The Industrial Disputes Act, 1947

The Industrial Disputes Act, 1947

Preliminary:

The Industrial Disputes Act, 1947 extends to whole of India. It came into operation on the first day of April, 1947. This Act replaced the Trade Disputes Act of 1929. The Trade Disputes Act imposed certain restraints on the right of strike and lockout in Public Utility Services. But no provision was existing for the settlement of Industrial Disputes, either by reference to a Board of Conciliation or to a Court of Inquiry. In order to remove this deficiency, the Industrial Disputes Act, 1947 was passed. Scope and Objects (Sec. 1) ,

The objects of the industrial relation's legislation in general are to maintain

industrial peace and, to achieve economic justice...

The prosperity of any industry very much depends upon its growing production. Production is possible when the industry functions smoothly without any disturbances. This means industrial peace through harmonious relationship between labour and management. Therefore every industrial relations legislatiqn necessarily aims at providing conditions congeniel to the industrial peace.

Economic justice is another objective of industrial legislation. Almost all industrial interuptions in production are due to industrial disputes. Dissatisfaction with the existing economic conditions is the root cause of industrial disputes. The labour demands for fair return is expressed in varied forms; e.g. increase in wages, resistance to decrease in wages and grant of allowance and benefits etc. If a labourer wants to achieve these gains individually, he fails because of his weaker bargaining power against the sound economic footing of the management. Therefore, the economic struggle of labour with capital can be fought collectivity by organised labours. It is with this object to provide economic justice by ensuring fair return to the labour, the State, being the custodian of public interest, intervenes by 'State legislation' Economic justice has also been ensured to the people of India by our Constitution.

Thus the main object of all labour legislation is to ensure fair wages and to prevent disputes so that the production might not be adversely affected2. The principal objects of Industrial Disputes Act as analyzed and interpreted by the Supreme Court are as follows.3

(1) The promotion of measures for securring and preserving amity and good relations between employers and workmen;

(2) Investigation and settlement of industrial dispute between employers and employers, employers and workmen, or between workmen and workmen with a right of representation by a registered Trade Union or . Federation of Trade Unions or Association of Employers or a Federation of Association of Employers.

(3) The prevention of illegal strikes and lock-outs;

(4) Relief to workmen in the matter of lay-oft, retrenchment and closure of

an undertaking..

(5) Collective bargaining.

Main Features or Characterstics of the Act::Some of the important features of the Act may be summearised as below:

1. Any industrial dispute may be referred to an industrial tribinal by mutual

consent of paries to dispute or by the State Government, if it deems expedient to do so.

2. An award shall be binding on both the parties to the dispute for the

operated period, not exceeding one year;

3. Strike and lockouts are prohibited during:

(a) The pendency of conciliation and adjudication proceedings;

(b) the pendency of settlements reached in the course of conciliation

proceedings, and.

(c) the pendency of awards of Industrial Tribunal declared binding by

the appropriate Government.4. In public interest or emergency, the appropriate Government has power to declare the transport (other than railways), coal, cotton textiles, food stuffs and iron and steel industries to be public utility services for the purpose of the Act, for a maximum period of six months.

5. In case of lay-oft or retrenchment of workmen, the employer is requested to pay compensation to them. This provision stands in the case of transfer or closure of an undertaking.

6. A number of authorities (Works Committees, Conciliation Officers, Board of conciliation, Courts of Inquiry, Labour Courts, Tribunal and National Tribunal) are provided for settlement of Industrial disputes. Although the nature of powers, functions and duties of these authorities differ from each other, everyone plays important role in ensuring industrial peace.Definitions (Sec.2) :

(a) Appropriate Government: The Central Government as well as the State Government are vested with various powers and duties in relation to matters dealt with in this Act. In relation to some industrial disputes the Central Government and in relation to some others, the State Government concerned are the appropriate Government to deal with such disputes.

Under sub-section [(i) (a)] and [(i)(b)] of the Act, Companies/Corporations/

Trusts/Boards/ Authorities, etc. established under the Act of Parliament; the Central Government is the Appropriate Authority. In all other cases, the Appropriate Government is the State Government within whose territory the industrial dispute aries Sub-section (ii). (aa) Arbitrator - Arbitrator includes an umpire.

(aaa) Average Pay - "Average Pay" means the average of the wages payable to a workmen, Average pay in the case of workmen means:

(i) In the Case of monthly paid workman- The average of monthly

wages payable in three complete calendar months.

(ii) In the case of weekly paid workman - the average of the weekly

wages payable in four complete weeks.

(iii) In the case of daily paid workman - the average of the wages for

twelve full working days.

(b) Award - 'Award' means an interim or final determination of any' industrial

dispute or of any question relating thereto. The determination must be

made by any Labour Court, Industrial Tribunal or National Tribunal.

Enforcement of an award - An award may be enforced in the following ways:

(1) The aggrieved party may apply to Appropriate Government for

prosecuting the defaulting party under Sec. 29 or 31 of this Act.

(2) Where the work man 'isto claim money from the employer, the

workman may move the Appropriate Government for recovery of

the money due to him under the award. (3) The party in whose favour the award has been granted may file a suit and obtain a decree, which shall be enforced extension under provisions of the Civil Procedure Code.

Where the interim order did not determine any part of the industrial dispute or

any other question relating there to, but only determined whether the Industrial Tribunal has been properly constituted to which the industrial dispute could be referred for adjudication, such order cannot be said to be an award as defined in Sec. 2(b)2

(bb) Banking Company - 'Banking Company' means a banking company

as defined in Sec.5 of the Banking Companies Act, 1949.

(c) Board - 'Board' means a Board of Conciliation constituted under this Act.

(cc) Closure - 'Closure' means the permanent closing down of a place of

employment or part thereofPenalty for closure (Sec. 25R)

1. Any employer who close down an undertaking without complying with the provisions of the Sub-Sec. (1) of Sec. 25-0 shall be punishable with imprisonment up to 6 months, or with fine up to Rs. 5,000 or with both.

2. Any employer, who contravenes a direction given under Sub-sec. (2) of Sec. 25-0 or Sec. 25-P, shall be punishable with imprisonment up to one year, or with fine up to Rs. 2,000 for every day during which the contravention continues after the conviction.

3. Any employer who contravenes the provisions of Sub Sec. 25-0 shall be punishable with imprisonment up to one month, or with fine up to Rs. 1000 or with both.

(d)Conciliation Officer - 'Conciliation Officer' means a conciliation officer appointed under the Act..

(e) Conciliation Proceeding - 'Conciliation Proceeding' means any proceeding held by a Conciliation Officer or Board under the Act.

(ee) Controlled Industry - "Controlled Industry" means any industry the control of which, by the Union has been declared by any Central Act to the expedient in the public interest. That is, an industry which is controlled by the Central Government. But it must also be declared by the Central Act to be controlled by the Union.

(f) Court - "Court" means a Court of Inquiry constituted under this Act. (g) (g) Employer - "Employer" means, in relation to industries carried on by or under the authority of (i) Central Government, (ii) State Government, or (iii) Local Authorities.

(h) Executive - "Executive", in relation to a Trade Union means the body by whatever name called, to which by management of the affairs of the Trade Union is entrusted.

(i) Independent - Means, for the purpose of appointment of a person as Chairman or other member of a Board, Court or Tribunal. In order that a person may be eligible for his appointment to these bodies, he must possess the following qualifications:

(i) . He must be unconnected with industrial dispute in question, or.

(ii) He must be unconnected with any industry directly affected by such dispute.

(j) Industry - Industry means any business, trade, undertaking, manufacture

or any service, employment, handicraft or industrial occupation or

vocation of workmen.

In a Case In Banglore Water.Supply v. A Rajappa 1 a bench of the Supreme Court consisting of seven judges exclusively considered the scope of industry and laid down the following test which has practically reiterated as under:

"Where there is (i) systematic activity, (ii) organised 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, these is an "Industry" in that enterprise." This is known as Triple Test.

The Following points were also emphasised in the said case:

(1) Industry does not include spiritual or religious services or services geared to celestial bliss, e.g. making on a large scale, "parsed" or food.

(2) Absence of profit motive or gainful objective is irrelevant but, be the

venture in the public, joint, private or other sector.

(3) The true focus is functional and the decisive test is the nature of the

activity with special emphasis on the employer-employee relations.(4) If the organisation is a trade or business, it does not cease to be one because of philanthropy animating the undertaking.Therefore, the consequences of the decision in this case are that professions, clubs, educational institutions, co-operatives research insthtions, charitable projects and other kind of adventures, if they fulfil the triple test stated above cannot be exempted from the scope of industry.'(k) Industrial Disputes - Industrial Dispute is : (1) a dispute or difference between (a) employers and employers, or (b) employers and workmen,

(c) workmen and workmen; ..

(2) the dispute or difference should be connected with (a) employment or . non-employment, or (b) terms of employment, or (c) conditions of labour

of any person;.

(3) the dispute may be in relation to any workman or workmen or any other

person in whom they are interested as a body.

(ka) Industrial Establishment or Undertaking - It means an establishment or undertaking in which any industry is carried on; provided that, where several activities are carried on in an establishement or undertaking and only one or some of such activities is or are an industry or industries:

(kk) Insurance Company - According to this sub-section, an insurance is one, which company is defined in Sec. 2 of the Insurance Act, 1938, having branches or other establishments in more than one State.

(kka) Khadi - "Khadi" has the meaning assigned to it in clause ( d) of Sec. 2 of the Khadi and Village Industries Commission Act, 1956.

(kkb) labour Court.- It means a Labour.Court constituted under Sec. 7 of

the Industrial Disputes Act, 1947.

(kkk) lay Off - Means putting aside workmen temporarily. The duration of lay off should not be for a period longer than the period of emergency. The employer-employee relationship does not come to an end during the

period of lay-off but is merely suspended during the period of emergency.

Any such refusal or failure to employ a workman may be on account of:

(i) shortage of coal, power or raw materials or

(ii) the accumulation of stock; or

(iii) the breakdown of machinery; or

(iv) natural calamity; or

(v) any other connected reasons.

Prohibition of lay-off (as substituted by Amendment Act; 1984)

According to Sec. 25M of Industrial Disputes Act, 1947, no workman whose name is borne on the muster rolls of an industrial establishment shall be laid off by his employer except with the prior permission of the appropriate Government or such authority, as may be specified by that Government.Recovery of money due from an employer (Sec. 33C)

Where any money is due to a workman from an employer under a settlement or an award or for layoff or retrenchment, the workman himself or any other person authorised by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application, within one year from the date on which the money became due to the workman, to appropriate Government for the recovery of money due to him, and if the appropriate Government is satisfied that any money is due to him, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue.

Penalty for layoff without permission (Sec. 25Q)

Any member who contravenes the provisions of Sec. 25M shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to Rs. 1000, or with both.

(I) Lock out - Means the closing of a place of employment, or the

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

While strike is a weapon in the hands of the labour to force the management to accept their demands, lockout is a weapon in the hands of the management to coerce the labour to come down in their demand srelating to the conditions of employment.

Lockouts has been described by the Supreme Court as the antithesis of strike.1

Difference between lockout and lay-off:

(1) Lockout is an act on the part of the employer to pressurise the labour; while layoff is for trade reasons, beyond the control of the employer; i.e., it is not intentional act.

(2) Lockout is exercised due to an industrial dispute and continues during the period of dispute; layoff is not necessiorily concerned with dispute with workmen.

Difference between lock-out and retrenchment: (1)Temporary or permanent: Lockout is temporary measure, while

retrenchment is permanent.

(2) Relationship: In lockout the relationship of employer and employee is

only suspended; it does not come to an end. In retrenchment such a

relationship is severed at the instance of the employer.

(3) Motive: Lockout is with a motive to coerce the workmen; the intention

of retrenchment is to dispense with surplus labour.

(4) Trade dispute: Lockout is due to an industrial dispute, whereas in

case of retrenchment, there is no such disputeDifference between lock-out and closure

(1) Temporary/Permanent: Lockout is temporary measure, whereas closure is permanent..

(2) Weapon of coercion: Lockout is a weapon of coercion in the hands of

employer; while closure is generally made for trade reasons.

(3) Trade Dispute: Lockout is declared during an industrial dispute, while

in case of closure, there need not be any dispute.

(Ia) Major Port: Means a port as defined in clause 8 of Sec. 3 of the Indian Port Act. 1903; which reads as follows:

"Any port which the Central Government may by notification in official Gazette declare or may by any law for the time being in force, have declared to be a major port".(I b) Mine: Means a mine as defined in clause (j) of sub-section (1) of Sec. 2 of the Mines Act, 1952, Which reads as under:

"Mine means any excavation where any operation for the purpose of searching for or obtaining minerals has been, or is being carried on, and includes, (unless exempted by the Central Government by notification in the official Gazette) any premises or part thereof, on which any process ancillary to the getting, dressing or preparation for sale of mineral or of coke is being carried on :"

(II) National Tribunal: Means a National Tribunal constituted under Sec. 78 of

the Act.

(III) Office Bearer: In relation to a Trade union, it includes any member of the

executive thereof, but does not include on auditor. (m) Prescribed: Means prescribed by rules made under this act. (n) Public utility services: The following are public utility services as laid down by the Act :

(i) any railway service;

(ii) any transport service for the carriage of passengers or goods by

air;

(iii) any service in or in connection with the working of any major port

or dock;

(iv) any section of an industrial establishment, on the working of which

the safety of the establishment or the workmen employed therein

. depends;

(v) any postal, telegraph or telephone service;

(vi) any industry which supplies power, light or water to the public; (vii) any system of public conservancy or sanitation.

(viii) any industry specified in the First Schedule which the appropriate

Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette declare to be a public utility service for the purpose of this Act, for such period as may be specified in the notification.

(0) Railway company - Means a Railway Company as defined in Sec.8 of the Indian Railway Act, 1890. Sec 3(5) of the Indian Railways Act states, "Railway Company" includes any person whether incorporated or not who are owners or lessees of a railway or parties to any agreement for working a railway."Sec. 3(4) of the Indian Railways Act defines the term "Railway" as. "Railway means a railway, or any portion of a railway, for the public carriage of passengers, animals or goods. and includes:

(a) all lines of rails, or branches worked over the purpose of or in connection with a railway.

(b) all stations, Offices, Workhouses, Wherever, workshops, Fixed plant

and machinery and other works constructed in connection with a railway,

and

(c) all ferries, ships, boats and rafts which are used in inland waters for the

purpose of traffic of railway and belong to or are hired or worked by the authority administering the railways." .(00) Retrenchment - Means the discharge of surplus labour or staff by the employer

for any reason What-so-ever.'

The term "retrenchment" defines under the section 2(00) may be analysed as:

(1) Retrenchment means the termination by the employer of the services

of a workman.

(2) The termination may be for any reason what so ever.

(3) But the termination should not be as a measure. of punishment by way

of disciplinary action.

Conditions of retrenchment:

According to Sec. 25F of the Act no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be

retrenched by the employer until:.

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment, or the workman has been paid in lieu of such notice, wages for the period of notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to 15 days average pay for every completed

year of continuous service or any part thereof, in excess of 6 months, and

(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.

Re-employment of retrenched workmen

According to Sec. 25H of the Act, where any workmen are retrenched and the employer proposes to employ any persons, be shall, in such manner as may be prescribed, give an opportunity to retrenched workmen who are citizens of India offer themselves for the re-employment, and the retrenched workmen who offer themselves for re-employment, shall have preference over others. But this section cannot be applied retrospectively [Case: R,S Ramdayal v. Labour Appellate Tribunal (Sec. 567) -1964].

The following cases are not retrenchment

(a) Voluntary retirement of a workman, or

(b) retirement of a workman on reaching the age of superannuation if the

contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(bb) Termination of the service of a workman as a result of the non-renewal of the cortract of employment between the employer and the workman concerned on its expiry or of such contract being terminated.

Difference between retrenchment and closure

(1) Retrenchment affects only some of the workman, whereas closure

affects all workman.

(2) In retrenchment the trade or business remains uninterrupted as it

continues; while in closure the business itself is discontinued.

(q) Strike - Strike means (1) cessation of work by a body of persons employed in any industry acting in combination, or (2) a concerted refusal of any number of persons who are or have been employed in any industry to continue to work or to accept employment; or (3) to refusal under a common understanding of any number of persons who are or have been employed in industry to continue to work or to accept employment.

Features of strike

(1) It is the stoppage of work by a body of workmen acting in concert with

a view to bring pressure upon the employer to concede to their demands. (2) The workmen must be employed in any industry.

(3) More cessation of work does not come within the preview of strike,

unless it can be shown that such cessation of work was a concerted action for the enforcement of an industrial demand1.

Kinds of strike

These are three kinds of strikes, namely: (1) General strike, (2) Stay-in-strike,

and (3) Go slow strike.

(1) General strike: A general strike is one, where the workmen join together

for common cause and stay away from work, depriving the employer of

their labour needed to run the factory.

(2) Stay-in-strike : A stay-in-strike is also known as "total-dawn-strike" or

'pen-dawn-strike". It is the form of strike where the workmen report to

their duties, occupy the premises, but do not work. The employer is

thus prevented from employing other labour to carryon his business.

(3) Go-slow strike: In a 'Go Slow' strike, the .workmen do not stay away from work, they do come to their work and work also, but with a slow speed in order to lower down production, and thereby cause loss to the employer.

In addition to these three forms of strike a few more may be cited, although some of them are not strike within the meaning of Sub-Section 2(q). Such forms are:

(i) Sympathetic strike: A sympathetic strike is resorted to in sympathy of other striking workmen. Its aim is to encourage or to extend moral support to or indirectly to aid the striking workmen. The sympathisers resorting to such strike have no demand of grievance of their own.

(ii) Hunger strike: In hunger strike, a group of workmen resort to fasting on or near the place of work or the residence of the employer with a view to coerce the employer to accept their demands.

(iii) Work to rule : The employers in this case of "work to rule" strictly adhere to rules while performing their duties which ordinarily they do not observe. This causes the slowing down the tempo of work. It is not a strike because there is no stoppage of work at all.

(qq) Trade Union: Means a trade union registered under the Trade Union

Act, 1926.

(r) Tribunal: Tribunal means an Industrial Tribunal constituted under Sec.

7 -A of the Act. It also includes an Industrial Tribunal constituted before 10th March, 1957 under this Act. (ra) Unfair labour practice: It means any of the practices specified in the

Fifth Schedule.

. (rb) Village Industries: It has the meaning assigned to it in clause (h) of

Sec.2 of the Khadi and Village Industries Commission Act, 1956.

(rr) Wages: It means all remuneration capable of being expressed in terms of money, which would, if the terms of payment, expressed or implied were fulfilled, be payable to a workman in respect of his employment or of work done in such employment. Wages also includes(i) dearness allowance as the workmen is for the time being entitled to; (ii) the value of any house accommodation, or of the supply of light, water, medical benefits or any concessional, supply of food grains or other articles; (iii) any travelling concession; (iv) any commission payable on sales promotion or business, or both.

However, the following are not wages:- (a) any bonus; (b) any contribution paid or payable by the employer to any pension fund or provident fund., (c) any gratuity payable on the termination of service of workman.

(s) Workman: 'Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, .and for the purpose of any proceeding under this Act. .

"Workman" does not include any such person - (i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, or (ii) who is employed in the Police Service or as an officer or other employee of a prison, or (iii) who is employed mainly in a managerial or administrative capacity, or (iv) who, being employed in a supervisory

capacity, draws wages exceeding Rs. 1600/- per mensem, or exercises functions mainly of management nature.

Difference between workman and independent contractor:

(1) For any person to be a workman, it is necessary that he should be in the employment of an employer. Merely a contract to do some work is not enough to be called as worker.

(2) Relationship of master and servant must be implied in the term of "employed" as a workman. In the absence of such a relationship one cannot be admitted or established as a workman.Authorities under the ACT

Power and Duties

The adjudication of industrial disputes has been kept out of the jurisdiction of Municipal Courts at the first instance so that effort may be made for settlement of such disputes through some other agencies. The various modes of settlement of industrial disputes provided by the Act. may be classified under three heads: (1) Conciliation (2) Adjudication and (3) Arbitration

Authorities make use of conciliation

The authorities that make use of conciliation on the sole method of settlement of disputes are:

(1) Works Committee

. (2) Conciliation Officer

(3) Board of Conciliation

The adjudicating authorities that decide any dispute under the Act. are: (1) Court of Inquiry

(2) The Labour Court

(3) Industrial Tribunal;

(4) National Tribunal, and

Sec. 10-A of the Act. makes provision for voluntary reference of disputes to arbitration. Apart from the above, provision has also been made for constitution of Court of Inquiry, whose main function is inquire into any matter appearing to be connected with or relevant to an industrial dispute

1. Work committee (Sec.3)

The works committee is considered to be powerful social institution only to secure cooperation between workers and employers, but to make the will of the employees effective on the management. According to sec.3 of the Industrial Disputes Act, 194"1, in the case of an industrial establishment in which 100 or more workmen are employed or have been employed oh any day in the preceding 12 months, the appropriate Government may, by general or special order, require the employer to constitute a Works committee consisting of representatives of employers and workmen engaged in the establishment. The number of representatives of workmen on Works Committee shall be not being less than that of the representatives of the employers.

The representatives of the workmen shall be chosen from among the workmen in consultation with their trade union, if any registered under the Indian Trade Union Act.1926. .

The duties of the Works Committee are to promote measures for securing and preserving amity and good relations between the employers and workmen and to comment upon matters of their interest or concern and to endeavour to compose any material difference of opinion in respect of matters of common intents or concern of employers and workmen.

2. Conciliation Officers (Sec.4)

The appropriate Government may by notification in the official gazette, interest appoint conciliation officers for any specified area or for one or more specified industries, either permanently or for a limited period of time. Conciliation officers are charged with the duty of holding conciliatory proceedings for the purpose of bringing about a fair and amicable settlement of any industrial dispute. The jurisdiction, powers and other matters in respect of the Conciliation Officer ~hall be published in the Gazette

Powers of Conciliation Officer: According to Sec.11 of the Act, conciliation officer may, for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment which the dispute relates. He may call for and inspect any document which he has ground for considering to be relevant to the industrial dispute or be necessary for the purpose of verifying the implementation of any award or carrying out any duty imposed on him under the Act. and for the aforesaid purposes. He will have the same powers as one vested in a Civil Court, in respect of compelling the production of documents.

Under Sec 11(6), Conciliation Officers are members of Board or Court and the Presiding Officer of Labour Court Tribunal or National Tribunal shall be deemed to be public servants within the meaning of Sec.21 of IPC.Duties of Conciliation Officers (sec.12):

For the purpose of bringing about fair and amicable settlement of an industrial dispute, the Conciliation Officer is required to discharge the following duties- .

(1) where any industrial dispute exists or is apprehended, the Conciliation Officer, shall hold conciliation proceedings. He will interview both the workmen concerned with the dispute and endeavour to bring about a settlement.

(2) The conciliation Officer shall, for the purpose of bringing about a settlement of the dispute, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair

and amicable settlement of the dispute..

(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the Conciliation Officer shall send a report thereof to the settlement singed by the parties

to dispute..

(4) If no such settlement is arrived at, the Conciliation Officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement

of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.

(5) The report must be submitted within 14 days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: provided that, subject to the approval of the Conciliation Officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.

(6). If, on a consideration of the report in respect of failure of settlement, the appropriate Government is satisfied that there is a case for reference to Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the Government does not make such a reference, it shall record and communicate to the parties concerned it's reasons thereof

3 Board of Conciliation (Sec.5)

The appropriate Govt. may as occasion arises by notification in the in the Official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute. A Board shall consist of a Chairman and two or four other members, as the appropriate Government thinks fit. The Chairman shall be an independent person and shall be appointed on the recommendation of the party they represent. The quorum for a meeting is two where the total number is three, and three where the number is five. A Board, having a quorum, may act not withstanding the absence of the chairman or any of its members, or any vacancy in it's number. But; if the Government informs the board that the services of the Chairman or any other member have ceased to be available, the board must not act until a new Chairman or member has been appointed.

Powers of Conciliation Officer

Conciliation Officer has all powers of a Civil Court when trying a suit in respect Duties of Conciliation Officer (Sec.13)

Conciliation Officer has to endeavour to bring about a settlement of a dispute referred to him and to do anything to induce the parties to come to a fair and amicable settlement. Where a settlement is reached a similar report and a memorandum of settlement have to be submitted to the appropriate Government. But in case of failure, apart from furnishing all the details as required in the case of a report, by a Conciliation Officer, he is also required to submit his recommendations for tha determination of the dispute. The time limit prescribed for submission of such reports is 2 months of the date on which the dispute was referred to him or within such shorter period as may be fixed by the appropriate Government or all the parties to the dispute may, however, further extend the period by agreement in writing. Where a dispute, in which the Board has failed to bring about a settlement, relates to a public utility service and the Government does not refer it to a Labour Court, Tribunal or National Tribunal, he must inform the parties concerned the reasons for not doing so. Courts of Inquiry (Sec.G)The appropriate Government may, as occasion arises, by notification in the official Gazette, constitute a Court of Inquiry for inquiring into any matter appearing

to be connected with or relevant to an industrial dispute. Such a Court may consist of one or more independent persons, as the Government may appoint. Where it consists of more than one member, one of them shall be appointed as Chairman. The Court having the prescribed quorum may act even if the Chairman or a member is absent; but not if the services of the Chairman have ceased to be available, and on other Chairman has beer' appointed. The Court shall inquire into the matters referred to it and report thereon to the appropriate Government within 6 months from the date of commencement of the inquiry.

Members of Court of Inquiry shall deemed to be public servants within the meaning of Sec. 21 of IPC. The Court of Inquiry, 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.On a perusal of the relevant Sections 22, 23 and 33 of the Act. relating to the Court during the pendency of a proceeding before a Court of Inquiry, the following right remain unaffected, such as:

(i) The right of a workman to go on strike

(ii) The right of an employer to lookout his business. and

(iii) The right of the employer to dismiss or otherwise to punish the workman in certain cases under Sec.33

Duties of Courts of Inquiry (Sec. 14)

The Court of Inquiry of shall inquire into the matters referred to it and the

report of Inquiry thereon be presented before the appropriate Government; ordinarily within a period of 6 months from the commencement of inquiry.

The report of the Court of Inquiry shall be in writing and be signed by all the members of the Court, provided that a member may record a minutes of dissent also. Labour Court The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any of the following matters or for performing such other function as may be assigned to them under the Act. The functions of the Labour Court as provided in the

. Act. are:

(i) Adjudication of industrial disputes relating to any matter specified in the

Second Schedule

(ii) Performing of such other functions as may be assigned to them under this Act. 1 he following matters are specified in the Second Schedule, namely

(i) The propriety or legality of an order passed by an employer under Standing Orders; .

(ii) The application and interpretation of Standing Orders;

(iii) discharge or dismissal of workman including re-instatement of, or grant of relief to; workmen wrongfully dismissed;

(iv) withdrawal of any customary concession or privilege;

(v) illegality or otherwise of a strike or lockout; and

(vi) all matters other then those specified in the Third Schedule.

. According to sec.? (2) a Labour Court shall consist of one person only who shall be appointed by the appropriate Government. But no person shall be appointed as Presiding Officer of a Labour Court, unless (a) he is, or has been a judge of a High Court; or (b) he has for a period not less then 3 years been a District Judge; or (c) he has held the office of the Chairman of any other member of any tribunal, for a period of not less then two years; or (e) he has been the presiding Officer of a Labour Court constituted under any provincial Act for not less than five years.

Powers of the Labour Court (Sec. 11)

Powers of the Labour Court to give appropriate relief in case of discharge or

dismissal of workman are as under.

(1) Subject to any rule that may be made in this behalf, the labour Court

may follow such procedure that it may think fit.

(2) The Presiding Officer of the Court may, for the purpose of inquiry into any existing or apprehended dispute, enter into the premises occupied by any establishment to which the dispute relates.

(3) The Labour Court shall have all the powers as are vested to a Civil

Court.

(4) If it thinks fit, appoint one or more persons, having special knowledge.

of the matter under consideration, as an assessor to advise it in the

proceedings before it.

Duties of Labour Court (Sec. 15)

Where an industrial dispute has been referred to Labour-Court, for adjudication, it shall hold its adjudication expeditiously and shall, submit its award to the appropriate Government. The award of Labour Court shall be in writing and be signed by its Presiding Officer (Sec.16)

Every award of Labour Court, shall within a period of 30 days from the date of its receipt by the appropriate Government, be published by if in the official Gazette. The award published by the. appropriate Government shall be final and binding on the parties to dispute. Sec.17 -A provides that an award (including arbitration award) shall become enforceable on the expiry of 30 days from the date of its publication under Sec. 17. The award shall not become enforceable on the expiry of 30 days:

.(a)if the appropriate Government is of opinion, in any case where the

award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party that it will be in expedient to give effect to the whole or any part of the award on public grounds effecting: .

(i) national economy, (ii) social justice..

(b)if the Central Government, in any case where the award has been given by a National Tribunal, on similar grounds in of the opinion that it would be in expedient to give effect to the whole .or part of the award.

For the purpose of stopping the enforcement of any award, a notification in the Official Gazette is necessary.

Industrial Tribunals (Sec. 7 A)

. Industrial Tribunals were created for it's first time by the Industrial Dispute Act.1947. Commenting upon the starts of these tribunal, the Supreme Court has observed that tribunals under the Act. are invested with many trappings of a Court; but do not have the same status as courts'. The Tribunal is the judicial body or at any rate, a quasi-judicial body2.

The appropriate Government may by notification in the Official Gazette, constitute one or more industrial tribunals for the adjudication of industrial dispute s relating to any matters specified above as in the case of Labour Court, or the following

matters, namely

(1) Wages including the period and mode of payment (2) Compensatory and other allowances;

(3) Hours of work and rest intervals;

(4) Leave with wages and holidays;

(5) Bonus, profit sharing, provident fund and gratuity;

(6) Shift working otherwise than in accordance with standing orders; (7) Classification by grades;

(8) Rules of discipline;

(9) Rationalization;

(10) Retrenchment of workmen and closure of establishment; and (11) Any other matter that may be prescribed.

A Tribunal shall consist of one person only to be appointed by the appropriate Government. A person to be appointed as a Presiding Officer of a Tribunal must .be, or must have been, a judge of a high Court; or if he has for a period of not less than three years, be a District Judge or on Additional District-Judge. Only experienced persons of high integrity can be appointed as Providing Officer of the Tribunal. It is provided by Sec.7-A(4) that the Appropriate Government, if thinks fit, may appoint two persons as assessors to advise the Tribunal in the proceedings before it.

Industrial Tribunals shall have the same power vested in a Civil Court when trying a suit, such as: (a) enforcing the attendance of any person and examining him on oath, (b) compelling the production of document and material object, (c) issuing commissions for the examination of witness and any such matters as may be prescribed.. .

National Tribunals (Sec 78).

. .

The Central Government may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals for the adjudication of industrial disputes which, in the opinion of the Central Government involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes.

A National Tribunal shall consist of one person only to be appointed by the Central Government. In order to be qualified as a Presiding Officer of a National Tribunal, a person must be or must have been a Judge of a High Court, or must have held the office of the Chairman or any other member of the Labour Appellate Tribunal for at least 2 years. The Central Government may appoint two assessors to advise the National Tribunal, in proceeding before it..

Disqualifications for Presiding Officiers of Labour Courts, Tribunals And National Tribunals (Sec.7 - C).

No person shall be appointed to, or continue in the office of the Presiding Officer of a Labour Court, Tribunal or National Tribunal if (a) he is not an independent person or (b) he has attained the age of sixty five years.

Filling of Vacancies (Sec. 8)

If a vacancy occurs in the office of the Presiding Officer of a Labour

Court, Tribunal or National Tribunal, the appropriate Government shall appoint another person in accordance with the provisions of the Act. A vacancy

may arise due to transfer resignation or acquisition of any disqualification as provided in Sec. 7 -C of the Act.

Finality of orders constituting boards (Sec. 9)

The main object of enacting Sec. 9 of the Industrial Disputes Act is to make immune, any order of the appointment made under Sections 5 to 7 of the Act, from being called in question. Therefore, no question can be raised whether an appointment was legally and properly made or not. Sec. 9 (1) of the Act provides that no order of the appropriate Government or of the Central Government appointing any person as the Chairman or any other member of the Board or Court, or as the Presiding officer of a Labour Court, Tribunal or National Tribunal shall be called in question in any manner on the ground of merely of the existence of any vacancy in, or defect in the constitution of such Board or Court.

Reference to grievance settlement authorities (Sec. 9-C)

A new Chapter II - B has been instead by Industrial Disputes (Amendment) Act, 1982 whereby a new Sec. 9 - C has- been added But this Chapter has not been enforced till now.

According to Sec. 9 - C:

(1) The employer in relation to every industrial establishment in which 50 or more workmen are employed or have been employed on any day in the preceding 12 months shall provide for a grievance settlement authority for settlement of industrial disputes with an individual workman employed in the establishment in accordance with the rules made' in this behalf under the Act.

.(2) Where an individual dispute connected with an individual workman arises in an establishment referred to in sub. sec. (1) a workman or any trade union cf workmen of which such workman is member, may refer in such manner as may be prescribed such dispute to Grievance Settlement Authority provided for, by the employer, for settlement.

(3) The Grievance Settlement Authority shall follow such procedure and complete its proceedings within such period as may be prescribed.

(4) 'No reference shall be made under Chapter III with respect to any dispute referred to in this section unless such dispute has been referred to the Grievance Settlement Authorities concerned and the decision of the Grievance Settlement Authority is not acceptable to any of the parities to the dispute.

Powers of National Tribunals (Sec.11)

1. Subject to any rules that may be made in this behalf, National Tribunal shall

follow such procedure as the arbitrator or other authority concerned may think fit.

2. The presiding officer of National Tribunal may for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates.

3. Every national Tribunal shall have the same powers as are vested in only experienced persons of high integrity can be appointed as presiding offer of the TribunaL It is. provided by Sec. 7 - A (4) that the Appropriate Government of it thinks fit may appoint two persons as assessors to advise the Tribunal in the proceedings before It a Civil Court under CPC, 1908 when trying a suit, in respect of the fo!!owing matters, viz.,-(a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of document and material objects; (c) Issued commissions for the examination of witness; (d) in respect of such other matters as may be prescribe: and every by a Board, Court, Labour Court, Tribunal or National Tribunal shall be deemed to be a judicial proceeding within the meaning of Sec. 193 arid 228 of the Indian Penal Code.

(4) National 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.

(5) All the Presiding Officers of a National Tribunal shall be deemed to be public

servants within the meaning of Sec. 21 of the Indian Penal Code.

(6) Subject to any rules made under this Act, the costs of, and incidental to, any proceeding before a National Tribunal shall be in the discretion of that National Tribunal, and shall have full power to determine by and to whom and to what extent and subject to what conditions, of any, such costs are. top be paid, and to give all necessary direction for the purpose aforesaid and such costs may, on application made to the .appropriate Government by the person entitled, be recovered by the Government in the same manner as an arrear of land revenue.

(7) Every National Tribunal shall be deemed to be a Court for the purpose of Sec. 480, 482 and 484 of the Criminal Procedure Code, 1948.

Note: The procedure and power of different authorities laid down under Sec. 11 of the Act, are equally applicable in the case of Conciliation Officers / Board, Court of Inquiry, Labour Court, And Tribunals.

Persons on whom settlement and awards are binding (Sec. 18)

For this purpose, settlements are classified into two catagories, namely

(i) Settlement arrived at otherwise than in the course of conciliation

proceedings, i.e. without the aid of statutory agency; and

(ii) settlement arrived at in the course of conciliation proceedings; Le. with

the aid of statutory agency.

In the first case, a settlement under Section 18(1) arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceedings, shall be binding on the parties to the agreement. But any such settlement; in order to be binding must be signed by the parties there to in the manner prescribed by rule and a copy of it must also be sent the appropriate Government. .

In the second case Sec. 18 (2 and 3) provide that an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the disJ3ute to the arbitration. This section 18(3) provides that

(i) a settlement arrived at in the course of conciliation proceeding under

this Act.

(ii) an arbitration award in a case where a notification has been issued

under sub section (3-A) of Sec. 10-A; or

(iii) an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall binding on;

(a) all parties to the in industrial dispute.

(b) all other parties summoned to appear in the proceedings as parties to the. dispute,

(c) where a party referred to is an employer, his heirs, successors or assigns in respect of the establishment in which the dispute relates.

(d) where a party referred to in clause (a) or (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part there of.Certain matters to be kept confidential (Sec. 21)

This section of the Act. provides that certain matters are to be kept confidential. Therefore, such things shall not be included in any report or award made under the Act. Any information obtained by a Conciliation Officer, Board, Court, Labour Court, Tribunal, National Tribunal or an Arbitrator in the course of any investigation on inquiry, which relates to a Trade Union on any individual business (whether carried on by a person, firm or company) which is not available otherwise than through the evidence given before any such authority, shall not be included in any report or award; if the parties concerned or in question has made a request in writing to treat such information as confidential.REFERENCE OF DISPUTES TO BOARDS, COURTS OR TRIBUNALS

Section 10(1) of the Industrial Disputes Act.,1947 provides that where the appropriate Government is of the opinion that any industrial dispute exists or apprehended, it may, at any time:

(a) refer the dispute to a Board of conciliation for promoting a settlement

there of; or

(b) refer any matter appearing to be Connected with or relevant to the dispute to a Court for Inquiry; or

(c) refer the dispute or any matter appearing to be connected with, or relevant to the dispute to a Labour Court for adjudication provided the dispute relates to any matter specified in the Second Schedule; or

(d) refer the dispute or any matter appearing to be connected with or relevant to the dispute to a Tribunal for adjudication, where it relates to any matter specified in the Second or Third Schedule., provided that:

(i) where the dispute relates to any matter specified in the Third

Schedule and is not likely to effect more than 100 workmen; the appropriate Government may make the reference to a Labour Court.

(ii) where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for the Government to refer the dispute to a Labour Court / Tribunal constituted by the State Government

(iii) where the dispute relates to a public utility service and a notice of strike or lockout under Sec. 22 has been the appropriate Government shall be competent to refer the dispute to a Labour Court or any Industrial Tribunal, Constituted by the Government.

Under Sec.1 0(1-A), the Central Government may refer any dispute to a National tribunal for adjudication, if it is the opinion that: (i) any dispute exists or is appended; and

(ii) the dispute involves any question of national importance; or

(iii) the dispute is of such nature that industrial establishment situated in

more than one State are likely to be interested in, or affected by such dispute; and

(iv) the dispute should be adjudicated by National Tribunal (the reference to National Tribunal shall be made by the Central Government only).

Sec.10(3) of the Act. provides that where an industrial dispute has been referred to Board, Labour Court, Tribunal or National Tribunal, under Sec. 10 of the Act, the appropriate Government may issue an order prohibiting the continuance of any strike or lockout in connection with such dispute which may be in existence on the date of reference.

Sec.10(6) of the Act. provides that where any reference has been made under sub-section (1-A) to a National Tribunal, then notwithstanding anything contained in this Act., no Labour Court or Tribunal shall have jurisdiction to adjudicate dicta upon any matter which is under adjudication before the National Tribunal.

Sections 10 and 1 O-A are the alternative remedies to settle industrial dispute. Once the parties have chosen the remedy under Sec.1 O-A, the Government cannot refer the same dispute for adjudication under Sec. 10. If any such reference is made, it is invalid.1

Voluntary Reference of Disputes to Arbitration (Sec. 10-A)

This section provides that where any industrial dispute exist or is apprehended, the employer and the workman agree to refer the dispute to arbitration, they may refer the dispute to arbitration: Such referen