The Industrial Disputes Act, 1947 Preliminary




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Powers of National Tribunals (Sec.11)

1. Subject to any rules that may be made in this behalf, National Tribunal shall

follow such procedure as the arbitrator or other authority concerned may think fit.

2. The presiding officer of 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 national Tribunal shall have the same powers as are vested in only experienced persons of high integrity can be appointed as presiding offer of the TribunaL It is. provided by Sec. 7 - A (4) that the Appropriate Government of it thinks fit may appoint two persons as assessors to advise the Tribunal in the proceedings before It a Civil Court under CPC, 1908 when trying a suit, in respect of the fo!!owing matters, viz.,-(a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of document and material objects; (c) Issued commissions for the examination of witness; (d) in respect of such other matters as may be prescribe: and every by a Board, Court, Labour Court, Tribunal or National Tribunal shall be deemed to be a judicial proceeding within the meaning of Sec. 193 arid 228 of the Indian Penal Code.

(4) 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.

(5) All the Presiding Officers of a National Tribunal shall be deemed to be public

servants within the meaning of Sec. 21 of the Indian Penal Code.

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

(7) Every National Tribunal shall be deemed to be a Court for the purpose of Sec. 480, 482 and 484 of the Criminal Procedure Code, 1948.



Note: The procedure and power of different authorities laid down under Sec. 11 of the Act, are equally applicable in the case of Conciliation Officers / Board, Court of Inquiry, Labour Court, And Tribunals.

Persons on whom settlement and awards are binding (Sec. 18)

For this purpose, settlements are classified into two catagories, namely­

(i) Settlement arrived at otherwise than in the course of conciliation

proceedings, i.e. without the aid of statutory agency; and

(ii) settlement arrived at in the course of conciliation proceedings; Le. with

the aid of statutory agency.

In the first case, a settlement under Section 18(1) arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceedings, shall be binding on the parties to the agreement. But any such settlement; in order to be binding must be signed by the parties there to in the manner prescribed by rule and a copy of it must also be sent the appropriate Government. .

In the second case Sec. 18 (2 and 3) provide that an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the disJ3ute to the arbitration. This section 18(3) provides that­

(i) a settlement arrived at in the course of conciliation proceeding under

this Act.

(ii) an arbitration award in a case where a notification has been issued

under sub section (3-A) of Sec. 10-A; or

(iii) an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall binding on;

(a) all parties to the in industrial dispute.

(b) all other parties summoned to appear in the proceedings as parties to the. dispute,

(c) where a party referred to is an employer, his heirs, successors or assigns in respect of the establishment in which the dispute relates.

(d) where a party referred to in clause (a) or (b) is composed of 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 or part there of.
Certain matters to be kept confidential (Sec. 21)

This section of the Act. provides that certain matters are to be kept confidential. Therefore, such things shall not be included in any report or award made under the Act. Any information obtained by a Conciliation Officer, Board, Court, Labour Court, Tribunal, National Tribunal or an Arbitrator in the course of any investigation on inquiry, which relates to a Trade Union on any individual business (whether carried on by a person, firm or company) which is not available otherwise than through the evidence given before any such authority, shall not be included in any report or award; if the parties concerned or in question has made a request in writing to treat such information as confidential.


REFERENCE OF DISPUTES TO BOARDS, COURTS OR TRIBUNALS

Section 10(1) of the Industrial Disputes Act.,1947 provides that where the appropriate Government is of the opinion that any industrial dispute exists or apprehended, it may, at any time:

(a) refer the dispute to a Board of conciliation for promoting a settlement

there of; 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 to a Labour Court for adjudication provided the dispute relates to any matter specified in the Second Schedule; or

(d) refer the dispute or any matter appearing to be connected with or relevant to the dispute to a Tribunal for adjudication, where it relates to any matter specified in the Second or Third Schedule., provided that:

(i) where the dispute relates to any matter specified in the Third

Schedule and is not likely to effect more than 100 workmen; the appropriate Government may make the reference to a Labour Court.

(ii) where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for the Government to refer the dispute to a Labour Court / Tribunal constituted by the State Government

(iii) where the dispute relates to a public utility service and a notice of strike or lockout under Sec. 22 has been the appropriate Government shall be competent to refer the dispute to a Labour Court or any Industrial Tribunal, Constituted by the Government.

Under Sec.1 0(1-A), the Central Government may refer any dispute to a National tribunal for adjudication, if it is the opinion that:

(i) any dispute exists or is appended; and

(ii) the dispute involves any question of national importance; or

(iii) the dispute is of such nature that industrial establishment situated in

more than one State are likely to be interested in, or affected by such dispute; and

(iv) the dispute should be adjudicated by National Tribunal (the reference to National Tribunal shall be made by the Central Government only).

Sec.10(3) of the Act. provides that where an industrial dispute has been referred to Board, Labour Court, Tribunal or National Tribunal, under Sec. 10 of the Act, the appropriate Government may issue an order prohibiting the continuance of any strike or lockout in connection with such dispute which may be in existence on the date of reference.

Sec.10(6) of the Act. provides that where any reference has been made under sub-section (1-A) to a National Tribunal, then notwithstanding anything contained in this Act., no Labour Court or Tribunal shall have jurisdiction to adjudicate dicta upon any matter which is under adjudication before the National Tribunal.

Sections 10 and 1 O-A are the alternative remedies to settle industrial dispute. Once the parties have chosen the remedy under Sec.1 O-A, the Government cannot refer the same dispute for adjudication under Sec. 10. If any such reference is made, it is invalid.1



Voluntary Reference of Disputes to Arbitration (Sec. 10-A)

This section provides that where any industrial dispute exist or is apprehended, the employer and the workman agree to refer the dispute to arbitration, they may refer the dispute to arbitration: Such referen

Sec. 10-A(1-A) provided that where an arbitration agreement provides for reference of the dispute to an even number of, arbitrators the agreement shall provide for appointment of another person as umpire who shail enter upon the reference if the arbitrators are equally divided in their opinion.

Sec. 1 0-A(2) provides that an arbitration agreement referred to in sub-section (1) shall be in such form and shall be signed by the parties there to in such a number as may be prescribed.

Under Sec. 10-A(3) copy of the arbitration agreement shall be forwarded to appropriate Government and the Conciliation Officer, and the appropriate Government shall within one month from the date of receipt of such copy publish. the same in the official Gazette.

Under Sec. 10-A(4) the arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all arbitrators as the case may be.

Under Sec.(4-A): where an industrial dispute has been referred to arbitration and a notification has been issu8d, the appropriate Government may prohibit the continuance of any strike or lockout in connection with such dispute. The appropriate Government shall do so by issuing an order.

Sub-sec.(5) provider that nothing in the Arbitration Act. 1940 shall apply to arbitration under this section.

An arbitrator functioning under Sec.1 O-A of the Act is a statutory Tribunal.
STRIKES AND LOCKOUTS IN INDUSTRIAL UNITS

Strike is collective stoppage of work by workmen undertaken in order to bring pressure upon the employer. It is a spontaneous and concerted withdrawal of workmen from production. A strike in usually organized by common agreement on the part of the workers with a view to obtaining or resisting change to their conditions of work.

Lockout is a weapon in the hands of the employer; which is used to curb the militant spirit of the workers. In Lock-out, an employer shuts down his place of business as a result of reprisal, or 2S an instrument of coercion or as a mode of exerting pressure upon the employees with a view it dictate his own terms to them.

Strikes and lockouts have now become important factors in the employer ­employee relations.



Prohibition of strikes and lockouts (Sec. 22 and 23)

Sec.22 of the Industrial Disputes Act provides that:

(1) No person employed in a public utility service go on strike in breach of contract:

(a) without giving notice of strike to the employer within six weeks

before striking, or

(b) within 14 days of giving notice, or

(c)before the expiry of the date of strike specified in any such

notice as aforesaid, or

(d) during the pendency of any conciliation proceedings and 7 days

after the conclusion of such proceedings.

(2) No employer on any public utility service shall lockout any of his workmen

(a) without giving them notice of lock-out as herein after provided

within six weeks before locking out; or

(b) within 14 days of giving such notice; or

(c) before the expiry of the date of lockout specified in any such

notice as aforesaid; or

(d) during the pendency of any conciliation proceeding before

Conciliation Officer and seven days after the conclusion of such

proceedings.

However, notice of strike or lockout will not be necessary where there is already in existence a strike or lockout in the public utility service. The employer in such a case must notify to concerned authority as may be appointed by the appropriate Government, of the declaration of a strike or lockout. The notice of strike or lockout shall be given by such number of persons in the prescribed manner [Sec.22(4&5)]


General provisions of strikes and lockouts:

Sec.23 of the Act provides that, "no workmen who is employed in any industrial establishment shall go on strike in breach of contract and on employer of any such workmen shall declare a lockout:

(i) during the pendency of conciliation proceeding before a Board, and 7

days after its conclusion.

(ii) during the pendency of proceeding before Labour Court, Tribunal or

National Tribunal, and 2 months after its conclusion.

(iii) during pendency of arbitration proceedings before an arbitrator and two months after completion of such proceedings, where a notification has been issued under Sub sec.(3-A) of Sec. 10-A; or

(iv) during the period of which a settlement or award is in operation in respect of the matters covered by such settlement or award.



Illegal strikes and Lockouts (Sec. 24)

Sec. 24 of the Act provides that a strike or a lockout shall be illegal if it is: (a) commenced or declared in contravention of Sec. 22 or 23, and

(b) continued in contravention of the prohibitory order made by appropriate Government after the dispute has been referred under Sec. 10(3) or sub-section( 4-A) of Sec.1 ()"A of the Act.

Prohibition of financial aid to illegal strikes and lockouts (Sec. 25)

This section of the Act prohibits financial aid to illegal. strikes and lockouts.

This section has the following ingradients: .

(1) spending or applying money:

(2) money spent or applied in direct furtherance or support of an illegal

strike,


Punishments (Sec. 28)

For any violation of provisions of Sec. 25, punishment is imposed by Sec. 28 of the Act. According to the provision, even a person who is not a workmen can be penalized violating the provisions of Sec. 25. The effect of Sections 25 and 28 is the prosecution to support a conviction for breach of Sec.25 must prove that:

. (i) the strike or lock-out in question was illegaL

(ii) the accused had knowledge that­

(a) the strike or lockout was iIIegal and

(b) the money spent or applied by him was in direct furtherance or

support of a strike or lockout.

(iii) that the money was actually spent or applied by the accused.

However, assistance to strikers in any other from, for example, supplying

clothes, food, etc. is not prohibited under Sec. 25 of the Act.



LAY-OFF AND RETRENCHMENT: COMPENSATION THERE OF

The Industrial Disputes Act, 1947, as originally enacted made no provision for the payment of "Lay-Off" or "Retrenchment" compensation. Therefore, there were no uniform rule that can be said to have observed by the adjudicating bodies in the case of payment of compensation for "lay-off" or "retrenchment". In order to overcome the situation, the President of India promulgated the Industrial Disputes (Amendment) Ordinance in Oct., 1953 to the effect from 24th Oct. 1953. The said Ordinance was repealed and replaced by the Industrial Disputes (Amendment) Act, 1953 took effect from 23rd Dee ember 1953. According to this amendment, Section 25-A to Section 25-J were added by this Amendment Act of 1953.

According to Sec. 25A (application of Sections 25-C to 25E inclusive) shall

not apply to industrial establishment to which Chapter V-B applies, or :

(a) to industrial establishment in which less than 50 workmen, on an average

per working day have been employed in the preceding calendar month,

and

(b) to industrial establishment which are of a seasonal character or in which



work is performed only intermittantly.

Thus, where the exemption under Sec 25-A applies, the workmen are not entitled to lay-off compensation and the Tribunal has no right to grant relief on any fanciful notices of Social Justice.

Sec 25 B of the Act defines continuous service. Sub-sec.2 defines continuous service for a period of one year or a period of six months Clause (a) of Sub-Section (2) provides that a workman. shall be deemed to have been in continuous service for a year, if­

1. he has been in employment for 12 calendar months; and

2. he actually worked for not less than ­

(a) One hundred and ninety days in the case of a workmen employed below ground in a mine; and

(b) Two hundred and forty days in any other case.

The following conditions must be fulfilled by a workman to entitle him for a

continuous service of six months:

(1) The workman has been in employment for a period of six calendar months;

(2) Such workman has actually worked for not less than:

(a) Ninety five days in the case of his being employed below ground

in mine, and

(b) One-hundred and twenty days in any other case.



Rights of workman laid-Off for compensation (Sec.25-C)

This section of the Act entitles a workman to get compensation from the employer for the period he is laid off. When the employer is unable to provide work to his workmen for reasons beyond his control, he owns duty to pay lay-off compensation to such workmen. For a workman to be eligible to claim lay-off compensation, he must fulfil the following conditions:

(1) his name must be borne on the muster rolls of an industrial establishment and

(2) he must have completed at least one year's continuous service (an

defined in Sec. 25-B)

The above rule is subject to the following limitations:

(1) If a workman is laid off for more than 45 days during any period of 12

months, no compensation shall be payable in respect of any period

of the lay-off after the expiry 45 days, provided these is an agreement between the workman and the employer to this effect.

(2) Where a workman is laid off for a period of 45 days during 12 months. the employer has a right to retrench such workman at any time after the expiry of 45 days of lay-off. When an employer decides to retrench a workman he musf comply with the requirements of Sec.25F of the Act

(as stated below).

.

Workmen not entitled to Compensation in Certain Cases (Sec. 25-E)

This section of the Act provides that a laid off workman shall not be entitled to

compensation:

(1) If he refuses to accept alternative employment provided that such alternative employment is offered in the same establishment or in any other establishment belonging to the same employer in the same town or village within a radius of 5 miles from the establishment he belongs.

(2) If he does not present himself for work at the establishment at the

appointed time during normal working hours at least once a day. ­

(3) If the lay-off is due to strike or slowing down of production on the part of workmen in another part of the same establishment.



Conditions precedent to retrenchment of workmen (Sec. 25 F)

This section lays down the requirements for a valid retrenchment of an

employed who has been in continuous service for not less than one year.

This section prescribes three conditions for a valid retrenchment; namely.

(a) The workman should be given one months notice in writing indicating

the reasons for retrenchment. .

(b) The workman has been paid, at the time of retrenchment, compensation equivalent to 15 days average pay for every completed year of continuous service or any part thereof in excess of 6 months.

(c) Notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.



Compensation to workmen in case of transfer of undertakings (Sec. 25 FF)

This section provides that in case of transfer of ownership or management of an undertaking from one employer to another, every workman:

(a) shall, before such transfer entitled to notice, and

(b) shall also be entitled to compensation in accordance with provisions of

Sec. 25-F, as if the workman had been retrenched.

In order to entitle a workman compensation under this section, the following

conditions must be simultaneously complied with:

(1)the service of the workman has not been interrupted by the transfer,

and

(2) terms and conditions of service to the workrnan, after such transfer, are



not in any way less favourable to the workman than those applicable

immediately before the transfer.


Notice to be given of intention to close down any undertaking (Sec. 25­FFA)
Any employer who intends to close down an undertaking shall serve, at least 60 days before the date on which the intended closure is to become effective, in a prescribed manner on the appropriate Government, stating therein that noting in this section shall apply to :

(a) an undertaking in which (i) less than 50 workmen are employed, or (ii) less than fifty workman were employed, on an average, per working day in the preceding 12 months;

(b) an undertaking set-up for the construction of building, bridges, roads,

canals. dams or for other construction work or project.

Compensation to workmen in the case of closing down of undertaking (Sec. 25-FFF)

The purpose of this section is to create a sense of security in a workman that if he sticks to his work, he will not be thrown away out of his employment in case of closing down of the undertaking



Procedure for Retrenchment

The well recognised principle of retrenchment in industrial law is 'first come last go' and 'last come first go'. This principle has been incorporated in Sec 25-G of the Act. The protection provided under this section can be claimed by a workman on fulfilment of the following conditions:

(1) The workman must be a workman within the meaning of Sec. 2(8) of the Act. (2) The workman should be an Indian Citizen.

(3) The workman should be employed in an establishment which is an

industry within the meaning of Sec. 2(J) of the Act.

(4) The workman should belong to a particular category of workmen in the

establishment; and

(5) There should be no agreement contrary to the principle of 'first come

last go' between the employer and workman.

Re-employment of retrenched Workman (Sec. 25H)

According to this section, when a workman has been retrenched by employer on the ground of surplus staff. such a workman should first be given an opportunity to join service whenever an occasion to employ another hand arises. In order to claim preference in employment under this section, a workman must satisfy the

following conditions:

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

(2) He should be a citizen of India; and

(3) He should have been retrenched from the same category of service.



Special provisions relating to lay-off, retrenchment and closure in

certain establishments:

By-an amendment made in the year 1978, a new Chapter V-B has been added

to the Industrial Disputes Act (Sec. 25-K) .

The provision of this Chapter shall apply to an industrial establishment, not

being an establishment of a seasonal character

For the purpose of this chapter V-B, Sec. 25-L, defines (a) Industrial

establishment means:

(i) a factory as defined in clause (m) of Sec.2 of the Factories Act. 1948;

(ii) a mine as defined in clause (j) of sub-section (1) of Sec.2 of the Mines

Act, 1952; or

(iii) a plantation as defined in clause (f) of Sec.2 of the Plantations Labour

Act, 1951;


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