INDUSTRIAL

RELATIONS LAW-
2(IDA)
V.NAGARAJ
Professor of law
NLSIU
Bangalore- 560 072
vnagaraj@nls.ac.in

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INDUSTRY-Definition
• Section 2(j) of the industrial disputes Act defines-
• “industry” means any business ,trade, undertaking,
or calling of employers and includes any calling,
service, employment, handicraft, or industrial
occupation or avocation of workmen.

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• In the ordinary sense industry or business means an
undertaking where capital and labour co-operate with
each other for the purpose of producing wealth and
for making profits.
• Nothing prevents the statute from giving a wider
meaning.
• The I.D Act is intended to bring about industrial peace
and harmony.
• Hence Industry has been given a wider meaning by
the legislation.
• The judiciary has interpreted Industry in a number of
cases and there have been up’s and down’s.
• They can be classified as fallows:
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• 1st phase 1953 to 1962-wider meaning
• 2nd phase 1963 to 1977- narrow meaning
• 3rd phase BWSSB v A.Rajappa [AIR 1978 SC5 48] -reviewed
the earlier cases and widest meaning was given
• 1978 Parliament Reacts and amends Industry-but not
brought in to effect so far
• 4th phase-Reservations about the correct ness of BWSSB
case-Requested the CJI to constitute a larger bench than
BWSSB case to explain what is industry- State of U.P v Jai
Bir Singh [(2005) 5 SCC1]
• The larger Bench of 9 judges constituted, decision awaited
• Before Jai Bir Singh, Coir Board, Ernakulam-V- Indira Devi,
(2000) reservation expressed by a division bench of the SC.
• IR Code 2020. 4
• 1st phase1953 to 1962
• D.N.Banerji v P.R. Mukherjee [AIR 1953 SC 58] - The
judiciary dealt with the question whether
Municipality is an industry?
• The SC held though municipal activity could not be
regarded as “business or trade” it would fall with in
the scope of the expression “undertaking” and it is an
industry.
• In Hospital Mazdoor Sabha v State of Bombay(1960)
The SC held that Hospital comes under the term
“undertaking” hence Industry- here it was Govt
hospital
• Industry includes even activities which have no
commercial implications.
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• Activities carried on by Govt. or charitable
organizations will also be industry.
• The SC in this case laid down a working principle:
“ any activity systematically or habitually undertaken
for the production and or distribution of goods or for
rendering of material services to the community with
the help of employees is an undertaking”
• In this case it was also held that an undertaking to be
an Industry must be analogous to trade or business.
• Sovereign or Regal activities are held to be out side
the scope of Industry.

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• Corporation of the city of Nagpur v Its employees
AIR1960 SC 675
• This case was under the C.P and Bearer I.D and
Settlement Act, 1947( a Local legislation)
• Here unlike the definition of industry in the ID Act the
word undertaking in this definition is qualified by the
words manufacturing or mining.
• The Judiciary could not use the earlier cases and call
Corporation as an Undertaking.
• In this case the SC said that municipal functions are
analogous to “business or trade”
• Hence Corporation was held to be an industry.

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• In Nagpur city corporation case there was another
issue raised as to sovereign functions.
• Departments performing sovereign functions are
excluded from the definition of Industry.
• If a department performs many functions, some
pertaining to industry and other non industrial
activities, the predominant functions of the
department shall be the criteria for the purpose of
deciding whether the department is industry or not.
• The Sovereign functions shall be confined to
legislative power, administration of Law and Judicial
power.
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• Trend Between 1963 to 1978
• In this period the trend was narrowing down the meaning of
the term industry.
• University of Delhi-v-Ramanath AIR1963 SC 1873 the SC held
that University is not an industry-because:
• Main scheme of an educational institution is imparting
education
• Teaching is not with in the purview of industry as there is no
commercial motive
• The subordinate staff play a minor or insignificant role in the
process of imparting education
• Permitting the insignificant role of the subordinate staff to
lend the colour of industry is unreasonable.

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• Cricket Club of India-v-Bombay Labour union AIR 1969
SC 276 The SC held that Cricket Club is not an
Industry.
• The Clubs activity is basically promotion of the game
of Cricket.
• It is a self serving institution
• It is not carrying any trade or business.
• In the course of promoting the game it has
incidentally earned some profits.
• It is not set up for earning profits.

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• In the Management of Sardarjung Hospital-v-
Kuldipsingh Sethi AIR 1970 SC 1407, the SC held that
Hospital is not an industry.
• They overruled the earlier Hospital mazdoor sabha
case
• Hospitals run by the Government or Charitable
institutions are not run on commercial lines.
• If an hospital or Nursing home is run on commercial
basis then it may be an industry.
• The hospitals in question are not industry as they are
not run on terms analogous to trade or business.

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• Bangalore Water supply Sewerage Board-v-A.Rajappa
AIR 1978 SC 548 This was a seven judge bench
constituted to review all the earlier cases and explain
what is the meaning of Industry.
• This case revived the pre 1962 cases and over ruled
the post 1962 cases.
• The law developed in this case is an amalgamation of
Hospital Mazdoorsabha case and Nagpur city
Corporation cases, decided, with minor elaborations.

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• The BWSSB case developed a working principle to
determine whether an activity is an industry or not:
1. Systematic activity
2. organized by Co-operation between
employer and employee
3. For the production and or distribution of goods or
services;
• Such an activity is an industry
• Absence of profit motive is irrelevant.
• If the organization is trade or business it does not cease to
be one because of philanthropy animating the undertaking

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• A restricted Category of professions, Clubs, co
operatives and little research labs may qualify for
exemption, if no employees are entertained but in
minimal matters, marginal employees are hired
without destroying the non employee character of
the unit.
• Regal functions the approach fallowed in Nagpur city
corporation was fallowed
• Sovereign functions strictly understood alone qualify
for exemption, not the welfare activities or economic
adventures undertaken by government or statutory
bodies.

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• Parliamentary reaction-1982
• Amendment to section 2(j)- industry
• Amendment barrowed the definition as given in the BWSSB
case- Clarified the situation further by stating that employer –
employee relation includes employees employed through
contractor.
• The definition excludes certain categories of employment from
the definition.
1.Agricultural operations except where such operation is carried
on in integrated manner with any other activity and such other
activity is the predominant one.( agricultural operation does
not include plantation as defined in the plantation labour Act,
1952)
2.Hospitals and dispensaries;
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 3. Educational, scientific, Research or training
institutions; or
4. Institutions owned or managed by
organizations wholly or substantially engaged in any
charitable, social, or philanthropic service; or
5. Khadi and village Industries; or
6. any activity of the Govt relatable to the
sovereign functions of the Govt including all the
activities carried on by the departments of the
central Govt dealing with defense research, atomic
energy and space; or
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 7. any Domestic service; or
8. any activity being a profession practiced by an
individual or body of individuals, if the number of
persons employed by the individual or body of
individuals in relation to such profession is less than
ten; or
9. any activity, being carried on by 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.
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• Coir board-v- Indiradevi (2000)1 SCC 224
• State of U.P-v-Jai Bir Singh (2005)5SCC1 a
constitutional bench decision.
• Now it has been referred to 9 judge bench-
decision awaited

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I R Code 2019,
• Section 2 (m) “Industry” means any systematic
activity carried on by co-operation between an
employer and worker ( whether such worker is
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
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 (ii) such activity is carried on with a motive to make
any gain or profit, but does not include-
1. institutions owned or managed by organizations
wholly or substantially engaged in charitable, social
or philanthropic service; or
2. any activity of the appropriate Govt relatable to
the sovereign functions of the appropriate Govt
including all the activities carried on by the
departments of the C.G. dealing with research,
atomic energy and space; or

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 3. any domestic service; or
4. any other activity as may be notified by the
Central Govt.

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Definition of Workman-Section
2(s)
• Workman means 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, whether the terms of employment be express or
implied
• It includes any such person who has been discharged ,
dismissed or retrenched whose discharge ,dismissal,
retrenchment has led to the ID
• It excludes persons subject to defense forces, police force
and prison service
• It excludes persons who are mainly employed in managerial
or Administrative capacity
• It excludes supervisory staff whose salary is more than
RS.15,000=00 per month
• The def is in 3 parts 22
• The definition does not differentiate between
permanent, temporary etc workers
• Conflicting judicial decisions as to the interpretation
of the definition
• Burmah shell storage Distribution Co; of India ltd-v-
Management staff association(1970)2LLj590
• May and Baker(I) ltd-v-Workmen(1961)2LLJ94
(3judges)
• Sundarambal-v- Govt of Goa(1989)1LLJ61
• The above three decisions gave literal interpretation
as per the words used in the definition

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• S.K.Verma-v-Mahesh Chandra(1983)Lab.I.C1483 SC
gave a beneficial interpretation to the definition by
holding that if an employee employed in an Industry
is not expressly excluded from the definition of
workman then he is included in the definition.
• H.R.Adyanthaya-v-Sandoz(India)ltd (1995)1LLJ303 SC-
Constitutional bench decision held that earlier trend
of decisions are correct and over ruled S.K.Verma
case

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• Muir Mills NTC ltd-v-Swayam prakash Srivastava
(2007)1 SCC 491
• The SC held that Professional regulated by any
professional body is not a workman though
employed
• In the above case the respondent was appointed as
a legal assistant in the appellant co; and he use to
do the jobs like prepare replies to the claims made
against the appellant co; preparing affidavits, doing
the job of an enquiry officer etc;

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• The SC also reasoned that the respondent has not
been performing stereotype job. His job had
creativity. He not only used to render legal opinions
on a subject but also used to draft pleadings on
behalf of the appellant as also represent it before
various courts/ authorities. He would also
discharge quasi judicial functions.

• Skilled workman also has creativity !

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• Hussainbai-v- Alath Factory union AIR1978 SC 1410
• The workers employed under a contractor
• The work was done for the principal employer
• The work was carried at the principal employers premises
• The raw materials were supplied by the principal employer
• The workers raised a dispute that they are the workmen of the
principal employer
• The I.T adjudicated that the workmen are the employees of
the principal employer
• The S.C up holds the decision of the tribunal and held that the
contractor is a sham

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IR Code 2019 instead of
workman uses the word worker
• Section 2 (zm) “worker” means any person( except
an apprentice as defined under clause (aa) of Sec. 2
of the apprentice Act, 1961) employed in any
industry to do any manual, unskilled, skilled,
technical, clerical or supervisory work for hire or
reward, whether the terms of employment be
express or implied, and includes working journalists
as defined in clause (f) of section 2 of the working
journalists and other news paper
employees(conditions of service) employees and
Miscellaneous provisions Act, 1955 and
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 Sales promotion employees as defined in clause(d)
of Section2 of the sales promotion employees
(conditions of service) Act, 1976, and for the purpose
of any proceedings under this code in relation to an
industrial dispute, includes any such person who has
been dismissed, discharged or retrenched or
otherwise terminated in connection with or as a
consequence of that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute,
but does not include any person-

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(i) Who is subject to the Air Force Act, 1950, or the
Army Act, 1950. or the Navy Act, 1957; or
(ii) Who is employed in the police service or as an
officer or other employee of a prison; or
(iii) Who is employed mainly in a managerial or
administrative capacity; or
(iv) Who is employed in a supervisory capacity
drawing wages of exceeding fifteen thousand
rupees per month or an amount as may be
notified by the C.G from time to time:
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• provided that for the purpose of chapter III, (TU
Part), “worker” (a) means all persons employed in
trade or Industry; and
• (b) includes the worker as defined in clause (m) of
sec.2 of the Unorganised Workers Social Security
Act, 2008.

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Industrial Dispute and individual
dispute
• 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 employment or
non-employment or the terms of employment or
with the conditions of labour of any person.
• The dispute has to be between plurality of
workman and employer
• Individual workman cannot raise an industrial
dispute

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• A trade union or a number of workmen must rise the
dispute
• What number of workmen are required to rise an
industrial dispute
• The SC has said that substantial number of workmen
will have to rise the dispute
• The Sc has said that substantial number is not
majority
• It must however be such number as to lead an
inference that the dispute is one which affects the
workmen as a class.

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• Any person used in the definition
• Workmen of Dimakuchi Tea estate-v- Dimakuchi Tea
estate (1958)1LLJ500S.C The Court held that the word
any person in the definition means a person in whose
employment or non employment or terms of
employment or conditions of labour the workmen as
a class have a direct and substantial interest
• Whether such direct and substantial interest has been
established in a particular case will depend on its
facts and circumstances

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• Standard Vacuum refining co; of India ltd-v-the
workmen (1960)2LLJ233SC
• this case labour was employed for cleaning and
maintenance through contractor
• The regular employees raised a dispute for
regularizing the contract labour
• The regular workmen have direct and substantial
interest in the contract workers
• The regular workers have class interest also.

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Individual dispute deemed as
industrial dispute
• 1965 amendment to I.D ACT and insertion of 2A.
• Where any employer discharges, dismisses,
retrenches or otherwise terminates the services of
an individual workman, any dispute or difference
between that workman and his employer…….shall
be deemed to be an industrial dispute
notwithstanding that no other workman nor any
union of workmen is a party to the dispute.
• This definition is not applicable to disputes short of
termination

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 Compulsory Adjudication LC, IT, NT
Reference by the
Appropriate Government
Sec. 10(1)
Award Sec. 18(3) of ID Act

S. 2-A, 33-A

Publication of award

Conciliation (if successful Judicial review - Art. 226 or

Settlement) Art. 136
Sec. 18(3) of INDUSTRIAL
The I D act DISPUTES
Voluntary Arbitration – 10-A

Award – 18(2) & 18(3)

Judicial review - Art. 226 or

Art. 136

Collective Bargaining –
If successful – settlement
Sec. 18(1) of ID Act
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Collective bargaining
• It is resolving Industrial disputes by negotiation between the workmen
and Employer.
• Though it has been quite common the law recognised only from 1956
• The amended definition 2(p) of the I.D.Act recognises settlements
reached otherwise than in the course of Conciliation
• Section 18(1) recognises bilateral settlements to be binding on the
parties to the settlements
• Tata Chemicals-v-Workmen(AIR1978SC828)
• Unfair labour practices recognises that it is illegal to refuse to bargain
with a recognised trade union.
• In the process of Bilateral negotiations the parties can use the Weapons
of strikes and Lock outs in order to make the opposite party behave
reasonably

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Collective bargaining settlement
• The settlement reached otherwise than in the
course of conciliation is binding on the parties who
have signed the settlement
• Binding nature of such settlements see section 18(1)
• Duration of abidingness of such settlements for the
period agreed
• If no such period is agreed binding for minimum of
six months( sec.19)
• Execution proceedings
• Civil remedy sec 33(C)
• Criminal remedy section 29- imprisonment up to six
months
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• 2(q) Strike means 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.
• The definition does not speak about the purpose of strike
• So a strike can be pursuant to an I.D or even otherwise.
• The law regulating strikes also does not say that a strike has to
be pursuant to an I.D only
• Judiciary has classified strikes in to justified and un-justified
strikes
• A strike for purposes other than I.D is unjustified
• The facts and circumstances determine whether a strike is
justified or un justified. 40
• Relationship of employment during the period of
strike and Lock out
• Duration of cessation of employment is not
relevant to be labelled as strike
• Categorization of strikes-tool down, pen down, sit
down, Hunger strike, etc;
• Primary strikes, secondary strikes and sympathetic
strikes
• Demonstrations before the working workers start
or during .lunch break—whether strike
• Wearing black badge while working- whether strike

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Whether Right to Strike is FR
• Whether right to go on strike is a FR under the
freedom of speech and expression?
• Shankari prasad case, 1962; Rahdey shyam case,
1965, Rangarajan-state of TN, relaying to Govt
employees going on strike, 2001
• Illegal strikes- violation of sections 22, 23 and 24 of
the ID Act, 1947
• Rohtas Industries Case 1976, holding TU immunity
is available under TU Act 1926 even for illegal
strike.
• Justified and unjustified strikes judicial
jurisprudence development
42
• wages for the period of strike-
• Illegal strike-no wages
• Legal and justified-Full wages
• Legal but unjustified- no wages
• Churakulam Tea estate- workmen (1969) 2 LLJ 407 SC ( 3
Judge Bench)
• Syndicate Bank and Ors-V- Umesh Nayak, AIR 1995 SC 319,
( 5Judges)
• Mgt of Chandramalai estate, kerala-V- workmen, AIR
1960,SC,902: the demand was for reduction in the price of
Rice sold to workmen and for blanket allowance in the hill
station-conciliation failed, the workmen went on strike
without waiting for Govt reference-strike held unjustified
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• Go Slow
• Not a strike
• Considered as a serious form of misconduct
• Bharath Sugar Mills ltd-v- Jai Singh(1961 2LLJ,644, SC;
–How the Supreme Court considered it as a serious
misconduct-permission under Sec 33 for dismissal od
21 workmen, who participated in Go Slow; IT holding
that the allegation is proved against only one
workman, on appeal the SC held that the allegation is
proved against 15 in the enquiry.
• Go slow is likely to be much more harmful than
a strike
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• 2(L) defines Lock out as the temporary closing of a place of
employment or the suspension of work or refusal by an employer to
continue to employ any number of persons employed by him.
• The word temporary was introduced in 1984.
• Section of the repealed trade disputes act, 1929, which is reproduced
below is an exhaustive definition of lockout.
• “lockout means the closing of a place of employment or the
suspension of work or the refusal of an employer to continue to
employ any number of persons employed by him, when such closing,
suspension or refusal occurs in consequence of a dispute and is
intended for the purpose of compelling those persons or of aiding
another employer in compelling persons employed by him to accept
the terms or conditions of or affecting employment.”
• Way back in 1957 the madras HC, in Sri Ramachandra spinning mills-V-
State of Madras, identified the truncated definition in the 1947 Act
and read in the missing provisions from the 1929 Act.

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• Lock out may be total or partial
• It is an act of belligerency as opposed to Lay-off
• Difference between lockout and closure
• Lockout is also classified as justified and unjustified
based on the circumstances of the case
• The labour Court decides the justifiability or other
wise of the strikes or lockouts.
• Wages for the period of strikes and lockouts –
Syndicate Bank-v- Umesh Nayak 1995 SC

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• If the lockout is illegal full wages to be paid.
• If the lockout is legal and justified then no wages to be paid.
• If the lockout is legal but unjustified then full wages
• In India Marine services pvt ltd-V- workmen, (1963) 1
LLJ,122, SC the lockout was continued for an unreasonable
period of time and where it is not necessary, apportionment
of blame,
• itakhooleTea Estate –V- workmen, (1960) 2LLJ, 2,
SC, it was held that if the lockout is illegal or
unjustified, it is necessary for the workmen
to report for work to be entitled to wages

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Illegal strikes/Lockouts
• Section 22: applicable to PUS.
• (1) no person employed in a PUS shall go on strike,
in breach of contract-
• (a) with out giving a minimum 14 days notice
• (b) the notice cannot be more than 42 days.
• The notified date of strike must be between the
15th day and 42nd day.
• No strike during the pendency of conciliation
proceedings before a conciliation officer and seven
days after the conclusion of such proceedings

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• Where an ID relates to a PUS, and a notice under
Section 22 has been given, the conciliation shall hold
conciliation proceedings in the prescribed manner.
• Rule 9 of central rules,1957 the conciliation officer,
on receipt of a notice of Strike/Lockout given under
rule 71or rule, shall forthwith arrange to interview
both the employer and the workmen concerned
with the dispute at such places and at such times as
he may deem fit and shall endeavor to bring about a
settlement of the dispute in question.

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• Sec. 20(1) a conciliation proceeding shall be deemed
to have commenced on the date on which a notice of
strike or lock-out under sec 22 is received by the
conciliation officer or on the date of order referring
the dispute to a board, as the case may be
• Sec. 20 (2) a conciliation proceeding shall be deemed
to have concluded-
• (a) where a settlement is arrived at, when a
memorandum of the settlement is signed by the
parties to the dispute.
(b) where no settlement is arrived at, when the report
of the conciliation officer is received by the
appropriate Govt. or when report of the board is
published under sec.17 as the case may be. 50
• Sec. 12(4) if no such settlement is arrived at, the
conciliation officer shall, as soon as practicable
after the close of the investigation, send to the
appropriate govt a full report setting forth the steps
taken by him foe ascertaining the facts and
circumstances relating to the dispute and for
bringing about a settlement thereof, together with
a full statement of such facts and circumstances,
and the reasons an account of which , in his
opinion, a settlement could not be arrived at.

51
• Sec 12 (6) under Sec. 12, a report shall be
submitted within 14 days of the commencement of
the conciliation proceedings or within such shorter
period as may be fixed by the appropriate
government
• Provided that, (subject to the approval of the
conciliation officer) the time for the submission of
the report may be extended by such period as may
be agreed upon in writing by all the parties to the
dispute

52
• In workers of industry colliery-V- Industry colliery,
(1953) 1 LLJ 190 SC, the conciliation officer
submitted his report on 20th Oct 1949 which was
well within 14 days from the commencement of
the conciliation proceedings. The report was sent
through the routine official channel and was
received in the office of the chief Labour
commissioner at New Delhi on 25th Oct,1949.
• However the report was not passed on to the
ministry of labour until about 17th Nov 1949.
• The employees had no means of knowing when the
report was actually received by the Central Govt.
which was the appropriate Govt. or when the seven
days expired after the receipt of the report.
53
• In these circumstances, the employees went on
strike on 7th Nov 1949 in accordance with the date
specified in their notice.
• However in view of the fact that the Chief labour
commissioner was not the agent of the CG, the
receipt by him was not the receipt by the CG
• Hence on strict construction of the provisions of
Sec 22(1) it was held by the SC that the Strike was
illegal and the employees must face and bear the
consequences of an illegal strike.

54
Sec 23-General Prohibition of
strikes/Lockouts
• No strike or Lockout when the proceedings are
pending before a board of conciliation
• No strike/ Lockout when the proceedings are
pending before LC, IT and NT
• No strike/Lock out when the proceedings are
pending before an Arbitrator and a second
notification has been issued by the appropriate
Govt.(majority of workmen are party to the ID and
the second notification gives opportunity to the
workmen who are not party to the arbitration
agreement)

55
• Strikes and Lock-out are regulated in sections-
22,23,of the I.D.Act,1947
• According to Sec.24, a strike in violation of 22 or 23,
would be illegal
• Contravention of Sec 10(3) or 10A(4-A) would be
illegal- the power of the appropriate Govt to prohibit
the continuation of strike/Lockout.
• Edward Keventors case-V- Delhi administration,(1983)

• Punishment is prescribed in section 26

56
Strikes and Lock outs under the
IR Code 2020
• 62. (1) No person employed in an industrial
establishment shall go on strike, in breach of
contract—
• (a) without giving to the employer notice of strike,
as hereinafter provided, within sixty days 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; or
• (d) during the pendency of any conciliation
proceedings before a conciliation officer and seven
days after the conclusion of such proceedings; or 57
• (e) during the pendency of proceedings before a
Tribunal or a National Industrial Tribunal and sixty
days, after the conclusion of such proceedings; or
• (f) during the pendency of arbitration proceedings
before an arbitrator and sixty days after the
conclusion of such proceedings, where a
notification has been issued under sub-section (5)
of section 42; or
• (g) during any period in which a settlement or
award is in operation, in respect of any of the
matters covered by the settlement or award.

58
• (2) No employer of an industrial establishment shall
lock-out any of his workers—
• (a) without giving them notice of lock-out as
hereinafter provided, within sixty days before
locking-out; or
• (b) within fourteen days of giving such notice; or
• (c) before the expiry of the date of lock-out
specified in any such notice as aforesaid; or
• (d) during the pendency of any conciliation
proceedings before a conciliation officer and seven
days after the conclusion of such proceedings; or

59
• (e) during the pendency of proceedings before a
Tribunal or a National Industrial Tribunal and sixty
days, after the conclusion of such proceedings; or
• (f) during the pendency of arbitration proceedings
before an arbitrator and sixty days after the
conclusion of such proceedings, where a
notification has been issued under sub-section (5)
of section 42; or

60
• (g) during any period in which a settlement or award
is in operation, in respect of any of the matters
covered by the settlement or award.
• (3) The notice of strike or lock-out under this section
shall not be necessary where there is already in
existence a strike or, as the case may be, lock-out,
but the employer shall send intimation of such lock-
out or strike on the day on which it is declared, to
such authority as may be specified by the
appropriate Government either generally or for a
particular area or for a particular class of services
61
• (4) The notice of strike referred to in sub-section (1)
shall be given by such number of persons to such
person or persons and in such manner, as may be
prescribed.
• (5) The notice of lock-out referred to in sub-section
(2) shall be given in such manner as may be
prescribed.
• (6) If on any day an employer receives from any
person employed by him any such notices as are
referred to in sub-section (1) or gives to any person
employed by him any such notices as are referred to
in sub-section (2), he shall within five days thereof
report to the appropriate Government or to such
authority as that Government may prescribe a 62
• 63. (1) A strike or lock-out shall be illegal, if it is—
• (i) commenced or declared in contravention of section
62; or
• (ii) continued in contravention of an order made under
sub-section (7) of section 42. (2) Where a strike or lock-
out in pursuance of an industrial dispute has already
commenced and is in existence at the time of the filing of
the application relating to such industrial dispute in the
Tribunal or of the reference of such industrial dispute to
an arbitrator or a National Industrial Tribunal, the
continuance of such strike or lock-out shall not be
deemed to be illegal, provided that such strike or lock-out
was not at its commencement in contravention of the
provisions of this Code or the continuance thereof was
not prohibited under sub-section (7) of section 42. 63
• the continuance of such strike or lock-out shall not
be deemed to be illegal, provided that such strike or
lock-out was not at its commencement in
contravention of the provisions of this Code or the
continuance thereof was not prohibited under sub-
section (7) of section 42.

• (3) A lock-out declared in consequence of an illegal

strike or a strike declared in consequence of an
illegal lock-out shall not be deemed to be illegal. 64.
No person shall knowingly spend or apply any
money in direct furtherance or support of any illegal
strike or lock-out.
64
Conciliation

• It is facilitated negotiation
• Conciliation and Board of conciliation
• Conciliation by the conciliation officer is quite popular
• It is compulsory in public utility services
• Among other services any section of an industrial
establishment on the working of which the safety of the
establishment or the workmen employed there in depends
is also a public utility service.
• In public utility services notice has to be given before going
on strike.

65
Powers of Conciliation officer
• Can for the purpose of inquiry in to an existing or
apprehended I.D, after giving reasonable notice, enter the
premises occupied by any establishment to which the
dispute relates
• Enforce the attendance of any person for the purpose of
examination
• Examine the person on oath if necessary
• Compel production of documents
• Issue commission for examination of witnesses
• Disobedience –prosecution is possible
• Punishment may extend to three months or fine which may
extend to Rs 500-00 or with both
•
66
Duties of the conciliation officer
• To mediate and promote the settlement of I.D
• Involvement of Conciliation is optional in non-public utility services-as a
practice conciliation officer involve when a dispute comes before him
• In public utility services conciliation officer shall hold conciliation
proceedings as soon as a strike notice is given under Section 22 of the
I.D.Act
• To bring about a fair and amicable settlement
• Conciliation if successful send a report to the Govt.
• Conciliation if not successful send a failure report to the Govt.
• Failure report must contain the steps takes and the reasons in his
opinion why conciliation failed
• Duty of confidentiality-if violated punishable with imprisonment which
may extend to 6months or fine of Rs1000=00 or both Sec21

67
Binding nature of conciliation
settlement
• Binding on parties to the dispute
• All other parties summoned to appear in the proceedings as
parties to the dispute
• Where a party referred to above is an employer, his heirs
successors or assigns in respect of the establishment to which
the dispute relates
• Where a party referred to above relates to workmen, all
persons who were employed in the establishment or part of
the establishment as the case may be to which the dispute
relates on the date of the dispute and all persons who
subsequently become employed in that establishment
• In reality how Bi-lateral settlements are converted in to
conciliation settlements!

68
Appropriate Government

• Sec 2(a) of the I.D Act defines

• Industries carried on by or under the authority of the
Central Govt –central govt is the appropriate govt
• Industries listed in the definition central Govt is the
appropriate Govt
• For other industries State Govt is the appropriate Govt
• Meaning of carried on by the C.G
• Meaning of carried under the authority of the C.G

69
Appropriate Govt case law
• Heavy Engineering Mazdoor Union-v-State of Bihar
1969(1)SCC 765
• HAL-V-Workmen AIR 1975 SC 1737
• Air India Statutory Corporation-v-United Labour
Union(1997)1LLJ 111 SC
• SAIL-V-National Union Water Front Workers
AIR 2001SC 3527
The changes made in 2010--
• Workmen of Sri Rangavilas Motors (P) ltd-v-Rangavilas
Motors (p) ltd(1967)2LLJ 12 SC

70
Appropriate Govt, 2010 amendment
• Sec 2(a) defines appropriate Govt.
• Any industry carried on by or under the authority of
the C.G, The C.G is the appropriate Govt.
• Carried on by or under the authority of the central
Govt undergoes change in 2010, by virtue of the
amendment-
• The amendment reads as – a company in which not
less than 51% of the paid up share capital is held by
the CG or any Corporation not being a corporation
referred to in this clause, established under any law
made by the parliament or the CPSU, Subsidiary co;
set up by the principal undertaking

71
• And autonomous bodies owned or controlled by the C G , the
CG is the appropriate Govt;
• Hence we have a list of organizations listed in the definition
for which the C.G is the appropriate Govt.
• Organizations carried on by the CG , CG is the appropriate
Govt.
• Company in which the CG has more than 51% shares the
appropriate Govt is CG.
• Any corporation established by the CG, It is appropriate Govt.
• CPSU and subsidiary companies set up by the principal-CG is
the appropriate Govt.
• Autonomous bodies owned or controlled by the CG, it is the
appropriate Govt

72
 (ii) in relation to any other Industry including the
State PSU, its Subsidiary companies set up bythe
principal undertaking and autonomous bodies
owned or controlled by the SG, the appropriate Govt
is the SG.

•The understanding prior 2010 and subsequent to

the amendment in 2010

73
Government power of Reference
• Section 10 (1)-where the appropriate Govt, is of opinion that
any ID exists or is apprehended, it may at any tine, by order in
writing-
(a)Refer the dispute to a Board of Conciliation
(b)To the Court of inquiry
(c)To the LC or IT depending on whether the subject matter of
the dispute is in second schedule or third Schedule

• It is administrative
• Subject to judicial Review
• Exercised at any time.
• The way the power has to be exercised has been discussed in a
number decisions of the SC and HC’s
74
• Elaborating this view further in Bombay Union of
Journalists-v- State of Bombay (1964) 1 LLJ 351 SC, the
SC said that if the appropriate Govt refuses to make a
reference for irrelevant considerations, on extraneous
grounds or acts mala fide, a party would be entitled to
move the HC for a writ of Mandamus.

• Telco convoy drivers Mazdoor Sangh & ors-V- State of

Bihar, AIR 1989 SC 1565,the appellant Sangh
represents about 900 convoy drivers, they by a letter
addressed to the Tata engineering and locomotive Co
ltd, demanding permanent status to all the convoy
drivers, and that they should be given all the facilities
as are available to the permanent employees of TELCO.
• In this case the core issue was whether the Convoy
drivers were employees of the employer TATA
Engineering ?
• The Dy LC by his informed the appellant Sangh that in view
of the labour Dept opinion given in the year 1973, was that
there was no Master and servant relationship between the
parties, the demand of the Convoy drivers Sangh did not
come with in the purview of the ID Act.
• the Sangh, aggrieved by the refusal of the Govt to refer the
dispute to adjudication under sec10(1) preferred the W.P
• The HC after hearing the matter took the view that the
Labour commissioner only referred to the opinion of the
Law Dept, without indicating in what context and in what
circumstances he rejected the demand for a reference.
• In this background the HC ordered that the Convoy Drivers
Sangh raise a fresh dispute before the Govt for reference of
the dispute for adjudication
• The HC expressed the hope that Govt consider the matter in
a proper perspective in the light of the documents and the
materials that would be placed by the Sangh in accordance
with Law.
• The Sangh made a request the Govt as per the advise order of the
HC.
• The Labour commissioner gave the same reasons as earlier and
refused to refer the dispute for adjudication
• Aggrieved by the order of the LC the W.P
• In this case the HC dismissed the WP holding that the appellants
had failed to satisfy that they were the employees of TATA
Engineering. In other words the HC accepted the decision of the
LC not to refer the dispute for adjudication.
• The SC based on a number of its earlier decisions held that the
Govt u/s 10(1) cannot adjudicate the dispute.
• It can only examine whether there existed an ID or not, only.
• In the instant case, the dispute is whether the persons raising the
dispute are workmen or not, the same cannot be decided by the
Govt in exercise of its administrative function u/s 10(1).
• The Govt may examine whether the dispute is frivolous or
perverse and cannot exercise the adjudicative powers of the
Tribunal.
• Hence the order of the Labour Commissioner that the
TELCO convey drivers are not workmen of the TATA
engineering cannot be sustained.
• As already mentioned an additional opportunity was given
to the Govt to reconsider its decision, but it rejected to
refer the dispute citing the same reason that the persons
concerned are not workmen.
• In the circumstances the SC directed the state of Bihar to
refer the dispute for adjudication
• Some of the other cases where the SC had ordered the
Govt to make the references are-Ram Avtar Sharma –V-
State of Haryana, (1985) S;2 LLJ, 187 SC; M.P. Karmachari
sangh-V- State of MP,(1985) 1 LLJ 519 SC; Nirmal Singh –V-
State of Punjab, ( 1984) 2 LLJ 396 SC.
 Compulsory Adjudication
• Industrial tribunal(1949)1LLj245 FC Western India
Automobiles-v- workmen
• Industrial adjudication is not according to the strict law of
master and servant
• Industrial tribunals have powers to do justice by applying
principles of equity
• They create rights and duties in favor of the parties
• They can create contract for the parties which can be enforced
by coercion
• Mismatch between the expectations and the qualifications

79
Procedure and practice before the
LC/IT
• After the receipt of the order of reference the adjudicator
issues a notice to the parties to the dispute and the
fallowing order of proceedings are usually fallowed
1.The claimant files the claim statement
2.The respondent files the reply to the claim
3.The claimant may file rejoinder to the reply
4.On the pleadings the adjudicator frames issues
5.There may be preliminary issues also before the main issues
6. The claimant opens the case through examination in chief

80
7.The respondent can cross examine the witnesses
introduced by the claimant
8. The respondent introduces evidence through examination
in chief
9. The claimant can cross examine the respondent witnesses
10. The case is posted for arguments-claimant –respondent
11. If parties want they can file written arguments
12. The tribunal analyses the materials before it and passes
the award

81
 Section 11A of the ID ACT
• In case of discharge or dismissal of a workman the LC,IT
can set aside the order of discharge and reinstate the
workman on such terms and conditions, if any, as it
thinks fit or give such other relief to workman including
the award of any lesser punishment in lieu of discharge
or dismissal as the circumstances of the case may require

82
Section 11-A of the I.D Act
• Proviso- In case of any proceedings under this section, the
L.C;I.T shall rely only on the materials on record and shall
not take any fresh evidence in relation to the matter
• Workmen of Firestone Rubber Co. of India Ltd-v-
Management (1973)1LLJ278SC held-Materials on record
means-
• Evidence taken at the inquiry and the proceedings of the
enquiry
• The above and any additional evidence led before the
tribunal
• Evidence placed before the tribunal for the first time in
support of action taken by an employer as well as the
evidence adduced by the workman contra

83
Voluntary Arbitration Sec10A
• Agreement between the workmen and the Management
• Send copy to the Govt and conciliation officer
• Publication of the agreement
• KarnalLeather Karmachari Sanghatan –v-Liberty foot wear
(1989)SCC448-Publication of the arbitration agreement is a
must before arbitration
• Notification by the Govt if majority workmen are parties to
the dispute
• Binding nature of the award-18(2) or 18(3)
• Rohtas Industries Ltd-v-Rothas industries staff union –
Arbitration subject to judicial review

84
 Publication of awards
• Publication is must
• Time duration of 30 days is directory
• Award comes in to operation 30 days after publication
• Remington Rand of India Ltd-v-Workmen(1962)1LLJ287SC
• Grindlays bank-v-CGIT(1980)SuppSCC420- Power of the Tribunal to reca
the award
• State amendments regarding publication
• Central amendment in 2010, pronouncement in the open tribunal is
deemed publication-30 days time, before execution
• Execution proceedings-2010
• Tribunal to transmit the award to the civil court having jurisdiction to
execute
• Industrial Relations Code 2019 retains the position of 2010 amendment
85
Works committee
• Applicable to industrial establishments-establishments in
which industry is carried on-employing 100 or more
workmen
• To be constituted when there is an order by the appropriate
govt.
• Consist representatives of employers and workmen-
representatives of workmen on the committee shall not be
less than that of the employer-hence there may be reps of
the workmen.
• The total number of members should not exceed 20

86
• It shall be the duty of the works committee to
promote measures for securing and preserving
amity and good relations between the employer
and the workmen
• To achieve the above the committee can comment
upon matters of their common interest or concern
and Endeavour to compose any material difference
of opinion in respect of such matters
• Northbrook jute Co;-v- their workmen(1960)1 LLJ
580

87
• The works committees were not intended to
supplant or supersede the Trade unions for the
purpose of collective bargaining.
• They are not authorised to consider real or
substantial changes in the conditions of service.
• Their task is to only smooth away frictions that
might arise between the workmen and the
management in day to day work
• It is more a body to prevent minor
misunderstandings to snowball in to a dispute
88
• The duration of the works committee will be 2 years
• The employers representatives will be nominated and the
workers reps will be elected.
• Minimum age for contesting elections is 19 years, as there is
a requirement of one years experience before contesting
elections
• Minimum age for voting is 18 years
• Workmen representation must be wide spread as far as
possible
• Registered TU as well as workmen who are not members
will be given opportunity to be on the committee
89
Grievance settlement authorities
for individual disputes
• Sec 9 C of the ID act provides for this
• Applicable to industrial establishments with 50 or more
• To settle industrial disputes relating to individual workman
• A workman or the TU of which he is a member can
approach this body
• This body is to iron out differences internally as far as
possible
• This sec is not yet brought in to effect but nothing prevents
an employer from constituting this

90
Manner of choosing members from the employers
and the workers for Grievance Redressal Committee
under sub-section (2) of section 4

(1) The Grievance Redressal Committee shall consist of

equal number of members representing the employer
and the workers, which shall not exceed ten.
(2) The representatives of the employer shall be
nominated by the employer and shall, as far as may be
possible, be officials in direct touch with or associated
with the working of the industrial establishment,
preferably the heads of major departments of the
industrial establishment.
(3) The representatives of the workers shall be chosen
by the registered Trade Union. In case where there is no
registered Trade union the member may be chosen by
the workers of the industrial establishment.
91
• Provided that there shall be adequate representation of
women workers in the Grievance Redressal Committee
and such representation shall not be less than the
proportion of women workers to the total workers
employed in the industrial establishment.
• Provided further that the tenure of the members of the
Grievance Redressal Committee shall be coterminous
with the tenure of the members of the registered Trade
Union.
• Provided further that in the absence of registered
Trade Union, the tenure of members of Grievance
Redressal Committee shall be for a period of two years
from the date of the constitution of the Grievance
Redressal Committee.

92
(4) Where any workers of the industrial establishment are members
of a registered Trade Union, the employer shall ask such Trade
Union to inform him in writing as to –
(a) how many of the workers are members of such Trade Union;
(b) Where an employer has reason to believe that the information
furnished to him under clause (a) by the registered Trade Union is
false, he may, after informing such Trade Union, refer the matter to
the Regional Labour Commissioner (Central) who shall, after
hearing the parties, shall decide the matter and his decision shall be
final.
(5) On receipt of the information called for under sub-rule (4), the
employer shall provide for the selection of worker‘s representative
on the Committee by two following groups, namely:-
(a) registered Trade Union may choose their representatives as
members for Grievance Redressal Committee in the proportion of
their membership.
(b) such workers those who are not member of registered Trade
Union, may choose amongst themselves representatives for the
Grievance Redressal Committee.
93
Application in respect of any dispute to be filed
before the Grievance Redressal Committee by any
aggrieved worker under sub-section (5) of section 4

Any aggrieved worker may file an application

stating his dispute therein before the Grievance
Redressal Committee giving his name,
designation, employee Code, Department where
posted, length of service in years, category of
worker, address for correspondence, contact
number, details of grievances and relief sought.
Such application may be sent electronically or
otherwise. The Grievance may be raised within
one year from the date on which the cause of
action of such dispute arises.

94
Manner of filing application for the conciliation of
grievance as against the decision of the Grievance
Redressal Committee to the conciliation officer
under sub-section (8) of section 4
Any worker who is aggrieved by the decision of the Grievance
Redressal Committee or whose grievance is not resolved by the
said Committee within thirty days of receipt of the application, may
file an application through Samadhan Portal of the Ministry of
Labour and Employment or by registered post or speed post within
a period of sixty days from the date of the decision of the Grievance
Redressal Committee or from the date on which the period specified
in sub-section (6) of section 4 expires, as the case may be, to the
conciliation officer through the Trade Union, of which he is a
member or otherwise
Provided that in case of manual receipt of such application through
registered post or speed post, the conciliation officer shall get the
same digitized and enter the particulars of the application in the
online mechanism under intimation to the concerned worker.

95
Non statutory committees
• Production committee
• Joint management committees
• Welfare committees
• Canteen committee( as required under the
Factories Act, and even otherwise where factories
Act is notapplicable)

96
 Layoff-Regulations
• 2(kkk) of the Act defines, Lay off means the failure
or the inability of an employer an account of
shortage of coal, power, or raw materials or the
accumulation of stocks or the breakdown of
machinery or natural calamity other connected
reasons to give employment to a workman whose
name is borne on the muster rolls of his industrial
establishment and who has not been retrenched

97
• Lay off is applicable only to industrial
establishments( Factories, Plantations and Mines)
• Industrial establishments employing less than 50
workmen not covered under the regulation
• Workmen of Firestone Rubber Co;Ltd-v-
Management(1976)1LLJ493SC
• 50 and more workmen but less than 100 workmen
is regulated for the purpose of payment of
compensation No prior permission required

98
• Less than 50 workmen- No statutory regulation.
• But workmen firestone rubber Co; case law as
developed by the SC
• 50 to 100, in the IR Code 50 to 300 statutory
compensation 50% Basic + DA for 45 days in a
period of 1 Year. After wards Retrenchment or as
per the agreement if there is one.
• Above 100 and in the IR Code above 300, the above
compensation and prior permission.

99
• 25-A: Lay off regulation applicable to Industrial
establishments, both chapter VA and VB.
• It is not applicable to industrial establishments which are of
seasonal character or in which work is performed
intermittently.
• If a question arises whether an industrial establishment is of
seasonal character or not, or whether the work is performed
intermittently, the decision of the appropriate Govt is final.
• 25B: definition of continuous service- a workman shall be
said to be in continuous service for a period if he is, for that
period, in uninterrupted service including service which may
be interrupted on account of sickness or authorised leave, or
an accident or a strike which is not illegal, or a lockout or a
cessation of work which is not due to any fault on the part of
the workman

100
• Where a workman is not in continuous service with
in the meaning of Sec 25B(1) for a period of one
year or six months, he shall be deemed to be in
continuous service under an employer-
• (a) for a period of one year if the workman during a
period of 12 calendar months preceding the date
with reference to which calculation is to be made,
has actually worked under the same employer for
not less than –
• 190 days in case of workman employed below the
ground in a mine;
• 240 days in any other case,
• 95 days For a period of six months in mines and
120 days in any other case
101
• In calculating the said period of time the fallowing
should be excluded:
• The period for which he has been laid off
• He has been on leave with full wages, earned in the
previous year
• He has been absent due to temporary disablement
caused by an accident arising out of and in the
course of employment,
• In case of female employee, she has been on
maternity leave.

102
25 C right to lay off
compensation
• 50% 0f the total of basic and DA
• Intervening weekly holidays no compensation.
• Maximum period for which compensation paid is
45 days in a period of 12 months.
• After 45 days the employer gets a statutory right to
Retrench.
• This is subject to any agreement in this regard
between the employer and workman

103
Layoff continued
• Industrial establishments employing 100 and more are
covered by the Chapter VB.
• Prior permission of the Government
• Shortage of power or natural calamity, there can be layoff
but approval is required
• In case of mines lay off with out permission in case of fire,
floods, excess inflammable gas or explosion
• Approval of the same is required and application has to be
made with in 30 days
• If permission or approval is not give within 60 days, it is
deemed to have been given
• Constitutionality papanasam labour union case AIR 1995 SC
2200

104
Retrenchment
• Retrenchment is defined in Section 2(oo) of the I.D. Act. `Retrenchment’
means the termination by the employer of the services of a workman for
any reason whatsoever, otherwise than
(a) as a punishment inflicted by way of disciplinary action,
(b) voluntary retirement of the workmen ; or
(bb) (1984) termination of the service of the workman as a result of the non-
renewal of the contract of employment between the employer and the
workman concerned on its expiry of such contract being terminated under a
stipulation in that behalf contained therein.
(c ) retirement of the 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
(d) (2000) termination of the worker as a result of completion of tenure of
fixed term employment
(e) Termination of the service of a workman on the ground of continued ill
health.

105
Retrenchment continued
• In the early phase of interpretation the Constitutional
Bench decisions of the Supreme Court held that
Retrenchment is termination of surplus labour.
• In Pipraich Sugar Mills Ltd;-V- PSM Mazdoor union, AIR 1957
SC 95, the question was whether the discharge of workmen
on closure of the industrial undertaking would constitute
Retrenchment?
• The SC answered that, “Retrenchment connotes, in its
ordinary acceptation that the business itself is being
continued, but that a portion of the staff or labour force is
discharged as surplusage; Retrenchment means in ordinary
parlance, discharge of the surplus, it cannot include
discharge on closure of business”

106
• In Barsi Light Rly Co; Ltd-V-K. N. Joglekar, (1957) 1 LLJ, 243,
again a Five judge bench of the SC answering the question
whether closure of termination of workmen on transfer of
the entire business would amount to retrenchment, held
that, “Retrenchment means as defined in sec 2(oo) and
used in sec 25F, has no wider meaning than the ordinary
accepted connotation of the word. It means the discharge
of the surplus labour or staff by the employer, for any reason
what so ever otherwise than as a punishment inflicted by
way of disciplinary action, and it has no application where
the services of all workmen were terminated by the
employer, on the business or undertaking being taken over
by another, or closure of the business”.
• On our interpretation in no case is there any retrenchment
unless there is a discharge of surplus labour in a continuing
or running Industry
107
• Another 5 judge bench of the SC in Anakapalle
CAIS ltd;_v_ workmen, AIR 1963 SC, 1489,affirming
the decision of the SC in Barsi Light Rly case,
observed that ,Retrenchment necessarily
postulates the termination of the employees
service on the ground that the employee had
become surplus.

108
• In Digwadih Colliery-V- workmen AIR 1966 SC 75,
the SC held that the termination of the services of a
badli workman who had worked for more than 240
days in a period of 12 months preceding such
removal would amount to retrenchment
• In Mgt of Wilcox Buckwell(India) Ltd;-V- Jagannath,
1974 Lab IC 706, SC the SC held that even the
termination of the services of a temporary
employee, on the ground of surplus Labour
amounts to Retrenchment.

109
• In subsequent cases of the Supreme Court like
State Bank of India v. N. Sundramoney (1976)1 LLJ
478 SC, The division Benches of the Supreme
Court held that retrenchment means termination
of service of a workman for any reason whatsoever
otherwise than as a punishment or for other
exceptions mentioned in the definition.
• in this case the SC further held that for any reason
whatsoever is very wide and almost admitting no
exception .

110
• In Delhi cloth and Gen mills co ltd-V-Shambu nath
Mukherjee, the court held that the striking-off the
name of a workman constitutes Retrenchment.
• in Hindustan Steel Ltd-V- State of Orissa, (1977) 2
LLJ 154, the SC held that automatic termination of
service, on the expiry of the contractual period of
three years would constitute Retrenchment.
• Santosh Gupta-V- State Bank of Patiala, AIR 1980
SC 1219, a division bench of the SC again held that
retrenchment cannot be given a restricted meaning
the it is termination of surplus labour. If that was
the intention of legislature the definition would not
the way it is.
111
• Consequences of Sundermoney case and other
cases giving a wide meaning to Retrenchment
necessitated, introduction of (bb) to 2(oo).
• Subsequent to the amendment, the fallowing
cases;
• CM Venugopal- V- LIC of India;AIR 1994 SC 1343
• Central inland water Transport corp ltd-V- BN
Ganguli, (1986) 2 LLJ 171(SC)
• OP Bhandari-V- ITDC ltd, AIR 1987 SC 1111
• Delhi Transport Corp-V-DTC Mazdoor Congress AIR
1991 SC 101

112
• In Madhya Pradesh Bank Karmachari Sangh v. Syndicate
Bank (1996) Lab IC 1161 M.P.). On a review of the law as
laid down by the Supreme Court and various high courts,
the Madhya Pradesh High court has stated the following
principles of interpretation and application of the
Provisions of Clause 2(oo)(bb)
• That the provision of Section 2(oo)(bb) are to be construed
benevolently in favour of the workman;
• that if the workman is allowed to continue in service by
making periodic appointments from time to time then it
can be said that the case would not fall under 2(oo)(bb) ;
• that the Provision of Section 2(oo)(bb) are not to be
interpreted in a manner which may stifle the main
provision;

113
• that if the workman continues in service, the non-
renewal of the contract can be deemed as malafide
and it may amount to be a fraud on the statute;
• that there would be a wrong presumption of non-
applicability of Section 2(oo)(bb) where the work is
of continuous nature and there is nothing on
record to show that the work for which a workman
had been appointed has come to an end.

114
Regulation of retrenchment
:“No workman employed in any industry who has been in continuous service
for not less than one year under the employer shall be retrenched by that
employer until –

• the workman has been given one months’ notice in writing indicating the
reasons for retrenchment and the period of notice has expired, or the
workman has been paid in lieu of such notice wages for the period of
notice;

• the workman has been paid, at the time of retrenchment compensation

which shall be equivalent to 15 days average pay for every completed year
of continuous service or any part thereof in excess of six months; and
• notice in the prescribed manner is served on the appropriate Government

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Regulation of Retrenchment25G
This Section speaks about the rule of
• `last come first go’.
• The employer can deviate from this rule in three
circumstances :
• When the retrenched employee is not a citizen of India;
• When there is an agreement between the employer and
the workman to deviate from this;
• By recording reasons as to why he is deviating from the
rule.

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• In Workmen v. Jorhant Tea Co. Ltd. (1980)3 SCC 406, it was
held that the departure from the last come first go rule is
permissible on valid and justifiable grounds
• In Swadesamitran Ltd. v. Workmen, AIR 1960 SC 762, the
Supreme Court held that the employer may take into account
considerations of efficiency and trustworthy character of
workmen and if he is satisfied that a person with long service is
inefficient, unreliable or habitually irregular in the discharge of
his duties, it would be open to the employer to retrench his
services.
• In Om Oil and Seeds Exchange Ltd. v. Workmen, AIR 1966 SC
1657, the Supreme Court held that where the management
bonafide retains staff possessing special aptitude in the
interest of the business, it cannot be assumed to have acted
unfairly merely because the rule of last come fist go is not
observed.

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• Fixed time employment introduced by amending
Industrial employment Standing orders in 2017
• Also amendment to the definition of retrenchment-
Exceptions. Fixed term employment when it ends
then it is not retenchment

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Regulation of retrenchment
Chapter - VB
• Prior permission of the Government required
• Application by giving three months notice
• If decision is not made in 60 days from the date of
application –deemed permission
• Order or deemed permission is valid for 1year
• With in one year there is scope for review of the decision
• Compensation @15 days wages for every completed year of
service
• Workmen of Meenakshi mills-v-Meenakshi
MillsAIR1994SC2696 constitutionality upheld

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Closure
• Section 2(cc) of the ID Act defines closure as the permanent
closing down of a place of employment or part thereof.
• In determining closure and differentiating from lock-out the
intention of the employer is very important
• There is no need to give closure notice in case of
undertakings employing less than 50 workmen but there is
need to pay compensation as deemed Retrenchment
• Industries employing between 50 and 99 employer has to
give 60 days notice to the appropriate Govt, plus deemed
retrenchment compensation.
• The closure regulation is not applicable to undertakings set
up for the construction of buildings bridges, roads, canals,
dams or other construction work if the work is completed
within 2 years.

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• Even with respect to undertakings employing between 50
and 99 workmen the appropriate government may exempt
the application of regulations to close,
• if it is because of exceptional circumstances, as accident in
the undertaking or death of the employer or the like.
• In case of industrial establishments employing 100 and
more workmen prior permission of the government
required.
• Under the IR Code 2020, the number is increased to 300.
• Excel wear –V- UOI, AIR 1979 SC 25, constitutionality of the
original 25(O)

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• pursuant to the excel wear case, which struck
down section 25(o) as ultravires the constitution,
changes were made to the 25(o) and the closure
regulations are reintroduced from 1984.
• The constitutionality of the new 25(o) was
challenged before various High courts. The SC
withdrew to itself all those cases and decided the
constitutionality of the new 25(o)
*Such regulation constitutionally valid in Orissa
Textiles Ltd-v-State of orissa (2002 )2SCC578

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• 25(O) procedure for closing down an undertaking-
• Applicable to industrial Establishments employing
100/300 more workmen.
• Three months notice, giving reasons for closure-
the notice is not required in case of an undertaking
set up for the construction of buildings, bridges,
Roads, canals, dams,or for other construction work.
• Once the application for permission is made the
appropriate Govt after making enquires it thinks
fit, and after giving reasonable opportunities to the
employer, workmen, persons interested in such
closure, having regard to the genuineness of the
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Reasons and the interest of the public may either give
permission or refuse to give permission.
# copy of such decision t be communicated to the
employer and the workmen
# if the Govt does not decide on the application with
in 60 days from the date of making the application,
the permission is deemed to have been given
# such order of the Govt will be valid for One year.
# after One year the appropriate may on its own or an
application made by the employer review its order.
# in between Judicial review

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• Any closure in violation of the appropriate Govt order,
refusing closure will be illegal .
• The workmen will be deemed to be illegal and the
workmen will be entitled to all the benefits under any
law for the time being in force as if the undertaking had
not been closed down.
• The appropriate Govt may if it is satisfied that owing to
such exceptional circumstances as accident in the
undertaking or death of the employer or the like, or the
like, if it is necessary the govt may direct that the
provisions of giving notice shall not apply in relation to
such undertaking for such period as may be specified,
• In case of permission or deemed permission
compensation @ 15 days average pay for every
completed year of service. 125
Transfer of Undertakings 25FF
• If the ownership or management of the industrial
undertaking is transferred,
• whether by the agreement or operation of law,
every workman who has been in continuous service
for not less than a year in that industrial
undertaking shall be entitled to notice and
compensation as if it is deemed retrenchment
under section 25F.

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• The workman will not be entitled to compensation under the
following circumstances –
• the service of the workman has not been interrupted by such
transfer;
• the terms and conditions of the service applicable to the
workman after such transfer are not in any way less favorable
compared to, what was applicable to them, immediately
before the transfer;
• new employer is under the terms of such transfer legally liable
to pay to the workman, a retrenchment compensation in the
event of retrenchment, without any break of service, at the
time of transfer.

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Section 33 Regulation of the
Management prerogative
• Section 33(1) prior permission with respect to matters
connected with the pending dispute
• Required both to change the service conditions connected
with the pending dispute and for disciplinary action
connected with the pending dispute
• Section 33(2)No permission for matters not connected with
the pending dispute for making alterations in service
conditions
• Punishment in connection with matters not connected with
the pending dispute-only approval required
• Punjab Beverages case (1978)2LLJ1SC 3judges
• Jaipur ZSB-v-R.G.Sharma(2001)1LLN639SC 5judges

128
• Section 33 A-Special provisions for adjudicating as
to whether conditions of service etc, changed
during the pendency of proceedings.

129
Section 33 C Recovery of money
due from an employer

130
Section 29 –penalty for breach of
settlement or award.

131
• Section 9A of the ID Act 1947.-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 affected; or
(b)Within 21 days of giving such notice. Provided no
notice shall be required for affecting any settlement
or award.

132
• contents of Schedule four:
1.Wages including the period and mode of payment
2.Contribution paid or payable by the employer to
any PF or pension fund or for the benefit of the
workmen under any Law for the time being in force
3.Compensatory and other allowances;
4.Hours of work and rest intervals;
5.Leave with wages and holidays;

133
 6. starting, alteration or discontinuation of shift
working otherwise than in accordance with standing
orders;
7. classification by grades;
8. withdrawal of any customary concession or
privilege or change in usage;
9. introduction of new rules of discipline, or
alteration of existing rules, except insofar as they are
provided in standing orders;
10.rationalization, standardization or improvement
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 of plant or technique which is likely to lead to
retrenchment of workmen;
11. any increase or reduction (other than casual) in
the persons employed or to be employed in any
occupation or department or shift, (not occasioned
by circumstances over which the employer has no
control).

135
 Section 11A of the ID Act
*In case of discharge or dismissal of a workman the
LC,IT can set aside the order of discharge and
reinstate the workman on such terms and
conditions, if any, as it thinks fit or give such other
relief to workman including the award of any lesser
punishment in lieu of discharge or dismissal as the
circumstances of the case may require
# provided that in any proceeding under this section
the LC, IT as the case my be, shall rely on the
materials on record and shall not take any fresh
evidence in relation to the matter.

136
• Proviso- In case of any proceedings under this
section, the L.C;I.T shall rely only on the materials on
record and shall not take any fresh evidence in
relation to the matter
• Workmen of Firestone Rubber Co. of India Ltd-v-
Management (1973)1LLJ278SC held-Materials on
record means-
• Evidence taken at the inquiry and the proceedings of
the enquiry
• The above and any additional evidence led before
the tribunal
• Evidence placed before the tribunal for the first time
in support of action taken by an employer as well as
the evidence adduced by the workman contra
137
• Unfair labour practices Schedule 5th of the ID Act
read with Section 25U.

138
Protected workmen
• A protected workman is one,
• who is a member of the executive or other office bearer of
a registered trade union, connected with the establishment
• and is recognized as protected workman in accordance with
the rules.
• Every registered trade union connected with the industrial
establishment shall communicate to the employer before
30 of April of every year, the names and addresses of the
office bearers on whom they want the employer to confer
the status of protected workman.

139
• In an establishment the number of workman to be recognized
protected workman shall be one percent of the total number
of the workmen employed therein,
• subject to a minimum number of five and maximum number
100.
• In case where there are more registered unions the employer
shall distribute available positions of protected workmen
among the unions in proportion to their membership.
• In case of protected workman, irrespective of whether the
workman is connected with pending dispute or not for
imposing punishment prior permission of the authority before
whom the dispute is pending, must be obtained in writing.

140
Penalties under the I.D ACT
• any person who commits any unfair labour practice shall be
punishable with imprisonment for a term which may extend to 6
months or fine, which may extend to 1000 rupees or both;
• any workman who commences, continues, or otherwise acts in
furtherance of a illegal strike, shall be punishable imprisonment for a
term which may extend to one month or with fine, which may
extend to 1000 rupees or with both;
• any employer who commences, continues, or otherwise acts in
furtherance of a lockout, which is illegal shall be punishable with
imprisonment, which may extend to one month or with fine, which
may extend to 1000 rupees or with both;
• any person who instigates or incites others to take part in or
otherwise acts in furtherance of a strike or lock out which is illegal
shall be punishable with imprisonment, which may extend to 6
moths or with fine, which may extend to 1000 rupees or with both;

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• any person who knowingly extends or applies any money in
direct furtherance or support of illegal strike, or lockout
shall be punishable with imprisonment for a term, which
may extend to 6 moths or with fine, which may extend to
1000 rupees or with both;
• any person who commits breach of any tem of any
settlement or award which is binding on him under this act
may extend to 6 moths or with fine, which may extend to
1000 rupees or with both;
• any employer who closes down any undertaking without
notice as required under 25FFA shall be punishable with
may extend to 6 moths or with fine, which may extend to
5000 rupees

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• THANK YOU

• QUESTIONS AND ANSWERS

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