Book ILGL.pdfApprentices Act, 1961 was enacted to regulate and control the programme of training of...

Editorial Board .............................................................................................................................................................................................................. iiiPreface ............................................................................................................................................................................................................................. ivSyllabus Mapping .......................................................................................................................................................................................................... v 1. ApprenticesAct,1961 ........................................................................................................................................................................................1 2. EmploymentExchanges(CompulsoryNotificationofVacancies)Act,1959 ..............................................................................15 3. EqualRemunerationAct,1976 .................................................................................................................................................................... 22 4. TheLabourLaws(ExemptionfromFurnishingReturnsandMaintainingRegisterbyCertainEstablishments)

Act,1988 ..............................................................................................................................................................................................................28 5. MaternityBenefitAct,1961 .......................................................................................................................................................................... 33 6. ChildLabour(ProhibitionandRegulation)Act,1986 .........................................................................................................................42 7. TradeUnionAct,1926 .................................................................................................................................................................................... 50 8. PaymentofWagesAct1936 .........................................................................................................................................................................60 9. MinimumWagesAct,1948 ...........................................................................................................................................................................72 10. PaymentofGratuityAct,1972 .....................................................................................................................................................................85 11. TheIndustrialEmployment(StandingOrders)Act,1946 ................................................................................................................104 12. Employees’StateInsuranceAct,1948.....................................................................................................................................................113 13. EmployeesCompensationAct,1923 ......................................................................................................................................................131 14. ThePaymentofBonusAct,1965 ..............................................................................................................................................................149 15. IndustrialDisputesAct,1947 .....................................................................................................................................................................174 16. FactoriesAct,1948 .........................................................................................................................................................................................196 17. ContractLabourAct,1970 ..........................................................................................................................................................................221 18. TheEmployees’ProvidentFundsandMiscellaneousProvisionsAct,1952 ...............................................................................243 19. LabourAuditorAuditUnderLabourLegislations .............................................................................................................................259 20. Constitution of India .....................................................................................................................................................................................268 21. LawofTorts.......................................................................................................................................................................................................303 22. LawofLimitationAct,1963 ........................................................................................................................................................................314 23. Interpretation of Statutes ............................................................................................................................................................................325 24. RighttoInformationAct,2005 ..................................................................................................................................................................341 25. SpecificReliefAct,1963 ...............................................................................................................................................................................355 26. CivilProcedureCode,1908 .........................................................................................................................................................................373 27. CriminalProcedureCode,1973 .................................................................................................................................................................387 28. IndianEvidenceAct,1872 ...........................................................................................................................................................................409Appendix 1: Legal Maxims .....................................................................................................................................................................................425Appendix 2: Status of Applicability .....................................................................................................................................................................429Past Year Examination Paper:December-2014 ..........................................................................................................................................435Past Year Examination Paper: June-2015 .....................................................................................................................................................446Past Year Examination Paper: December-2015 ..........................................................................................................................................457Past Year Examination Paper: June-2016 .....................................................................................................................................................469Past Year Examination Paper: June-2017 .....................................................................................................................................................484Past Year Examination Paper: December-2017 ..........................................................................................................................................493

Contents

c h a p t e r 1

List of Sections

Sections Particulars of Section

1 Extent and applicability

2 Definitions

2(aa) Apprentice

2(aaa) Apprenticeship training

2(e) Designated trade

2(f ) Employer

2(g) Establishment

2(j) Graduate apprentice

2(k) Industry

2(pp) Vocational apprentice or Technician Apprentice

2(q) Trade apprentice

2(r) Worker

3 Qualification for being engaged as an apprentice

4 Contract of apprenticeship

4A Objection on Contract of Apprenticeship by Apprentice Advisor

4B Registration of Contract of Apprenticeship by Apprentice Advisor

11 Obligations of employer

12 Obligations of Apprentices

13 Payment to apprentices

15 Hours of work, overtime, leave and holidays

17 Conduct and discipline

18 Apprentices are trainees and not workers

19 Records and Returns

20 Settlement of disputes

23 Authorities under the Act

30 Offences and penalties

Apprentices Act, 1961

2 I ndustr ia l , Labour and General Laws

Object and Scope of the ActApprentices Act, 1961 was enacted to regulate and control the programme of training of apprentices and for matters connected therewith.

Objective w To confirm to the prescribed training standards as laid down by the Central Apprenticeship Council.

w To utilize fully the facilities available in industry for imparting practical training with a view to meet the requirements of skilled manpower for industry.

w It extends to whole of India.

w Last Amendment 22nd December, 2014.

Quick Recap

[Section 2] Define of Following Terms

[Section 2(aa)] Apprentice Apprentice means a person who is undergoing apprenticeship training in pursuance of a Contract of Apprenticeship.

[Section 2(aaa)] Apprenticeship TrainingApprenticeship training means a course of training in any industry or establishment undergone in pursuance of a contract of apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices.

Appropriate GovernmentAppropriate Government means: (1) in relation to:

(a) the Central Apprenticeship Council, or (aa) the Regional Boards, or (aaa) the practical training of graduate or technician apprentices or of technician(vocational) apprentices,

or; (b) any establishment of any railway, major port, mine or oilfield, or (bb) any establishment which is operating business or trade from different locations situated in four or

more States, or (c) any establishment owned, controlled or managed by: (i) the Central Government or a department of Central Government,

3Apprent ices Ac t , 1961

(ii) a company in which not less than fifty-one per cent of the share capital is held by the Central Government on partly by that Government and partly by one or more State Governments,

(iii) a corporation (including a co-operative society) established by or under a Central Act which is owned, controlled or managed by the Central Govt; the Central Government

(2) in relation to: (a) a State Apprenticeship Council, or (b) any establishment other than an establishment specified in sub-clause (1) of this clause, the State

Govt; [Section 2(d)].

[Section 2 (e)] Designated TradeDesignated trade means any trade or occupation or any subject field in engineering or non-engineering technology or any vocational course which the central govt. after consultation with the central apprenticeship council, may by NIOG, Special by as designated trade for the proposal of this Act,

[Section 2(f)] EmployerEmployer means any person who employs one or more other persons to do any work in an establishment for remuneration and includes any person entrusted with the supervision and control of employees in such establishment.

[Section 2(g)] Establishment Establishment includes any place

w Where any industry is carried on AND

w Where an establishment consists of different departments or have branches, whether situated in the same place or at different places, all such departments or branches shall be treated as part of that establishment

[Section 2(j)] Graduate or Technician Apprentice w Graduate or technician apprentice means an apprentice who holds,

Or

w Is undergoing training in order that he may hold

w a degree or diploma in engineering or non-engineering technology or equivalents qualification granted by any institution recognized by the Government,

AND

w undergoes apprenticeship training in any designated trade.

[Section 2(k)] Industry Industry means any industry or business in which any trade, occupation or subject field in engineering non-engineering or technology or any vocational course may be specified as a designated trade or optional trade or both.

Optional Trade Optional trade means any trade or occupation or any subject field in engineering or non engineering or technology or any vocational course as may be determined by the employer for the purposes of this Act[Section 2(ll)].

Portal-sitePortal-site means a website of the Central Government for exchange of information under this Act {Section 2(lll)}.

c h a p t e r 2

List of SectionsSections Particulars of Section


2 Definitions

2(b) Employee

2(c) Employer

2(d) Employment exchange

2(e) Establishment

2(f ) Public sector establishment

2(g) Private sector establishment

4 Form and manner of notification of vacancies

5 Employers to furnish information and returns is prescribed form

6 Right of access to records or documents

7 Penalties

10 Empowers Central Government to make rules

Introduction and Applicability w Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 provides for the Compulsory

Notification of vacancies to Employment Exchanges.

w It Extends to the Whole of India.

Act not to Apply in Relation to Certain VacanciesEmployment Exchanges (Compulsory Notification of Vacancies) Act, 1959 does not apply in relation to vacancies in any employment: 1. In agriculture and horticulture in any establishment in private sector. 2. In domestic service. 3. To do unskilled office work. 4. Connected with the staff of Parliament. 5. Proposed to fill through promotion or by absorption of surplus staff. 6. Where the period of employment is less than three months. 7. Which carries a remuneration of less than sixty rupees a month.

Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959


Quick Recap

[Section 1] - Introduction and Applicability

Applicable to

whole of India

The objective of this act is to

provide for compulsory notification

of vacancies to employment exchanges

Non-Applicable

Establishment

in private sector

Employment

less than

3 months

Domestic

service

Unskilled

office work

Staff of

parliament

Vacancy to

be filed

by internal

sources (E.g.

promotion)

Remuneration

less than

60

per month

`

Agriculture Horticulture

Activities of Employment Exchange

Registration Placement Career Counseling Vocational Guidance

[Section 2] Define the following terms

[Section 2(b)] EmployeeEmployee means any person who is employed in an establishment to do any work for remuneration.

[Section 2(c)] EmployerEmployer means any person who employs one or more other persons to do any work in an establishment for remuneration and includes any person entrusted with the supervision and control of employees in such establishment.

[Section 2(d)] Employment Exchange Employment Exchange means any office or place established and maintained by the Government for the collection and furnishing of information, either by the keeping of registers or otherwise with details of:

w Persons who seek to engage employees. (Employers)

w Persons who seek employment. (Employees)

w Vacancies to which persons seeking employment may be appointed. (Vacancies).

17Employment Exchanges (Compulsor y Not i f icat ion of Vacancies) Ac t , 1959

[Section 2(e)] Establishment Establishment means any office or place where any industry, trade, business or occupation is carried on.

[Section 2(f)] Establishment in Public Sector Establishment in Public Sector is an establishment owned, controlled or managed by:

w The Government or a department of the government.

w A Government Company as defined in Section 2(45) of the Companies Act, 2013.

w A Corporation (including a Co–operative Society) established by or under a Central, Provincial or State Act, which is owned, controlled or managed by the Government.

w Local Authority

[Section 2(g)] Establishment in Private SectorEstablishment in private sector means an establishment which is not an establishment in public sector and where ordinarily twenty – five or more persons are employed to work for remuneration.

Quick Recap

[Section 2(b)]

Employee

[Section 2(c)]

Employer

[Section 2(d)]

Employment

Exchange

[Section 2(e)]

Establishment

[Section 2(f)]

Establishment

in Public

Sector

[Section 2(g)]

Establishment

in Private

sectorPerson

+ Employed

+ To work

+Remuneration

Person who

employ other

persons

+ Work

+ Remuneration

An office

established by

government for

Collecting and

furnishing information

Maintenance

of registers

Person who

seeks

employment

Person who

seeks to

engage

employees

Vacancies to which

persons seeking

employment can be

employed

appointed

Or

Industry

Where

Office Place

OccuptionBusiness

Trade

Non-public 25 or more

employees

Establishment

Owned Managed Control

Government

[Section 2] Definitions

Government

Department

Government

CorporationLocal

Authority

or

(+)

Carried on

Government Company

c h a p t e r 3

List of Sections


1 Object and scope

2 Definitions

2(a) Appropriate Government

2(d) Men and Women

2(g) Remuneration

2(h) Same work or work of similar nature

3 Act to have overriding effect

4 Duty of employer to pay equal remuneration

5 No discrimination to be made while recruitment

6 Advisory committee

7 Power of Appropriate Government to appoint officer to hear complaints

8 Duty of employer to maintain register

9 Inspector

10 Penalty

[Section 1] Object and Purpose of the Act w The Equal Remuneration Act, 1976 provides for payment of equal remuneration to men and women workers

for same work or work of similar nature without any discrimination. (Section 4)

w It also prevents discrimination against women employees while making recruitment. (Section 5)

w The provisions of the Act are applicable to all categories of employment.

w The Act extends to whole of India.

Quick Recap

To provide equal

remuneration to male and

female employees

under similar circumstances

To prevent

discrimination against

women employees

Extended to

all categories

of employment

Extends to

whole of India

[Section 1] Object and Scope

Equal Remuneration Act, 1976

23Equal Remunerat ion Ac t , 1976

Note: Article 39 of Indian Constitution states about equal Remuneration Act, 1976 before commencement of this act.

[Section 2] Define the Following Terms

[Section 2(a)] “Appropriate Government” means: w In relation to any employment carried on by or under the authority of the Central Government or a railway

administration, or in relation to a banking company, a mine, oilfield or major port or any corporation established by or under a central Act, the Central government, and

w In relation to any other employment, the State Government.

[Section 2(d)] “Men” and “Women”It means male and female i.e. human beings, respectively, of any age.

[Section 2(g)] RemunerationRemuneration means the basic wage or salary, and any additional emoluments whatsoever payable, either in cash or in kind, to a person employed in respect of employment or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled.

[Section 2(h)] Same Work or Work of a Similar NatureIt means work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment.

Quick Recap

(Central Government)

Railway + Mine + Oilfield + Port

+ Bank + Corporation established

by or under Central Act

(State Government)

Other Establishments

[Section 2(a)] Appropriate Government1.

[Section 2(d)] Men and Women2.

Male and Female of any age


[Section 2(g)] Remuneration3.

Additional EmolumentsWages or salary (+)

Cash Kind

4.

Skill Responsibility

[Section 2(h)] Same work or Work of similar nature

Work

Effort

Same

Whether

Men Womenor

If difference, then immaterial

or or

[Section 3] Act to have Overriding EffectThe Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of the Act.

[Section 4] Duty of Employer to Pay Equal Remuneration to Men and Women Workers for Same Work or Work of a Similar NatureThe Act provides that no employer shall pay to any worker, employed by him in an establishment or employment, remuneration, whether payable in cash or in kind, at rates less favourable than those at which remuneration is

c h a p t e r 4

List of SectionsSection Particulars of Section

1 Extent and Applicability

2 Definitions

2(d) Scheduled Act

2(e) Small establishments

2(f ) Very small establishments

6 Penalty

[Section 1] Introduction and Objective w The act provides for the exemption of employers in relation to establishments enjoying a smaller number of

persons from furnishing returns and maintaining registers under certain labour laws.


Quick Recap

Object

To exempt certain establishments

from

[Section 1] - Object and Applicability

Applicability

Applicable to whole of India

Furnishing

returns

Maintaining

registers

The Labour Laws (Exemption from Furnishing Returns and Maintaining Register by Certain Establishments) Act, 1988

orLabour Laws (Simplification of Procedure For Furnishing Returns and Maintaining Registers by Certain Establishments) Act, 1988

Form

er N

ame

New

Nam

e

29The Labour Laws (Exemption from Furnishing Returns and Maintaining Register by Certain Establishments) Act, 1988

[Section 2] Define the Following Terms [Section 2(d)] Scheduled Act Scheduled Act means the acts specified in the first Schedule: w The Payment of Wages Act, 1936 w The Weekly Holidays Act, 1942 w The Factories Act, 1948 w The minimum wages Act, 1948 w The motor transport workers Act, 1961 w The Plantation Labour Act, 1951 w The Working Journalist and Other Newspaper Employees (Conditions of Service) and Miscellaneous

provisions Act, 1955 w The Contract Labour (regulation and Abolition) Act, 1970 w The Sales Promotion Employees (Conditions of service) Act, 1976 w The Equal Remuneration Act, 1976 w The Payment of Bonus Act, 1965 w The Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. w The Dock Workers (safety, health and welfare) Act, 1986. w The Child Labour (Prohibition and regulation) Act, 1986. w The Building and other Construction Workers (regulation, employment and conditions of service) Act, 1996. w The Beedi and Cigarette Workers (Conditions of Employment) Act, 1966.

[Section 2(e)] Small Establishment Small establishment means an establishment in which not less than ten and not more than forty persons are employed or were employed on any day of the preceding twelve months.

[Section 2(f)] Very Small Establishment Very small establishment means an establishment in which not more than nine persons are employed or were employed on any day of the preceding twelve months.

Quick Recap

[Section 2]

[Section 2(d)] Scheduled Act

Act specified in 1st schedule

Upto 10-40

Employees

[Section 2(e)] Small Establishment [Section 2(f)] Very Small Establishment

Upto 9

Employees

On any day of preceding 12 months

1. actories Act, 1948

2. inimum wages Act, 1948

3. ayment of wages Act, 1936

4. ontract labour Act, 1970

5. qual Remuneration Act, 1976

F

M

P

C

E

6. ale Promotion Employees Act, 1976

7. lantation Labour Act, 1951

8. eekly Holiday Act, 1942

9. orking Journalist and newspaper employees

and miscellaneous provision Act, 1955

S

P

W

W

Exemption from Furnishing or Maintaining of Returns and Registers Required under Certain Labour LawsIt shall not be necessary for an employer in relation to any small establishment or very small establishment to which a scheduled act applies to furnish the returns or to maintain the registers required to be furnished or maintained under that scheduled act. However, such employers are required to:

w Furnish a Annual return in Form I.

w Maintain registers


In Form II, and Form III in the case of small establishments and In Form III in the case of very small establishments. It may be noted that as per section 2(d) “Scheduled Act” means the acts specified in the first schedule and includes the rules made there under.

Quick Recap

Furnish Annual Return Maintain Registers as per Schedule II

Exemption

Employer of

Small Establishment Very Small Establishment

Exempted under Act from Maintenance of Registers and Returns

(+)

But such employer shall

Form I

Small Establishment Very Small Establishment

Form II Form III Form III

(Or)

[Section 6] PenaltyAny employer who fails to comply with the provisions of this Act, shall, on conviction, be punishable in the case of the

w First conviction, with fine which may extend to rupees five thousandAND

w Subsequent conviction, with imprisonment for a period of atleast one month but which may extend to six months or with fine of atleast rupees ten thousand but may extend to rupees twenty – five thousand, or with both.


Quick Recap

To protect

the dignity of

motherhood

To provide healthy

maintenance to

women employee

and child at the

time of non-working

Mines Factory Shop PlantationCircus

Industry

Establishment

Employing 10

or more persons

Any other

establishment

by State Government

[Section 1 and Section 2] Object and Scope and Applicability

Women employee

covered under this Act

shall not be covered

under Employees State

Insurance Act, 1948

Extends to

whole of India

[Section 1] Objective [Section 2] Applicable to

Note: Section 2(1)(b) - State Government can make this Act applicable by giving 2 months notification with prior approval of Central Government.

[Section 3] Define the Following Term 1. [Section 3(a)]Appropriate government

§ Means in relation to an establishment being a mine or an establishment wherein persons are employed for the exhibition of equestrian (something related to jumping and horse riding) acrobatic and other performances the Central Government

AND

§ in relation to any other establishment, the State Government. 2. [Section 3(b)]Child includes a still – born child. 3. [Section 3(ba)] “Commissioning Mother” means a biological mother who uses her egg to create an

embryo implanted in any other woman. 4. [Section 3(d)] Employer means:

§ In relation to an establishment which is under the control of the government a person or authority appointed by the government for the supervision and control of employees or where no person or authority is so appointed the head of the department.

§ In relation to an establishment under any local authority the person appointed by such authority for the supervision and control of employees or where no person is so appointed the Chief Executive Officer of the local authority.

§ In case the person who or the authority which has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a Manager, Managing Director, Managing Agent or by any other name such person.

35Maternit y Benef i t Ac t , 1961

5. [Section 3(e)] “Establishment”means:

§ A factory

§ A mine

§ A plantation

§ An establishment wherein persons are employed for the exhibition of equestrian acrobatic and other performance

§ A shop or establishment

§ An establishment to which the provision of this act have been declared under Section 2(1) to be applicable.

6. [Section 3(h)] Maternity benefit Maternity benefit means the payment referred to in sub-section(1) of Section 5. 7. [Section 3(n)] Wages “Wages” means all remuneration paid or payable in cash to a woman if the terms of the contract of

employment expressed or implied were fulfilled and includes: 1. Such cash allowances (including dearness allowances and house rent allowances) as a woman is for

the time being entitled to, 2. Incentive bonus and 3. The money value of the concessional supply of food grains and other articles but does not include:

(a) Any bonus other than incentive bonus. (b) Overtime earnings and any deduction or payment made on account of fines. (c) Any contribution paid or payable by the employer to any pension fund or provident fund or for

the benefit of the woman under any law for the time being in force. (d) Any gratuity payable on the termination of service.

Quick Recap

[Section 3(a)] Appropriate Government

Central Government

[Section 3] Definitions

State Government

Mine (+) Acrobatic exhibition Other cases

[Section 3(b)] Child

Child includes still – born child

1.

2.

[Section 3(h)] Maternity Benefit3.

Benefit referred under section 5

c h a p t e r 6

List of Sections


1 Object and Scope

2 Definitions

2(i) Appropriate Government

2(ii) Child

2(iii) Day

2(iv) Establishment

2(vi) Occupier

2(x) Workshop

3 Prohibition of employment of Children in Certain Occupations and Processes

6 to 13 Regulation of Conditions of work of Children

7 Hours and Period of Work

8 Weekly Holiday

9 Notice to Inspector

11 Maintenance of Register

12 Display of Notice Containing abstract of Section 3 and 14

14 Penalties

[Section 1] Object and Purpose of the Act w The Child and adolescent Labour (Prohibition and Regulation) Act, 1986 enacted to prohibit the engagement

of children below the age of fourteen years in factories, mines and hazardous employments and to regulate their conditions of work in certain other employments.


w Last amended on 1st September, 2016.

Child and adolescent Labour (Prohibition and Regulation) Act, 1986

43Chi ld and adolescent Labour (Prohibit ion and Regulat ion) Ac t , 1986

Quick Recap

Object and scope

To regulate

conditions of work

Extent

It extends to

whole of India

Factories MinesMajor Ports Hazardous

employment

To prohibit engagement of

children below 14 years of age in

Objective

(+)

Note: Article 21A of Indian constitution states about Right to education per children of 6-14 years age.

[Section 2] Define of Following TermsSection 2 of the Act defines various terms used in the act, some of the definitions are given here under:

[Section 2(i)] Appropriate GovernmentIt means, in relation to an establishment under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government AND In all other cases, the State Government.

AdolescentAdolescent means a person who has completed his fourteenth year of age but has not completed his eighteenth year.

[Section 2(ii)] Child Child means a person who is less than 14 years of age or age given under Right of Children to Free and Compulsory Education Act, 2009, whichever is more .

[Section (iv)] Establishment Establishment includes a shop, commercial establishment, workshop, farm, residential hotel, restaurant, eating-house, theatre or other place of public amusement or entertainment.

[Section 2(vi)] Occupier Occupier, in relation to an establishment or a workshop, means the person who has the ultimate control over the affairs of the establishment or workshop.

[Section 2(x)] Workshop Workshop means any premises (including the precincts thereof ) wherein any industrial process is carried on, but does not include any premises to which the provisions of Section 67 of the Factories Act, 1948 applies.


Quick Recap

Definitions (Section 2)

1.

2.

3.

4.

5.

6.

[Section 2(ii)] Child

Person who has not completed 14 years of age

[ ] DaySection 2(iii)

Period of 24 hours beginning at midnight

[ Section 2(iv)] Establishment

Shop Workshop Hotel Theater

Farm Restaurant Public amusement

Commercialestablishment

Occupier[Section 2(vi)]

Ultimate control over affairs of establishment

[Section 2(x)] Workshop

Premises and Precincts where industrial process is carried on

[ ] Appropriate GovernmentSection 2(i)

Railway Mines Oil field Establishment

under control of

Central Government

State Government

Other cases

Central

Government

c h a p t e r 7

List of Sections



2 Definitions

2(a) Executive

2(b) Office bearer

2(d) Registered Office

2(e) Registered Trade Union

2(g) Trade Dispute

2(h) Trade union

4 Mode of registration

5 Application for registration

6 Provisions to be contained in the rules of Trade Union

9 Certificate of registration

10 Cancellation of registration

13 Incorporation of Registered Trade Union

28 Return of Trade Union

Trade Union Act, 1926

51Trade Union Ac t , 1926

[Section 1] Introduction of Trade Union Act, 1926 w Trade Unions Act, 1926 deals with the registration of trade unions, their rights, their liabilities and

responsibilities as well as ensures that their funds are utilized properly.

w It gives legal and corporate status to the registered trade unions.

w The Act is applicable not only to the union of workers but also to the association of employers.


Quick Recap

[Section 1] Introduction

This Act

deals with

Employee’s

Association

Employer’s

Association

It gives legal and

corporate status to

Registered Trade Union

Extends to whole of

India including

Jammu & Kashmir

It ensures proper

utilization of fund

Protection of Trade

Union from civil or

criminal prosecution

Applicable

Registration Liabilities Responsibility

of Trade Union

Rights

Define the Following Terms [Section 2] 1. [Section 2(a)] Executive Executive means the body, by whatever name called, to which the management of the affairs of a trade

union is entrusted. 2. [Section 2(b)] Office – Bearer Office – bearer in, the case of trade union, includes any member of the executive thereof but does not

include an auditor. 3. [Section 2(d)] Registered office Registered office means the office of a trade union which is registered under this Act as the head office. 4. [Section 2(e)]Registered trade union Registered trade union means a trade union registered under this Act. 5. [Section 2(g)] Trade Dispute Trade dispute means any dispute between

§ Employers and workmen

§ Workmen and workmen

§ Employers and employers


which is connected with the employment or non – employment, or the terms of employment or the conditions of labour, of any person, and “workmen” means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises.

6. [Section 2(h)] Trade Union Trade union means any combination, whether temporary or permanent, formed primarily for the purpose

of regulating the relations between workmen and employers or workmen and workmen, employers and employers, or for imposing restrictive conditions on the conduct of any trade or business and includes any federation of two or more trade unions.

Quick Recap

c h a p t e r 8

List of Sections


1 Extent & applicability

2 (ia) Employed Person

2 (ib) Employer

2 (ic) Factory

2 (ii) Industrial or other establishment

2 (iia) Mine

2 (iii) Plantation

2(iv) Railway administration

2(vi) Wages

3 Responsibility for payment of wages

4 Fixation of wage periods

5 Times of payments of wages

6 Medium of payment of wages

7 Deduction which may be made from wages

8 Deduction for fines

13 (A) Maintenance of registers and records

14 Inspectors

15 Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims

Payment of Wages Act 1936

61Payment of Wages Ac t 1936

Introduction w The Payment of Wages Act, 1936 is a central legislation which has been enacted to:-

y Regulate the payment of wages to workers employed in certain specified industries

And

y To ensure a speedy and effective remedy to them against unauthorized deductions or unjustified delay caused in paying wages to them.

w It applies to the persons employed in a factory, industrial or other establishment or in a railway, whether directly or indirectly or through a sub-contractor.

w In order to bring the law in uniformity with other labour laws and to make it more effective and practicable, the payment of wages Act was last amended in 2005.

w The Central Government is responsible for enforcement of the Act in railways, mines, oilfields and air transport services, while the State Governments are responsible for it in factories and other industrial establishments.

Quick Recap

Introduction

Extends to whole of IndiaIt is central legislation

enacted to regulate the

payment of wages of

certain classes of

employed persons

Objective is to eliminate

all mal-practiceces

by laying down the

standards related to

payment of wages

Object and Scope w The main object of the Act is to eliminate all malpractices by laying down the time and mode of payment of

wages as well as securing that the workers are paid their wages at regular intervals, without any unauthorized deductions.

w The Act extends to the whole of India.

Definitions 1. [Section 2(ia)]“Employed person” includes the legal representative of a deceased employed person. 2. [Section 2(ib)] “Employer” includes the legal representative of a deceased employer. 3. [Section 2(ic)] “Factory” means a factory as defined in clause (m) of section 2 of the Factories Act 1948 (63

of 1948) and includes any place to which the provisions of that Act have been applied under sub-section (1) of section 85 thereof.

4. [Section 2(ii)] “Industrial or other establishment” means any – a) Tramway service or motor transport service engaged in carrying passengers or goods or both by road

for hire or reward; (aa) Air transport service other than such service belonging to or exclusively employed in the military

naval or air forces of the Union or the Civil Aviation Department of the Government of India; b) Dock wharf or jetty; c) Inland vessel mechanically propelled;


d) Mine quarry or oil-field; e) Plantation; f ) Workshop or other establishment in which articles are produced adapted or manufactured with a

view to their use transport or sale; g) Establishment in which any work relating to the construction development or maintenance of

buildings roads bridges or canals or relating to operations connected with navigation irrigation or to the supply of Water or relating to the generation transmission and distribution of electricity or any other form of power is being carried on;

h) Any other establishment or class of establishments which the Appropriate Government may having regard to the nature thereof the need for protection of persons employed therein and other relevant circumstances specify by notification in the Official Gazette.

5. [Section 2(vi)] “Wages” means all remuneration (whether by way of salary allowances or otherwise) expressed in terms of money or capable of being so expressed which would if the terms of employment express or implied were fulfilled by payable to a person employed in respect of his employment or of work done in such employment and includes –

(a) Any remuneration payable under any award or settlement between the parties or order of a court; (b) Any remuneration to which the person employed is entitled in respect of overtime work or holidays or

any leave period; (c) Any additional remuneration payable under the terms of employment (whether called a bonus or by

another name) any sum which by reason of the termination of employment of the person employed is payable under any law contract or instrument which provides for the payment of such sum whether with or without deductions but does not provide for the time within which the payment is to be made;

(d) Any sum to which the person employed is entitled under any scheme framed under any law for the time being in force, but does not include –

(1) Any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a court;

(2) The value of any house-accommodation or of the supply of light water medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of Appropriate Government;

(3) Any contribution paid by the employer to any pension or provident fund and the interest which may have accrued thereon;

(4) Any travelling allowance or the value of any travelling concession; (5) Any sum paid to the employed person to defray special expenses entailed on him by the nature

of his employment; or (6) Any gratuity payable on the termination of employment in cases other than those specified in

sub-clause (d).

c h a p t e r 9



2 Definitions

2(b) Appropriate Government

2(e) Employer

2(i) Employee

2(h) Wages

2(g) Scheduled employment

3 Fixation of minimum rates of wages and its revision

4 Minimum rates of wages

5 Procedure for fixing and Revising Minimum Wages

7 Advisory Board

8 Central Advisory Board

11 Wages in cash or kind

12 Payment of minimum rates of wages is obligatory on employer otherwise is an offence

13 Fixing hours for normal working day

14 Overtime payment

15 Wages of workers who works for less than normal working day

17 Minimum time rate wages for piece work

18 Maintenance of Register and Records

20-21 Authorities and claims

22 Penalties for certain offences

22A Penalties for other offences

IntroductionThe main objective of the Minimum Wages Act is to prevent exploitation of labour by prescribing minimum wage rates and for that purpose, it has empowered the Appropriate Government to take steps to prescribe minimum rates of wages in certain employments, as specified in the Schedule to this Act. The act extends to whole of India.

Philosophy Behind the Enactment of the Minimum Wages Act, 1948

CASE LAW Unichoyi vs. State of Kerala

The philosophy of the Minimum Wages Act and its significance in the context of conditions in India, has been explained by the Supreme Court in Unichoyi vs. State of Kerala

Minimum Wages Act, 1948

73M inimum Wages Ac t , 1948

w The purpose of Minimum Wages Act, 1948 is to prevent exploitation of labour and for that purpose empowers the Appropriate Government to take steps to prescribe minimum rates of wages in the scheduled industries.

w In an underdeveloped country which faces the problem of unemployment on a very large scale, it is not unlikely that labour may offer to work even on starvation wages.

w The policy of the Act is to prevent the employment of such sweated labour in the interest of general public and so prescribed in minimum rates, the capacity of the employer need not to be considered.

w What is being prescribed is minimum wages rates which a welfare state assumes every employer must pay to his labour employed.

Quick Recap

Philosophy of the Minimum

Wages Act, 1948

Unichoyi Vs. State of Kerala

Purpose

To prevent exploitation

of labour by prescribing

minimum wage rates

[Section 1] Introduction

Applicability

Whole of India

including Jammu

and Kashmir

Enacted 15th

March, 1948

Important Definitions

[Section 2(e)] Employer“Employer” means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act. Person who engages workers through another like a contractor would also be an employer. It was held in Nathu Ram Shukla vs. State of Madhya Pradesh that if minimum wages have not been fixed for any branch of work of any scheduled employment, the person employing workers in such branch is not an employer within the meaning of the Act.

[Section 2(h)] Wages“Wages” means all remunerations capable of being expressed in terms of money and includes house rent allowance but does not include: (i) The value of any house accommodation, supply of light, water, medical or any other amenity or any service

excluded by general or social order of the Appropriate Government. (ii) Contribution by the employer to any Pension Fund or under any scheme of social insurance. (iii) Any travelling allowance. (iv) Any sum paid to the person employed to defray special expenses entitled on him by the nature of his

employment. (v) Any gratuity payable on discharge.

[Section 2(i)] Employee“Employee” means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical in a scheduled employment in respect of which minimum rates of wages have been fixed, and includes an outworker, but does not include any member of Armed Force of the Union.


Quick Recap

[Section 2(b)] Appropriate

Government (AG)

Central

Government

State

Government

� Railways

Mines

Oilfields

Major Ports

Corporation established by a central Act

��

Other schedule

employmet

[(Section 2(i)] - Employee

Work from HomeLok Nath Nathu Lal Vs State of M.P Held

Outworker working from his home is employee

Work from

other premises

Establishment

Head of

Department

[Section 2(e)] - Employer

Factory under

Factory Act, 1948

Manager

Other cases

Occupier

Who employs

directly or

through another

Local authority

Chief Executive

Officer (CEO)

Wages [Section 2(h)] .All remuneration in money (+) HRA

Not included

GratuityLight

or

Waterbills

Medical

expenses

Defray

special

expenses

Provident

fund

Travelling

allowance

Outworker to clean

wash, alter,

repair, finishing,

ornamenting

Manual

Clerical

Skilled

Semi skilled

Unskilled

Employee by

Appropriate

Government

Not includes

member of

Armed Forces

of the Union

[Section 2(g)] ScheduleScheduled employment — Employment specified in

Part I Part II

12 entries Agriculture

c h a p t e r 10

List of Sections



2 Definitions


2(d) Controlling Authority

2(e) Employee

2(f ) Employer

2(h) Family

2(q) Retirement

2(r) Superannuation

2(s) Wages

2A Continuous Service

3 Controlling Authority

4 Payment of Gratuity

4A Compulsory Insurance

5 Power to exempt

6 Nomination

7 Determination of the amount of Gratuity

7A Inspector

7 B Powers of Inspector

8 Recovery of Gratuity

9 Penalties

13 Protection of Gratuity

Payment of Gratuity Act, 1972


[Section 1] Extent and Applicability of Payment of Gratuity Act, 1972When services of an employee are terminated due to retirement or otherwise, a lump sum amount is paid by employer to his employee like leave encashment, provident fund etc. Gratuity is also one of the amounts paid by employer to his employee at that time of termination of service. It is basically a retirement benefit to employees so that they can live comfortably after retirement. It is a lump sum payment made by an employer to an employee in consideration of his past service when the employment is terminated.

Extent and Application (Section 1)It extends to the whole of India: Provided that in so far as it relates to plantations or parts, it shall not extend to the state of Jammu and Kashmir. It shall apply to: • Everyfactory,mine,oilfield,plantation,portandRailwayCompany. • Everyshoporestablishment,withthemeaningofanylawforthetimebeinginforceinrelationtoshops

and establishment in a state, in which ten or more persons are employed, or were employed, on any day of theprecedingtwelvemonths.

• Suchotherestablishmentsorclassofestablishment, inwhichten or more employees are employed, or wereemployed,onanydayoftheprecedingtwelvemonths,astheCentralGovernmentmay,bynotification,specify in this behalf.

A shop or establishment to which this act has become applicable shall continue tobegovernedbythisactnotwithstandingthatthenumberofpersonsemployedthereinatanytimeafter it has become so applicable falls below ten.

Quick Recap

Introduction of gratuity Act, 1972

Gratuity is the one of the amount paid by the employer to his employees at the time of termination

of service. Gratuity is purely employer’s payment for which no contribution is made by employees

Extent and applicability [Section-1]

Applicable to

whole of India

In which atleast 10

or more employees

are working

1.Shop

2.Factory

3.Establishment

4.Plantation

5.Port

6.Railways

7.Mine

8.Oil fields

Once applicable

shall remain

applicable even if

no. of employees

subsequently falls

below 10

IntroducingJammu and Kashmir

except Plantationof Ports

Note: Before24thMay,1994,therewasawageceilingof`3,500pm.Fortheemployeesinordertobeeligibletoreceivegratuity

87Payment of Gratuit y Ac t , 1972

In the year 2009-10, there are 8 employees in an establishment, whereas during next year number of

employees increased to 12 and in next financial year it has been reduced to six employees Comment on

the applicability of Gratuity Act, 1972

As per Sec 1 of gratuity Act, 1972 this act is applicable to the establishment in which there are

atleast 10 more employees and once applicable shall remain applicable even if number of

employees subsequently fall below 10

In the first financial year i.e. 2009-10 there were B employees in an establishment and subsequently

increased to 12 employees in year 2010-11, and in the exceeding year i.e. 2011-12, number of employees

reduced to 6 employees

During 2009-10, there are only 8 employees and hence gratuity act is not applicable. But in the

year 2010-11, Gratuity Act shall be applicable as number of employees is 12. In the year 11-12, tough

there are 6 employees but Gratuity Act, will continue to apply because subsequent reduction in number

of employees shall not affect the applicability of gratuity act one applicable

According to Section

Facts of the problem

Conclusion

Case Study 1B

Definitions under Payment of Gratuity Act, 1972

[Section 2(e)] EmployeeEmployeemeansanyperson(other than an apprentice)employedonwages,inanyestablishment,factory,mine,oil field, plantation, port, railway company or shop, to do any skilled, semi-skilled or unskilled manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such personisemployedinamanagerialoradministrativecapacity.Thedefinitionof“employee”undersection2(e)oftheActhasbeenemendedbythePaymentofGratuity(Amendment)Act,2009tocovertheteachersininstitutionsretrospectively with effect from 3rd April, 1997.

[Section 2(f)] EmployerEmployermeans in relation toanyestablishment, factory,mine,oilfield,plantation,port, railwaycompanyorshop:

w Belongingto,orunderthecontroloftheCentralGovernment oraStateGovernment,apersonorauthorityappointed by the Appropriate Government for the supervision and control of employees or where no person a authority has been so appointed, the head of the Ministry or the Department concerned.

w Belonging to, or under the control of, any local authority, the person appointed by such authority for supervision and control of employees or where no person has been so appointed, the Chief Executive Officer of the local authority.

c h a p t e r 11

List of Sections



2 Definitions

2(a) Appellate authority

2(b) Appropriate Government

2(c) Certification officer

2(d) Employer

2(e) Industrial establishment

2(g) Standing orders

2(i) wages & workman

3 Submission of draft Standing order

4 Conditions for certification of S.O & Fairness or reasonableness of S.O.

5 Certification of standing order

6 Appeals

7 Date of operation of standing order

8 Register of standing order

9 Posting (Display) of standing order

10 Duration and modification of standing order

10A Subsistence allowance

12A Temporary application of model standing orders

13A Interpretation of standing order

13B Act not to apply to certain industrial establishments

14 Power to exempt

IntroductionThe Industrial Employment (Standing Orders) Act, 1946 is designed to provide service rules to workmen. The object of the Act is to require employers in industrial establishments to formally define conditions of employment under them.

CASE LAW Barauni Refinery Pragati Sheel Parishad vs. Indian Oil Corporation Ltd. (1991)

The object of the Act is to have uniform standing orders in respect of matters enumerated in the Schedule to the Act, applicable to all workers irrespective of their time of appointment (Barauni Refinery Pragati Sheel Parishad vs. Indian Oil Corporation Ltd. (1991))

The Industrial Employment (Standing Orders) Act, 1946

105The I ndustr ia l Employment (Standing Orders) Ac t , 1946

CASE LAW Derby Textiles Ltd. vs. Karamchari and Shramik union (1991)

Certified standing orders become part of the statutory and not contractual terms and conditions of service and are binding on both the employer and the employees (Derby Textiles Ltd. vs. Karamchari and Shramik union (1991))

Quick Recap

Industrial Employment (Standing Orders) Act, 1946

Provide service

rules to

workmen

Provide service

rules to

workmen

Derby textiles ltd.Vs

Karamchari andShramik Union

Barauni RefineryPragatisheelParishad

VsIndian Oil Corporation

Formally defined

conditions of

employment

Service rules are

applicable to

all workers

Standing Orders are

statutory terms binding

on both employer and

employees

[Section 1]Object

Act is Applicableto whole of India

Applicability: Establishment employing at least 100 workmen

Establishment

(With less than 100 employees)

may apply Act

by 2 months notice inNIOG

Appropriate Government

Definitions

[Section 2(a)] Appellate AuthorityIt means an authority appointed by the Appropriate Government by notification in the Official Gazette, to exercise in such area, as may be specified in the notification the functions of an appellate authority under this Act.

[Section 2(b)] Appropriate Government“Appropriate Government” means in respect of industrial establishments under the control of the Central Government or a Railway administration or in a major port, mine or oilfield, the Central Government, and in all other cases the State Government.

[Section 2(c)] Certifying Officer“Certifying Officer” means a Labour Commissioner or a Regional Labour Commissioner, and includes any other officer appointed by the Appropriate Government by notification in the Official Gazette, to perform all or any of the functions of a Certifying Officer under this Act.

[Section 2(d)] Employer“Employer” means the owner of an industrial establishment to which this Act applies and also includes the following persons: i. A manager so named under [Section 7(1) (f )] of the Factories Act, 1948.


ii. The head of the department or any authority appointed by the Government in any industrial establishment under its control.

iii. Any person responsible to the owner for the supervision and control of any other industrial establishment which is not under the control of Government. [(Section 2(d)].

[(Section 2(e)] Industrial EstablishmentIt means: i. An industrial establishment defined by [Section 2(ii)] of the Payment of Wages Act, 1936, or ii. A factory as defined by [Section 2(m)] of the Factories Act, 1948, or iii. A railway as defined by [Section 2(4)] of the Indian Railways Act, 1890, or iv. The establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial

establishment, employs workmen.

[(Section 2(g)] Standing Orders“Standing orders” means rules relating to matters set out in the schedule to the Act.

[(Section 2(f)] Wages & workman:Have the meaning respective, assigned to them in clause (rr) & (s) of section 2 of Industrial Disputes Act, 1947.

Quick Recap

c h a p t e r 12

List of Sections



2 Definitions

2(9) Employee

2(1) Appropriate Government

2(3) Confinement

2(4) Contribution

2(10) Exempted employee

2(13A) Immediate employer

2(14) Insured person

2(15A) Permanent Partial Disablement

2(15B) Permanent Total Disablement

2(17) Principal Employer

2(19A) Seasonal factory

2(21) Temporary Disablement

2(22) Wages

2A Registration of Factories and Establishments

3 Establishment of Employees’ State Insurance Corporation

4 Constitution of Corporation

19 Corporation’s Power to Promote Measures for Health of Insured Persons

25 Regional Boards, Local Committees, Regional and Local Medical Benefit Councils

26 Employees’ State Insurance Fund

28 Purposes for which the Fund may be Expended

29 Holding of Property, etc.

38 All Employees to be Insured

39 Contribution of ESIC Fund

40 Principal Employer to Pay Contribution in the First Instance

41 Recovery of Contributions from Immediate Employer

43 Method of Payment of Contribution

46 Benefits of ESIC

65 Benefits not to be Combined

6 Corporation’s Rights where a Principal Employer Fails to Pay

73 Employer not to Dismiss or Punish Employee during Period of Sickness, etc.

74 Constitution of Employees’ Insurance Court

75 Matters to be decided by Employees’ Insurance Court

87 Exemption of a Factory or Establishment or Class of Factories Establishments

88 Exemption of Persons or Class of Persons

Employees’ State Insurance Act, 1948


IntroductionESI Act has been passed to provides for certain benefits to employees in case of sickness, maternity and employment injury and to make provisions for matters related thereto. It is basically an insurance scheme i.e., employees get benefits if they are sick or disabled. An organization called ESI Corporation has been formed under the Act to supervise the scheme. Employment Injury means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.

Quick Recap

Benefit to

employees

Introduction and ESI Act and Applicability

Cover sickness

and Maternity

Includes disablement

for employment injury

Also covers

occupational diseases

Injury caused to an employee

due to accident within or outside India

Note: Extends to whole of India.

Applicability of the ActESI Act is applicable to all factories. Here, the term factory means any premises where the manufacturing process is carried out with or without the aid of power, if at least 10 to 20 persons respectively, are employed. Employees’ State Insurance Act, 1948 extends to the whole of India. The Government can also make this Act applicable to any other industrial, commercial, agricultural, other establishments by issuing a notification. It may be noted that Government can exempt a factory or establishment from ESI Act if the employees are getting better medical facilities than what can be provided under this Act. For example, TISCO. It may be further noted that an employer/establishment covered under the ESI Act is exempt from the provisions of Maternity Benefit Act, 1961 and Workman’s Compensation Act, 1923. The Appropriate Government may, in consultation with the ESI Corporation and where the appropriate government is a State Government, with the approval of the Central Government, after giving six months’ notice of its intention, of so doing by Notification in the Official Gazette, extend the provisions of this Act, to any other establishment or class of establishments industrial, commercial, agricultural or otherwise. A factory or an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or manufacturing process therein ceases to be carried on with the aid of power.

115Employees’ State I nsurance Ac t , 1948

Quick Recap

Applicability of the Act

To all factories

Premises with manufacturing Process

With power Without power

Aleast 10 employees Aleast 20 employees

Note: Seasonal factories are not covered under this act.

Central Government

Can exempt this Act by notificationCan apply this Act, by notification of 1 month

Employees under this Act shall not be taken under

Employees Compensation Act, 1923Maternity Benefit Act, 1961

Non-Applicability

c h a p t e r 13

List of Sections


1 Extent & Applicability

2(1)(c) Meaning of compensation

2(1)(d) Dependent

2(dd) Employee

2(1) (e) Employer

2(1)(g) Partial disablement

2(1) (i) Qualified Medical Practitioner

2(1)(k) Seaman

2(1)(l) Total disablement

2(1)(m) Wages

2(1) (n) Employee (Formerly Known as Employee)

3 Employers liability for Compensation

4 Amount of Compensation or Compensation to be paid when due and penalty for default

5 Method of calculating wages

6 Review of half monthly payment

7 Commutation of half monthly payment

8 Distribution of compensation

9 Compensation not to be assigned,attached or charged

10 Notice and claim

10A Power of commissioner to require from employe statements regarding fatal accidents

11 Medical examination

12 Employer’s liability when contractor is engaged

14 Insolvency of employer and the compensation

14A Compensation to be first charge on assets transferred by employer

15 Special provisions relating to masters and seamen

15A Special provisions relating to captain and other members of crew of aircrafts

15B Special provisions relating to employees abroad of companies and motor vehicles

17 Contracting out of compensation

18A Penalties

19 & 20 Procedure in the proceedings before the commissioner

21 Venue of proceedings and transfer

22 Form of application

22A Power of the commissioner to require further deposit in case of fatal accident

23 Powers and procedure of commissioners

Employees Compensation Act, 1923


24 Appearance of parties

25 Method of recording evidence

25A Time limit for disposal of cases relating to compensation

26 Costs

27 Power to submit cases

28 Registration of agreements

29 Effect of failure to register agreements

30 Appeals

30A Withholding of certain payment decision of appeal

31 Recovery

Introduction, Extent and ApplicabilityThis Act provides social security to employees. Under this Act, a employee who dies or suffers disablement, partial or total, due to an accident is entitled to get compensation from his employer.

Extent and Applicability of the ActA employee covered under ESI Act, 1948 is not entitled to get compensation under Employees Compensation Act, 1923. Thus, Act is applicable to those factories, mines, transport establishments, construction works, etc. which are not covered under ESI Act, 1948.

Quick Recap

Social security to employees Compensation to employees

Introduction, Extent and Applicability

Employer

Disable/Death

Accident

Employment

EmployeeCompensation

Note:

Com

pensatio

nto

em

plo

yee

causin

g

death

or

dis

able

ment

due

toaccid

ent

caused

by

em

plo

ym

ent

133Employees Compensat ion Ac t , 1923

Factories Mines Transport Construction Other

Establishments

Applicability

Not covered under ESI Act, 1948

Objects and Scope of the Employees Compensation Act, 1923

Objects of the ActThe Employees Compensation Act, 1923 is a social security legislation. It aims to provide employee and/or their dependants some relief in case of accidents arising out of and in the course of employment and causing either death or disablement of employees. The object of the Act is that the compensation for injuries or death sustained by the employee be paid to him or his family members without any delay. The Act provides for cheaper and quicker mode of disposal of disputes relating to compensation through special proceedings than possible under the Civil Law.

Duty of Employer to inform employee of his rights Every employer shall immediately at the time of employment of an employee, inform the employee of his rights to compensation under this act, in writing as well as through electronic means, in English or Hindi or in the official language of the area of employment, as may be understood by the employee.

Scope of the ActThe Act extends to the whole of India. The Act came into force on the first day of July, 1924. It applies to railways and other transport establishment, factories, establishments engaged in making, altering, repairing, adopting transport or sale of any article, mines, docks, establishments engaged in constructions, fire brigade, plantations oil fields and other employments listed in Schedule-II of the Act. The Employees’ Compensation (Amendment) Act, 2000 has brought all the employees within its ambit irrespective of their nature of employment, i.e., whether employed on casual basis or otherwise for the purpose of employer’s trade or industry. Under Section 2(3), the State Governments are empowered to extend the scope of the Act to any class of persons whose occupations are considered hazardous after giving three months’ notice in the Official Gazette.

Non-ApplicabilityThe Act, however, does not apply to members serving in the Armed Forces of the Indian Union and employees covered under the Employees State Insurance Act, 1948 as disablement and dependent’s benefits are available to the employees under the ESI Act.

c h a p t e r 14

List of Sections



2 Definitions

2(1) Accounting Year

2(4) Allocable Surplus

2(5) Appropriate Government

2(6) Available Surplus

2(7) Award

2(11) Corporation

2(13) Employee

2 (14) Employer

2 (15) Establishment in Private Sector

2 (16) Establishment in Public Sector

2 (21) Salary or Wage

3 Establishment

4 Gross Profit

5 Available surplus

6 Deductions from gross profit

7 Computation of Tax

8 Eligibility to Receive Bonus

9 Disqualification from Receiving Bonus

10 Minimum bonus

11 Maximum bonus

12 Calculation of salary for making Bonus

13 Proportionate reduction in Bonus in Certain Cases

14 Computation of number of working days or Inclusion in working days

15 Set on & Set off of allocable surplus

17 Adjustment of customary / interim Bonus

18 Deductions of Certain amounts from Bonus

19 Time limit for recovery of bonus

The Payment of Bonus Act, 1965


20 Applicability of Bonus Act on Public Sector

21 Recovery of bonus

28 Penalty for Contravention

31A Productivity linked Bonus

32 Non Applicability of Bonus Act or Employees not covered under

36 Power of Exemption of C.G

Discuss the Extent and Applicability of Payment of Bonus Act, 1965Bonus is a reward for good work, behavior or share in the profits of an organization where the employee is working. Often there were disputes between employer and employee about bonus to be paid. Therefore legislation by the way of Bonus Act was passed to solve the problem of employer- employee conflict.

CASE LAW Hutti Gold Mines Kamgar Sangh vs.. Government of India and Jalan Trading Co. (Pvt.) Ltd. vs.. Mill Mazdor Sabha

The Supreme Court has explained the object of the Payment of Bonus Act, 1965 HGM and Jalan Trading to maintain peace and harmony between labour and capital by allowing the employees to share the prosperity of the establishment, and prescribing the maximum and minimum rates of bonus together with the scheme of “set off” and “set on” not only secure the right of labour to share in the profits but also ensure a reasonable degree of uniformity”.

Extent and ApplicationBonus Act, 1965 is applicable to every factory or other establishment in which 20 or more persons were employed on any day during the preceding accounting year. It may be noted that once the act is applicable, it continues to apply even if number of employee’s falls below 20.

Quick Recap

Objective, Scope and Applicability of Act

Hutti Gold Mines Kamgar Sangh

vs.

Government of India

Jalan Trading Co. (Pvt.) Ltd.

vs.

Mill Mazdoor Sabha

Object of the Act

To maintain peace and harmony between labour and capital by allowing the employees,

in recognition of their right, to share in prosperity of establishment.

Object

151The Payment of Bonus Ac t , 1965

Statutory

Liability

Bonus

Formula

Minimum and

Maximum Bonus

Machinery for

enforcement of liability

Four Dimensions

Factory

[Section - 1(2)] Application of Act

Establishment

Applicable to whole of India.

If employees 10 or more but less than 20 i.e. 10 to 19, then

overnment can make this Act applicable by serving at least 2 months notice by NIOG.G

Ramanujam Press vs. RPF, Commissioner.

Held - 20 or more persons even on 1 day is enough to make this act applicable on such establishment

Within 20 or more employees

or

Define the Following Terms, Under the Payment of Bonus Act, 1965

[Section 2(4)] Allocable SurplusIt means: (a) In relation to an employer, being a company (other than a banking company) which has not made the

arrangement prescribed under the Income Tax Act, 1961 for the declaration and payment within India of the dividends payable out of its profits in accordance with the provision of Section 194 of the Income tax Act, 1961, 67 percent of the available surplus in an accounting year.

(b) Any other case, 60 percent of the available surplus. The allocable surplus is the workers’ share towards the bonus to be distributed among them.

[Section 2 (6)] Available SurplusIt means the available surplus computed under Section 5. According to Section 5, the available surplus in respect of any accounting year shall be the gross profits for that year after deducting there from the sums referred to in Section 6. Provided that the available surplus in respect of the accounting year commencing on any day in the year 1968 and in respect of every subsequent accounting year shall be aggregate of : (a) The gross profits for that accounting year after deduction there from the sums referred in Section 6, and.

1c h a p t e r 15


2A Dismissal of individual workman to be deemed to be an industrial dispute


2(aa) Arbitrator

2(aaa) Average pay

2(b) Award

2(cc) Closure

2(ee) Controlled Industry

2(g) Employer

2(gg) Executive

2(i) Independent

2(j) Industry

2(k) Industrial dispute

2(kkk) Lay – off

2(l) Lockout

2(lll) Office bearer

2(n) Public utility service

2(oo) Retrenchment

2(p) Settlement

2(q) Strike

2(qq) Trade Union

2(ra) Unfair labour practice

2(rr) Wages

2(s) Workman

3 Work Committee

4 Conciliation officer

5 Boards of Conciliation

6 Courts of Inquiry

7 Labour Court

7A Tribunals

7B National Tribunals

Industrial Disputes Act, 1947

175I ndustr ia l Disputes Ac t , 1947

7C Presiding officer should be an independent person

9A Change in service conditions when no proceedings are pending before labour Court or Tribunal etc.

10 Reference of AG by Tribunal

11 Procedure and Powers of Authorities

11A Powers to give appropriate relief in case of discharge or dismissal

15 Duties

22 Notice of strike and lockout

23 General prohibitions of strike and lock outs

24 Illegal stikes and lock outs

25 No support of illegal strike

25T Unfair labour practices

25U Fines under unfair labour practices

26(1) Penalty for illegal strike

26(2) Penalty for lockouts

27 Penalty for instigation

28 Penalty for giving financial aid to illegal striker & lockouts

29 Penalty for breach of settlement or award

30 Penalty for disclosing confidential information

30A Penalty for closure without notice

31 Penalty for other offences

32 Penalty for offence by Companies

33 Change in conditions of service during pendency of proceedings

Introduction w The object of Industrial Disputes Act, 1947 is to make provisions for investigation and settlement of industrial

disputes.

w The purpose is to bring the conflict between the employer and the employees to an amicable settlement.

w The Act also provides machinery for settlement of disputes, if dispute cannot be resolved through collective bargaining.

w In addition to above, the Act also makes other provisions in respect of strike, lock-out, lay-off, retrenchment, etc.


Quick Recap

Object

Investigation

of dispute

Resolved conflict

and

Make settlement

Provisions for

Strike Lock-out Layoff Retrenchment

Background of Industrial Dispute in India

Employer’s and Workmen Dispute Act, 1860

Trade Dispute Act, 1929

Defence of India rule framed in 1940

Industrial Dispute Act, 1947

Meaning

[Section 2(j)] IndustryIndustry means any business, trade, undertaking, and manufacture of employers and includes any services, employment, handicraft, or industrial occupation of workmen. The meaning and definition of the term industry can be understood in a better manner as decided in Bangalore Water

CASE LAW Supply and Sewage Board Vs A. Rajappa and Others

Supply and Sewage Board Vs A. Rajappa and Others, a very wide interpretation of the term industry was given in the said case. It was held that any systematic activity organized by cooperation between employers and employees for the production or distribution of goods and services constituted to satisfy human wants and wishes is an industry.

Note: Profit motive or desire to generate income is not necessary for any undertaking to be covered under the concept of industry. It may lead to the conclusion that many charitable institutions, welfare organizations, clubs, cooperatives, hospitals, educational institutions, universities, etc. are also industries within the meaning of Industrial Disputes Act, 1947.

c h a p t e r 16

List of Section


2(a) Adult

2(b) Adolescent

2(bb) Calendar year

2(c) Child

2(ca) Competent person

2(cb) Hazardous process

2(d) Young person

2(e) Day

2(f ) Week

2(g) Power

2(h) Prime mover

2(i) Transmission machinery

2(j) Machinery

2(k) Manufacturing process

2(l) Worker

2(m) Factory

2(n) Occupier

6 Approval, Licensing and registration of factories

6(2) Automatic approval

7 Notice by occupier

7A General duties of the occupier

7B General duties of manufacturer etc.

9 Powers of Inspector

10 Certifying Surgeons

11 Cleanliness

12 Disposal of waste and effluents

13 Ventilation and temperature

14 Dust and fume

15 Artificial humidification

16 Overcrowding

17 Lighting

Factories Act, 1948

197Fac tor ies Ac t , 1948

18 Drinking water

19 Latrines and urinals

20 Spittoons

21 Fencing of machinery

22 Safety measure in case of work on or near machinery in motion

23 Employment of young persons on dangerous machines

24 Striking gear and devices for cutting off power

25 Self acting machines

26 Casting of new machinery

27 Prohibition of employment of woman and children near cotton openers

28 Hoists and lifts

29 Lifting machines, Chains, Ropes and lifting tackles

30 Safety measures in case of use of revolving machinery

31 Pressure plants

32 Floor, Stairs and means of access

33 Pits, Sumps, Opening in floors etc

34 Excessive weights

35 Protections of eyes

36 Precaution against dangerous, fumes, gases etc

36A Precautions regarding the use of portable electric light

37 Explosive or inflammable dust gas etc

38 Precautions in case of fire

39 Power to require specification of defective parts or test to stability

40 Safety of building or machinery

40A Maintenance of buildings

40B Safety officers

41 Power to make rules to supplement

41A Constitution of Site Appraisal Committee

41B Compulsory disclosure of information by the occupier

41C Responsibility of occupier in relation to hazardous process

41D Inquiry Committee

41E Emergency standards

41F Permissible limits of exposure of chemical and toxic substances

41G Workers Participation in safety management

41H Warning about imminent danger

42 Washing facilities

43 Facilities for storing and drying clothing

44 Facilities for sitting

45 First aid appliances

46 Canteens

47 Shelter, rest rooms and lunch rooms


48 Crèches

49 Welfare officers

50 Power to make rules to supplement

51 Weekly hours

52 Weekly holidays

53 Compensatory holidays

54 Daily hours

55 Intervals for rest

56 Spread over

57 Night shifts

58 Prohibition of overlapping shifts

59 Extra wages for overtime

60 Restriction on double employment

61 Notice of period of work for adults

62 Register of adult workers

63 Presence of worker during rest period

64 Power to make exempting rules

67 General prohibition as to employment of children

68 Conditions foremployment of children and adolescents – conditions

69 What is Certificate of fitness

70 Effect to certificate of fitness granted to adolescents

71 Working hours for children

72 Notice of periods of work for children

73 Register of child workers

75 Power to require medical examination

77 Certain other provisions of law not barred

78 Application of the chapter

79 Annual leave with wages

80 Wages during leave period

81 Payment in advance in certaincases

82 Mode of recovery of unpaid wages

92 General penalties for offences

93 Liabilities of owner of premises in certain circumstances

95 Penalty for obstructing inspector

96 Penalty for wrongfully disclosing of results of analysis under section 91

96A Penalty for contravention of sections 41B, 41C and 41H

97 & 98 Offences by worker and penalties

99 Penalty for permitting double employment of child by parents or guardians

101 Exemption of occupier or manager from liability in certain

104A Onus of providing limits of what is practicable etc

c h a p t e r 17

List of Sections

Sections Particulars of Sections1 Scope and Applicability

2 Definitions

2 (1) (a) Appropriate Government

2 (1) (b) Contract Labour

2 (1) (c) Contractor

2 (1) (d) Control Industry

2 (1) (e) Establishment

2 (1) (g) Principal Employer

2 (1) (i) Workman

3 Central Advisory Board

4 State Advisory Board

5 Power to Constitute Committees 6 Appointment of Registring Officer (R.O)

7 Registration of certain establishment

8 Revocation of registration in certain cases

9 Effect of non – registration

10 After – effect of abolition of Contract Labour

11 Appointment of licensing officer

12 Licensing of contractors

13 Grant of licenses

14 Revocation, suspension and amendment of license

15 Appeals

16 Canteen

17 Restroom

18 Other facilities

19 First aid facilities

20 Liability of principal employer in certain cases

21 Responsibility for payment of wages

22 Penalty for obstructing inspector

23 Penalty for contravention of act or rules

24 Other offences or miscellaneous penalty

25 Offences by companies

26 Cognizance of offences

27 Limitation of prosecution

28 Inspecting staff

29 Registers and other records to be maintained

Contract Labour Act, 1970


Purpose/Objective of the ActThe purpose of the Act is to regulate the employment of Contract Labour and to provide for abolition and prohibition of contract labour in certain cases.

Scope and Applicability of the ActThe Act extends to the whole of India. According to Section 1(4), it applies: a. To every establishment in which twenty or more workmen are employed or were employed on any day

of the preceding twelve months as contract labour. b. To every contractor who employs or who employed on any day of the preceding twelve months twenty or

more workmen. The Appropriate Government may, after giving not less than two months notice of its intention to do so, by notification in the Official Gazette, apply the provisions of this Act to any establishment or contractor employing such number of workmen less than twenty as may be specified in the notification.

Act not to apply to certain establishmentsAccording to Section 1(5), the Act shall not apply to establishments in which work only of an intermittent or casual nature is performed. If a question arises whether work performed in an establishment is of an intermittent or casual nature, the Appropriate Government shall decide that question after consultation with the Central Board or, as the case may be, with the State Board, and its decision shall be final.

Quick Recap

Non-applicability:

Scope and Applicability

Whole of India

Can apply act

2 month’s notification in NIOG

Contractor empolying 20 or more

workmen as Contract Labour any

day during preceeding 12 months

Establishment with 20 or more

workmen as Contract Labour any

day during preceeding 12 months

Appropriate GovernmentEstablishment or Contractor

with less than 20 workmen

Regulation of

Contract Labour

Abolition of

Contract Labour

Prohibition of

Contract Labour

Object

Casual nature workmen.AG shall decide what is of casual nature in consultation with Advisory Board

Whether Central or State.

223Contrac t Labour Ac t , 1970

Define the Following Terms

• [Section 2(1)(a)] Appropriate Government“Appropriate Government” means a. In relation to an establishment in respect of which the Appropriate Government under the Industrial

Disputes Act, 1947 is the Central Government, and the State Government. b. In relation to any other establishment, the Government of the State in which that other establishment is

situated.

• [Section 2(1)(b)] Contract LabourA workman is deemed to be employed as contract labour in or in relation to the work of the establishment if he is hired for such work by or through a contractor, with or without the knowledge of the principal employer.

• [Section 2(1)(c)] Contractor“Contractor”, in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor.

• [Section 2(1)(e)] EstablishmentEstablishment means any office or department of Government or a local authority or any place where any industry, trade, business, manufacturing, or occupation is going on. Every such establishment is required to get itself registered under the Act.

• [Section 2(1)(g)] Principal Employer“Principal Employer” means a. In relation to any office or department of the Government or a local authority, the head of that office

or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf.

b. In a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named.

c. In a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named.

d. In any other establishment, any person responsible for the supervision and control of the establishment.

• [Section 2(1)(i)] Workman“Workman” means any person employed in or in connection with the work of any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, but does not include any such person:

w Who is employed mainly in a managerial or administrative capacity, or

w Who, being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature, or

w Who is an out-worker, that is to say, a person to whom any articles or materials are given out by or on behalf of the principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of trade or business of the principal employer and the process is to be carried out either in the home of the out worker or in some other premises not being premises under the control and management of the principal employer.

c h a p t e r 18


1 Applicability

2 Definition

5A Central Board

5AA Executive Committee

6 Employee provident fund scheme

6A Employee pension scheme

7A Money due from employer

7B Review of order

7C Escaped Amount

(7I, 7L and7O) Appeal against order of officer

8B Recovery

10 Protection Against Attachment

12 Not to reduce salary for the purpose of reduction in contribution towards PF

13 Inspector & Power

16 Non applicability

16A Authorizing employer to maintain PF A/c

17 Exempted establishment

17A Transfer of Account

17B Liability of employee

[Section 1] Applicability of PF Act

FactoriesThe Act applies to every establishment fulfilling the following conditions: (a) The establishment is a factory. (b) The establishment is engaged in any industry specified in Schedule I. (c) The establishment employs 20 or more persons.

Any other establishmentThe Act applies to every establishment fulfilling the following conditions:

The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952


(a) The establishment employs 20 or more persons. (b) The Act has been made applicable to such establishment (or to the class of establishments in which such

establishment falls) by the Central Government by notification in the Official Gazette The Act applies to every establishment employing less than 20 person Than 20 persons if the following conditions are satisfied: (a) The Act has been made applicable to such establishment by Central Government by notification in the

Official Gazette. (b) Before issue of such notification, the Central Government shall give 2 months, notice to establishment.

Applicability on requestAn establishment to which the provisions of the Act do not apply, shall also be covered under the Act if the following conditions are satisfied: (a) An application for this purpose is made to the Central Provident Fund Commissioner. (b) The application is made by the employer and majority of employees of the establishment. (c) The Central Provident Fund Commissioner issues a notification in the Official Gazette making the

provisions of the Act applicable to such establishment.

Applicability to departments and branches [Section 2A]If the provisions of the Act become applicable to all establishment, and to all the branches of the establishment (wherever they are situated) shall also be covered under the Act.

Continued applicability of the ActIf the provision of the Act become applicable to an establishment once, then Act shall continue to apply to such establishment even if the number of Employees falls below 20.

Definitions [Section 2]

Factory [Section 2(g)]Factory means –

w Any premises, including the precincts thereof

w In any part of which a manufacturing process is being carried on or is ordinarily so carried on,

w Whether with the aid of power or without the aid of power.

Manufacture or Manufacturing Process [Section 2(ic)]Manufacture or manufacturing process means any process for making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal.

Employer [Section 2(e)] w In relation to an establishment which is a factory, employer means-

(a) The owner or occupier of the factory (Occupier means the person who has ultimate control over the affairs of the factory).

(b) The agent of such owner or occupier. (c) The legal representative of a deceased owner or occupier. (d) Person named as a manager of the factory under the Factories Act.

w In relation to any other establishment, employer means – (a) The person having the ultimate control over the affairs of the establishment;

245The Employees’ Provident Funds and M iscel laneous Provis ions Ac t , 1952

(b) The manager or the managing director to whom the affairs of the establishment are entrusted.

Employee [Section 2(f)] w Employee means any person –

(a) Who is employed for wages (b) In any kind of work, whether manual or otherwise, (c) In or in connection with the work of an establishment, (d) Who gets his wages directly or indirectly from the employer.

w Employee includes any person – i. Employed by or through a contractor in or in connection with the work of the establishment ii. Engaged as an apprentice (not being an apprentice engaged under the Apprentices Act, 1961 or under

the standing orders of the establishment).

Basic Wages [Section 2(b)] w ‘Basic wages’ means –

(a) All emoluments (b) Which are earned by an employee (c) In accordance with the terms of the contract of employment (d) Which are paid or payable in cash to him (e) While

(a) on duty; or (b) while on leave with wages; or (c) while on holidays with wages.

w ‘Basic wages’ does not include – i. The cash value of any food concession ii. Any dearness allowance (i.e, all cash payments by whatever name called, paid to an employee on

account of a rise in the cost of living) iii. House-rent allowance, overtime allowance iv. Bonus, commission or any other similar allowance payable to the employee in respect of his

employment or of work done in such employment v. Any present made by the employer.

Authorized Officer [Section 2(aa)] w Authorized officer means –

A. Central Provident Fund Commissioner B. Additional Provident Fund Commissioner C. Deputy Provident Fund Commissioner D. Regional Provident Fund Commissioner E. Such other officer as may be authorized by Central Government, by notification in Official Gazette.

Appropriate Government [Section 2(a)] w AG means Central Government in the following cases:

i. In relation to an establishment belonging to, or under the control of Central Government (Central Government).

ii. In relation to an establishment connected with a railway company, a major port, a mine or an oil field or a controlled industry.

iii. In relation to an establishment having departments or branches in more than one State.

c h a p t e r 19

Introduction of Audit under Labour Legislations w Audit under labour laws is a new concept, which is necessitated, in direct consequence of its non – compliance

in large scale.

w Even after over six decades of attaining independence, India is still plagued with victimization non-compliance of labour legislations is still at large.

w There is no system for reporting non-compliance of labour legislations by an independent professional like Company Secretary.

w Social justice is guaranteed by the preamble of our constitution.

Directive principles provide: w That the state should direct its policies towards securing the right of citizens, men and women, to an adequate

means of livelihood.

w That the economic system should not result in the concentration of wealth and the means of production to the common detriment.

w That there should be equal pay for equal work for both men and women.

w That the state should endeavour to secure the health and strength of workers.

w That state should ensure that the tender age of children is not abused.

w That childhood and youth are protected from exploitation and from moral and material abandonment.

w That state shall secure to all workers living wage, decent standard of living and free enjoyment of leisure. Labour Audit envisages a systematic scrutiny of records prescribed under labour legislations by an independent professional like company secretary in whole time practice (hereinafter referred to as PCS), who shall report the compliance and non – compliance of labour in the Indian industry establishments. The Report Should, ideally, be addressed to the Appropriate Government.

Labour Audit or Audit Under Labour Legislations


Quick Recap

Introduction

Additional right and benefits to

female employees

Equal pay for equal work to

Men and Women

No exploitation of childhood

Audit has been necessary due to non-compliance of Labour Laws

There is no adequate system for reporting of violation of Labour Laws

Directive Principle of State Policy also endeavour to promote welfare of people

Maternity

Benefit Act, 1961

Equal

Remuneration

Act, 1976

Child Labour Labour Act, 1986

Factories Act, 1948

Minimum Wages Act, 1948

Equal Remuneration Act, 1976

Secure health of workers

Secure adequate wages

No discrimnation among employee

Note: Practising company secretary (PCS)

Conduct

Labour audit

Report

1

2

Establishment

Appropriate Government

PCS

261Labour Audit or Audit Under Labour Legis lat ions

Scope of Labour Audit w The audit should cover all labour legislations applicable to an industry.

w If a particular piece of labour legislation is not applicable to a specific employer, the same should distinctly be disclosed in the report of an independent professional like Company Secretary in Whole time Practice.

w The mode of disclosure has to be decided in consultation with the Ministry of Labour.

Quick Recap

Scope of Labour Audit

Labour Audit is applicable to an establishment

covered under labour legislation.

If particular piece of labour legislation is not

applicable to an establishment (it needs to be)

disclosed in Labour Audit Report

Methodology of Conduct of Labour Audit w At the commencement of audit, the independent Professional like Company Secretary in Whole Time Practice

should define the scope of his audit. The scope will certainly differ from employer to employer.

w Accordingly, if the employer does not own a factory, the provisions of the factories act, 1948 will not be applicable.

w Company Secretary in Whole Time Practice should identify various Central and State Acts and Rules that are applicable to an employer. Based on such Identification, he should commence Scrutinizing the Compliance of provisions of Various Acts/Rules.

w Checklist for compliance of each legislation has to be formulated before commencement of his audit.

Quick Recap

Methodology to conduct Labour Audit

Conducted by PCSDiffers from

employer to

employer

Detailed knowledge of

various Central as wellas State Acts

On the basis of his knowledge labour

auditor must prepare of

various labour legislations before

conducting audit

check list

c h a p t e r 20

List of ArticlesArticles Particulars of Articles

12 Definition of state

13 Justifiability of fundamental rights

14 Equality before the law and equal protection of the laws

15 Prohibition of discrimination on grounds only of religion,

16 Equality of opportunity in matters of public employment

17 Abolition of untouchability

18 Abolition of titles

19 to 22 Right relating to freedom

19(1)(a) Right to freedom of speech and expression

19(1)(b) Right to assemble peacefully and without arms

19(1)(c) Right to form association and union

19(1)(d) Right to move freely throughout the territory of India

19(1)(e) Right to reside and settle in any part of territory of India

19(1)(g) Right to practice any profession or carry on any trade business or occupation

20 Principles of Double Jeopardy, No Self Incrimination & No Expost Facts Laws

21 Protection of life and personal liberty

21A Right to education

22 Safe guards against Preventive detention

23 Prohibition of traffic in human being and forced labour

24 Prohibition of employment of children

25 Right to freedom of religion

26 Freedom to manage religious affairs

27 Freedom as to payment of tax for the promotion of any particular religion

28 Freedom as to attendance at religious instruction or religious worship in educational institutions

29 Protection of interest of minorities

30 Rights of minorities to establish and administer educational institutions

31A Saving of laws providing for acquisition of estates etc.

31B Validation of certain acts and regulations

31C Saving of laws giving effect to certain directive principles

32 Right to constitutional remedies or writs

Constitution of India

269Const i tut ion of I ndia

33 to 35 Supplementary provisions

51A Fundamental duties

53 Executive Power of the Union

123 Ordinance making powers of the President

148 Comptroller & Auditor General of India

149 Duties & Powers of (CAGI)

213 Ordinance making power of the governor

249 Parliament to Legislate with respect to matters in state list in the national interest

250 Parliament to legislate matters during a proclamation of emergency

252 Parliament to legislate for 2 or more states on the request of two or more states

253 Legislation for enforcing international agreements

301 Freedom of trade, commerce and intercourse

302 Parliament to impose restriction in the public interest

303 Parliament to make preferences or discrimination

304 Power of the state legislature

305 Saving of existing laws

307 Saving of laws providing for state monopoly

368 Amenability of fundamental rights

372 Continuance in force of existing laws & their adaptation

Introduction and Preamble w Constitution is a document which provides a basic legal framework by which the entire country is regulated.

w In the context of India, a Constituent Assembly was set up in the year 1946 to frame the Constitution of India, It appointed number of committees for suggesting recommendations in framing the Constitution of India and finally the Constitution of India was adopted by Constituent Assembly on 26th January 1950.

w The constitution of India contains 395 Articles, which are divided into 22 Parts and 12 Schedules.

w The Constitution deals with Structure of the Government, Rights of the Citizens, Principles to be followed by the State in the governance of the country, etc.

w Constitution of India is considered all supreme and has the overriding effect over all the laws governing the various aspects of our system.

w The Constitution of India is said to be mother of all laws, i.e., all the laws have their origin in the Constitution of India.

Preamble to Constitution of IndiaPreamble to the Constitution of India reads as:

WE THE PEOPLE OF INDIA. Having solemnly resolved to constitute India into a;

SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC AND REPUBLIC and to secure to all its citizens;

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and opportunity;And to promote among them all;


FRATERNITY assuring the dignity of the Individual and unity and integrity of the Nation.Although Preamble does not contain any substantive law, yet it is considered to be the most sacred part of the Constitution of India, if any provision of Constitution of India is ambiguous, then that provision has to be interpreted in the light of the contents of Preamble. The Supreme Court, in a number of cases, has held that Constitution is to be read and interpreted in the light of visions and values, pledges and sentiments expressed in the Preamble. The preamble truly represents the soul of our Constitution.

Quick Recap

Introduction

1946 – Constitution Assembly Appointed ↓

Bhabha Committee framed Constitution – 26 Jan, 1950

Constitution – Legal framework to regulate India

Constitution of India = U.S.A + U.K.

Both = President Prime Minister

Constitution

Constains Supreme LawMother of all

laws

395 Articles 12 Schedules22 Parts

Over - riding

effect over all laws

Preamble - It does not contain substantive law, but can be interpreted where provision is ambiguous.

People of India Sovereign

Socialist

Secular

Democratic

Republic

Justice

Liberty

Equality

Fraternity

Preamble

c h a p t e r 21

IntroductionTort may be defined as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere breach of trust. In order to make person liable, there must have been some act or omission in the performance of his legal duty. The act complained of should be legally wrongful in the related facts and circumstances. To be successful in action for tort, the plaintiff also has to prove legal damage. This legal damage can be understood by way of two doctrines: (i) Injuria Sine Damno: The infringement of an absolute private right without any actual loss or damage. The

person whose right is infringed has a cause of action. In the leading case of Ashby vs. White (1703), the defendant, Polling officer wrongfully refused to register

a duly tendered vote of plaintiff, a legally qualified voter at parliament election and the candidate for whom the vote was to be tendered was elected and no loss suffered by election of vote, nevertheless it was held that an action lay and the plaintiff was entitled to recover compensation.

Quick Recap

Injury without Damage (Infringement (loss) of right)

Doctrine of Injuria Sine Damno

Infringement of private right without actual loss or damageAshby

vs.White (1703)

w Refused to register vote of qualified voter w Candidate elected, so no loss suffered w Plaintiff can claim compensation

(ii) Damnum Sine Injuria: Damage without injury. It is damage without breach of a legal right. It will not constitute a tort.

In the leading case of Glocester Grammar School Case (1410), the defendant, a school master, set up a rival school next door the plaintiff’s and boys from the plaintiff school flocked to defendant’s. It was held that no action could be maintained and the plaintiff was not entitled to any compensation.

Law of Torts


Quick Recap

Injury(Infringement

of right)

withoutDamage (loss)

Doctrine of Damnum Sine Injuria

Damage without injury or breach of legal right w It is no tort

Re-Glocester Grammer School Case (1410) w School master set up his own school and boys move to his school w Neither action can be maintained nor compensation can be claimed.

Wrongs to Personal Safety and FreedomThere are following kinds of trespass to person and personal liberty:

(a) BatteryA battery is the intentional and direct application of any physical force to the person of another without any lawful justification. The least touching of another in anger is battery. Throwing of water, making a person fall down by pulling his chair are examples of use of force. However, harm which is unintentional or caused by pure accident is not actionable.

CASE LAW Stainley vs. Powell

In Stainley vs. Powell, Powell who was the member of shooting party that fired at a peasant, but the bullet from his gun glanced off a tree and wounded Stainley, the plaintiff. It was held that Powell was not liable.

(b) AssaultWhen the force has not been actually used but there is merely apprehension in the plaintiff’s mind that the force may be used against him, this wrong is an assault. Pointing even an unloaded pistol at another may be considered as an assault.

(c) False Imprisonment or Wrong ConfinementIt is a total restraint of the liberty of a person without any lawful excused. Every confinement of the person is an imprisonment and if, it has been done without any lawful manner is a false imprisonment. Making of a false complaint the police by the defendants leading to the arrest to the plaintiff, if without justification will make the defendant liable for the false imprisonment.

(d) Malicious ProsecutionIt is malicious institution against another of unsuccessful criminal proceeding without any reasonable cause. If the accused succeeds in getting the final decision in his favour, he can file a suit for damages on the basis of his malicious prosecution. For the applicability of this tort, the following conditions must exist:

w There must have been a prosecution of the plaintiff by the defendant.

w There must have been want of reasonable cause for that prosecution.

w The defendant must have acted maliciously.

w The plaintiff must have suffered damages as a result of the prosecution.

w The prosecution must have terminated in favour of the plaintiff.

305Law of Tor ts

(e) DefamationIt is false statement affecting the reputation of other without any just cause or excuse. Defamation can be made by three methods.

w Libel: It is representation made in permanent form, i.e., writing, printing, pictures etc.

w Slander: It is publication in a transient form, i.e., spoken works, gestures etc.

w Innuendo: It is defamation by way of secondary meaning. For the applicability of this tort, following conditions must exists:

w Statement must be defamatory.

w It must be published. It means there must have been the communication of defamatory statement to the person other than the person defamed.

w The statement must be referred to the plaintiff.

w The statement is false.Note: The module of ICSI specifies libel and slander only.

(f) Bodily Harm A willful act (or statement) of defendant calculated to cause physical harm to the plaintiff and in fact causing physical harm to him, is a tort.

(g) Nervous Shock This branch of law is comparatively of recent origin. It provides relief when a person may get physical injury not by an impact, e.g., by stick, bullet or sword but merely by the nervous shock through what he has seen or heard. Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness must take place as a result of the emotional disturbance, fear or sorrow.

Quick Recap

Wrong to Personal Safety and Freedom

1. Battery -

Stainley vs. Powell

International and directapplication of (Coercion) physicalforce for e.g. Touching in anger

Member of shooting party firedbut glanced of tree wounded

plaintiff. Powell was not held liable.

2. Assault - No actual force,

but apprehension in plaintiff's

mind. For e.g. Showing slap

or unloaded pistol

3. False imprisonment

(Wrong Confinement) -

Confinement of a person

without any legal or lawful

reasoning.

4. Malicious prosecution -

Malicious institution against

another of unsuccessful

criminal proceedings

without any reasonable cause

5. Nervous Shock

Latest kind of Tort Includes mental agony No physical harm but Nervous Torture

• Prosecution of plaintiff

by defendant maliciously

case

MaliciouslyBut, A won case

Court may allow A to sue B

for the wrong done by him.

•

B A

c h a p t e r 22


3 Concept of time barred

4 Extension of time if court is closed

5 Doctrine of sufficient cause for expansion of time or condo nation of delay

6, 7 & 8 Period of limitation in the case of persons under legal disability

9 Continuous running of time

12 Calculation of limitation period in case of appeal.

14 Exclusion of time bonafide taken in a court without jurisdiction

16 Death of party

17 Fraud

18 Effects of acknowledgement in writing

19 Effect of part payment of principal amount on period of limitation

20 Acknowledgement by other person

24 Computation of time mentioned in instruments

25 Acquisition of ownership by possession i.e, 20 years in case of easement

IntroductionThe Law of the Limitation Act, 1963 applies to whole of India except J&K. The object of the Limitation Act, 1963 is to prescribe the period within existing rights can be enforced in courts of law. The principal on which the law of limitation is based is “Vigilantibuset Non Dormientibus Jura Subveniunt” i.e. the, law aids the diligent (Active) and not the indolent (LAZY). Its purpose is to prevent hearing of claims beyond a reasonable time because with passage of time all evidence of the facts may be lost.

[Section 27] Limitation Bars Remedy But does not Extinguish RightThe law of limitation only bars the remedy by way of the suit i.e., if the period of limitation expires, the party entitled to file a suit for the enforcement of a right is debarred from doing so. However, the original right on which the suit was to base is not barred. Thus, limitation only bars the judicial remedy but it does not extinguish the right. For example, where the recovery of a debt has become time barred by the lapse of the prescribed period limitation, the right to the debt is not extinguished. If the debtor, without being aware of the bar of time, pays the debt he cannot sue the creditor to refund the money to him on the ground that his claims for the recovery of the debt had become time barred.

Law of Limitation Act, 1963

315Law of L imitat ion Ac t , 1963

It may be noted that there is one exception to the aforesaid rule which is contained in Section 27 of the Limitation Act, 1963. It provides that where a person’s right to institute the suit for the possession of any property has become barred by limitation his right to the property itself shall be extinguished.

Limitation is the Statute of Repose (Relax/Rest), Peace and JusticeThe statutes of limitation are statute of repose because they extinguish stale demands and quite titles. They secure peace by ensuring security of rights and secure justice as by lapse of time evidence may have been destroyed.

CASE LAW S.C. Parashar Vs Vasant Sen

In S.C. Parashar Vs Vasant Sen, the Supreme Court has rightly observed that the statute of limitation is a statute of repose, peace and justice.

The intention of the law of limitation is not to give a right where there is not one, but to interpose a bar after certain period to a suit to impose an existing right. The object is to compel the litigant to be diligent in seeking remedies in court of law.

Quick Recap

Limitation Period

Whenever any party gets

a right, it also has a remedy.

No one can postpone the

right of remedy.

The law relating to limitation specifically

tells the period, till the aggrieved party

can get remedy.

“Vigilantibus Non Dormintibus Jura Subveniunt

Bombay Dying & Manufacturing Co.Ltd.

Vs.

State of Bombay (1958)

[Section 3] Concept of Time Barred

CASE LAW Raj Kishore Vs Kangli

Concept of time barred is incorporated in Section 3 of Limitation Act, 1963. According to this section, every suit must be instituted, appeal must be preferred and application must be made within the period of limitation as specified in the schedule II of Limitation Act.

CASE LAW Shaikh Maqbool Vs UOI

The provisions of this section are absolute and mandatory.

CASE LAW Shankar Dass Vs Sita Ram

The court will not proceed with the suit; application made beyond prescribed period of limitation and is liable to be dismissed when the suit, appeal or application has become time barred.


Quick Recap

Section 27

Limitation period for recovery of

money is 3 years, after that one has

a legal right, but remedy is lost.

Parties are advised to

persuade remedy within

the given time.

Law helps vigilant but those who

sleeps on remedy law doesn't

help them and let them sleep.

3 Case Laws

Raj Kishore Vs. Kangli Shaikh Maqbool Vs. UOI Shankar Dass Vs. Sita Ram

Application must be made within

limitation period

(Specified in Schedule II)

Limitation Act is absolute

& mandatory

Application filed after limitation period

must be dismissed

[Section 4] Extension of Time if Court is ClosedIf the limitation ends on the day, when the court is closed, then it will be extended upto the first working day when the court opens.

CS-3ASabar mal could not file an application in a Court on the last day of limitation because that was Saturday and a half working day. Can he file the application next day which is not a holiday?Answer: Section 4 of the Limitation Act 1963 provides that where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens. According to explanation given in said section, a court shall be deemed to be closed on any day within the meaning of section 4, if during any part of its normal working hours it remains closed on that day. In the given problem, in Saturday the Court was open. If during the working hours the court would have been closed for some reason, the application could be filed on next working day. Therefore, Sabar Mal can file the application on next working day.

Example: The prescribed period for filing suit, appeal or application expires on July 17. The court is closed on that day. Therefore the party concerned can file the suit, appeal or application on next day, i.e., July 18. The court re-opens on July 18 but is again closed after functioning for some time. In accordance with the Explanation to Section 4, it is permissible to file suit, appeal or application, as the case may be, on the next working day, i.e., July 19.

c h a p t e r 23

Introduction w Interpretation means decoding the law or finding out the meaning of the rules of law.

w Statute means the will of legislature.

w In the words of Bouvier’s Law dictionary, statute is a law established by the act of legislature.

w The object of interpretation of a written document is to discover the intention of the author.

w Interpretation is done by using two principles.

w Primary Principles AND Secondary Principles.

Primary Principles: These are principles which are used in first instance. If law can not be interpreted to its full extent, then secondary principles are applicable.

Quick Recap

Interpretation of Statutes

Introduction

Interpretation

To discover the meaning

Statutes

Law

Of

Statutes

Act of legislatureWill of legislatureLaw

Statutes is the law established by act of Legislature (Bovier’s law dictionary)

3 Components of Indian Constitution

Legislature

Law making body

Judiciary court

Interpretation is the sole

function of judiciary

Executory body

Different departments

Body responsible for

implementation of law

For e.g.:

Central level

Parliament

(Sansad)

State level

State legislature (Vidhan Sabha)




Introduction

Interpretation

To discover the meaning

Statutes

Law

Of

Statutes

Act of legislatureWill of legislatureLaw

Statutes is the law established by act of Legislature (Bovier’s law dictionary)

3 Components of Indian Constitution

Legislature

Law making body

Judiciary court

Interpretation is the sole

function of judiciary

Executory body

Different departments

Body responsible for

implementation of law

For e.g.:

Central level

Parliament

(Sansad)

State level

State legislature (Vidhan Sabha)

To discover intension

of author's mind

Objective of interpretation

To discover intension

of law

To bring intension of

author and law nearer= = =

To interpret words by

coinciding meaning

Delivered by

law maker

Received by

law reader

327I nterpretat ion of Statutes

Primary Principles or Rules of Interpretations

Quick Recap

Rules / Principles of Interpretation

Rules of Literal

construction

Rules of

Ejusdem

Generis

Rule of

Harmonious

Construction

Strict and

Liberal

Construction

Noscitur

A

Sociis

Primary Rules

Five Rules

Secondary Rules

Five Rules

Ut Res Magis

Valeat

Quam Pareat

Heydon’s Rule

or

Mischief Rule

or

Purposive Construction

or

Beneficial Interpretation

Contemporanea

Expositio

Est Optima Et

Fortissima in

Lege

Expressio Unis Est

Exclusio Alterius

Mandatory and

Directory Provisions

(i) Rule of Literal Construction/InterpretationAccording to this rule, the words, phrases and sentences of a statute are ordinarily to be understood in their natural, ordinary or popular and grammatical meaning unless such a construction leads to an absurdity or the content or object of the statute suggests a different meaning.

CASE LAW Nand Prakash Vohra vs. State of HP

Held-Interpretation should not be given which would make other provisions redundant.

A law can not be interpreted word to word in a different language. In this, the common and normal meaning is given to rules.

The objectives, natural, ordinary and popular are used interchangeably. They mean the grammatical or literal meaning, except when the words are technical because technical words have technical meanings.

In simple words, this rule means to give simple straight forward and fair meaning to the provisions of law. It is the simplest form of interpretation and also known as golden or primary rule of interpretation.

c h a p t e r 24

List of Sections


1 Extent and Applicability

2 Definitions

2(f ) Information

2(h) Public authority

2(i) Record

2(j) Right to information

2(n) Third party

3 Person entitled to right to information

4 Obligations of Public Authority

5 Designation of Public information officers

6 Manner of Request for information

7 Disposal of request

8 Information exempted from disclosure

9 Rejection of Request

10 Partial disclosure

12, 15 & 16 Information Commission

18 Power of Information Commission

19 Appellate Authorities

20 Penalties

23 Jurisdiction of Courts

24 Exclusion Under RTI Act

26 Role of Central or State Government

ObjectiveThe Government enacted RTI Act, 2005 which came into force w.e.f. October 12, 2005. This act entitles every Indian citizen to seek information from a public authority in the prescribed manner in order to promote transparency and accountability in the working of such public authority. This Act extends to whole of India except Jammu & Kashmir.

Right to Information Act, 2005


Before dwelling on the RTI Act, 2005, mention should be made that in R.P.Limited vs. Indian Express Newspapers, the Supreme Court read into Article 21 the “Right to Know”. The Supreme Court held that right to know is a necessary ingredient of participatory democracy. In view of transnational developments when distances are shrinking, international communities are coming together for cooperation in various spheres and they are moving towards global perspective in various fields including Human Rights, the expression “liberty” must receive an expanded meaning. The expression cannot be limited to mere absence of bodily restraint. It is wide enough to expand to full range of rights including right to hold a particular opinion and right to sustain and nurture that opinion. For sustaining and nurturing that opinion, it becomes necessary to receive information. Article 21 confers on all persons a right to know which include a right to receive information. It may be pointed out that the right to impart and receive information is a species of the right to freedom of speech and expression. Thus, a citizen has a right to receive information and that right is derived from the concept of freedom of speech and expression comprised in Article 19(1) (a). It may be pointed out that the Right to Information Bill was passed by the Lok Sabha on May 11, 2005 and by the Rajya Sabha on May 12, 2005 and received the assent of the President on June 15, 2005.

Quick Recap

Section 1 - Introduction

Enacted on October 12, 2005

� OBJECTIVE - Indian citizens seek information from public authority to:

Promote

AccountabilityFairnessTransparency

Extends to whole of India except J and K

Passed by

Lok Sabha

11 May, 2005

Passed by

Rajya Sabha

12 May, 2005

Assented

by President

15 June, 2005

Section 2 Definitions

Section 2(f) InformationIt means any material in any form, including:

w Records

w Document

w Memos

w E-mails

343R ight to I nformation Ac t , 2005

w Opinions

w Advices

w Press releases

w Circulars

w Orders

w Contracts

w Reports

w Papers

w Samples

w Models

w Data material held in any electronic form

w Information relating to any private body which can be accessed by a public authority under any other law, for the time being, in force.

[Section 2(j)] Right to InformationIt means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to:

w Inspection of work, documents, records.

w Taking notes, extracts, or certified copies of documents or records.

w Taking certified samples of material.

w Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any device.

[Section 2(n)] Third PartyIt means a person other than the citizen making a request for information and includes a public authority. Thus, when a person makes a request for an information which is not related to himself, it is request for an information related to a third party.

[Section 2(h)] Public Authority“Public authority” means any authority or body or institution of self-government established or constituted: (i) By or under the Constitution; (ii) By any other law made by the Parliament; (iii) By and other law made by the State Legislature; (iv) By notification issued or order made by the Appropriate Government;

[Section 2(i)] Record“Record” includes: (a) any document, manuscript and file; (b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (d) any other material produced by a computer or any other device;

c h a p t e r 25

List of SectionsSections Particulars of section

5 Recovery on the strength of title in immovable property

6 Recovery on the strength of possession in immovable property

7 Recovery of possession of movable property

8 Possession without legal ownership of movable property

10 Contract which can be specially enforced

11 Specific Performance of the contract may be enforced when the act agreed to be done is the performance of a trust

12 Specific performance of part of contract

14 Contracts which cannot be specifically enforced

14(3) Exceptions where the court may enforce the specific performance

15 Parties who may obtain specific performance

16 Specific Performance can’t be enforced in favour of a person

17 Contract to sell or let property by one who has no title

18 Non enforcement except with variation

19 Person against whom contract may be specifically performed

20 Discretion of the court

21 Court’s power to award damage in certain cases

26 Rectification of instrument

27 Rescission of contract

31-33 Cancellation of instrument

34 Meaning of declaratory decree

35 Effect of declaration

39 Mandatory injunction

41 Injunction when refused

42 Injunction to perform negative agreement

Specific Relief Act, 1963


IntroductionThe term ‘relief’ means the remedy granted for some wrong or injury. There are two types of remedies:-

w The first remedy is to “Specific Relief”.Remedy by which the aggrieved party obtains the same thing to which he is entitled.

w The second remedy is the “Compensatory Relief”. Remedy by which the aggrieved party does not obtain the very thing to which he is entitled but

compensation for the loss. When compensation can’t be measured or calculated and can’t be paid, then only specific performance

is available. Thus, specific relief is a relief in specie which aims at the “exact fulfillment of an obligation”. It is also known as equitable relief.

Quick Recap

Compel for Negative duty

Specific Performance & Injunction

Compel for Positive Duty

Positive in Nature

Deals with Contract

Negative in Nature

Deals with tort

or applicable as Equitable.

For Example

Nature

Negative NaturePositive in Nature

Court Compel for specific performance Court Compel for Injunction

The concept of specific relief is governed by various provision of Specific Relief Act, 1963. The Act isn’t applicable to State of Jammu & Kashmir.

357Speci f ic Rel ief Ac t , 1963

Quick Recap

Chapter I → Recovery Possession of PropertyChapter II → Specific Performance of ContractChapter III → Rectification of InstrumentsChapter IV → Rescission of ContractChapter V → Cancellation of InstrumentChapter VI → Declaratory DecreesChapter VII → Injunction GenerallyChapter VIII → Perpetual Injunction

Principles Upon Which Specific Relief is GrantedFollowing are the principles upon which remedy of specific relief is granted:

w Damages is not an adequate remedy Where damages in money are not an adequate remedy or relief, the court grants the remedy of specific relief. For e.g. Marriage contract

w Discretion of the Court An aggrieved party can always apply for the specific relief but whether specific relief will be granted or not it

depends upon the discretion of the court. But this discretion of the court is not arbitrary, depending upon the will and pleasure of the court. It has to be exercised on sound and established principles of equity.

w Specific relief granted depending upon nature of contract If a contract is of such a nature that its enforcement is necessary for justice to be done, then it must be enforced.

Quick Recap

Compensatory

Compensation

for loss

Exact Fulfillment

of Obligation

Granted if, compensation

can't be measured

Specific

Relief - Remedy

c h a p t e r 26

List of Sections

Sections Particulars of sections


2 Definitions

2(2) Decree

2(3) Decree holder

2(9) Judgement

2(10) Judgement – debtor

2(14) Order

3 Structure of civil court

6 Pecuniary jurisdiction depending on pecuniary value of the Suit

9 Court to try all civil suit unless barred

10 Stay of suit or Doctrine of Res - Sub – Judice

11 Doctrine of res-judicata

15 Place of suing (territorial) or Court in which suits to be instituted

19 Suits for compensation for wrong to person or movables

20 Other suits to be instituted where defendant resides or cause of action arises

113 Reference to high court

114 Review

115 Revision

List of Orders

Orders Particulars of Orders

8 Set off, Counter Claim &b Equitable Set off

Rule 6 Set off

Rule 6A Counter claim

Rule 6 Equitable set off

XXXIX Temporary Injunction

Rule 6 Interlocutory Orders

Rule 7 Detention, preservation inspection etc of subject matter of Suit

Civil Procedure Code, 1908


Rule 10 Deposit of money etc. in court

IX Appearance of parties & consequence of non-appearance

XI Discovery & Inspection

XVIII Hearing of suit & examination of witness

XIX Affidavit

XXI Execution of decree & orders

XXIX Suits by or against Corporations

XXXII Suits by or against Minors & Persons of Unsound Mind

XXXVII Summary Procedures

XLIII Appeals from orders

Introduction 1. It is a procedural law. 2. CPC deals with the civil cases known as suits or plaint. 3. The party who files a case is known as plaintiff and the other party is known as defendant.

Decree [Section 2(2)]It is a final adjudication of the rights of the parties conclusively in respect of any matter or all the matters.

Decree has the following features: w It determines the rights of the parties conclusively.

w Decree is a final adjudication.

w It is always conclusive.

w Decree may relate to any issue or on the issues.

w Decree is contained in judgement.

Decree may be: w Preliminary decree

w Final decree.

Preliminary Decree w It is a decree which is issued during the pendency of suit. It determines certain rights. It is issued where some

rights has been decided and some further rights are to be decided.

Final Decree w It is a conclusive decree which is issued by at the end of case. Final decree can’t over-rule the preliminary

decree. The final decree is always inferior to the preliminary decree and preliminary decree supersedes the final decree.

Order [Section 2(14)]Order is a determination of a matter or it is decision of court. Order means a decision which is not a decree. Orders are of 2 types:

w Interlocutory orders

w Other order.

375Civi l Procedure Code, 1908

Interlocutory orderThese are the orders which are issued during the pendency of a case. One order may supercede the other order. All the orders are subject to decree.Parties to decree. There are 2 parties.

Decree holder: It is a person in whose favour decree is issued. In other words rights are determined in his favour. Decree holder gets the decree executed. If a person is not a party of a case even then he may become a decree holder if the decree is issued in his favour. So even a person who is not a party of case may get the decree executed.

Judgement debtor (JD): It is a person against whom decree is issued. A judgement debtor may appeal to high court against a decree. A JD may get the execution of decree stayed until the appeal is decide

Judgement [Section 2 (9)]It means the statement given by the judge on the grounds of decree or order. Every judgement other than that of a court of small causes should contain: (1) A concise statement of the case (2) The points of determination (3) The decision thereon, and (4) The reasons for such decision.

Difference between Decree and Order 1. A Decree adjudicates and conclusively determines the rights of the parties, whereas an Order doesn’t do

so. 2. A Decree is always appealable unless prohibited by the law, whereas an Order is not appealable unless

permitted by the law. 3. Law may provide even for second appeal in case of Decree, whereas second appeal is not possible in the

case of an Order. 4. A Decree may be final or preliminary whereas an Order can’t be preliminary and it is always final.

[Order 9] Appearance of PartiesWhen a suit is filed by the plaintiff, a summon is issued to the defendant to file his written statement within 30 days from the date of serving of summon on him, and further to appear before the court on a fixed date. If after the due service of summon, the defendant does not appear and the plaintiff only appears, the court may proceed such defendant ex-parte which means in the absence of the defendant, proceeding in the suit will continue and the court will decide the suit on the basis of the facts, documents and the evidence of the plaintiff. If the plaintiff does not appear on that day, and the defendant appears, the court shall dismiss the suit, unless the defendant admits the claim of the plaintiff. However, if the defendant or the plaintiff as the case may be gives sufficient reason for his non-appearance on the previous date of hearing, the court may set aside ex-parte order or the order of the dismissal of the suit. The period of limitation for filling of an application to set aside an ex-parte decree is 30 days from the date of passing of the decree, or the date on which the applicant had knowledge of the decree when the summons was not duly served.

[Section 10] Stay of Suit Doctrine of Res Sub-JudiceThis provision requires that where there is identity of the matters directly or substantially is issue in two suits, then the subsequent suit must be stayed. This provision is also known as Res-subjudice.Note: It is to be noted that the subsequent suit is merely stayed and not dismissed. Secondly, the section does not bar the institution of a suit, it bars only the trial of such a suit. There are following essential conditions for stay of suit:

c h a p t e r 27

List of Sections Sections Particulars of Section


2 (a) Bailable and non Bailable offences

2 (c) Cognizable Offences

2(d) Complaint

2 (g) Inquiry

2 (h) Investigation

2 (i) Judicial Proceeding

2 (n) Offences

2 (l) Non-Cognizable Offence

2 (q) Pleader

2 (u) Public Prosecutor

2 (w) and 2 (x) Summon Cases and Warrant Cases

26 Power of Courts

28 Power of the Court to pass sentences

29 Power of a Criminal Court

30 Punishment for non-payment

31 Sentences in case of conviction of several offences at one trial

41 Non-Preventive Arrest or Arrest without warrant

42 Arrest on Refusal to give name and Residence

43 Arrest by a Private Person

44 Arrest by a Magistrate

45 Arrest of person of Armed forces

46 Arrest how made

61 Summon

70 Arrest Warrant

82 Issuing a proclamation

83 Attachment and sale of property

93 Search Warrant

129 Unlawful Assembly

133 Public Nuisance

Criminal Procedure Code, 1973


149 Information to the Police

153 Inspection of weights and measure

154 Inspection in cognizable cases

155 Information as to non-cognizable cases

156 Police officer’s powers to investigate cognizable cases

165 Search by police officer

177 Place of Trial

190 Cognizance of an offence by magistrate

193 and 194 Cognizance of an offence by Courts of session

257 Withdrawal of complaint in a summon case

260 Summary Trial

262 Procedure for summary trial

436 Bail

438 Anticipatory Bail

462 Proceeding in wrong place

467 to 473 Limitation for taking cognizance of certain offences

Introduction w The Criminal Procedure Code, 1973 is the general law relating to criminal procedures.

w The Code prescribes the procedure for the trial of offences specified in the Indian Penal Code, 1860.

w The main object of Criminal Procedure Code is to supplement the substantive law contained in Indian Penal Code, by prescribing the suitable procedure.

Quick Recap

General Law Trial of offencesDeals with

Criminal Procedures

Sub-ordinate to

Indian Penal Code, 1860

Criminal Procedure Code, 1973

[Section 2(n)] OffenceOffences mean any act or omission made punishable by any law for the time being in force. In simple terms, and offence is a wrong committed by any individual in a society. Following are the four elements which constitute the offence:-

w A Human being

w Mens Rea (guilty mind or intension).

389Cr iminal Procedure Code, 1973

Mens Rea is one of the principles of criminal law that a crime is not committed if the mind of the person doing the act in question is innocent. It is said that “ACTUS NON FACIT REAM NISI MENS SIT REA” i.e., the intention and act must both concur to constitute the crime and that is why it is said that guilty mind is necessary for liability in Criminal law. The general rule to be stated is “there must be a mind at fault before there can be a crime”.

w Illegal act i.e.; Actus Reas It means physical committing of an offence. For e.g. If A kills B and A had an intension to kill B then it’s a murder. If A had no intension to kill B it is not murder.

w Injury to another person For e.g. If a person has an intension to kill B, but does not, then offence is not committed. So actus reas is also necessary for crime.

Quick Recap

Human Being Mens Rea Actus Reus Injury to other person

Section 2(n) Offence

(+) (+) (+)

[Section 2(a)] Bailable and Non-Bailable Offence w Bailable offence means an offence which is shown as bailable in the first schedule of the Criminal Procedure

Code. Non-bailable offence is one which is not bailable.

w Bailable offences are less serious than non-bailable offences.

w A Bail, in the case of bailable offence, is a matter of right whereas a Bail, in case of non-bailable offence, depends upon the discretion of the court.

Section 436: Bail means the release of an accused from the custody of the officer of law and entrusting him to the private custody of person who become bound as surety to produce the accused to answer the charge at the stipulated time and date. Following are the Essential Elements of Bail:

w An offence has been committed.

w A person is guilty of offence.

w The offender is arrested.

w The offender is released from the custody of the police.

w Surety and security are taken from the offender.

Quick Recap

Bailable Offence Non-Bailable offence

First scheduleLess seriousNon cognizableBail is a right

Other than BailableMore SeriousCognizableAnticipatory bail at the discretion of court

c h a p t e r 28

List of SectionsSections Particulars of section


3 Definitions

6 Relevancy of facts forming part of the same transaction or Resgestae

8 Motive, preparation and conduct

9 Facts necessary to explain or introduce relevant Facts

11 Inconsistent Fact

17 Meaning of admission

24 to 30 Confession

24 Confessions be made freely & voluntarily without any threat or inducement

25 Confession made to police Officer is irrelevant & in admissible

27 Statement to Police Officer will be evidence if leads to discovery of facts

30 Confession by accused to be used against Co-accused in case of joint trial

32, 33 Person who can’t be called as witness

45 to 51 Opinion of 3rd party

56 to 57 Facts of which no evidence can be given

59 Hearsay or Oral Evidence

65 & 65B Electronic records

67A Proof as to digital signature

93 Exclusion of evidence to explain or amend ambiguous document

96 Evidence as to application of language to only one of several persons

115 Estoppel

118 Witness or Who may testify

121 to 127 Privelega Communications

121 Judges & Magistrates

122 Communications during marriage

123 Evidence as to affairs of state

124 Official Communications

125 Information as to Commission of offences

126 Professional Communications

127 Applicability of Section 126 to Interpretors

Indian Evidence Act, 1872


IntroductionEvidences are important part of the legal system. Indian Evidence Act, 1872 contains the general rules of evidence, which are applicable both in civil as well as in criminal matters Indian Evidence Act is applicable in whole of India except the state of Jammu & Kashmir. Section 3 of the Act recognizes the two categories of evidence i.e., oral evidence and documentary (written) evidence. Oral evidence means and includes all statements which the Court permits or required to be made before it by witnesses, in relation to matters of fact under enquiry. Documentary evidence means and includes all documents produced for the inspection of the Court.

w Affidavit: It is the written statement given by a person on oath. It mentions an allegation or fact. An affidavit can be treated as evidence only if the party so desired. In civil laws affidavits are normally accepted as evidences.

w Fact: A fact is defined u/s. 3 it means and includes:

y State of things.

y The relation of things with each other.

y Mental condition of a person.

Physical• Stateofthings• Relationofthings

Mental• Stateofmind

Fact

Relevant facts are those which help in proving the fact in issue. E.g. A murders B. In this case following are the fact in issue:

y Was he murdered?

y Did A murdered B? For the purpose of evidence, facts are divided into the following two categories: Fact in Issue: The facts which are constituent of a litigated right, liability, or disability are called facts in issue. Relevant Fact: In order to prove the existence or non-existence of facts in issue, certain other inter-connected fact may be given in evidence. They are called relevant facts.

Sec. 3. Legal Relevancy vs. Logical Relevancy of FactEvery fact must be legally relevant mere logical relevancy is not enough. Relevancy must be such as can be legally proved. In a fact is logically relevant it does not mean that it is legally relevant also. Normally a legally relevant fact is logical fact. So, a legal relevancy is a under term than a logical relevancy.

Legal Relevancy and Admissibility of FactEvery fact, if it is legally relevant may or may not be admissible. Every fact must be admissible only after that it can be accepted as an evidence.Every fact in issue may not be issue of fact while every issue of fact itself is fact in issue. Fact in issue is the subject matter of case. Further, issues of fact is a language used in C.P.C. while fact in issue is a language used in an Indian Evidence Act.

411I ndian Evidence Ac t , 1872

Relevant Fact. Evidences can be of these FactsRelevant facts are those mentioned under section 6 to section 55 these are as follows:

w Sec. 6 to sec.16: these are facts connected with the facts to be proved.

w Sec. 17 to sec.31: these are confession and admission.

w Sec. 32, 33: person who cannot be called as evidences. (dying declarations)

w Sec. 34 to sec.38: statement made under special circumstances.

w Sec.39: part of the statement to be proved.

w Sec. 40 to sec.44: judgement of court relevant for case.

w Sec. 45 to sec.51: 3rd party opinions.

w Sec. 52 to sec.55: characters of parties and accused in cases.

Relevancy of Facts Forming Part of the same Transaction [Section 6]Section 6 lays down the requirement that the inter-connection between facts in issue and other connected facts must be such that they form part of the same transaction. A transaction may be defined as a group of facts so connected together so as to referred to by a single legal name as a crime or a contract or a wrong or any other subject of enquiry which may be in issue. In Rattan v. Queen, a man was prosecuted for murder of his wife. His defence was that the bullet went off accidentally. There was evidence to the extent that the deceased, before her death, telephoned to telephone operator and said “get the police please”. Before the operator could have connected the call to the police, the lady had given the address and the call suddenly ended. Thereafter the police, the lady had given the address and the call suddenly ended. Thereafter the police came to the house and found the dead body of the lady. Her call and the words she had spoken to the telephone operator were held to be relevant as the part of the same transaction.

Or

Sec. 6. Facts Connected with the Fact in Issue (Res Geste).Meaning of Res GestaeThe term Res Gestae means surrounding or accompanying circumstances which are inseparable from the fact in issue and are necessary to explain the nature of the main act. They includes acts or declaration accompanying or explaining the transaction or fact in issue. The area of events covered by Res Gestae depends upon circumstances of each case. There are the facts which are connected with the fact in issue. Eg. A stabbed B and B died. After which B said something to C. Whatever was said by B to C is Res Gestae. Eg. During an aggression, certain students burnt a bus. Burning of bus is a relevant factor. So Res Gestae is a relevant fact as it is connected with the fact in issue which is required to be proved.

Motive, Preparation and Conduct [Section 8]Every crime can be divided into the following three stages i.e., Motive, Preparation and Conduct.Motive: It is the moving power which impels one to do an act. It is the inducement for doing an act. Motive by itself is no crime. Butonce a crime has been committed, the evidence of motive becomes important. In Tara Devi v. State of U.P., it was held that motive of a woman to get rid of her husband was not enough to convict particularly when her paramour was acquitted.Preparation: Preparation means the means and measures necessary for the commission of any offence.Conduct: Conduct means attempt to commit the crime and actual commission of the crime.

Previous Conduct of PartiesBehaviour of parties before committing an offence is a relevant fact. E.g. A demanded extortion money from B and B refused to pay after which B was killed by A.In this demanding of money is a previous conduct of parties and it is relevant fact.

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