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Analysis of Industrial Disputes Act
Analysis of Industrial Disputes Act
Historical Background
Main Objects
industry means
any business, trade , undertaking , manufacturing or
calling of employers
and includes
any calling, service, employment, handicraft, or
industrial occupation or avocation of workmen.
Triple Test:
1. Systematic Activity
2. Organized by co-operation between employer
and employee
3. For the production and/or distribution of
goods and services calculated to satisfy human
wants and wishes .
Baroda Borough
Municipality v. Its
Workmen,
AIR case,
1957
SCreiterated
Relying on D.N.Banerjee
the court
that branches of work that can be regarded as
110.
analogous to carrying of a trade or business,
would fall within the meaning of an industry.
Rule of
sociis
Construction
noscuntura
Appellants Contention
In construing the definition, we must adopt the
rule of construction noscuntur a sociis.
Such an activity generally involves the cooperation of the employer and the employees;
and its object is the satisfaction of material
human needs. It must be organised or arranged
in a manner in which trade or business is
generally organised or arranged.
It must not be casual nor must it be for oneself
nor for pleasure.
Court held.
Applying the tests laid down in Hospital Mazdoor
Sabha, the court held that the activity of the
association was an industry because
it provides material services to a part of the
community,
it was carried on with the help of employees,
it was organized in a manner similar to that in a
trade or business and
there was co-operation between the employers
and the employees.
But
Management of Safdarjung
Hospital v. Kuldip Singh sethi
(1970) 2 LLJ 266
Ruling in the Hospital Mazdoor Sabha
case has now been considerably
shaken by the pronouncement in the
Madras Gymkhana Club.
First Appeal
Safdarjung Hospital is not embarked on an
economic activity which can be said to be
analogous to trade or business.
There is no evidence that it is more than a place
where persons can get treated.
This is a part of the functions of Government and
the Hospital is run as a Department of
Government.
It cannot, therefore, be said to be an industry.
Second appeal
The Tuberculosis hospital is wholly charitable
and is a research institute. The dominant purpose
of the Hospital is research and training, but as
research and training cannot be given without
beds in a hospital, the hospital is run.
Treatment is thus a part of research and training.
In these circumstances the Tuberculosis Hospital
cannot be described as industry.
Third Appeal The objects of the Kurji Holy Family Hospital are
entirely charitable. It carries on work of training
research and treatment. Its income is mostly from
donations and distribution of surplus as profit is
prohibited.
It is, therefore, clear that it is not an industry as laid
down in the Act.
Triple Test:
1. Systematic Activity
2. Organized by co-operation between employer
and employee
3. For the production and/or distribution of
goods and services calculated to satisfy human
wants and wishes .
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,
Industry to be replaced by
Establishment-NCL-II
The Second National Commission on labour has
recommended that the proposed Labour
Management Relations Act should be made
applicable to all establishments employing 20 or
more workers, irrespective of the nature of the
activity in which the establishments engaged.
The commission felt that, in view of this
recommendation, there was no need to define the
term industry.
Re-examination of the
decision in Bangalore Case
Coir Board Ernakulam v. Indira Devi P.S (1998)
The two judge bench of the Supreme Court
directed that the matter be placed before the
Honble CJI to consider whether a larger Bench
should be constituted to re-consider the decision
of this court in Bangalore Water Supply Case.
Elaborate..
This definition includes all the aspects of a dispute.
It, not only includes the disagreement between
employees and employers, but also emphasizes the
difference of opinion between worker and worker.
Conditions of labour
Hours of work
Holidays
Leave
Health
Safety
Welfare of labour
Alteration of conditions of service of employees
Supreme Court held: any person cannot mean anybody and everybody
in this world.
"any person" cannot be completely equated with
'any workman'.
Answer
The definition of the expression industrial
dispute was wide enough to cover a dispute raised
by the workmen in regard to the non-employment
of others who may not be the workmen at the
material time.
Lay-off Retrenchment
and
Closure Under Industrial
Dispute act
Section 25-A
It states that industrial establishments with below fifty
(50) workmen on an average per working day in the
preceding calendar month, or industrial establishments
which are of a seasonal character, will not be bound by
Section 25C to 25E.
Section 25-A
such workmen:
(a) will not be entitled to any compensation for being
laid off.
(b) will not be entered into the muster rolls of the
employer.
(c) will not fall under any of the exceptions to avail
compensation.
The Industrial tribunal held that the quarry was not a part of
the cement works.
SC held
In our view, the quarry and the factory constituted one
establishment within the meaning of cl. (iii) of s. 25E of the
Act. The disqualification in cl. (iii) clearly applied and the
workmen at the factory were not entitled to claim lay-off
compensation.
Retrenchment
1953-definition was inserted
Section 2(oo)
Retrenchment to mean:
Termination of service by the employer for any
reason whatsoever otherwise than as a punishment
inflicted by way of disciplinary action, but does not
include:
Following are excluded from the definition:1.Workman who had dismissed as a measure of
punishment inflicted by way of disciplinary action,
or
2.Voluntarily retired, or
3.Retired on reaching the age of superannuation or
4.been discharged on the ground of continued illhealth.
Section 25F
The person claiming the protection of section 25F
must be
1.Having the relation of employee with the
employer
2.He must be a workman within the meaning of
section 2(s)
3.The establishment in which he is employed must
be an industry within the meaning of s. 2(j) and
Facts:
The respondent was appointed as a Cashier, off
and on, by the State Bank of India between 4th
July, 1970
and
November 18,
1972.
There were intermittent breaks in the service of
the respondent but he had completed 240 days in
a year within the fold of deemed which bore
the termination of service of workman after a
few days was challenged in view of sections 2(oo)
and 25-F.
High Court held that: As the posts have been abolished the question of
their regularization did not arise.
The workmen were given employment under the
schemes on an ad hoc basis, and from the very
beginning knew that the employment was of a
temporary nature and co-terminus with the
scheme itself, and therefore, they could not be
said to have been retrenched within the meaning
of section 2(OO) and they are not entitled to the
relief of reinstatement if the provisions of section
25F were not complied with.
Retrenchment of workmen
due to closure of a unit..?
Not a Retrencment.
Termination of service of
Probationer?
Not retrenchment
Termination as a result of
Closure?
Re- employment of
retrenched workmen
Section 25- H permits, on
preference basis.
Mining Operation-
Construction Industry
(2) Where any undertaking set-up for the
construction of buildings, bridges, roads,
canals, dams or other construction work is
closed down on account of the completion of
the work within two years from the date on
which the undertaking had been set-up, no
workman employed therein shall be entitled to
any compensation under clause (b) of section
25F,
but
if the construction work is not so completed within
two years,
he shall be entitled to notice and compensation
under that section
for every completed year of continuous service
Differences
A lock-out is resorted deliberately by the
employer as a coercive measure and usually
involves a temporary closure of the place of
business.
A lock -out occurs in a continuing business and
does require compensation.
A legal lock out does not entail payment of
compensation.
Differences
Retrecnhment is a permanent measure to remove
surplus staff.
In lay-off employer-workmen relationship
subsists,
In Retrenchment, the relationship is terminated.
Lay-off is temporary. Retrenchment is
permanent measure.
Position in India
In India right to strike is not a fundamental right but a
legal right and with this right statutory restriction is
attached in the Industrial dispute Act, 1947.
Definition of Strike-Section
2(q)
Strike means a cessation of work by a body of persons
employed in any industry acting in combination, or
a concerted refusal, or
a refusal, under a common understanding of any number of
persons
who are or have been so employed
to continue to work or to accept employment;
Note- even half hour of stoppage of work- amounts to
strike
Standard Vaccum Oil Co. Madras V. Gunaseelam (1954)
Section 22(1)
It provides that no person employed in public utility
service shall go on strike in breach of contract:
(a) Without giving to employer notice of strike with in
six weeks before striking; or
(b) Within fourteen days of giving such notice; or
(c) Before the expiry of the date of strike specified in
any such notice as aforesaid; or
Notice of strike
Notice to strike within six weeks before striking is not
necessary where there is already lockout in existence.
InMineral Miner Union vs. Kudremukh Iron Ore
Co. Ltd.,(1989)1 LLJ 277,(Karnt) it was held that the
provisions of section 22 are mandatory and the date on
which the workmen proposed to go on strike should be
specified in the notice. If meanwhile the date of strike
specified in the notice of strike expires, workmen have
to give fresh notice.