Industrial Disputes Act, 1947
• Applicability – In case of appointment on job contract basis,
reference under I.D. Act is not maintainable. E.C.I. Ltd. v. E.C.I.
Service Engineers Union, AIR 2006 SC 2996
• S. 2(a) Appropriate Government
Determination will depend upon two issues(1) How is the property of the establishment vested? and
(2) Who exercises the control and management over the
establishment?
Tata Memorial Hospital Workers Union v. Tata Memorial Centre, AIR
2010 SC 2943
Even though the shares of the company are entirely owned by the
Central Government and if it has its Divisional Office in Bangalore
and a branch of the company in West Bengal; the dispute arising in
respect of the employees working in the branch office referred by
the Governor of West Bengal under S. 10 (1) of the Act was held
good and valid. Hindustan Aeronautics Ltd., M/s. v. The Workmen,
AIR 1975 SC 1737
Regional offices of Food Corporation of India and their warehouses
in a State - State Govt. is appropriate Govt. Food Corporation of
India Workers' Union v. Food Corporation of India, AIR 1985 SC 488
• S. 2(j) Industry
Bihar Khadi Gramodyog Sangh is an industry. Gopalji Jha Shastri v.
State of Bihar, (1983) 2 SCC 4: 1983 SCC (L&S) 262
Bangalore Water Supply & Sewerage Board v. A. Rajappa, (1978) 2
SCC 213: 1978 SCC (L&S) 215 –
(a) Where (i) systematic activity, (ii) organized by co-operation
between employer and employee (iii) for the production and/or
distribution of goods and services calculated to satisfy human wants
and wishes, prima facie, there is an ‘industry’ in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the
venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of
the activity with special emphasis on the employer-employee
relations.
(d) If the organization is a trade or business it does not cease to be
one because of philanthropy animating the undertaking.
All organized activity possessing the triple elements, although not
trade or business, may still be ‘industry’ provided the nature of the
activity, viz. the employer-employee basis, bears resemblance to
what we find in trade or business.
The consequences are (i) professions, (ii) clubs, (iii) educational
institutions, (iv) co-operatives, (v) research institutes, (vi) charitable
projects, and (vii) other kindred adventures, if they fulfil the above
triple tests, cannot be exempted from the scope of Section 2(j).
Real estate company is an industry. Karnani Properties Ltd. v. State
of W.B., (1990) 4 SCC 472
• S. 2 (k) – Industrial dispute
The dispute arising out of breach of certified standing orders (last
come first go) is an industrial dispute and Civil court has no
jurisdiction. Chief Engineer, Hydel Project v. Ravinder Nath, (2008) 2
SCC 350
An industrial dispute must be supported by a number of workmen; or
sponsored or espoused by the Union. There is no particular form
prescribed to effect such espousal. Proof of support by the union
may also be available aliunde. J.H. Jadhav v. Forbes Gokak Ltd.,
(2005) 3 SCC 202 Even an outside Union may espouse the case of
a workman. Workmen v. Indian Express (P) Ltd., (1969) 1 SCC 228 :
AIR 1970 SC 737
Employment and non-employment
Under the concept of employment the employee agrees to serve the
employer subject to his control and supervision. On the other hand,
non-employment being negative of the expression “employment”
would ordinarily mean a dispute when the workman is out of service.
When non-employment is referable to an employment which at one
point of time was existing would be a matter required to be dealt with
differently than a situation where non-employment would mean a
contemplated employment. Workmen of Nilgiri Coop. Mkt. Society
Ltd. v. State of T.N., (2004) 3 SCC 514
Any person
“Any person” cannot be read without limitation and a person in
respect of which the employer-employee relationship never existed
and can never possibly exist cannot be the subject-matter of dispute
between employers and workmen. Bongaigaon Refinery &
Petrochemicals Ltd. v. Samijuddin Ahmed, (2001) 9 SCC 557
S. 2 (Ka) – Industrial establishment
Since there was no functional integrity in the sixty factories of the
Company, the units had to be taken as one. Monthly Rated
Workmen v. Indian Hume Pipe Co. Ltd., 1986 Supp SCC 79
• S. 2 (l) – Lock-out
• The true test to determine whether it is closure or lock out is whether
the closure was a device or pretence to terminate services of
workmen or whether it is bona fide and for reasons beyond the
control of the employer.
The duration of the closure may be a significant fact to determine
the intention and bona fides of the employer at the time of closure
but is not decisive of the matter. If a rigid view is taken that in case
of a lockout there is only closure of the place of business whereas in
case of a closure there is a closure of the business itself permanent
and irrevocable the if an employer who has resorted to closure,
bona fide wants to reopen, revive and re-start the industrial activity
he cannot do so on the pain that the closure would be adjudged a
device or pretence. General Labour Union (Red Flag), Bombay v.
B.V. Chavan, AIR 1985 SC 297: 1985 SCC (L & S) 253
• S. 2(oo) – Retrenchment
S. 2(oo)(bb)
Termination of a workman having not completed 240 days is not
retrenchment. Bhogpur Co-op. Sugar Mills Ltd. v. Harmesh Kumar,
AIR 2007 SC 288. Onus of proving that the workman had worked for
240 days in 12 calendar months is on the workman, not the
employer. Batala Co-op. Sugar Mills Ltd. v. Sowaran Singh, AIR
2005 SC 56
Termination of service of contract workers for specific period on
completion of contract period is not retrenchment. Punjab State
Electricity Board v. Sudesh Kumar Puri, AIR 2007 (Supp) 647
When a workman is terminated after 89 days on a regular basis and
re-appointed after a gap of one or two days, it is unfair labour
practice and in such cases provision of S. 2(oo)(bb) is not attracted.
Haryana State Electronics Devpt Corpn v. Mamni, AIR 2006 SC
2427 : (2006) 9 SCC 434.
Plea that termination of employment of workers employed
against particular Scheme falls under S. 2(oo)(bb) cannot be
raised for first time in appeal before Supreme Court. Executive
Engineer ZP Engg. Divn. V. Digambara Rao, AIR 2004 SC 4839
• Retrenchment means the termination by the employer of the
service of a workman for any reason whatsoever except those
expressly excluded in the section. Section 2(oo)(bb) should be
harmoniously construed with Sections 25-F, 25-G and 25-H.
Punjab Land Development and Reclamation Corpn. Ltd. v.
Presiding Officer, (1990) 3 SCC 682
• S. 2(p) – Settlement
The bipartite agreement authorized the Bank to stop the
stagnation increment of the employee who is reverted on his own
request after one year of his promotion. Thus when the employee
requested for his reversion after one year of promotion, it was
held that the Bank was right in stopping stagnation increment.
However, it was held that the Bank cold not stop the employee’s
promotion for all times to come because of his request reversion.
C. V. Satheeshchandran v. General Manager, UCO Bank, AIR
2008 SC (Supp) 1371
When a settlement applies to employees as on a cut-off date, it
also applies to all employees appointed thereafter. Ceat Ltd. v.
Murphy India Employees Union, AIR 2006 SC 2412
When employment was given to widow of a worker dying in harness
on contract basis but at the instance of the Union, it was held that
the contract was not a settlement. Indian Drugs and
Pharmaceuticals Ltd. v. Devki Devi, AIR 2006 SC 2691
Settlement can only be in writing. No oral agreement or pleading can
vary, modify or supersede a written settlement. Fabril Gasosa, M/s v.
Labour Commissioner, AIR 1997 SC 954
Settlement in course of conciliation proceeding is binding on all
parties to industrial dispute, i.e. in case of employer, on his heirs,
successors, or assigns and in case of workmen, all persons
employed in establishment. Settlement by agreement between
employer and workmen otherwise than in course of conciliation
proceeding is not binding on workmen not parties to it . General
Manager, Security Paper Mill, Hoshangabad v. R.S. Sharma, AIR
1988 SC 954
• S. 2(q) – Strike
Unless the strike is legal and justified, workmen are not entitled to
wages. Syndicate Bank v. Umesh Nayak, AIR 1995 SC 319
Pendown strike is strike. Punjab National Bank Ltd. v. All India
Punjab National Bank Employees’ Federation, AIR 1960 SC 160
• S. 2(ra) – Unfair labour practices
• S. 2(s)
A workman employed on a part time basis but under the control and
supervision of an employer is a workman in term of Section 2(s) of
the Act, and is entitled to claim the protection of Section 25F.
Divisional Manager, New India Assurance Co. Ltd. v. A.
Sankaralingam, AIR 2009 SC 309: (2008) 10 SCC 698
An employee appointed as Industrial Relations Executive has to
draft management enquiry and to hold conferences with the
advocates in relation to the company's acts. Being in the category of
management staff Gr. II, his conditions of service were different than
those provided for the workers of the Company. Leave given to him
were not applicable under the settlement. He was covered under the
Pension Scheme which did not apply under the settlement with
employees. It was held therefore that he was not a workman. C.
Gupta v. Galaxosmithklin Pharmaceutical Ltd., AIR 2007 SC (Supp)
1244
Duty of a Legal Assistant is to supervise Court cases and whenever
necessary to prepare draft reply of matters pending in Court. Such
employees are professionals and cannot be termed as workman
under any law. Muir Mills Unit of N. T. C. (U. P.) Ltd. v. Swayam
Prakash Srivastava, AIR 2007 SC 519 : (2007) 1 SCC 491
Professional job involves creativity and is not stereotype.
Professionals cannot be workmen. Management of M/s. Sonepat
Co-op. Sugar Mills Ltd. v. Ajit Singh, AIR 2005 SC 1050 : (2005) 3
SCC 232
Housing Co-operating Society is not an industry. Its employees cannot
be treated to be workmen as defined in S. 2(s). Md. Manjur v. Shyam
Kunj Occupants’ Society, AIR 2005 SC 1501
An apprentice under the 1961 Act is not a workman. U.P. State
Electricity Board v. Shiv Mohan Singh, AIR 2004 SC 5009
Employees of the Canteen maintained by NTPC as per statutory
obligation under S. 46 of Factories Act are workmen of NTPC. National
Thermal Power Corporation v. Karri Pothuraju, AIR 2003 SC 3647
Whether an Area Sales Executive is a workman has to be adjudicated
by the Labour Court/ Industrial Tribunal. Government cannot decide the
issue and refuse to make a reference. Sharad Kumar v. Govt of NCT of
Delhi, AIR 2002 SC 1724
Commission amount received by Deposit Collectors was 'wage' linked
to productivity. Deposit Collectors of Bank are therefore 'workmen‘.
Indian Banks Association v. Workmen of Syndicate Bank, AIR 2001 SC
946
Medical representatives are not workmen. Rhone-Poulenc (India) Ltd. v.
State of U.P., AIR 2000 SC 3182 : (2000) 7 SCC 675
R.B. I. is neither legally obliged to run canteen nor has effective control
to supervise the work done by canteen employees. Such employees
are not workmen of the R.B.I. Employees in relation to the Management
of Reserve Bank of India v. Their Workmen, AIR 1996 SC 1241 : (1996)
3 SCC 267
Bank employee in clerical grade is a workman. Syed Azam Hussaini v
Andhra Bank Ltd., AIR 1995 SC 1352
Shop Manager/In-charge of a local shop of a big company
discharging duties of administrative and managerial nature. He is
not a workman though either incidentally he is required to do some
clerical work or is not vested with power to appoint or discharge
employees under him. S.K. Maini v. Carona Sahu Co. Ltd., AIR 1994
SC 1824
Appraiser engaged by bank to appraise quality, purity and value of
ornaments offered for pledging to bank is not a workman.
Management of M/s Puri Urban Co-operative Bank v. Madhusudan
Sahu, AIR 1992 SC 1452
A person performing duties requiring imaginative and creative mind
and involving suggesting of ways and means to improve sales of
company's product and publicity in markets and melas;
advertisements including need for posters, holders and cinema
slides is not a workman. T.P. Srivastava v. M/s National Tobacco Co.
of India Ltd., AIR 1991 SC 2294
Internal Auditor in company, only checking up on behalf of employer
and having no independent right or authority to take decision, not
doing supervisory work – is a "workman”. National Engineering
Industries Ltd. v. Kishen Bhageria, AIR 1988 SC 329
Maintenance Engineer having power to grant leave, initiate
disciplinary proceedings and make temporary appointments is not a
workman. Vimal Kumar Jain v. Labour Court, Kanpur, AIR 1988 SC
384.
Though school is industry, teacher employed in school is not
workman. A. Sundarambal . Govt. of Goa, Daman and Diu, AIR
1988 SC 1700
Primary and basic duties and not incidental duties constitute the
criterion for determining whether a person is a workman. Arkal
Govind Raj Rao v. Ciba Geigy of India Ltd., AIR 1985 SC 985 Piece
rated Tailors working in big tailoring establishment are workmen.
Shining Tailors v. Industrial Tribunal II, U.P., AIR 1984 SC 23
Development Officer in Life Insurance Corporation is workman. S.K.
Verma v. Mahesh Chandra, AIR 1984 SC 1462
Blending Supervisors in Burma Shell Oil Storage and Distributing
Co. of India, Ltd. - Some are workmen and some are not. Burma
Shell Oil Storage and Distributing Co. of India, Ltd. v. Burma Shell
Management Staff Asscn., AIR 1971 SC 922.
• S. 2-A
In enacting Section 2A the intention of the legislature was that a
individual workman who was discharged, dismissed or retrenched or
whose services were otherwise terminated should be given relief
without its being necessary for the relationship between the
employer and the whole body of employees and attracted to that
dispute and the dispute becoming a generalised one between labour
on the one hand and the employer on the other. Chemicals and
Fibres of India Ltd. v. D.G. Bhoir, AIR 1975 SC 1660
• S. 10 – Reference of industrial dispute
A reference u/S. 10(1) cannot be used to circumvent or by pass the
statutory scheme provided u/S. 25-N. Empire Industries Ltd., M/s. v.
State of Maharashtra, AIR 2010 SC 1389
Badli workers have no protection under the Act. Bangalore
Metropolitan Transport Corporation v. T.V. Anandappa, AIR 2009 SC
(Supp) 1058 It is not in dispute that Badli workmen get work only in
the absence, temporary or otherwise, of regular employees, and that
they do not have any guaranteed right of employment. Their names
are not borne 'on the muster rolls of the establishment concerned.
Indeed, a Badli workman has no right to claim employment in place
of any absentee employee. In any particular case, if there be some
jobs to be performed and the employee concerned is absent, the
Company may take in a Badli workman for the purpose. Badli
workmen are really casual employees without any right to be
employed. Prakash Cotton Mills Pvt. Ltd. v. Rashtriya Mills Mazdoor
Sangh, AIR 1986 SC 1514
The Industrial dispute should be existing or apprehended at the time
of reference. When the matter was sought to be raised seeking
reference after seven years, it was held to be stale because at that
time there was no industrial dispute. However when a matter can be
said to be stale or delayed depends on the facts of the case, but a
matter which has attained finality cannot be reopened. Haryana
Land Reclamation and Development Corpn. Ltd. v. Nirmal Kumar,
AIR 2008 SC (Supp) 390; Manager (now Regional Director), R. B. I.
v. Gopinath Sharma, AIR 2006 SC 2614
Although the only dispute was with regard to the
regularization of the services of the contractual
employees, it was open to the Industrial Tribunal to
determine the nature of the employment as to
whether the employees were employees of the
contractor or the principal employer. G. M., O. N. G.
C., Shilchar v. O. N. G. C. Contractual Workers
Union, AIR 2008 SC (Supp) 1994
When the principal question under reference was as
to whether the termination of services of the
seasonal worker was justified; the Labour Court
could not go into the question as to whether the
Company was bound to take the services of the
worker in all subsequent seasons or not. Bhogpur
Co-op. Sugar Mills Ltd. v. Harmesh Kumar, AIR
2007 SC 288
A settlement was reached between the Bank and Association of
majority of employees, not signed by Employees Federation
representing minority of employees. Bank extended benefit under
settlement to employees who were not members of Association on
accepting the settlement in writing. Federation disputed the clause in
settlement giving benefit only to members of the Association and
action of Bank extending benefit to other employees on giving
individual acceptance of the settlement. Such dispute was not
industrial dispute. Reference of dispute by Govt. to Industrial
Tribunal, was held not proper. Government order making reference
can be challenged in writ petition if futility of the reference can be
shown. ANZ Grindlays Bank Ltd. v. Union of India, AIR 2006 SC
296.
Reference can be made only if a employer-employee relationship
exists. ECI Ltd. v. ECI Service Engineers Union, AIR 2006 SC 2996
Question as to whether contract labour should be abolished or not
cannot be the subject matter of reference. Steel Authority of India
Ltd. v. Union of India, AIR 2006 SC 3229
Dispute with respect to bonus payable or with respect to application
of Bonus Act in public sector, is deemed to be an industrial dispute.
Reference can be made for adjudication. A.P. Foods v. S. Samuel,
AIR 2006 SC 3622.
Tribunal cannot decide disputes relating to non-workmen. Mukand
Ltd. v. Mukand Staff and Officers’ Association, AIR 2004 SC 3905
Termination without payment of retrenchment compensation gives
rise to industrial dispute. Range Forest Officer v. S.T. Hadimani, AIR
2002 SC 1147
Question whether Area Sales Manager falls within definition of
"workman" or not is an industrial dispute. Sharad Kumar v. Govt. of
NCT of Delhi, AIR 2002 SC 1724
Industrial Tribunal is the creation statute and it gets jurisdiction on
the basis of reference. Therefore it cannot go into the question on
validity of the reference. National Engineering Industries Ltd. v. State
of Rajasthan, AIR 2000 SC 469
S. 11 and 11-A – Powers of Labour Courts etc.
When a reference is made under Section 10 of the Act, all incidental
questions arising thereto can be determined by the Tribunal. State
Bank of India v. Ram Chandra Dubey, (2001) 1 SCC 73
Labour Court can consider the evidence already considered by the
domestic tribunal and arrive at a conclusion different from the one
arrived at by the domestic tribunal. Workmen v. Balmadies Estates,
(2008) 4 SCC 517
Tribunal is duty-bound to consider whether back wages have to be
awarded and if so, to what extent. P.V.K. Distillery Ltd. v. Mahendra
Ram, (2009) 5 SCC 705
Grant of relief must depend on the fact situation. Therefore the
Industrial Tribunal is not bound to grant some relief only because it
will be lawful to do so. Manager, Reserve Bank of India v. S. Mani,
(2005) 5 SCC 100
The Tribunal must attempt to strike a balance between the claim of
the worker and situation f the employer. Laxmi Rattan Cotton Mills
Ltd. v. State of U.P., (2009) 1 SCC 695 While doing so, it is
necessary for the Industrial Courts also to consider as to whether
the industry has been sick or not. If it is found that the industry is not
in a position to bear the financial burden, an appropriate award, as a
result whereof the equities between the parties can be adjusted,
should be passed. Talwara Coop. Credit and Service Society Ltd. v.
Sushil Kumar, (2008) 9 SCC 486
The Tribunal while deciding the issue of termination of the
workers can go into the cause thereof to find out whether
there was a closure and whether such closure was bona fide.
J.K. Synthetics v. Rajasthan Trade Union Kendra, (2001) 2
SCC 87
It is open to the Labour Court/Industrial Tribunal to interfere
with the quantum of punishment for good and valid reasons
where the workman concerned is found guilty of misconduct.
L.K. Verma v. HMT Ltd., (2006) 2 SCC 269
It is not proper for the Tribunal to make an award as if appointing
an incumbent to the post. Entitlement to a post can be
determined only on the touchstone of relevant rules or on the
basis that he is discharging such functions. When the findings
are not clear as if the employee was functioning in the post to
which claim is made, no relief could have been given. U.P. SEB
v. Hydro-Electric Employees Union, (2002) 10 SCC 417
Material on record in terms of Section 11-A of the Industrial
Disputes Act will include enquiry report as well as further
evidence led before the Tribunal. The Industrial Tribunal cannot
act as an Appellate Tribunal. West Bokaro Colliery (TISCO Ltd.)
v. Ram Pravesh Singh, (2008) 3 SCC 729
• S. 17, 17-A and 17-B
Provisions of S. 17(1) are directory. Publication of award beyond
fixed time does not invalidate the award. Remington Rand of
India Ltd. v. The Workmen, AIR 1968 SC 224
A Tribunal ordinarily makes its award operative from the date of
reference; but, in exceptional circumstances it gives retroactive
operation to some of its proposals. Hindustan Antibiotics Ltd. v.
The Workmen, AIR 1967 SC 948
S. 17(2) gives finality to an award. However Rule 28 (31 ?)
provides for correction therein. It is only a clerical mistake or
error which can be corrected, and the clerical mistake or error
must arise from an accidental slip or omission in the award. It
must be a mistake or error amenable to clerical correction
only. It must not be a mistake or error which calls for
rectification by modification of the conscious adjudication on
the issues involved. Tata Consulting Engineers v. Workmen
employed under them, AIR 1981 SC 599
Under S. 17-A of the Act, an award becomes enforceable on
the expiry of 30 days from the date of its publication under S.
17. The proceedings with regard to a reference under Section
10 of the Act are therefore, not deemed to be concluded until
the expiry of 30 days from the publication of the award. Till
then the Tribunal retains jurisdiction over the dispute referred
to it for adjudication and up to that date it has the power to
entertain an application in connection with such dispute.
Radhakrishna Mani Tripathi v. L. H. Patel, AIR 2008 SC
(Supp) 928
• Section 17-B has been enacted by Parliament with a view to give
relief to a workman who has been ordered to be reinstated under the
award of a Labour Court or the Industrial Tribunal during the
pendency of proceedings in which the said award is under challenge
before the High Court or the Supreme Court. The object underlying
the provision is to relieve to a certain extent the hardship that is
caused to the workman due to delay in the implementation of the
award. The payment which is required to be made by the employer
to the workman is in the nature of subsistence allowance which
would not be refundable or recoverable from the workman even if
the award is set aside by the High Court or Supreme Court.
Therefore the words "full wages last drawn“ are used. Therefore, the
words "full wages last drawn" must be given their plain and material
meaning and they cannot be given the extended meaning. Dena
Bank v. Kiritikumar T. Patel, AIR 1998 SC 511
• S. 22-24 – Prohibition of strikes and lock-outs
Workman went on illegal strike. Although strike was subsequently
called off, workman continued to disrupt working in the factory from
within factory premises. Company declared Lock out. It was held
that the lock out must be regarded as in consequence of the illegal
strike and cannot be regarded as illegal even if provisions of S. 22
were not complied with. Workmen were held not entitled to wages
for the lock out period. H. M. T. Ltd. v. H. M. T. Head Office
Employees' Assocn., AIR 1997 SC 585
The strength of a trade union depends on its membership. The right
to demonstrate and, therefore, the right to strike is an important
weapon in the armoury of the workers. But the right to strike is not
absolute under our industrial jurisprudence and restrictions have
been placed on it under sections 22 and 23 of the I.D. Act, 1947.
Where no proceedings were pending before conciliation board,
labour court or arbitration tribunal nor any settlement or award
touching the striking workmen was in operation during the strike
period, it was held that the strike was not illegal. B.R. Singh v. Union
of India, AIR 1990 SC 1
Strike commenced within four days of conclusion of conciliation
proceedings was held illegal. India General Navigation and Railway
Co. Ltd. v. Their Workmen, AIR 1960 SC 219
If a conciliation proceeding is pending between one union and the
employer and it relates to matters concerning all the employees of
the employer, the pendency of the conciliation proceeding would be
a bar against all the employees of the employer to go on a strike
during the pendency of the said proceedings under S. 22 (1) (d).
Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravorty, AIR 1960
SC 1012
Pendency of a dispute between an individual workman as such and
the employer does not attract the provisions of Section 23. It means
that pendency of a dispute relating to an individual workman under
Section 2A will not debar the other workers from going on strike.
Chemicals and Fibres of India Ltd. v. D.G. Bhoir, AIR 1975 SC 1660
•
Mere breach of a Standing Order could not render the strike illegal
under Sections 23 and 24. Ballarpur Collieries Co. v. Presiding Officer,
C. G. I. T. Dhanbad, AIR 1972 SC 1216
Strike called by the union ignoring conciliation proceedings,
management’s offer and request for deferring the strike for even one
day was held illegal. Management of the Fertilizer Corporation of India
Ltd. v. Workmen, AIR 1970 SC 867
S. 25-B – Continuous service
Service rendered under two different establishments, although under
one central management, cannot be clubbed to reckon continues
service of 240 days in a calendar year. Haryana State Co-operative
Supply Marketing Federation Ltd. v. Sanjay, AIR 2009 SC 3155
Completion of 240 days' work does not confer right of regularisation.
Hindustan Aeronautics Ltd. v. Dan Bahadur Singh, AIR 2007 SC 2733
The expression "actually worked under the employer" cannot mean
those days only when the workman worked with hammer, sickle or pen,
but must necessarily comprehend all those days during which he was in
the employment of the employer and for which he had been paid
wages. Thus Sundays and other paid holidays should be taken into
account for the purpose of reckoning the total number of days on which
the workman could be said to have actually worked. Workmen of A. E. I.
B. Corpn. v. Management A. E. I. B. Corpn., AIR 1986 SC 458 However
period of illegal strike has to be excluded. Management of Standard
Motor Products of India Limited v. A. Parthasarathy, AIR 1986 SC 462
Section 25-B (2) comprehends a situation where a workman is not in
employment for a period of 12 calendar months, but has rendered
service for a period of 240 days within the period 12 calendar
months commencing and counting backwards from the relevant
date, i.e., the date of retrenchment. If he has, he would be deemed
to be in continuous service for a period of one year for the purpose
of Section 25-B and Chapter V-A.
• S. 25-C – Compensation for lay-off
Badli employees could not be said to have been deprived of any
work to which they had no right and, consequently, they are not
entitled to any compensation for the closure. Prakash Cotton Mills
Pvt. Ltd. v. Rashtriya Mills Mazdoor Sangh, AIR 1986 SC 1514 :
(1986) 3 SCC 588
• S. 25-F – Conditions precedent for retrenchment (less than 1
year)
The true scope and effect of the Explanation to S. 25A is that it
explains what category, factory, mine or plantation, come within the
meaning of the expression "industrial establishment"; it does not
deal with the question as to what constitutes one establishment and
lays down no tests for determining that question. It was held that a
factory and a mine, which supplies the raw material to the factory,
are one establishment under the Act. Associated Cement
Companies, Ltd., Chaibasa Cement Works, Jhinkpani v. Their
Workmen, AIR 1960 SC 56
• S. 25-FF – Compensation for transfer of undertaking
Mettur Beardsell Ltd. on facing financial problems passed a
resolution to hive off its textile operation by entrusting it to its wholly
owned subsidiary which was to be formed. Accordingly Mettur
Textile Pvt. Ltd. was formed. The Company treated it as transfer of
undertaking to invoke S. 25FF. Rejecting the contention it was held
that the first and foremost condition for the application of Section 25FF is that the ownership or management of an undertaking is
transferred from the employer in relation to that undertaking to a
new employer. What the section contemplates is that either the
ownership or the management of an undertaking should be
transferred; normally this would mean that the ownership or the
management of the entire undertaking should be transferred before
Section 25FF comes into operation. If an undertaking conducts one
business, it would normally be difficult to imagine that its ownership
or management can be partially transferred to invoke the application
of Section 25-FF. A business conducted by an industrial undertaking
would ordinarily be an integrated business and though it may consist
of different branches or departments they would generally be
interrelated with each other so as to constitute one whole business.
In such a case, Section 25-FF would not apply if a transfer is made
in regard to a department or branch of the business run by the
undertaking and the workmen would be entitled to contend that such
a partial transfer is outside the scope of Section 25-FF of the Act.
Management, Mettur Beardsell Ltd. v. Workmen of Mettur Beardsell
Ltd., AIR 2006 SC 2056 : (2006) 9 SCC 488
Where the transferor and/or transferee is a State or a State
instrumentality the transfer of undertaking would amount to an
exception to the principle behind S. 25FF. In the instant case the
State of Punjab took a decision bona fide to transfer all the
tubewells in the Irrigation branch of its PWD to the Punjab State
Tubewell Corpn. a Company wholly owned and managed by the
State of Punjab. Consequently, all tubewell operators serving in the
irrigation branch of P.W.D. were retrenched. However, as a
concession they were continued in service of the Corporation at the
same level of pay at which they were in Govt. service immediately
before retrenchment. Many of the operators had put in a large
number of years in the service of the Government. It was inter alia
apprehended that by being treated as retrenched Government
servants, they will be able to get terminal benefits and pension only
on the basis of present lengths of their service in the Government.
On the other hand, if they were to continue with the Corporation
under the same terms and conditions which they were enjoying
under the Government, they would get the advantage of continuity of
service and thus be entitled to substantially higher amounts of
pension and other terminal benefits. It was held that such transfer
was not a transfer in terms of S. 25FF and 25FFF. Gurmail Singh v.
State of Punjab, AIR 1993 SC 1388 : (1991) 1 SCC 189
• S. 25-FFF – Compensation for closing down of undertaking –
Upon closure of the shop at Mumbai, the employees were
transferred to work in a factory at Goregaon which did not belong to
the shop owners. The employees refused to join the factory. An
application for payment of wages was filed against the shop owners
which was dismissed inter alia, on the premise that the employees
had refused to join their duties at the transferred place. A domestic
enquiry was purported to have been held in April, 1984 on the
premise that the respondents had neither reported for duties at
Goregaon nor at Mumbai. The services of the respondents were
terminated in December, 1985. In January, 1986, the premises in
which the sales office was being run was admittedly handed over to
another Company. The employees could not be transferred to
entirely different entity. Holding of domestic enquiry also shows that
master-servant relationship was not severed. Termination may be in
the teeth of S. 25F. However, as the business of the erstwhile
employer is completely closed there is no question of reinstatement
and back wages. It was held that only relief available to workmen
would be of compensation u/S.25-FFF. Hondaram Ramchandra M/s.
v. Yeshwant Mahadev Kadam, AIR 2008 SC (Supp) 1250 Similarly
in case of retrenchment on completion of project, it was held that
the only relief would be u/s 25FFF. Shortfall in period of notice or
amount of compensation specified in S. 25FFF does not render the
termination bad. Lal Mohammad v. Indian Railway Construction Co.
Ltd., AIR 2007 SC 2230
•
Again, termination of services on account of closure of one unit of appellantSociety would not amount to retrenchment merely because other units of
appellant were functioning and not closed down. Not being retrenchment,
such termination would not be illegal for non-compliance of provisions of S.
25F. Employee entitled to compensation only in accordance with S.
25FFF.District Red Cross Society v. Babita Arora, AIR 2007 SC 2879
When the company on closure offered compensation which was not
accepted by the workmen, the company cannot held at fault. Govt. of India
v. Workmen of State Trading Corporation, AIR 1999 SC 1532
Under the Industrial Disputes Act if an industry is closed the employees
thereof are entitled to compensation as provided under Section 25-FFF of
the Industrial Disputes Act. When on completion of project the employees
were terminated but were continued to be paid their wages during pendency
of appeal before Supreme Court, it was held that on dismissal of the appeal,
the employees would be only entitled to compensation u/s 25FFF and not
regularisation or reinstatement. Management of Dandakaranya Project,
Koreput v. Workmen, AIR 1997 SC 852 : (1997) 2 SCC 296
Construction company was undertaking construction works wherever
awarded and appointing numbers of local persons. On completion of work
of any place the Company’s establishment was wound up. It was held that
mere unity of ownership and management and reservation of right to
transfer employees do not indicate that units at different places constitute
single establishment. Workers cannot demand absorption in other units.
Hindustan Steel Works Constriction Ltd. v. H.S.W.C. Employees’ Union,
Hyderabad, AIR 1995 SC 1163
Badli workers have no right to employment and hence no protection under
the Act.
•
Functional integrality between units of an industrial establishment cannot be
inferred merely from fact that units are situate at a distance of 200 meters
from each other and are controlled by same employer and are carrying on
identical processes. Isha Steel Treatment, Bombay v. Association of
Engineering Workers, Bombay, AIR 1987 SC 1478
S. 25-N – Condition precedent for retrenchment (not less than 1 year)
S. 25N(1) prescribes that no retrenchment can be made unless permission
of the prescribed authority is obtained. Sub-s. (2) does not preclude the
appropriate Government or authority or to grant partial permission in respect
of some of the workmen out of the workmen proposed to be retrenched and
refuse the same in respect of the rest keeping in view the particular facts in
relation to a particular establishment. Nor is there anything in sub-s. (2)
which requires the appropriate Government or authority to either grant
permission for retrenchment of the entire lot of the workmen proposed to be
retrenched or refuse to grant permission in respect of the entire lot of
workmen. It may be that the appropriate Government or authority may feel
that the demand of the management for the proposed retrenchment is
pitched too high and that in view of the facts and circumstances revealed as
a result of an enquiry it is found that the industrial establishment can be
efficiently run after retrenching a few of the workmen proposed to be
retrenched. In that event, it would be permissible for the appropriate
Government or authority to grant permission for retrenchment of only some
of the workmen proposed to be retrenched and to refuse such permission
for the rest of the workmen. Workmen of Meenakshi Mills Ltd. v. Meenakshi
Mills Ltd., AIR 1994 SC 2696 : (1992) 3 SCC 336
• S. 33 –Conditions of service – not to change.
Daily wagers are not the holders of a post but the expression
'conditions of service' in Section 33(1)(a) is not restricted to the
holders of post. The expression, 'conditions of service' is of wide
range and relates to the workmen who may be temporary, ad hoc,
daily rated, permanent, semi-permanent or otherwise. It cannot be
said that since daily rated employees do not hold any post and,
therefore, there are no conditions of service for such employees.
Instantly industrial settlement was entered between the university
and daily rated workmen providing for regularisations of service,
hours of work and weekly off. The daily rated workmen had raisd
dispute for their regularisation. During pendency of the adjudication
the University increased the number of weekly off days. It was held
to amount to change in conditions of service sand therefore
illegal.Gujarat Agricultural University v. All Gujarat Kamdar
Karmachari Union, AIR 2010 SC 2507 : (2009) 15 SCC335
The proviso to Section 33(2)(b) of the Act affords protection to a
workman to safeguard his interest and it is in the nature of a shield
against victimization and unfair labour practice including dismissal
by the employer during pendency of an industrial dispute. United
Bank of India v. Sidharatha Chakraborty, AIR 2007 SC 3071 : (2007)
7 SCC 670
S. 33(2)(b) is attracted only when an industrial dispute is pending
before an Industrial tribunal. When the order making reference was
stayed by the High Court, the tribunal had no jurisdiction during the
period of stay. It could not decide the question of dismissal. B. P. L.
Ltd., M/s. v. R. Sudhakar, AIR 2004 SC 3606
Taking part in go-slow tactics pending conciliation proceeding
amounts to serious misconduct. When the Company suspended
such workmen and applied under S. 33 for permission to dismiss
them, such suspension was held not a punishment and the
management was held entitled to permission to dismiss them. Sasa
Musa Sugar Works (P) Ltd. M/s v. Shobrati Khan, AIR 1959 SC 923
When an application is made for approval of order of dismissal, relief
of reinstatement as an interim measure cannot be granted. Delhi
Cloth and General Mills Co. Ltd. v. Rameshwar Dayal, AIR 1961 SC
689
Unless it is shown that an industrial dispute was pending when the
order of dismissal was passed, application under S. 33 challenging
such order cannot be maintained. Syndicate Bank Ltd. v. K.
Ramanath V. Bhat, AIR 1968 SC 231
Ban under S. 33 is attracted only if action is taken based on
misconduct. Termination/ discharge under normal service rules
cannot be challenged under S. 33. Air India Corporation, Bombay v.
V.A. Rebello, AIR 1972 SC 1343
Employment Exchanges (Compulsory
Notification of Vacancies) Act, 1959
• S. 3 – Applicability
• S. 4 – Notification of vacancies
• S. 5 – Returns
Employee’s Compensation Act, 1923
• S. 3 – Employer’s liability for
compensation
• S. 4 – Amount of compensation
• S. 4-A – Payment of compensation
• S. 5 – Method of calculating wages
Payment of wages Act,1936
• Sections 12 to 17 and 22
Payment of Bonus Act, 1965
• Sections 4 to 9, 15 and 25
Factories Act, 1948
• Section 41B,41C, 41H, 46, 67, 71, 85, 86,
93, 96A, 97 and 101
Payment of Gratuity Act, 1972
• Sections 2, 2A, 4A, 7 and 10
Employees’ Provident Funds and
Miscellaneous Provisions Act, 1952
• S. 7A
• S. 7C