Labour laws course materials




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NOTES


Lockout means the closing of a place of business or the suspension of work or the refusal by an employer to continue to employ any number of persons employed by him. In lock-lock the employer refuses to employ any number of workmen even though the business activity was not closed down nor intended to and closed down.
Distinction between “lock-out” and lay-off” – see Kairbetta Estate Vrs. Rajamanikam : AIR 1960 SC 893
Lockout declined consequent upon illegal strike by workman – No work no pay Principle applicable – No wages are payable during the period of lockout since the strike was illegal and lockout to both legal & justified – 1996 (2) LLJ 930 (SC).
Identification of workman is that he should be under the control and supervision of the employer – AIR 1958 SC 388.

  • (la) "major port" means a major port as defined in clause (8) of section 3 of the Indian Ports Act, 1908 (15 of 1908);

  • (lb) "mine" means a mine as defined in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952);

  • (ll) "National Tribunal" means a National Industrial Tribunal constituted under section 7B;

  • (lll) "office bearer", in relation to a trade union, includes any member of the executive thereof, but does not include an auditor;

  • (m) "prescribed" means prescribed by rules made under this Act;

  • (n) "public utility service" means -

    • (i) any railway service or any transport service for the carriage of passengers or goods by air;

    • (ia) any service in, or in connection with the working of, any major port or dock;

    • (ii) any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends;

    • (iii) any postal, telegraph or telephone service;

    • (iv) any industry which supplies power, light or water to the public;

    • (v) any system of public conservancy or sanitation;

    • (vi) any industry specified in the First Schedule which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification:
      Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months, at any one time if in the opinion of the appropriate Government public emergency or public interest requires such extension;

  • (o) "railway company" means a railway company as defined in section 3 of the Indian Railways Act, 1890 (9 of 1890);

  • (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -

    • (a) voluntary retirement of the workman; or

    • (b) 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

    • (bb) 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 or of such contract being terminated under a stipulation in that behalf contained therein; or

    • (c) termination of the service of a workman on the ground of continued ill-health;

NOTES

The expression “termination………… of the service of a workman for any reason whatsoever” was interpreted by the Supreme Court in Barsi Light Railway Co. Ltd. Vrs. K.N. Jogelekar, AIR 1957 SC 121 to mean that “retrenchment as defined in Sec. 2(oo) and as used Sec. 25-F, has, no wider meaning than the ordinary accepted for any reasons whatsoever, otherwise than as punishment inflicted by way of disciplinary action and for any of the reasons falling under sub-clauses (a), (b), (c) of the definition.


It would thus appear that “retrenchment” means the discharge of surplus labour or staff by the employer for any reasons whatsoever except in the four class of cases mentioned above.
In Santosh Gupta Vrs. State Bank of Patiala, AIR 1980 SC 1219, termination of service of a probationary workman not considered for confirmation has been held to be a case of retrenchment.
Striking off name of the workman from the rolls by management in termination of service. Such termination of service is retrenchment within the meaning of Sec. 2(oo) of the Act as decided by the Supreme Court in Punjab Land Development Vrs. The Presiding Officer Labour Court, Chandigarh, 1990 (61) FLR 73(SC). See also Delhi Cloth & General Mills Co. Ltd. Vrs. Shambu Nath Mukherjee, AIR 1978 Sc 8; Arun Kumar Mathur Vrs. Labour Court; 1993 LLR 139.
The words used in Sec. 2(oo) are comprehensive in nature and intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever. D.K. Yadav Vrs. M/s. J.M.A. Industries Ltd. 1993 (67) FLR 111 (SC).
Sections 2(oo) and 25E – Retrenchment – Workmen employed during crushing season in Sugar Mills – Due to closure such workmen ceased to do work – It would not amount to retrenchment. Morinda Co-op. Sugar Mills Ltd. Vrs. Ram Kishan & Others. 1996 LLR 214 (SC).
Sec. 2(oo) (bb) – Effect of – No retrospective effect can be given to new clause (bb). Punjab State Seeds Corpn. Vrs. Labour Court, 1996 (72) FLR 555 (P&H).

Term “Retrenchment’ does not mean only termication by the employer of the service of surplus labour for any reason whatsoever. The expression ‘Retrenchment’ is not to be understood in its narrow, natural and contextual meaning, but is to be understood in its wider, literal meaning to mean termination of service of workman for any reason whatsoever – 1990 (ii) LLJ 70 (SC).


The discharge of a workman on the ground that she did not pass the test which would have enabled her to be confirmed is retrenchment within Sec 2 (oo) and sec 25(F) has to be complied with – AIR 1980 SC 1219.
In respect of a permanent employee, having no fixed term contract of service with the employer, there is no question of his services being terminated on the expiry of the contract – In the absence of a fixed term contract between the parties, the question relating to the termination being in pursuance of astipulation to that effect in the contract of employment, doesnot fall under the Rule of Exception contemplated u/cl (bb) of S. 2(oo) and termination being retrenchment, would be in violate of Sec. 25-F for non-compliance of its provisions – 1998 (1) LLJ 1165 (SC).


  • Retrenchment of any employee on the ground of unauthorized absence from duty and without complying with the requirements of Sec. 25-F – Retrenchment is not valid – W.P. No. 8460/81 dt. 7.4.1982 (unreported) Md. Abdul Razzak Vrs. Ex. Engr. Irrigations Power Godavari Head Quarters Division & another.




  • Workman was employed for 6 months and further extension of Period of employment could not affect the terms and conditions of the contract and therefore termination of workman cannot be brought within the scope of retrenchment since it is covered by S. 2(oo) (bb) of the Act & Provisions of Sec. 25-F do not apply – 1999 (1) LLJ 142 (1996(1) LLJ 888(SC) Referred.




  • When appointments are regulated by statutory rules, the concept of industry to that extent stands excluded – 1998(2) LLJ 15(SC).




  • Definition of retrenchment not retrospective in Sec. 2(oo) and discharge effected not retrenchment within meaning of Sec, 7(1) (b) of the I.D. (Appellate Tribunal) Act, 1150 – AIR 1958 SC 204. Expression termination by the employer’ covers any kind of termination u/s 2(oo) – AIR 1982 SC 857.

Fresh employment after, retirement termination does not fall u/s 2(OO)- AIR 1983 SC 865. Termination of services of workman due to reduction of work amounts to retrenchment – AIR 1984 SC 500. Retrenchment by efflux of time contrary to provision of law u/s 2(OO) & 25F – AIR 1977 SC 31. Non-compliance of Sec. 25-F, the retrenchment is ab initio void – AIR 1981 SC 1253. Retrenchment not covered in seasonal work when ceases – AIR 1996 SC 332.


Retrenchment of workman – Re-employment – In the matter of re-employment of retrenched workman, Sec. 25-H is applicable to all such workmen and not only to those correct by Sec. 25-F – AIR 1996 SC 2526.
Termination of service of an employee who was on probation because he failed to achieve target of business – Such termination would not amount retrenchment – Competent authority can terminate services of such probationers whose performance is unsatisfactory without giving any notice – AIR 1994 SC 1343.
Retrenchment of workman who was engaged in seasonal work in sugarcane crushing – Closure of season – it is not to be said to have been retrenched when they cease to work due to closure of season – Such workman cannot be treated as retrenched – AIR 1996 SC 332.
Termination of appointment – A workman is not entitled to backwages if his appointment was terminated in accordance with term of appointment – AIR 1996 SC 1001.
Where the notification issued permitting corporation to withdraw pay roll check of facility of workers was illegal and invalid, therefore, workers union has locus standi to maintain a writ petition challenging the notification – 1993 (3) SRJ 309.

  • (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 [an officer authorised in this behalf by the appropriate Government and the conciliation officer;]

NOTES


The definition envisages two categories of settlement : (i) settlement which is arrived at in the course of conciliation proceedings , i.e., which is arrived at with the assistance and concurrence of the Conciliation Officer, and (ii) a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceedings. M/s. Tata Chemical Ltd. Vrs. Their Workmen , AIR 1978 SC 828 also Jhagarkhand Colleinies Ltd. Vrs. Central Govt. Industrial Tribunal (1975) Lab. I.C. 137 (S.C.).

Settlement which belongs to the second category has limited application, i.e., it merely, binds the parties to the agreement but the settlement belonging to the first category has extended application since it is binding on all parties to the industrial dispute, to all other who were summoned to appear in the conciliation proceedings, to all others who joined the establishment thereafter. Therefore, a settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had object to the same. See Barauni Refinery Pragatisheel Shramik Parishad Vrs. Indian Oil Corporation Ltd., 1990 (61) FLR 203 (SC).See also Herbertsons Ltd. Vrs. Their Workmen ; (1977) Lab: I.C. 162 (SC). S.T.P. Ltd Vrs. 1st Industrial Tribunal, West Bengal; 1996 LLR 311; Plantation Employees Union of South India Vrs. Estate Staff Union of South India; 1993 (67) FLR 22 (Ker).

As settlement as a whole is binding on the parties, not part thereof only. In other words, those who invoke Sec. 18(3) are not entitled to seek the implementation of a settlement with the reservation treating parts of the terms as binding on them and part of its not binding. Herbertsons Ltd. Vrs. Their Workmen, (1977) Lab. I.C. 162; see also Gandhidham Nagarplika Adipur Vrs. R Israni , 1993 LLR 367.

Sections 2(p) and 18(1) - Settlements – Provisions regarding binding nature – Intended to achieve industrial peace and to avoid prolonged dispute – Tribunal or Labour Court cannot deal with matters covered by such settlement. Blue Star Ltd. Vrs. K S Khurana ; 1993 II CLR 542.

Section 2(p) and 18(1) – settlement – An industrial dispute between employer and employees settled by – Copy of which not forwarded by employer to authorities prescribed by Rule 58(4) of Rules – Would not affect the validity of it- Settlement comes into force on the day it was signed by the parties. State Bank of India Staff Union Vrs. State Bank of India, 1992 (65 FLR 234 (Mad).

Sections 2(p) and 12(5) – Settlement – Certain demands raised by the Department of telecommunication – Before conciliation officer, some understanding developed and recorded – Agitation called off on assurance of the Minister to implement the demands – it would not be a settlement and the authorities can be approached for making reference . Bachi Singh Vrs. Union of India, 1993 (67) FLR 148 (SC).

Sections 2(p), 12, 18(1), 29 and 33(c) – settlement – Agreement when concluded- Constitutes settlement – Parties, employees and conciliation officer present in meeting – Would be equivalent to conciliation proceeding- Binding effect of- Discussed . STP Ltd Vrs. 1st Industrial Tribunal, W.B. 1996 LLR 301.

Settlement would not take in Oral agreement or understanding to supercede an earlier written statement – 1997(1) LLJ 872 (SC).

Once the matter is settled , no further industrial dispute can be raised- 1997(1) LLJ 20 (Mad).


  • (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;


NOTES
Illegal Strike & Justified -

Mere illegality of the strike does not perse spell unjustifiability. Gujarat Steel Tubes Vrs. Gujarat Steel Tubes Mazdoor sabha; (1980) I.L.L.J. 137 (SC).


Wages for strike period -
A strike which is legal and justified the workmen will be entitled to full wages for the strike period. Churakulam Tea Estate Vrs. Its Workmen, (1969) II L.L.J. 407 (SC); see also Crompton Greaves Ltd Vrs. Its Workmen (1978) II L.L.J. 80 (SC).
Legality of a strike may be ascertained from the statue and justifiability or unjustifiability would depend upon the facts and circumstances of each case.

  • (qq) "trade union" means a trade union registered under the Trade Unions Act, 1926 (16 of 1926);

  • (r) "Tribunal" means an Industrial Tribunal constituted under section 7A and includes an Industrial Tribunal constituted before the 10th day of March, 1957, under this Act;

  • (ra) "unfair labour practice" means any of the practices specified in the Fifth Schedule;

  • (rb) "village industries" has the meaning assigned to it in clause (h) of section 2 of the Khadi and Village Industries Commission Act, 1956 (61 of 1956) ;

  • (rr) "wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes -

    • (i) such allowances (including dearness allowance) as the workman is for the time being entitled to;

    • (ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food-grains or other articles;

    • (iii) any travelling concession;

    • (iv) any commission payable on the promotion of sales or business or both; but does not include -

      • (a) any bonus;

      • (b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;

      • (c) any gratuity payable on the termination of his service;



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