance with
all or any of the provisions of this section.
Section 38. Precautions in case of fire. (1) In every factory, all practicable
measures shall be taken to prevent outbreak of fire and its spread, both internally
and externally, and to provide and maintain--
(a) safe means of escape for all persons in the event of a fire, and
(b) the necessary equipment and facilities for extinguishing fire.
(2) Effective measures shall be taken to ensure that in every factory all the workers
are familiar with the means of escape in case of fire and have been adequately
trained in the routine to be followed in such cases.
(3) The State Government may make rules, in respect of any factory or class or
description of factories, requiring the measures to be adopted to give effect to the
provisions of sub-sections (1) and (2).
(4) Notwithstanding anything contained in clause (a) of subsection (1) or sub-
section (2), if the Chief Inspector, having regard to the nature of the work carried
on in any factory, the construction of such factory, special risk to life or safety, or
any other circumstances, is of the opinion that the measures provided in the
factory, whether as prescribed or not, for the purposes of clause (a) of sub-section
(1) or sub-section (2), are inadequate, he may, by order in writing, require that such
additional measures as he may consider reasonable and necessary, be provided in
the factory before such date as it specified in the order.]
Section 40. Safety of buildings and machinery. (1) If it appears to the Inspector
that any building or part of a building or any part of the ways, machinery or plant
in a factory is in such a condition that it is dangerous to human life or safety, he
may serve on the occupier or manager or both] of the factory an order in writing
specifying the measures which in his opinion should be adopted, and requiring
them to be carried out before a specified date.
(2) If it appears to the Inspector that the use of any building or part of a building or
any part of the ways, machinery or plant in a factory involves imminent danger to
human life or safety, he may serve on the occupier or manager or both] of the
factory an order in writing prohibiting its use until it has been properly repaired or
altered.
Introduction:
Chapter VIII of the Act states about annual leave with wages
Section 79:- Annual leave with wages.
(1) Every worker who has worked for a period of 240 days or more in a factory
during a calendar year shall be allowed during the subsequent calendar year, leave
with wages for a number of days calculated at the rate of--
(i) if an adult, one day for every twenty days of work performed by him during the
previous calendar year;
(ii) if a child, one day for every fifteen days of work performed by him during the
previous calendar year. Explanation 1.--For the purpose of this sub-section-
(a) any days of lay off, by agreement or contract or as permissible under the
standing orders;
(b) in the case of a female worker, maternity leave for any number of days not
exceeding twelve weeks; and
(c) the leave earned in the year prior to that in which the leave is enjoyed; shall be
deemed to be days on which the worker has worked in a factory for the purpose of
computation of the period of 240 days or more, but he shall not earn leave for these
days.
Explanation 2.--The leave admissible under this sub-section shall be exclusive of
all holidays whether occurring during or at either end of the period of leave.
(2) A worker whose service commences otherwise than on the first day of January
shall be entitled to leave with wages at the rate laid down in clause (i) or, as the
case may be, clause (ii) of sub-section (1) if he has worked for two-thirds of the
total number of days in the remainder of the calendar year.
(3) If a worker is discharged or dismissed from service or quits his employment or
is superannuated or dies while in service, during the course of the calendar year, he
or his heir or nominee, as the case may be, shall be entitled to wages in lieu of the
quantum of leave to which he was entitled immediately before his discharge,
dismissal, quitting of employment, superannuation or death calculated at the rates
specified in sub-section (1), even if he had not worked for the entire period
specified in sub-section (1) or sub-section (2) making him eligible to avail of such
leave, and such payment shall be made--
(i) where the worker is discharged or dismissed or quits employment, before the
expiry of the second working day from the date of such discharge, dismissal or
quitting; and
(ii) where the worker is superannuated or dies while in service, before the expiry of
two months from the date of such superannuation or death.
(4) In calculating leave under this section, fraction of leave of half a day or more
shall be treated as one full day's leave, and fraction of less than half a day shall be
omitted.
(5) If a worker does not in any one calendar year take the whole of the leave
allowed to him under sub-section (1) or sub-section (2), as the case may be, any
leave not taken by him shall be added to the leave to be allowed to him in the
succeeding calendar year:
Provided that the total number of days of leave that may be carried forward to a
succeeding year shall not exceed thirty in the case of an adult or forty in the case of
a child:
Provided further that a worker, who has applied for leave with wages but has not
been given such leave in accordance with any scheme laid down in sub-sections (8)
and (9) or in contravention of sub-section (10) shall be entitled to carry forward the
leave refused without any limit.
(6) A worker may at any time apply in writing to the manager of a factory not less
than fifteen days before the date on which he wishes his leave to begin, to take all
the leave or any portion thereof allowable to him during the calendar year:
Provided that the application shall be made not less than thirty days before the date
on which the worker wishes his leave to begin, if he is employed in a public utility
service as defined in clause (n) of section 2 of the Industrial Disputes Act, 1947:
(14 of 1947.
Provided further that the number of times in which leave may be taken during any
year shall not exceed three.
(7) If a worker wants to avail himself of the leave with wages due to him to cover a
period of illness, he shall be granted such leave even if the application for leave is
not made within the time specified in sub-section (6); and in such a case wages as
admissible under section 81 shall be paid not later than fifteen days, or in the
case of a public utility service not later than thirty days from the date of the
application for leave.
(8) For the purpose of ensuring the continuity of work, the occupier or manager of
the factory, in agreement with the Works Committee of the factory constituted
under section 3 of the Industrial Disputes Act, 1947 (14 of 1947), or a similar
Committee constituted under any other Act or if there is no such Works Committee
or a similar Committee in the factory, in agreement with the representatives of the
workers therein chosen in the prescribed manner, may lodge with the Chief
Inspector a scheme in writing whereby the grant of leave allowable under this
section may be regulated.
(9) A scheme lodged under sub-section (8) shall be displayed at some conspicuous
and convenient places in the factory and shall be in force for a period of twelve
months from the date on which it comes into force, and may thereafter be renewed
with or without modification for a further period of twelve months at a time, by the
manager in agreement with the Works Committee or a similar Committee, or as the
case may be, in agreement with the representatives of the workers as specified in
sub-section (8), and a notice of renewal shall be sent to the Chief Inspector before
it is renewed.
(10) An application for leave which does not contravene the provisions of sub-
section (6) shall not be refused, unless refusal is in accordance with the scheme for
the time being in operation under sub-sections (8) and (9).
(11) If the employment of a worker who is entitled to leave under sub-section (1)
or sub-section (2), as the case may be, is terminated by the occupier before he has
taken the entire leave to which he is entitled, or if having applied or and having
not been granted such leave, the worker quits his employment before he has taken
the leave, the occupier of the factory shall pay him the amount payable under
section 80 in respect of the leave not taken, and such payment shall be made,
where the employment of the worker is terminated by the occupier, before the
expiry of the second working day after such termination, and where a worker who
quits his employment, on or before the next pay day.
(12) The unavailed leave of a worker shall not be taken into consideration in
computing the period of any notice required to be given before discharge or
dismissal.
SHORT NOTES.
Section 23. Change of name :- Any registered Trade Union may, with the consent
of not less than two-thirds of the total number of its members and subject to the
provisions of section 25, change its name.
(2) If the proposed name is identical with that by which any other existing Trade
Union has been registered or, in the opinion of the Registrar, so nearly resembles
such name as to be likely to deceive the public or the members of either Trade
Union, the Registrar shall refuse to register the change of name.
(3) Save as provided in sub-section (2), the Registrar shall, if he is satisfied that
the provisions of this Act in respect of change of name have been complied with,
register the change of name in the register referred to in section 8, and the change
of name shall have effect from the date of such registration.
(4) The Registrar of the State in which the head office of the amalgamated Trade
Union is situated shall, if he is satisfied that the provisions of this Act in respect of
amalgamation have been complied with and that the Trade Union formed thereby
is entitled to registration under section 6, register the Trade Union in the manner
provided in section 8, and the amalgamation shall have effect from the date of such
registration.
(1) The change in the name of a registered Trade Union shall not a affect any rights
or obligations of the Trade Union or render 63 defective any legal proceeding by or
against the Trade Union, and any legal proceeding which might have been
continued or commenced by or against it by its former name may be continued or
commenced by or against it by its new name.
(2) An amalgamation of two or more registered Trade Unions shall not prejudice
any right of any of such Trade Unions or any right of a creditor of any of them.
The respondent authority refused to register the petitioner as trade union on the
ground that the applicants were not workmen within the meaning of Section 2(s)
of the Industrial Dispute Act, 1947.
The high court observed that as per section 2(g) of the Trade Union Act 1926 the
word ‘workman’ included all persons employed in a trade or industry. It was not a
restricted definition as in any other labour law enanctment.
The emphasis was on the purpose for which the union was formed and not so much
on the persons who constituted it.
3. WORKS COMMITTEE
Works Committee:-
The provision regarding the works committee was for the first time made in the
original Act of 1947 and since then no amendment has been made to it.
The moment an order for the establishment of an industry is made under Sub
Section (1) of section 3 of the Act the employer is bound to establish a work
committee.
The works committee’s function have been quite successful in certain because
Firstly it brought co-operation and cordial relations between the workmen and the
employer.
Thirdly, the management consulted the works committee before bringing and
change in respect of welfare measures.
No doubt the work’s committee have been quite successful in their functions but
there also arose several formidable difficulties which hampered the smooth
functioning of these committee. Some of them are,
5. LAY-OFF
LAY-OFF:-SECTION 2 (KKK)-
7. LOCK-OUT
Lock-out has been described by the Supreme Court as the antithesis of Strike.
In case of lock-out the workmen are asked by the employer to keep away from
work, and, therefore, they are not under any obligation to present themselves for
work.
9. ESI COURTS
SECTION 74: Constitution of Employees’ Insurance Court. (1) The State
Government shall, by notification in the Official Gazette, constitute an Employees’
Insurance Court for such local area as may be specified in the notification.
(2) The Court shall consist of such number of judges as the 1[State] Government
may think fit.
(3) Any person who is or has been a judicial officer or is a legal practitioner of five
years’ standing shall be qualified to be a Judge of the Employees’ Insurance Court.
(4) The State Government may appoint the same Court for two or more local areas
or two or more Courts for the same local area.
(5) Where more than one Court has been appointed for the same local area, the
State Government may by general or special order regulate the distribution of
business between them.
SECTION 75. Matters to be decided by the Employees’ Insurance Court. —
(1) If any question or dispute arises as to —
(a) whether any person is an employee within the meaning of this Act or whether
he is liable to pay the employee’s contribution, or
(b) the rate of wages or average daily wages of an employee for the purposes of
this Act, or
(c) the rate of contribution payable by a principal employer in respect of any
employee, or
(d) the person who is or was the principal employer in respect of any employee, or
(e) the right of any person to any benefit and as to the amount and duration thereof,
or
(ee) any direction issued by the Corporation under section 55-A on a review of any
payment of dependants’ benefits, or]
(g) any other matter which is in dispute between a principal employer and the
Corporation, or between a principal employer and an immediate employer, or
between a person and the Corporation or between an employee and a principal or
immediate employer, in respect of any contribution or benefit or other dues
payable or recoverable under this Act, 3[or any other matter required to be or
which may be decided by the Employees’ Insurance Court under this Act],
such question or dispute 4[subject to the provisions of sub-section (2A)] shall be
decided by the Employees’ Insurance Court in accordance with the provisions of
this Act.
(2) Subject to the provisions of sub-section (2A), the following claims] shall be
decided by the Employees’ Insurance Court, namely : —
(a) claim for the recovery of contribution from the principal employer ;
(b) claim by a principal employer to recover contributions from any immediate
employer ;
(d) claim against a principal employer under section 68 ;
(e) claim under section 70 for the recovery of the value or amount of the benefits
received by a person when he is not lawfully entitled thereto ; and
(f) If any claim for the recovery of any benefit admissible under this Act.
(2A) If in any proceedings before the Employees’ Insurance Court a disablement
question arises and the decision of a medical board or a medical appeal tribunal has
not been obtained on the same and the decision of such question is necessary for
the determination of the claim or question before the Employees’ Insurance Court,
that Court shall direct the Corporation to have the question decided by this Act and
shall thereafter proceed with the determination of the claim or question before it in
accordance with the decision of the medical board or the medical Insurance Court
under sub-section (2) of section 54-A in which case the Employees’ Insurance
Court may itself determine all the issues arising before it.
(2-B) No matter which is in dispute between a principal employer and the
Corporation in respect of any contribution or any other dues shall be raised by the
principal employer in the Employees’ Insurance Court unless he has deposited with
the Court fifty per cent of the amount due from him as claimed by the Corporation
Provided that the Court may, for reasons to be recorded in writing, waive or reduce
the amount to be deposited under this sub-section.
(3) No civil Court shall have jurisdiction to decide or deal with any question or
dispute as aforesaid or to adjudicate on any liability which by or under this Act is
to be decided by a medical board, or by a medical appeal tribunal or by the
Employees’ Insurance Court.
PROBLEMS
1. Majority of the workmen applied for leave, the employer rejected the leave
& treated the absence of the workmen as illegal strike. Decide.
Of his duty or incidental thereto it has resulted into an accident. It is necessary that
the workman must be actually working at the time of the injury or the accident.
Therefore, the three factor s, that there must be injury, which must be caused in an
accident, it must be caused in the course of and out of the
employment must be established; Meaning of the expression ―arising out of
employment ― means that there must be casual relationship between the
accident and the employment. If the accident has occurred on account of the risk
which is an incident of employment, it has to be held that the accident has arisen
out of the employment.
In this case where the bomb was kept in the premises of the establishment & where
the workmen was injured by the blast in the establishment is being protected under
this act under sec 3 for liability of the employer . The workman is entitled for
compensation as under the provision of the Employees Compensation Act.
The emphasis really is to exclude those persons who are performing mainly
managerial work and are employed in supervisory capacity i.e. evaluating the work
of their subordinates. Further, a supervisor earning less than 6,500/- may also raise
an industrial dispute for an increment in wages which may eventually exclude him
from the definition of workman.
In this case ‗A‘ being employed as a mason in the company who is drawing wages
up to Rs2500 per month & whose duties involved supervisory work of about 100
workmen & with the deciding authority is a workmen under the preview of the
Industrial Disputes Act 1947 section 2 (s).
The accident must have arisen out of & in the course of employment.
Arising out of employment does not mean that personal injury must have resulted
from mere nature of employment; also it is not limited to the cases where the
personal injury is preferable to the duties which the employee has to discharge.
The word ‗arising out of employment‘ means that during the course of
employment, injury has resulted from some risk incidental to the duties of the
service which unless engaged in the duty owing to the master it is reasonable to
believe the employee would not have otherwise suffered. There must be casual
relation b/w the accident & employment. If the accident had occurred on a/c of a
risk which is an incident of the employment, the claim of compensation must
succeed unless of course the employee has exposed himself to an added danger
from his own side
In Savithri Devi V/S Bharathi Filling Station & others, the appellant‘s son
worked as a driver with the respondent, the owner of the tanker & he died while on
duty. Appellant filed petition for compensation but was denied by the respondent
on the ground that there was no connection b/w the work death of the decease. The
commissioner dismissed the application for compensation .The HC held that the
commissioner was wrongfully in concluding that there is no connection b/w the
work & death of the deceased & held the employer liable for compensation .
Hence here in this case the driver ‘A’ of the lorry was an employee of the
employer ‗B‘, & the accident occurred when ‗A‘ was on duty to deliver the
material hence claim can be made by the widow of ‗A‘ & the employer is liable to
pay compensation .
8.An employer dismissed the services of the workmen for misconduct; the
dismissed workmen raised an Industrial Dispute under ID Act 1947. Whether
the Industrial Dispute is an Industrial Dispute decide.
In this case the dispute is not an Industrial Dispute but an individual dispute
according to sec 2-A of the act.
Industrial dispute is a dispute or difference b/w the employer & the employee over
any terms of work or conditions of work, also for a dispute to come under the
definition of sec 2(k) of the IDAct 1947 the dispute should have been supported by
the union, hence in this case the dispute cannot be considered as an Industrial
dispute under the act.
Sec 2-A of the act defines an individual dispute as according to the act, it means a
difference or a dispute b/w the employer & the employee, effecting a single
employee or a workmen.
Sec 2 (k) of Industrial Disputes Act 1947 defines Industrial disputes, it means ad
dispute or a difference b/w
a. Employers & employers.
b. Employees & employees.
Workmen & workmen & such difference should be connected with employment or
non-employment, terms of employment conditions of labour of any person & the
dispute may be further in relation to any workmen or workmen or any other person
in whom they are interested as a body.
Hence in this case the difference or dispute was only affecting one employee & not
a group of employees or workmen.
Hence in this case the employer is not liable for compensating to the employee
who has met a fatal end under the influence of intoxication.
10. ‘X’ a driver in KSRTC was terminated on account of his eyesight
problem. He claimed retrenchment compensation. Is he entitled to it?
In this case ‘X’ the driver who was terminated on account of eyesight problem
does not amount to retrenchment as retrenchment generally means, just means
termination of excess labour & cutting down of the employees in an Industry. It
also means the discharge of surplus labour or staff by the employer for any reason
whatsoever, otherwise than by way of punishment inflected as a measure of
disciplinary action.
Hence ‘X’ cannot claim compensation for retrenchment .
SEC 2(OO) OF THE Act defines a retrenchment, it means termination of the
services by the employer for any reason whatsoever otherwise other than as a
punishment inflicted by way of disciplinary action.
The following are not termed to be retrenchment.
✓ Voluntary retirement of a workman.
✓ Retirement of a workman after reaching the age of superannuation.
✓ Termination of service of a workmen as a result of the non - renewal of a
contract of employment on its expiry. Termination of service of a workman
on grounds of continued ill health.