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LABOUR LAW NOTES

UNIT I

TRADE UNION ACT 1926

Germ of TU in India can be traced back to 1890 when for the first time an
association of mill workers was formed for the redressal of grievances of mill
workers; it was called as ‘BombayMillhandsworkersAssociation’. It was difficult
to call as a union in strict sense. After the world wars cost of living increased.
Political unrest in the country against the foreign rule persisted this paved way
for Economic distress among the people especially in the industries. This
distress leads to number of strikes by the workers, guided by their action
committees consisting of representatives of workmen. Sometimes they were
successful sometimes they were not. The T union movement in India got
importance by the success of strikes in India.

The establishment of ILO has also influenced the growth of trade union
movement in India. The ITUC (international TU confederation) works to ensure
the Fundamental workers rights promoted by ILO.

The progress of trade union pre independence days has not been very
satisfactory, but post independence has been a tremendous activity in every
spear of industry. Today there is hardly any category of workmen who does
not have a union of its own.

DEVELOPMENT OF TRADE UNION POST INDEPENDENCE:

The development of democratic set up developed among the Indian citizens


gradually. In the year 1920 the HC of Madras in a petition filed against the
officials of the madras textile labour union by the binny & co. granted an
Injunction restraining the Union officials to induce certain workers to break
their contracts of employment by refusing to return to work. The leaders of
the Union found themselves liable to prosecution & imprisonment even for
bonofide trade union activities. Hence they felt that some legislative of TU is
required. The then General Secretary of AITUC Mr N.M Joshi, successfully
moved the resolution in the central legislative assembly seeking the
introduction of some measures by the Govt for the protection of the Trade
unions. The employers opposed to any such legislative measures being
adopted. The passing of the Trade Union Act was possible only in1926.

Contribution of capital & labour is equally important. The prosperity of the


industry depends upon the relations b/w the capital & the labour. As disputes
b/w the capital & the labour are inevitable, the object of any industrial
legislation is to ensure smooth relation b/w the two communities & to strive
for settlement of any dispute by restoring to Negotiation & conciliation.

The importance of the TU lies in the fact that they encourage collective
bargaining which ensures better terms & conditions of employment to the
labours & endeavor for maintenance of good relationship b/w the employers
& the employees. In their endiviour to secure better working conditions,
privileges & amenities to the labour. The original Act of 1926 was amended in
1929, so as to provide for the procedure of appeal against the decision of the
registrar ie. When the registrar refuses registration of a Trade Union or when
registration was withdrawn, an appeal could be preferred against any such
decision of the registrar .

The original Act of 1926 made provisions in respect of;

Conditions governing the registration of TU .

Obligations imposed upon the registered TU.

Rights & privileges imposed upon the TU.

TRADE UNION AMENDMENT ACT 1947, Provided for compulsory recognition


by the employers of representative TU the following provisions were made in
the amendment Act,

Recognition of the TU by the employers.

Recognition by representatives of all the workers in that establishment.


Employer failing to recognition within 3 months then the TU could approach
the Labour Courts for formal recognition.

4. The executive if the TU has the right to negotiate, with the employer
regarding matters connecting employment, non-employment , terms &
conditions of employment , conditions of work of all or any of the members.

5. The act further refrains both the TU & the employer from unfair labour
practices.

6. Some of the acts were declared as unfair practices.

Participation, support or instigation of the irregular strike.

Submission of returns containing false statements.

Discharge or discrimination against any officer of a recognized TU

Interference with the formation or administration of the TU

TU Bill of 1950, the amendment did not provide for inspection of a/c books
was not provided.

AITUC suggested that there has to be inspection by the registrar or any other
person deputed by him for inspecting the books maintained by the TU’s on
health grounds.

This was discussed at the standing Labour committee in Jan 1949, on the basis
of discussion held at the 11 session to make some new provisions this was
introduced by the parliament in Feb 1950 . This bill lapsed with the dissolution
of the parliament. Desirability of the change in the legislation was considered
by the Indian Labour Commission in Oct 1952.

The TU amendment act of 1960 brought about some changes in sec, 2(f),
3,4,6,14,16 &28 of the Act.
Sec 2(f) registrar.
Sec 3, appointment of registrars.
Sec 4, mode of registration.
Sec, 6, provisions to be contained in the rules of the TU.
Sec 14, not applicable to TU it talks about reg of cooperative societies.
Sec 28, returns.
OBJECT:
Trade union is a voluntary organization of workers relating to a specific trade,
industry or a company and formed to help and protect their interests and
welfare by collective action. Trade union are the most suitable organisations
for balancing and improving the relations between the employees and the
employer. They are formed not only to cater to the workers' demand, but also
for imparting discipline and inculcating in them the sense of responsibility.
They aim to:-

Secure fair wages for workers and improve their opportunities for promotion
and training.

Safeguard security of tenure and improve their conditions of service.

Improve working and living conditions of workers.

Provide them educational, cultural and recreational facilities.

Facilitate technological advancement by broadening the understanding of the


workers.

Help them in improving levels of production, productivity, discipline and high


standard of living.

Promote individual and collective welfare and thus correlate the workers'
interests with that of their industry.

To take participation in management for decision-making in connection to


workers and to take disciplinary action against the worker who commits in-
disciplinary action.

Well known Central Trade Union Organizations in India:

All India Trade Union Congress (AITUC)


Bharatiya Mazdoor Sangh (BMS)

Centre of Indian Trade Unions (CITU)

Hind Mazdoor Kisan Panchayat (HMKP)

Hind Mazdoor Sabha (HMS)

Indian Federation of Free Trade Unions (IFFTU)

Indian National Trade Union Congress (INTUC)

National Front of Indian Trade Unions (NFITU)

National Labor Organization (NLO)

A dispute among workers or between employers and workers that is


connected with the terms or conditions of employment.
Trade Dispute [Sec. 2(g)]: A trade dispute means any dispute between the
employers and workmen, the workmen and workmen and the employers and
employers which is connected with the employment or non-employment, or
the terms of employment, or the conditions of labour of any person.
'Workmen' mean all persons employed in trade or industry whether or not in
the employment of the employer with whom the trade dispute arises.

Most of the law on trade disputes and industrial action is contained in the
Industrial Relations Act 1990. Under Section 8 of the Act a trade dispute
“means any dispute between employers and workers which is connected
with the employment or non-employment, or the terms or conditions of or
affecting the employment, of any person”. An industrial action is any action
which may affect the terms of a contract which is taken by workers acting
together to compel their employer “to accept or not to accept terms or
conditions of or affecting employment.” Examples of industrial action
include a work to rule, a picket, an overtime ban or a strike.

TRADE UNION IN UK
The history of trade unions in the United Kingdom

Covers British trade union organization, activity, ideas, politics, and impact,
from the early 19th century to the present. Meeting of the trade unionists in
Copenhagen Fields, 1834, for the purpose of carrying a petition to the King for
a remission of the sentence passed on the Dorchester laborers Unions in
Britain were subject to often severe repression(bring under control) until 1824,
but were already widespread in cities such as London. Trade unions were
legalized in 1824, when growing numbers of factory workers joined these
associations to achieve better wages and working conditions. From 1830 on,
attempts were made to set up unions nationally, most notably Robert
Owen's Grand National Consolidated Trades Union in 1834, which attracted a
large number of socialists than revolutionaries. An important development of
the trade union movement in Wales was the Merthyr Rising in May 1831
where coal and steel workers employed by the powerful Crawshay co, which
took to the streets of Merthyr Tydfil, demanding for reform, protesting against
the lowering of their wages and general unemployment. Gradually the protest
spread to nearby industrial towns and villages and by the end of May the
whole area was in rebellion, and for the first time in the world the red flag of
revolution was flown . Since then it has been adopted internationally by the
trade union movement and socialist groups generally. later in1830s and
1840s, trade unionism was taken over by political activity. although none
appear to have played leading roles. Chartism was a working-class movement
for political reform in Britain which existed from 1838 to 1858(20) years.
Support for the movement was at its highest in 1839, 1842, and 1848, when
petitions were signed by mejority of working people presented to Parliament.

This strategy was adopted to support these petitions, and the accompanying
mass who conducted meetings & demonstrations to put pressure on
politicians for accepting & stopping the suffering of labours. Chartism thus
relied on the rules & law to secure its aims, though there were some who
became involved in activities based politically which became notably in south
Wales and Yorkshire.
The government did not agree to any of the demands, and workers had to wait
for another two decades.Chartism taught techniques and political skills that
inspired trade union leadership. Union activity from the 1850s to the 1950s in
textiles and engineering was largely in the hands of the skilled workers. They
supported differences in pay and status, which was not agreeable to the skilled
& unskilled workers. They focused on control over machine production and
were aided by competition among firms in the local labour market.

More permanent trade unions were established from the 1850s. The London
Trades Council was founded in 1860, and the Trades Union Congress in 1868.
The legal status of trade unions in the United Kingdom was established by
a Royal Commission on Trade Unions in 1867, which agreed that the
establishment of the organizations was for the advantage of both employers
and employees. Unions were again legalized in 1871 with the adoption of
the Trade Union Act 1871.

New Unions came up b/w 1889–93, The strongest unions of the mid-Victorian
period were unions of skilled workers like the AMALGAMATED SOCIETY OF
ENGINEERS. Trade unionism was quite uncommon amongst semi-skilled and
unskilled workers. The union officials avoided violence, fearing that strikes
would threaten the finances of unions and thereby their salaries.

Women, were largely excluded from trade union formation, membership, and
hierarchies until the late 20th century. Women did attempt to challenge male
and make inroads into the representation of labour and combination, it was
largely due to the participation of middle-class reformers such as the
WOMEN'S PROTECTIVE AND PROVIDENT LEAGUE (WPPL) which sought to
amiably discuss conditions with employers in the 1870s. It became
the Women's Trade Union League . In addition, several small socialist groups
had formed by 1870, with the intention of linking the movement to political
policies. Among these were the INDEPENDENT LABOUR PARTY, the
INTELLECTUAL AND LARGELY MIDDLE-CLASS FABIAN SOCIETY, the
MARXIST SOCIAL DEMOCRATIC FEDERATION and the SCOTTISH LABOUR
PARTY. The years 1910–14 witnessed serious industrial unrest and an
enormous increase in trade union membership, which affected all industries to
varying extents. After the world war they was increase in union membership,
as well as widespread recognition of unions and their increased involvement in
management. Additionally, in 1927 the government passed anti-union
legislation , the Trade Disputes and Trade Union Act. This imposed major curbs
on union power, including outlawing sympathetic strikes and mass picketing,
and ensuring that civil service unions were banned from affiliating with the
TUC. The Trade Disputes and Trade Unions Act 1927 made general strikes
illegal and ended the automatic payment of union members to the Labour
Party. That act was largely repealed in 1946. Trade unions reached their peak
of membership, visibility, prestige and political power in the postwar period .
By the 1970s their power had grown further, but their prestige was in decline
and the consensus disappeared. In the 1980s the Conservative Party led by
MARGARET THATCHER deliberately and significantly weakened the trade
union movement, which never recovered as a result. Membership declined
steeply in the 1980s and 1990s, falling from 13 million in 1979 to around 7.3
million in 2000. In 2012, union membership dropped below 6 million for the
first time since the 1940s. From 1980 to 1998, the proportion of employees
who were union members fell from 52 per cent to 30 per cent.

Definition of Trade Union:

Sec 2(h) of the act defines a trade union, which can be analyzed into the
following ingredients,
A combination whether temporary or permanent.
Combination should have been formed for the purposes of;
regulating the relation b/w

Workmen & employer.

Workmen & workmen

or employers & employers.

Imposing restrictive conditions on the conduct of any trade or business.


But this shall not effect, any agreement b/w the partners to the business
Any agreement b/w the employer & those employed &.

Any agreement in consideration of the sale of goodwill of the business


or instructions in any profession, trade or handicrafts.

Appropriate govt : mentioned u/sec2, in relation to the TU, it means a,


whose objects are not confined to one state the appropriate gove is the
Central Govt, in relation to all other TU the State Govt is the Appropriate
Govt.

Registrar, defined u/sec 2(f),

Registrar meant for the registration of the trade union, appointed for
the purpose of sec 3. Registrar also includes Additional, & Deputy
Registrars.

Trade Dispute, defined u/sec2 (g), this means a dispute b/w

Cl (1) - Employer & the workmen or between workmen & the workmen
or

Between the employer & the employer. Under Cl (2) of the section, such
dispute must be connected with Employment or Non- employment
Terms & conditions of employment.

Workmen of DTE V/S Management of DTE (AIR 1958 SC 353)

The workmen of the Tea estate raised a dispute regarding the


termination if the employee belonging to different category from them,

The SC held that there was no industrial dispute as the appellant


workmen had no direct or substantial interest in his employment even if
he was a member of the trade union. Individual dispute & Trade
Dispute: the SC stated that an Individual dispute cannot be a trade
dispute unless the cause is sponsored by the TU or a substantial number
of workmen. It should be sponsored by a substantial number of
workmen of the establishment.
It does not matter that the trade dispute is not raised by the majority of
the workmen.

Workmen, latter part of sc 2(g) defines workmen,

Workmen means all persons employed in trade or industry, whether or


not in the employment of the employer with whom the trade dispute
arises.

This definition can be divided into two,

Workmen is a person employed in any trade or industry.

It is immaterial whether person employed in trade or industries are not in


employment of the employer with whom the trade dispute arises.

Word dispute not defined in act, & industry defined u/sec 2(j) of the act

Registration of trade unions:

Appointment of Registrars sec 3 , Sec 3(1) of this act authorises for


appointment of registrars by the appropriate govt .

The appropriate govt u/sec 3(2) is also authorised to appoint additional


or deputy registrars of the TU. The appropriate govt may appoint the
Additional or Deputy reg who shall exercise duties within which any
additional or deputy registrar shall exercise & register & discharge such
powers & functions as directed by the registrar under his supervision.

Appropriate govt may define the local Limits within which the additional
or deputy registrar shall exercise & discharge his powers & functions.

Powers of the registrar:

The whole process of registration is finalized by the registrar of the


Trade Union. Also the additional & deputy registrar of the TU’s may be
appointed or deputed to exercise such powers & functions in absence of
registrar or where registrar is not appointed . The powers & functions of
registrar, are as specify by the orders issued by the appropriate govt.

Some of the powers & functions of the registrars are;

Power to entertain applications.

Power to call for perticulars.sec (7)

Registration of the union.

Cancellation of registrations.
Functions
Examine applications
Grant registration certificate.
MODE OF REGISTRATION OF TRADE UNION
Sec 4 states about the mode of registration of the TU , clause (1) states
about the qualified nu of people Members) subscribing their names at
the time of registration of the TU. Clause (2) of the section inserted by
the Act nu 42 of 1960 , states that the qualified nu of people need not
be present at the time of registration , they could reduce to half b/w the
date of presenting the application & date of registration of the TU , &
according to this provision it could not be termed to be Illegal ,but the
total nu of the members are not to reduce beyond half the total nu of
members who made the application , or have given notice in writing to
the registrar disassociating themselves from the application . The trade
union & the members of the trade union enjoy certain benefits as the
members of the unregistered trade union do not. Sec 5, Application of
Registration, according to the provision the TU becomes a registered TU
in the following manner,

An application should be sent to the registrar in which 7 or more members


have lent their names.

The application form A, should be accompanied with a copy of the rules of the
TU, with the statement of following particulars. The names, occupation, &
address of the members making the application, & occupation of the officers
of TU. Names of TU & the addresses of the Head offices.

A general statement of the assets & liabilities of the TU prepared in the


prescribed format.

SEC 6, provision to be contained in the rules of a TU. Every TU is required to


have written rules dealing with certain matters specified in schedule II . These
rules generally determine & govern the Relationship b/w the TU & its
members.

The TU shall be entitled to registration under this act if,


The executive of the TU is constituted in accordance with the provision of the
act.
The rules of the TU provides for following matters.

In I.T Commer W.B V/S I.S Mills Association ( AIR 1975 SC 506) Indian Sugar
Mills Association was a registered TU . Rule 4 & 64 were repugnant wt each
other. Rule 64 should be treated as void as it was inconsistent with the stated
objects of the union. It was held that the court had no right to assume some of
the stated objects of the association as primary to declare others in apparent
conflict with them as of no effect. All rules framed by the association co-
existed. Further the court had no right to re-write the rules of a registered TU.

Sec 7, power to call for further particulars, & to require alteration of names.
The registration of the TU will be refused if he TU carries similar names of
existing TU as to deceive the public or the members of trade union, & it shall
be only registered after such alteration. The registrar may also ask for further
information which he thinks necessary for the purpose of satisfying himself,
that the application complies with the provision of sec 5&6 of the Act.
In Tata Workers Union V/S State of Jharkhand & others ( 2002, III LLJ 474
Jharkhand )
There were two groups of union; the Registrar of the TU by an order took a
decision to supervise the election of the office bearers to the petitioner union.
This order was challenged & the HC held that the registrar could not intervene
in the matter of holding of elections. Sec 8, the registrar will register the TU if
he is satisfied that the TU has complied with all the requirements of the Act in
regard to registration. The registrar may register by making necessary entries
into the register meant for registration. The workers are entitled to est. as
many TU as they want except that they have to comply with the requirements
under the Act.
In IFFCO, Phulpur Karmachari Sangh V/S Registrar of TU & others (1992 II LLJ
239 ALL) .
The once a TU is registered under sec 8 of the act, the certificate of
registration holds good until it is cancelled . The action of the registrar of TU
registering the change of names of the office bearers of the union does not
amount to registration of the TU.
TU are not statutory bodies, also they not incorporated in accordance with the
statutes, TU activities are not gov’tal functions & are not of public importance
this was held, In Chemosyn (p) ltd, & others V/S Kerala Medical & Sales
Representatives. TU are not even Quasi-Judicial authorities, to hold an inquiry
by allowing the parties to examine witnesses & to decide disputes as to who
are the real office bearers . When there is a conflict of such the scope of the
union is limited & an order passed by the Registrar in this regard is
administrative in nature . To decide a dispute of such a nature the registrar
may conduct inquiry in presence of both the parties. This was held in ONGC
Workmen's Association V/S State of West Bengal & others (1988 I LLJ 335
Cal)

Sec 9, certificate of registration, the registrar shall issue the certificate of reg
in a prescribed format which shall be conclusive evidence that the TU has been
registered. u/ sec 9A, a reg TU of workmen shall continue to have not less than
10% or 100 of workmen whichever is less subject to a minimum of 7 engaged
in an est. or Industry with which it is connected as its member’s .The
registration of the union cannot be completed unless the application is
complied with the compliances provided under sec 6 of the act i.e. provisions
to be contained in the rules of the TU.
Sec 10 Cancellation of registration, the power to withdraw or cancel
registration of a TU is given to the Registrar the registrar can exercise his
powers in the following cases.

On the application of the TU to be verified in the prescribed manner.


If the certificate is obtained by fraud or mistake.
Where the TU has ceased to exist.
If the TU has willfully contravened into the provision of the act.
Where the TU has rescinded any provision of the act.
According to sec 10 if the registrar is satisfied that the TU has decreased with
the prescribed number of members then the registrar may cancel the
certificate.
The registrar on receiving the application from the Union for withdrawal or
cancellation of registration must before granting the prayer satisfy himself that
the withdrawal or cancellation of registration was approved in the general
meeting of the Trade Union or if it is not approved it should have approval of
the members of the TU. For this purpose he may call for particulars as registrar
may think necessary & may also examine any officer of the Union. The
registrar must give the TU two months notice specifying the grounds on which
it I withdrawn or cancel the certificate of registration. u/ sec 10 it is not
necessary when the TU is itself withdrawing the registration by itself.
In Bombay Fire Fighters Services Union Mumbai V/S Registrar of TU Mumbai.
(2003, II LLJ 110 Bombay)
Appeal was filed by the TU challenging the order of registrar cancelling its
registration for continued contravention of sec 28, of the Act. Setting aside the
impugned order the HC observed that the said order was in violation. Of the
mandatory provisions of sec 10 of the Act the responded, Registrar had not
addressed a previous show cause notice in writing to the appellant union as its
correct address. Therefore, the cancellation of registration was held illegal &
improper.

Sec 11, Appeal, limited right of appeal from the decision of the Registrar is
granted by sec 11 of Act. Any person aggrieved by the refusal of the registrar
to register the TU by withdrawing or cancellation, an appeal can be preferred
within the prescribed period of time. The appeal can be preferred within 60
days of the date on which the Registrar passed the order against which appeal
is made.

HC under sec 11 of the Trade Union Act means HC under original & appelant
jurisdiction.

Where the head office of TU is situated.

Where head office is situated an area falling within the jurisdiction of a labour
court or Tribunal as the case may be.

Where the head office is situated in any other area, to such court not inferior
to the court of an additional or assistant judge of a principal Civil Court of
original jurisdiction, as the appropriate Govt may appoint in this behalf for that
area.

The appellant court may dismiss an appeal or pass an order directing the
registrar to register the Union & to issue a certificate of registration.

It may also set aside the order for withdrawal or cancellation of certificate. The
registrar shall comply with such orders passed by the appellate court.

In Mukund Iron & Steel Workers Ltd, V/S Deshpande Registrar of TU


Bombay. (1986 Ii LLJ 290 Bombay)

The registration of TU was cancelled for contravention of the provision


of sec 28, by failing to send annual returns later on, the registrar
withdrew the cancellation of registration on the ground that returns
have been filed subsequently, question here was whether the registrar
has the power to withdraw the cancellation of registration. It was held
that the TU whose registration has been cancelled has remedies in the
form of an appeal or in the form of the fresh application. If the appeal
succeeds the cancellation would be held to be void ab initio, & the TU
would continue as if the cancellation has not been passed. If fresh
registration is permitted then the TU would start function from that
date. Sec 12 Registration, all communications & notices to the registered
TU may be addressed to its registered office. Notice of any change in the
address of the head office shall be given within 14 days of such change
to the registrar in writing.

The change of address shall be recorded in the register referred to in sec


8.

Sec 13, incorporation of the reg TU,The TU after registration becomes


entitled to the following advantages,

It becomes a body corporate by the name under which it is registered.

It gets perpetual succession & a common seal

It can hold both movable & immovable property.

It can contract through agents.

It can sue & be sued in its own name.

An unregistered TU cannot be sued in torts by suing a member in


representative capacity. The unregistered TU are just a voluntary association
of individuals having no corporate existence. It is not a legal entity. Any wrong
committed by the member of such union, should bring an action against all
persons personally who were the members of the TU.

RIGHTS & LIABILITIES OF REGISTERED TU

GENERAL FUNDS

Sec 15, objects on which the general funds can be spent.

The general funds of the TU shall not be spent for any other than Payment of
salaries , allowances, & expenses Of the office bearers of the TU.

Payment of expenses for the administration of the TU including audit of a/c of


general funds.

To prosecution or defense of the TU to which it is a party.


For Conduct of trade disputes on behalf of the TU. ect other than,

Compensation of the members for the loss arising out of trade dispute.

Allowance to members or their dependants on account of death or old age.

Undertaking of liability under policies of assurance on the lives of the


members or insuring members against sickness, accident, or unemployment.
8. Provision of education, social, or religious benefits to the members.

Up keeping of the periodicals published by the TU.

Contribution for any benefit of the member in general funds can be spent.

Expenditures can be made subjected to any conditions contained in the


notification of the official Gazette.

In Gross V/S British Iron & Steel & Kindered Association (1968 Lab I.C 1626)

A member of the TU was injured in an accident, the particulars of the same


was also intimated to the secretary of the union, and papers were forwarded
by the secretary to the legal adviser of the union. The solicitor was of the
opinion that they was no cause of action against the employer. The legal
advise was communicated to the injured workmen & this was also accepted by
him. But when the period of limitation expired for claiming damages the
member brought an action against the TU for failure to exercise proper care &
diligence in perusing his claim. It was held that union was not liable.

In Mario Raposo V/S H.M Bhandarkar & Others (1994 II LLJ 680 Bombay)

Here the petitioner & the respondents were members of the Union called VCO
Bank Employee Association Nagpur. The office bearers of the Union purchased
shares of UTI in their individual names out of the General Funds. It was held
that purchase of shares cannot be termed as investment under sec 15 of the
Act, but it is a speculative activity. Sec 15 of the Act does not allow spending
the funds of the union on speculative activities.

Political funds
Sec 16 of the TU states about political funds, the union can have civic &
political objectives for this separate political fund has to be maintained. Out of
this fund payments may be made for promotion of the civic & political
interests of its members. It is to be noted that no expenditure for political
Purpose out of general fund is permitted.

Constitution of a separate fund for political purpose is been emphasised u/sec


16 of the act. Registered trade union may constitute separate funds , from
contributions made to that fund from which the payments may be made for
promotion of civil & political interests of its members specified u/sub sec (2) of
the act .
Payment of any expenses incurred either directly or indirectly for
elections of the candidates.
Holding of any political meetings or distribution of publications.
Maintenance of any person who is a member of any legislative body
constituted under any local authority.
The registration of election or the selection of a candidate for any
legislative body constituted.
Holding of political meetings of any kind, distribution of any literature or
documents.
According to the act no member shall be compelled to contribute to the
political funds, & such a person need not be excluded from any benefits
of the TU. The contribution for the political funds need not be made a
condition for admission to the TU.

CIVIL & CRIMINAL IMMUNITIES & PRIVILEGES :


Criminal immunity or privilege sec 17 of TU acts 1926.
No trade union shall be liable for punishment u/sub sec (2) of sec 120-B
of IPC , in respect of any agreement made b/w the members for the
purpose of furthering any object of the TU as is specified in sec 15 unless
the agreement is an agreement to commit an offence .
Civil immunity sec 18 of TU acts 1926.
No suit or other legal proceeding shall be maintainable in any civil court
against any TU or any member thereof in respect of any act done in
contemplation or furtherance of a trade dispute to which a member of
the TU is the party on the ground that such act includes some other
persons to break a contract of employment, or that it is interference
with the trade, business or employment of some other person. A
registered TU shall not be liable in any civil code in respect of any
tortuous act done in contemplation or furtherance of a trade dispute by
an agent of the TU if it is proved that such person acted without the
knowledge of, or contrary to express instructions given by the executive
of the TU.

It was held in Ram Singh & others V/S M/S Ashoka Iron Foundary &
others (1993 ILLJ 987 P & H)

That a suit for perpetual injunction restraining the workmen from


indulging in the unfair labour practices is deemed to be one of the civil
nature & hence cognizable u/sec 9 of CPC. Hence where the court has
barred the workmen from holding meeting, dharna & interfering in the
rights of the company, such a restraint does not curtain the just trade
union activities of workers. It cannot be construed as unjust & the
workmen are at liberty to Carrey on legitimate trade union activities
peaceful.

In Rohtas Industries Staff Union V/S State of Bihar (AIR 1963 pat 170)

Is a leading case on this section. In this case the question was whether
the employers have the right to claim damages against the employees
participating in an illegal strike, causing loss to the production &
business.

It was held that the striking workmen cannot take recourse u/sec18, it is
further observed that the strike must be in must be in furtherance trade
dispute. Here the trade dispute is actual, or probable a question & it
depends on each case.
In Ram vilas Service Ltd & others V/S Simson group companies
Workers Union & others.( 1979II LJ 393)

It was held that if cession of work is the result of strike the effect of
strike will be nullified if the management either by themselves or
through their customers are permitted to remove the goods either
manufactured by the management or goods coming into the custody of
the management in the course of their trade. If the customers remove
the goods by themselves without the aid of labour that would amount
to rendering the strike ineffective & to that purpose the court should
not be take aid of . Enforceability of agreements , b/w the TU shall not
be void or voidable merely for the reason that any of the objects of the
agreement are in restraint of trade u/sec 19 of the act. It means
agreement made b/w the members of the reg trade union not to accept
employment unless certain conditions as to pay, hours of work, etc, are
fulfilled will not be void or voidable. There may be trade unions which
are unregistered but are lawful under the common law . Agreements
made b/w the members of unregistered lawful TU are enforceable as
long as they are confined to the general law.

The right to inspect books of TU ; u/sec 20 the account books of the


registered TU & the list of the members shall be open for inspection to
all the office bearers or the members of the TU .

Sec 21, right of the minor to membership of TU, A person who has
attained the age of 15 yrs can be the member of the reg TU u/sec 21 of
the act . But according to sec 21 A he cannot be an office bearer of the
Union . Acceptance of the membership depends on the agreement b/w
the member & the union.

Disqualification of office - bearers of the TU is done u/sec 21A of the act


; if the person has not attained age of 18 yrs .
He has been convicted in the court in India of any offence involving
moral tripartite (conduct contrary to community in general) & sentence.

Sec 22, proportion of office bearers to be connected to the industry,

Not less than one half of the total number of the office bearers of the TU are
to be actually engaged or employed in the industry.

It says except not more than 1/3 of total number of the office bearers or 5
whichever is less .

Appointment & removal of office bearers of the TU, is dealt u/sec 21 , &
22 of the act The power to remove any office bearer of the TU is vested
with the TU, but the power to remove any of its office bearers must be
exercised judiciously & the rules of the natural justice must be followed
the following are some of the rules to be followed.

The official sought to be removed has to be supplied with suffient grounds &
reasons for his removal so that he may defend himself.

He must be given opportunity of appearing & defending himself against the


charges.

The decision of the TU must be in good faith & after fair hearing of the case

PROBLEMS OF TRADE UNION.

LACK OF BALANCED GROWTH

Trade unions are often associated with big industrial houses. A vast
majority of the working population is without any union backing. The
entire agricultural sector is highly unorganized in India. The agricultural
workers are subject to all kinds of exploitation. The same is true with
respect to those working in small scale and cottage industries. Lack of
balanced growth of trade unions in all sectors is one of the
major weaknesses of the trade union movement in India.

LOW MEMBERSHIP
Trade unions, with the exception of few have low membership. This is because
many employees are not willing to join unions although they are ready to
enjoy the benefits arising out of the union actions. The reasons for the
hesitation of employees to join unions include, among others, the need to take
part in strikes and such other programmes, fear of pay cut and fear of
punishment.
POOR FINANCIAL POSITION
Low membership is one of the reasons for the poor financial position of the
unions. Moreover, the subscription payable by every member is kept low.
Some members may not even make a prompt payment of the small amount of
subscription. These are also not very many sources from which unions can get
funds. They may probably depend on contributions from philanthropists. The
poor financial position can only weaken the trade union movement.
POLITICAL CONTROL
Most popular trade unions in India are affiliated to certain political parties.
These political parties are only keen on making every grievance of the working
class a political issue to attain political gains. As a result the problem only gets
wide publicity and remains unsolved.

MULTIPLICITY OF UNIONS
Often there exists more than one union within the same industry each backed
by a political party. These various unions have conflicting ideology. If one
union comes out with a strike proposal another union may work against it. As a
result, none of the unions is actually able to solve the problems of the workers.
INTER-UNION RIVALRY
The existence of many unions within a particular industry paves way for what
is called inter-union rivalry. These unions do not work together for the cause
of the workers. Each union may adopt a different approach to the problem.
The inter-union rivalry may become a more serious problem of the workers. As
a result, the employees are unable to derive the benefits of collective
bargaining.
LACK OF ABLE LEADERS
Another barrier to the growth of trade unions is the lack of able leaders. Some
union leaders give a strike call even for petty problems that can easily be
resolved through talks. On the other hand, there are leaders who have secret
pact with the management. They get bribes from the government and work
against the interests of the employees. Some leaders don’t convene a meeting
of the general body at all even when a crisis develops. They take unilateral
decisions that are thrust on the employees.
LACK OF RECOGNITION
Most management is not prepared to recognize trade unions. This happens
because of any of the following reason.
The existence of low membership that reduces the bargaining power of the
union.
The existence of more unions within the same industry.
Inter-union rivalry.
The indifferent attitude of the employees themselves towards trade unions.
OPPOSITION FROM EMPLOYERS
Apart from the fact that most employers are not prepared to recognize trade
unions, they also do not let their employees from a union. This the employers
are able to achieve by adopting certain punitive measures(inflicting
punishment) like intimidating employees victimizing union leaders, initiating
disciplinary action against employees indulging in union activities and so on.
Some employers also start rival unions with the support of certain employees
the employers fail to understand that the union enables the employees to
express their grievances in a democratic manner and can also be used as a
means of promoting better labor management relationships.
INDIFFERENT ATTITUDE OF THE MEMBERS
Union leaders alone cannot be blamed for the weakness of the trade union
movement. The indifferent attitude of the members of certain unions is also a
barrier. Some members do not even make a prompt payment of the
subscription amount.
There are on the other hand, members who do not attend the general body
meetings nor do they bother to know what is discussed in such meetings.
There are still others who do not take part at all in any of the programmes of
the union organized to press the demands of the employees like slogan
shouting procession, demonstration, hunger strike etc. Members generally
expect the office-bearers to do all that is necessary to achieve the demands.
The other problems from which trade union movement has suffered include:
The majority of registered unions are independent unions as only 16,000 out
of 50,000 registered unions are affiliated to the Central Trade Unions (CTUs).
One possible reason for this IS the educated workers’ preference to the
independent unions,
It is also found that about 90% of workers in the public sector are unionized
while in case of the private sector only 30 % workers are unionized”. This is a
World-Wide trend, not only featuring in India. But it has a serious implication
for trade union movement in India as more and more public sector
undertakings are privatized. In turn, the trade union membership is to decline,
a trend already visible by now.
Given the fast changing industrial scenario, jobs are moving from the
organized formal sector to informal sector. However, the unorganized sector
which constitutes about 90% of the total work force does not come under the
purview of the trade unions.
The Second Five-Year Plan scanned the defects of the trade union movement in
India as follows:

“Multiplicity of trade unions, political rivalries, lack of resources, disunity in the


ranks of workers etc., are some of the major weaknesses in a number of existing
unions”.

Change of name sec 23, sec 7(2) states that no trade union can be registered
under the name identical with the name of any other TU .

Sec 23 states that a TU may with the consent of not less than 2/3 of total number
of its members & subject to sec 25 of the act change its name & amalgamation.
Sec 25(1) notice of change of name, is required to be produced in writing signed
by the secretary & seven members of the TU changing its name shall be sent to
the registrar . Further the notice should contain whether the consent was
obtained in the referendum or by the resolution passed in the general meeting.
Notice has to be sent to the registrar of the TU . If the registrar finds that the TU
change of name bears identical names or names misleading the public at large or
so the reg is not entitled to register such changed names.

The registrar if satisfied that the provisions of this act in respect of change of
name have been complied with may register such names in the register referred
to u/sec 8 of the act.

Any reg TU with the consent of not less than two third of the total nu of its
member & subject to the provision of sec25 of the act change its name .

Sec 24, Amalgamation of TU, the may amalgamate without changing they
names or without dividing or dissolution of funds. Votes of at least One half of
the members of TU or 60% votes of the members of the TU must be in favor of
amalgamation u/sec 25 of the act notice of amalgamation signed by the
secretary & 7 members of each & every TU which is the party should be sent
to the registrar Registrar may if he is satisfied register the TU u/sec 6 , &
manner provided u/sec8. Amalgamation has effect from the date of
registration.

Amalgamation Of Trade Unions: According to [Sec 24] Any two or more


registered Trade Unions may become amalgamated together as one Trade
Union with or without dissolution or division of the funds of such Trade Unions
or either or any of them,

Procedure for amalgamation -

Section 25 of the Trade Unions Act, 1926 lays down the procedure for
Amalgamation of trade unions. According to this Section, a notice in writing as to
the change of the name after the amalgamations has to be served as follows -
Notice -
The notice of the amalgamation is to be served by the Secretary and
seven members of the Trade Union to the Registrar of Trade Unions. If the head
officers of Trade Unions are located in other States, notice is to be served to the
Registrar of other State / States also.

Registration
The Registrar on being satisfied with the conditions, registers by
posting an entry in the Register and issue certificate to that effect. The
Amalgamation Come into force with effect from the date of Registration.
Karnataka State Road Transport Corporation Staff and Workers' Federation,
Bangalore and Others Vs. Karnataka State Road Transport Corporation,
Bangalore and Another (20.03.2000 - KARHC)

A trade union has been registered by the petitioner-union. the


supervisory/security personnel are not excluded under the act either to form
a union or to be members of the petitioner-union. no law is shown to me as
being inapplicable to the security/supervisory personnel being members of
a union. the right to amalgamate is provided under section 24. the present
restriction comes . matter concerning service conditions of the workmen truly
represents the workmen employed in the establishment , the trade union is
first required to get itself registered under the provisions
of trade unions act, 1926. this gives a stamp of due formation of
the trade union and assures the mind of the employer that the trade union is
an authenticated body; the names and occupation of whose office bearers also
become known ,

Effects -
According to Section 26 of The Trade Unions Act, 1926 Change of
name of a registered trade union does not affect the rights and obligations of
the Trade Union or render defective any legal proceeding by or against the
Trade Union. Similarly, Amalgamation of registered trade unions shall not
prejudice any right of the Trade Unions or any right of Creditor.

Sec 25
In case of an amalgamation of the Trade Union, written notice of an
amalgamation must be signed by secretary and 7 member of the Trade Union
are required to sent to registrar of the Trade Union.

Trade Union name should not match with the other Trade Union names.

If Registrar satisfies with all requirements provided by the members of Trade


Union, Registrar will change the name and the same entered in the register.

Recognition of Trade Unions sec 28 C -28 I

Recognition of a trade union is very different from Registration of the union


under the Trade Union Act, 1926. Recognition means management conferring
right to the Union.

to represent its members as the bargaining agent during the various


discussions and deliberations made while negotiating terms of
employment/conditions of labour;

2) to enter into agreements [settlements] with the management on behalf of


its union-members; and

3) to air its opinion when general opinion of workmen are sought while
formulating managerial policies and decisions.

Recognition of a Trade Union receives importance when there are multiple


trade unions in an establishment. The managements usually refuse to
recognize small or regional trade unions so as to reduce the number of
different voices espousing different demands, while negotiating wage
settlement or conditions of employment.

There is no Central law on granting recognition to trade unions. The


Parliament had once passed the Indian Trade Union (Amendment) Act, 1947,
but it was never notified or brought into force that Recognition of a Trade
Union is a matter of volition on the part of the employer.

In All India Bank Employees’ Association v. National Industrial Tribunal,


Bombay, AIR 1962 SC 171, the Supreme court had the occasion to consider the
scope and ambit of Article 19(1)(c) of the Constitution There Lordships held
that even very liberal interpretation of the said constitutional provision cannot
lead to the conclusion that the fundamental right to form unions carries with it
a concomitant guarantee that the trade unions so formed shall be enabled to
carry out effective collective bargaining or shall archive the purpose for which
they were brought into existence. In Raghubar Dayal Jai Parkash v. Union of
India, Air 1962 SC 263, it was held that freedom of association guaranteed by
Article 19(1)(c) does not carry with it a guaranteed right to recognition of the
association.

In David v. KSEB, 1971 KLT 892, Kerala Minerals Employees Congress v. Asst.
Labour Commissioner, 1983 KLT 176, The 15th Indian Labour Congress had
accepted a Code of Discipline and one of the clauses therein pertains to
Recognition of Unions. Presently, the said code is considered as the accepted
norm for Recognition of Trade Unions by most of the employers.

According to the said code, for recognition:

The Unions should have at lease one year standing.

They should have at least 15% of the membership of the establishment to


claim recognition; and 25% of the work force to claim recognition on industrial
basis.

When there are multiple unions in an establishment, the union with largest
membership will be given recognition.

The local unions if they have more than 50% of the membership of the locality,
can be recognized to represent their grievances.

The recognition granted will be valid for 2 years.

The unions which do not follow code of discipline will not be granted
recognition.
The National Commission for Labour headed by Dr. Gajendragadkar,
rather laid down a strict guideline for recognition of trade unions. The
commission expressed the view that industrial democracy should be
applicable and the majority union should have the right to sole
representation; and where more unions than one contend for
recognition, the union having a larger following should be recognized.
The Kerala State has recently enacted a law for recognition of trade
unions for facilitating collective bargaining and to check multiplicity of
trade unions in establishment. The Kerala Recognition of Trade Union
Act, 2010, is applicable to every industrial establishment wherein 50 or
more workers are employed and whose appropriate government under
the ID Act is the Kerala Government. According to the Act a trade union
can claim recognition of the management by filing an application [under
S. 4] before the Registrar appointed under the Act.

A Trade Union is eligible to recognition only if its membership is be open


to all and it has been functioning in an industrial establishment or the
class of industry in the local areas, for a period of at least six months
preceding the date of filing of the application. Not less than one ;half of
total number of office-bearers of every registered TU in an unorganised
sector shall be persons actually be engaged or employed in an industry
with which the TU is connected u/sec 22 of the act.

Amalgamation of TU’s

TU’s may get amalgamated together as one union with or without


dissolution of funds of TU u/sec 24 , to support amalgamation the votes
of at least one half of the members of each & every TU must be in
favour of the proposal of amalgamation . The act requires that notice in
writing of every amalgamation should be signed by the secretary &
seven members of each & every reg TU shall be sent to the registrar.
The address of the head office of TU notice of amalgamation should be
sent to the registrar .
If the TU is situated in different state notice of amalgamation shall be
sent to the registrar of such state. The registrar of the state in which the
head office is situated the amalgamation have to been complied with
the TU formed , the registrar is entitled to registrar u/sec 6 of the act &
sec 8 .

u/ sec 25 (1) of the act requires that notice of the change of name signed by
the secretary & seven members of the TU for changing its name & shall be sent
to the registrar . The consent of the members was obtained by the referendum
or resolution of general meeting. If the proposed name is identical with that by
which any other existing TU has been registered or in the operation of the
registrar, which nearly resembles such name likely or to deceive the public or
the members of either TU the registrar may refuse to register the change of
name of the TU. The change in the name of the TU u/sec 26(1) shall not effect
any right or obligations of the TU. Any legal proceeding which has commenced
in its old name may be continued or commenced by its new name. The effect
of amalgamation is dealt u/sec 26(2) of the TU act 1926. The amalgamation of
2 or more registered TU’s shall not prejudice any rights of such TU or right of
any creditors of any of them. Effect of amalgamation is only after it is
registered.

Dissolution of the TU sec 27

When a TU is dissolved, notice of dissolution signed by 7 members & by


the secretary of the TU shall within 14days of dissolution be sent to the
registrar. If the registrar is satisfied that the dissolution has been
affected in accordance with the rules of the TU , he shall register the fact
of dissolution shall take effect from date of such dissolution .Where the
dissolution of a registered TU has been registered & the rules of the TU
do not provide for the distribution of the funds of the TU on the
dissolution, the registrar shall divide the funds amongst the members in
such manner as may be prescribed.

Auditing of TU sec 28:


The reg TU shall send a general statement of audit in a prescribed
manner, of all the receipts & expenditures of every TU during the year
ending on the 31st day of Mar & of the assets & liabilities of the TU
existing the statements shall consist of such particulars as may be
prescribed. Every alteration made in the rules of a registered TU shall be
sent to the registrar within 15 days of the making of such alteration
u/sub sec (3)of sec 28

UNIT II & III


INDUSTRIAL DISPUTES ACT 1947
HISTORICAL BACKGROUND.

Master servant relationship; during the 20th century a new branch of


jurisprudence emerged, ie Industrial Jurisprudence. This is the
development of mainly post independence period since, It is in existence
in the rudimentary (limited to basic principals) form in our country. By
the growth of Industrial Jurisprudence it gave way for increase in labour
laws, & industrial legislations. This effected the large population of the
country consisting of industrialists, workmen & their families. Larger
population of the country was indirectly was effected. This branch of law
modified the traditional law relating to master & servant, & had cut
down the old theory of Laissez fair (free trade without interference),
based upon the freedom of contract in the larger interest of the society.
Because that theory was found required for the development of
harmonious & amicable relation b/w the master & the employer &
employee.

The traditional right of the employer to hire & fire his workmen at his
will has been subjected to many restraints .

THE INDUSTRIAL TRIBUNALS can by their award make a contract which


is binding on both the parties creating new rights & imposing new
obligations arising out of the award. This idea of binding nature is
strange & is foreign to the basic principles of contract.

CHANGE IN THE MASTER & SERVANT RELATIONSHIP, one who puts in


capital is no More master & one who puts in labour is no more servant ,
but they are called Employer & Employees, the former may hire him but
cannot fire them at his will. The interest of the employees is protected
by many laws today. Both are now parties to the enterprise. Today they
are co-sharers in the partnership. The industrial society all over the
world has been moving during the present century from contract to
status & this status is a politico-socio-economic juristic status .

The factors for the depature of the old theory of law of contract, & the
law of master & servant are,

Industrialization in our country, compared to other countries brought


with it some socio-Eco problems.

The rich became richer & the poor poorer. Ultimately gap b/w the rich &
the poor grows to the extent that there it develops into two distinct
classes in industry ie the haves & the have-nots, the latter subjected to
exploitation .industrial unrest, slowly the laborers realized followed by
industrial unrest leading to strikes & Lock-outs, The period immediately
where the world had witnessed II world war as the result of this there
was a dramatic rise in the cost of living. As a result of these, there was
demand from labour for increase in the wages. These dramatic ideas has
awakened the consciousness of the working class . Out of these struggle
b/w the workers demand for better share in profit & production, the
employers hesitated to part with it beyond certain limit, this helped in
the growth of certain recognition of principles which are considered as
fundamental in all the developed countries of the world.

The principles are :

The right of workmen to combine & form association & unions .


The right of the workmen to bargain collectively .

Labour agitation for better conditions (strikes).

Shift from the laissez faire(free trade without interference ) to a welfare


state .

Tripartite consultation ie solution of the industrial or labour disputes


through participation of workers, employers,& govt.

State can no more be an onlooker but must be a protector by interfering


for social good.

Minimum standards must be granted through state legislation.

Until independence the change in the attitude of the govt & the labour
legislation only aimed at the amelioration of the condition of labour &
hardly it could be said to be a deal in social justice to the working class.

The birth of Industrial jurisprudence can be ascribed to the constitution


of India. The parliament & SC have helped in shaping the Industrial
jurisprudence. Industrial jurisprudence is of great importance to all
developed or developing countries of the world because it is concerned
with the study of human relations arising out of large scale development
of Factory system. Which has emerged in consequence of Industrial
relations,

Proper regulation of employer –employee relationship is a condition


president for a planned, progressive, & purposeful development of
society.

Factors responsible for the removal of old theories of law ie . Hire & fire
, Lazzes fare are;

new socio eco problems

economic disparity .
strikes & lock outs .

constant raise in the standard of living .

domestic ideas &

development of industrial jurisprudence .

LABOUR POLICY IN INDIA

The labour policy in India was introduced taking into consideration


various factors after independence it was felt that the labour policy
must Emphasise upon self reliance on the part of the workers till the
period of 1954 , when v v Giri was the labour minister all official
pronouncements emphasised that labour should become self reliant .
An equally forceful view had been to prefer reliance upon the govt the
cross cutting view gave rise to Tripartism. Tripartism became a central
theme in the year 1957.

The govt emphasised on 3 party approaches.

Trade Union.

Representing the workers.

3 The government.

The 3rd and this kind of approaches the 3rd is the apt .In this kind of
approach the representatives do not decide anything but they role is
mainly advisory. The Annual Labour conference and permanent labour
communiniry served as a chief instrument of tripartism. These
conferences advocated amongst them many things like.

Workers participation in management.

Workers education.

Workers Committee.
And Minimum wages legislation.

EVILS OF INDUSTRILIAZATION

Economics &

2.Social

Economic:

No psychological satisfaction in producing the goods.

Wages paid were inadequate.

No secured employment.

Social:

Factories were sick, of not only economic evils but also social evil.

Work at factories were hazardous and strenuous with no working hours , no


rest no safety measures , health & welfare measures .

Workers were exposed to serious accidents.

Wages were only the source of income.

Therefore the evils of industrialisation & lack of harmonious relationship b/w


the employer & the labour created problems in the industry, which we call
labour problem.

LABOUR PROBLEMS

Labour problems constitutes a serious problem in the society , and needed


solution .The socio legal status of the labour was far below the status of the
employer .as such they could not exercise free will in negotiating with the
employer with the employment .The employer taking the advantage of the
conditions of the workers decided on their own terms and conditions with
regard to wages , hours of work , leave etc . Workers were left with no choice
but to accept the terms & conditions cause he was the sole bread earner of
the family. Neither the govt nor the courts of law took special notice of these
problems.

Object of ID Act 1947:

Industrial peace & economic justice, harmonious relationship the requirement


for maintaining healthy environment in the Industries. Economic justice,
dissatisfaction with the existing economic conditions is the root cause of
industrial disputes, the history of labour struggle is nothing but a continuous
demand for fair return to labour expressed to varied forms.

Eg. Increase in wages, resistance to decrease in wages & grants of allowances


& benefits. Labour fails in achieving these individually cause of week
bargaining power. For achieving this i.e. the eco struggle of labour with capital
is fought collectively by organized labour. To provide eco justice by ensuring
fair returns to the labour that the state as the custodian of the public interest
intervenes by st regulations economic justice has also been ensured to the
people of India by our constitution .

Features of the Act :

1.any industrial dispute may be referred to Ind tribunal by an agreement of the


parties .

An award must be binding on the parties to the dispute for the specified
period not exceeding one year, it should be normally enforced by the govt.

Prohibition of strikes & lock outs

During pendency of conciliation & adjudication.

During pendency of settlement.

During pendency of awards of industrial Tribunal declared binding by the app


govt.
In public interest or emergency the app govt has the power to declare the
transport, coal, cotton, textiles, iron& steel industries to be public utility
services for the purpose of this act, for a maximum period of 6 months.

In case of layoff or retrenchment of workmen the employer is required to pay


compensation to them.

Provision also made for compensation to employees in case of transferor


closure of undertaking.

A number of authorities such as workers committee, conciliation officers,


labour courts tribunals for settlement of industrial disputes, the powers, duties
of these authorities differ from each other, but each one of them plays an
important role in settling the industrial disputes.

Appropriate Government sec 2(a) of the act, the tests that determine that a
particular industry or establishment is under the control of the central govt or
the state govt are; It depends on the nature of dispute and the contents of the
industrial dispute, If the case fell in the ambit of st govt &the control lies with
the state govt then the appropriate govt is the state govt. If the control lies
with the central govt then the central govt is the appropriate govt .The
appropriate govt is to make reference of the dispute b/w the company and its
workmen. The central govt is designated to any industrial dispute concerning
the industries or the establishment or the companies referred. The definition
of the appropriate govt was laid down;

In Mach Kundh Hydro project‘s case.

In this case the court held that when the activities of an Industry are carried on
in two different states the govt of the state in which the industry is carrying on
its substantial activities would be appropriate govt competent to make the
reference.
CONSTITUTIONAL PROVOISIONS REGARDING LABOUR LAW

The chapter of fundamental rights and the directive principles of the state
policy are directly in the support of the working class. The provisions of the
constitution in support of the employees are,

Art 16: equal opportunity for all citizens in matter of employment or


appointment to any post equality of opportunity in state service.

No person or citizen to be discriminated according to caste, creed, sex religion


place of birth.

Art 19 : personal liberty of an individual is the most important aspect .

Art 19 : Six freedoms are stated under this art .

Freedom of speech and expression 19(1)(a)

Freedom of assembly 19(1)(b)

Freedom of association 19(1)(c)

Freedom of movement 19(1)(d)

Freedom to reside &to settle 19(1)(e)

Freedom of occupation trade & business 19(1)(f) .

Art 23 : The Indian constitution prohibits traffic in human beings & forced
labour . Bandhu Mukthi Morcha case. Peoples Union and democratic rights.

Art 24 : prohibition of employment of children in factories .

The directive principal of the state policy;

Art 39 : equal pay for equal work , (u/equal remuneration act )

Art 41 : right to work , education & public assistance .

Art 42 : just & human conditions of work .


Art 43 : living wages & fair wages to the workers .

Art 43A : participation of workers in the management of industries .

CONSTITUTIONAL STATUS:

The Union list the laws could be made by the union to various states through
this list;

Entry 55; regulation of labour and safety in the mines & oil fields.
Entry 61 : industrial disputes concerning the union employees .
Entry 65: union agencies and vocational training.
Concurrent list
Entry 22 : Trade Union’s industrial and labour disputes .
Entry 23 : social security & insurance , employment and unemployment .
Entry 24 : welfare of labour including conditions of work ,PF, employees
individual and old age pension & maternity benefit .
Award according to sec2 (b) means an interim or final determination of any
industrial dispute or of any question relating to it.
The determination must be by any labour court, Industrial tribunal, and
national tribunal. It includes an arbitration award made u/s10 –A.
Definition falls into two parts;
First part, covers a determination final or interim of any industrial dispute.
Second part, takes in consideration determination of any question relating to
industrial dispute.
Enforcement of an award:
An award may be enforced in the following ways .
The aggrieved party may apply to the appropriate govt for persecuting the
defaulting party u/sec29&30 of the act.
Where money is due by the employer to the workmen, the workmen may
move the appropriate govt for recovery of the money due to him under the
award.
The party in whose favor the award has been granted may file a suit & obtain a
decree. Which shall be enforced by execution under the provisions of Cpc.
Controlled industry sec29(ee), any industry the control of which the union has
been declared by the central act to be expedient in the interest of public, ie
industries controlled by the Union(C govt) also it such must be declared by the
central act to be controlled by the Union & that such control must be
expedient in public interest. Employer sec 2(g)in relation to industry carried on
by or under the authority of , central govt , st govt , local authority.
Wages sec 2(rr), all remuneration capable of being expressed in terms of
money, which would if terms of employment, expressed or implied were
fulfilled, be payable to a workmen in respect of his employment or of work
done in such employment, it also includes; Such allowances as the workmen is
entitled to.
Allowances.

Travelling concessions.

Commissions payable.

Following are not included in wages,

Bonus

Contributions towards PF, pensions or for benefit for workmen under any
other law.

Gratuity.

Workmen sec2(s), means any person including an apprentice employed in any


industry to do any manual, skilled, unskilled,tech,
operational,clerical,supervisory work for hire or reward, whether the terms of
employment be expressed or implied & for the proceeding under this act in
relation to any industrial dispute, it also includes any person dismissed,
discharged or retrenched from services.
Workmen do not include:

Subject of Air Forces.

People employed in police forces.


People employed in managerial & administrative capacity.
Supervisory capacity drawing wages ten thousand & above.
Industrial Disputes.

Sec 2 (k) of Industrial Disputes Act 1947 defines Industrial disputes, it means ad
dispute or a difference b/w
a. Employers & employers.
b. Employees & employees.
c. Workmen & workmen & such difference should be connected with
employment or non-employment, terms of employment conditions of labour
of any person & the dispute may be further in relation to any workmen or
workmen or any other person in whom they are interested as a body. The term
“of any person “ appearing in the last line of sec 2(k) means that the person
may not be a workmen but he may be someone in whose employment terms
of employment or conditions of labour the workmen as a class have a true &
substantial interest . An industrial dispute is not restricted to dispute b/w
employer & the union. It also means a difference b/w employer & workmen
including a minority union. The definition of Industrial Disputes does not
refer to industry but to refer to a dispute which has arisen in an industry.
Before an industrial dispute is raised there must be first established a
relationship of employer & employee associating together, the former
following a trade or a business & the latter following any calling of the
services or the employment etc .It is not necessary that it should be profit
motive but also the enterprise must be analogous to trade & business in a
commercial sense. For a dispute to be an industrial dispute it is necessary that
a demand must be first raised on the management & rejected by them. Making
of such demand to conciliation officer its communication by him to
management who rejects the same is not sufficient to constitute industrial
disputes.
In workmen of Hindustan Liver Ltd V/S Hindustan Liver Ltd , In this case the
question was that whether to confirm employees in an acting capacity in grade in a
grade is an industrial dispute . It was held that a demand of the workmen to confirm
employees employed in an acting capacity in a grade would unquestionably be an
industrial dispute without anything more.
In Sarava Sharamik Sangh V/S India Hume Pipe Company Ltd, it was held in
this case that the Industrial Dispute Act 1047 does not limit the power of the
Industrial Tribunals to grant relief only from the date of rising of Industrial Dispute.
The definition of Industrial Dispute in sec 2(k) of the Act does not contain any such
limitation. The tribunal has the power to grant relief from the date anterior to the
date of rising Industrial Dispute.

In Tirupattur co-operative Sugar Mills Ltd V/S Shivalingam, the trail court
restrained the sugar mills by temporary injunction from implementing the proposed
penalty of reduction in rank against the present respondent. The co-operative Sugar
Mills Ltd challenged the said order in the HC. It was held that the lower court has
thoroughly gone through into the evidence on the record & allowed the application
for temporary injunction. The HC said that there was no irregularity or infirmity in
the impugned injunction order. It was made clear that matter of dispute b/w the
employer & the workmen other than the discharge, dismissal, retrenchment or
termination of services are not Industrial disputes u/sec 2(k) of the act.

AUTHORITIES UDER THE LEGISLATION


Difficulties in the functioning of such committees: some difficulties have been
experienced in our country in carrying out the functions by the committees.
Lack of appreciation on the part of the management & workmen
representatives.
Illiteracy & lack of understanding.
Disinclination of workers representatives to participate in the discussions of
the committees
Lack of co-operation & in some cases even opposition of the trade union
leaders to the constitution & functioning of the works committee due to fear
of losing importance of their trade union .
In DMC Chemical Employees Lokhit V/S Delhi Administration(1983 1 LLJ 306),
here there is no legal duty cast on the Conciliation officer to intervene into the
matter till some action is taken Against the workmen & the workmen has a
grievance to that effect, unless there is a legal duty the writ of mandamus does
not lie . Where the contract of employment is terminated the cause of action
would arise leading to a dispute & in such a situation it is open to conciliation
officer to initiate conciliating proceedings under sec 12(1) of the act.
In the management of the needle Industry V/S the labour court(1986 1LLJ 405)
it was observed that sec 12(1) of the act stipulates the existence of an
industrial dispute so as to enable the conciliation officer to take seizing of such
situation . They must exist an industrial dispute which could be taken
cognizance by the conciliation officer u/sec12 of the act. In this case the
dismissal per se , Created an industrial dispute & it is such a cause if the matter
is referred to conciliation on behalf of the workmen by the union the provision
enables the conciliation officer to exercise his jurisdiction as contemplated in
the provision .Conciliation proceeding in public utility services, & non public
utility services.

Public utility services:


on the receipt of the notice of strikes & lockout u/rule 71&72, he shall fix An
interview with both the parties i.e. employer & workmen, in such place & such
time as he may deem fit to help resolve the dispute. An interview with both
the parties i.e. employer & workmen, in such place & such time as he may
deem fit to help resolve the dispute.

If no notice is issued of strike & lock out u/rule 71&72, but considers it
necessary to intervene in the dispute he may give formal intimation in writing
to the parties concerning his intention to commence conciliation proceeding
with effect from such date as mentioned.

Non public utility services:


where conciliation officer receives any information about existence or
apprehended industrial dispute which does not relate to public utility services
& he considers it necessary to intervene in the dispute he shall give formal
information in writing to the parties concerning declaration of his intention to
commence conciliation proceedings with the effect on the date mentioned .
The parties are required to submit the statements. In case of individual
workmen the workmen himself involved in the dispute may forward the
statement to the conciliation officer.
The authorities under this legislation can be categorized into various types ,
Workers committee sec 3
Conciliation officers sec 4
Board of conciliation sec 5
Court of inquiry sec 6
Labour court sec 7
Industrial Tribunal sec 7A
National tribunal sec 7B

WORKERS COMMITTEE
Sec 3 of the Act provides for constitution of the workers committee in case of any
industrial establishment in which one hundred or more workmen are employed
or have been employed on any day in the proceeding twelve months. The
appropriate govt may by general or special order require the employer to
constitute a works committee.
Constitution of works committee, the committee shall consist of representatives
of employers & workmen engaged in the establishment. The number of
representatives of workmen should not be less than the number of
representatives of the employer. The representatives of the employer should be
chosen in the prescribed manner from among the workmen engaged in the
establishment & in consultation with the trade union.

Duties of the workers committee:


1. To promote measures for securing & preserving amity & good relation b/w
the employers & the workmen.
2. To comment matters of they common interest.
3. To endiviour to compose any material difference of opinion in respect of
such matters.
In North Brook Company V/Their Workmen (1960), the company proposes to
introduce rationalizing scheme. The Union did not agree with the scheme. On
the basis of the acceptance of works committee the company gave notice
under sec 9-A of the Act of changes in the service condition. The Industrial
Tribunal held that the company implementing the rationalization scheme in
reliance on the decision of the workers committee while a dispute was
pending it was in contravention of sec 22 of the Act. Hence Lock-Out declared
by the company was illegal. The workers must be paid wages for that period.
The company applied for a & obtained for special leave from the SC. The SC
held that the workers committee was not intended to supplant or supersede
the union for the purpose of collective bargaining. They are not authorized to
consider real or substantial changes in the condition of services. Their task is
only to smooth away friction that might arise b/w the workmen & the
management in day to day work. The duties & functions of the workers
committee do not include the decision on such an important matters as the
alterations in the conditions of service by rationalization.
The fact that the representatives of the workmen in the works committee
agree to the introduction of rationalization scheme is in no way binding on the
workmen or their union.
CONCELIEATION OFFICER: section 4 empowers the appropriate govt to
appoint such number of persons as it thinks fit to be conciliation officers. The
duty of the conciliation officer shall be to mediate in & promote the
settlement of industrial dispute. A conciliation officer may be appointed for
one a specified area or for one or more specified industries & either
permanently or for a limited period.
The presiding officer shall be deemed to be a public servant within the
meaning of sec 21 of IPC.
Powers of conciliation officer sec11:
1. A conciliation officer may for the purpose of inquiry enter into the premises
of the establishment to which the dispute relates.
2. He may enforce attendance of a purpose for examination of such persons
or call for inspections.
Duties of the conciliation officer sec 12:
1. Where industrial dispute exists or is apprehended the conciliation officer
may or where the dispute relates to a public utility service & a notice under
sec 22 has to be given, shall hold conciliation.
2. The conciliation officer for the purpose of bringing about a settlement of
the dispute. Investigate the dispute & all matters affecting merits &the
right for settlement of dispute. He may do such other acts as he thinks fit
for the purpose of inducting the parties to come to a fair & amicable
settlement of the dispute. But he has no authority to make a final decision.
3. If a settlement of the dispute is arrived at in the course of the concelieation
proceedings he shall send the report to the appropriate govt or an officer
authorized in his behalf by the appropriate govt . He shall also send a
memorandum of the settlement signed by the parties to the dispute to the
appropriate govt.
4. If no such settlement is arrived at he shall send to the appropriate govt a
full report setting forth the steps taken by him for assessing the facts &
circumstances relating to the dispute & for upbringing about the settlement
of the dispute. It shall be submitted within 14 days of the commencement
of conciliation proceeding.
Board of Conciliation:
Sec 5 of the Act empowers the appropriate Govt to constitute a Board of
Conciliation to promote settlement of Industrial dispute. The board consists of
a chairman & two or four other members as the appropriate govt may think fit.
Chairman shall be an independent person. Other members may be persons
appointed in equal numbers to represent the parties to the dispute & any
person appointed to represent a party shall be appointed on the
recommendation of the party (one or two representatives in equal
representation). If any party fails to make recommendation Within the
prescribed time the appropriate govt is vested with the power to appoint such
person as it thinks fit to represent that party.
Quorum : three or five members including chairman quorum is complete, in
case of inavaluability of chairman or any member, the board shall not act until
thy have been appointed.
Duties: sec 13
To bring settlement to industrial dispute, to investigate, do all acts as it thinks
fit for the purpose to bring fair & amicable settlement of the dispute.
If settlement is arrived in the course of conciliation proceeding, the board shall
send a report to the appropriate govt with memorandum of settlement signed
by the parties to the dispute. If settlement is not arrived, then full statement
of memorandum reasons& recommendations for settlement not to be settled.

If on the receipt of report in respect of a dispute relating to public utility


services, the appropriate govt does not make reference to the Labour Court,
industrial tribunal or national tribunal u/sec10 of the act, it shall record &
communicate to the parties concerned & its reasons for the same.
The board shall submit its report under this section within 2 months of the
date on which the dispute was referred. Or if not submitted within time the
time for the submission of the report within two months of the date, as fixed
by the appropriate govt.
Powers: sec 11
Conducting inquiry into any existing or apprehended Industrial Dispute.
To enter into premises after giving reasonable notices.
It shall have the same powers as vested in a civil court.
Enforce attendance, of any person & examining him on oath.
Compelling attendance of any person & examining him on oath &
material objects.

The Board, like conciliation officer has the power to grant or withhold approval
or permission u/sec33 to the action of the employer during the pendency of
the conciliation proceeding.
All questions arising for decision before the board shall be decided by the
majority of the vote of members including the chairman present at the
Meeting.
Rights of the representatives, to represent, examinination, cross examination,
of addressing the board when evidence has been called.

COURT OF INQUIRY :
Sec/6 court of inquiry, the appropriate govt constitutes a court of inquiry, for
inquiring any matter appearing to be connected with or relevant to Industrial
disputes. The court of inquiry may constitute of, one independent person, who
may be appointed by the appropriate govt, & when the court of inquiry
consists of two or more members one of them shall be appointed as a
chairman.

Powers of the court of inquiry Sec11 :


Power to enter the premises after giving reasonable notification.
Every court of inquiry shall have the same powers as are vested on a Civil
Court under the code of CPC, when trying the suit in the respect of the
following matters.
Enforcing the attendance of any person & examining him on oath.
Compelling the production of documents & material objects.
Issuing commissions on examination of witness &
Such other matters prescribed.
Duties :
A court of inquiry is entitled to enquire into the matters referred to it & report
to the appropriate govt within 6months from the commencement of its
inquiry.
The report shall be in writing & shall be signed by all the members of the court.
Such reports may be published within the period of 30 days from the date of
its receipt by the appropriate govt in such manner as it thinks fit.

A court of inquiry may if so think fit; appoint one or more persons having
special knowledge of matter under consideration as assessor or assessors to
advice it in the proceeding before it. During the pendency of proceeding
before the court of inquiry, there is no bar for the strikers or employers to
declare a lock out. Or inflict punishment on the workers. This makes a
difference from the other kind of settlement machineries. The court of inquiry
is only to give a report to the govt. This cannot be said to be settlement
machinery in a proper sense.
(Punishment for Interruption to any public servant sitting at any stage of
judicial proceeding)
All members of the court shall be deemed to be public servant u/sec21 IPC.
It may inquire into the matters referred to it & report thereon to the
appropriate govt within the period of 6 months from the commencement of
inquiry.
LABOUR COURTS SEC 7:
Sec 7 of the act deals with labour courts, The act empowers the appropriate
govt to constitute one or more Labour Courts for adjudication of Industrial
Disputes relating to any matters specified in the second schedule. Labour must
consists of one person as per the appointment of the appropriate govt .
QUALIFICATION OF THE PRESIDING OFFICERS
He has been the judge of the HC or
He for not less than 3yrs has been a dist court judge or additional dist court
judge.
He has held office of judiciary in India for not less than 7 yrs .
He has been the presiding officer of a labour court constituted under any
provisional Act not less than 5 yrs.
DISQUALIFICATION OF THE PRESIDING OFFICERS
No person shall be appointed to, or continued in the office of the presiding
officer of a Labour Court if,
He is not an independent person.
That he has attained the age of 65 yrs.
POWERS OF THE LABOUR COURT (SEC 11)
The presiding officer of the labour court , may for the purpose of inquiry in any
existing or apprehended industrial dispute, after giving reasonable notice
enter the premises occupied the establishment to which the dispute relates .
Every labour court has the same powers as that of the civil court under CPC.
The labour court has the power to appoint one or more person having special
knowledge to advice it in proceeding before it.
DUTIES
When an Industrial dispute has been referred to a labour court for
adjudication, it shall hold its proceeding expediously & shall within the period
specified
INDUSTRIAL TRIBUNAL SEC 7A:
Sec 7A of the Act empowers the appropriate govt to constitute one or more
Industrial Tribunals for the adjudication of Industrial dispute relating to any
matter whether specified in the second or the third schedule.
By the virtue of sec 79A (2) an Industrial Tribunal shall consists of one person
only to be appointed by the appropriate govt. by virtue of sec 7A(4) the
appropriate govt may appoint two persons as an assessors to advise the
tribunal in the proceedings before it.
Qualification, of the presiding officers by the virtue of sec 7A(3) a person shall
not be qualified to be appointed as the presiding officer of the Tribunal, unless
1. He is or has been a judge of a HC or
2. He has for a period of not less than 3yrs been a district judge or an
additional dist judge.
Powers of the Industrial Tribunal:
The proceeding officer of an Industrial Tribunal may for the purpose of enquiry
into an existing or apprehended Industrial Dispute after giving a reasonable
notice enter the premises occupied by the establishment to which the dispute
relates.
Every Industrial Tribunal shall have the same powers as are vested in the civil
court under the code of CPC , while trying suit in respect of the following
matters namely;
1. Enforcing the attendance of any person & examining him on oath .
2. Compelling the production of documents & material objects.
3. Issuing commission for the examination of witnesses &
4. In respect of such other matters as may be prescribed.
Industrial Tribunal may if it so thinks fit appoint one or more persons having
special knowledge of the matter under consideration as assessor or
assessors to advise it in the proceeding before it.
Duties :
Where an industrial dispute has been referred to a Tribunal for adjudication , it
shall hold its proceeding expediously & shall within the period specified in the
order referring such industrial dispute submit its award to the appropriate
govt.
NATIONAL TRIBUNAL
Section 7B, of the Act empowers the central Govt to constitute one or more
national tribunal for the adjudication of Industrial Dispute which in the
openion of the central govt involve the question of National Importance or are
of such a nature that industrial establishment situated in more than one state
are likely to be affected by such dispte. National tribunal shall constitute of
one person only to be appointed by the central govt as a presiding officer.
Qualification of the presiding officer of a National Tribunal, unless heis or has
been a judge of the HC he cannot be appointed as the presiding officer.
The central govt may if it so thinks fit appoint 2 persons as assessors to advise
the National Tribunal in the proceeding before it.
Disqualification , no person shall be appointed to continue in the office of the
presiding officer of National Tribunal if,
1. He is not an independent person, or
2. He has attained the age of sixty five years.
Powers of the National Tribunal:
The presiding officer of a National Tribunal may for the purpose of enquiry into
an existing or apprehended industrial dispute after giving reasonable notice
either the premises occupied by the establishment to which the dispute
relates. Every National Tribunal shall have the same powers as are vested in
the CPC under the code of civil procedure 1908 while trying a suit in the
following matters.
Restriction to change of conditions of service, dismissal or other punishment
during the pendency of proceedings before authorities under the act, sec 33
of the act prescribes the restriction as to the change of condition of services
during the pendency of proceedings before the conciliation officer or a board
or conciliation officer or a board of any proceeding before an arbitrator or a
Labour Court or Industrial Tribunal or National Tribunal. By the virtue of sec
33(1)(a), of the Act during the pendency of any type of authority of the act in
respect of an Industrial dispute , an employer shall not in regard to the matter
connected with the dispute , alter to the prejudice of the workmen concerned
in such dispute the conditions of services applicable to them immediately
before the commencement of such proceeding.
By virtue of sec 33(1)(b), of the Act , the employer shall not discharge or
punish whether by dismissal or otherwise any workmen concerned in such
dispute for any misconduct connected with the dispute without express
permission in writing of the authority before which the proceeding is pending.
By virtue of sec 33(2)(a), of the Act during the pendency of any such
proceeding in respect of an Industrial dispute, the employer may alter in
regards to any matter not conconnected with the dispute , the condition of
service applicable to that workmen immediately before the commencement
of such proceeding . However by virtue of sec 33(3)(a) of the Act the employer
has to obtain written permission of the authority before which the proceeding
is pending.
By virtue of sec 33(2)(b) of the Act during the pendency of such proceeding of
an industrial dispute the employer may discharge or punish, whether by
dismissal or otherwise a workmen for any misconduct not connected with the
dispute . However by the virtue of sec 33(3)(b) of the Act the employer should
have to obtain written permission on the authority before which th proceeding
is pending.
In Muslim Painting & Publishing co Ltd V/S Secretary to the Govt, it was held
that the authority has to consider the genuiness & adequacy of the reasons
stated by the employer, the interest of the workmen & all other relevant
factors in writing while granting or refusing the permission for dismissal of a
workman under sec 33 of the Act.
Remedy in case of violation of sec 33, in case of contraventions of this section
during the pendency of proceedings before the arbitrators, a Labour court,
Tribunal or National Tribunal & shall adjudicate upon the complaint as if it
were a dispute referred to or in pending before it , in accordance with the
provisions of this act shall apply accordingly.
NOTICES OF CHANGE IN CONDITION POF SERVICES: Section 9-A provides for
notice of change in condition of services.
By virtue of this provision no employer who processes to effect any change in
the condition of service applicable to any workmen in respect of any matter
specified in fourth schedule.
1. Without giving to the workmen likely to be affected by such change
proposed to be effected or
2. Within 21 days of giving such notice
The condition of services for change of which notice is to be given as
enumerated in the IV schedule.

In Tamil Nadu Electricity Workers Federation V/S Madras Electricity


Board.
In this case it was held that the object of this section is to prevent a
unilateral action on the part of the employer changing the conditions of
service to the prejudice of the workmen.

REFRENCES OF DISPUTES TO AUTHORITIES

1. DISCREATIONARY REFRENCES , sec 10 of the Act provides that the


appropriate govt is of the opinion that any industrial dispute exists or is
apprehended, it may by order in writing ,
a. Refer the dispute to the Board of Conciliation for promoting a
settlement of dispute or
b. Refer any matter connected with or relevant to a dispute to a court of
Inquiry or
c. Refer the dispute or any matter connected with or relevant to the
dispute to Industrial Tribunal for adjudication. . if it relates to matters
connected to the 3rd & 4th schedule.
Sec 10 is conferred to the govt & this discretionary power can be
exercised on being satisfied that an industrial dispute exists or is
apprehended.
2. COMPULSORY REFRENCES, when the dispute relates to public utility
services & a notice u/sec 22 for strike or lock-out has been given , the
appropriate govt may make a reference.
3. If the appropriate govt feel that the notice has been frivolously given it may
not make references.
Government cannot be compelled to make references:
Making references is an administrative act u/sec 10(1) of the act & neither it is
not judicial nor it is Quazi Judicial.
If the appropriate govt decides that no reference is necessary than the govt
cannot be compelled to make references by issuing any writ against it.
A settled dispute cannot again be referred, in Management of Bangalore
Wollen Cotton & Silk Mills co V/S workmen; it was observed that the dispute
is once settled by an adjudicatory authority it cannot be revised again &
referred during the pendency of previous award.
VOLUENTARY REFRENCES TO ARBITRATION
Sec 10, deals with the voluntary references of dispute to arbitration. This sec
was inserted by the ID Amendment Act of 1956. This sec was enacted with the
object of enabling the employers & the employees to voluntarily refer the
their dispute to arbitration themselves by written agreement b/w them
reached otherwise than in the course of conciliation proceeding.
The employer or the workmen can refer the dispute to arbitration they may by
a written agreement refer the dispute to arbitration .they can however do so
at any time before the dispute has been referred u/sec 10 of the act to a
Labour court, Industrial Tribunal or National Tribunal , by the appropriate govt.
STRIKES & LOCK-OUT
Definition of strike,
A strike, according to sec2(q) of the ID Act, is a cessation of work by the
employees for any length of time under a common understand to put pressure
on an employer to accept their demand .
1. Cessation of work by a body of persons employed in any industry acting in
combination or
2. A concerned refusal of any number of persons who have been employed to
continue to work to accept employment.
3. A refusal under a common understanding of any number of such persons to
continue to work or to accept employment.
In Farrer V/S Close, the court defines strike as a simultaneous cessation of
work on the part of the workmen.
In Uden V/S schaeffer , the court defined that a “strike, is the act of quitting
work by a body of workmen for the purpose of coercing their employer to
acced to some demands they have made upon him, & which he has refused,
but it is not a strike for workmen to quit work either singly or in a body when
they quitted without intention to return to work whatever may be the reason
that moves them to do so.
In Indian Humpe pipe Co Ltd V/S Rashtraya Indian Humpe pipe Mazdoor
Sangh , it was held that staying away from work under a common
understanding as a protest to the introduction of card system for marking
attendance for the workmen amounts to strike.
In National Textile Works Ltd V/S Shree Meenakshi Mills, the court held that
the refusal of workers to resume work on account of sudden death of the
worker acting in concert would amount to strike.
Different kind of strikes.
General strike, slow down , stay in , yet other types of strikes are sympathetic
strike , Hunger strike , work to rule .

Lock-out
Lock –out is a temporary closure of a place of business by the employer to
bring preassure on his workmen to accept his terms .it is antithesis of strike
Acc to sec 2 of the Act Lock – out means the temporary closing of a place of
employment or suspension of work or the refusal by an employer to continue
to employ any number of persons employed by him.
Just as strike is a weapon available to the employer to persuade by a coercive
process the employee to accept his demand.
In jaya Bharath Textiles Works V/S State of Madras, it was held that a
permanent discountenance of business is not a lock-out because a lock-out is a
temporary closure of a place of business.
Prohibition of strikes & lock – outs : strikes & lock-out are useful & powerful
weapons in the armoury of the workmen & employers . They are available
when a dispute or a struggle arises b/w them skilful use of these weapons may
help one party to fourse the other to accept its demand. But reckless use of
the creates a risk of unnecessary stoppages. Stoppages hurt both the parties
badly.
Sec 22 to 23 of the ID Act 1947 deals with the prohibition of strikes & Lock-
outs.
Sec 22 bans the commencement of strike & lock –outs in public utility services.
But sec 23 bans strikes & lock –outs generally in Industrial establishment.
Though every industry is not a public utility service. Every public utility service
is an Industrial establishment.
Sec 22 (1) the employee of a public utility services shall not commence a strike
unless the following conditions are satisfied;
1. A notice of strike should be given to the employer in advance.
2. The notice should be given at least 14 days before the strike.
3. The strike shall not commence before the expiry of the date specified in the
notice.
4. The strike shall not be commenced during the pendency of any conciliation
proceeding before a conciliation officer & seven days after the conclusion
of such proceedings.
In premier Automible Ltd V/S G.R Sapre, it was held that the main object of
notice of 14 days before lock-out or strike is to avoid possible dislocation to
the employers & their workmen & give some grading time to adjust. Notice of
strike is not necessary where there is already a lock-out in existence. Notice
may be given by the trade union or representatives of workmen elected to do
so, the strike must e commenced within that period.
Sec 22 (2) the employers of a public utility services shall not commence a lock
– out unless the following conditions are satisfied;
1. A notice of lock –out should be given to the employees in advance.
2. The notice should be given at least 14 days before the lock –out.
3. The lock- out shall not commence before the expiry of the date specified
in the notice.
4. The lock –out shall not be commenced during the pendency of any
conciliation proceeding before a conciliation officer & seven days after
the conclusion of such proceedings.
Notice of lock-out shall not be necessary if there is already in existence a
strike in public utility services.
If the employer receives a strike notice he shall within 5 days report to the
appropriate govt or to such authority as the govt may prescribe.
In Minerals Miners Union V/S Kuderamukh Iron ore Co Ltd in this case it was
held that the provision of sec 22 are mandatory & the date on which the
workmen proposed to go on strike should be specified in the Notice , if
meanwhile the date of strike specified in the notice of strike expires. Workmen
have to give a fresh notice & all other statuary consequences following out of the
said notice would follow.
In Buchimgham & Carnatic Co Ltd V/S Ram Swaroop, it was held that concerted
stoppage of work or refusal to work by a body of workmen without due notice to
the employer in a public utility service estbnt amounts to an illegal strike.
GENERAL STRIKES & LOCK –OUTS: sec 23 of the Act imposes general restrictions
on declaring strikes & Lock –outs in both public utility & as well as non public
utility establishments , in the following circumstances,
1. During the pendency of conciliation proceeding before a Board & seven
days after the conclusion of such proceeding.
2. During the pendency of proceeding before the labour Court, Industrial
Tribunal, or National Tribunal & two months after the conclusion of such
proceeding.
3. During the pendency of arbitration proceedings before an arbitrator & two
months after the conclusion of such proceeding.
4. During any period in which a settlement or award is in operation in respect
of the matters covered by such settlement of award.
These provisions enable the peaceful atmosphere for conducting conciliation,
adjudication or arbitration proceeding.
ILLEGAL STRIKES OR LOCK –OUTS:
Sec 24 of the Act lays down the circumstances under which strikes & Lock –
outs shall be illegal . And also they shall not be deemed to be illegal.
1. A strike or a lock –out shall be illegal if it is ,
a. If it is commenced or declared in contravention of sec 22 in public utility
services.
b. Commenced in contravention of sec 23 , in any industry or estbnt.
c. Continued to be in contravention of an order made by the appropriate govt
on a reference made by it under sec 10(3), or sub sec (4-A) of sec 10-A of
the Act .
d. Continued in contravention of an order made by the appropriate govt after
the reference of dispute for arbitration.

2. The continuance of a strike or a Lock-out shall not be deemed to be illegal if


a. If it is commencement not in contravention of the provision of this Act.
b. That such a strike or a lock –out in pursuance of an Industrial dispute has
already commenced & is in existence at the time of reference of the
dispute to a Board of Conciliation , a Labour Court , Industrial Tribunal or
National Tribunal .
a lock-out declared in consequences of an illegal strike or a strike declared in
consequences of an illegal lock – out shall not be deemed to be illegal
PENALTIES REGARDING STRIKES & LOCK- OUTS
1. Penalty for illegal strike

According to sec 26(1) , any workmen who commenced continues or


otherwise acts in furtherance of a strike which is illegal shall be punishable
with imprisonment for a term which may extend to one month or with fine
or with both.

2. Penalty for illegal Lock –out

According to sec 26(2), any employer who commences continues or


otherwise acts in furtherance of a lock-out which is illegal shall be
punishable with imprisonment for a term which may extend to one month
or with fine, or with both.

LAY OFF:
Lay off means putting aside workmen temporarily.
The duration of the period of lay off must not be for a longer period than the
period of emergency. The employer & employee relation does not come to an
end but is merely suspended for a period of emergency. Submit its award to the
appropriate govt.
According to sec 2 (kkk) of the act lay-off means the failure, refusal or inability to
of an employer on an account of shortage of coal, power or raw materials or the
accumulation of stock or the brake down of machinery to give employment to the
workmen whose name is born on the master roll of his industrial establishment &
who have not been retrenched. Lay –off is not a right conferred but an obligation
imposed on the employer for the benefit of the workmen. The very essence of
lay-off is that it is a temporary stoppage of work & that within the reasonable
period of time the employer expects the business would be continued & his
employees who have been laid off will be restored with job along with they full
rights . The act has been amended relating to the provisions of lay-off &
retrenchment in 1984 .According to it prior approval is required to be ascertained
from the appropriate govt by the employer.
PROHIBITION OF LAY OFF
Unless the employer has taken the permission of the appropriate govt he cannot
lay off his employees who are bone on the master roll.
CONDITION PRECEDENT FOR PAYMENT OF LAY-OFF COMPENSATION.
• The nu of employees should not be less than 50 on an average per working
day in the proceeding calendar month.
• The industrial est. should not be seasonal in character.
• Such unemployment should be due to failure, refusal, or inability of the
employer on the account of shortage of coal, power or raw material.
• The workmen should have presented himself for work for that day to the
establishment the name of the workmen should have born on the master
roll of the establishment.
• The workmen should have been given employment within 2hrs of his so
presenting himself.
ESTABLISHMENT EXEMPTED FROM PAYING COMPENSATION.
• The provision of sec 25C to 25E deals with lay-off compensation.
• According to the provisions certain categories of workmen are entitled to
avail compensation.
• 25A states that an industrial establishment employing less than 50
workmen on an average per working day in the preceding calendar month
is not eligible to pay compensation.
RETRENCHMENT
SEC 2(OO) OF THE Act defines a retrenchment, It means termination of the
services by the employer for any reason whatsoever otherwise other than as a
punishment inflicted by way of disciplinary action.
The following are not termed to be retrenchment.

• Voluntary retirement of a workman.


• Retirement of a workman after reaching the age of superannuation.
• Termination of service of a workmen as a result of the non - renewal of
a contract of employment on its expiry.
• Termination of service of a workman on grounds of continued ill health.
In the year 1957 the SC in Hariprasad Shiv Shukla V/S A.D Divakar ;
• In this case the SC stated that the expression retrenchment means the
discharge of surplus labour or staff by the employer for any reason what’s
so ever, otherwise than on a punishment Inflicted by way of disciplinary
action.

Condition precedent for retrenchment of the workmen. Sec 25 F


Sec 25 F of the act prescribes the conditions to be satisfied before retrenchment a
workmen. Such workmen must have put in one year of continuous service he shall
not be retrenched until the conditions are fulfilled. Inflicted by way of disciplinary
action.
Condition precedent for retrenchment of the workmen. Sec 25 F
1. Sec 25 F of the act prescribes the conditions to be satisfied before
retrenchment a workmen. Such workmen must have put in one year of
continuous service he shall not be retrenched until the conditions are
fulfilled. One month notice in writing has to be given to the workmen.

2. The workmen cannot be retrenched unless the notice period is expired .or
workmen has been paid wages in lieu of such notice wages for the period of
notice.
These conditions are mandatory & non-compliance with it will render
retrenchment illegal. The workmen must have been paid , at that time
retrenchment compensation which is 15 days average pay for every
completed year of continuous service or any part thereof .

Notice in the prescribed manner must be served to the appropriate govt of


such authority as may be specified by the appropriate govt or such
authority as a may be specified by the appropriate govt by notification in
official gazette.
PROCEDURE FOR RETRENCHMENT
Sec 25 G of the act prescribes for the procedure to be followed by the
employer while effecting the retrenchment, the recognised principal of
retrenchment is ‘last come first go & first come last go ‘. A workman can
claim protection of this section if the following conditions are fulfilled.
i. He must be a workman within the meaning of sec 2(s) of the act.
ii. He should be a citizen of India.
iii. The workmen should be employed in an establishment which is an industry
within the meaning of sec 2 (j) of the act.
Iv . There should be an agreement contrary to the principal of last come first go
b/w the employer & the workmen.

If the above conditions are fulfilled the employer must ordinarily retrench the
workmen based on the principle. This rule is intended to afford a healthy
safeguard against discrimination of workmen in regard to retrenchment.
RECOVERY OF MONEY DUE FROM THE EMPLOYER
Earlier sec 20 of ID Act was considered for the purpose of claiming dues from the
employer under an award or decision.
It was an insufficient provision hence a new section was introduced i.e. sec 33-C
to the ID Act 1947 by the Amendment act 1956 this also repealed the 1950
Industrial Disputes Tribunal Act. Sec 33 C also stood insufficient & this resulted in
the substitution by Industrial Disputes Act 1964,
Which inserted sec 33 C (1), it states where any money is due to a workmen from
an employer under a settlement or an award or under chapter VA(industrial
disputes), the workmen or his authorized agents or if dead his heirs or assignee
may make an application to the appropriate govt for the recovery of such money.
Money due, means existing debts whether or not the right to recover the same is
barred. The govt if satisfied that such money is due will, issue a certificate to the
amount to the collector who recovers it as arrears of land revenue.
Application must be made within one year from the date the money become
date. However, on satisfaction of sufficient cause, the government may entertain
applications even after this one year period. Amendment act of 1976, by virtue of
this act the workers establishments employing 300 or more workers are also
entitled to protection u/sec33- C (1) in respect of any money due to any worker
working in the above industrial establishments in the terms of Ch VB inserted by
the above amendment, when the dispute relates the recovery of money on
account of lay-off, retrenchment or closure of the business in contravention of
the restrictions Imposed by the amending provision.
Scope of sec 33 of the act: the provision enables a workman for the speedy
recovery of money due from his employer under the settlement or an award or in
the form of compensation u/the act. The provision enables the individual
workmen to enforce his existing right to release money from his employer
Without driving him to resort to sec 10(1) & without depending on other
workmen or the union to support his case. When money is due to the workmen,
he is not compelled to take recourse to an ordinary civil court for the execution &
realization, but can invoke the summery procedure provided by sec 33-C (1)
Jurisdiction & power:
The provision of sec 33-C(1) are analogous to the execution proceeding to realize
money Due under settlement or award under the act. The workmen or his
authorized agent shall make an application to the appropriate govt in execution of
the same. If the appropriate govt is satisfied that the claim of the workmen is
sustainable, a certificate for the same will be issued to the collector for the
recovery of it as arrears of land revenue. The power of the govt u/sec33-C(1) does
not extended to the determination of the amount but only to calculate or work
out & Verify the claim & that is without any dispute.

The certificate has to be issued by the govt on being satisfied issued must be to
the collector. Even though sec 33-C (1) provides to recover the money due as
arrears of land revenue, section does not bar the a civil suit for such recovery.

Application under sec 33-C(1), can be made by the workmen to whom money is
due, or any person who is authorized in writing by him or the assignees or heirs of
such workmen, who is dead. The workmen need not be in the service on the date
of his application. But the money claimed as due in the application must have
been related to his services to the employer. U/rule 62(1) of the Industrial
Disputes Rules 1957, a workmen or a group of workmen may apply in form K-I for
the recovery of money due from the employer. Provision I to sec 33-C(1)
prescribes one year period of limitation from the date on which the money
became due, within which time the application must be made.
Provision II, it empowers the appropriate govt to receive such application even
after the expiry of the said one year if it is satisfied that there is jurisdiction on
sufficient cause.

Sec33-C(2), where a workmen is entitled to receive from the employer any money
& if any question arises as to the amount of money due, then the question may
be decided by the labour court. The expression if any question arises as to the
amount of money due includes in its ambit any one or more of the following kinds
of disputes,

1. Whether there is any settlement


2. Whether any workmen is entitled to receive from the employer any money
at all under any settlement or award If so what will be the quantum of such
amount ,
3. Whether the amount claimed is due or not.
These will be the disputes which will be referable to question as to the amount of
money due. To find out this it is not necessary that there should be a dispute as to
the amount of money due. A dispute as to all or any of the four questions attracts
the provision of sec33-C(2). In case of dispute as to any amount due to the
workmen jurisdiction is to the labour court u/sec33-C(2) & not for the appropriate
govt u/sec33-C(1) Condition precedent for application of sec33-C(2), it assumes
the existing right of the employees to the money or benefit. Only on the basis of
such an existing rights the sec empowers the labour court to decide any question
that may arise as to the amount of money due or as to the amount at which it
shall be computed.

Labour court will have competency to try the matter only if the appropriate govt
makes specification to that effect.

In Nizamuddin Suleman V/S New Shorrock Spinning & Manufacturing Mills(1980


Lab IC 397 Guj) the court relied on Punjab Beverages V/S Suresh Chand(AIR 1978
SC 218)

Alternative remedy is not a bar to sec33-C(2) eg sec 20 of minimum wages act


1948, which provides for recovery of the differences in contractual wages paid to
the employees & the minimum wages payable to them .

Relationship b/w sec 10& 33-C(2), sec 10 deals with references of cases of all kind
of Industrial matters, sec 33-C(2) deals only with recovery of money due from the
employer.

Sec 10 is very wide it could cover all matters including those coming under sec 33-
C (2) of the act. Sec 33-C (2) is very restrictive provision. Sec 33-C (3) provides for
appointment of commissioners by the Labour courts in appropriate cases for the
purpose of computing the value of benefit claimed in the application. Sec 33-C(4)
makes it incumbent upon the Labour courts to forward its decision as to the claim
u/sec33-C(2) to the appropriate Govt. on the receipt of such decision the
appropriate govt will realize the amount found due by the Labour court in the
manner provided for in sec 33-C(1) of the Act. Sec 33-C (5) provides for joint
application for recovery of money due from the employer. This section enables
any number of employees who are employed under the same employer, they are
entitled to make single application for claim of money due from the employer.

UNIT IV
EMPLOYEES COMPENSATION ACT 1923
The Employees’ Compensation Act, 1923 is an old but an important enactment, as
it introduced a kind of social security scheme for the employees of this country. It
enables an employee, and in case of death of an employee, his dependents, to
get, at the cost of his employer compensation for employment injury.

The Employees’ Compensation Act applies to railways (other than those)


employed in administrative work and persons employed in factories, mines,
plantations, mechanically propelled vehicles, construction work, and certain other
hazardous occupations. There is no wage limit for coverage under the Act. The
Act, however, is not applicable to the persons who are covered under the
Employees’ State Insurance Act, 1948. The Act provides for payment of
compensation to workmen or their dependants, as the case may be, for industrial
accidents (including prescribed occupational diseases) arising out of and in the
course of employment and resulting in disablement or death. It is administered by
the respective State governments / Union Territory administrations.

The State Governments are required to appoint Commissioners for Employees’


Compensation for (a) settlement of disputed claims; (b) disposal of cases of
injuries involving death; and (c) revision of periodical payments. The
Compensation payable to the workman or to his dependants cannot be assigned,
attached or charged.

Objectives

The Object of the Act is to provide for the payment of compensation by certain
employers to their employees for injury caused to them by accident while in
employment. If an employee contracts an occupational disease while in
employment, it is also treated under the Act as injury caused by accident.
Applicability

In case of Maharashtra, The Employees’ Compensation Act is applicable to all


shops & Establishments by virtue of Sec. 38-A of The Bombay Shops &
Establishments.

Sec. 16 of the Apprentices Act extends the application of the Employees’


Compensation Act to the Apprentices appointed under Apprentices Act, 1961
rendering the employers liable to pay compensation for any personal injury or
accident arising out of and in the course of employment caused to the
apprentices.
Every Employer Employing persons listed in Schedule II to the Act;
Carrying on an occupation listed in Schedule III to the Act Is liable to pay
compensation under the Act.
Eligibility
The following persons are liable to receive compensation under the Act:-
Certain Railway Servants ; Persons listed in schedule II to the Act Persons
employed in occupations listed in Schedule III to the Act.

Injuries Compensated under the Act


1. Under the Act injuries are broadly classified into four groups as those
resulting in:-
2. Death,
3. Permanent Total Disablement,
4. Permanent partial disablement &
5. Temporary disablement whether total or partial
6. Contracted occupational diseases.
7. The Act provides for different scales of compensation for different kinds of
injuries.

Personal injury & labiality for compensation under Employees’s


Compensation Act 1923.
Personal injury ordinarily refers to the psychological injury. Personal injury does not
mean only physical or bodily injury, it also includes nervous shock a mental injury
or strain which causes a chill .It is a term broader than bodily injury. In the year 1961
Punjab HC defined personal injury.
In Indian News Chronicle V/S Mrs. Lazarus, a workman employed as an
electrician had frequently to go to the heating room from a cooling plant, was
attacked by pneumonia & died after a short illness of 5 days. The Punjab HC held
that injury caused by an accident is not confined to physical injury & the injury in
the instance case was due to his working & going from a heating room to a cooling
plant as it was his indispensible duty .In case of personal injury caused to a workmen
by an accident arising out of & in the course of employment unless the right to
compensation is taken away u/sec 3(5) , the employer becomes liable to pay the
compensation as soon as the aforesaid personal injury is caused to the workmen .
Employers liability for compensation u/sec 3 of the act , to pay compensation is
limited & is subject to the provision of the Act .u/sub sec(1) of sec 3 the liability of
the employer to pay compensation is dependent upon the following conditions ;
➢ Personal injury must have caused to the workmen.
➢ Such injury must have been caused by an accident.
➢ Such accident must have arisen out of & in the course of employment &
➢ The injury must have resulted in death of the workmen or partial disablement
for a period exceeding 3 days.
The employer shall not be liable to pay compensation in the following cases
➢ If the injury did not result in total or partial disablement of the workmen
for a period exceeding 3 days.
➢ For a period not exceeding 3 days in respect of injury not resulting in death
, or permanent total disablement the employer can plead ;
a. That the workman was at the time of accident in the influence of drugs or
drinks.
b. The workmen wilfully disobeyed an order expressively given , or a rule
expressively framed for the purpose of securing the safety of workmen &
c. That the workmen having known that certain safety guards or safety
devices are provided for the purpose of providing safety of workmen
wilfully disregarded or removed the same.
The employer can succeed only if he is attributable to any one of the
following factors. The employer is also liable to compensate in cases of
occupational decease, u/sub sec (2) of sec 3 of the Act. The list of
Occupational deceases is contained in the Sch III of the Act; the decease
must be contracted due to employment, specified u/schIII. To support any
claim for compensation in case of occupational deceases in part A no
specified period of employment is necessary for deceases in part B, the
employees must be in continuous service of the same employer for a period
of 6 months. In the employment specified in that part & for the decrease in
part C, the period of employment would be such as is specified by the
central govt for each such employment whether in the service of one or
more employers. The contracting of the deceases must & should be
deemed to be injury by accidents arising out of & in the course of
employment.

Accidents arising out of & in the course of employment:

The expression ‘arising out of’, suggest the cause of accident and the expression
‘in the course of ’points out to the place & circumstances under which the accident
takes place & the time when it occurred. A casual connection or association b/w
the injury by the accident arouse out of & in the course of employment. The
employment should have given rise to the circumstances of injury by accident. But
a direct connection b/w the injury caused by an accident & the employment of the
employee is not always essential. Arising out of employment does not mean that
personal injury must have resulted from mere nature of employment; also it is not
limited to the cases where the personal injury is preferable to the duties which the
employee has to discharge. The word ‘arising out of employment’ means that
during the course of employment, injury has resulted from some risk incidental to
the duties of the service which unless engaged in the duty owing to the master it is
reasonable to believe the employee would not have otherwise suffered. There must
be casual relation b/w the accident & employment. If the accident had occurred on
a/c of a risk which is an incident of the employment, the claim of compensation
must succeed unless of course the employee has exposed himself to an added
danger from his own side.
The employee must show that he was at the time of accident engaged in the
employers business or in furthering that business, done by him was not of his own
benefit. In the course of employment refers to the period of employment & the
place of work. It is neither limited to the period of actual labour nor includes the
acts necessitated by the employees employment. An injury received within the
reasonable limits of time & space such as while satisfying thirst or bodily needs,
taking food , or drinking is to be regarded as injury received in the course of
employment .
In Savithri Devi V/S Bharathi Filling Station & others, the appellant’s son
worked as a driver with the respondent, the owner of the tanker & he died while on
duty. Appellant filed petition for compensation but was denied by the respondent
on the ground that there was no connection b/w the work death of the decease. The
commissioner dismissed the application for compensation .The HC held that the
commissioner wrongfully concluded that there is no connection b/w the work &
death of the deceased.
In state of Rajasthan V/S Ram Prasad & others, the employee died due to
natural lighting while working at site place. It was held by the SC that in order that
an employee may succeed in his claim for compensation it is no doubt true that the
accident must have casual connection with the employment & arise out of it but if
the employee is injured as a result of natural force of lighting though it in itself is
has no connection with the employment of the decease, the employer can still be
held responsible & liable if the clamant shows that the employment exposed the
deceased was working on the site & would not have been exposed to such hazard
of lighting had she not be working so .Therefore the appellant was held liable to
pay compensation.
In Trustees port of Bombay V/S Yamunabai,
A bomb was placed in the premises of a workshop by some unknown person; it
exploded & caused injury to the employee. it was held that the employee was not
held responsible for placing of the bomb. & the injury due to its explosion was
caused at the time & place at which he was employed, therefore the injury was the
result of an accident arising out of & in the course of employment.
The rule is that if a particular accident would not have happened to an employee
had he not been employed to work in a particular place & condition, it would be an
accident arising out of & in the course of employment.

Conditions for Receiving Compensation

An employee to whom personal injury is caused by accident is entitled to receive


compensation under the Act if the accident arose out of and in the course of his
employment. That means the accident must occur while the employee is in
employment and it must also be connected with his employment.

Circumstances in which the employer is not liable to pay compensation for


injury to a workman:-
The employer is not liable to pay compensation for injury to an employee on
following circumstances:-

1. If the injury does not result in total or partial disablement of the employee
for a period exceeding three days;
2. If the injury does not result in death of the employee and is caused by an
accident which is directly attributable to:-
– If an employee have been at the time thereof under the influence of
drink or drugs
– The disobedience of the employee to an order expressly given, or to
a rule expressly framed, for the purpose of securing the safety of
workman, or
– The willful removal or disregard by the employee of any safety guard
or other device which he knew to have been provided for the
purpose of securing the safety of employee.

Amount of Compensation

When the injury to an employee results in his death, the amount of compensation
payable to his dependents is an amount equal to 50% of the monthly wages of the
deceased employee multiplied by a figure ranging (depending upon the age of the
deceased employee) or an amount of` 1,20,000, whichever is more. However, if
the monthly wages of the deceased employee exceed` 8000/-, his monthly wages
for the purpose of calculating the compensation shall be deemed to be ` 8,000/-
only (w.e.f. 31st May 2010)

Amount of Compensation Received in case of permanent total disablement

When the injury of an employee results in his permanent total disablement, the
amount of compensation he is entitled to receive is an amount equal to 60% of
the monthly wages of the injured employee multiplied by a figure ranging from
(depending upon the age of the injured person) or an amount of ` 1,40,000/-
whichever is more. However, if the monthly wages of the injured employee
exceed ` 8000, his monthly wages for the purpose of calculating the
compensation shall be deemed to be ` 8,000/- only. When the injury of an
employee results in his permanent partial disablement, the amount of
compensation he is entitled to receive is a percentage of the compensation
payable in the case of permanent total disablement. The percentage is
determined with reference to the extent of loss of earning capacity caused by the
injury and is a lump sum payment.

In case of temporary Disablement

When the injury of an employee results in his temporary total disablement or


temporary partial disablement he is entitled to receive compensation in the form
of a half-monthly payment. The amount of a half-monthly payment is determined
with reference to the monthly wages the employee was drawing at the time of
the injury and is equal to 25% of the monthly wages of the employee. The
maximum period during which the employee can receive compensation for
temporary total disablement or temporary partial disablement is five years.

In case of Fatal Accidents

Payment of compensation in respect of employee whose injury has resulted in


death is not to be made directly to the dependents of the employee. In such case
the employers is required to deposit the amount of compensation with the
Commissioner for Employee’s Compensation. The Commissioner will then
apportion the amount among the dependents of the employee. Schedule III part
A, employer shall be liable to pay compensation if the accident or injury arises out
of & in the course of employment. Part B, where the service of the employer in
whose service he has employed for a continuous period of 6 months in any
employment specified in part B of the schedule. The employer shall be liable to
pay compensation to an employee where an employee contracts any decease
after he has heft his employment if the following conditions.

1. If an employee has served the employer according to part B of the sch III,
for a continuous period of 6 months.
2. If the employee has after cessation of his service contracted any disease
specified in part B of the schedule.
3. If it is proved that such disease arose out of employment.
Part C of Sch III,
1. If it is proved that the employee has served under one or more employers in
any employment specified in part C of the Sch III for such continuous period as
specified by the Central Govt. If he has after cessation of his service
contracted any disease specified in part C of Schedule .
2. If he has after cessation of his service contracted any disease specified in
part C of sch III as an occupational disease to that employment.
3. If it is proved that such disease arose out of employment.
The contracting of the disease shall be deemed to be an injury by accident
within the meaning of this sec. Sec 3(2-A) in case of employment mentioned in
Part C of the Sch III where there are more than one employer sub sec 2-A of
sec 3 authorizes the commissioner to fix up the extent of responsibility of
different employer in respect of amount of compensation.
The Central or the State govt after giving notification in official Gazette not
less than 3 months notice of its intention to do so add any description to the
of employment to the employments specified in the case of employments so
added the disease which shall be deemed under the provision as an
occupational disease Sec 3(4), the employer is liable to pay compensation only
if the disease can be directly attributed to a specific injury by accident arising
out of & in the course of employment. Exception to this, are cases covered
under sub sec (2) (2-A) & (3) of sec 3.
Compensation under Agreement:
In Roshan Deen V/S Preeti Lal(2002, I LLJ 465 SC)
An agreement by the employee to relinquish any right to compensation for
personal injury arising out of & in the course of employment would be null &
void. The removal or reduction of liability of a person to pay compensation
under the act by any such agreement is not permitted. In this case it was held
that the order of the commissioner dismissing claim of the injured employee
as settled by the agreement was obtained by fraud & as such the matter was
directed to be heard by the commissioner without further delay.
Alternative remedy u/sec 3(5) : no claim can be maintainable by the
employee in respect of any injury if he has already instituted a civil proceeding
for damages in respect of same injury against the employer or any other
person. Also no suit for damages shall be instituted by the employee in any
court of law in respect of any injury in two circumstances.
1. If the employee has made a claim to compensation in respect of such injury
before a commissioner.
2. If the amount of compensation in respect of injury has been settled an
agreement b/w the employer & the employee in accordance with the
provisions of the act.
In case of an injury caused by an accident an employee has following
alternative remedy.
1. He can claim compensation u/the act.
2. He can claim damages in torts.
3. He can claim under employer’s liability Act.
Sec 3(5) imposes a bar on the recovery by the employee of compensation
twice for the same injury. It is not only the success to a claim that bars a
subsequent claim but also if the employee has brought an unsuccessful
Claim against his employer he would be debarred from making any alternative
claim in respect of the same injury.
Method of calculating of wages: lump sum compensation in case of
permanent disablement & half monthly payments in case of temporary
disablement is paid according to the wage group to which the employee
concerned belongs.

The monthly wages would be calculated as follows:

1. Where the injured employee has been in service of an employer during the
continuous period of not less than 12 months previous to the accident the
monthly wages of the employee shall be one twelfth of the total wages which
have fallen due for payment to him by the employer in last twelve months of
that period.
2. If the injured employee has been in continuous service of an employer for
less than one month than monthly wages of that employee shall be average
monthly amount which during the twelve months immediately preceding the
accident was being earned by an employee employed on the same work.
If there was no such employee, the average monthly amount which was being
earned by an employee employed on similar work in the same locality will be
monthly wages of the injured employee.
3. In other cases including those in which it is not possible for want of
necessary information to calculate the monthly wages under clause (b) . The
total monthly wages of a worker is determined by multiplying the daily wages.
In order to protect the interest of the dependents in case of fatal accidents
the following provisions are made.
a. All cases of fatal accident are to be brought to the notice of the
commissioner.
b. If the employer admits his liability the amount of compensation payable is
to be deposited with the commissioner.
c. If the employer admits the liability & at the same time there are grounds
for believing compensation to be payable the dependents get the information
necessarily to enable them, if they should make a claim or not .

A sub-contractor may indemnify his contractor if he has had to pay


compensation either to a principal or to the workmen.
The commissioner may deduct a sum of Rs 50 from the amount of
compensation & pay the same to the person who has incurred funeral of the
deceased workmen.
Principles governing compensation
• The purpose of the workmen’s compensation Act is not to provide for
solutions to the workmen or his dependents but to make good the actual
losses suffered by him.
• Compensation is in the nature of insurance of the workmen against certain
risk of accident.
• The rule that in order to make employer liable to pay compensation death
or injury must be the consequence of an accident arising out of and in the
course of employment is depended on the following four conditions.
DOCTRINE OF ADDED PERIL
This doctrine is related to the liability of the employer to pay compensation
to the workmen. The principal of added peril means that if a workmen
while doing the employers work, trade or business, engages himself in
some other work which he is not ordinarily, required to do under the
contract of employment under the contract of his employment & which act
involves extra danger, he cannot hold his master responsible for his act.
Also for the risk involving in his employment.
Therefore doctrine of added peril comes to the rescue of the employer in lieu
of compensation. The compensation means compensation u/sec 2 (1)(c) of the
act . Compensation u/this act is not the same thing as that of damages in torts
The principles of liability to pay compensation & damages in torts is based
differently. The defense of volenti non fit injuria though available in any
proceeding u/this act. Similarly the defense of contributory negligence,
inevitable accidents or negligence of co-workers are not available in a
proceeding for compensation. Once the compensation is determined by the
commissioner on the basis of medical certificate issued by the medical
practitioner it cannot be subsequently changed.
Sec 18, the state govt may by notification in official gazette require any
employer or class of employers to submit returns with full particulars.
Like nu of employees injured in respect of compensation has been paid by the
employer during the previous year.
2. The amount of compensation paid during the previous year.
3. Any other particulars relating to compensation.
Bar of jurisdiction to civil court u/sec 19(2)
In Kantha mills V/S Bombay St (AIR 1946 SC 194) in this case the SC has
barred the jurisdiction of civil courts to matters entertainable before the
commissioners. Sec 23, Powers & procedures of the commissioners: the
commissioner is authorized u/sec 23 of the act to exercise powers under CPC
for the following purpose,
1. For the purpose of taking evidence on oath,
2. For enforcing the attendance of witness,
3. For compelling the production of documents & material objects.

The commissioner is deemed to be a Civil Court for the purpose of sec 195 & of
Ch XXVI of Crpc 1973. The commissioner may vary the procedure prescribed by
the rules & orders as may be necessary or proper to adopt them in the matter
before him. He may also ignore such rules of procedure provided he is satisfied
that the interest of the parties will not be prejudicially be effected.
The effect of sec 23, CPC & not others have made applicable to the proceedings
under the act. The commissioner u/the act has got no power to issue a
commission to examine witness & answer given by the witness to integoteries
furnished to him &cannot be received as legal evidences. It is not obligatory, but
the commissioner may if he thinks it is necessary to hold inquiry & he feels that
there is no case of the relief claimed he may dismiss the application with a brief
statement of his reasons for doing so. Sec 30 provides for Appeals from the orders
passed by the ECA, commissioners, and this sec provides for restricted Appeals
from the orders of the commissioner u/this act.
No Appeal shall lie from the orders of the commissioner unless the following
conditions are fulfilled,

1. A substantial question of law is involved in appeal.


2. Except the order refusing to allow the redemption of a half monthly
payment.
3. Parties have not agreed to abide with the decision of the commissioner.
4. The order of the commissioner does not give effect to an agreement.
Arrived at b/w the parties.
5. In case of an appeal against an order awarding compensation the certificate
issued by the commissioner is required to be accompanied with the
memorandum of appeal.
6. Appeal is to be filed within 60 days from the date of the order; limitation
would begin from the date of the date the party is informed of the order.

ESI ACT 1948

Estbnt of ESI Corporation: the corporation was established u/sec3 of the Act
by the Central Govt, by the issue of the notification in official Gazette. The
corporation is a body corporate having perpetual succession, common seal, &
shall sue & be sued.
Constitution of the corporation: this corporation consists of members
representing the C&S govt, parliament ,medical council, employers &
employees representation .
The chairman, Vice-Chairman of the corporation are nominated by the central
govt, the Director General of the corporation will be an ex officio member. He
is vested with the powers to manage the affairs of the corporation, the other
members of the corporation are chosen as follows;
1. Not more than 5 members nominated by the central govt.
2. One person nominated by the state govt of each state in which the Act is in
force.
3. One person nominated by the central govt to represent the Union
territories.
4. 5 Persons representing the employers to be nominated by the Central Govt
in consultation with the employer’s organization.
5. 5 Persons representing the employees’ organization.
6. 2, persons representing medical profession to be nominated by the Central
govt after consulting the organization of medical practitioners.
7. Three members of the parliament of whom two shall be from the lok Sabha
& one from the Raj Sabha who are elected by the both Houses.
The Chairman, vice-chairman, representatives of the Central govt & the State
govt & the Union territories holds office during the pleasure of the govt
concerned whereas the representatives of the employees, medical profession,
& parliament are to hold office for a period of 4yrs from the date on which
their elections are notified.
Further they may continue to hold office even after the expiry of their tenure
until the nominations of their successors are notified.
Powers of the corporations: the corporation is constituted from among the
members of the corporation as follows:
1. To promote the measures for the improvement of the health & welfare of
the insured person.
2. To promote the measures for the rehabilitation & re-employment of the
insured person who are disabled or injured.
3. To incur expenses in respect of such measures from its funds up to a limit
prescribed by the central govt.
STANDING COMMITTEE sec8 :
This is constituted form the members of the corporation,
1. A chairman nominated by the Central govt.
2. Three members of the corporation nominated by the central govt.
3. Three members of the corporation representing three state govts as
nominated by the central govt.
4. 8 members elected by the corporation from amongst its members.
5. Three representing employers, three representing employees.
6. One representing medical profession &
7. One representing the parliament.
The chairman & the representatives of the central & the state govt hold office
during the pleasure of the central govt .
The other members of the committee elected by the corporation hold office
for two years from the date on which the election is notified.
The member may continue even after the expiry of his tenure till his successor
is notified.
Terms of the standing committee , sec 9 the chairman , three members of the
corporation appointed by the central govt & three members of the
corporation representing the state shall hold office for a period of two years
from date on which the elections is notified . Any member can continue to
hold office after the expiry of the tenure of two years until the election of his
successor is notified. The members of the standing committee shall cease to
hold office the day he ceases to be the member of the corporation.
Medical Boards sec 10:
This was set up by the central govt to advise the corporation on medical
questions, which consists of the Director General of the Health Services as its
official Chairman, Deputy Director General, Medical Commissioner of the
corporation, 3 members representing the employers nominated by the central
govt & one representative from every state nominated by the state govt .
Deputy Director General holds office during the pleasure of the Central Govt,
The representatives of the state Govt holds office during the pleasure of the
State Govt. The representatives of the employers, employees & medical
profession holds office for four years from their date of nomination.
The powers & Duties of the Council: the council is to advice the corporation &
the standing committee regarding the matters relating to administration of
medical benefit certification for the purpose of the grant of benefit & other
concerned matters. They can enjoy such powers & performs such other duties
as prescribed in relation to the administration of medical benefits, in
connection to medical treatment & assistance. The council also performs
other duties in connection to medical treatment & assistance as specified
regarding the constitution. Eg . They are entitled to advise the corporation
regarding the constitution, set-up, duties & powers of regional & local benefits
council.
They also make recommendations to the corporation regarding the skill &
nature of medical benefit provided at the Hospitals, Dispensaries, etc.
The medical board formulates for the use in connection with medical benefit.
Medical certification includes the procedure for such certification, measures
for improving Health & welfare of injured persons & rehabilitation, re-
employment of injured person, disabled or injured. They also advise the
corporation on any matters relating to professional misconduct of any medical
practitioner employed for the purpose to provide medical benefit u/the act.
Central Govt is empowered to supersede the corporation or the standing
committee on Certain grounds like
1. If the corporation or the committee continuously makes default in
performing the duties imposed on it by or under the Act.
2. If in the opinion of the Central Govt the corporation or the standing
committee abuses the powers invested on it.
Supersession is possible only in consultation with the corporation.
The Cgovt may give reasonable opportunity to the corporation or the standing
committee to show cause why it should not be superseded (replace) . When
the notification of superseding the corporation or the standing committee is
published by the central govt all the members of these bodies shall be
deemed to have vacated their office from the date of publication of the
notification.

On such supersession the C govt may take immediate action on the by nominating
or electing new members of such body. U/sec 11 of the ESI Act the members of
the Medical Council may resign his office by notice in writing to the Central Govt.

Cessation of membership is dealt under sec / 12,

1. The member of the corporation or the standing committee & the Medical
Council may cease if the member fails to attend 3 consecutive meetings.
2. If any member has ceased to represent such employees, employers or the
Medical profession the Central Govt, may by official Gazette declare that with
effect from such date as may be specified therein such a person may cease to
be the member of the corporation , standing committee, & the medical
council .
3. A person may cease to be the member of the council if he ceases to be the
member of the parliament.

Disqualification:
A person shall be disqualified for being chosen as or for being a member of
the corporation, standing committee, or medical council;
1. If he is declared to be unsound mind by the competent court.
2. If he is undercharged insolvent.
3. If he has direct or indirect interest involvement in the subsisting contract,
with or any work done for the corporation.
4. If he has been convicted of any offence.
The creation of vacancy can be filled up by nomination or election of the
members’ u/sec 14 of the Act.
The meetings of the corporation, the standing committee, & the medical
council , shall be conducted at such places as may be specified by the Act u/
sec 20 .
Duties & powers of the Medical Benefit Council;
1. The medical council shall advise the corporation & the standing committee
on matters relating to the administration of the medical benefit, the
certification for the purpose of the grants of the benefits & other
connected matters.
2. This council may have such powers & perform such duties of investigation
as may be prescribed in relations to complain against medical practioners.
In connection with medical treatments & attendances.
3. 3. The medical council may conduct such other powers & duties in
connection with the medical treatment & attendance as may be specified
by the regulation.
4. Sec 26 of the Act deals with the funds of ESI,
5. All the contributions paid u/the act & all other money received on behalf of
the corporation shall be paid into the ESI funds, this shall be held &
administered by the corporation for the purpose of the act.
u/sub sec(2) the corporation may accept grants, donations, gifts from the
central or the state govt, local authority or any individual or body whether
incorporated or not .All money accruing or payable to the ESI funds shall be
paid into the RBI or any such bank that may be approved by the Cgovt.
The account may be operated by such persons as may be specified by the
standing committee.
Sec 28 of the act deals with various purposes on which the fund may be spent.
The expenses detailed in this provision are subject to the provision of the act.
& the rules made by the central govt.
Sec 28A, deals with the administrative expenses, ie the percentage of the
income of corporation which may be spent for such expenses shall as may be
prescribed by the C govt.
Sec29, holding the property movable & immovable, it can also sell or transfer
the property acquire the property etc the corporation can also make
investment as according to the directions of the central govt.
u/ sec 32 the corporation shall make & prepare its budget & shall also make
estimate of expenditure proposed to be incurred during the following year.
Sec 33 & 34 deals with the maintenance of accounts & audits .
The corporation shall submit an annual report of its works done to the central
govt u/sec 35 .
The budget, audit report, annual report is to be placed before the parliament
u/sec 36 of the act.
CONTRIBUTIONS SEC (38-45-I)
All employees to be insured u/sec 38 , there are
Two conditions; 1. He must be an employed in a factory or an estbnt, 2.
Contributions must be paid or payable to him u/the act.
In Hyderabad Asbestos V/S Employees Insurance Court(AIR 1978 SC 356)
here the SC held that the words all employees in factories do not mean the
person employed in the factory only but also includes persons employed in
connection with the work of the factory.
He employees that are required to be insured are not restricted only to those
employed in factories defined u/sec2 (19) of the act. Contributions are been
delth u/sec 39 of the act, the contribution payable under this act in respect of
the employers is called the employers contribution & in respect of the
employees it is called as employees contribution .
The contribution payable u/this act in respect of an employee shall comprise
the contribution partly paid by the employee & partly paid by the employer .
The rates so prescribed shall not be more than the rates which were in force
immediately before the commencement of the act.
The duration of the contribution shall fall due on the last day of the wage
period. Where the employee is employed under more than one employer
during the same wage period, the contribution shall fall due on such day as
may be specified by the regulations.
According to sec5 (a) if any contributions payable is not paid by the principle
employer on the date on which such contribution has become due, he shall be
liable to pay simple interest at the rate of 12% per annam or at such higher
rate as may be specified in the regulations .Provided the higher rates of
interest specified in the regulations shall not exceed the lending rates of
interest charged by the scheduled bank.
In Goetze(India)Ltd V/S ESI corporation(2008 III LLJ 356(SC) , in this case it
was held that the payment of interest on delayed payment of Contribution is
statutory & therefore it cannot be waved. There is no question of settlement
or compromise in the matter of payment of interest. Acc to sec5 (b) any
interest recoverable under cl(a) may be recovered as an arrears of land
revenue or u/sec45-C to sec 45-I
In employees state insurance corporation V/S Distilleries Chemical Mazdoor
Union & others(2006 III LLJ 349) , The appeal before the SC, it observed that
the HC was justified in passing the judicious order by directing the employer &
employees to make contributions for future & they should not bear any
liability for past in as much as the employees had not availed of any ,medical
facilities from the ESI corporation & it was further pointed out that the stay
against deductions of contribution had continued for the period of 18yrs till
the disposal of the petition . Passing the final order directing the payment of
contribution from date of judgment did not amount to postponing
enforcement of notification.

Sec 41 recovery of contribution from the immediate employer: the principle


employer has the right to recover contributions of the employee & the
employers’ contribution by or through an immediate employer.
Sec 43, methods of payment of contribution, as prescribed under the act.
ESI Benefits sec 46
1. Sickness.
2. Maternity.
3. Disablement.
4. Medical.
5. Dependents.
6. Funeral.

Sickness sec 49: it is form of periodical payment to any insured person, provided
his sickness is duly certified by the appointed medical practitioner or any such
person having such qualification. Where there is a provision made under the
standing orders leave for sickness, the employer cannot require the employee to
seek sickness benefit provided u/the act.
In Management of Dioccsan Press V/S Labour Court Madras(1982 I LLJ 451
Madras) it was not possible to accept the contention that since the employee has
received sickness benefit u/the act, he is not entitled to receive the wages for the
period during which he was on sick leave. But the employer is entitled to deduct
the benefit received by the employee from leave salary payable to him.

Maternity sec 50 : this benefit in the form of periodical payment available to an


insured women it is payable in cash.

1. Confinement.
2. Miscarriage.
3. Sickness arising out of pregnancy.
4. Premature birth of child.
The grounds of eligibility, of an insured women to such payments must be
certified by the medical officer as provided in the act.
Disablement 51: any insured person shall be entitled to periodical payment
available to the insured workmen. It is payable only when the injury is
certified by medical officer.
In cases of disability the payments may be given at such rates for such period
as prescribed by the Central govt.
Sec 51-A presumption as to accident arising out of & in the course of
employment, if the accident arose in the course of employment of an
employee, it would be presumed that accident have arisen out of
employment.
Sec 52-B accidents happening while acting in breach of regulations,
Accidents arising out of & in the course of employment. Unless,
1. The employee is at time of accident acting in contravention of the provision
of any law applicable to him or
2. The employee is acting in contravention of any orders given or on behalf of
the employer or
3. He is not acting with the instruction of his employer.
Sec51-C accidents happening while travelling in employers transport:
For claiming u/the provision & conditions for holding the employer
responsible are as follows,
1. An employee must be travelling by the vehicle with express or implied
permission of his employer.
2. He must be going to or coming from his place of work.

3. The vehicle must be operated by or on behalf of his employer or some


other person under an agreement.

4. The vehicle is not being operated in the ordinary course of public transport
service.

Sec 51-D accident happening while meeting emergencies:

Such are considered to be accidents deemed to have arisen out of & in the
course of employment. The doctrine of added peril does not come to the aid
of the employer from compensating.

Sec 51-E, accidents happening while commuting to the place of work & vice
versa: Such shall be deemed to have arisen out of & in the course of
employment provided there is a nexus b/w the accident & work.

Dependents benefit sec 52: on the death of the insured employee during work
the rate of Such payment subject to conditions.

In ESI Corporation V/S Sayeeda Khatoon Donawala & others (1995 I LLJ 173)
in this case a workmen standing in a queue waiting for the bus provided by the
employer to reach the factory was run over by the same bus. It has held that
the workmen sustained employment injury & the doctrine of national
extension was applicable. Recovery of compensation from the owner of the

Motor vehicle or from the Insurance Company under the Moter Vehicle Act will
not absolve(declare) the employer from making the payment u/sec52 of the act.

Bar against receiving compensation or damages u/the law sec 53:

Prohibition against the insured persons or his dependents from receiving or


recovering any Compensation or damages u/the act.

1. The workmen compensation act.


2. Any other law for the time being in force or otherwise from ;
a. The employer.
b. From any other person.
In National Insurance Company ltd V/S Hamida Khatoon & others(2010 SC I
Lab 323)
It was held that the position in law was that the right of workmen who was an
insured employee under ESI Act to claim compensation in respect of
employment injury U/WCAct 1923 or any other law was taken away by sec 53
of this act, hence the award of compensation made on application by the
respondent u/sec 173 of the Motor Vehicle Act could not be sustained . The
SC directed that the entitlement should be worked by tribunals upon taking
note of sec 53 of this act.
In Bhajan Ram V/ESI corporation(1971 Puj LR 641) the dependents to claim
benefit u/sec 53 is independent & the mere fact that some amount of
compensation has been paid to him u/ workmen’s compensation Act would
not disentitle him from realizing the dependents benefit u/the act.

Sec 63 persons not entitled to receive benefits in certain cases:


No person can be entitled to sickness benefit or disablement benefit for
temporary disablement on any day on which he works or remains on leave or
on a holiday in respect of which he receives wages or on any day on which he
remains on strike.
Sec 64, the recipients of sickness or disablement benefit to observe
conditions.
1. Persons shall remain under medical treatment at a dispensary or hospital
2. He shall not, while under treatment do anything which might retard or
prejudice his chance of recovery.
3. He shall not leave the area of medical treatment, without the permission of
the Medial officer.
Sec 65, Benefits not to be combined :this section lays down a prohibition
against receiving two benefits at a time. The insured persons shall not be
entitled to receive for the same period following combinations of benefits,
1. Sickness & maternity.
2. Sickness & disablement.
3. Maternity & disablement.
Sec 68, corporation’s right where a principle employer fails or neglects to pay
contribution: an insured employee is entitled to receive full benefits under the
act. If the principle employer fails to pay the contribution either in full or in
part the right of the insured person to get full benefit is in no way effected .
In case of failure or neglect on the part of the employer to pay contribution, if
the corporation
Is satisfied that the contribution should have been paid by the principle
employer the corporation has the following powers.
1. Either the corporation can recover twice the amount of contribution which
the employer failed to pay.
2. The corporation can recover the difference b/w the amount of benefit paid
& the amount which he would have received on the basis of contribution.

ADJUDICATION OF DISPUTES & CLAIMS:

Constitution of ESI sec74 authorizes the state govt to constitute a ESI court, it
shall be constitute by a notification in the official gazette, the local area within
which the court shall exercise its jurisdiction will be specified in the notification.

The number of judges that shall constitute the court shall be determined by the
state govt. A judicial officer or legal practitioner of five years standing is qualified
as the judge of the ESI court. The state govt may appoint the same court for two
or more local areas , or two or more ESI courts in the same local areas, where
there is more than one court in the same local area the distribution of work may
be regulated by General or special order of the state govt.

In Jiyaji Rao Cotton Mills V/S ESI court (AIR 1962 Mad 340), in this case following
two questions arose.

1. Is it necessary to constitute an ESI court first & then appoint the judges to
discharge the functions of the court.

2. Whether the state govt was bound to frame rules under sec 75 of the act.
It was held that there is nothing in the general law or in the special provisions
of sec 75 & 96 suggesting that it is necessary for the state govt to have
constitute an ESI court first & there after appoint an officer as a judge to
discharge the functions. Further the ESI court is not empowered to frame rules
u/sec 96 before it could constitute ESI court in exercise of powers u/sec 74.

Sec 75 provides for matters to be decided by ESI courts. Any question or


dispute subject to the provisions of sub-sec (2-A) relating to the following,
matters shall be decided by the ESI courts.
1. Whether the person is an employee or is liable to pay ESI contributions.
2. The rate of wages or average daily wages for the purpose of the act.
3. Rate of contribution payable to the principle employer in respect of the
employee.
4. The person who is or who was the principle employer in respect of any
employee.
5. The right of any person to any benefit & the amount & the duration of the
benefit.
6. The direction issued by the corporation u/sec 55-A on a review of any
payment of dependents benefit.
7. Any difference b/w the employer & the corporation, or the immediate
employer.
Any claims also under the act subject to the provisions of sub-sec (2-A) of the
act.
In regional director ESI Corp V/S S. Saravanam(1991 II LLJ 494 Karn), in this
case it was held that where injury suffered by an insured person is not one
specified in the schedule to the act, the Medical Board , Medical Tribunal or
ESI has the power to determine the extent of reduction in the earning capacity
for the purpose of the payment of disablement benefit.
Sec75(3) bars the jurisdiction of the Civil Court to deal with any matter which
is to be decided by the ESI courts.
The sec 74 & 75 clearly state that the insurance court is to be established first
& the jurisdiction of the civil court is ousted in consequence of the
establishment of that court.
Sec76, institution of the proceeding shall be instituted in the ESI courts, for
the local area in which the insured person was working at th time the question
of dispute arose.
Sec 77, commencement of proceeding, any proceeding before an Employees
Insurance Court shall be commenced by an application. Every such application
shall be made within three days from the date on which the cause of action
arose. Particulars to be furnished with the application shall be prescribed by
the state govt in consultation with the corporation. The rules shall be framed
by the govt of each state.

UNIT V
PAYMENT OF WAGES ACT 1923
The need to protect the wages earned by the worker had been felt from the
earlier years of twentieth century but it was as early as 1925 that a bill called
as “Weekly Payment Bill”, was for the first time introduced in the legislative
assembly. This bill was withdrawn on the assurance of the govt that the
matter was under the consideration of the govt. Existence of unfair labour
practices like irregular deductions, lack of wage period, double deductions
were some of the unfair labour Practices. Hence desirability of regulating the
extent of fines & other deductions through the legislation was felt by the govt
in 1926 Royal commission was appointed for giving their recommendations.
This commission was of the opinion that legislation regarding deductions from
wages & fines was essential.
Hence bill of payment of Wages Act, based on the recommendation of the
Royal Commission on Labour was introduced in the Assembly, in 1933, but
could not take the shape of the act cause of dissolution of the assembly; the
PW Act was passes in the year 1936 & came into force in the year 1937.
The object of the act is in two fould,
1. Date of payment of wages &
2. Deductions from wages whether as fine or otherwise & to ensure payment
of wages to the workmen.
Applicability of the act. It applies to the whole of India, except JK is omitted
from 1971. It came into operation on 23rd Mar 1937.
1. Persons employed in factories.
2. Persons employed in railways appointed directly & indirectly.
3. Persons employed in industrial or other establishments as specified u/sub cl
a-g of clause ii(industrial & other estbnts) of sec 2 of this act.
Definition of wages u/sec2(vi) of the act, means all remuneration, whether by
salary or allowance or otherwise expressed in terms of money or capable of
being so expressed which would in terms of employment expressed or implied
were fulfilled, be payable to a person employed in respect of his employment
or of work done in such employment .
Wages includes,
1. Any remuneration payable under any award or settlement b/w the parties
or order of court.
2. Any remuneration to which the person employed is entitled in respect of
OT or Holidays or any leave period.
3. Any additional payments to be made under the terms of employment.
4. The definition is not confined to remuneration payable under the
agreement or contract . The amended definition would apply to all kinds of
remuneration whether arising from contract, an award, a settlement or
under the statute.
5. . Any sum by reason of termination of employment of persons employed is
payable under law.
6. Any sum to which the persons employed is entitled
The definition is not confined to remuneration payable under the
agreement or contract . The amended definition would apply to all kinds of
remuneration whether arising from contract, an award, a settlement or
under the statute.
5. Any sum by reason of termination of employment of persons employed
is payable under law.
6. Any sum to which the persons employed is entitled
Under any scheme framed under any law for the time being in force.

Wages does not includes,


1. Any bonus, under, the bonus of wages act.
2. Value of any house accommodation, water, or any other amenity or of any
services which is excluded from the computation of wages.

3.Any contribution paid by the employer to any pension or provident fund &
interest which may have occurred.

4. Any travelling allowances or travel concessions.

5. Any sum paid to the employed person to defray special expenses .

6. Any gratuity paid on the termination of the employee.

After the payment of bonus act 1965 came into existence, payment of bonus has
become implied, it does not depend upon the profits & therefore it comes under
the category of remuneration, viewed in this light the wages as general terms
would include bonus.

The retrenchment compensation payable to the employees u/sec 25-F (b) of ID


Act are sum payable to the employee on the termination Of the services & are
therefore wages within the meaning of Payment of wages act 1936.

In St of Rajasthan & Others V/S Bhavani Shankar & others(2005 I LLJ 1011 Raj),
In this case it was held that the remuneration payable under the Labour Courts
award setting aside termination of workmen’s services are therefore wages . Any
claim for it was held to be maintainable under the payment of wages act, & it was
further held that the workmen could avail remedy under the payment of wages
act or ID Act 1947.

Amount of lay-off compensation cannot be termed as wages u/the act.

Sec 3, of the act Responsibility of the Employer to pay wages.

Cl(1) every employer shall be responsible for payment of all wages required to be
paid under the act to persons employed by him & in case of persons employment.
1. In factories if named as managers,
2. Person responsible to the employer for supervision & control of Industry &
other estbnts.
3. In railways if a person is a railway administrator as employer
4. A contractor.
5. In other cases person designated by the employer as a person responsible
for complying the provision of the act.

The persons so named the persons responsible to the employer, the person so
nominated or persons so designated shall be responsible for such payments.

Fixation of wages period u/sec 4, the person responsible for payment of wages
u/sec3 shall fix wage periods in respect of which wages shall be payable such
wage period shall not exceed one month.

Sec 5, time of payment of wages, if the number of persons employed upon in any
railway, factory, industry, or other establishment is less than 1000 persons wages
shall be paid before the expiry of seventh day after the last day of wage period.

The wages of every person employed in railways, factory, or industry or any other
establishment shall be paid before the expiry of tenth day of the last day of wage
period in respect of which the wage is paid. Provided that in the case of persons
employed in dock, wharf or jetty or in mines, the balance of wages founded due
to completion of the final tonnage, loading unloading of ships & wagons, such
shall be paid with wages before the expiry of seventh day of such completion.

In case of termination of services of an employee the wages earned by him shall


be paid before the expiry of second working day from the day on which the
employment is terminated. In case of termination of services due to closure of
estbnt the wages should be paid before the expiry of second day from the day on
which his employment is terminated. All payments shall be paid on the working
days. Sec5 (3) exemptions by the state govt, conditionally with the consent of the
central govt from the day on which the employment is terminated. In case of
termination of services due to closure of estbnt the wages should be paid before
the expiry of second day from the day on which his employment is terminated.
All payments shall be paid on the working days.

Sec5 (3) exemptions by the state govt, conditionally with the consent of the
central govt .

Sub sec (2) enumerates the deductions that are permissible & shall be made in
accordance with the act.

What are deductions?

1. (1) states that deductions are those that every payment made by the
employed person to the employer or his agent shall for the purpose under this
act be deemed to be deduction from wages.
2. 2. (2) loss of wages resulting from imposition, upon a person of the following
penalties shall not be deemed to be deductions from wages. Eg. Withholding
of increments, reduction to a lower post, suspensions.
3. Different types of deductions
4. Permissible deductions,
5. Deductions made from the wages only according to the act.

1. Deductions from absence of duty, sub cl(b) of sec 7(2) permits the deduction
for absence from duty .

2. Deductions for recovery of loans made from any fraud,

Sub Cl (f) of sec7 (2) provides for deductions from wages for recovery of loans
made from any fraud constituted for the welfare of the labour in accordance with
the approval of the govt.

(g) Monthly installments recovery of loans

(h) Deductions to be made by the order of the court or competent authority for
doing so.

(i) Conditions for deductions to be made before making any deductions for
subscriptions to & for repayment of advances from any provident fund,
from the wages of the employed person,
Condition being that PF should be recognizable
And approved as according to the state govt

Such PF should be in accordance to the PF Act.

(j). Deductions for payments to co-operative societies approved by the state govt.

(k). Deductions may be made with the written authorization of the person
employed for payments.

(l) Deductions may be made for payments of Insurances & Fidelity Guarantee
Bonds.

3. Deductions for recovery of losses.

Permissible total deductions: sec 7(3) the total deductions prescribed under sub
sec (b) of the section exceeding the limit of 75 or 50% could be recoverable in
such manner as prescribed.

Sec 14, inspectors, it makes provision for these kind of inspectors which are as
follows,

1. Inspectors under the Factories appointed under factories act sec 8.

2. In respect of persons employed upon a railway otherwise than in factory to


whom this act applies, the state govt is empowered to appoint inspector for
the purpose under the act.

3. The state govt may appoint such other persons as it thinks fit as inspectors
for the purpose under the act.

Powers of the inspector u/act 14(4) lays down that that an inspector may,

1. Make such examination & inquire as he thinks fit in order to ascertain under
the provisions of this Act or rules.

2. Enter inspect & search any premises of the any railway, factory, or industry,
or other establishment at any reasonable time for the purpose of carrying out the
object of the act. They have power to take any assistance which they think
necessary.
3. Supervise the payment of wages to person employed upon any railway or in
any factory or industrial or other establishment.

4. Require by the written order the production at such place, as may be


prescribed of any register or record maintained in pursuance of this act.

5. Seize or take such register or documents or portions thereof as he may


consider relevant in respect of the offence under this act which he has reasons to
believe.

Exercise such other powers as he may consider relevant in respect of an offence


under this act.

6. Such other powers as may be prescribed.

Sec 14-A, employer to make facilities to an inspector for making entries,


inspection, supervisions, or inquiries u/the act.

Sec 15 authority to hear claims, the appropriate govt may by notification in


official gazette appoint,

1. Any commissioner for workmen’s compensation.

2. Any officer of the central govt exercising functions as,

a. Regional commissioner

b. Asst labour commissioner with two years of experience.

3. Any other officer of the state govt not below the rank of asst labour
commissioner with two years of experience.

4. A presiding officer of any labour court or industrial tribunal constituted under


the Industrial Disputes Act or any other law corresponding, relating to
investigation & Settlement of industrial dispute .

5. Any other officer with experience as a judge of a civil court or a judicial


Magistrate.
As the authority to hear & decide for any specified area all claims arising out of
deductions from the wages or delay in payment of wages of persons employed or
paid in that area, including to all matters incidental to it.

The st govt is further empowered to appoint more than one authority for the
same specified area, where it so appoints it shall by general or special orders
provide for distribution or allocation of work to be performed by them under the
act.

Sec 15(3) Procedure, it states that any authority entertaining the application
u/sec15 (2), the authority shall hear the applicant & the employer or other
persons responsible for the payment of wages u/sec3 & also give him an
opportunity of being heard. After such other enquiry if any as may be necessary
may without prejudice to any other penalty to which such employer or other
person is liable under this act. Direct the refund to the employed person the
amount deducted or the payment of delayed wages together with the payment of
such compensation as the authority may think fit. Provided that a claim u/act
shall be disposed of as far as practicable within a period of three months from the
date of registration of the authority, this could be extended by both the parties to
the dispute agreed for bona fide reasons.

sec 17 , Appeals , an appeal may be preferred from the following orders or


directions of the authorities, within 30 days from the date on which the order or
direction was made in presidency towns before the courts of small causes &
elceware the District court within whose the juriction the industrial establishment
is situated.

Sec 17-A, conditional attachment of property of employer or other person


responsible for payment of wages.

1. u/sec 15(c)
2. When the responsible for the payment of wages u/sec3, is likely to evade
payment of any amount that may to be paid u/act.
3. Where the authority or the court is of the opinion that the ends of justice
would be defeated by the delay.
Sec 18, powers of the authorities appointed u/sec 15, they shall have all the
powers of the civil court, under CPC.
1. Take evidence.
2. Enforcement of attendance of witnesses
3. Compelling the production of documents.

FACTORIES ACT 1948:


Factory means any premises including precincts thereof;
Where 10 or more workers are working, or were working, on any day of the
preceding 12 months & in any part of which a manufacturing process is carried out
Or where 20 or more workmen are working or were working on any of the preceding
12 months & in part of which the manufacturing process is carried out without the
aid of power is called as a factory.
In state of Bombay V/S Ardeshri Harmosji Bhiwandiwala, the question in this
case was whether salt manufacturing is a factory, there was a salt quarry extending
over a large open space about 300 acres. The work was carried out in the open air,
she was the only building. In the quarry more than 50 persons were employed for
splitting the rock into slates & shaping them for sale.
It was held that the quarry was not a factory for if a place in which a manufacturing
process is carried on is an open space, it cannot constitute a factory.
Pragnarain V/S Crown, in this case it was held that factory means premises
wherein anything is done towards the making or finishing of an article up to the stage
when it is ready to be sold or is in a suitable condition to be put in the market. A
place solely used for some purpose other than the manufacturing process carried on
in a factory or a workshop does not constitute a factory.
In re K.Chockalingam the factory was manufacturing a cigars, 20 persons were
employed in that concerns, out of the 20 workers one was the supervisor of the
manufacturing process, & he was a graduate, the other one was an apprentice & the
eighteen were employed not in the time wages system but in the piece work system.
It was held that the concerns is a factory , & the persons employed in the
manufacturing of cigars on piece work system were workers within the meaning of
clause I of sec 2 & the fact that they were not paid time – wages does not take them
out of the term of the workmen . In another decided case of Allahabad HC, In
Hatharas Municipality V/S Union of India, in this case the municipal board Hathras
was running a water works for the supply was for the supply of water for the town.
It was held that, the pumping of water is a manufacturing process according to the
definition given in the act. For premises to be held as a factory certain conditions
must be fulfilled.
A manufacturing process must be carried out in any part of the premises of the
establishment.
Where manufacturing process is carried on with the aid of power 10 or more workers
are working in that establishment is carried on without the aid of power 20 or more
workers must be working in the establishment.
But mere power is used in the establishment is not sufficient, but the power
must be used in the manufacturing process

Sec 2(n) of the act defines Occupier, means a person who has unlimited
control over the affairs of the factory affairs, provided that,
1. In case of firms any one partner may be an occupier.
2. In case of companies any one director.
3. In case of factories owned by the central & the state govt or any local
authority the Persons appointed to manage the affairs of the factory by the
Center, State or the Local authority may be deemed to be the occupier of
the factory .
4. In Dock yards the owner, any officer in charge or any agent of the dock may
be the occupier of the factory.
In Kirloskar Pheumatic Co Ltd V/S V.A more & others (I LLJ 1993,
805(Bom).
Director need not be the occupier of the Factory, but any person who has
the ultimate control over the affairs of the factory can be nominated as an
occupier.
In Indian Oils Corporation V/S Chief Inspector of Police (AIR 1998 SC 2456)
In this case the question was , who is deemed to be occupier of a Factory of
a govt co incorporated under the Indian Cos Act.
Here it was held that the Indian Oil Corporation which is a Govt company &
which owns Factories for establishing new storage unit, it is open to the
central govt to nominate any person other than Director as the occupier of
the factory for the purpose of sec 2(n) of the act, what is to be seen is that
who has got the ultimate control over the affairs of the factory
Sec 7, provides for Notices to be provided by the Occupier,
u/sec7(1) of the act the occupier shall at least 15 days ahead he bargains to
use any premises as a factory send to the Chief Inspector a written notice
containing,
a. Name & location
b. Address of the occupier
bb. Name & address of the owner of the premises or building .
c. Address to which the communication relating the factory may be sent.
d. Nature of manufacturing process.
e. The power capacity, machines capacity.
f. The name of the manager of the factory
g. No of workers
h. All other particulars as may be prescribed in the act.
General Duties of the Occupier sec 7-A
1. Every Occupier should ensure, health, safety and welfare of all workers
while they are at work in the factory.
2. Without prejudice to the generality of the provisions of sub-section (1) the
matters to which such duty extends, include -
• The provisions and maintenance of plant and systems of work in the factory
that are safe and without risks to health
• The arrangements in the factory for ensuring safety and absence of risks to
health in connection with the use, handling, storage and transport of
articles and substance;
• The provide proper information, instruction, training and supervision as are
necessary to ensure the health and safety of all workers at work.
• The maintenance of all places of work in the factory in a condition that is safe
and without risks to health and the provision and maintenance of such means
of access to, and egress from, such places as safe . And without such risks;
The provision, maintenance or monitoring of such working environment in the
factory for the workers that is safe, without risks to health and adequate
saftey regards facilities and arrangements for their welfare at work.
Except in such cases as may be prescribed, every Occupier should prepare,
and, so often as may be appropriate, revise, a written statement of his general
policy with respect to the health and safety of the workers at work
And the organization and arrangements for the time being in force for carrying
out that policy, and to bring the statement and any revision thereof to the
notice of all the workers in such manner as may be prescribed, U/Section 7-A.
Inspecting Staff sec 8, under clause (1) lays down that the state or the Central
govt by notification in official gazette, appoint Inspectors for the purpose of
this act. Only such persons who process the prescribed qualification may be
appointed as inspectors.
Sub sec (2) of the act provides the state govt for appointment of any person as
chief inspector .
Powers of chief inspector are as same as that of the inspector.
Sub sec (2-A) the state govt by notification in official gazette appoint as many
as Additional Chief Inspectors , Joint Inspectors & Deputy Chief Inspectors & as
many other officers as it thinks fit to assist the Chief Inspector & to exercise
such of the powers of the Chief Inspectors as may be specified in the
notification.
u/sub sec(2-B) every Add, Joint , Dept Chief Inspectors & every officers
appointed u/sub sec (2-A) shall, in addition to powers of Chief Inspector
specified in the notification by which he is appointed, exercise the powers of
Inspector throughout the state.
Sec 8(3) lays down that any person, having any direct interest in a Factory or
Machinery connected to factory or any process or business Carried on cannot
be appointed as an Inspector, Chief,Addi,Joint Inspector or public officer
thereof , any person having so appointed cannot continue to hold office .
Sec 8(4) states that every Dist Magistrate shall be the Inspector for his dist.
Sub sec 5 the state may also appoint a public officer for all or any purpose.
8(6)(7), the state govt may appoint more than one inspector in an area by
notification in the official gazette .
Under sub sec 7 the state govt may declare that every Chief inspector, Add,
Joint, & every officer to be deemed to be a public servant within the meaning
of IPC.
Sec 9 powers of Inspectors:
Inspectors can exercise their powers within the local limits for which he is
appointed.
1. Enter into the premises.
2. Examination of premises or plant.
3. Conduct inquiry into any accident or dangerous occurrence.
4. Require the production of any prescribed register or document relating to
the factory.
5. Seize or take copies of any register, record or document.
6. Direct the occupier on any premises or part.
7. Take measurements & photos.
In DC & G Mills Co V/S Chief Commr Delhi(AIR 1971 SC 344), here it was held
that the inspectors appointed u/the act do not simply carry out the duties laid
on him u/act. In course of discharging the duties & obligations the inspectors
are expected to give proper advice & guidance so that there may be due
compliance with the provisions of the act.
Certifying surgeons
Sec 10 of the act deals with his appointment, the state govt may appoint
qualified medical practioners to be certifying surgeons, he shall be appointed
in such local limits or for such factories or class of description of factories as
assigned to them by the state govt.
u/sub sec(2) of the act the certifying surgeon may with the approval of the
state govt exercise the powers u/act for such period as may be specified &
subject to the conditions of the State govt.
u/sub sec(3) of sec 10 the officer who is directly or indirectly interested into
the plant project or in the factory cannot be appointed as a certifying surgeon
Sub sec(4) of sec 10 duties of the certifying surgeon.
1. Examination & certifying young person’s u/act.
2. Examination of persons engaged in factories in dangerous occupations.
3. Exercising medical supervision as prescribed.

Health measures (sec 11-20)


1. Cleanliness(sec 11)
2. Disposal of wastes & effluents(12)
3. Ventilation & temperature(sec13)
4. Dusts & Fumes(sec 14)
5. Artificial Humidification(sec 15)
6. Overcrowding (sec 16)
7. Lighting(sec 17)
8. Drinking water (sec18)
9. Latrines & urinals (sec19)
10. Spittoons (sec 20)
Safety Measures (sec 21- 40):
1. Fencing of Machinery.(sec 21)(case)
2. Working on or machinery in motion(sec 22)
- Proper lubrication to be done.
- Workers shall not handle the belt at the moving pulley unless it is
maintained as prescribed u/act.
- Proper fencing of machinery to be done.
3. Employment of young persons on dangerous machinery (sec23)
4. Striking gear & devices for cutting of power (sec 24)
- Proper striking gears or other appliances are to be provided & maintained
& used for moving & deriving belts to & from the parts of transmission
machinery.
- Driving belts when not in use shall not be allowed to rest or ride upon
shifting in motion.
5. Self Acting Machines (sec 25)
6. Casing of new machineries (sec 26).
7. Prohibition of employment of women & children (sec 27)
8. Hoists & Lifts (sec 28)
9. Lifting machineries chains, ropes & lifting tackles (sec 29)
10. Revolving Machineries (sec 30)
11. Pressure plants (sec 31)
12. Floors, stairs, & means of access (sec 32)
13. Pits sumps & opening in floors (sec 33)
14. Excessive weight(sec 34)
15. Protection to eye(sec 35) (case)
16. Precautions against dangerous fumes & gases(sec 36)
17. Precautions of usage of portable electric lamps & lights(sec 36-A)
18. Explosives & inflammable dust, gas etc.(sec 37) measures for closing fumes
to be taken by the factory.
19. Precautions for fire(sec 38)
20. Safety of the building & machinery & specifications of defective parts of
tests of liabilities (sec 39 & 40)
21. Sec 40A maintenance of building, sec 40-B appointment of safety officer,
where more than 1000 employees are employed.
Welfare measures (sec 42- 49)

1. Washing facility(sec 42)

2. Storing & drying facility(sec 43)

3. Sitting facility(sec 44)

4. First Aid (sec 45)

5. Canteen facilities(sec 46)


Where 250 &more workmen are working on a calendar of year it is mandatory
for the employer to maintain canteen or canteens in the establishment.
6. Shelters, rest rooms & lunch rooms (sec 47)
7. crèches (sec 48) acc to sub clause(1) where there are more than 30 women
working in a factory, the employer mandatorily has to maintain crèches.
8. Welfare Officer (sec 49)
Sub sec (1) every factory wherein five hundred or more workers are ordinary
employed the occupier shall employ in factory such number of welfare officers
as prescribed.
Sight Appraisal Committee sec 41-A : constitution of sight appraisal
committee, the state govt may for the purpose of advising it to consider
application for grant of permission for initial location of a factory involving
hazardous processes or for expansion of factory, appoint a sight appraisal
committee.
This consists of,
1. Chief inspector of the state who shall be the chairman.
2. A representative of the central board for prevention & control of water
pollution appointed by the Central Govt u/sec3 of water pollution Act 1974.
3. A representative of central board for the prevention & control of Air
pollution referred to u/sec3 of the Air pollution act 1981.
4. A representative of state board for water & Air, u/sec 4 of water act & sec 5
of Air pollution & control Act for controlling pollution of water & air.
5. A representative of Department of Environment in state.
6. A representative of Meteorological Department of the Govt of India.
7. An expert in the field of occupational health & a representative of Town
planning department of state govt & not more than five members who may be
co-opted by the state govt who shall be,
1. A scientist having special knowledge of Hazardous process.
2. Representative of local authority within whose jurisdiction the factory has
to be established.
3. Any three members appointed by the state govt as it deems fit.
Duties sec 41-A(2) of the act the sight appraisal committee shall examine an
application for establishing the factory involving hazardous process & make its
recommendation to the State govt within the period of 90 days from the date of
such receipt of such application in prescribed form.

The committee has the powers to call for any information from the person
making the Application for establishment or expansion of a factory involving a
Hazardous process.

Where the state govt has granted approval to an application for the
establishment or expansion of the factory involving Hazardous process, it is not
necessary for the applicant to obtain permission from the central board or the
state board.

Working Hours of Adults:

Section 51 lays down that no adult worker shall be required to work in the factory
for more than 48 hours in a week.

Sec 52, weekly holidays sub sec (1) provides no adult shall be allowed to work in
the factory on the first day of the week.

Sec 53, compensatory holidays, u/sub sec (1) the

Workmen shall be allowed within one month in which holidays were due to him
or within two months immediately following that month, compensatory holiday
of equal number to the holidays lost.

Sec 54, no adult worker is allowed to work in the factory for more than nine
hours, further this time may be exceeded by intimating the

Chief inspector to facilitate the changes or arrangement in shifts.

Sec 55 intervals for rest, clause(1) no adult worker shall be allowed to work
beyond five hours continuously he shall have an interval of one hour before he
resumes his work .
any factory form a stretch of Clause(2) of the section states that subject to the
control of the state govt, the chief inspector on a written order exempt

Five hours to six hours.

Sec 56, the period of work of an adult worker is nine hours, according to this sec
the spread over of working hours could not exceed beyond ten & half hours, this
is inclusive of all rest hours & breaks.

Sec 57, Night shifts, where worker works beyond mid night is called night shift.

For the virtue of this section no worker is to work the next proceeding day after
night shift ends i.e. next 24 hours.

Sec 58, prohibition of overlapping of night shift,

Sec 59, over time wages, u/clause(1) of this sec where the worker works in
factory for more than nine hours in any day or for more than 48 hours in a week
he shall in respect of overtime work be entitled to wages at the rate of wages
twice his ordinary rate of wages .

Sec 60, restriction of double employment.

Sec 61, notices of period of work to be provided by the employer.

Sec 66, prohibition of employment of women,

Cl(1) restrictions of employment no women is entitled to work in factories b/w


6pm & 7am

(2) There shall be no change in shift except after a weekly holiday or any other
holiday.

Employment of young person’s :

Sec 67, no young children below the age of 14yrs should be allowed to work in
any factories. Sec 68, Non-adult worker to carry token. Sec69, certification of
fitness, on application of any young person or his parents or guardians
accompanied by the document signed by the manager of a factory that such
persons shall be employed if certified to be fit for work in a factory, in which he
wishes to work, examine such person & ascertain his fitness for work in a factory.

Sec 62(2) lays down certifying surgeon, after examination of the young person
may grant In a prescribed form or may review a certificate of fitness if he has
crossed 14 yrs of age .or Certify the young person as an adult, if he has completed
14 years of age. Sec69 (3) lays that the certificate of fitness is valid for a period of
12 months & is subjected to be review.

u/cl 4& 5 the certifying surgeon may revoke or review a certificate depending the
capacity . The certifying surgeon is to give reasons in writing for not granting or
renewing the certificate. Sec70 the effects of the certificate of fitness granted.

Sec71, working hours for children.

u/cl(1) &(2) no child is entitled to work in any factory for more than 4 & ½ hours
in a day , a child is prohibited from working in night shifts.

Sec 72 notices of period of work for children.

Sec 73, maintenance of registers of child workers.

Annual leave with wages:

Sec 79, annual leave with wages, unless sec 79(1) every worker who has worked
for a period of 240 days or more in factory during a calendar year shall be allowed
during subsequent calendar year, Leave with wages for number of days
calculated at the rate ,

1. adult, one day for every twenty days of work performed by him in calendar
year.
2. Child one day for every fifteen days of work performed by him in calendar
year.
Sub sec (3) if a worker is discharged, dismissed, from services or quits services
or superannuated or dies, he or his nominees
As the case may be shall be entitled to wages in lue of leave to which he was
entitled to immediately before his discharge, dismissal, quitting of
employment, superannuation or death calculated at the rates specified u/the
act.
Sub sec 4, calculation of leave, half day or more shall be treated as full day
leave, & fraction of less than half day leave shall be omitted.
Sub sec 7, lays down if the workmen wants to avail himself leave with wages
due to him to cover a period of illness he shall be granted such leave even
application of leave is not made within the time specified, & in cases of public
utility service, not later than 30 days from the date of application for leave.
Sec 80 wages during leave period, this lays down that the worker shall be
entitled to wages at the rate equal to the daily average of his total full time
earning for the days on which he actually worked during the month
immediately preceding his leave. This is exclusive of OT, & Bonus but inclusive
of DA & any cash concessional sales etc..
The mode of recovery of unpaid wages, sec 82, the unpaid wages to be
recovered as according to the provisions of PWAct 1936.
Sec84, power to exempt factories, the State Govt has the powers.
SPECIAL POWERS
Sec 85, power to apply the act to certain premises,
The st govt is under sec 85(1) declare in the notification of official gazette that
all or any of the provision shall apply to the any place where in manufacturing
process is carried out without the aid of power .
Sec 86, Power to exempt public institutions: the state govt is empowered to
exempt, subject to conditions as it may consider necessary, any workshop
where manufacturing process is carried out & which is attached to a public
institution maintained for the purpose of education, training, research or
reformation from all or any of the provision of the act .
But no exemption shall be granted from the provisions relating to hours of
work & holidays, unless the person having control over the institution submits
to the state govt the scheme for the regulation of the hours of employment,
intervals for meals, & holidays of persons employed in or attending the
institution. If the st govt is satisfied that the scheme is not less favorable.
Sec 87, Dangerous operation , if the st govt is of the opinion that the
operation carried out in a factory exposes any person employed in it to a
serious risk of bodily injury poisoning or disease it may make rules applicable
to the factory or class of factories.
Sec 88 notice of certain accidents, notice of fatal accidents or nay accident of
the nature the manager or any responsible person is required to issue a
notification regarding this to the st govt, within 48 hours of such accident. The
st govt after conducting inquiry of the same may make rules regarding the
same.