adjudication 090909193718 phpapp02

7/30/2019 Adjudication 090909193718 Phpapp02

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ADJUDICATION


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Meaning

Adjudication involves intervention in the

dispute by a third party appointed by thegovernment for the purpose of decidingthe nature of final settlement.


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Why??

When the government gets a report of thefailure of conciliation, it has to decide

whether it would be appropriate to refer

the dispute to adjudication. Developing countries cant afford to suffer

loss of production from long-drawn strikes

and lockouts.


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Why??

Further, the trade union cannot rely only

on collective bargaining for the protection

of the interest of the workers.

Therefore, the need for intervention by the

government is felt. This, the government

does by making references of disputes to

the adjudication machinery


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Socio-Economic Importance ofAdjudication

It is always a matter of making reasonableadjustments between the two competing claims.So the claims of the interests of the generalpublic have to be weighed and balanced againstthe claims of the individual citizen in regard to

his fundamental right. So, too, in the case of adjudication, the claims of

the employer based on the freedom of contracthave to be adjusted with the claims of industrial

employees for social justice."


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Types of Adjudication

When the government gets a report of thefailure of conciliation proceedings, it has to

decide whether it would be appropriate to

refer the dispute to arbitration. The reference of dispute to adjudication is

at the discretion of the government.


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When both parties, of their own accord,

agree to refer the dispute to adjudication, it

is obligatory on the part of the government

to make a reference. When a reference toadjudication is made by the parties, it is

called Voluntary Adjudication.


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On the other hand, when reference is

made to adjudication by the government

without the consent of either or both the

parties to the dispute, it is known asCompulsory Adjudication.


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Three-Tier System ofAdjudication

The Industrial Disputes Act, 1947 provides

for a three-tier system of adjudication:

(1) Labour Courts;

(2) Industrial Tribunals; and

(3) National Tribunals.


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The Labour Courtsadjudicate upondisputes listed in Schedule II of the Act

The Industrial Tribunalsadjudicate upondisputes listed in Schedule II or III of the

Act.


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The National Tribunalsadjudicate upondisputes which are of national importance,

or when the dispute is of such a nature as

to affect industrial establishments situated

in more than one state.


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LABOUR COURTS

Constitution :

A labour court shall consist of one persononly, who:

(a) Is or has been a judge of a High Court; or

(b) Has been, for a period of not less than 3years, a District Judge; or

(c) Has held any judicial office in India for notless than 7 years.


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LABOUR COURTS

No person shall be appointed or continue

in the office of the labour court if he is not

an independent person, or if he has

attained the age of 65.


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LABOUR COURTS

The duties of the labour court are:

(i) To hold adjudication proceedingsexpeditiously; and

(ii) Submit its award to the appropriategovernment as soon as practicable on the

conclusion of the proceedings.


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JurisdictionThe jurisdiction of labour courts extends

to the adjudication of the followingdisputes relating to matters specified inthe Second Schedule:

1. The propriety or legality of an orderpassed by an employer under theStanding Orders.

2. The application and interpretation of

Standing Orders.


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3. Discharge or dismissal of workers,including reinstatement of, or grant of relief

to, workers wrongfully dismissed.4. Withdrawal of any customary concession or

privilege.

5. Illegality or otherwise of a strike or lockout.6. All matters other than those specified in the

Third Schedule of the Act (i.e., thosematters which are within the jurisdiction ofindustrial tribunals).


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LABOUR COURTS

The labour court has no power whatever

except those powers which can be traced

to a Statute, to a statutory rule or a

statutory instrument. It has no supervisoryjurisdiction, i.e., it cannot act as a guardian

of an industrial establishment.


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LABOUR COURTS The jurisdiction of the labour court is

circumscribed. It does not apply its mind tofind out if a different conclusion is possible.

Its duty is to see whether the enquiry

satisfies the principles of natural justice;whether there was material for the

managements to act in the manner they did

and whether their act was savoured of any

malpractice or victimization.


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LABOUR COURTS

In the absence of such an indication exfacie inthe proceedings of the enquiryofficer, the labour court is normally

expected to approve the decision of thedomestic enquiry and grant the permission

asked for.


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Ex facie, Latin for "on the face [of it]," is alegal term typically used to note that a

document's explicit terms are defectivewithout further investigation.

For example, a contract between two

parties would be void if, ex facie, thedocument does not require party A to give

consideration to party B for services

rendered.
http://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/Considerationhttp://en.wikipedia.org/wiki/Considerationhttp://en.wikipedia.org/wiki/Latin


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INDUSTRIAL TRIBUNALS

The matters which are in the form of newdemands and give rise to industrial

disputes which affect the working of a

company or industry are usually referredto an industrial tribunal. The industrial

tribunal may be appointed for a limited

period on an ad hocbasis or permanently.


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Constitution

A tribunal shall consist of one or morepersons, such as

a)Are or have been judge(s) of a High

Court;(b)Are or have been District Judge(s) for a

period of not less than 3 years;


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Constitution

(c) Hold or have held the office of thechairman or any other member of the

Labour Appellate Tribunal or any tribunal

for a period of not less than 2 years.


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Although it is not a court, it has all the necessary

attributes of a court of justice.

It may create new obligations or modify contracts in

the interest of industrial peace; protect legitimate

trade union activities and prevent unfair practices

and victimization.

The tribunals are required to give awards based oncircumstances peculiar to each dispute; and

they are, to a large extent, free from restrictions of

technical consideration or rules of evidence

imposed on courts.


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Jurisdiction

An industrial tribunal has a widerjurisdiction than labour courts. It has

jurisdiction over any matter specified in the

Second Schedule or Third Schedule. Thejurisdiction covers the promotion of social

justice, that is, fairness in the adjudication

proceedings to all concerned parties.


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Third Schedule

1) Wages, including the period and mode ofpayment.

2) Compensatory and other allowances.

3) Hours of work and rest intervals.4) Leave with wages and holidays.

5) Bonus, profit-sharing, provident fund and

gratuity.

Thi d S h d l


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Third Schedule6) Shift working, otherwise than in

accordance with the standing orders.7) Classification of grades

8) Rules of discipline.

9) Rationalization.10)Retrenchment of workmen and closure of

an establishment.

11)Any other matter that may be prescribed.


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Model Principles for Reference ofDisputes to Adjudication

1. All disputes ordinarily be referred to

adjudication on request.

2. Disputes may not, however, be ordinarily

referred to adjudication:

(a) Unless efforts at conciliation have failedand there is no further scope for

conciliation and the parties are notagreeable to arbitration;

Model Principles for Reference of


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(b) If there is a strike or lockout declaredillegal by a court, or a strike or lockoutresorted to without seeking settlement bymeans provided by law and without proper

notice or in breach of the Code ofDiscipline as determined by the machineryset up for the purpose, unless such astrike or lockout, as the case may be, iscalled off;


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(c) If the issues involved are such as have

been the subject matter of recent judicialdecisions or in respect of which an unduly

long time has elapsed since the origin of

the cause of action; and


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(d) If in respect of demands, other legalremedies are available, that is, matters

covered by the Factories Act, Workmen'sCompensation Act, Minimum Wages Act,

Payment of Wages Act, etc.


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3.Industrial disputes raised in regard to

individual cases, that is, cases of

dismissal, discharge or any other action of

management on disciplinary grounds, maybe referred for adjudication when the

legality or propriety of such action is

questioned, and in particular:



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(a) If there is a case of victimization orunfair labour practice;

(b) If the Standing Orders in force or the

principles of natural justice have notbeen followed; and

(c) If the conciliation machinery reports

that injustice has been done to theworker.


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Whenever an industrial dispute exists, or

even where there is a mere apprehension

that it will arise, the government may makea reference of the dispute for adjudication.


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The following principles regarding the powers

of the government to make a reference of

industrial disputes have been established by

a series of judicial decisions:

i. The government must be of the opinion that

an industrial dispute actually exists or is

apprehended;



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ii. Making a reference is an executive and

administrative act and not a judicial or

quasi-judicial act. Government's order

making a reference, therefore, cannotbe challenged on ground that the

government has no material before it to

come to the conclusion that the disputeexists;



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iii. Expediency of making a reference isa matter entirely for the governmentto decide. Even if a dispute factuallyexists, the government may not

make a reference. The governmentcannot be compelled by a court tomake a reference. Making of

reference, thus, is not a duty or anobligation on the part of thegovernment but a matter ofdiscretion;


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iv. The government may refer the dispute or

any matter appearing to be connected

with or relevant to the dispute, whether it

relates to any matter specified in theSecond Schedule or the Third Schedule,

to a tribunal for adjudication;



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v. Where the government is of the opinionthat any industrial dispute exists or isapprehended and that the disputeinvolves any question of national

importance or is of such a nature thatindustrial establishments situated inmore than one state are likely to beinterested in or affected by it, it may

refer the dispute for adjudication to theNational Tribunal- whether it relates toany matter specified in the Second orthe Third Schedule;


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vi. Where the dispute relates to any matter

specified in the Third Schedule and is

not likely to affect more than 100workers, the government may make a

reference to a labour court;


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vii. It is mandatory upon the government to

make a reference of disputes to courts or

tribunals where:

(a) the dispute relates to a public utilityservice;

(b) a notice of strike or lockout has been

given;


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(e) where the parties to the dispute apply inthe prescribed manner for a reference and

the government is satisfied that the

persons applying represent the majority of

each party;



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viii. The reference shall be made even if anyother proceeding has commenced; but

this mandatory power is subject to two

exceptions:

(a) the notice has been frivolously orvexatiously given; or

(b) it would be expedient to make areference.



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An order of reference passed by thegovernment can be challenged on the

following grounds:

(i) that the order is void ab initioor withoutjurisdiction;

(ii) where the order of reference is made in

bad faith or is mala fide;

Ab I iti


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Ab Initio

[Latin, From the beginning; from the firstact; from the inception.] An agreement issaid to be "void ab initio" if it has at notime had any legal validity. A party may besaid to be a trespasser, an estate said to

be good, an agreement or deed said to bevoid, or a marriage or act said to beunlawful, ab initio. Contrasted in this sensewith ex post facto, or with postea (after

these or those (things), afterward.]

http://www.answers.com/topic/voidhttp://www.answers.com/topic/void


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(iii) the appropriate government had nomaterial before it;

(iv) it did not apply its mind to the materialbefore it;

(v) it has not taken into consideration certainvital facts and materials which it ought to

have taken into account.
http://en.wikipedia.org/wiki/Latin


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Ex facie, Latin for "on the face [of it]," is alegal term typically used to note that a

document's explicit terms are defectivewithout further investigation. For example,

a contract between two parties would be

void if, ex facie, the document does notrequire party A to give consideration to

party B for services rendered.
http://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/Considerationhttp://en.wikipedia.org/wiki/Considerationhttp://en.wikipedia.org/wiki/Latin


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Ab Initio

[Latin, From the beginning; from the first act;from the inception.] An agreement is said to be"void ab initio" if it has at no time had any legalvalidity. A party may be said to be a trespasser,an estate said to be good, an agreement ordeed said to be void, or a marriage or act said tobe unlawful, ab initio. Contrasted in this sensewith ex post facto, or with postea (afterthese orthose (things), afterward.]

natural justice
http://www.answers.com/topic/voidhttp://www.answers.com/topic/void


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Definition English legal systemdoctrine that protects against

arbitraryexercise ofpowerby ensuring fair play. Naturaljustice is based on two fundamental rules: (1) Audialteram partem (Latin for, hear the other side): noaccused, or a person directly affected by a decision,shall be condemned unless given full chance to prepareand submit his or her case and rebuttal to the opposingparty'sarguments; (2) Nemo judex in causa sua (Latin

for, no man ajudge in his own case): no decision is validif it was influenced by any financial consideration orotherinterest orbias of the decision maker. Theseprinciples apply to decisions of all governmentalagencies and tribunals, andjudgments of all courts,which may be declared to be of having no effect (ultravires) if found in contravention of natural justice. Seealso natural law and natural rights.
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