LL.B.

IV Term
Paper : LB - 4032 Labour Law - II
General Readings: 1. Report of the National Commission on Labour (1969) 2. Report of the Second National Commission on Labour (2002) 3. Report of the Committee on Fair Wages (1948) Part A : The Industrial Disputes Act, 1947 Prescribed Legislations: 1. The Industrial Disputes Act, 1947 2. The Industrial Employment (Standing Orders) Act, 1946 Prescribed Books: 1. O.P. Malhotra, The Law of Industrial Disputes (6th ed., 2004) 2. G.B. Pai, Labour Law in India (2001) 3. P.L. Malik (Rev.), K.D. Srivastavas Industrial Employment (Standing Orders) Act, 1946 (4th ed., 2000) 4. P.L. Maliks Industrial Law (21st ed., 2008) 5. S.C. Srivastava (Rev.) Labour Law and Labour Relations : Cases and Materials (3rd ed., 2007) Topic 1 : Aims and Objects of the Industrial Disputes Act (a) Investigation & Settlement of Industrial Disputes General (sections 3 15) 1. Bharat Bank Ltd. v. Employees, AIR 1950 SC 188 1 (b) Dispute Settlement Machinery: Conciliation and Adjudication (i) Conciliation/Mediation as a Dispute Settlement Mechanism (ii) Adjudication : Voluntary Adjudication/Arbitration and Compulsory Adjudication Topic 2 : Reference of the Industrial Dispute (a) Nature & Scope of the Power of the Appropriate Government under section 10 (b) Jurisdiction of Adjudicatory Authorities. 2. 3. Karnal Leather Karamchari Sanghatan (Regd.) v. Liberty Footwear Company (Regd.), AIR 1990 SC 247 The State of Madras v. C.P. Sarathy, AIR 1953 SC 53

16 21

ii

4. 5. 6. 7.

State of Bombay v. K.P. Krishnan, AIR 1960 SC 1223 Telco Convoy Drivers Mazdoor Sangh v. State of Bihar, AIR 1989 SC 1565 Sharad Kumar v. Govt. of NCT of Delhi, AIR 2002 SC 1724 The Delhi Cloth & General Mills Co. Ltd. v. Workmen, AIR 1967 SC 469 Topic 3 : Awards and Settlements (a) Settlement : Nature, Duration and Termination (b) Awards : Nature and Duration (c) Judicial Review of Industrial Awards

28 39 42 46

8. 9. 10. 11.

Sirsilk v. Government of Andhra Pradesh, AIR 1964 SC 160 Remington Rand of India Ltd. v. Workmen, AIR 1968 SC 224 J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 Burn & Co. v. Their Employees AIR 1957 SC 38 Topic 4 : Managerial Prerogative

54 59 62 74

Domestic Enquiry and Disciplinary actions with special reference to the Industrial Employment (Standing Orders) Act, 1946 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806 Associated Cement Co. Ltd. v. Workmen (1964) 3 SCR 652 Tata Oil Mills Co. Ltd. v. Workmen, AIR 1965 SC 155 Indian Overseas Bank, Anna Salai v. P. Ganesan, 2007 (13) SCALE 446 Kusheshwar Dubey v. Bharat Coking Coal Ltd., AIR 1988 SC 2118 The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC 109 Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathi, (1992) 3 SCALE 518 Bharat Petroleum Corpn. Ltd. v. Maharashtra General Kamgar Union (1999) 1 SCC 626 Managing Director, ECIL v. B. Karunakar, AIR 1994 SC 1074 Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yousuf Miya, (1996) 9 SCALE 65 Debotosh Pal Choudhary v.Punjab National Bank, AIR 2002 SC 3276 83 85 91 96 103 106

113

118 122

iii

Topic 5 : Powers of the Adjudicatory Authorities Power in cases of Discharge/Dismissal (section 11A) The Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. v. The Management, AIR 1973 SC 1227 24. Hombe Gowda Educational Trust v. State of Karnataka (2006) 1 SCC 430 25. Scooters India Limited v. Labour Court, AIR 1989 SC 149 26. J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 Topic 6 : Restraints on Managerial Prerogatives (section 33 and 33A) 27. The Management, Hotel Imperial v. Hotel Workers Union, AIR 1959 SC 1342 28. Fakirbhai Fulabhai Solanki v. Presiding Officer, AIR 1986 SC 1168 29. Ram Lakhan v. Presiding Officer (2000)10 SCC 201 PART B ; Wages Prescribed Legislations: 1. The Minimum Wages Act, 1948 2. The Payment of Wages Act, 1936 Prescribed Books : 1. 2. 3. 4. O.P. Malhotra, The Law of Industrial Disputes (6th ed., 2004) G.B. Pai, Labour Law in India (2001) K.D. Srivastava, Minimum Wages Act, 1948 (1995) P.L. Malik, K.D. Srivastavas Commentaries on Payment of Wages Act, 1936 (5th ed., 1998) Topic 7 : Wage Concept and Kinds of Wages (i) Concept; Kinds - (a) Minimum Wage; (b) Fair Wage; (c) Living Wage (ii) The Minimum Wage Act, 1948 (iii) Machinery under the Act for the Fixation of Minimum Wage (iv) The Payment of Wages Act, 1936 : Salient Features 30. 31. 32 Crown Aluminum Works Ltd. v. Workmen, AIR 1958 SC 130 Greaves Cotton and Co. Ltd. v Workmen, AIR 1964 SC 639 The Workmen v. The Management of Reptakos Brett & Co. Ltd., AIR 1992 SC 504 178 186 194 23

125 147 155

158 166 172

iv

PART C : Bonus Prescribed Legislations : The Payment of Bonus Act, 1965 Prescribed Book : P.L. Malik, K.D. Srivastavas Commentaries on The Payment of Bonus Act, 1965 (8th ed. 1997) Topic 8 : Payment of Bonus Salient features of the Payment of Bonus Act, 1965 33. Jalan Trading Co. (P.) Ltd. v. Mill Mazdoor Sabha, AIR 1967 SC 69 PART D : WORKMENS COMPENSATION Topic 9 : Entitlement for Compensation (a) Concept of injury arising out of and in the course of employment (b) Disablement : Partial and Total ; Temporary and Permanent (c) Quantum of Compensation principles for determination 34. B.E.S.T. Undertaking v. Agnes (1964) 3 SCR 930 221 202

IMPORTANT NOTE: 1. The students are advised to read only the books prescribed above along with legislations and cases. 2. The topics and cases given above are not exhaustive. The teachers teaching the course shall be at liberty to add new topics/cases. 3. The students are required to study the legislations as amended up-to-date and consult the latest editions of books. 4. The Question Paper shall include one compulsory question consisting of five parts out of which four parts will be required to be attempted. The question papers set for the academic years 20008 to 2010 are printed below for guidance.

LL.B. IV Term Examinations, April- May, 2008 Note: Answer five question including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following:(a) Enforceability of an industrial award. (b) Protected workman; (c) Section 10 (4) of the Industrial Dispute Act, 1947; (d) Duties of conciliation officer; (e) Application of the principles of res judicata in the industrial adjudication. 2. Discus the principles of natural justice required to be followed in a domestic enquiry. Support your answer with the help of decided cases. 3. Distinguish between fair wage and living wage. Describe the procedure adopted by the adjudicatory authorities for fixing and revising the wage structure in industry. 4. Discuss the powers of the Industrial Tribunal to give appropriate relief in case of discharges or dismissal of workmen of under section 11-A of the Industrial Disputes Act, 1947. 5. Are the decision/orders passed by the following authorities (constituted under Industrial Disputes Act, 1947) appealable under Article 136 of the Constitution before the Supreme Court? (i) Industrial Tribunal; (ii) Arbitrator; (iii) Conciliation Officer Give reasons. 6. Ramnath, an employee of AB & Co. was expected to be inside the mill at 3.25 p.m. for the shift starting at 3.30 p.m., was standing at about 3.20 p.m. with a group of co-workers, approx. 10-15 feet away from the entry gate of the mill. The gate was opened and there was no rush. He was knocked down by a speeding car as a result of which he died. His widow wants to claim compensation under the Workmens Compensation Act, 1923. She engages you as a lawyer. Argue on her behalf. 7. Discuss the nature of power of the government in making a reference under section 10(1) of the Industrial Disputes Act, 1947. Are the reasons given by the government in refusing a reference justiciable? Can a reference once made be withdrawn? 8. (a) Discuss broadly the provisions of section 33(1) of the Industrial Disputes Act and support your answer with decided cases. (b) An Industrial Tribunal can abrogate a term of the contract between the disputing parties. It can also rewrite a contract for them. Discuss with the help of deiced cases.

vi

LL.B. IV Term (Supplementary) Examinations, Aug.-Sept. 2009 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt any four of the following briefly: (a) Contract of service and Contract for service. (b) Conciliation under the Industrial Disputes Act, 1947. (c) Scope of section 10(4) of the Industrial Disputes Act, 1947. (d) Industry-cum-region formula. (e) Applicability of res judicata to Industrial Tribunals. 2. How are Labour Tribunals different from the ordinary courts of law? Would an appeal lie against the determination of Labour Tribunals to the Supreme Court under Article 136 of the Constitution? Support your answer with the help of decided cases. 3. What do you mean by Theory of notional extension of employment for the purposes of determining the liability of an employer under the Workmens Compensation Act, 1923? 4. Explain the concept of Minimum, Fair and Living Wages. Discuss the principles of determination of wages as decided in the Crown Aluminum Works v. Their Workmen, AIR 1958 SC 30. 5. Discuss the principles of natural justice which are required to be followed in the case of domestic enquiry conducted for misconduct. 6. (a) An Industrial Tribunal can abrogate a term of contract between the disputing parties. It can also rewrite a contract for them. Discuss with the help of decided cases. (b) Discuss broadly the principles of Sec. 33(1) of the Industrial Disputes Act 1947, and support your answer with the help of decided cases. 7. The Firestone Tyre and Rubber Co. case, AIR 1973 SC 1227 correctly explains the powers and functions of the Industrial Tribunal under section 11A of the Industrial Disputes Act 1947 relating to termination of services. Elaborate this concept and support your answer with legal arguments. 8. Critically examine the law laid down by the Supreme Court in Labour Union v. International Franchise (1966) II SCR 493.

vii

LL.B. IV Term Examinations, May-June 2009 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Constitution and duties of Works Committees. (b) Distinction between Interim Award and Interim Relief. (c) Change of service conditions of a Protected Workman under Section 33(3) of the Industrial Disputes Act, 1947. (d) Full Bench formula for computing bonus. (e) Application of the principle of res judicata in the Industrial Adjudication. 2. A dispute arose between the management of X & Co. and its workmen in respect of payment of bonus. The workers forwarded a copy of their demand to the Assistant Labour Commissioner requesting him to commence the conciliation proceedings at an early date. The conciliation proceedings were initiated but proved futile. The conciliator made his failure report under Section 12(4) of the I.D. Act. On receipt of the report, the government refused to refer the dispute for adjudication under Section 12(5) of the Act on the ground that workmen had adopted go-slow tactics. In the light of these facts, discuss the following issues: (a) Can a reference be made only under Section 12(5) independently of Section 10(1) of the Act? (b) Can the court direct the government to refer the dispute for adjudication? 3. Discuss the law relating to publication of awards under Section 17 of the Industrial Disputes Act, 1947. Also discuss the power and circumstances which allow the government to declare that the award shall not become enforceable on the expiry of thirty days from the date of its publication. 4. A company was trying to transfer its business from Calcutta to some other suitable place. The workers were opposing the transfer of business place. In the meantime, the company found the place of its choice and transferred the business to Delhi. The workers of Calcutta unit went on strike. The Government made a reference to the industrial tribunal in the following words: Whether the strike of workers and consequent lock out by the company are justified and to what relief the workers are entitled? The company contended before the tribunal that there was no a lock-out but a closure. Discuss. Can the tribunal entertain the plea of the company under section 10(4) of the Industrial Disputes Act, 1947? 5. The management of M/s X & Co. dismissed Manav for committing an act of insubordination without conducting any domestic enquiry against him. Manav raised an industrial dispute regarding his dismissal which was referred to industrial tribunal on Jan. 1, 1969. During the pendency of proceedings before the tribunal, section 11A was introduced in the Industrial Disputes Act, 1947. Thereafter, the counsel on behalf of Manav raised the following points before the Tribunal:

viii

(a) Section 11A shall be applicable to his pending dispute also. (b) After the introduction of section 11A, the domestic enquiry is a must and any dismissal order without domestic enquiry requires reinstatement order. Discuss the above issues before and after section 11A of the Industrial Disputes Act, 1947. 6. On a complaint by the In-charge of the cash branch, the management of M/s. Bankers suspended A, a clerk of the cash branch, on the ground of misappropriation of money. M/s Bankers lodged a complaint with the local police and also appointed the said Incharge to conduct a domestic enquiry against A. At the beginning of the domestic enquiry, A requested the Enquiry Officer and also the management to withhold the said proceedings till the disposal of the criminal case. As the request was not conceded, A decided not to participate in the proceedings. The enquiry proceeded ex parte and A was found guilty of the charges framed against him. Relying on the report, the management dismissed A. A challenges his dismissal order. Is the dismissal of A valid? Also discuss the principles involved in conducting fair domestic enquiry. 7. What do you understand by minimum wage? How would you distinguish it from fair wage? What was the criteria adopted by the industrial adjudicatory authorities in fixing/revising the wage structure in any particular industry? Discuss. 8. Ankit and his younger brother Arpit (a bachelor) were employees as peons in the Faculty of Medical Sciences. Arpit was attached to the Deans Office and was to work from 10 to 1 and 2 to 5 in the morning and evening respectively. Arpit knew driving well. As it happened, the Deans personal driver went on leave. He asked Arpit to drive his car till his personal driver joings back. One day while Arpit was driving the Deans vehicle back to reach the Deans house at 5.30 p.m. he met with an accident was later succumbed to injuries in the hospital. The postmortem report revealed that at the time of accident, he was under the influence of liquor. His elder brother, Ankit claims compensation under the Workmens Compensation Act, 1923 from the faculty for accidental injuries and consequent death. Argue the case on behalf of the faculty. LL.B. IV Term (Supplementary) Examinations, July-August, 2009 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Works Committee; (b) Distinction between the Conciliation Officer and Board of Conciliation; (c) Res Judicata in industrial adjudication; (d) Protected workman; (e) Objective of the Payment of Bonus Act, 1965.

ix

2. The Industrial Disputes Act, 1947 does not provide any right to appeal against the determination of the Industrial Tribunal, yet the Supreme Court is granting appropriate relief in the Industrial adjudications. Discuss the Supreme Courts power to grant special leave to appeal under Article 136 of the Constitution against determination of the Industrial Tribunal. 3. On a reference of the dispute of wage structure in BOB Ltd., the industrial tribunal sent its award to the appropriate government on 01.01.2009 holding that workmen were entitled to 20% wage hike. The government received the award on 05.01.2009 and the same was published in the Gazette on 15.02.2009. The management contends that the award had become invalid under Section 17(1) of the I.D. Act, 1947 and the same could not be enforced against it. (a) Can the management succeed in their contention? (b) In case, after the submission of the award by the industrial tribunal to the appropriate government but before the publication of the award within the time stipulated under Section 17 (1), the management of BOB Ltd. and the workmen arrive at a settlement that the workmen will be entitled to 15% wage hike and both the parties approach the Government for not publishing the award in view of their settlement, would it still be obligatory on the government to publish the award? 4. Though domestic enquires need not be conducted in accordance with the technical requirements of criminal trials, they must be fairly conducted and in holding them, considerations of fair play and natural justice must govern the conduct of the enquiry officer. Discuss the above statement in the light of decided cases. 5. Undoubtedly, the management of a concern has power to direct its own internal administration but the power is not unlimited and when a dispute arises, industrial tribunals have been given power to see whether the termination of services of a workman is justified and to give appropriate relief in cases of dismissal for misconduct. The tribunals do not, however, act as a court of appeal and substitute its own judgement for that of the management. (Per S.K. Das, J. in Indian Iron and Steel Co. Ltd. v. Their Workmen (1958) 11 LLJ 260). Critically examine the above observation reflecting the correct legal position on the subject as of today. 6. On a report submitted by a conciliation officer, the appropriate government referred a dispute between B & B Mills and its workmen to the industrial tribunal. One of the terms of reference was whether the strike at the B & B Mills and the lockout declared by the management were justified and legal and whether the workmen were entitled to wages for the said period. The Union on behalf of the workers contended that there was no strike at the Mills. The tribunal ordered that as the existence of the strike was disputed by the workers they may be allowed to adduce evidence on the issue. The management files a writ petition in the High Court to quash the tribunals order on the ground that the tribunal has exceeded its jurisdiction. Decide.

7. What do you understand by minimum wage? How would you distinguish it from fair wage? What are the criteria adopted by the adjudicatory authorities in fixing the wage structure in any particular industry? Discuss. 8. Elucidate the following statement with the help of decided cases. An employer is liable to pay compensation for any personal injury caused to a workman by an accident arising out of and in the course of his employment. And the premises of the employer have got to be extended both in the time and place with the help of the doctrine of notional extension for the purposes of employees liability.

LL.B. IV Term Examinations, May-June, 2010 1. Discuss briefly any four of the following :(a) Dissimilarities in the functions of conciliation officers and the Board of conciliation. (b) Protected workman. (c) Constitution and duties of Works Committee. (d) Applicability of res-judicata to Industrial Tribunals. The power of reference under section 10(1) of the I. D. Act, 1947 is discretionary in nature. However, the discretionary power of the appropriate government is not unguided and absolute. Under what circumstances and how is the power controlled by the process of judicial review ? Support your answer with decided cases. Under Section 17 of the I. D. Act, 1947, an award given by Industrial Tribunal shall be final and shall not be called in question in any court in any manner whatsoever. There is also no appellate authority provided under I. D. Act for challenging the award of an industrial tribunal. Comment on the above statement and discuss the jurisdiction of the Supreme Court as against the award of the industrial tribunal. 4. It is neither possible nor advisable to evolve a hard and fast straight-jacket formula valid for all cases and of general application without regard to the particulars of individual situations as to whether there should or should not be simultaneity of the disciplinary proceedings as also a criminal prosecution. Discuss in the light of Judicial precedents. 5. Discuss the powers of the Industrial Tribunal to give appropriate relief in case of discharge of dismissal of workmen under section 11A of the Industrial Disputes Act, 1947. (a) A dispute about wages between the management and the workmen was adjudicated by the Industrial Tribunal and the award was sent to the appropriate Government for publication. But before the award was published under section 17, a

2.

3.

6.

xi

settlement about wages was made between the management and the workmen. Therefore the management and the workmen request the appropriate Government not to publish the award. Is the request for withholding the publication of the award valid under the law ? (b) An award about service conditions was given by an Industrial tribunal. The award of the Tribunal was published after 40 days of its receipt from the tribunal. The management contends that such an award which is published after thirty days under Section 17 of the I.D. Act is not binding on them. Discuss the validity of the contention of the management. 7. (a) Can the employer revise wage structure of its workmen to their prejudice ? (b) What criteria would you apply in determining whether the wage structure in any particular industry is fair wage or not ? What is living wage ? 8. An employer is liable to pay compensation for any personal injury caused to a workman by an accident arising out of and in course of his employment. And the premises of the employer have got to be extended both in time and place with the help of the doctrine of notional extension for the purposes of employers liability. Elucidate with the help of decided cases.

*****
LL.B. IV Term (Supplementary) Examinations, July-August, 2011 1. Discuss briefly any four of the following :(a) Write a brief note on the constitution and duties of Works Committees (b) Distinction between Interim Award and Interim Relief. (c) Write a brief note on law relating to Protected Workman. (d) Write a brief note on application of the principle of res judicata in the Industrial Adjudication. (e) Write a brief note on the Arbitration proceedings under Sec. 10A of Industrial Disputes Act. There was an industrial dispute between management of K & Co. and its workers regarding the payment of bonus for the year 1997-98. The matter was referred to an Industrial Tribunal and it gave its award on 15-1-99. Aggrieved by the said award the workers union preferred an appeal to the Supreme Court under Art. 136 of the Constitution of India. The management of K & Co. raised a preliminary objection, contending that the Supreme Court has no jurisdiction to grant special leave to appeal as the Industrial Tribunal is neither a Court, and nor is the said determination of a judicial nature Discuss and decide.

2.

xii

3.

On 12-3-99 the Delhi State Government referred the following industrial dispute to a Labour Court, Delhi under S. 10 of the I.D. Act: (a) Whether the lock-out declared by M/s ARKAY Manufacturing Co. was legal and justified. (b) If not, to what relief are the workers entitled to? During adjudication proceedings the management raised a preliminary objection, contending that the dispute referred was not an industrial dispute because it had closed down the industry was it never declared a lock-out, and accordingly, it sought permission to prove their contention. The workers union filed an objection before the Labour Court stating that the Labour Court cannotgo beyond the terms of the reference. Discuss and decided with the help of case law.

4.

On a reference of the dispute of wage structure in BOB Ltd., the industrial tribunal sent its award to the appropriate government on 01.11.2010 holding that workmen were entitled to 20% wage hike. The government received the award on 15-11-2010 and the same was published in the Gazette on 15-1-2011. The management refused to implement the award contending that the award had become invalid under Section 17(1) of the I.D. Act, 1947 and the same could not be enforced against it. (a) (b) Can the management succeed in their contention? In case, after the submission of the award by the industrial tribunal to the appropriate government, but before the publication of the award within the time stimulated under Section 17(1), the management of BOB Lt. and workmen arrive at a settlement that the workmen will be entitled to 25% wage hike and both the parties approach and Government for not publishing the award in view of their settlement, would it still be obligatory on the government to publish the award?

5.

A is a workman of X & Co. On account of some personal enmity B, a Co-worker, filed a criminal complaint against him with the local police for assault and criminal intimidation in the housing colony. Simultaneously, B filed a similar complaint against A with the management of X & Co. The Management of X & Co. chargesheeted. A for misconduct and conducted a domestic enquiry. A refused to participate in the said enquiry and requested to the Management and the Enquiry Officer that as the criminal prosecution was already pending before the Magistrates Court the domestic enquiry proceedings be stayed. In spite of this request the Management did not stay and Enquiry. Consequently, the Enquiry Officer proceeded with the enquiry ex-parte, and submitted his report wherein he held that A was guilty. On the basis of this report the Management dismissed A. Later, however the Criminal Court acquitted A of the criminal charge. Thereupon, A requested X & Co, to reinstate him. On refusal by X & Co. to reinstate him, A approached the Conciliation Officer and upon failure of conciliation proceedings, the Government referred this

xiii

industrial dispute to a Labour Court. Prepare your arguments on behalf of A on the basis of principles of law under S. 11A of the Industrial Disputes Act. 6. X is employed as a driver with M/s AB & Co. X has made a private arrangement with the Director of M/s AB & Co. by virtue of which X does the personal work of the said Director in lieu of rent-free accommodation. One day, early morning, while X was taking the children of the Director to the school in the vehicle of M/s AB & Co. he met with an accident as a result of which he died. The widow of X claimed compensation from M/s AB & Co. under S.3 of the Workmens Compensation Act. Discuss and decide. (a) (b) 8. Explain Industry-cum-region & Region cum Industry formula for wage fixation. Explain minimum wage, fair way and living wage.

7.

Discuss the principles of natural justice required to be followed in a domestic enquiry. Support your answer with the help of decided cases.

xiv

LL.B. IV Term

Labour Law II

Cases Selected and Edited by

Rajiv Khanna O.B. Lal B.K. Raina P.S. Lathwal Anu

FACULTY OF LAW
UNIVERSITY OF DELHI DELHI-110007
January, 2012