Labour laws course materials




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NOTES

Nightshift allowance is not part of wages – An entitlement to non-inclusions of night shift allowance in calculating the months wages doesnot violate Sec. 32(2) (b) and Tribunal cannot decline approval for dismissed on that Court – 1990 (II) LLJ 32 (SC).




  • Workers are not entitled to wages for strike period unless strike is both legal and justified – AIR 1995 SC 319.



  • Where bridges are constructed on national highways and tolls and taxes are collected , that would be an industry. – 1995 LLJ 470.




  • Person Performing functions which were purely managerial is not a workman and therefore there was no scope for the Union to espouse his cause – Even a reference by State govt. could not confer jurisdiction an Labour Court or Tribunal – 2000 (i) LLJ 167.




  • `Teacher’ is an educational institution not a workman – 1999(2) LLJ 1268.




  • Where there is a direct conflict between the Central Act and the State Amendment in Sec. 2(s) in the definition of workman the Central Act by reason of it being later in point of time would Prevail and, therefore, inspite of the State amendment excluding a supervisor drawing more than Rs. 1,000/- p.m. from the purview of the definition of workman, a supervisor drawing Rs. 1185/- P.m. was held to be a workman in view of Central Act bringing within scope of workman a supervisor drawing a salary of less than Rs. 1600/- p.m. 1999(1) LLJ 957 cal.




  • Where the canteen was run by Bank to cater to the needs of its employees through a co-operative society formed by employees to which Bank Provided Premises, furniture, utensils, electricity etc., the factual findings of the Industrial Tribunal with regard to existence of master-servant relationship cannot be interfered with by High Court, in exercise of its writ jurisdiction, as a case of no evidence’ – 2000 (1) LLJ 1618(SC).




  • Sales promotion employees are not workman – 1995(1) LLJ 303 (SC).




  • Licensed Porters are not workmen as defined u/s 2(s) – 2000 (1) LLJ 1507.




  • Extra-departmental agents, governed by statutory regulations, are civil servants and are not workmen attracting provisions of ID Act – 1996(2) LLJ 230 (SC).




  • General duty doctor, in charge of First-Aid, having control and giving directions to male nurses, nursing attendant sweeper and ambulance driver – cannot be said to be a workman since he is working in a supervisory capacity – 1997(1) LLJ 569 (SC)




  • A Practising advocate engaged by company on the basis of retainership would not be covered by the definition of `workman’ – 19931) LLJ 496.

  • (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, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched 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 such person -

    • (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 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, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

NOTES

Workman – Temporary Doctor – Working in a supervisory capacity – Cannot be regarded as a workman u/s 2(s) of I.D. Act – 1996 (11) SCC 236.


A shop manager, who is authorised to make temporary appointments and can take all reasonable steps for proper running of shop is not a workman under Industrial Disputes Act – AIR 1994 SC 1824.
Since the medical representatives are not workmen, the complaint made to Industrial Court under the Act not maintainable – Sales promotion employees are not workmen and word `skilled’ not covered Medical Representative – 1994 (4) SCC 164.
2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- 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 connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

NOTES

Dispute on dismissal of workman for misconduct – Domestic enquiry – Non submission of witness before hearing, if not proved under the standing order is not fatal – The same cannot be a ground to set aside the order of dismissal – 72 (1991) CLT 167.




  • Domestic enquiry found to be defective by labour court – Management adducing evidence justifying dismissal – order as punishment doesnot depend on confirmation by labour court to make it operative – Order of punishment made by employer continuous to be effective unless setaside by competent authority – Order of dismissal would relate back to the date of order of dismissal – 1997(1) LLJ 400 (SC).




  • Dispute regarding wrongful dismissal of workman doesnot get abated with the death of the workman during the pendency of the proceedings – 1998(3) LLJ (Sup.) 636 (SC).




  • Death of workman – Workman under Industrial disputes Act – Pendency of Proceedings can not deprive the heirs or legal representatives of their right to continue the proceedings and claim the benefits – AIR 1994 SC 1176.


CHAPTER II

AUTHORITIES UNDER THIS ACT

3. Works Committee.- (1) In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishment so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer. The representatives of the workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the Indian Trade Unions Act, 1926 (16 of 1926).

(2) It shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and, to that end, to comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters.



NOTES
Works Committee is not intended to supplement or supersede the 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 only to smooth away frictions that may arise between the workmen and the management in day to day work. They cannot decide any alteration in the conditions of service by rationalization. If the workmen’s representatives on the works committee agree to a scheme of rationalization, that is not binding either on workers or on the mills. North Brook Jute Co. Ltd. Vrs. Workmen, AIR 1960 SC 879.
4. Conciliation officers.- (1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.

(2) A conciliation officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period.



5. Boards of Conciliation.- (1) The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute.

(2) A Board shall consist of a chairman and two or four other members, as the appropriate Government thinks fit.

(3) The chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appointed to represent a party shall be appointed on the recommendation of that party:

Provided that, if any party fails to make a recommendation as aforesaid within the prescribed time, the appropriate Government shall appoint such persons as it thinks fit to represent that party.

(4) A Board, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in its number:

Provided that if the appropriate Government notifies the Board that the services of the chairman or of any other member have ceased to be available, the Board shall not act until a new chairman or member, as the case may be, has been appointed.



6. Courts of Inquiry.- (1) The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Court of Inquiry for inquiring into any matter appearing to be connected with or relevant to an industrial dispute.

(2) A Court may consist of one independent person or of such number of independent persons as the appropriate Government may think fit and where a Court consists of two or more members, one of them shall be appointed as the chairman.

(3) A Court, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in its number:

Provided that, if the appropriate Government notifies the Court that the services of the chairman have ceased to be available, the Court shall not act until a new chairman has been appointed.



7. Labour Courts.- (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act.

(2) A Labour Court shall consist of one person only to be appointed by the appropriate Government.

(3) A person shall not be qualified for appointment as the presiding officer of a Labour Court, unless -


  • (a) he is, or has been, a Judge of a High Court; or

  • (b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or

  • (c) Repealed.

  • (d) he has held any judicial office in India for not less than seven years; or

  • (e) he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years.

7A. Tribunals.- (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule and for performing such other functions as may be assigned to them under this Act.

(2) A Tribunal shall consist of one person only to be appointed by the appropriate Government.

(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless -


  • (a) he is, or has been, a Judge of a High Court; or

  • (aa) he has, for a period of not less than three years, been a District Judge or an Additional District Judge;

(4) The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it.

NOTES
When the identical issue between same party was pending before Industrial Tribunal then High Court ought not to have enstained writ petition involving question of fact – 1998(5) SCC 74.
7B. National Tribunals.- (1) The Central Government may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals for the adjudication of industrial disputes which, in the opinion of the Central Government, involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes.

(2) A National Tribunal shall consist of one person only to be appointed by the Central Government.

(3) A person shall not be qualified for appointment as the presiding officer of a National Tribunal unless he is, or has been, a Judge of a High Court.

(4) The Central Government may, if it so thinks fit, appoint two persons as assessors to advise the National Tribunal in the proceeding before it.



7C. Disqualifications for the presiding officers of Labour Courts, Tribunals and National Tribunals.-No person shall be appointed to, or continue in, the office of the presiding officer of a Labour Court, Tribunal or National Tribunal, if -

  • (a) he is not an independent person; or

  • (b) he has attained the age of sixty-five years.

8. Filling of vacancies.- If, for any reason a vacancy (other than a temporary absence) occurs in the office of the presiding officer of a Labour Court, Tribunal or National Tribunal or in the office of the chairman or any other member of a Board or Court, then, in the case of a National Tribunal, the Central Government and in any other case, the appropriate Government, shall appoint another person in accordance with the provisions of this Act to fill the vacancy, and the proceeding may be continued before the Labour Court, Tribunal, National Tribunal, Board or Court, as the case may be, from the stage at which the vacancy is filled.

9. Finality of orders constituting Boards, etc.- (1) No order of the appropriate Government or of the Central Government appointing any person as the chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal shall be called in question in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court.

(2) No settlement arrived at in the course of a conciliation proceeding shall be invalid by reason only of the fact that such settlement was arrived at after the expiry of the period referred to in sub-section (6) of section 12 or sub-section (5) of section 13, as the case may be.



(3) Where the report of any settlement arrived at in the course of conciliation proceeding before a Board is signed by the chairman and all the other members of the Board, no such settlement shall be invalid by reason only of the casual or unforeseen absence of any of the members (including the chairman) of the Board during any stage of the proceeding.

CHAPTER II A

NOTICE OF CHANGE

9A. Notice of change.- No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change, -

  • (a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or

  • (b) within twenty-one days of giving such notice:
    Provided that no notice shall be required for effecting any such change -

    • (a) where the change is effected in pursuance of any settlement or award; or

    • (b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.

NOTES
The requirement of a notice to workmen would arise only if they are likely to be affected prejudicially. A change in the conditions of service contemplated by the section should be understood in that sense. It is not intended to cover a case where the proposal is, for instance, to entrance the pay scale or to provide better employment condition by a unilateral decision of the employer. The whole object of the section is apparently to prevent a unilateral action on the part of the employer changing the conditions of the service to the prejudice of the workmen, Section 9-A would have no application to where the option is left to the concerned workmen to accept the change or to continue under the existing terms. Tamil and Elect. Workers Feder Vrs. M.S. Electricity Board, [1962] II L.L.J. 136 (Mad.). Sec. 9-A is equally applicable to the minority educational institutions, protected under Art. 30 (1) of the Constitution of India. Hospital Employees Union Vrs. Christian Medical College (1987) 4 SCC 691.
Any attempt to alter or deviate from along practice which ripened into a condition of service would amount to change in conditions of service requiring notice – Therefore, the attempt of the management to deviate in respect of long practices with regard to holidays attracted S. 9-A and non-compliance with the provisions of S. 9-A would render the change invalid – 2000 (1) LLJ 969.
Before any change in conditions of service of workman is to be effected as a pre-condition for such proposed change, notice u/s 9-A has to be issued; without complying with such pre-condition of notice, Proposed change would not legally come into operation – 1999(2) LLJ 600 (SC).
Changes in conditions of services – Circular prohibiting participation in election activities to Municipal Councils or local bodies for Bank Staff – is not a change in conditions of service – 1998(1) LLJ 1063.
9B. Power of Government to exempt.- Where the appropriate Government is of opinion that the application of the provisions of section 9A to any class of industrial establishments or to any class of workmen employed in any industrial establishment affect the employers in relation thereto so prejudicially that such application may cause serious repercussion on the industry concerned and that public interest so requires, the appropriate Government may, by notification in the Official Gazette, direct that the provisions of the said section shall not apply or shall apply, subject to such conditions as may be specified in the notification, to that class of industrial establishments or to that class of workmen employed in any industrial establishment.

CHAPTER II B

REFERENCE OF CERTAIN INDIVIDUAL DISPUTES TO GRIEVANCE SETTLEMENT AUTHORITIES

9C. Setting up of Grievance Settlement Authorities and reference of certain individual disputes to such authorities.- (1) The employer in relation to every industrial establishment in which fifty or more workmen are employed or have been employed on any day in the preceding twelve months, shall provide for, in accordance with the rules made in that behalf under this Act, a Grievance Settlement Authority for the settlement of industrial disputes connected with an individual workman employed in the establishment.

(2) Where an industrial dispute connected with an individual workman arises in an establishment referred to in sub-section (1), a workman or any trade union of workmen of which such workman is a member, refer, in such manner as may be prescribed such dispute to the Grievance Settlement Authority provided for by the employer under that sub-section for settlement.

(3) The Grievance Settlement Authority referred to in sub-section (1) shall follow such procedure and complete its proceedings within such period as may be prescribed.

(4) No reference shall be made under Chapter III with respect to any dispute referred to in this section unless such dispute has been referred to the Grievance Settlement Authority concerned and the decision of the Grievance Settlement Authority is not acceptable to any of the parties to the dispute.



CHAPTER III

REFERENCE OF DISPUTES TO BOARDS, COURTS OR TRIBUNALS

10. Reference of disputes to Boards, Courts or Tribunals.- (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, -

  • (a) refer the dispute to a Board for promoting a settlement thereof; or

  • (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

  • (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or

  • (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified, in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
    Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):

Provided further that where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:

Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.

(1A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication.

(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court Labour Court, Tribunal or National Tribunal, the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.

(2A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government: Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months:

Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit:


Provided also that in computing any period specified in this sub-section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded:

Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed.

(3) Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, the appropriate Government may by order prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.

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

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

(6) Where any reference has been made under sub-section (1A) to a National Tribunal, then notwithstanding anything contained in this Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal, and accordingly, -



  • (a) if the matter under adjudication before the National Tribunal is pending in a proceeding before a Labour Court or Tribunal, the proceeding before the Labour Court or the Tribunal, as the case may be, in so far as it relates to such matter, shall be deemed to have been quashed on such reference to the National Tribunal; and

  • (b) it shall not be lawful for the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency of the proceeding in relation to such matter before the National Tribunal.

Explanation. - In this sub-section, "Labour Court" or "Tribunal" includes any Court or Tribunal or other authority constituted under any law relating to investigation and settlement of industrial disputes in force in any State.

(7) Where any industrial dispute, in relation to which the Central Government is not the appropriate Government, is referred to a National Tribunal, then notwithstanding anything contained in this Act, any reference in section 15, section 17, section 19, section 33A, section 33B and section 36A to the appropriate Government in relation to such dispute shall be construed as a reference to the Central Government but, save as aforesaid and as otherwise expressly provided in this Act, any reference in any other provision of this Act to the appropriate Government in relation to that dispute shall mean a reference to the State Government.



(8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government.

NOTES
Reference – Power of the Govt. – Nature of power to be exercised – Appropriate Govt. can decide as to whether the industrial dispute exists or is apprehended – which is based on the subjective satisfaction of such Govt. – Whether Govt. is not obliged to issue any notice or to hear the employer. Sultan Sing Vrs. State of Haryana, (1996) I L.L.J. 879 (SC). There are two kinds of references namely voluntary reference and involuntary reference. Voluntary reference are those in which parties to the dispute agree to refer the dispute for arbitration under Sec. 10-A of the Act. Whereas involuntary reference or compulsory reference is envisaged in Section 10 of the said Act.
While acting under the provisions of Section 10, the Govt. does not act judicially or quasi-judicially. The act of reference as provided in Sec. 10, does not empower the Govt. to adjudicate the dispute. After the reference is made, the Govt. goes out of picture. Bhagawati Pd. Tiwari Vrs. Union of India, 1996-I-LLN 316.
It was held that while exercising power under Sec. 10(1) the function performed by the appropriate Govt. is an administrative function and not a Judicial or quasi-judicial function. It was further held that as the Govt.’s action is an administrative, it cannot deal with the merit of the dispute. Sec. 10 only requires the appropriate Govt. is to be satisfied that an industrial dispute exists or apprehended. Ram Avtar Vrs. State of Haryana, - 1985 (51) FLR 71 (SC); see also Arun Laxman Surve Vrs. Union of India, - 1993 (67) FLR 1194 (Bom); Rajpal Singh Vrs. The State of U.P. – 1995 (70) FLR 1141 (AII).
It is true that the Act doe snto lay down a period of limitation. This, however, does not mean that a dispute can be raised at any time even after an inordinate delay and the Govt. is bound to make a reference. If there is an inordinate delay that can be a legitimate ground for holding that there does not exist in present an industrial dispute. R. Ganeshaym Vrs. The Union of India, - (1993) Lab. I.C. 802 (Bom).
The appropriate Govt. is vested with wide and sweeping discretionary power in respect of referring or refusing to refer an industrial dispute for adjudication. The discretion vested in the Govt. implies that it has to reach a conclusion subjectively about whether an industrial dispute exists or not. New Paper Ltd. Vrs. Industrial Tribunal – (1957) II L.L.J. 1(SC); Shambu Nath Goyal Vrs. Bank of Baroda, - (1978) I L.L.J. 484 (SC).
Such discretionary power conferred on the Govt. under Sec. 10(1) of the Act is very wide. But if the appropriate Govt. makes an improper or malafide use of this power the aggrieved party can take legal course under Art. 226 of the Constitution and Govt. can be compelled to refer the disputes. Sankari Cement AT.M. Sangam Vrs. Govt. of Tamil Nadu – (1983) I. L.L.J. 460 (SC).
The Supreme Court directed the Govt. to make a reference of the dispute for adjudication within four weeks from the date of its order. Nirmal Singh Vrs. State of Punjab – (1984) II. L.L.J. 396 (SC); V Veerarajan Vrs. Govt. of Tamil Nadu – (1987) I L.L.J. 209 (SC).
The jurisdiction of the Industrial Tribunal in industrial dispute is limited to the points specifically referred for its adjudication and matters incidental thereto and therefore, the tribunal in the present case illegally traveled beyond the terms of reference. The industrial adjudication constituted under the Act is not vested with any inherent power of jurisdiction. Badarpur Thermal Power Station Vrs. Central Govt. I.T. II, Dhanbad, - 1995(71) FLR 712 (Pat.)
Jurisdiction – Dispute referred for adjudication – Limited to re-employment in view of Sec. 25-H of the Act.
The Tribunal has certainly exceeded its jurisdiction by traveling beyond the term of reference, as dispute referred for adjudication was limited to re-employment in view of Sec.25-H of the Act. Therefore, there was no occasion for the Tribunal to declare the termination as illegal and void. South Eastern Coal Fields Ltd. Vrs. A.K. Shramik Sabha, - (1996) I L.LJ. 232 (M.P).
Function of appropriate government while exercising power under section 10, is administrative and not judicial or quasi-judicial – it cannot go into merits of the dispute and decline reference – 2000(1) LLJ 414: See 2000 (1) LLJ 512 (Ori), 1999(3) LLJ (Sup.) 1212 (Ori): 1999(3) LLJ (Sup. 1378) (Ori.) : refusal to refer the dispute existed because the workmen had not completed 240 days of service in a year, cannot be sustained, State Govt. could not have adjudicated upon the claim on merits – 2000(1) LLJ 1646 (Ori).


  • Law doesnot prescribe any time limit for the appropriate Government to exercise its powers u/s 10 but it is not that the power can be exercised at any point of time and to revive matters which had since been settled – Power is to be exercised reasonable and in a rational manner – whenever a workman raises some dispute it doesnot become industrial dispute and appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute – 2000 (1) LLJ 561.

  • Industrial Tribunal is the creation of statute and it gets jurisdiction on the basis of reference. It cannot go into the question on validity of the reference – 2000 (1) LLJ 247 (SC).

  • Industrial Tribunal has to confine adjudication to the points referred – it cannot go into the question of vires of a statutory Provision – 1998(2) LLJ 67.

  • The formal defects in the reference order or clerical mistake in the title of the reference order or irrelevant consideration of the industrial dispute u/s 2(k) or failure of consideration of dispute u/s 2-A would not vitiate the order – 1998(1) LLJ 704.

  • Order of Govt. declining to refer dispute for adjudication on management and recognised union entering into settlement which was found to be fair and just by Industrial Tribunal – 1995(2) LLJ 688(SC).

  • Employee dismissed for conviction by Criminal Court for the offence of outraging modesty of a woman which involves moral turpitude – Reference for adjudication declined by central Government but directed by single judge in a writ Petition – Not sustainable – 1997(1) LLJ 49(SC); applicable.

  • Neither a writ Proceeding in the High Court nor an appeal under
    Art. 136 is the proper forum in which factual contentions and allegations should be gone into – The High Court should have directed the Government to refer the dispute as to whether the members of the Associations were workman or not to an Industrial Tribunal and should not have alleged itself to be persuaded to go into that question in a writ proceeding – 1999(2) LLJ 1408 (SC).

  • Dismissal of workman from service – Conviction by Criminal Court involving moral turpitude – Sentence become final – Workman cannot be put at a higher pedestal than a Govt. servant – Reference to Industrial Tribunal not warranted – 1996(6) SCC 204.

  • Determination of age – Medical Board constituted by management – Workman examined by Board – Age as 58 years determined – Direction by Tribunal for examination by Civil sergeon – Opinion of Medical Board not challenged by workman at that stage – Direction issued by Tribunal illegal and unjustified – Opinion of Medical Board cannot be thrown away – 1996(1) LLJ 453.

  • Dispute – Domestic enquiry not held – Proceedings – Dispute in proceeding can better be resolved by Constitution Bench – Which can consider scope and ambit of decision of earlier Constitution Bench – 1997 (B) SCC 7 B.

  • Before rejecting an application for making reference of a industrial dispute, neither notice to employer nor hearing of employer is necessary – AIR 1996 SC 1007.

  • Where award by Labour Court in favour of workmen who were refused to work by management was set aside by High Court, then Supreme Court directed to a sum of Rs. 25,000/- as ex-gratia payment by management – 1994 (2) LLJ 1125.

  • Employees – D.A. paid with basic wages exceeding Rs. 500/- There canot be ceiling on dearness allowance to employees with basic wage exceeding Rs. 500/- - AIR 1995 SC 817.



10A. Voluntary reference of disputes to arbitration.- (1) Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred under section 10 to a Labour Court or Tribunal or National Tribunal, by a written agreement, refer the dispute to arbitration and the reference shall be to such person or persons (including the presiding officer of a Labour Court or Tribunal or National Tribunal) as an arbitrator or arbitrators as may be specified in the arbitration agreement.

(1A) Where an arbitration agreement provides for a reference of the dispute to an even number of arbitrators, the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purposes of this Act.

(2) An arbitration agreement referred to in sub-section (1) shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed.

(3) A copy of the arbitration agreement shall be forwarded to the appropriate Government and the conciliation officer and the appropriate Government shall, within one month from the date of the receipt of such copy, publish the same in the Official Gazette.

(3A) Where an industrial dispute has been referred to arbitration and the appropriate Government is satisfied that the persons making the reference represent the majority of each party, the appropriate Government may, within the time referred to in sub-section (3) issue a notification in such manner as may be prescribed; and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator or arbitrators.

(4) The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be.

(4A) Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3A), the appropriate Government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.

(5) Nothing in the Arbitration Act, 1940 (10 of 1940), shall apply to arbitrations under this section.



NOTES
Tele-communication department, whether an industry u/s 2(j) of Act – Issuance of notification by Central Government – Amendment made not brought into force – it is not necessary to consider this point – Court is bound by view taken in Bangalore water supply case reported in 1973 (36) F.L.R 266 (SC) – 1997(8) SCC 768.


CHAPTER IV

PROCEDURE, POWERS AND DUTIES OF AUTHORITIES

11. Procedure and powers of conciliation officers, Boards, Courts and Tribunals.- (1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.

(2) A conciliation officer or a member of a Board, or Court or the presiding officer of a Labour Court, Tribunal or National Tribunal may for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates.

(3) Every Board, Court, Labour Court, Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely: -


  • (a) enforcing the attendance of any person and examining him on oath;

  • (b) compelling the production of documents and material objects;

  • (c) issuing commissions for the examination of witnesses;

  • (d) in respect of such other matters as may be prescribed;

and every inquiry or investigation by a Board, Court, Labour Court, Tribunal or National Tribunal, shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860).

(4) A conciliation officer may enforce the attendance of any person for the purpose of examination of such person or call for and inspect any document which he has ground for considering to be relevant to the industrial dispute or to be necessary for the purpose of verifying the implementation of any award or carrying out any other duty imposed on him under this Act, and for the aforesaid purposes, the conciliation officer shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of enforcing the attendance of any person and examining him or of compelling the production of documents.

(5) A Court, Labour Court, Tribunal or National Tribunal may, if it so thinks fit, appoint one or more persons having special knowledge of the matter under consideration as assessor or assessors to advise it in the proceeding before it.

(6) All conciliation officers, members of a Board or Court and the presiding officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

(7) Subject to any rules made under this Act, the costs of, and incidental to, any proceeding before a Labour Court, Tribunal or National Tribunal shall be in the discretion of that Labour Court, Tribunal or National Tribunal and the Labour Court, Tribunal or National Tribunal, as the case may be, shall have full power to determine by and to whom and to what extent and subject to what conditions, if any, such costs are to be paid, and to give all necessary directions for the purposes aforesaid and such costs may, on application made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as an arrear of land revenue.

(8) Every Labour Court, Tribunal or National Tribunal shall be deemed to be Civil Court for the purposes of sections 345, 346 and 348 of the Code of Criminal Procedure, 1973 (5 of 1898).



11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the 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 Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.


NOTES
The words “Labour Court, Tribunal or National Tribunal may …….give such other relief to the workmen including the award of lesser punishment in lieu of discharge or dismissal …..” indicate that these adjudicatory authorities assure justification under Sec. 11-A only when the discharge or dismissal is a measure of disciplinary punishment. Sec. 11-A does not come into operation with respect of cases of termination of service under discharge simpliciter or retrenchment.
Jurisdiction of Arbitrator included:- The jurisdiction under this Section is vested only in “Labour Court, Tribunal or National Tribunal”. An Arbitrator under Sec. 10-A has not been included. In Gujarat Steel Tubes Ltd. Vrs. Gujarat Steel Tubes Mazdoor Sabha, (1980) I L.L.J 137 (SC), the Supreme Court held that an Arbitrator under Sec. 10-A, is comprehended in the expression `Tribunal’as used in Sec. 11-A. Therefore, the Arbitrator has the same jurisdiction as a Labour Court, Tribunal or National Tribunal while adjudication upon the dispute relating to discharge or dismissal. Justice Krishna Iyar, who delivered the majority opinion has invoked the doctrine of casus omissus for bringing the expression : Arbitrator” within the comprehension of the expression “Tribunal” used in Sec. 11-A.
The Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by or employer established the misconduct alleged against a workman. Workmen of Firestone Tyre and Rubber Co.of India Pvt. Ltd. Vrs. Management – (1973) I L.L.J 278 (SC); see also Sutlej Cotton Mills Ltd. Vrs. Rajasthan Textile Mills Mazdoor Panchayat – 1996 (72) FLR 51( Rsj.); Ramphal Vrs. State of Haryana; (1996) I LLJ. I.
Section 11-A – Tribunal – Proceedings before – Additional Evidence – Unless there is finding that the dismissal order is wrong – No additional evidence can be led. K.S.R.T.C., Bangalore Vrs. John D’Souza – (1995). Lab. I.C. 119 (Kar.)
Even the disciplinary injury was found to be fair and just and its findings were not vitiated in any manner that by itself would be a ground for non-interference with the order of termination by the Labour Court. The Labour Court possesses discretion in the matter of punishment, etc. The approach of the Labour Court be one of a reformative in nature. M/s. BHEL Vrs. The Presiding Officer – 1996 (72) FLR 42 (AII).
Industrial Tribunal – Leading evidence – in support of dismissal order – Prayer of employer rejected by Tribunal – Rejection not justified. Bharat Forge Co. Ltd. Vrs. A.B. Zodge, - 1996 LLR 385 (SC).
Even in labour matters a claimant goes before the Court or Tribunal with a case and it is upon the merits of the case that relief is to be granted or refused to him. There is no substantial justice when the Court or Tribunal gives relief to a workman which is on a basis totally contrary to the basis upon which he approached it, which, indeed was the employer’s case. The workman who took inconsistent stand in the claim statement and evidence , did not deserve any relief whatsoever . The Labour Court and High Court could not have turned a blind eye to the inconsistent stand taken by him in the claim statement and his evidence – 1999 (1) LLJ 1028.
- Labour Court becomes functus officio in respect of its award 30 days after its publication and therefore, Labour Court had no jurisdiction to set aside exparte award after expiry of 30 days Period – 2000 (1) LLJ 818. Second review by Labour Court after 277 days of disposal of first review application, after hearing both the parties – Not matintainable – 1996(2) LLJ 116.
-Valididty of dismissal / discharge challenged on the ground of not holding any domestic enquiry or that it was vitiated – Tribunal is duty bound to decide the question as a preliminary issue if request is made at appropriate stage – Employer to be given opportunity to adduce evidence to substantiate its case if preliminary issue is decided against employer – Burden lies on employer to prove that action taken against workman was justified on merits – 1996(2) LLJ 904.
-Burden of proving validity of domestic enquiry is on employer when it is taken up as a preliminary issue and therefore, the Tribunal acted in violation of Principles of natural justice by calling upon the workmen to adduce evidence first – 1999 (2) LLJ 1243.


  • Labour Court or Industrial Tribunal can grant interim relief – 2000(1) LLJ 267.

  • If the order of dismissal is challenged belatedly, the dispute would still continue for adjudication, the only question would be to deprive back wages for the period of delay in raising such a dispute if on merits it is to succeed- 2000 (1) LLJ 1080 (SC).

  • Taking of fresh evidence by Tribunal is permissible – Appellate authority can record evidence not only in cases where no evidence was recorded at the domestic enquiry but also can record evidence if necessary to come to its own conclusion on the question whether employee is guilty – 1997 (1) LLJ 1104 (SC).

  • Where the Labour Court, finding the enquiry to be not fair and proper, called upon the management to adduce further evidence but the management declined to give evidence and the workman also did not produce any evidence in view of the management not producing any evidence , rejection of the claim of the employee was not proper as she was within her right to day that she too would not lead any fresh evidence. She was entitled to be granted relief then and there – 1999(1) LLJ 275 (SC).

  • Power of Labour Court , Tribunal is limited to the extent that it shall not take any fresh evidence and shall rely on the materials already on record – The findings arrived at by the Tribunal after going into evidence of Parties meticulously, that the charges leveled against workman were not proved and findings of Enquiry Officer were based on conjectures and surmises and on weak evidence, do not suffer from any perversity calling for interference – 1998 (1) LLJ 638.

  • The Labour Court has power to satisfy itself regarding the findings arrived at by the employer even in an enquiry which has been properly held and therefore the Court has power to interfere with the punishment imposed by an employer – 1999 (1) LLJ 1040.

  • Once the Labour Court came to the conclusion that the action of the employer in terminating the services of the employee was justified, legal and valid, it had no jurisdiction to require the employer to engage the employee in a Post other than as a Driver, who was found to be not having control over the steering and self –confidence – 1999(2) LLJ 591 (SC).

  • After the acts of misconduct have been proved against the workman, re-instatement with back wages cannot be ordered by the Labour Court – workman may opt for either the re-instatement without back wages or backwages without reinsta- 1995 (2) LLJ 62(SC).

The Tribunal has power to call upon management in Employer to justify its action of dismissal or termination from service against workman of domestic enquiry found to be defective – 1999 (2) SRJ 285.
Labour Court u/s 11-A of I.D. Act can convert order of dismissal into order of lesser punishment- 2000(85) FLR 414. Once the Tribunal found charges against appellant not establishment , single Judge not even u/s 11-A of the Act has no jurisdiction to enter into question whether changes could have been establishment by better evidence – 1999 (5) SRJ 315.

Interference in order of dismissal – The punishment awarded was shockingly disproportionate to nature of charge found proved against him for demanding money from Asst. cashier is drunken state and threatening to assault as serious misconduct. Interference by Tribunal not proper – AIR 2000SC 1163. The Court of single judge has no jurisdiction to know about the establishment of charges against petition by further evidence. It is not the duty of High Court to refuge back wages awarded - AIR 1999 SC 1843. Discretion exercised by the Labour Court under Sec. 11-A- Interference by Apex Court not legal – AIR 1984 SC 321. High Court while exercising its power under Article 227 of the Constitution of India, cannot substitute its own award for that of the Tribunal u/s 11-A – AIR 1984 SC 976.



12. Duties of conciliation officers.- (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall hold conciliation proceedings in the prescribed manner.

(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.

(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.

(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 Government a full report setting forth the steps taken by him for 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 on account of which, in his opinion, a settlement could not be arrived at.

(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.

(6) A report under this section shall be submitted within fourteen 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.
NOTES
If the reference itself is held to be incompetent on the ground that disputes never existed, then an award of the Tribunal on such incompetent references cannot be sustained and it would certainly not be the duty of the High Court to sustain such an award. The Management of Asha Central Multipurposes Cooperative SocietiesLtd Vrs. The Presiding Officer, Industrial Tribunal 1991 (62) FLR 710 (Ori)
If the appropriate Govt. refuses to make a reference then sub-section (5) of Section 12 of the Act cast a mandatory duty upon the appropriate Government to record and communicate to the parties concerned the reasons for its refusal to make a reference. Balkishan Gupta Vrs. Union of India – 1996 (72) FLR 740 (Raj.).
Abolition of contract labour, regularization by principal employer and payment of bonus by principal employer, cannot be considered by conciliation Officer; there is specific forum for consideration of these matters, were not within his domain of consideration, cannot be found fault with – 1998(2) LLJ 443.
Settlement between management of co-operation and union under the Act binding on all workmen whether they were member of Union or not – AIR 1995 SC 251.
Workers of Commercial establishment where the terms and joint memo of settlement of workers was beneficial for workmen then it is just and fair – 1997 (1) LLN 1031.
Held , there is no bar in having conciliation proceedings on a holiday to arrive at a settlement on a holiday atmosphere is rather more relaxed – When a settlement is arrived at during the conciliation proceeding it is binding on the members of Union – AIR 2000 SC 469.

13. Duties of Board.- (1) Where a dispute has been referred to a Board under this Act, it shall be the duty of the Board to endeavour to bring about a settlement of the same and for this purpose the Board shall, in such manner as it thinks fit and without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as it thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.

(2) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the Board shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.

(3) If no such settlement is arrived at, the Board shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the proceedings and steps taken by the Board for 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, its findings thereon, the reasons on account of which, in its opinion, a settlement could not be arrived at and its recommendations for the determination of the dispute.

(4) If, on the receipt of a report under sub-section (3) in respect of a dispute relating to a public utility service, the appropriate Government does not make a reference to a Labour Court, Tribunal or National Tribunal under section 10, it shall record and communicate to the parties concerned its reasons therefor.

(5) The Board shall submit its report under this section within two months of the date, on which the dispute was referred to it or within such shorter period as may be fixed by the appropriate Government:

Provided that the appropriate Government may from time to time extend the time for the submission of the report by such further periods not exceeding two months in the aggregate:

Provided further that the time for the submission of the report may be extended by such period as may be agreed on in writing by all the parties to the dispute.

14. Duties of Courts.- A Court shall inquire into the matters referred to it and report thereon to the appropriate Government ordinarily within a period of six months from the commencement of its inquiry.

15. Duties of Labour Courts, Tribunals and National Tribunals.- Where an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2A) of section 10, submit its award to the appropriate Government.

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