Industrial Disputes Act, 1947This is a discussion on Industrial Disputes Act, 1947 within the Human Resources

Management forums, part of the Resolve Your Query - Get Help and discuss Projects category; Industrial Disputes Act, 1947: Some Important Definitions: Industrial

Disputes: [Sec. 2 (k)] Any dispute or difference between o Employers ...

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Industrial Disputes Act, 1947

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Industrial Disputes Act, 1947 - January 4th, 2008

Industrial Disputes Act, 1947:Some Important Definitions:

Industrial Disputes: [Sec. 2 (k)] Any dispute or difference between

o Employers and employers, oro Employers and workmen, or

o Workmen and workmen,This is connected with the

o Employment or non-employment, oro The conditions of labour of any person.

Sec.2 (k), 2A recognizes those disputes that arise between an individual workman and his employers even though no other workman nor is any union of

workmen a party to the dispute.

Strike: [Sec.2 (q)] A cessation of work by a body of persons

employed in any industry acting in combination, oro A concerted refusal, or

o A refusal under a common understanding,Of any number of persons who are or have been so

employed to continue to work or to accept employment.

Lock-out: [Sec. 2(1)] The closing of a place of employment, or the

suspension of work, or the refusal by an employer to continue to employ any number of persons

employed by him.

Workman: [Sec. (s)] Any person (including an apprentice) employed

in any industry to do anyo Manual, unskilled, skilled, technical, operational,

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clerical or supervisory work,o For hire or reward,

o Whether the terms of employment be express or implied.

The Industrial Disputes Act, 1947, since it deals with disputes, also considers as workmen, any

such person whoo Has been dismissed, discharged, or retrenched in

connection with, or as a consequence of, that dispute, or

o Whose dismissal, discharge, or retrenchment has led to that dispute.

This Act does not consider as workmen and hence does not apply to any such person:

o Who is subject to the Army Act, the Air Force Act, or the Navy Act; or

o Who is employed in the police service as an officer or other employee of a prison; or

o Who is employed mainly in a managerial or administrative capacity; or

o Who, being in a supervisory capacity, draws wages exceeding Rs.1600/= per month, or the nature of his duties, powers vested in him, and

functions are mainly managerial.

Lay-off: [Sec. 2(k)] The failure, refusal, or inability of an employer on

account ofo Shortage of coal, power or raw materials, or

o Accumulation of stocks, oro The breakdown of machinery, or

o Natural calamity, oro Any other connected reason

To give employment to a workman whose name is borne on the muster rolls of his industrial

establishment and who has not been retrenched. The two-hour rule regarding lay-offs. The half-day rule regarding lay-offs.

Employer calls a workman (whose name is on the muster roll) for work during the second half of the shift and is not able to give employment when the

workman presents himself for work; this is not considered to be a lay-off for the second half of the

shift for the day.o Such workman is entitled to full basic wages and

dearness allowance for that part of the day.

Retrenchment: [Sec.2 (o)] The termination by the employer of the service

of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of

disciplinary action. Retrenchment does not include:

o Voluntary retirement of a workman;o Retirement of a workman or reaching the age of

retirement as stipulated in the employment contract between him and his employer;

o Termination of the service of the workman as a result of non-renewal of his employment contract;

o Termination of such an employment contract under a stipulation contained therein; or

o Termination of the service of a workman on the ground of continued ill health.

Settlement: [Sec.2 (p)] A settlement, arrived at in the course of a

conciliation proceeding. This term includes a written agreement between

the employer and workmen that did not involve conciliation but the two parties, on their own, signed such an agreement in the prescribed

manner.

Appropriate government: Central Government: This is the appropriate

government in relation to:o Any industrial dispute concerning any industry

carried on by or under the authority of the Central Government;

o A railway company; oro Any such industry as may be specified by the

central government; oro Industrial dispute concerning a Dock Labour

Board; oro Industrial Finance Corporation of India; or

o ESIC; oro The Board of Trustees under the Coal Mines

Provident Fund and Miscellaneous Provisions Act, 1948; or

o The central and state Boards of Trustees under the Employees’ Provident Fund and Miscellaneous

Provisions Act, 1952; oro The Indian Airlines and Air India; or

o The ONGC; oro The Food Corporation of India; oro The Airports Authority of India; or

o An air transport service or a banking or an insurance company, a mine, an oil-field, a

cantonment board or a major port, etc. State Government: This is the appropriate

government in relation to any other industrial dispute.

Public Utility service: Any railway service or any transport service for

the carriage of passengers or goods by air; Any service in or in connection with the working

of, any major port or dock; Any section of an industrial establishment, on the working of which, the safety of the establishment

or the workmen employed therein depends; Any postal, telegraph or telephone service;

Any industry which supplies power, light or water to the public;

Any system of public conservancy (safety) and sanitation.

The appropriate government may declare any of the following industries as public utility service if it is satisfied that there is a public emergency or it is

in the public interest to do so;o Transport (other than railways as it is already in the list of permanent public utility services) for the carriage of passengers or goods by land or water;

o Banking;o Cement;

o Coal;o Cotton textiles;

o Foodstuffs;

o Iron and steel;o Defense establishments;

o Service in hospitals and dispensaries;o Fire brigade service;

o India Government mints and currency note press;

o Various mines;o Service in the International Airports Authority of

India;o Industrial establishments manufacturing or

producing nuclear fuel and components, heavy water and allied chemicals and atomic energy, etc. Any of these services may be declared as public utility service by the appropriate government by

notification in the official gazette. This status of a public utility service will not

normally be for a period exceeding six months but further extension of up to six months at a time is possible if public emergency or public interest so

requires.Industry: [Sec. 2 (j)]

Any systematic activity carried ono by co-operation between an employer and his

workmen (whether direct or contractual)o for the production, supply or distribution of goods

or serviceso with a view to satisfy human wants or wishes

(religious or spiritual wants not included). For the purpose of carrying on this activity,

o Capital may or may not have been invested, or Such an activity is or is not carried on with the

motive to make any gain or profit (e.g. State owned industries) and includes

o Any activity of the Dock Labour Board established under the Dock Workers (Regulation of

Employment Act), 1948 ando Any activity relating to the promotion of sales or business or both carried on by an establishment.

Under this Act, the term industry does not include:

o Any agricultural operation except where such agricultural operation is carried on in an integrated

manner with any other activity (being any of the previously mentioned activities) and such other

activity is the predominant one;o Hospital or dispensaries;

o Educational, scientific, research or training institutions;

o Institutions owned or managed by organizations wholly or substantially engaged in any charitable,

social or philanthropic service;o Khadi or village industries;

o Any professional activity practiced by an individual or body of individuals, if the number of

persons employed by the individual or body of individuals in relation to such profession is less

than ten;o Any activity carried on by a co-operative society or club or any other similar body of individuals, if the number of persons employed in relation to

such activity is less than ten.

Authorities and reference of Disputes: Under the Act, the authorities or bodies for the

prevention or settlement of disputes are as follows:o For individual disputes:

Grievance Settlement Authorityo For prevention of industrial disputes:

Works Committeeo For conciliation (compulsory):

Conciliation Officer Board of Conciliation

o For voluntary arbitration: Arbitrator

o For inquiry into industrial disputes: Court of Inquiryo For adjudication:

Labour Court Industrial Tribunal National Tribunal

Grievance Settlement Authority: [Sec. 9 (c)] This authority is required to be constituted in an

industrial establishment employing 50 or more workmen (on an average) in a year.

This authority is constituted for the settlement of industrial disputes connected with an individual

workman employed in an establishment. In case of an industrial dispute arising with an

individual workman, the workman or the union (if he belongs to one) refers the dispute in the

prescribed manner to the grievance settlement authority for settlement.

The authority has to follow a prescribed procedure and is also allocated a time limit within

which it has to complete its proceedings. Such a dispute cannot be referred to conciliation, arbitration or adjudication authorities unless it has

been referred to the grievance settlement authority and its decision is not acceptable to any

of the parties to the dispute.Works Committees: [Sec. 3]

Constitution:o The appropriate government, through a general

or special order, may require the employer to constitute a works committee in an industrial

establishment employing 100 or more workmen (on an average) in the previous 12 months.

Composition: o Such a committee is made up of representatives

of employers and workmen.o Representatives of workmen cannot be less than

the representatives of employers.o If the workmen of the establishment belong to

any registered trade union, this union will be consulted while choosing the representatives of

the workmen. Functions and Powers:

o Such a works committee is required to promote measures for securing and preserving amity and

good relations between the employers and workmen.

o It is also authorized to comment upon matters of common interest or concern to both the parties and try to address any significant difference of

opinion in respect of such matters.Conciliation Officer:

Constitution:

o The appropriate government appoints conciliation officers by notification in the official

gazette.o The number of such officers is also left to the

discretion of the appropriate government.o Such conciliation officer(s) may be appointed for

a specified area, or for a specified industry in a specified area or for one or more specified

industries, either permanently or for a limited period. [Sec.4]

Working:o Disputing parties may approach such an officer.

o In the case of public utility services, the disputing parties who have to send a notice of a strike or

lockout as prescribed under Sec.22 of the Act, the conciliation officer is required to intervene and hold conciliation proceedings in the prescribed

manner.

Functions:o A conciliation officer has to take steps for

inducing the parties to reach a fair and amicable settlement.

o If a settlement is reached, the report of the conciliation proceedings along with the agreement (signed by both the parties) has to be sent to the

appropriate government or an officer authorized by it.

o If no settlement is reached, he still has to notify the appropriate government about the steps taken

by him to ascertain the facts and circumstances leading to the dispute and what he did to bring

about a settlement.o Normally, the conciliation officer is given 14 days to conduct his proceedings and submit his report.

But extension is possible.o In case of no settlement, the appropriate

government will consider the officer’s report and may then refer the dispute to the Board of

Conciliation, Labour Court, Tribunal or National Tribunal. [Sec.11]

Powers:o Such a conciliation officer is deemed to be a

public servant under the Indian Penal Code and enjoys the same powers as those enjoyed by a civil

court. He may, after giving reasonable notice, enter the

premises of the establishment for the purpose of inquiring into existing or apprehended dispute. He may also enforce the attendance of any

person for the purpose of examining him. He may also call for inspection any document

relevant to the dispute or for verifying the implementation of any award.

Board of Conciliation: Constitution:

o This Board is constituted by the appropriate government only if the need arises.

Composition: [Sec. 5]o This Board consists of an independently

appointed Chairman and two or four members to be appointed in equal number by the parties to the

dispute.o The appropriate government will try to appoint

the members representing the parties on the recommendations of the parties concerned.o This Board may function in the temporary

absence of the chairman or any of its members.o But a permanent unavailability of either the

chairman or any of the members has to be notified by the appropriate government to the remaining

members and the Board will not function till a new chairman and members are appointed.

Working: [Sec. 10]o The appropriate government refers an existing or

an impending dispute to the Board, in writing.o Either or both the parties may also directly

approach such a Board for promoting the settlement of their dispute.

o Once the dispute reaches the Board, the appropriate government may prohibit the

continuance of the strike or lock-out in connection with this dispute which may have been in

existence at the time of reference. Duties and Powers: [Sec. 11,13,16,17]

o All members of the Board of Conciliation are public servants.

o An inquiry by such a Board is considered to be a judicial inquiry within the meaning of the IPC.o Every Board enjoys the same powers as are

vested in a civil court. A member of the Board, while carrying out the

inquiry into the dispute, may, after giving a notice, enter the premises of the establishment.

He may enforce the attendance of any person and examine him on oath.

He may compel the production of documents and material objects for inspection.

o If a settlement is arrived at, the Board is required to send a report and a memorandum of the

settlement signed by all the members of the Board and the parties to the dispute, to the appropriate

government.o If no settlement is reached, the Board is still

required to report to the appropriate government the entire proceedings, the steps taken by it to

bring about a settlement, facts, circumstances and reasons why the settlement could not be achieved.o The Board is required to submit its report within 2 months of the reference of the dispute or even a shorter period if so determined by the appropriate

authority. But a further extension of 2 months is possible.o If no settlement is reached in the case of public utility services, the appropriate government on

reading the report filed by the Board of Conciliation may or may not refer the dispute to a Labour

Court, Tribunal or National Tribunal.

The Conciliation Officer and the Board of Conciliation are bodies that are a part of the

conciliation efforts of the government. Commencement and conclusion of these

conciliation proceedings: [Sec. 20]o Date of commencement:

The date on which the notice of a strike or

lockout (as required under Sec. 22 for public utility services) is received by the Conciliation Officer, or The date of which the order referring the dispute

to a Board of Conciliation.o Date of conclusion:

The date on which the memorandum of settlement is signed (if such a settlement is

reached), or The date on which the report of the Conciliation Officer is received by the appropriate government or when the report of the Board of Conciliation has

been published (if no settlement is reached), or The date on which matters are referred to a

Court of Inquiry, Labour Court, Tribunal or National Tribunal.

Period of operation of settlement: [Sec. 19]o The settlement comes into effect on the date decided by the parties to the dispute or on the

date on which the memorandum of settlement is signed.

o The period for which such a settlement is binding on the parties may also be decided by the parties

themselves. If no such decision is taken, the settlement is

said to be binding for a period of six months from the date of signing the memorandum of

settlement. The settlement continues to be binding on the

parties for two months from the date of the notice for its termination is sent by one party to the other

or by both the parties. Persons on whom settlements are binding:

[Sec.18]o A voluntary settlement arrived at (without

conciliation) by the agreement between employer and workmen, is binding on the parties to the

agreement.o A settlement reached as a result of conciliation

proceedings (Conciliation Officer or Board of Conciliation) is binding on:

All parties to the industrial dispute; All other parties summoned to appear in the

proceedings as parties to the dispute; In the case of the employer, his heirs, successors or assigns in respect of the establishment to which

the dispute related; and In the case of workmen, all persons who were

currently employed in the establishment or part of the establishment to which the dispute relates on

the date of the dispute, and all persons who subsequently become employed in that

establishment or its part.Court of Inquiry: [Sec. 6,11,14,16 and 17] This is

just a fact-finding body. Constitution:

o The appropriate government constitutes this body as and when the need arises.

o Objective – “inquiring into any matter appearing to be connected with or relevant to an industrial

dispute”. Composition:

o This body could have a single independent person.

o If this body contains two or more persons, then

one of them has to be appointed as the Chairman.o All the members of the Court of Inquiry are deemed to be public servants under the IPC.

Functioning:o A Court of Inquiry is required to inquire in to the matters referred to it and report to the appropriate

government, in writing, within a period of six months from the commencement of its inquiry.

o Such a report has to be published by the appropriate government within a period of 30 days

from the date of the receipt of the report. Powers:

o A Court of Inquiry enjoys the same powers as are vested in the Civil Court.

For the purpose of the inquiry and with reasonable notice, the member(s) may enter the

premises of the industrial establishment. The member(s) may enforce the attendance of

any person and may examine him under oath. They may compel the production of documents

and material objects.o Every enquiry or investigation of the Court of Inquiry is treated as a judicial proceeding within

the meaning of the IPC.o A Court of Inquiry may appoint a person or

persons with specialized knowledge, to advice them of matters under consideration.

Labour Court: Constitution:

o The appropriate government may constitute one or more Labour Courts for the adjudication of

industrial disputes relating to matters that the Act mentions in its Second Schedule.

o The key person in the Labour Court is the presiding officer who has to have a substantial judicial experience at the district level at least (Refer to the notes on the chap. ‘Methods of

settling industrial disputes’ for the exact details regarding experience criteria).

Matters to be looked into by the Labour Court as mentioned in the Second Schedule of the Act:

o The propriety or legality of an order passed by the employer under the standing orders;

o The application and interpretation of standing orders;

o Discharge or dismissal of workmen, including reinstatement of, or grant of relief to, workmen

wrongfully dismissed;o Withdrawal of any customary concession or

privilege;o Illegality or otherwise of a strike or lockout; ando All matters other than those mentioned in the Third Schedule which specifies the matters to be

within the jurisdiction of Industrial Tribunals.

Industrial Tribunal: [Sec.7A] Constitution:

o The appropriate government may constitute one or more Industrial Tribunals for the adjudication of

industrial disputes of a certain nature. Composition:

o A tribunal is to consist of one key person known as the presiding officer.

o Qualifications: Is or has been a Judge of a High Court; or

Is or has been District Judge or Additional District Judge for a period of not less than three years.o Two assessors may also be appointed by the appropriate government to advice the Tribunal

from time to time. Matters to be looked in by the Industrial Tribunal:

o Matters specified in the second schedule (mentioned above); or

o Matters mentioned in the Third Schedule: Wages, including the period and mode of

payment; Compensatory and other allowances;

Hours of work and intervals; Leave with wages and holidays;

Bonus, profit-sharing, provident fund and gratuity;

Classification by grades; Rules of discipline;

Retrenchment of workmen and closure of establishments; and

Any other matters that may be prescribed.

National Tribunal: [Sec.7B] Constitution:

o The Central Government is empowered to constitute one or more National Tribunals for the

adjudication of industrial disputes involving Questions of national importance, or

Involve matters that are likely of interest to industrial establishments situated in more than

one state. Composition:

o One key person – known as the presiding officer.o Qualifications:

Is or has been a Judge of a High Court.o Two assessors may also be appointed to assist

the National Tribunal.

The Labour Courts and both the Tribunals – Industrial and National, are adjudicating bodies.

Disqualifications of the presiding officers of these adjudicating bodies: [Sec.7C]

Reference of disputes to the adjudicating bodies: [Sec.10]

o The appropriate government may refer an existing or apprehended dispute to the relevant

body (depending on Schedule Two, Schedule Three or nationally relevant matters), in writing.

o The disputing parties may make a request in the prescribed manner to the appropriate government who in turn will refer the matter to the concerned

authority.o If a dispute of national importance or that

involving the interest of industrial establishments of different state is referred to the National

Tribunal, no Labour Court or Industrial Tribunal has jurisdiction to adjudicate upon such a matter now.o Where an industrial dispute has been referred to

any adjudication authority, the appropriate government may, by order, prohibit the

continuance of any strike or lock-out in connection

with such dispute which might have been in existence on the date of reference.

o No proceedings before an adjudication authority in relation to an industrial dispute are to lapse by reason of the death of any of the parties to the

dispute including that of a workman.

Arbitrators and voluntary reference of Disputes to Arbitration: [Sec.10A]

Who can instigate the arbitration proceedings?o Voluntarily, the employer and the workmen may refer the dispute to an arbitrator/s mutually agreed

upon by them.o Compulsorily, the appropriate government may

refer a dispute to the arbitrator/s. Who can be an arbitrator?

o If not mutually agreed upon, an arbitrator may be appointed from amongst the presiding officers

of the Labour Courts, Industrial Tribunals or National Tribunals.

Arbitration agreement:o When the arbitration proceedings are instigated

by the appropriate government, the arbitration agreement has to be in the prescribed form and

signed by the parties.o A copy of the said agreement must be forwarded

to the appropriate government and to the Conciliation Officer.

o This agreement must also be published by the appropriate government in the official gazette within one month of the receipt of the copy. Notification of the arbitration proceedings:o Where an industrial dispute is referred to

arbitration and the appropriate government is satisfied that the persons referring the dispute

represent the majority of each party, it may issue a notification in the prescribed manner.

o Once such a notification is issued, employers and workmen who are not parties to the arbitration

agreement but are concerned with the dispute will be given the opportunity of presenting their case

before the arbitrators. Agenda of the arbitrator?

o To investigate the dispute and submit to the appropriate government the arbitration award

signed by him.o In the case of an industrial dispute that has been referred for arbitration and where the notification

has also been issued by the appropriate government, the same government may, by order, prohibit the continuance of any strike or lockout in

connection with such dispute which might have been in existence on the date of reference.

Miscellaneous provisions relating to procedures, powers of adjudication

authorities including granting of awards: Provisions under Sec.11:

o Every Labour Court, Tribunal or National Tribunal is deemed to be a civil court for the purposes of the Code of Criminal Procedure.

o A presiding officer of a Labour Court, Tribunal or National Tribunal is deemed to be

a public servant within the meaning of the

IPC.o Such presiding officers are empowered to decide the costs of any proceedings and to

determine the persons liable to pay the costs and the persons entitled to receive them.o These adjudicating authorities have the

power to set aside the order of discharge or dismissal of a workman (which led to the

dispute and the subsequent referral to these authorities).

They may also direct the reinstatement of the workman on terms and conditions as

they think fit; or They may give such other relief to the

workman including the award of any lesser punishment in lieu of discharge or dismissal.

Provision under Sec.15:o The adjudication authorities are required to hold their proceedings speedily and o submit the awards to the appropriate government within the period specified in the order or

within the extended period. Provision under Sec. 17B dealing with

payment of full wages pending proceedings in Higher Courts:

o Suppose the adjudication authority awards reinstatement of any workman and the

employer wants to appeal against such an award and approach a High Court or the

Supreme Court.o In this case, the employer is liable to pay to

the workman during the period in which these proceedings are pending in the higher

courts, full wages last drawn by him including any maintenance allowance

admissible to him. These payments would be made if the workman has not been employed in any

establishment in the intervening period and an affidavit has been filed by him to that

effect. Provisions under Sec. 17 dealing with the Publication and Commencement of Award

granted by the arbitration and adjudication authorities:

o The award of a Labour Court, Tribunal or National Tribunal has to be in writing and has to be signed by the presiding officer.

o Every award of an arbitrator or an adjudication authority is to be published by the appropriate government within a period

of 30 days from the date of its receipt.o Normally, an arbitration or adjudication

award comes into force on the expiry of 30 days from the date of its publication by the appropriate government (though from time to time the appropriate government may declare differently), or on the date that is specified by the appropriate government.

Provision under Sec. 19 dealing with period of operation of awards:

o Ordinarily, the award is to remain in operation for a period of one year from the

date on which it becomes enforceable

But such a period may be reduced o extended by the appropriate government. Extension can be granted for not more than one year at a time but it may not

exceed three years from the date on which it comes into operation.

Provision under Sec. 18 dealing with persons on whom an award is binding:o An award of arbitration for which no

notification has been issued, is binding on the parties to the agreement referring the

dispute to arbitration.o An award of arbitration for which

notification has been issued or an award of any of the adjudication authorities is binding

on: All parties to the industrial dispute;

All other parties summoned to appear in the proceedings unless the concerned

authority records its opinion that they were so summoned without proper cause;

Where a party is an employer, his heirs, successors, or assigns in respect of the

establishment to which the dispute relates; and

Where a party is composed of workmen, all persons who were employed in the

establishment or its part (to which the dispute relates) on the date of the dispute and all persons who subsequently become

employed in that establishment. Provisions under Sections 21 and 30

dealing with confidential matters:o A trade union, person, firm or company

carrying on a business can request any of the authorities constituted under the Act (that

we have studied so far) to treat certain information as confidential.

o On receiving such a request, the authorities are required to do so.

o Disclosure of such information will require the written consent of the person concerned.

Prohibition of Strikes and Lockouts: Provisions under Sec. 23 dealing with

general prohibition:o No workman employed in any industrial establishment is allowed to go on strike while citing ‘breach of contract’ as the

reason: During the conciliation proceedings before a Board of Conciliation and 7 days after the

conclusion of such proceedings; or During the adjudication proceedings before

the Labour Court, Tribunal or National Tribunal, and 2 months after the conclusion

of such proceedings; or During the arbitration proceedings before

an arbitrator and 2 months after the conclusion of such proceedings (if a

notification prohibiting such strike has been issued by the appropriate government); or

If the settlement or award covers a particular matter or matters and such a

settlement is still in operation. Under Sec. 22 dealing with Prohibition of

Strikes in Public Utility Services:o Section 22 applies to Public Utility Services in addition to Section 23 dealing with general

prohibitions.o A person employed in public utility service

must not go on strike citing ‘breach of contract’ as a reason:

Without giving to the employer a notice of strike within 6 weeks before striking; or

Within fourteen days of giving such notice; or

Before the expiry of the date of strike specified in the notice (at least 6 weeks from

the date of notice); or During the conciliation proceedings before

a Conciliation Officer and 7 days after the conclusion of such proceedings.

o The employer, on receiving such notice of a strike, has to report the matter to the

appropriate government or an authority specified by it within 5 days of receiving such

a notice. Under Sections 22 and 23 also dealing with

prohibition of lockouts (general and pertaining to employers in the public utility

services):o The provisions regarding the prohibition of

lockouts are the same as those for the prohibition of strikes.

Provisions under Sec. 24 dealing with illegal strikes and lockouts:

o A strike or lockout is illegal in the following cases:

It is started or declared in contravention to the provisions made in Sections 22 and 23.

It is continued in spite of the order prohibiting such action has been passed by

the appropriate government while the adjudication proceedings are on.

It is continued in spite of the order prohibiting such actions has been passed by

the appropriate government while the arbitration proceedings are on and a

notification has also been passed to that effect by the appropriate government.

o A lockout declared in consequence of an illegal strike or a strike declared in

consequence of an illegal lockout is not illegal.

Provision under Sec. 25 dealing with Financial Aid to Illegal Strikes and Lockouts:

o The Act prohibits expending or applying any money in direct furtherance or support

of any illegal strike or lockout.

Layoff, Retrenchment, and Closure: [Sec. 25] Layoff:

o The provisions regarding layoff do not apply to: Industrial establishments employing less than 50 workmen (on an average) per working day in the

preceding 12 months; and

Industrial establishment whose work is seasonal in nature or is performed only intermittently.

• The appropriate government gets to decide the seasonal or intermittent character of a particular

industrial establishment.o Right of the workmen laid-off to receive

compensation: These rights are enjoyed by only those workmen

whose names appear on the muster roll of the industrial establishment; and

Those who have completed one year of continuous service.

Compensation entitlement is 50 % of the total basic wages and dearness allowance that would

have been payable to him had he not been laid-off.• Calculations exclude the intervening weekly

holidays. If there is an agreement between the employer

and the workmen regarding this issue, it could lawfully contain a clause that entitles the workmen

to receive such layoff compensation for only the first 45 days if the layoff were to exceed this limit

in any period of 12 months. It is also lawful for the employer to retrench the workmen at any time after the expiry of the first

45 days of the layoff.• And when he does so, any compensation paid to

the workmen for layoff during the preceding 12 months may be set off against the compensation

payable for retrenchment.o A workman is not entitled to received layoff

compensation under the following cases: If he refuses to accept any alternative

employment in the same establishment, or in any other establishment belonging to the same

employer and situated in the same town or village, provided that the workman was offered the same

wages which he would have normally drawn; If he does not present himself for work at the

establishment at the appointed time during normal working hours at least once a day; and

If such laying-off is due to a strike or slowing down of production on the part of workmen in

another part of the establishment. Retrenchment:

o In the case of workmen in any industry, who have been in continuous service for not less than 12 months, retrenchment is possible only under

the following conditions: 1 month’s written notice was given to the

workman indicating the reasons for retrenchment and the notice period has come to an end, or• The workman has been paid in lieu of such

notice; At the time of retrenchment, the workman has been paid a compensation equivalent to 15 days’

average pay for every completed year of continuous service

• Or any part of it in excess of 6 months; and A notice has been served in the prescribed

manner on the appropriate government or any authority specified by such government by

notification in the official gazette.o Every workman who has been in continuous

service for not less than 12 months in an establishment whose ownership or management is

transferred to a new employer, is entitled to: A prescribed notice and compensation as if he

has been retrenched. This compensation would have to be paid:

• If there has been an interruption in the service of the workman as a result of the transfer;

• The new terms and conditions of service applicable to him are less favourable to him than

those applicable just before the transfer; and The new employer, under the terms of

agreement or even otherwise, is not legally liable to pay to the workman, retrenchment

compensation if the workman’s service has not been continuous even though now it has been

interrupted by the transfer.o Ordinarily, the employer is required to retrench

the workman who was the last person appointed in his category.

o Later on, if the same employer proposes to employ persons in the industrial establishment, the

retrenched workmen will have to be given preference over other persons if they offer

themselves for re-employment. Closure:

o Notice regarding closure has to be served in the prescribed manner on the appropriate

government. The notice should clearly state the reasons for

the intended closure. This notice has to be served at least 60 days

before the closure is to become effective. This notice is not necessary in undertakings:

• That employ (on an average) less than 50 workmen per working day in the preceding 12

months.• Those are set up for carrying out any kind of

construction work.o Every workman who has been in continuous

service for not less than 12 months immediately before the closure, is entitled to:

The prescribed notice, and Compensation as if he had been retrenched.o If the closure is on account of ‘unavoidable

circumstances beyond the control of the employer’;

The compensation is not to exceed his average pay for 3 months.

o The phrase ‘unavoidable circumstances beyond the control of the employer’ does not include:

Financial difficulties including financial losses, Accumulation of unsold and unutilized stocks, The expiry of the period of lease or the license

granted to it, or The exhaustion of minerals in a particular area.

Definition of Continuous Service for the purposes of Layoff and Retrenchment Compensation:

For the above-mentioned purposes, a workman is said to be in continuous service for a period, if he

is, for that period, in ‘uninterrupted service’.o Service interrupted on account of the following

reasons is also included in the counting of

`uninterrupted service’: Sickness, or

Authorized leave, or An accident, or

A legal strike or a legal lockout, or A cessation of work which is not due to any fault

on the part of the workman. He has been laid-off under an agreement or as

permitted by standing orders made under the Industrial Employment (Standing Orders) Act,

1946; He has been on leave with full wages earned in

the previous years; He has been absent due to temporary

disablement caused by accident arising out of and in the course of his employment; and

In the case of a female workman, she has been on maternity leave for not exceeding 12 weeks.

Special Provisions for Layoff, Retrenchment, and Closure:

These special provisions apply to those industrial establishments:

o That are not of seasonal character and where work is not performed only intermittently,

o That employed not less than 100 workmen on an average per working day in the preceding 12

months. Special Provisions for Layoff:

o These special provisions also apply to only those workmen whose names are on the muster-rolls of

the industrial establishments.o Such workmen cannot be laid-off by their

employer without the permission of the appropriate government or an authority specified by that government by notification in the official

gazette. The application for permission has to contain the

reasons for the intended layoff. When the application seeking permission to

layoff workmen is made to the appropriate government, at the same time, it should be served

on the workmen concerned.o Such permission for layoff is not necessary

where: It is due to shortage of power; or It is due to natural calamity; and

In the case of the mining industry, it is due to fire, flood, and excess of inflammable gas or

explosion.o The appropriate government or the specified

authority will take into consideration the genuineness and adequacy of the reasons

for layoff, the interests of the workmen and all other

relevant factorsand then pass an order granting or refusing such

permission.o Such an order will be final and binding on all the parties concerned and is to remain in force for 1

year from the date of the order.o In case an application for permission for layoff or

its continuance has not been made in time, or if such permission has been refused, the layoff is

considered illegal and the workmen are entitled to all the benefits as if they had not been laid-off.

The benefits and compensation in this case are the same as those discussed earlier.

Special provisions for Retrenchment of workmen:o No workman employed in an industrial

establishment covered by the special provisions (relating to layoff, retrenchment and closure) and who has been in continuous service for 12 months

or more, is not to be retrenched until: He has been given 3 months’ notice (in writing)

clarifying the reasons for retrenchment, The period of this notice has expired, or

• He has been paid wages in lieu of such notice, and

Prior permission (as discussed in the case of layoff) has been obtained on application.

o In case permission for retrenchment has been granted (or presumed to have been granted),

every workman who is employed in that establishment immediately before the date of

application for permission, is entitled to receive, at the time of retrenchment compensation.

This compensation is the same as that provided under general provisions – 15 days’ average pay for every completed year of continuous service or

any part in excess of six months. Special provisions for closure of undertakings:

o An employer intending to close down an industrial establishment to which these special

provisions apply: Has to seek prior permission of the appropriate

government. The application for permission has to be made at least 3 months before the intended date of closure. The application must include the reasons for the

intended closure. A copy of the application is also to be served

silmultaneously on the workers concerned.o Such permission is not necessary in case of

undertakings set up for construction work. The special provisions will apply in addition to

the general provisions relating to layoff, retrenchment and closure.

Provisions under Sections 2(RT) and 25T relating to Unfair Labour Practices:

These provisions were inserted by an amending Act of 1982.

No employer or workman or trade Union (registered or not), is to commit any of the unfair labour practices specified in the 5th Schedule of

the Act. Let us see some examples of unfair labour

practices as specified in the schedule:o By employers and trade unions of employers

(employers’ associations): Threatening workmen with discharge or

dismissal, if they join a trade union; Threatening a lock-out or closure, if a trade

union is organized; Granting wage increase to workmen at crucial periods of trade union formation, with a view to

undermining the efforts of the trade union at organization;

An employer showing partiality or granting favour to one of several trade unions attempting to

organize his workmen or to its members, where such a trade union is not recognized trade union;

To establish employer-sponsored trade unions of workmen;

Discharging or punishing a workman because he urged other workmen to join or organize a trade

union; Discharging or dismissing workman for taking

part in any strike (which cannot be called an illegal strike according to the provisions of the same Act);

Refusing to promote workmen on account of their trade union activities;

Discharging office-bearers or active members of the trade union on account of their trade union

activities. To discharge or dismiss workmen:

• By falsely implicating a workman in a criminal case on false evidence or on made-up evidence;

• For patently false reasons;• On untrue or trumped up allegations of absence

without leave;• To abolish the work of a regular nature being

done by workmen, and to give such work to contractors as a measure of breaking a strike;• To show favoritism or partiality to one set of

workers regardless of merit;• To discharge or discriminate against any

workman for filing charges or testifying against an employer in any enquiry or proceeding relating to

an industrial dispute;• To recruit workmen during a strike which is not

an illegal strike;• To indulge in acts of force or violence;

• Failure to implement award, settlement;• To refuse to bargain collectively, in good faith

with the recognized trade unions;• Proposing or continuing a lockout deemed to be

illegal under this Act.o By workmen and trade unions of workmen:

To advise or actively support or instigate any strike deemed to be illegal under this Act;

For a trade union or its members to picket in such a manner that non-striking workmen are

physically debarred from entering the workplaces; To indulge in acts of force or violence or to hold

out threats of intimidation in connection with strike against non-striking workmen or against

management staff; For a recognized union to refuse to bargain

collectively with the employer; To stage, encourage or instigate such forms of coercive actions as willful “go slow”, squatting on the work premises after working hours or ‘gherao’

of any managerial or other staff; To stage demonstrations at the residences of the

employer or the managerial staff members; To incite or indulge in willful damage to the

employers’ property connected with the industry; To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work.Provisions under Sec. 33 dealing with change of

conditions of service during the period in which proceedings are pending:

When any dispute is pending before a conciliation or adjudication authority or an

arbitrator, the employer must not:o Alter to the prejudice of the workmen concerned,

the conditions of service applicable to them immediately before the commencement of the proceedings in regard to any matter concerned

with the dispute; oro Discharge or punish any workmen concerned with the dispute for any misconduct connected

with the dispute, unless he has been permitted by the authority to do so.

Provisions under Sec. 9 which deals with notice of change:

An employer, proposing to effect any change in the conditions of service applicable to a workman

in respect of matters mentioned in the 4th Schedule of this Act, cannot do so without giving

proper notice (of 21 days) of the proposed change to the workmen affected by it.

o These matters mentioned in the 4th Schedule are:

Wages, including the period and mode of payment;

Contribution paid, or payable, by the employer to any provident fund, pension fund or for any

benefit for the workmen; Hours of work and rest intervals; Leave with wages and holidays;

Starting, alteration or discontinuance of shift-working otherwise than in accordance with

standing orders; Classification by grades;

Withdrawal of any customary concession or privilege or change in usage;

Introduction of new rules of discipline, or alteration of existing rules, except those provided

in the standing orders; Any increase or reduction (other than casual) in

the number of persons employed or to be employed in any occupation or process or

department or shift, not occasioned by circumstances over which the employer has no

control.Provision under Sec.35 dealing with protection of

persons: A person refusing to participate in an illegal strike or lock-out cannot be expelled from any

trade union or society;o Such person will not be fined or penalized;

o Nor will he be deprived of any right or benefit to which he is entitled;

o He will also not be placed in a disadvantageous position as compared with other members of the

union or society.Provisions under Sec.36 dealing with

representation of parties: Under this Act, a workman who is a party to any dispute is entitled to be represented in any non-

adjudication proceedings by:o A member of the executive or other office-bearer

of a registered trade union of which he is a

member; oro A member of the executive or other office-bearer of a federation of trade unions to which his trade

union his affiliated; oro Where the worker is not a member of any trade

union, by a member of the executive or other office-bearer of any trade union in the industry in

which he is employed or any other workman in the industry.

The employer may also be represented (in such non-adjudication matters) by:

o An officer of an association of employers of which he is a member; or

o An officer of a federation of associations of employers to which his association is affiliated; or

o Where an employer is not a member of any association, by any association of employers

connected with the industry or by any employer in the industry.

o No party to a dispute is authorized to be represented by a legal practitioner in conciliation

proceedings or proceedings before a Court of Inquiry.

A party to a dispute before an adjudication authority may be represented by a legal

practitioner with the consent of the other parties or with the leave of the authority concerned.

Provisions regarding penalties: Participation by a workman in an illegal strike

and acting in furtherance of illegal strike is punishable with imprisonment extending 1 month

or fine up to Rs.50 or both [Sec.26(1)]. An employer declaring an illegal lockout or acting

in furtherance of an illegal lockout is punishable with imprisonment up to 1 month of fine up to

Rs.1000 or both [Sec.26(2)]. Any person who instigate or incites another

person to take part in, or finances any illegal strike of lockout is punishable with imprisonment of

maximum 6 months or with a fine of maximum Rs.1000 or both [Secs.27, 28].

Any person who commits any unfair labour practice is punishable with imprisonment up to 6 months or with fine up to Rs.1000 or with both

[Sec.25U]. Any person who willfully discloses confidential

information is punishable with imprisonment up to 6 months or with fine which may extend to

Rs.1000 or with both [Sec.30]. Any employer who closes down an industrial undertaking against the provisions relating to notice to workmen of intention to closure, is

punishable with imprisonment up to 6 months or with fine up to Rs.500 or with both [Sec.30A].

Any employer who closes sown an undertaking against the special provisions relating to

application for permission and serving a copy to the workmen is punishable with imprisonment up

to 6 months or with fine which may extend to Rs.5000 or with both [Sec.25R].

Any employer who goes against the special provisions of the Act relating to the obtaining the permission of the government before laying-off or

retrenching workmen is punishable with

imprisonment up to 1 month or with fine up to Rs.1000 or with both [Sec25Q].

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SUSHIL KUMAR SINGHAL V. PUNJAB NATIONAL BANK IN RE: CIVIL APPEAL NO. 6423 OF 2010 P. SATHASIVAM & B.S. CHAUHAN, JJ. [DECIDED ON 10.08.2010]

Industrial Disputes Act, 1947 read with The Probation of Offenders Act, 1958 – section 12 – banking industry – moral turpitude – embezzlement of money – conviction by criminal court – dismissal from

services – probation granted – whether reinstatement should be made – held, no

Brief facts: The appellant was appointed as a Peon in the respondent-Bank, on 01.12.1971 and stood confirmed on the said post vide order dated 28.12.1977. The appellant was handed over cash of

Rs.5000/-, to deposit the same as dues for the Telephone Bill in the Post Office. However, it was not deposited by the appellant, therefore, the bank lodged FIR No. 171 under Section 409 of Indian Penal

Code, 1860 (hereinafter called “IPC”) against the appellant. Appellant was tried for the said offence. After conclusion of trial, the appellant was convicted by the competent Criminal Court vide Judgment and Order dated 28.01.1988. The respondent-Bank issued a Show Cause Notice dated 01.03.1988 to the appellant, proposing dismissal from service and asked the appellant to show cause within a period of seven days.

The appellant submitted the reply dated 08.03.1988. However, the respondent-Bank dismissed the appellant from service vide order dated 09.03.1988.

Being aggrieved, the appellant raised an industrial dispute under the Industrial Disputes Act, 1947 and the matter was referred to the Tribunal. In the meanwhile, the appeal filed by the appellant against the order

of conviction was decided by the appellate Court vide judgment and order dated 29.5.1989. The appellate Court maintained the conviction, but granted him the benefit of probation under The Probation of

Offenders Act, 1958 (hereinafter called as, “Act 1958) and released the appellant on probation. The Tribunal made the award dated 03.01.2007, rejecting the claim of the appellant and holding his dismissal from service to be justified and in accordance with law. The appellant challenged the said award of the

Tribunal before the High Court. His petition also stood dismissed and hence this appeal.

Decision: Appeal dismissed.

Reason: The rival submissions made by the learned counsel for the parties were considered and records perused. The facts of the case are not in dispute. The Trial Court has convicted the appellant under

Section 409 IPC after recording the finding of fact that the appellant had not deposited the telephone bill in spite of receiving a sum of Rs. 5000/- for that purpose on 26.04.1982 and he deposited the said amount with the Bank on 27.07.1982 vide voucher (Exhibit PH). Appellant had also taken away the

Bicycle of the Bank. The appellate Court maintained the conviction; however, it granted the appellant the benefit of probation under the Act, 1958.

The sole question involved in this case is whether the benefit granted to the appellant under the provisions of Act, 1958 makes him entitled to reinstatement in service. The law on the issue can be summarized to the effect that the conviction of an employee in an offence permits the disciplinary

authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word “Disqualification” contained in Section 12 of the Act, 1958 refers to a disqualification provided in other Statutes, as explained by this Court in the

above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the Act, 1958.

The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act, 1958, only enables the delinquent not to undergo the sentence on

showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving

moral turpitude, it is his misconduct that leads to his dismissal.

Undoubtedly, the appellant was convicted by the Criminal Court for having committed the offence under Section 409 IPC and was awarded two years’ sentence. The appellate court granted him the benefit of

Act, 1958. The Tribunal rejected his claim for re-instatement and other benefits taking note of the fact that appellant was given an opportunity by the Management to show cause as to why he should not be

dismissed from service. The appellant submitted his reply to the said show cause notice. The Management passed the order of dismissal in view of the provisions of the 1949 Act. The Tribunal also took into consideration the contents of the Bi-Partite Settlement applicable in the case and rejected the appellant’s claim. The High Court considered appellant’s grievance elaborately as is evident from the

impugned judgment. There could be no other view possible in the aforesaid fact-situation.