II SEMESTER 3 YEAR LL.

B
LABOUR LAW-1
MODEL ANSWER 2020

Q.NO.1. WHAT IS TRADE UNIONISM? EXPLAIN THE GROWTH OF

TRADE UNIONISM.

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.

A Trade union in common parlance, means an association of workers in a

particular craft or industry. In legal sense, it means an association formed primarily
for the purpose of regulating the relations between workmen and employers or
between workmen and workmen or between employers and employers.

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 GROWTH OF TRADE UNIONISM.

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.

Very little account is available about its mode of working.

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.

The industrial unrest and economic discontent led to a number of strikes by

worker, guided and controlled by their Action committee consisting of
representatives of workers themselves.

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 establishment of International Labour Organisation has also influenced the

growth to the trade union movement in our country.

After the independence democratic sprit is gradually developing among the

Indian citizens & the workmen in industry are not an exception to it. It was in the
year 1920 that the High Court of Madras in a suit filed against the officials of
Madras Textile Labour Union by Binny & Co. Granted an injection restraining the
union officials to induce certain workers to break their contracts of employment by
refusing to return to work. The leaders of the trade union found themselves liable
for prosecution & imprisonment even for bona fide trade union was necessary. Mr.
N.M Joshi the then general Secretary successfully moved the resolution in the
central legislative assembly seeking some measures by the govt of protection of
Trade Union .The employers were so much opposed to any such legislation
measure being adopted that the passing of the Indian Trade Union Act could only
be possible in 1926. But this Act was only enforced from 1st of June 1927.
The contribution of the capital & the labour in any industry is equally important.
Therefore, the property of an industry depends upon the co-operation of its two
components the Capital & the Labour are inevitable so the object of any industrial
relation is to ensure smooth relations between the two & to strive for settlement of
any dispute by resorting to negotiation & conciliation.

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.

Q.NO. 2. EXPLAIN THE PROCEDURE TO BE FOLLOWED TO

REGISTER A TRADE UNION UNDER THE TRADE UNION ACT, 1926

INTRODUCTION

The Trade Union Act 1926 provides detailed provisions for formation, procedure,
registration and immunities available to the union and its leaders.

Section 3 to Section 9 explains the Procedure for Registration of a Trade union.

REGISTRATION OF TRADE UNION.

Section 3:- Appointment of Registrars.

SECTION 4:- MODE OF REGISTRATION.

A Trade Union may be a registered, unregistered or a recognized Trade Union.

There is basic distinction between these different Trade Union.
The members of a recognized and registered Trade Union enjoy such benefits as
the members of an unregistered Trade Union do not.

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.

SECTION 5:- APPLICATION OF REGISTRATION.

1. An application should be sent to the Registrar in which seven or more

members of such union must subscribe their names. At least seven members
must subscribe names to the rules of the Trade Union.
2. The application in form ‘A’ should be accompanied with a copy of rules of
the Trade Union and a statement of the following particulars:-
a. The names, occupations and addresses of the members making the
application;
 aa. in the case of a Trade union of workmen, the names occupations and
addresses of the place of work of the members of the Trade union making the
application.

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.

SECTION 6:- PROVISION TO BE CONTAINED IN THE RULES OF A

TRADE UNION.

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:-

1. The executive of the Trade Union is constituted in accordance with the

provisions of this Act; and
2. The rules of Trade Union provide for the following matters, namely:
a. The name of the Trade Unions;
b. The whole of the objects for which the Trade union has been established;
c. The whole of the purposes for which the general funds of the Trade union
shall be applicable, all of which purposes shall be purposes to which such
funds are lawfully applicable under this Act;
d. The maintenance of a list of the members of the Trade union and adequate
facilities for the inspection thereof by the office bearers and members of the
Trade union.
e. The admission of ordinary members who shall be persons actually engaged
or employed in an industry with which the Trade union is connected and
also the admission of the number of honorary or temporary members as
 office bearers required under section 22 to form the executive of the Trade
Union.

ee. the payment of a minimum subscription by members of the Trade Union

which shall not be less than-

i. One rupee per annum for rural workers;

ii. Three rupees per annum for workers in other unorganized sectors, and
iii. Twelve rupees per annum for workers in any other case.

f. The conditions under which any member shall be entitled to any benefit
assured by the rules and under which any fine or forfeiture may be imposed
on the members;
g. The manner in which the rules shall be amended, varied or rescinded;
h. The manner in which the members of the executive and the other office
bearers of the Trade Union shall be elected and 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.

M.T.CHANDRASENAN V. SUKUMARAN (AIR 1974 SC 1789)

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.

At the same point if subscription should not be refused to amount to denial of

membership.

BOKAJAN CEMENT CORPORATION EMPLOYEE’S UNION V.

CEMENT CORPORATION OF INDIA LTD. (2004) I LLJ 197 (SC)
 That an employee will not automatically cease to be a member of Trade
Union or termination of his employment because there is no such provision in
Trade Union Act or in the constitution of the union.

B.S.V HANUMANTHA RAO AND ANOTHER V. DEPUTY REGISTRAR

OF TRADE UNION AND DEPUTY COMMISSION OF LABOUR &
OTHERS (1988)I LLJ 83 (AP)

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.

These amendments were registered by the registrar.

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.

It is procedure amounts to constituting a person a judge in his own cause.

SECTION 7:- POWER TO CALL FOR FURTHER PARTICULARS AND

TO REQUIRE ALTERATION OF NAME

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.

SECTION 8:- REGISTRATION

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.

RAJANKA LIMESTONE QUARRIES MAZDOOR UNION V. REGISTRAR

OF TRADE UNION (AIR 1958 PAT 70)

If the registrar takes no action even after 3 months of application of Trade union, a
writ under Art 226 can be issued.

Mandamus “we command” – public official to perform their duties.

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.

He has no adjudication power.

Registering and cancellation powers are vested.

He can do inquiry for his clarification and satisfaction.

CHENOSYM (P) LTD & OTHERS V.S KERALA MEDICAL AND SALES
REPRESENTATIVES ASSOCIATION. (1988) II LLJ 43 (KER)

A trade union is not a government body/Authority/statutory body.

ONGC WORKMEN’S ASSOCIATION V.S STATE OF WEST BENGAL &
OTHERS. (1988) II LLJ (CAL)

A Registrar does not have quasi-judicial powers authority to hold inquiry to

examine parties and decide a dispute between members.

FATEH SOLANKI & OTHERS V. RASTRIYA MILL MAZADOOR

SANGH & OTHERS (1994) I ILJ 294 (RAJ)

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.

SECTION 9:- CERTIFICATE OF REGISTRATION.

The Registrar on registering a Trade Union shall issue a certificate of registration

in the prescribed form which shall be conclusive evidence that the Trade Union has
been duly registered under this Act.

SECTION 9A:- MINIMUM REQUIREMENT ABOUT MEMBERSHIP OF

A TRADE UNION.

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.

Q.NO. 3. EXPLAIN THE GENERAL AND POLITICAL FUNDS AND

THEIR COLLECTION UNDER THE TRADE UNION ACT, 1926.

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

RIGHTS AND LIABILITIES OF REGISTERED TRADE UNION.

SECTION 15:- OBJECTS ON WHICH GENERAL FUNDS MAY BE

SPENT.
It is a genera restraint and funds shall not be spent on any other objects than the
following.

a. Payment of salaries allowances and expenses to office bearers of Trade

Union.
b. The payment of expenses including audit of the accounts.
c. The prosecution or defence of any legal proceeding, to which Trade union or
member is a party/protecting any rights.
d. The conduct of Trade dispute behalf of Trade union.
e. The compensation of members for loss arising out of Trade dispute.
f. The allowances to members or their dependants on account of death, old
age, sickness, accidents or employment of such members.
g. The issue of, or the undertaking of liability under policies of assurance on
the lives of members or under policies insuring members against sickness,
accident or unemployment.
h. The provision of educational, social or religious benefits for members or
general or religious ceremonies for deceased members or for the dependants
of members.
i. For periodical published relating to discussing question affecting employers
or workmen.
j. The payment in furtherance of any object on which the general funds of the
Trade Union may be spent of contributions to any cause intended to benefit
workmen in general provided that the expenditure in respect of such
contributions in any financial year shall excess of 1/4 th of the combined total
of the gross income.
k. Subject to any conditions contained in the notification any other object
notified by the appropriate Government in the official Gazette.

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.

MARIO RAPOSO V. H.M BHANDARKAR AND OTHERS (1994) II LLJ

(BOM) 680.
V.C.O Bank Employees Union purchased shares of U.T.I in Individual names of
few members of union.

Section 15 does not allow to use union funds for speculative activity.

SECTION 16:- CONSTITUTION OF A SEPARATE FUND FOR

POLITICAL PURPOSE.

A trade union can have civic and political object and can raise separate funds.

Section 16(2) declares civil and political objects,

a. Payment of any expenses incurred directly or indirectly by a candidate or

prospective candidate for election as a member of any legislative body.
b. To hold meeting or distribution of any literature or documents in support of
such candidate.
c. Maintenance of any person who is member of any legislative body.
d. The registration of electors or selection of a candidate for any legislative
body
e. The holding of political meeting.
f. No person shall be compelled to contribute to political funds.
g. If they do not pay they should not be denied with Trade union facilities.

Q.NO.4. EXPLAIN THE IMMUNITIES OF REGISTERED TRADE

UNIONS

INTRODUCTION

Section 17 and 18 of the Trade Union Act 1926 states the immunities/priviliges for
a registered Trade union.

SEC 17:- CRIMINAL CONSPIRACY IN TRADE DISPUTES.

Confers immunity from liability in cases of criminal liability in cases of criminal
conspiracy u/sec 120-B, of IPC committed by the office bearers of a registered TU.
The protection provided to members or office bearers of the reg TU. The
protection provided to members or office bearers or members of the registered
trade union is partial in the sense that the immunity is available only in respect of
agreements made b/w the members for the purpose of furthering any legitimate
object of the Trade Union as given under sec 15 of the Act.
If an agreement is an agreement to do an act which is an offence no immunity can
be claimed. The effect of sec 17 is that, an agreement or combination of two or
more members of the registered trade union to do or cause to be done any act in
furtherance of the trade dispute shall not be punishable as a conspiracy unless such
an act if committed by the individual constitutes an offence . Registered trade
unions have certain rights to do in furtherance of their trade disputes, such as to
declare strikes & for that purpose to pursue their members to abstain from their
work.
In West Indies Steel Company Ltd V/S Azeez, in this case a trade union leader
obstructed work in the factory for five hours protesting against deputation of
workmen to work in another section. It was held that a worker inside the factory is
bound to obey the reasonable instructions given by his superiors & carry out the
duties assigned by him. The mere fact that such worker is the leader of the trade
union does not confer on him any immunity in this regard.
Immunity from civil suits in certain is provided to the workmen, sec 18 of the act
deals with the immunity from the civil proceedings to the trade union or any office
bearer or members thereof in respect of any act done in contemplation or
furtherance of trade dispute to which a member of the trade union is a party on the
ground only that such act includes some other persons to break the contract of
employment, or that it is an interference with the trade, business or employment of
some other person or with the right of some other person to dispose of his capital
or his labour.
Trade union shall not be liable in any suit or other legal proceeding in any
civil court in respect of any tortuous act done in contemplation or furtherance of a
trade dispute by an agent of the trade union if it is proved that such person acted
without the knowledge of or contrary to express instruction given by the executive
of the trade union.
It was held in Ram Singh & others V/S M/s Ashok Iron Foundation &
others. The suit for perpetual injunction restraining the workmen from indulging
in unfair labour practices is deemed as one of the civil nature & hence cognizable
u/sec9 of CPC. therefore were the court has barred the workmen from holding
meeting dharna & interfering in the rights of the company such restrain does not
curtail the rights of the trade union activities of the workers . This act cannot be
construed as unjust & the workmen are at liberty to carry on legitimate union
actives peacefully.
 In P.Mukundan & others V/S Mohan Kanady Pavithram , in this case it
was stated that a strike per se would not be an actionable wrong. Further the office
bearers & the members of the registered trade union are immune against the legal
proceeding linked with strike of the workmen by the provision of sec 18 of the act.

SECTION 18:- IMMUNITY FROM CIVIL SUITS IN CERTAIN CASES.

This section deals with the immunity from civil proceedings afforded to a
registered trade union and to its members or office bearers.
Section 18(1) of the Act provides that no suit or other legal proceedings shall be
maintainable in any civil court against any registered Trade Union or any office
bearer or member thereof in respect of any act done in contemplation or
furtherance of a trade dispute to which a member of the trade union is a party on
the ground only that such act induces some other person to break a contract of
employment, or that it is an interference with the trade, business or employment of
some other person or with the right of some other person to dispose of his capital
or of his labour as he wills.
Section 18(2):- provides that a registered Trade union shall not be liable in any suit
or other legal proceeding in any civil court in respect of any tortious act done in
contemplation or furtherance of a trade dispute by an agent of the Trade union, if it
is proved that such person acted without the knowledge of, or contrary to, express
instructions given by the executive of the Trade union.

IN RAM SINGH AND OTHERS V. M/S.ASHOKA IRON FOUNDARY AND

OTHERS (1993) I LLJ 987 (P&H).

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.

ROTHAS INDUSTRIES STAFF UNION V. STATE OF BIHAR (AIR 1963

PAT 170)
It is one of the leading case on this section.
In this case the question for determination was, whether the employers have any
right to claim damages against the employee participating in an illegal strike and
thereby causing loss of production and business.
Chief Justice Ramaswami observed that
The striking workmen are not prevented from taking recourse to the protection of
Section 18 of the Trade Union Act, 1926 mainly because the strike is illegal under
section 24(1) of the Industrial Disputes Act 1947. It is the duty of the court to see
that the strike is undertaken in contemplation or furtherance or a trade dispute. But
the expression “in contemplation or furtherance of” is not defined.
For any act to be done in furtherance of a dispute, the dispute must be present or
imminent and whether a trade dispute is actual, impending or probable is a
question of fact in each case.

Q.NO.5. EXPLAIN THE PROCEDURE FOR WITHDRAWAL AND

CANCELLATION OF REGISTRAITON OF TRADE UNION

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.

SECTION 10:- CANCELLATION OF REGISTRATION.

Registrar can withdraw or cancel registration of Trade union.

1. On the application of the Trade Union to be verified in the prescribed

manner.
2. If certificate of registration is obtained by fraud or mistake.
3. Where the Trade Union has cease to exist.
4. If the union willfully and after notice by Registrar contravened the
provisions of this Act or allowed ay rules to continue in force which is
inconsistent to the Act.
5. Rescinded any rule which was required under Section 6.
6. Where the requisite of members have ceased to exist.
 If the Registrar receives the application for cancellation of registration must
before granting the prayer must get himself satisfied whether cancellation of
registration was approved by a general meeting of the Trade union.

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.

BOMBAY FIRE FIGHTERS SERVIA UNION, MUMBAI V. REGISTRAR

TRADE UNION BOMBYA (2003) II LLJ 1100 (B0M)

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.

Therefore the cancellation of registration was held illegal and improper.

Q.NO.6. WHAT IS INDUSTRY? EXPLAIN WITH REFERENCE TO

DECIDED CASES.

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.

Industrial Disputes Act 1947

The Industrial Dispute bill was introduced by the Government of India in
Legislative Assembly on 28th Oct 1946.

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

SECTION 2 (J) INDUSTRY:-

(j) "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,--
(i) 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 (9 of 1948);
(b) any activity relating to the promotion of sales or business or both carried on by
an establishment but does not include--
(1) any agricultural operation except where such agricultural operation is carried
on in an integrated manner with any other activity (being any such activity as is
referred to in the foregoing provisions of this clause) and such other activity is the
predominant one.
Explanation.--For the purposes of this sub-clause, "agricultural operation" does not
include any activity carried on in a plantation as defined in clause (f) of section 2
of the Plantations Labour Act, 1951 (69 of 1951); or
(2) Hospitals or dispensaries; or
(3) Educational, scientific, research or training institutions; or
(4) Institutions owned or managed by organisations wholly or substantially
engaged in any charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the sovereign functions of the
Government including all the activities carried on by
the departments of the Central Government dealing with defence research, atomic
energy and space; or
(7) any domestic service; or
(8) any activity, being a profession practiced by an individual or body or
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 a club or
any other like body of individuals, if the number
of persons employed by the co-operative society, club or other like body of
individuals in relation to such activity is less than ten;

PAYMENT OF WAGES INSPECTOR V. SURAJMAL METHA (1969) 1

LLJ 762 (SC)

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.

HOSPITAL MAZDOOR SABHA CASE (STATE OF BOMBAY V.

BOMBAY HOSPITAL MAZDOOR SABHA) (AIR 1960 SC 60)

In this case Justice Gajendragadkar stated the first of such principles as follows.

“As a working principle it may be stated that an activity systematically or

habitually undertaken for the production or distribution of goods or for the
rendering of material services to the community at large or a part of such
community with the help of employees is an undertaking.

Such an activity generally involves the co-operation of the employer and

employees; and its object is the satisfaction of material human needs. It must be
organized or arranged in a manner in which trade or business is generally
organized or arranged. It must not be casual, nor must it be for one’s self nor for
pleasure.

Thus the manner in which the activity in question is organized or arranged, the
condition of the co-operation between the employer and the employee necessary
for its success and its object to render material service to the community can be
regarded as some of the features which are distinctive of activities to which section
2(j) applies.

IN BANGALORE WATER SUPPLY V. A RAJAPPA (AIR 1978 SC 548)

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.

Q.NO.7. EXPLAIN THE PROVISION RELATING TO REFERENCE OF

AN INDUSTRIAL DISPUTE.

SECTION 10 AND 10 A:- REFERENCE OF DISPUTES TO BOARD,

COURTS OR TRIBUNALS

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:-

a. Refer the dispute to a Board for promoting a settlement thereof; or

b. Refer any matter appearing to be connected with or relevant to the dispute to
a court of enquiry; or
c. Refer the dispute or any matter appearing to be connected with or relevant
to, the dispute, if it relates to any matter specified in the second schedule, to
a Labour court for adjudication; or
d. Refer the dispute or 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, to a Tribunal for adjudication.

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.

VIRENDRA BHANDARI V. RAJASTHAN S.R.T.C (2002)9 SCC 104

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.

Second reference is that either any dispute exists or is apprehended.

Section 10 (1-A) provides that where the Central Government is of opinion that:-

i. Any industrial dispute exists or is apprehended.

ii. And the dispute involves any question of national importance; or
iii. The dispute is of such a nature that industrial establishment situate in
more than one state are likely to be interested in, or affected by, such
dispute; and
iv. That the dispute should be adjudicated by a National Tribunal; then
v. The Central Government may, whether or not it is the appropriate
Government in relating to that dispute, at any time, by order in writing,
refer the dispute or 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, to a National Tribunal for
adjudication.
Section 10 (2): provides that where the parties to an industrial dispute apply in the
prescribed manner, whether jointly or separately, for a reference of the dispute to a
Board, Court, Labour Court, Tribunal or National Tribunal the appropriate
Government, if satisfied that the person applying represent the majority of each
party, shall make the reference accordingly.

(2-A) An order referring an industrial dispute to a Labour Court, Tribunal or

National Tribunal under this section shall specify the period within such Labour
court, Tribunal or National Tribunal shall submit its award on such dispute to the
appropriate Government.

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.

Provided also that no proceedings before a Labour Court, Tribunal or National

Tribunal shall lapse merely on the ground that any period specified under this sub-
section has expired without such proceedings being completed.

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(4) provides that where in an order referring an industrial dispute to a

Labour Court, Tribunal or National Tribunal under this section or in a subsequent
order, the appropriate Government has specified the points of dispute for
adjudication, the Labour Court, Tribunal or National Tribunal as the case may be
shall confine its adjudication to those points and matters incidental thereto.

Section 10 (5) provides that where a dispute concerning any establishment or

establishments has been, or is to be, referred to a Labour Court, Tribunal or
National Tribunal under this section and the appropriate Government is of opinion,
whether on an application made to it in this behalf or otherwise, that the dispute is
of such a nature that any other establishment, group or class of establishments of a
similar nature is likely to be interested in, or affected by such dispute, the
appropriate Government may at the time of making the reference or any time
thereafter but before the submission of the award, include in that reference such
establishment, group or class of establishments, whether or not at the time of such
inclusion any dispute exists or is apprehended in that establishment, group or class
of establishments.

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:-

a. If the matter under adjudication before the National Tribunal, it is pending in

a proceeding before a Labour Court or Tribunal, the proceeding before the
Labour Court or Tribunal as the case may be, in so far as it relates to such
matter, shall be deemed to have been quashed on such reference to the
National Tribunal.
b. It shall not be lawful for the appropriate Government to refer the matter
under adjudication before the National Tribunal to any Labour Court or
Tribunal for adjudication during the pendency of the proceeding in relation
to such matter before the National Tribunal.
This provision will not apply in respect of a dispute which has not been
referred for adjudication or conciliation, In order to invoke this provision,
two conditions is necessary,
i. Existence of an industrial dispute
ii. The reference of dispute for adjudication.
Section 10 (7) provides that where a reference of a dispute in relation to which the
Central Government is not the Appropriate Government, is made to a National
Tribunal, then notwithstanding anything contained in sections 15, 17,19. 33-A, 33-
B and 36-B the Appropriate Government in relation to such dispute shall be the
Central Government. But save as aforesaid and otherwise expressly provided in
this Act, any reference in any other provisions of this Act to the State Government
in relation to that dispute shall mean a reference to the state Government.

Section 10 (8) provides that no proceedings pending before a Labour Court,

Tribunal or National Tribunal, in relation to an industrial dispute shall lapse merely
by reason of the death of any of the proceedings and submit its award to the
Appropriate Government.

U.P State Electricity Board V. P.O. Labour Court

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.

Q.NO.8. EXPLIAN THE LAW RELATING TO VOLUNTARY

ARBITRATION UNDER THE INDUSTRIAL DISPUTE ACT, 1947.

Section 10-A:- VOLUNTARY REFERENCE OF DISPUTES TO

ARBITRATION.

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.

The agreement, between the parties to an industrial dispute, to make a reference

must be in writing. The reference shall be made to such person or persons
(including the presiding officer of a Labour court, Tribunal or National Tribunal)
as an arbitrator or arbitrators as may be specified in the arbitration agreement.

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.

Section 10-A(2) provides that an arbitration agreement referred to in sub-section

(1) shall be in such form and shall be signed by the parties thereto in such manner
as may be prescribed.

Section 10-A(3) a copy of the arbitration agreement shall be forwarded to the

Appropriate Government and the conciliation officer, and the Appropriate
Government shall within one month from the date of the receipt of such copy
publish the same in the official Gazette.

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 North-West Karnataka Road Transport Corporation V H.H. Pujar (2002 III

LLJ 629 (SC)

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.

It was held that in departmental enquiries no strict rule of evidence is necessary.

All prudent materials which are logically probative to a prudent man are
permissible insisting examination of passengers who had come in and gone out by
chasing them and bringing them before the Tribunal before a valid finding is
recorded.

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.

Arbitrator under Section 10-A whether Tribunal within the meaning of

Article 136 of the Constitution.

This question was considered by the Supreme court in

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.

Q.NO.9. DEFINE “INDUSTRIAL DISPUTE”. WHEN DOES AN

INDIVIDUAL DISPUTE BECOME AN INDUSTRIAL DISPUTE?
EXPLAIN WITH THE HELP OF DECIDED CASES.

INTRODUCTION

Section 2(k) "industrial dispute" means any dispute or difference between

employers and employers or between employers and workmen, or between
workmen and workmen, which is connected with the employment or non-
employment or the terms of employment or with the conditions of labour, of any
person;

Individual dispute and industrial dispute.

Whether a single workman, who is aggrieved by an action of the employer can

raise industrial dispute. Section 2(k) of the Act speaks of a dispute between
employer and workmen ie. Plural form has been used.

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.

JAGDISH NARAIN SHARMA AND ANOTHER V. RAJASTHAN

PATRIKA LTD. AND ANOTHER (1994) II LLJ 600 (RAJ)
It was held that a dispute relating to transfer of a workmen will become an
industrial dispute only when it is expoused by a union of workmen or by a
substantial number of workmen employed in an industry. Without such espousal
the dispute cannot be treated as an industrial dispute and cannot be referred to a
labour court.

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.

A dispute is an industrial dispute even where it is sponsored by a union which is

not registered; but the Trade union must not be one unconnected with the employer
or the industry concerned.

What is necessary is that there must be some expression of collective will of

substantial or appreciable number of workmen taking up the cause of the aggrieved
workman.

IN WORKMEN OF INDIAN EXPRESS NEWSPAPER LTD V.

MANAGEMENT OF INDIAN EXPRESS NEWSPAPERS (AIR 1970 SC 737)

A dispute relating to two workmen of Indian Express Newspaper Ltd. was

espoused by the Delhi union of Journalists which was an outside union.

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.

Q.NO. 10. DEFINE STRIKE. WHAT ARE THE VARIOUS KINDS OF

STRIKE MENTIONED IN THE INDUSTRIAL DISPUTES ACT 1947.

INTRODUCTION:-

Strike is collective stoppage of work by workmen undertaken in order to bring

pressure upon those who depend on the sale or use of the products of work.

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”.

Because it is an expensive weapon the strike is generally labour’s last resort in

connection with industrial controversies.

Section 2(q) defines Strike – it means

1. Cessation of work by a body of persons employed in any industry acting in

combination ; or
2. A concerted refusal of any number of persons who are or have been
employed in any industry to continue to work or to accept employment; or
3. A refusal under a common understanding of any number of persons who are
or have been employed in industry to continue to work or to accept
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.

The duration of cessation of work is immaterial. Cessation of work even for an

half an hour amounts to a 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:-

There are mainly 3 kinds of strike, namely

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

It is also called as “tools-down-strike” or ‘pens-down-strike’. It is that form of

strike where the workmen report to their duties, occupy the premises but do not
work. The employer is thus prevented from employing other labour to carry on his
business.

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).

i. Sympathetic strike – it is resorted to in sympathy of other striking

workmen. Its aim is to encourage or to extend moral support to or
indirectly to aid the striking workmen.

The sympathizers resorting to such strike have no demand or grievance of their

own.

Kambalingam V. Indian Metallurgical Corporation, Madras (1964) I LLJ 81

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.

The management would, therefore, be entitled to take disciplinary proceedings

against the workmen for their absence on the ground of breach of condition of
service.

ii. Hunger Strike;-

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.

In Piparaich sugar Mills Ltd V. Their workmen,( AIR 1960 SC 1258)

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

iii. Work To Rule:-

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.

It is no strike because there is no stoppage of work at all.

Q.NO.11. DEFINE RETRENCHMENT. EXPLAIN WITH DECIDED CASES

THE PROVISIONS OF CHAPTER V A WITH REFERENCE TO
RETRENCHMENT.

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.

The order of termination must be actuated with a motive of economy.

Section 2(oo) defines Retrenchment:

1. Retrenchment means the termination by the employer of the service of a

workman;
2. The termination may be for any reason whatsoever;
3. But the termination should not be as a means of punishment by way of
disciplinary action.

The following are not retrenchment.

a. Voluntary retirement of a workman, or

b. Retirement of a workman on reaching the age of superannuation if the
contract of employment between the employer and the workman concerned
contains a stipulation in that behalf; or

bb. termination of the service of a workman as a result of the non-renewal of

the contract of employment between the employer and the workman concerned
on its expiry or of such contract being terminated under the stipulation in that
behalf contained therein, or

c. Termination of the service of a workman on the ground of continued ill-

health.

PROVISION OF CHAPTER VA

SECTION 25-F :- CONDITIONS PRECEDENT TO RETRENCHMENT OF

WORKMEN

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

The requirement of paying compensation is a mandatory pre-condition of

retrenchment of a workman, therefore, its non-compliance will render a
retrenchment invalid and would attract the penalty under section 31(2) of the Act.
If retrenchment is proved unlawful, the workman has a right to reinstatement with
continuity of service and right to wages for such period.

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.

Therefore, the workman would be entitled to a declaration that the workman

continued to be in service with all consequential benefits and if he was not paid all
the benefits including salary he shall be entitled to recover the same as arrears.

MICROWAVE PROJECT, KOTA AND ANOTHER V. RAMESH CHAND

(2007 III LLJ 350 (SC)).

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.

Applicability of section 25-F of the Act would depend on applicability of section

2(oo) (bb) of the Act. The matter was consequently remitted to the Tribunal for
fresh consideration.

STATE BANK V. S. MONEY (AIR 1976 SC 1111)

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.

A separate subsequent determination is not necessary to attract the provisions of

section 25-F(b) of the Act.

Work for 240 days in a Calendar year:-

IN P.K KUMARAN V. IDUKKI JILLA MOTOR MAZDOOR SANGH

(BMS) AND ANOTHER (1995) I LLJ 323 (KERALA)

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.

RETRENCHMENT COMPENSATION AND GRATUITY.

The Supreme Court in

INDIAN HUME PIPE COMPANY V. THEIR WORKMEN (1959) II LLJ

830 (SC)

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.

Therefore, whether a retrenched workman may claim the benefit of a gratuity

scheme in addition to retrenchment compensation under section 25-F or not
depends on the construction of relevant provision of the gratuity scheme
considered in the light of section 25-F of the Act.

SECTION 25-G:- PROCEDURE FOR RETRENCHMENT

The well-organized principle of retrenchment in industrial law is “first come last

go” and ‘last come first go’. This principle has been incorporated in section 25-G
of the Act. The procedural protection provided under this section can be claimed
by a workman on the fulfillment of the following conditions namely:-

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:-

1. By an agreement to the contrary between the workman and the employer;

and
2. For any other reasons to be recorded by the employer.

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.

The management can bonafide retain the employees possessing special

qualifications whose services are necessary in the interest of business, irrespective
of their seniority.

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.

Section 25-H:- RE-EMPLOYMENT OF RETRENCHED WORKMEN.

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.

This section imposes a statutory obligation on the employer to give opportunity to

the retrenched employees to offer themselves for re-employment.

In order to claim preference in employment under this section a workman must

satisfy the following conditions.

1. He should have been retrenched prior to re-employment.

2. He should be a citizen of India.
3. He should offer himself for re-employment in response to the notice by the
employer.
4. He should have been retrenched from the same category of service in the
industrial establishment in which the re-employment is proposed.

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 Employee’s compensation Act is one of the earliest measures adopted to

benefit the labourers. It was passed in 1923 and enforced on 1 st July 1924. Since
then a number of amendments have been made from time to time so as to suit the
changing needs and conditions of the employees.

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.

SECTION 3:- EMPLOYER'S LIABILITY FOR COMPENSATION.-

The liability of an employer to pay compensation is limited and is subject to the

provisions of the Act.
The liability of the employer to pay compensation is dependent upon the following
four conditions:
1. Personal injury must have been caused to an employee;
2. Such injury must have been caused by an accident.
3. The accident must have arisen out of and in the course of employment; and
4. The injury must have resulted either in death of the employee or in his total
or partial disablement for a period exceeding three days.

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.

Section 3(2): Employer’s Liability in case of occupational diseases.

It deals with the payment of compensation in case of an injury resulting from

occupational diseases.

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.

The disease contracted must be an occupational disease peculiar to the employment

specified in Schedule III.

In respect of every such disease mentioned as occupational disease in Schedule III,

a list of a number of employments is given.

To support any claim for compensation in case of occupational disease in part A no

specified period of employment is necessary; for diseases in Part B the employee
must be in continuous employment of the same employer for a period of 6 months
in the employment specified in that part; and for diseases in part C the period of
employment would be such as is specified by the Central Government for each
such employment whether in the service of one or more employers.

The contracting of any disease specified in Schedule III shall be deemed to be an

injury by accident arising out of and in the course of employment unless the
contrary is proved.

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.

If any such disease as is mentioned Part A of Schedule III develops after an

employee has left the employment, no compensation shall be payable to him.

Part B of Schedule III:-

In case of contracting of any disease mentioned in Part B of Schedule III the

employer shall be liable if an employee while in the service of an employer in
whose service he has been employed for a continuous period not less than 6
months in any employment specified in Part B of peculiar to that employment.

The contracting of the disease shall be deemed to be an injury by accident within

the meaning of this section, and unless contrary is proved, the accident would be
deemed to have arisen out of and in the course of the employment.

Part C of Schedule III:-

Where an employee contracts any disease specified in Part C of the Schedule III
the employer shall be liable.

1. If an employee was in the service of one or more employers in any

employment specified in Part C of Schedule III for such continuous period
as the Central government may specify in respect of each such employment;
and
2. If he contracts any disease specified therein as an occupational disease
peculiar to that employment.

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(2-A) :- In case of any employment mentioned in Part-c of Schedule III

where there are more than one employers, sub-section (2-A) of Section 3
authorises the commissioner to fix up the extent or responsibility of different
employers in respect of the amount of compensation payable to an employee.
Section 3(3):- The Central Government or the State Government, after giving, by
notification in the Official Gazette, not less than three months' notice of its
intention so to do, may, by a like notification, add any description of employment
to the employments specified in Schedule III and shall specify in the case of
employments so added the diseases which shall be deemed for the purposes of this
section to be occupational diseases peculiar to those employments respectively,
and thereupon the provisions of sub-section (2) shall apply, in the case of a
notification by the Central Government, within the territories to which this Act
extends or, in case of a notification by the State Government, within the State as if
such diseases had been declared by this Act to be occupational diseases peculiar to
those employments.

Section 3(4):- no compensation shall be payable to a [employee] in respect of any

disease unless the disease is directly attributable to a specific injury by accident
arising out of and in the course of his employment. Exceptions to this rule are the
cases covered by sub-section (2), (2A)] and (3) of section 3.

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.

Q.NO.13. EXPLAIN EMPLOYER’S LIABILITY UNDER THE

EMPLOYEES COMPENSATION ACT 1923 FOR PERSONAL INJURIES.

SECTION 3:- EMPLOYER'S LIABILITY FOR COMPENSATION.-

The liability of an employer to pay compensation is limited and is subject to the

provisions of the Act.
The liability of the employer to pay compensation is dependent upon the following
four conditions:
5. Personal injury must have been caused to an employee;
6. Such injury must have been caused by an accident.
7. The accident must have arisen out of and in the course of employment; and
8. The injury must have resulted either in death of the employee or in his total
or partial disablement for a period exceeding three days.

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.

Employer’s liability in cases of personal injury.

If personal injury is caused to a workman by accident during the course of

employment, his employer shall be liable to pay compensation in accordance with
the provision of Chapter II of the Act. The analysis of this provision will show that
the following conditions are necessary to make the employer liable to pay
compensation.

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 cases in which employer is not liable for compensation.

The employer shall not be liable for personal injury caused to workman by
accident to the following cases.

i. In respect of an injury which does not result in total or partial disablement of

the workman for a period exceeding 3 days.
ii. In respect of an injury not resulting to death or permanent total disablement
caused by an accident which is directly attributable to-
a. The workman haven been at the time thereof under the influence of drink
or drugs; or
b. The willful disobedient of the workman to an order expressly given or to
a rule expressly framed, for the purpose of securing the safety or
workman, or
c. The willful removal or disregard by the workman of any safety guard or
other device which he knew to have been provided for the purpose of
securing the safety of workman.

Q.NO.14. DISCUSS THE COMPOSITION, POWERS AND DUTIES OF

THE ESI CORPORATION UNDER THE EMPLOYEES STATE
INSURANCE CORPORATION ACT 1948.

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.

Q.NO. 15. EXPLAIN THE VARIOUS BENEFITS AVAILABLE UNDER

THE EMPLOYEES STATE INSURANCE ACT 1948.
INTRODUCTION
The benefits available for the employee is enumerated in chapter v
CHAPTER V :-BENEFITS
Section: 46. Benefits. — (1) Subject to the provisions of this Act, the insured
persons, their dependants or the persons hereinafter mentioned, as the case may
be,] shall be entitled to the following benefits, namely : —
(a) periodical payments to any insured person in case of his sickness certified by a
duly appointed medical practitioner or by any other person possessing such
qualifications and experience as the Corporation may, by regulations, specify in
this behalf] (hereinafter referred to as sickness benefit) ;
(b) periodical payments to an insured woman in case of confinement or
miscarriage or sickness arising out of pregnancy, confinement, premature birth of
child or miscarriage, such woman being certified to be eligible for such payments
by an authority specified in this behalf by the regulations (hereinafter referred to as
maternity benefit) ;
(c) periodical payments to an insured person suffering from disablement as a result
of an employment injury sustained as an employee under this Act and certified to
be eligible for such payments by an authority specified in this behalf by the
regulations (hereinafter referred to as disablement benefit) ;
(d) periodical payments to such dependants of an insured person who dies as a
result of an employment injury sustained as an employee under this Act, as are
entitled to compensation under this Act (hereinafter referred to as dependants’
benefit) ;
(e) medical treatment for and attendance on insured persons (hereinafter referred to
as medical benefit) ;
(f) payment to the eldest surviving member of the family of an insured person who
has died, towards the expenditure on the funeral of the deceased insured person, or,
where the insured person did not have a family or was not living with his family at
the time of his death, to the person who actually incurs the expenditure on the
funeral of the deceased insured person to be known as funeral expenses.
Provided that the amount of such payment shall not exceed such amount as may be
prescribed by the Central Government] and the claim for such payment shall be
made within three months of the death of the insured person or within such
extended period as the Corporation or any officer or authority authorised by it in
this behalf may allow.
(2) The Corporation may, at the request of the appropriate Government, and
subject to such conditions as may be laid down in the regulations, extend the
medical benefits to the family of an insured person.
Section:49. Sickness benefit. — The qualification of a person to claim sickness
benefit, the conditions subject to which such benefit may be given, the rate and
period thereof shall be such as may be prescribed by the Central Government.

Section:50. Maternity Benefit. — The qualification of an insured woman to claim

maternity benefit, the conditions subject to which such benefit may be given, the
rates and period thereof shall be such as may be prescribed by the Central
Government.]
Section:51. Disablement benefit.— Subject to the provisions of this Act
(a) a person who sustains temporary disablement for not less than three days
(excluding the day of accident) shall be entitled to periodical payment 5[at such
rates and for such periods and subject to such conditions as may be prescribed by
the Central Government] ;
(b) a person who sustains permanent disablement, whether total or partial, shall be
entitled to periodical payment 6[at such rates and for such periods and subject to
such conditions as may be prescribed by the Central Government].
Section:51-A. Presumption as to accident arising in course of employment. —
For the purposes of this Act, an accident arising in the course of an employee’s
employment shall be presumed, in the absence of evidence to the contrary, also to
have arisen out of that employment.
Section:51-B. Accidents happening while acting in breach of regulations, etc.
— An accident shall be deemed to arise out of and in the course of an employee’s
employment not withstanding that he is at the time of the accident acting in
contravention of the provisions of any law applicable to him, or of any orders
given by or on behalf of his employer or that he is acting without instructions from
his employer, if —
(a) the accident would have been deemed so to have arisen had the act not been
done in contravention as aforesaid or without instructions from his employer, as
the case may be ; and
(b) the act is done for the purpose of and in connection with the employer’s trade
or business.
Section:51-C. Accidents happening while travelling in employer’s transport.
— (1) An accident happening while an employee is, with the express or implied
permission of his employer, travelling as a passenger by any vehicle to or from his
place of work shall, notwithstanding that he is under no obligation to his employer
to travel by that vehicle, be deemed to arise out of and in the course of his
employment, if
(a) the accident would have been deemed so to have arisen had he been under such
obligation ; and
(b) at the time of the accident, the vehicle —
(i) is being operated by or on behalf of his employer or some other person by
whom it is provided in pursuance of arrangements made with his emplo- yer ; and
(ii) is not being operated in the ordinary course of public transport service.
(2) In this section “ vehicle ” includes a vessel and an aircraft.
Section:51-D. Accidents happening while meeting emergency. — An accident
happening to an 1[employee] in or about any premises at which he is for the time
being employed for the purpose of his employer’s trade or business shall be
deemed to arise out of and in the course of his employment, if it happens while he
is taking steps, on an actual or supposed emergency at those premises, to rescue,
succour or protect persons who are, or are thought to be or possibly to be, injured
or imperiled, or to avert or minimize serious damage to property.
Section:51-E. Accidents happening while commuting to the place of work and
vice versa. — An accident occuring to an employee while commuting from his
residence to the place of employment for duty or from the place of employment to
his residence after performing duty, shall be deemed to have arisen out of and in
the course of employment if nexus between the circumstances, time and place in
which the accident occured and the employment is established.
Section: 52 Dependants’ benefit. — (1) If an insured person dies as a result of an
employment injury sustained as an employee under this Act whether or not he was
in receipt of any periodical payment for temporary disablement in respect of the
injury) dependants’ benefit shall be payable at such rates and for such periods and
subject to such conditions as may be prescribed by the Central Government] to his
dependants specified in sub-clause (i), sub-clause (i-a) and] sub-clause (ii) of
clause (6-A) of section 2.
(2) In case the insured person dies without leaving behind him the dependants as
aforesaid, the dependants’ benefit shall be paid to the other dependants of the
deceased at such rates and for such periods and subject to such conditions as may
be prescribed by the Central Government.

Q.NO. 17. DEFINE WAGES AND EXPLAIN THE OBJECTIVES OF THE

PAYMENT OF WAGES ACT 1936.

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.

The Royal Commission on Labour in India made some valuable recommendations.

The present Act is mostly based on those recommendations of Royal Commission.
This Act was passed in 1936 and came into force on 21st March 1937.

SECTION 2 (VI):-“WAGES” means all remuneration (whether by way of salary,

allowances or otherwise) expressed in terms of money or capable of being so
expressed which would, if the terms of employment, express or implied, were
fulfilled, be payable to a person employed in respect of his employment or of work
done in such employment, and includes-
(a) any remuneration payable under any award or settlement between the parties or
order of a Court;
(b) any remuneration to which the person employed is entitled in respect of
overtime work or holidays or any leave period;
(c) any additional remuneration payable under the terms of employment (whether
called a bonus or by any other name);
(d) any sum which by reason of the termination of employment of the person
employed is payable under any law, contract or instrument which provides for the
payment of such sum, whether with or without deductions but does not provide for
the time within which the payment is to be made;
(e) any sum to which the person employed is entitled under any scheme framed
under any law for the time being in force; but does not include—
(1) any bonus (whether under a scheme of profit sharing or otherwise) which does
not form part of the remuneration payable under the terms of employment or which
is not payable under any award or settlement between the parties or order of a
Court;
(2) the value of any house-accommodation, or of the supply of light, water,
medical attendance or other amenity or of any service excluded from the
computation of wages by a general or special order of 1[the appropriate
Government];
(3) any contribution paid by the employer to any pension or provident fund, and
the interest which may have accrued thereon;
(4) any travelling allowance or the value of any travelling concession;
(5) any sum paid to the employed person to defray special expenses entailed on
him by the nature of his employment; or
(6) any gratuity payable on the termination of employment in cases other than
those specified in sub-clause (d).
The objective of the Act.
The preamble of the Act states that the object of the Act is “to regulate the
payment of wages to certain classes of employed persons.” The regulation
contemplated by the Act is twofold: first the date of payment of wages and
secondly the deductions from wages whether as fine or otherwise.
Q.NO.18. DESCRIBE THE VARIOUS DEDUCTIONS WHICH MAY BE
LAWFULLY MADE BY AN EMPLOYER UNDER THE PAYMENT OF
WAGES ACT 1936.

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)].

Q.NO.19.EXPLAIN THE PROVISION OF FACTORIES ACT1948

RELATING TO HEALTH AND SAFETY OF WORKERS IN A FACTORY.

CHAPTER III : HEALTH

Section 11. Cleanliness.

(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 12. Disposal of wastes and effluents.

Effective arrangements shall be made in every factory for the treatment of wastes
and effluents due to the manufacturing process carried on therein, so as to render
them innocuous and for their disposal.
(2) The State Government may make rules prescribing the arrangements to be
made under sub-section (1) or requiring that the arrangements made in accordance
with sub-section 91) shall be approved by such authority as may be prescribed.

Section 13.Ventilation and temperature.

(1) Effective and suitable provision shall be made in every factory for securing
and maintaining in every workroom--
(a) adequate ventilation by the circulation of fresh air, and
(b) such a temperature as will secure to workers therein reasonable conditions of
comfort and prevent injury to health;-and in particular,-
(i) walls and roofs shall be of such material and so designed that such temperature
shall not be exceeded but kept as low as practicable;
(ii) where the nature of the work carried on in the factory involves, or is likely to
involve, the production of excessively high temperatures, such adequate measures
as are practicable shall be taken to protect the If it appears to the Chief Inspector
that excessively high temperatures in any factory can be reduced by the adoption of
suitable measures, he may, without prejudice to the rules made under subsection
(2), serve on the occupier, 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.

Section 14.Dust and fume.

(1) In every factory in which, by reason of the manufacturing process carried on,
there is given off any dust or fume or other impurity of such a nature and to such
an extent as is likely to be injurious or offensive to the workers employed therein,
or any dust in substantial quantities, effective measures shall be taken to prevent its
inhalation and accumulation in any workroom, and if any exhaust appliance is
necessary for this purpose, it shall be applied as near as possible to the point of
origin of the dust, fume or other impurity, and such point shall be enclosed so far
as possible.
(2) In any factory no stationary internal combustion engine shall be operated unless
the exhaust is conducted into the open air, and no other internal combustion engine
shall be operated in any room unless effective measures have been taken to prevent
such accumulation of fumes therefrom as are likely to be injurious to workers
employed in the room.

Section 15.Artificial humidification.

(1) In respect of all factories in which the humidity of the air is artificially
increased, the State Government may make rules,-
(a) prescribing standards of humidification;
(b) regulating the methods used for artificially increasing the humidity of the air;
(c) directing prescribed tests for determining the humidity of the air to be correctly
carried out and recorded;
(d) prescribing methods to be adopted for securing adequate ventilation and
cooling of the air in the workrooms.
(2) In any factory in which the humidity of the air is artificially increased, the
water used for the purpose shall be taken from a public supply, or other source of
drinking water, or shall be effectively purified before it is so used.
(3) If it appears to an Inspector that the water used in a factory for increasing
humidity is required to be effectively purified under sub-section (2) is not
effectively purified he may serve on the manager 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 specified date.

Section 16. Overcrowding.

(1) No room in any factory shall be overcrowded to an extent injurious to the
health of the workers employed therein.
(2) Without prejudice to the generality of sub-section (1), there shall be in every
workroom of factory in existence on the date of the commencement of this Act at
least 9.9 cubic metres.

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 19. Latrines and urinals. (1) In every factory--

(a) sufficient latrine and urinal accommodation of prescribed types shall be
provided conveniently situated and accessible to workers at all times while they at
the factory;
(b) separate enclosed accommodation shall be provided for male and female
workers;
(c) such accommodation shall be adequately lighted and ventilated, and no latrine
or urinal shall, unless specially exempted in writing by the Chief Inspector,
communicate with any workroom except through an intervening open space or
ventilated passage;
(d) all such accommodation shall be maintained in a clean and sanitary condition at
all times;
(e) sweepers shall be employed whose primary duty it would be to keep clean
latrines, urinals and washing places.
(2) In every factory wherein more than two hundred and fifty workers are
ordinarily employed-
(a) all latrine and urinal accommodation shall be of prescribed sanitary types;
(b) the floors and internal walls, up to a height of 2 [ninety continents] of the
latrines and urinals and the sanitary blocks shall be laid in glazed tiles or otherwise
finished to provided a smooth polished (3) The State Government may prescribe
the number of latrines and urinals to be provided in any factory in proportion to the
numbers of male and female workers ordinarily employed therein, and provide for
such further matters in respect of sanitation in factories, including the obligation of
workers in this regard, as it considers necessary in the interest of the health of the
workers employed therein.

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

CHAPTER IV:- SAFETY

Section 21. Fencing of machinery.

(1) In every factory the following, namely,--
(i) every moving part of a prime mover and every flywheel connected to a prime
mover whether the prime mover or flywheel is in the engine house or not;
(ii) the headrace and tailrace of every water-wheel and water turbine;
(iii)any part of a stock-bar which projects beyond the head stock of a lathe; and
(iv) unless they are in such position or of such construction as to be safe to every
person employed in the factory as they would be if they were securely fenced, the
following, namely,--
(a) every part of an electric generator, a motor or rotary convertor;
(b) every part of transmission machinery; and
(c) every dangerous part of any other machinery, which shall be constantly
maintained and kept in position while the parts of machinery they are fencing are
in motion or in use:
Provided that for the purpose of determining whether any part of machinery is in
such position or is of such construction as to be safe as aforesaid, account shall not
be taken of any occasion when-
(i) it is necessary to make an examination of any part of the machinery aforesaid
while it is in motion or, as a result of such examination, to carry out lubrication or
other adjusting operation while the machinery is in motion, being an examination
or operation which it is necessary to be carried out while that part of the
machinery is in motion, or
(ii) in the case of any part of a transmission machinery used in such process as may
be prescribed (being a process of a continuous nature the carrying on of which
shall be, or is likely to be, substantially interfered with by the stoppage of that part
of the machinery), it is necessary to make an examination of such part of the
machinery while it is in motion or, as a result or such examination, to carry out any
mounting or shipping of belts or lubrication or other adjusting operation while
the machinery is in motion, and such examination or operation is made or carried
out in accordance with the provisions of sub-section (1) of section 22.
(2) The State Government may be rules prescribe such further precautions as it
may consider necessary in respect of any particular machinery or part thereof, or
exempt, subject to such condition as may be prescribed, for securing the safety of
the workers, any particular machinery or part thereof from the provisions of this
section.

Section 22.Work on or near machinery in motion.

Where in any factory it becomes necessary to examine any part of machinery
referred to in section 21, while the machinery is in motion, or, as a result of such
examination, to carry out-
(a) in a case referred to in clause (i) of the proviso to sub-section (1) of section 21,
lubrication or other adjusting operation; or
(b) in a case referred to in clause (ii) of the proviso aforesaid, any mounting or
shipping of belts or lubrication or other adjusting operation, while the machinery is
in motion, such examination or operation shall be made or carried out only by a
specially trained adult male worker wearing tight fitting clothing (which shall be
supplied by the occupier whose name has been recorded in the register prescribed
in this behalf and who has been furnished with a certificate of his appointment, and
while he is so engaged,--
(a) such worker shall not handle a belt at a moving pulley unless
(i) the belt is not more than fifteen centimeters in width;
(ii) the pulley is normally for the purpose of drive and not merely a fly-wheel or
balance wheel (in which case a belt is not permissible);
(iii) the belt joint is either laced or flush with the belt;
(iv) the belt, including the joint and the pulley rim, are in good repair;
(v) there is reasonable clearance between the pulley and any fixed plant or
structure;
(vi) secure foothold and, where necessary, secure handhold, are provided for the
operator;and
(vii) any ladder in use for carrying out any examination or operation aforesaid is
securely fixed or lashed or is firmly held by a second person;
(b) without prejudice to any other provision of this Act relating to the fencing of
machinery, every set screw, bolt and key on any revolving shaft, spindle, wheel or
pinion, and all spur, worm and other toothed or friction gearing in motion with
which such worker would otherwise be liable to come into contact, shall be
securely fenced to prevent such contact.
(2) No woman or young person shall be allowed to clean, lubricate or adjust any
part of a prime mover or of any transmission machinery while the prime mover or
transmission machinery is in motion, or to clean, lubricate or adjust any part of any
machine if the cleaning, lubrication or adjustment thereof would expose the
woman or young person to risk of injury from any moving part either of that
machine or of any adjacent machinery.
(3) The State Government may, by notification in the Official Gazette, prohibit, in
any specified factory or class or description of factories, the cleaning, lubricating
or adjusting by any person of specified parts of machinery when those parts are in
motion.

Section 23. Employment of young persons on dangerous machines. (1) No

young person shall be required or allowed to work at any machine to which this
section applies, unless he has been fully instructed as to the dangers arising in
connection with the machine and the precautions to be observed and-
(a) has received sufficient training in work at the machine, or
(b) is under adequate supervision by a person who has a through knowledge and
experience of the machine.
(2) sub-section (1) shall apply to such machines as may be prescribed by the State
Government, being machines which in its opinion are of such a dangerous
character that young person ought not to work at them unless the foregoing
requirements are complied with.

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 25. Self-acting machines. No traversing part of a self-acting machine in

any factory and no material carried thereon shall, if the space over which it runs is
a space over which any person is liable to pass, whether in the course of his
employment or otherwise, be allowed to run on its outward or inward traverse
within a distance of forty-five centimeters from any fixed structure which is not
part of the machine:
Provided that the Chief Inspector may permit the continued use of a machine
installed before the commencement of this Act which does not comply with the
requirements of this section on such conditions for ensuring safety as he may think
fit to impose.

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 27. Prohibition of employment of women and children near cotton

openers:-
No woman or child shall be employed in any part of a factory for pressing cotton
in which a cotton-opener is at work:
Provided that if the feed-end of a cotton-opener is in a room separated from the
delivery end by a partition extending to the roof or to such height as the Inspector
may in any particular case specify in writing, women and children may be
employed on the side of the partition where the feed-end is situated.

Section 28:- Hoists and lifts. (1) In every factory-

(a) every hoist and lift shall be--
(i) of good mechanical construction, sound material and adequate strength:
(ii) properly maintained, and shall be thoroughly examined by a competent person
at least once in every period of six months, and a register shall be kept containing
the prescribed particulars of every such examination;
(b) every hoistway and liftway shall be sufficiently protected by an enclosure fitted
with gates, and the hoist or lift and every such enclosure shall be so 50B prevent
any person or thing from being trapped between any part of the hoist or lift and any
fixed structure or moving part;
(c) the maximum safe working load shall be plainly marked on every hoist or lift,
and no load greater than such load shall be carried thereon;
(d) the cage of every hoist or lift used for carrying persons shall be fitted with a
gate on each side from which access is afforded to a landing;
(e) every gate referred to in clause (b) or clause (d) shall be fitted with interlocking
or other efficient device to secure that the gate cannot be opened except when the
cage is at the landing and that the cage cannot be moved unless the gate is closed.
(2) The following additional requirements shall apply to hoists and lifts used for
carrying persons and installed or reconstructed in a factory after the
commencement of this Act, namely:-
(a) where the cage is supported by rope or chain, there shall be at least two ropes or
chains separately connected with the cage and balance weight, and each rope or
chain with its attachments shall be capable of carrying the whole weight of the
cage together with its maximum load;
(b) efficient devices shall be provided and maintained capable of supporting the
cage together with its maximum load in the event of breakage of the ropes, chains
or attachments;
(c) an efficient automatic device shall be provided and maintained to prevent the
cage from over-running.
(3) The Chief Inspector may permit the continued use of a hoist or lift installed in a
factory before the commencement of this Act which does not fully comply with the
provisions of sub-section (1) upon such conditions for ensuring safety as he may
think fit to impose.
(4) The State Government may, if in respect of any class or description of hoist or
lift, it is of opinion that it would be unreasonable to enforce any requirement of
sub-sections (1) and (2), by order direct that such requirement shall not apply to
such class or description of hoist or lift.
Explanation.--For the purposes of this section, no lifting machine or appliance shall
be deemed to be a hoist or lift unless it has a platform or cage, the direction or
movement of which is restricted by a guide or guides.

Section 29. Lifting machines, chains, ropes and lifting tackles.

(1) In any factory the following provisions shall be complied with in respect of
every lifting machine (other than a hoist and lift) and every chain, rope and
lifting tackle for the purpose of raising or lowering persons, goods or
materials:-
(a) all parts, including the working gear, whether fixed or movable, of every lifting
machine and every chain, rope or lifting tackle shall be--
(i) of good construction, sound material and adequate strength and free from
defects;
(ii) properly maintained; and
(iii) thoroughly examined by a competent person at least once in every period of
twelve months, or at such intervals as the Chief Inspector may specify in writing;
and a register shall be kept containing the prescribed particulars of every such
examination;
(b) no lifting machine and no chain, rope or lifting tackle shall, except for the
purpose of test, be loaded beyond the safe working load which shall be plainly
marked thereon together with an identification mark and duly entered in the
prescribed register; and where this is not practicable, a table showing the safe
working loads of every kind and size of lifting machine or chain, rope or lifting
tackle in use shall be displayed in prominent positions on the premises;
(c) while any person is employed or working on or near the wheel track of a
travelling crane in any place where he would be liable to be struck by the crane,
effective measures shall be taken to ensure that the crane does not approach within
six months of that place.
(2) The State Government may make rules in respect of any lifting machine or any
chain, rope or lifting tackle used in factories-
(a) prescribing further requirements to be complied with in addition to those set out
in this section;
(b) providing for exemption from compliance with all or any of the requirements of
this section, where in its opinion, such compliance is unnecessary or impracticable.
(3) For the purposes of this section a lifting machine or a chain, rope or lifting
tackle shall be deemed to have been thoroughly examined if a visual examination
supplemented, if necessary, by other means and by the dismantling of parts of the
gear, has been carried out as carefully as the conditions permit in order to arrive at
a reliable conclusion as to the safety of the parts examined.
Explanation.--In this section,--(a) "lifting machine" means a crane, crab, which
teagle pulley block, gin wheel, transporter or runway;
(b) "lifting tackle" means any chain sling, rope sling, hook, shackle, swivel,
coupling, socket, clamp, tray or similar appliance, whether fixed or movable, used
in connection with the raising or lowering of persons, or loads by use of lifting
machines."

Section 30. Revolving machinery. In every factory in which the process of

grinding is carried on there shall be permanently affixed speed of every grindstone
or abrasive wheel, the speed of the shaft or spindle upon which the wheel is
mounted, and the diameter of the pulley upon such shaft or spindle necessary to
secure such safe working peripheral speed.
(2) The speeds indicated in notices under sub-section (1) shall not be exceeded.
(3) Effective measures shall be taken in every factory to ensure that the safe
working peripheral speed of every revolving vessel, cage, basket, flywheel, pulley,
disc or similar appliance driven by power is not exceeded.
Section 31: Presssure plant. (1) If in any factory, any plant or machinery or any
part thereof is operated at a pressure above atmospheric pressure, effective
measures shall be taken to ensure that the safe working pressure of such plant or
machinery or part is not exceeded.
(2) The State Government may make rules providing for the examination and
testing of any plant or machinery such as is referred to in sub-section (1) and
prescribing such other safety measures in relation thereto as may in its opinion be
necessary in any factory or class or description of factories.
(3) The State Government may, by rules, exempt, subject to such conditions as
may be specified therein, any part of any plant or machinery referred to in sub-
section (1) from the provisions of this section.

Section 32. Floors, stairs and means of access. In every factory--

(a) all floors, steps, stairs, passages and gangways shall be of sound construction
and properly maintained and shall be kept free from obstructions and substances
likely to cause persons to slip], and where it is necessary to ensure safety, steps,
stairs, passages and gangways shall be provided with substantial handrails;
(b) there shall, so far as is reasonably practicable, be provided and maintained safe
means of access to every place at which any person is at any time required to
1*[(c) when any person has to work at a height from where he is likely to fall,
provision shall be made, so far as is reasonably practicable, by fencing or
otherwise, to ensure the safety of the person so working.

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 35. Protection of eyes: In respect of any such manufacturing process

carried on in any factory as may be prescribed, being a process which involves--
(a) risk of injury to the eyes from particles or fragments thrown off in the course of
the process, or
(b) risk to the eyes by reason of exposure to excessive light, the State Government
may by rules require that effective screens or suitable goggles shall be provided for
the protection of persons employed on, or in the immediate vicinity of, the 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 36A. Precautions regarding the use of portable electric light.

In any factory--
(a) no portable electric light or any other electric appliance of voltage exceeding
twenty-four volts shall be permitted for use inside any chamber, tank, vat,pit, pipe,
flue or other confined space; unless adequate safety devices are provided] and
 b) if any inflammable gas, fume or dust is likely to be present in such chamber,
tank, vat, pit, pipe, flue or other confined space, no lamp or light other than that
of flame-proof construction shall be permitted to be used therein.

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 39. Power to require specifications of defective parts or tests of

stability. 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 may
be dangerous to human life or safety, he may serve on 1*[the occupier or manager
or both] of the factory an order in writing requiring him before a specified date--
(a) to furnish such drawings, specifications and other particulars as may be
necessary to determine whether such building, ways, machinery or plant can be
used with safety, or
(b) to carry out such tests in such manner as may be specified in the order, and to
inform the Inspector of the results thereof.

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.

Section 40A. Maintenance of buildings. If it appears to the Inspector that any

building or part of a building in a factory is in such a state of disrepair as is likely
to lead to conditions detrimental to the health and welfare of the workers, 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 taken and requiring the
same to be carried out before such date as is specified in the order.

Q.NO.20 EXPLAIN THE PROVISION OF FACTORIES ACT 1948 THAT

DEAL WITH ANNUAL LEAVE WITH WAGES.

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.

1. CHANGE OF NAME AND AMALGAMATION OF TRADE UNION.

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.

Section 24. Amalgamation of Trade Unions:-

Any two or more registered Trade Unions may become amalgamated together as
one Trade Union with or without dissolution or division of the funds of such Trade
Unions or either or any of them, provided that the votes of at least one-halt of the
members of each or every such trade Union entitled to vote are recorded, and that
at least sixty per cent. of the votes recorded are in favour of the proposal Notice of
change of name or amalgamation.

Section 25. Notice of change of name or amalgamation.-

(1) Notice in writing of every change of name of every amalgamation, signed, in

the case of a change of name, by the Secretary and by seven members of the Trade
Union changing its name, and, in the case of an amalgamation, by the Secretary
and by seven members of each and every Trade Union which head office of the
amalgamated Trade Union is situated in a different State, to the Registrar of such
State.

(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.

Section 26. Effects of change of name and of amalgamation.

(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.

2. DEFITION OF TRADE UNION

SECTION 2(h): TRADE UNION

Which can be analysed into the following ingredients:

1. Any combination whether temporary or permanent.

2. The combination should have been formed for the purposes of:
a. Regulating the relations between:
i. Workmen and employers; or
ii. Workmen and workmen; or
iii. Employers and employers; or
b. Imposing restrictive conditions on the conduct of any trade or business. But
this Act shall not effect:
i. Any agreement between partners as to their business; or
ii. Any agreement between an employer and those employed by him as
to such employment.
iii. Any agreement in consideration of the sale of the goodwill of a
business or instruction in any profession, trade or handicraft.

G.T.R.T.CS. AND OFFICER’S ASSOCIATION, BANGALORE AND

ANOTHER V. ASSISTANT LABOUR COMMISSIONER AND DEPUTY
REGISTRAR OF TRADE UNION, BANGALORE DIVISION I AND
ANOTHER. (2002) II LLJ 336 (KANT)

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.

Constitution of works committee:-

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 following conditions are necessary.

a. The establishment must be industrial establishment under Sec 2(j) of the

Act;
b. There should be 100 or more workmen employed in that establishment on
the day of the order or during 12 months preceding the day of the order;
c. The order should be issued by the appropriate government.
d. Workmen should be ‘workmen’ under section 2(s) of the Act.

➢ The representative of workmen are required to be chosen in the prescribed

manner from among the workmen engaged in the establishment and with
consultation with Trade Union.
➢ The total number of members of works committee should not exceed 20.
➢ The representatives of employers shall be nominated by the employer.

Functions of the works committee:-

The task of the works committee is only to smooth away frictions that might arise
between workmen and the management in day to day work.

Works committee discuss matters of common interest and endeavor to settle

differences in respect of matters to remove causes of friction between the
workmen and the employer.

The findings of the works committee is simply recommendatory or advisory and

the final power to decide whether they are to be implemented rests with the
employer. The employer is bound to implement the findings of such 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.

Secondly the management was sympathetic, specially in encouraging workers to

put forward the grievances and suggestions.

Thirdly, the management consulted the works committee before bringing and
change in respect of welfare measures.

Fourthly the workmen have been educated and

Lastly there were model rules and bye-laws.

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,

1. Lack of appreciation on the part of both the parties.

2. Illiteracy and lack of understanding amongst the workers.
3. Disinclination of the workers representatives of the works committee to
participate in the deliberation of the committees.
4. Worker’s representative became unpopular because of the failure is
satisfying the high expectations of the workers; and
5. Lack of co-operation of the leaders.
 4. AWARD AND SETTLEMENT

Section 2 (b) :- "award" means an interim or a final determination of any industrial

dispute or of any question relating thereto by any Labour Court, Industrial Tribunal
or
National Industrial Tribunal and includes an arbitration award made under section
10A;
Section 2 (p) "settlement" means a settlement arrived at in the course of
conciliation proceeding and includes a written agreement between the employer
and workmen
arrived at otherwise than in the course of conciliation proceeding where such
agreement has been signed by the parties thereto in such manner as may be
prescribed and a copy thereof has been sent to 1*[an officer authorised in this
behalf by] the appropriate Government and the conciliation officer;

5. LAY-OFF

LAY-OFF:-SECTION 2 (KKK)-

The Following are salient features of lay-off;

1. An employer, who is will to employ, fails or refuses or is unable to provide

employment for reasons beyond his control.
2. Any such failure or refusal to employ a workman may be on account of :-
i. Shortage of coal, power, or raw materials, or
ii. The accumulation of stock, or
iii. The breakdown of machinery, of
iv. Natural calamity, or
v. Any other connected reasons.
3. A workman who is so deprived of employment must be such whose name is
borne on the muster rolls of his industrial establishment.
4. The workman must not have been retrenched.
 6. NOTICE OF CHANGE UNDER SECTION 9A

Section 9A of Industrial Dispute Act

Notice of change.
9A. Notice of change.- No employer, who proposes to effect any change in the
conditions of service applicable to any workman in respect of any matter specified
in the Fourth Schedule, shall effect such change,--
(a) without giving to the workmen likely to be affected by such change a notice in
the prescribed manner of the nature of the change proposed to be effected; or (b)
within twenty-one days of giving such notice:
Provided that no notice shall be required for effecting any such change--
(a) where the change is effected in pursuance of any settlement or award; or
(b) where the workmen likely to be affected by the change are persons to whom the
Fundamental and Supplementary Rules, Civil Services (Classification, Control and
Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules,
Civil Service Regulations, Civilians in Defence Services (Classification, Control
and Appeal) Rules or the Indian Railway Establishment Code or any other rules or
regulations that may be notified in this behalf by the appropriate Government in
the Official Gazette, apply.

7. LOCK-OUT

SECTION 2(i):- LOCK-OUT

Lock-Out means the closing of a place of employment, or the suspension of work,

or the refusal by an employer to continue to employ any number of persons
employed by him.

Lock-out is a weapon in the hands of the management to coerce the Labour to

come down in their demands relating to the conditions of employment. Lock-out is
the keeping of labour away from work by an employer with a view to resist their
claim. There are 4 ingredients of lock-out.

1. i. temporary closing of a place of employment by the employer, or

ii. suspension of work by the employer, or
 iii. refusal by an employer to continue to employ any number of persons
employed by him;
2. the above-mentioned acts of the employer should be motivated by coercion;
3. an industry as defined in the Act; and
4. a dispute in such industry.

Lock-out has been described by the Supreme Court as the antithesis of Strike.

If the employer shuts down his place of business as a means of reprisal or as an

instrument of coercion or as a mode of exerting pressure on the employees or
generally speaking when his act is what may be called an act of belligerency there
would be a lock-out.

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.

The question whether the lock-out by the employer is justified would be an

industrial dispute under the Act, and therefore, the question of the payment of
wages during the period of a lock-out would also be an industrial dispute.

8. PARTIAL DISABLEMENT AND TOTAL DISABLEMENT

SECTION 2(g): "partial disablement" means, where the disablement is of a

temporary nature, such disablement as reduces the earning capacity of a
*[employee] in any employment in which he was engaged at the time of the
accident resulting in the disablement, and, where the disablement is of a permanent
nature, such disablement as reduces his earning capacity in every employment
which he was capable of undertaking at that time: provided that every injury
specified [in Part II of Schedule I] shall be deemed to result in permanent partial
disablement;

SECTION 2 (l) "total disablement" means such disablement, whether of a

temporary or permanent nature, as incapacitates a *[employee] for all work which
he was capable of performing at the time of the accident resulting in such
disablement:
Provided that permanent total disablement shall be deemed to result from every
injury specified in Part I of Schedule I or from any combination of injuries
specified in Part II thereof where the aggregate percentage of the loss of earning
capacity, as specified in the said Part II against those injuries, amounts to one
hundred percent or more;

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.

10. MANUFACTURING PROCESS

SECTION 2 (k) "manufacturing process" means any process for-

(i) making, altering, repairing, ornamenting, finishing, packing, oiling,
washing, cleaning, breaking up, demolishing, or otherwise treating or
adapting any article or substance with a view to its use sale, transport,
delivery or disposal, or
(ii) pumping oil, water, sewage or any other substance; or
 (iii) (iii) generating, transforming or transmitting power; or
(iv) composing types for printing, printing by letter press, lithography,
photogravure or other similar process or book binding; or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up
ships or vessels; or
(vi) preserving or storing any article in cold storage;

PROBLEMS

1. Majority of the workmen applied for leave, the employer rejected the leave
& treated the absence of the workmen as illegal strike. Decide.

Strike is a collective stoppage of work by the workmen undertaken in order

to bring pressure upon those who depend on the sale or use of the products of
work.
Lays down certain conditions which are to be complied with before resorting to
strike. Strike or a lock out will be illegal if it violates sec 22, 23, and 24 of the act,
right to strike is an inherent right of every worker & the same could not be
abridged or taken away except in the conformity of the act.
In the above case the employer cannot treat the absence of workers as an illegal
strike; strike means a conceited refusal to go on strike for the demand put forth by
the workmen before the management to be fulfilled. As in this case there are
absence of all the essentials ingredients of strike hence the absence of the workmen
cannot be termed as abstaining from work due to demand put forth before the
management which has to be fulfilled, hence it cannot be deemed to be illegal
strike.
2. Membership of the registered Trade Union was denied to “A” a workmen
on the ground that “A “has not contributed to the political funds of the Trade
Union , “A” wants to challenge the illegality of the denial can he succeed?
A registered trade union can constitute a separate fund for political purpose
this has been provided under sec 16 of the act. Out of this funds its members in
furtherance of any civic or political objects enumerated in sec 16, no expenditure
for political purpose out of the general funds is permitted. This fund may constitute
lawfully of donations, subscriptions, & such.
Sec 16(2) states as civic & political objects.
1. Payments of any expenses incurred, either directly or indirectly & legislative
body constituted under the constitution or of any local authority , before during or
after elections in connection with his candidature or election or
2. The holding of any meeting or the distribution of any legislature or documents in
support of any such candidate or prospective candidate or.
3. Maintenance of any person who is member of any legislative body constituted
under the constitution or of any local authority or
4. Registration of electors or the selection of candidate for any legislative body
constituted under constitution or for any legislative authority.
5. Holdings of any political meetings.
As this is a contributory fund by the members of the Trade Union, it has to be born
in mind that no member shall be compelled to contribute to the political fund of the
union any member who does not contribute to the to this fund shall not be excluded
from any benefits of the Union . he cannot be placed directly or indirectly under
any disability or at any disadvantage in comparison to other members of the union
who have contributed to the fund.
Also further contribution cannot be made as a condition for admission of a person
to the trade union. However the control of management of political funds can be
exclusively vested in the hands of those members who have contributed to the
political funds. A non- contribution does not render a member ineligible for any
office involving the control or management but such a right cannot be forcibly
taken.
In this case A, would succeed in challenging the denial of membership to trade
union, as contribution to the political fund cannot be a condition for seeking
admission to trade union according to the provision of the Trade Union Act 1926.

3. A bomb was kept in the premises of the workshop by some strangers, it

exploded & injured a workmen. Is the employer liable for compensating to the
workmen advice?
Answer:
If personal injury is caused to a workman by accident arising out of and in the
course of his employment, his employer shall be liable to pay compensation in
accordance with the provisions of this act. An accident is said to "arise out of" the
employment when there exists a causal connection between the conditions under
which the work is required to be performed and the resulting injury, while the
phrase "in the course of" employment is held to designate an accident occurring
within the period of employment at a place where the employee may reasonably be
while fulfilling his duties or engaged in something incidental to it. An entire law on
this is based on the concept of the phrase "arising out of and in the course of
employment". These words refer to the link between the cause of the accident and
the employment. To arise out of the employment a nexus must be established
between the accident and the employment. "In the course of employment" means
that the employee is helping the employer's business goals in doing the activity
where the injury occurred.
Once an employee reaches his place of employment, they are deemed to be
covered for an accident should one occur before they are on the clock, but after
they have reached the premises that is either owned by the employer or provided
by the employer. Injuries that occur during short break may be compensable as
well as injuries that occur during a trip for the employers benefit. It is no doubt true
that in order to succeed in an application for getting compensation under section 3
of the Act the following points are required to be established:—
(1) That the accident must arise out of and in the course of the workman‘s
employment;
(2) There must be causal connection between the injury and the accident and the
work done in the course of the employment;
(3) The workman has to say that while doing a part

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.

4.A workmen worked in the establishment as a mason in a company & was

drawing Rs 2500 per month his duties involved supervisory work of about 100
workers , he also used to decide who should do over time work, is „A‟ a
workmen ? Decide giving reasons.
Answer:
Under the IDAct 1947 Since the Industrial Disputes Act, 1947, this term, workman
under Section 2(s) defines workman as any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled, technical,
operational, clerical or supervisory work, for hire or reward, terms of employment
be express or implied and includes any such person who has been dismissed,
discharged or retrenched in connection with, or as a consequence of dispute. It
excludes persons employed in army/Navy/Air Force/Police and those employed in
mainly managerial or administrative, supervisory capacity and drawing wages of
more than Rs 6500.
The Courts have interpreted this definition and have identified various determining
factors to know whether a person is "workman" or not. The factors which should
be considered are
(a) whether there is a Master-Servant relationship;
(b) when a person is performing various functions which overlap in their
characteristics, the nature of main function for which the claimant is employed
should be considered;
(c) work is either manual, skilled, unskilled, technical operational, clerical or
supervisory in nature, the mere fact that it does not fall within the exception would
not render a person to be workman; and
(d) that the exceptions are not applicable. Further, designation, source of
employment, method of recruitment, terms and conditions of employment or
contract of service, the quantum of wages and the mode of payment should not be
considered while determining whether a person can be termed as "workman."
Over a period of time, courts have interpreted specific points of contention in the
definition under the ID Act which has enlarged the scope of the legislation. This
note discusses some of the important components of section 2(s) and their
interpretation by the courts . A person working in purely managerial and/or
supervisory capacity does not fall within the definition of workman under ID Act.
However, when a person performs multifarious functions, the nature of the main
function performed by the person has to be considered to determine if the person is
a "workman." The designation of a person is not a conclusive factor in determining
the nature of work. Even if a person is designated as supervisor, the employer has
to prove that his work and his duties were in nature of a supervisor.
To fall within the exception, the person must be,
(a) Employed in a supervisory capacity;
(b) Draw more than Rs 6500 as wages; and
(c) Primarily perform the functions of managerial nature.

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).

5. On the account of strike by some workmen in one part of the establishment,

management refuses to give work to the workmen in another part of the
establishment, the workmen claimed lay-off compensation. Decide whether
they are entitled to compensation?
Answer:
Lay-off is a practice whereby the employer cannot give employment to workmen
for various reasons including shortage of raw materials, coal or power
,accumulation of stocks, break-down of machinery etc, or for any other connected
reasons. It has been defined under Section 2(kkk) of the Act. If a workman, whose
name is on the muster rolls of the industrial establishment presents himself for
work and is not given by the employer it amounts to lay- off.
Workman not entitled to Compensation:
Section 25E of the Act highlights situations when a workman is not entitled to
compensation even after being laid-off. This section 25E works like an exception
to Section 25C. A workman is not entitled to lay-off compensation as an
―Industrial Dispute‖ is defined under Section 2(k) of the Act. It lays down certain
pre-requisites that must exist to constitute an industrial dispute. There can be no
lay-off if the dispute does not fall within the ambit of Section 2(k).
Further, the application of the Act is limited to ―industries‖ as defined under
Section (j).
Meaning of lay-off as per the Act and deals with the issue of compensation
resulting from such lay-off.
A workmen refuses to accept any alternate employment offered by the employer in
the same establishment, or in any other establishment of the same employer,
provided such establishment is within a five miles radius from the previous
establishment. Further, such alternate employment should not call for any special
skill or experience and the employer must pay at least the same wages as were
previously paid to the workman.
If the does not present himself for work at the establishment at the appointed time
during normal working hours at least once a day;
And such lay-off is due to a strike or slowing-down of production by workmen in
another part of the establishment.
The burden of proof is on the employer to show that the workman is disentitled to
claim compensation because his case falls under the purview of Section 25E.
Therefore in this case the workmen cannot bring a claim against the employer for
the lay-off compensation as the workmen were not deemed to be laid off as under
the provision of the act & he falls in the exemption category under the provision of
the act .As Section 25E of the Act highlights situations when a man is not entitled
to compensation even after being laid-off. This section 25E works like an
exception to Section 25C. A workman is not entitled to compensation.
Therefore, it becomes the duty of the employer to provide compensation to the
workmen if their case falls within the scope of the Section 25C6 of the Act.
However, no compensation can be awarded in advance of actual lay-off on grounds
of social justice.

6. Akshata & co is a public utility service industry where a strike commences

during the pendency of the conciliation proceedings & the workmen plead
that the strike was provoked by the employer. Decide.
Yes the strike conducted here is considered to be as unlawful. Because in this case
strike is conducted in duration of pendency of conciliation proceeding.
Strike is defined according to sec 2 (q) of the ID Act, it is a cessation of work by
the employees for any length of time under a common understanding to put
pressure on an employer to accept their demand.
The essentials of strike are;
1. Cessation of work by a body of persons employed in any industry acting in
combination or
2. A concerned refusal of any number of persons who have been employed to
continue to work to accept employment.
3. A refusal under a common understanding of any number of such persons to
continue to work or to accept employment.

According to Sec 22 to 23 of the ID Act 1947 deals with the prohibition of

strikes & Lock-outs.
Sec 22 bans the commencement of strike & lock –outs in public utility services.
Every public utility service is an Industrial establishment.
Sec 22 (1) the employee of a public utility services shall not commence a strike
unless the following conditions are satisfied;
1. A notice of strike should be given to the employer in advance.
2. The notice should be given at least 14 days before the strike.
3. The strike shall not commence before the expiry of the date specified in the
notice.
4. The strike shall not be commenced during the pendency of any conciliation
proceeding before a conciliation officer & seven days after the conclusion of such
proceedings.
7. ‘A’ was an employee of B, appointed as a driver of Lorry, his duty was to
load „X‟ material & unload it at work place, while the lorry was moving he
attempted to hit the rabbit passing on the road & in this attempt he fell down
from the lorry & died. His wife wants to claim compensation Advise her.
The widow of ‘A’ could claim compensation, as the fatal accident caused was in
duration of work.
Employers liability for compensation u/sec 3 of the act , to pay compensation is
limited & is subject to the provision of the Act
.u/sub sec(1) of sec 3 the liability of the employer to pay compensation is
dependent upon the following conditions ;
 Personal injury must have caused to the workmen.
 Such injury must have been caused by an accident.
 Such accident must have arisen out of & in the course of employment &
 The injury must have resulted in death of the workmen or partial
disablement for a period exceeding 3 days.

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.

9. ‘A’ a workmen died due to an accident while performing the duty of an

employer. Subsequently it had been proved that at the time of the accident
that the workmen were under the influence of intoxication.
The workmen died as he was under the influence of intoxication, in such
circumstances he is not entitled for compensation.
Conditions for Receiving Compensation
An employee to whom personal injury is caused by accident is entitled to receive
compensation under the Act if the accident arose out of and in the course of his
employment. That means the accident must occur while the employee is in
employment and it must also be connected with his employment.
Circumstances in which the employer is not liable to pay compensation for
injury to a workman:-
The employer is not liable to pay compensation for injury to an employee on
following circumstances:-
1. If the injury does not result in total or partial disablement of the employee for a
period exceeding three days;
2. If the injury does not result in death of the employee and is caused by an
accident which is directly attributable to:-
– If an employee have been at the time thereof under the influence of drink or
drugs
– The disobedience of the employee to an order expressly given, or to a rule
expressly framed, for the purpose of securing the safety of workman, or
– The willful removal or disregard by the employee of any safety guard or other
device which he knew to have been provided for the purpose of securing the safety
of employee.

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.

11.Ajay an employee in Jaydeep Industries died in a fatal accident in a

factory. The employer paid widow of Ajay 1 Lakh compensation directly. Is it
a valid payment?
In this case it is not a valid payment made by the employer to the widow of Ajay.
Payment of compensation in respect of employee whose injury has resulted in
death is not to be made directly to the dependents of the employee. In such case the
employers is required to deposit the amount of compensation with the
Commissioner for Employee‘s Compensation. The Commissioner will then
apportion the amount among the dependents of the employee. Schedule III part A,
employer shall be liable to pay compensation if the accident or injury arises out of
& in the course of employment. Part B, where the service of the employer in whose
service he has employed for a continuous period of 6 months in any employment
specified in part B of the schedule. The employer shall be liable to pay
compensation to an employee where an employee contracts any decease after he
has heft his employment if the following conditions.
1. If an employee has served the employer according to part B of the sch III, for a
continuous period of 6 months.
2. If the employee has after cessation of his service contracted any disease
specified in part B of the schedule.
3. If it is proved that such disease arose out of employment. Part C of Sch III,
1. If it is proved that the employee has served under one or more employers in any
employment specified in part C of the Sch III for such continuous period as
specified by the Central Govt. If he has after cessation of his service contracted any
disease specified in part C of Schedule .
2. If he has after cessation of his service contracted any disease specified in part C
of sch III as an occupational disease to that employment.
3. If it is proved that such disease arose out of employment.

12.ABC, Industries , a women run organisation employing only women

workers, it allots to some workmen workers night shift b/w 6 p.m t0 2 am is it
justifiable . Decide.
According to the factories Act 1948, the women run organisation employing only
women cannot allot night shifts to women b/w 6pm & 2am unless the organisation
has taken special permission from the appropriate govt. Sec 66, prohibition of
employment of women, Cl (1) restrictions of employment no women is entitled to
work in factories b/w 6pm & 7am .
Sec 66(1) prohibition of women at work Prohibition of employment of women in
employment of services sec 66(1) lays down that the provision shall be applicable
to all women working in factories.
a. No exemption of the provision of sec 54 may be granted in respect of any
women.
b. No women shall be required to work in any factory except b/w 6am & 7pm.
But the state govt may by notification in the official Gazettes, in respect of any
factory or group or class or description of factories vary the limit laid down in
clause
(b) in case if any women to be employed during night she could only be employed
b/w 10p.m to 5a.m.
In Triveni KS & others V/S Union of India & others (2001 III LLJ 320 (AP)),
The constitutionality of section 66(1), & (b) was challenged being discriminatory
on the basis of sex, the HC of Andrapradesh held that the women should not be
employed during night for their own safety & welfare . it was further observed
after referring to Art 2,3,& 5 of the convention of 89 of ILO, that it has to be seen
whether the state is following the convention . se 66(1) (b) of the act , the state
govt has been authorized to assighn working hours for women without any
restriction in fish industries . HC further observed that, women would be safe in
fish industry but not in textile industry consequently sec 66(1) & (b) of the act was
struck down as unconstitutional by the HC & declared that the same safeguards as
provided to women in fish Industry should be given to the women working in other
industry.
Hence the state govt is empowered to make rules providing for exemption from
restriction set out in sub sec
(1) to such extent & to such condition as it may prescribe.
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PREPARED BY
MRS. JAYALAKSHMI.V
ASST PROF.
AL-AMEEN COLLEGE OF LAW, BANGALORE