Labour Law1

8/7/2019 Labour Law1

1/41

Labour Law

INTRODUCTION: Initially Labour law in India as labour legislation in order to protect the interests of

British employers, then came the Factories Act. It is well known that Indian textile goods offered stiff

competition to British textiles in the export market and hence in order to make Indian labour costlier the

Factories Act was first introduced in 1883 because of the pressure brought on the British parliament bythe textile magnates of Manchester and Lancashire. Thus we received the first stipulation of eight hours

of work and other. To date, India has ratified 39 International Labour Organization (ILO) conventions of

which 37 are in force. Of the ILOs eight fundamental conventions, India has ratified four ForcedLabour 1930, Abolition of Forced Labour 1957, Equal Remuneration 1951, and Discrimination

(employment and occupation) 1958.

The Ministry of Labour has the responsibility to protect and safeguard the interests of workers in general

and those constituting the deprived and the marginal classes of society in particular with regard to the

creation of a healthy work environment for higher production and productivity.

Trade Unionism: There are almost ten major central union organisations of workers based on different

political ideologies. Almost every union is affiliated to one of these. These central organizations have

state branches, committees, and councils from where its organisation works down to the local level. Thefirst central trade union organisation in India was the All India Trade Union Congress (AITUC) in 1920.

ILO ConventionsSpecific features of Conventions

Conventions are instruments designed to create international obligations for the states which ratify them.

In addition to its Conventions, the ILO has adopted a number of Recommendations, which are different

from the point of view of their legal character. Recommendations do not create obligations, but ratherprovide guidelines for action. Conventions have a number of specific features, which can be groupedunder four main ideas:

1. Conventions are adopted within an institutional framework. Thus, the adoption of Conventions doesnot follow the type of diplomatic negotiation which is usual in the case of treaties. They are rather

prepared in discussions in an assembly that has many points in common with parliamentary assemblies.This also partly explains the fact that unanimity is not necessary for the adoption of Conventions. For thesame reason, only the International Court of Justice can interpret the Conventions. The revision of

Conventions is made only by the General Conference, which is the legislative body of the Organization.

2. The International Labour Conference, which adopts Conventions, is constituted by representatives of

governments, employers and workers, each delegate being entitled to vote individually.3. A two-thirds majority is sufficient for the adoption of a Convention, and governments should submitthe Convention to their competent authorities for ratification, i.e. as a rule to their parliaments. Also, the

governments have the obligation, when requested, to supply reports on various issues related toConventions. (See overview of supervisory system)

4. Some Conventions include flexibility clauses, because they are generally directed towards countries

with very different economic, social and political conditions, as well as different constitutional and legalsystems. The flexibility clauses comprise options regarding the following:A. Obligations: possibility of choosing, at the time of ratification, by means of formal declaration, the

extent of the obligations undertaken. (for .e.g. Social Security Convention, No. 102)

B. Scope: Governments may decide for themselves, subject to certain consultations, what the scope of theConvention shall be (for. e.g. Conventions of minimum wage fixing machinery, Nos. 26 and 29), or theymay be permitted to exclude certain categories of persons or undertakings (for e.g. Conventions on night

work, Nos.41 and 89), or the definitions of persons covered may be based on a specified percentage of thewage earners or population of the country concerned (for e.g. many social security Conventions), or


2/41

exceptions are allowed for a certain part of the country (Various types of Conventions, for e.g. Nos. 24,

25, 62, 63, 77, 78, 81, 88, 94, 95, 96 etc.), or governments may themselves define a certain branch,industry or sector (for e.g. Weekly rest Convention, No. 106)

C. Methods: State which ratifies a Convention shall take such action as may be necessary to makeeffective the provisions of such Convention, custom, administrative measures or, in certain circumstances,

collective agreements.

Core ConventionsWhile ILO Conventions are not ranked in terms of their order of importance, there is an underlyinghierarchy, which can be discerned. In the first category are Conventions dealing with freedom ofassociation and collective bargaining (Conventions Nos. 87 and 89), forced labour (Conventions Nos. 29

and 105), non-discrimination in employment (Conventions Nos. 100 and 111) and child labour

(Convention 138). These core Conventions were identified and given prominence in the Conclusion of theWorld Summit for Social Development in 1995. In the second category are technical standards, which

establish norms to improve working conditions.

Freedom of Association and Protection of the Right to Organize Convention, 1948)

Establishes the right of all workers and employers to form and join organizations of their own choosingwithout prior authorization, and lays down a series of guarantees for the free functioning of organizations

without interference by the public authorities. In December 1997, 121 countries had ratified this

convention. Right to Organize and Collective Bargaining Convention, 1949Provides for protection against anti-union discrimination, for protection of workers and employers

organizations against acts of interference by each other, and for measures to promote collective

bargaining. In December 1997, 137 countries had ratified this convention.Forced Labour Convention, 1930

Requires the suppression of forced or compulsory labour in all its forms. Certain exceptions arepermitted, such as military service, convict labour properly supervised, emergencies such as wars, fires,

earthquakes, etc. In December 1997, 145 countries had ratified this convention.Abolition of Forced Labour Convention, 1957

Prohibits the use of any form of forced or compulsory labour as a means of political coercion or

education, punishment for the expression of political or ideological views, workforce mobilization, labourdiscipline, punishment for participation in strikes, or discrimination. In December 1997, 130 countries

had ratified this convention.Discrimination (Employment and Occupation) Convention, 1958

Calls for a national policy to eliminate discrimination in access to employment, training and workingconditions, on grounds of race, color, sex, religion, political opinion, national extraction or social originand to promote equality of opportunity and treatment. In December 1997, 129 countries had ratified this

convention.Equal Remuneration Convention, 1951

Calls for equal pay for men and women for work of equal value. In December 1997, 135 countries had

ratified this convention.Minimum Age Convention, 1973

Aims at the abolition of child labour, stipulating that the minimum age for admission to employment shall

not be less than the age of completion of compulsory schooling, and in any case not less than 15 years (14

for developing countries). In December 1997, 59 countries had ratified this convention.


3/41


4/41

FACTORY ACT, 1948:

Definitions:

Adult: means a person who has completed his eighteen year of age [Section 2(a)];Adolescent: means a person who has completed his fifteenth year of age but has not completed his

eighteenth year[Section 2(b)].

Child: means a person who has not completed his fifteenth year of age[Section 2(c)].Competent person: in relation to any provision of this Act, means a person or an institution recognized

as such by the Chief Inspector for the purpose of carrying out tests, examinations and inspections required

to be done in a factory under the provisions of this act having regard to

I. The qualifications and experience of the person and facilities available at his disposal; orII. The qualifications and experience of the persons employed in such institution and facilities

available therein.

With regard to the conduct of such tests, examinations and inspections and more than one person orinstitution can be recognized as a competent person in relation to a factory [Section 2(ca)].

Hazardous process: means any process or activity in relation to an industry specified in the first schedule

where, unless special care is taken, raw materials used therein or the intermediate or finished products,

bye products, wastes or effluents thereof would-

I. Cause material impairment to the health of the persons engaged in or connected therewith, orII. Result in the pollution of the general environment:

Provided that the State Government may, by notification in the official Gazette amend the first Scheduleby way of addition, omission or variation of any industry specified in the said

Schedule [Section 2 (cb)].Young person: means a person who is either a child or an adolescent [Section 2 (d)];

Day: mans under Section 2 (e), a period of twenty four hours beginning at midnight [Section 2 (e)];Week: means a period of seven days beginning at mid-night on Saturday night or such other night as maybe approved in writing for a particular area by the chief inspector of Factories

Power: means electrical energy or any other form of energy which is mechanically transmitted and is notgenerated by human or animal agency.Prime mover: means any engine, motor or other appliance which generates or otherwise provides power.

Transmission machinery: means any shaft, wheel, drum, pulley, system of pulleys, coupling, clutch,driving belt or other appliance or device by which the motion of a prime-mover is transmitted to orreceived by any machinery or appliance.

Factory: [Section 2 (m)];

Factory includes any premises including the precincts thereof-

I. Whereon ten on more workers are working, or wee working on any day of the precedingtwelve months, and in any part of which a manufacturing process is being carried on with theaid of power or is ordinarily so carried on; or

II. Whereon twenty or more workers are working, or were working on any day of the precedingtwelve months, and in any part of which a manufacturing process is being carried on without

the aid of power, or is ordinarily so carried on.But does not include a mine subject to the operation of the Mines Act, 1952 or a mobile unit belonging tothe armed forces of the union or a railway running shed, or a hotel, restaurant or eating place

Explanation I: For computing the number of workers for the purposes of this clause, all the workers indifferent groups and relays in a day shall be taken into account.Explanation II: For the purposes of this clause the mere fact that an Electronic Data Processing Unit or acomputer unit is installed in any premises or part thereof, shall not be constructed to make it a factory if

no manufacturing process is being carried on in such premises or part thereof.


5/41

Essentials elements of a factory: There must be premises. There must be a manufacturing process which

is being carried on or is so ordinarily carried on in any part of such premises. There must be ten or moreworkers who are/were working in such premises on any day of the last 12 months where the said

manufacturing process is carried on with the aid of power. But where the manufacturing process is carriedon without the aid of power, the required number of workers working should be twenty or more.

The following are not covered by the definition of factory:

i. Railway running sheds,ii. Mines,iii. Mobile units of armed forces,iv. Hotels, eating places or restaurants.

Manufacturing process : [Section 2(k)] : 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; or Pumping oil , water or sewage or

any other substance; or Generating, transforming, transmitting power; or Composing types for printing,

printing by letter press, lithography, photography or other similar process, or book binding; orConstructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or Preservingor storing any article in cold storage

Statutory Agencies and their Powers far Enforcement of the Act: The state government assumes the

main responsibility for administration of the act and its various provisions by utilizing the powers vestedin them. Section 3 empowers the state government to make rules for references to time of day whereIndian standard time, being 5-1/2 hours ahead of Greenwich Mean Time is not ordinarily observed. These

rules may specify the area, define the local mean time ordinarily observed therein, and permit such timeto be observed in all or any of the factories situated in the area. The state government assumes power

under section 4 of the act to declare different departments to be separate factories or two or more factories

to be single factory for the purposes of this Act. This power will be utilised by the state government eitherits own or an application made to it by the occupier. But no order could be made on its own motion unless& occupier is heard in this regard.

In case of public emergency, section 5 further empowers the state government to exempt by notification

any factory or class or description of factories from all or any of the provisions of this Act except section67 for such period and subject to such conditions as it may think fit: provided no such notification shall be

made exceeding a period of three months at a time.Explanation to section 5 defines public emergency as a situation whereby the, security of India or of anypart of the territory thereof is threatened .7" whether by war or external aggression or internal

disturbance. The state government carries out the administration of the Act through:

i. Inspecting staffii. Certifying surgeons

iii. Welfare officers: Where in 500 or more workers

iv. Safety officers: Where more than 1,000 workers

Approval, Licensing and Registration of Factories: Section 6 empowers the state government to

make rules with regard to licensing and registration of Factories under the Act on following matters:1. Submission of plans of any class or description of factories to the chief inspector or the stategovernment2. Obtaining previous permission of the state government of the chief or Inspector, for the site on which

factory is to be situated and for construction or extension of any factory or class or description of

factories. However, replacement or addition of any plant or machinery within prescribed limits, shall notamount to extension of the factory, if it does not reduce the minimum safe working space or adverselyaffect the environmental conditions which is injurious to health;


6/41

3. Considering applications for permission for the submission of plans and specifications:

4. Nature of plans and specifications and the authority certifying them;5. Registration and licensing of factories;

6. Fees payable for registration and licensing and for the renewal of licenses;7. License not to be granted or renewed unless notice specified under section has been given.Automatic Approval: If an application is made for the approval of site for construction or extension of

the factory and required plans and specifications have been submitted by registered post to the stategovernment or the chief inspector and if no reply isreceived within three months from the date on whichit is sentthe application stands automatically approved [section 6(2)] where the rules require the licensingauthority to issue a license on satisfaction of all legal requirements/record seasons for refusal. License

could not be refused only on a direction from government. S. Kunju v. kerala (1985 2LLI 106.) Appeal Against Refusal to Grant Permission: If the state government or chief inspector do not grantpermission to the site, construction or extension of a factory, or to the registration and licensing of a

factory, the applicant may within 30 days of the date of such refusal appeal to:i. The central government against the order of the state government

ii. The state government against the order of any other authority.Notice by Occupier: This section imposes an obligation on the occupier of a factory to send a written

notice, containing prescribed particulars, to the chief inspector at least 15 days before an occupier begins

to occupy or use a premises as a factory and at least 30 days before the date of resumption of work in caseof seasonal factories, i.e. factories working for less than 180 days in a year.

Contents of Notice

A notice must contain following particulars:1. The name and situation of the factory.

2. The name and address of the occupier.3. The name and address of the owner of the premises or building (including the precincts, etc., thereof)

referred to in section 93.4. The address at which communication relating to the factory should be sent.

5. The nature of manufacturing process to be carried on in the factory during next 12 months.

6. The total rated horse power installed or to be installed in the factory which shall not include the ratedhorse power of any separate standby plant.

7. The name of the manager of the factory for the purpose of this Act.8. The number of workers likely to be employed in the factory.

9. Such other particulars as may be prescribed.

Notice Where New Manager is Appointed: Whenever a new manager is appointed, the occupier shall

sendto the inspector a written notice and to the chief inspector acopy thereof, within seven days from thedate on which suchperson takes over charge.

General Duties of the Occupier:1.Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all

workers while they are at work in the factory.

2. Without prejudice to the generality of the provisions of sub-section (1) the matters to which such duty

extend shall include:a. The provisions and maintenance of plant and systems of work in the factory that are safe and

without risks to health;

b. The arrangement in the factory for ensuring safety and absence of risks to health in connection withthe use, handling, storage and transport of articles and substances;

c. The provisions of such information, instruction, training and supervisions as are necessary to ensurethe health and safety of all workers at work;


7/41

d. The maintenance of all places of work in the factory in a condition that is safe and without risks to

health and the provision and maintenance of such means of access to, and agrees from, such placesas are safe and without such risks;

e. The provisions, maintenance or monitoring of such working environment in the factory for theworkers that is safe, without risks to health and adequate as regards facilities and arrangements for

their welfare at work.

3. Except in such cases as may be prescribed, every occupier shall prepare, and as often as may beappropriate revise, a written statement of his general policy with respect to the health and safety of theworkers at work and the organisation and arrangements for the time being in force for carrying out thatpolicy, and to bring the statement and any revisions thereof to the notice of all the workers in such manner

as may be prescribed.

General Duties of Manufacturers etc:

a. Ensure, so far as is reasonably practicable, that the article is so designed and constructed as to be safeand without risks to the health of the workers when properly used;

b. Carry out or arrange for the carrying out of such tests and examination as may be considered necessaryfor the effective implementation of the provisions of clause (a);

c. Take such steps as may be necessary to ensure that adequate information will be available.

i. In connection with the use of the article in any factory;ii. About the use for which it is designed and tested; and

iii. About any condition necessary to ensure that the article, when put to such use, will be safe, and

without risks to the health of the workers.

Section further provides that where on article is designed or manufactured outside India, it shall beobligatory on the part of the importer to see:

a. That the article (including plant and machinery) conforms to the same standards if such article ismanufactured in India, or

b. If the standards adopted in the country outside for the manufacture of such article is above the

standards adopted in India that the article conforms to such standards.For the above purposes, the concerned person may carry out or arrange for the carrying out of necessary

research with a view to the discovery and so far as is reasonably practicable, the elimination orminimisation of any risk to the health or safety of workers to which design or article (including plant and

machinery) may give rise. The section further provides that if research, testing, etc. has already beenexercised or carried out, then no such research is required again. The above duties relate only to thingsdone in the course of the business carried out by him, and to matters within his control. However I the

person may get relief from the exercise of above duties If he gets an undertaking In writing by the user ofsuch article to take necessary steps that the article will be safe and without risk to the health of the

workers. Measures to be taken by Factories for health, safety and welfare of workers

Safety:1. Fencing of machinery

a. every moving parts of a prime-mover and flywheel connected to a prime-mover or flywheel is inthe engine house or not;b. head-race and tail-race of water wheel and water turbine;

c. any part of a stock-bar which projects beyond the head stock of a lathe;

d. every part of an electric generator, a motor or rotary convertor or transmission machinery unlessthey are in the safe position;

e. every dangerous part of any other machinery unless they are in safe position.2. Safety Measures in case of work on or near machinery in motion Restriction on Woman or Young

Person to Work an Such Machines.


8/41

3. Employment of Young Persons on Dangerous Machines, Striking Gear and Devices for Cutting Off

Power, Self-acting machines4. Prohibition of employment of women and children near Cotton Openers Lifting machines, ropes,

chains and Lifting Tackles Pressure plant Excessive weights5. Precautions in case of fire

Welfare: There should be Washing Facilities, Facilities far Sitting, First-aid Appliances, Canteens,Shelters, Rest Rooms and Lunch Rooms, Crches, Emergency Standards, Permissible Limits of Chemicaland Toxic Substance, Workers Participation in Safety Management, and it is a right of Workers to Warnabout Imminent Danger.


9/41

THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946

This act not apply where Chapter VII of the Bombay Industrial Relations Act, 1946, (Bom. Act II of 1947)

apply; or Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 (M.P. Act 26 of 1961)

apply.

Application of Model Standing Orders to Every Industrial Establishment:Where this Act applies to an industrial establishment, the model standing order for every matter set out in

the Schedule (see*) applicable to such establishment shall apply to such establishment from such date [ as

the State Government may by notification in the Official Gazette appoint in this behalf:Provided that nothing in this section shall be deemed to affect any Standing Orders which are finally

certified under this Act and have come into operation under this Act in respect of any industrialestablishment before the date of the coming into force of the Industrial Employment (Standing Orders)

(Bombay Amendment) Act, 1957][2. Notwithstanding anything contained in the proviso to subsection (1) model standing orders made in

respect of additional matters included in the Schedule after the coming into force of the Act referred to inthat proviso (being additional matters relating to probationers or badlis or temporary or casual workmen)shall, unless such model standing orders are in the opinion of Certifying Officer less advantageous to

them than the corresponding standing orders applicable to them under the said proviso, also apply inrelation to such workmen in the establishments referred to in the said proviso from such date as the StateGovernment may, by notification in the Official Gazette, appoint in this behalf.]

Submission of Amendment:[Within six months tom the date on which the model standing orders apply to any industrial

establishment under Section 2A, the employer or any workman employed therein may submit to theCertifying Officer five copies of the draft amendments for adoption in such industrial establishment:

Provided that no amendment which provides for the deletion or omission of any rule in the model

standing orders relating to any matter set out in the Schedule shall be submitted under this section.]The [draft amendments] submitted under this section shall be accompanied by a statement givingprescribed particulars of the workmen employed in the industrial establishment including the name of the

trade union, if any, to which they belong.

Subject to such conditions as may be prescribed, a group of employers in similar industrial establishmentsmay submit a joint [draft of amendments] under this section.

Certification of Amendments:

1. On receipt of the draft under Section 3, the Certifying Officer shall forward a copy thereof to the tradeunion, if any, of the workmen, or where there is no such trade union, to the workmen in such manner as

may be prescribed [or the employer, as the case may be,] together with a notice in the prescribed form

requiring objections, if any, which the workmen, [or employer] may desire to make to the [draftamendments] to be submitted to him within fifteen days from the receipt of the notice.2. After giving the employer, [the workmen submitting the amendment and the trade union or such other

representatives of the workmen as may be prescribed an opportunity of being heard, the Certifying

Officer shall decide whether or not any modification of [the draft submitted under sub-section (1) ofSection 3 is necessary,] and shall make an order in writing accordingly.

3. The Certifying Officer shall thereupon IO [certify the draft amendments] after making anymodifications therein which his order under sub-section (2) may require, and shall within seven daysthereafter send copies of the 11 [model standing orders together with copies of the certified amendments

thereof,] authenticated in the prescribed manner and of his order under sub-section (2) to the employer

and to the trade union or other prescribed representatives of the workmen.The submission that the Standing Orders are sacrosanct and engroceable regardless of the developmentsin the parallel proceedings unless and until necessary change has been certified by the authority under the

Act would be too technical an interpretation and would therefore not is acceptable.


10/41

Date of Operation of Standing Orders: Standing Orders [or amendments] shall, unless an appeal is

preferred under section 6, come into operation on the expiry of thirty days from the date on whichauthenticated copies thereof are sent under sub-section (3) of section 5, or where an appeal as aforesaid is

preferred, on the expiry of seven days from the date on which copies of the order of the appellateauthority are sent under sub-section (2) of section 6.

Register of Standing Orders [and Model Standing Orders together with All Certified

Amendments]: A copy of all standing orders [or model standing orders together with all theamendments] as finally certified under thisAct shall be filed by the Certifying Officer in a register in the

prescribed form maintained. for the purpose, and the CertifyingOfficer shall furnish a copy thereof to anyperson applying therefor on payment of the prescribed fee.

Posting of Standing Orders l[and Model Standing Orders together with All Certified

Amendments]: The text of the standing orders ([or model standing orders together with all theamendments] as finally certified under thisAct shall be prominently posted by the employer in English

and in the language understood by the majority of his workmen on special board to be maintained for thepurpose at ornear the entrance through which the majority of workmen enterthe industrial establishment

and in all departments thereof where the workmen are employed.Duration and Modification of Standing Orders [or the Amendments]: Standing Orders [or the

amendments] finally certified under this Act shall not, except on agreement between the employer and the

workmen [ or a trade union or other representative body of the workmen] be liable to modification untilthe expiry of six months from the date on which the standing orders [ or the amendments] or the last

modifications thereof came into operation [and where model standing orders have not been amended as

aforesaid, the model standing orders shall not be liable to such modification until the expiry of one yearfrom the date on which they were applied under section 2-A]. [2. Subject to the provisions of sub-section

(1), an employer, or workman [ or a trade union or other representative body of the workmen] or anyprescribed representatives of workmen desiring to modify the standing orders or the model standing

orders together with the amendments, as finally certified under this Act, or the model standing ordersapplied under section 2A, as the case may be, shall make an application to the Certifying Officer in that

behalf, and such application shall be accompanied by five copies of the standing orders, or the model

standing orders, together with all amendments thereto as certified under this Act or model standing ordersin which shall be indicated the modifications proposed to be made and where such modifications are

proposed to be made by agreement between the employer and workmen [or a trade union or otherrepresentative body of the workmen] a certified copy of the agreement shall be filed along with the

application]. The word modification in Sec. 1.0(2) should not be given a restricted meaning, as i,implying only minor changes, hence, even an application for deletion of a clause can be I deemed as anapplication for modification of the Standing Orders. 3. The foregoing provisions of this Act shall apply in

respect of an application under sub-section (2) as they apply to the certification of the first [amendments].[4. Nothing contained in sub-section (2) shall apply to an industrial establishment in respect of which the

appropriate Government is the Government of the State of Gujarat]

*Matters to be provided in Standing Orders 2 [Model Standing Orders and Amendments]

under this Act:

1. Classification of workmen, e.g., whether permanent, temporary, apprentices, probationers or badlis,

[1-A. Workmens tickets and registers]2. Manner of intimating to workmen periods and hours of work, holidays, pay-days and I. wage rates.

3. Shift working.4. Attendance and late coming.5. Conditions of, procedure in applying for, and the authority which may grant leave and holidays.

6. Requirements to enter premises by certain gates, and liability to search.

7. Closing and re-opening of sections of the industrial establishment and temporary stoppages of workand the rights and liabilities of the employer and workmen arising there from]


11/41

[7-A. Closing and re-opening of the entire industrial establishment or departments thereof and the

rights and liabilities of the employer and workmen arising there from]8. Termination of employment and the notice thereof to be given by employer and workmen.

9. Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.10. Means of redress for workmen against unfair treatment or wrongful exaction by the employer or

his agents or servants.

[10-A.Age for retirement or superannuation][10-B. Medical examination (including provision for bearing expenses therefor)][10-C. Employment or re-employment for probationers or badlis or1emporary or casual workmen,and their conditions of service]

11. Any other matter which may be prescribed.

Additional matters to be provided in Standing Orders relating to all industrial establishments in coalmines by Central rule

1. Medical and in case of accident;2. Railway travel facilities;

3. Method of filling vacancies;4. Transfers;

5. Liability of Manager of the establishment or mine;

6. Service certificate;7. Exhibition and supply of Standing Orders.

Additional matters to be provided in the Standing Orders relating to all industrial establishments by

Central rule1. Service record-matters relating to service card, token tickets, certification of service, change of

residential addresses of workers and record of age;2. Confirmation;

3. Age of retirement;4. Transfer;

5. Medical aid, in case of accidents;

6. Medical examination;7. Secrecy;

8. Exclusive Service.

Violation of any of Act attract fine which may extend to five thousand rupees or continuing offence witha further fine which may extend to two hundred rupees every day and Standing order attract Fine whichmay extend to one hundred rupees and 25 rupees every day


12/41

TRADE UNION ACT, 1926:

Trade Union is a workers organization which represents its members and which aims to improve things

such as their working condition and pay. Any seven or more members of a trade union may apply forregistration by subscribing their names to the rules of trade union and complying with other

requirements in relation to registration under the act. Every application for registration shall be made to

the registrar along with the fee as prescribed under regulation 8 (Rupees five at present) and shall beaccompanied by a copy of the rules of the trade union and a statement of all particulars as prescribed. Anyperson who has attained the age of fifteen years may be a member of a registered Trade union subject toany rules of the Trade union to the contrary, and may, subject as aforesaid, enjoy all the rights of a

member and executive all instruments and give all a quittances necessary to be executed or given under

the rules.

Definition:

Appropriate government: In this act, the term appropriate government means in relation to trade unionswhose objects are not confined to one state, the central government, and in relation to other trade unions,

the state government.Executive: section 2(a) Executive means the body, by whatever name called, to which the management

of the affairs of a trade union is entrusted.Office bearer: section 2(b) Office bearer in the case of a trade union includes any member of the

executive thereof, but does not include an auditor.Registered office and registered trade union: section 2(d) and 2(e) registered office means that officeof a trade union which is registered under this act as the head office thereof and a registered trade unionmeans a trade union registered under this act.

Registrar: a) a registrar of trade union appointed by the appropriate government under section 3 andincludes any additional or deputy registrar of trade union; and b) in relation to any trade union, the

registrar appointed for the state in which the head or registered office, as the case may be, of the trade

union is situated.Trade Union: section 2(h) Trade union means any combination, whether temporary or permanent formedprimarily for the purpose of a) regulating the relation: (1) between workmen and employers or (2)

between workmen and workmen, or (3) between employers and employers; OR b) for imposingrestrictive conditions on the conduct of any trade or business, and includes any federation of two or moretrade unions.

Appointment of registrars:a) The appropriate government shall appoint a person to be the registrar to trade unions for each state.

b) The appropriate government is also empowered to appoint if it thinks fir, additional and deputy

registrar. Such persons will function under the superintendence and direction of the registrar who maydefine the local limits within which each one will operate.c) Where an additional or deputy registrar exercises and discharges the powers and functions of a registrar

in an area within which the registered office of a trade union is situated, the additional or deputy registrar

shall be deemed to be the registrar in relation to the trade union for the purposes of this act.

Registration of trade unions:

As is evident from the preamble it that the act is enacted of provide for registration of trade unions, the actlays done in a comprehensive manner the procedure for registering a trade union. However, it should benoted that registration of trade union is not mandatory under the act. In view of a number of immunities

granted to a registered trade union from civil and criminal proceedings, registration of trade unions is

desired.The procedure for registration enumerated in the following Para graphics carved out form the provisions

of the trade unions act and the central trade union regulations, 1938, which are in relation to a trade union


13/41

whose objects are not confined to one state. The procedure for registration in relation to other trade unions

can be ascertained from the provision of the trade unions act, 1926 and the regulations made by theappropriate governments.

Rules of trade union:

According to section 6 of the trade unions act, no trade union shall be entitled to registration unless the

executive thereof is constituted and the rules thereof provide for the matters stipulated in section 6. Atrade union cannot be registered unless its executive has been constituted according to the law and therules thereof provide for the following matters:a) The name of the trade union:

b) The whole of the objects for which the trade union has been established;

c) The whole of the purposes for which the general funds of the trade union shall be applicable, all ofwhich purposes shall be purposes to which such funds are lawfully applicable under this act.

d) The maintenance of a list of the members of the trade union and adequate facilities for the inspectionthereof by the office-bearers and members of trade union;

e) The admission of ordinary members who shall be persons actually engaged or employed in an industryin an industry with which the trade union is connected, and also the admission of the number of honorary

or temporary members as office bearers required under section 22 to form the executive of the trade

union;e) The payment of a subscription by members of the trade union which shall not be less than twenty five

paisa per month per member.

f) the conditions under which any member shall be entitled to any benefit assured by the rules and underwhich any fine or forfeiture may be imposed on the members;

g) The manner in which the members of the executive and the other office bearers of the trade union shallbe appointed and removed;

h) The manner in which the members of the executive and other office bearers of the trade union shall beappointed and removed.

i) The safe custody of the funds of the trade union, and annual audit, in such manner as may be

prescribed, of the accounts thereof, and adequate facilities for the inspection of the account books by theoffice bearers and members of the trade union; and

j) The manner in which the trade union may be dissolved. In the case of Trilok Nath Tripathi v. AllahabadDivision bench, A.I.R. 1957 all 234, it was observed that section 6 requires that no registration can be

allowed unless certain conditions given in this section are fulfilled. Rules framed under the constitution ofany trade union do not get any statutory force. It is correct that existence of such rules framed to complywith requirements of union. It is only in the nature of contract binding on the members of union. Any

breach of such rules cannot be enforced by a writ of mandamus under Article 226 of the constitution. Theremedy of the aggrieved party is by way o suit.

Certain membership rights:i) Rights of minors to membership of trade unions: section21Any person who has attained the age offifteen years may be amember of a registered Trade union subject to any rules of the Trade union to the

contrary, and may, subject as aforesaid, enjoyall the rights of a member and executive all instruments and

give all a quittances necessary to be executed or given under therules.ii) Rights to inspect books of Trade union : section 20 The account books of a registered Trade union and

the list of members there of shall be open to inspection by an Office bearer or member of the Trade unionat such times as may be provided for in the rules of the Trade union.

Dissolution of Trade union:

In case a registered Trade union is dissolved, a notice signed by members and the secretary of the unionshall be given to the registrar with 14 days of such dissolution. If the dissolution has been effected inaccordance with the rules he shall register the same and it will have effect from the date of such


14/41

registration. On dissolution where the rules do not provide for distribution of the funds of the Trade

union, the registrar shall distribute the fund amongst member in such manner as may be prescribed underthe Trade union regulations, the registrar shall divide the funds in proportion to the amounts contributed

by the members by way of subscription during their membership (regulation 11)

Offences and Penalties:

1. If default is made of the part of any registered Trade union in given any notice or sending anystatement or other documents are required by or under any provision of this Act, every office bearer orother person bound by the rules opt the trade union to give or send the same, or if there is no such officebearer or person, every member of executive of the trade union, shall be with the fine which may extend it

five rupees and in the case of continuing default, with aqn additional fine which may extend to five rupees

for each week after the first during which the default continues. however the aggregate fine should notexceed fifty rupees.

2. A person who willfully makes, or causes to be made, any false entry in, or any commission from, thegeneral statement required by section 28 or in or from any copy of rules or of alterations of rules sent to

the registrar under the section, shall be punishable with fine which may extend to five hundred rupees

Amalgamation of trade unions: Any two or more registered Trade unions may become amalgamated

together as one Trade union with or without dissolution or division of the funds of such trade unions oreither or any of them


15/41

INDUSTRIAL DISPUTES AND INDUSTRIAL DISPUTE ACT: The Industrial Disputes are disputes

relating to an industry which could leads to settlement arrived at in the course of conciliation proceedings

Any dispute or differences between Employer and Employer, Employer and Workmen and Workmen and

workmen connected with Employment or Non - employment or condition of Labour of any person istermed as Industrial Dispute under the Act. In fact, the term Industrial Dispute plays very important

and vital or key role in the entire industrial jurisprudence. It is therefore, very necessary that the term isunderstood in its fullest sense and concept. The term Industrial Dispute has remained unchanged from

the time it was defined in the Act. The Term can be understood in its various facets and for this reason, itcan be said that the term has its four facets, viz

a. Factum of Disputeb. Parties to Disputec. Subject matter of dispute and

d. Dispute must be relating to an Industry.

ii. Factum of dispute: It is undoubtedly needless to observe that unless there is a dispute or difference ofany sort, no legal machinery need to take a start! Therefore, dispute/ difference is the first and pre -condition stipulated in the definition under the Act For dispute or differences to arise, it is not necessary

that the parties should come to blows but at the same time a mere personal quarrel or a grumbling will notamount to dispute or differences within the four corner of the definition (C.J. Sambhunath Goyal v/s Bank

of Baroda, 1978 I LLJ 484). It must be clearly understood that not all sorts of dispute or difference areincluded in the definition in the Act. The only differences or disputes which are within the fold of thedefinition given in Section 2(k) of the Act are only those disputes, or differences which bear upon the (1)

relationship of Employers and Employers or

Employers and Workmen or workmen and workmen and (2) condition of Labour. Thus the inter-se

seniority dispute between two workmen is purely an individual dispute and it cannot be treated asindustrial dispute if other employees are not concernediii. Parties to dispute .The Act provides that any dispute or differences (a) between Employers and

Employers (b) Between Employers and Workmen or (c) between workmen and workmen can be taken upfor conciliation or adjudication, as the case may be, if necessary. However, in common parlence, the term

industrial disputes is always taken to mean the dispute between Employers and Workmen and disputebetween no other parties, namely between Employers and Employers or between workmen and workmen.There are, therefore, few case laws on disputes between workmen and workmen or between Employersand Employers.

iv. Subject matter: The expression dispute or difference means controversy connected with (a) theEmployment or non-employment or (b) with the terms of employment or (c) the conditions of labour ofany person. Further, it must also be a grievance felt by workmen which the Employer is in a position to

remedy or set right the definition further shows that certain types of disputes can never fail within itsambit. For example, who is to be elected as the President of the Union, cannot be held to come under the

definition of the expressions Industrial

Dispute because, it is not at all connected with the employment or no employment or with the terms of

employment or with the condition of labour. Similarly the dispute with regard to demotion cannot beraised even under Section 2A of the Act to constitute an industrial dispute. So also when there is a dispute

with regard to seniority inter-se it cannot be treated as Industrial Dispute, if a settlement has arrived at

between the parties, there cannot arise any Industrial Dispute which can form a subject matter of areference before the Tribunal. When the dispute of individual workmen are taken up by any union of

which he or they are members and when the demand is made by union on their behalf, it becomesIndustrial Dispute. When employees made demand that employees working in higher promotion beconfirmed, it was contended that it was not in Industrial dispute1*. The supreme court held that although

promotion is entirely at the sole discretion of the employer but the employees were not demanding


16/41

promotion, what they were demanding was that those employees who have already been promoted they

should be categorised as permanent or confirmed. As such, it was clearly an industrial dispute. [Workmenof Hindustan Lever u/s HL Ltd, 1984 1 LLN 460 (SC)]A

v. When does Industrial dispute arise : For existence of an industrial dispute, there should be a demand by

workmen and refusal to grant it by the management. How the demand should be raised cannot be a legal

notion of fixity and rigidity. The grievance of the workmen and the demand for its redressal must becommunicated to the management. The means and mechanism of communication adopted are not mattersof much significance so long as the demand is that of workmen and it reaches the management{RarnkrishnaMills (Coimbatore) Ltd., v/s Government of Tamilnadu, 1984 II LLJ 259 (Madras)] In

National Engineering Industries Ltd. v/s State of Rajasthan,2000 I CLR 389, there were Trade Unions, i.e.

Labour Union, Workers Union and the Staff Union. The Labour Union has majority of the Workers on itsroll- It was the recognised Union. However, all the three unions, raised a Charters of Demands, which

were identical in almost all respect. Conciliation Proceedings under the Act were initiated during whichtime, settlement was reached with the Labour Union and the staff Union. Since no settlement was arrived

at in respect of the Charter of Demands raised by the Workers Union, the Conciliation Officer submittedits Failure Report; however, the appropriate Government took no decision on it. The Workers Union

thereupon moved the High Court, which directed the Government to make the reference. However, before

the Order of the High Court, the appropriate Government took the decision and made a reference on theindustrial dispute touching the Charter of Demands of the Workers Union. This Order of Reference made

by the appropriate Government was challenged in the High Court before the Single Judge and in appeal

before the Division Bench but without success. The apex Court held that in view of the settlement of theindustrial dispute touching the Charter of Demands, there was no industrial dispute under the Act and

therefore, the AppropriateGovernment had no jurisdiction to make the reference.

vi. Written Demand not necessary : A Demand need not be in writing to constitute an industrial dispute.

The Act nowhere contemplates that the industrial dispute would come into existence in any particular

specific or prescribed manner. For coming into existence of an industrial dispute, a written cause is not aSine qua non unless of course in the case of public utility service, because Section 22 of the Act forbids

going on strike without giving a (strike) Notice. [Shambkunath Goyal vis Bank of Baroda, 1978 I LLJ484, Ramkrishna Mills (Coimbatore) Mills Ltd v/s Govt. of Tamilnadu, 1984 II LLJ 259]

vii. Does it mean Collective Dispute; The term Industrial Dispute conveys the meaning that disputemust be such as would affect large groups of (1) workmen and the (2) employers, ranged on opposite

side [D.N. Benarji v/s P.R. Mukharjee, 1953 I LLJ 195, The obiter was cited with approval in NewsPapers Ltd. v/s I.T. 1957 II LLJ 6 (by SC}]. A collective dispute, however does not mean that ail

workmen or a majority of them should sponsor and sport the dispute. In fact, there is nothing in the Act to

require the dispute to be raised by all the workmen of the industry or by every one of them or even by amajority of them. It is enough if the controversy is between Employer on one side and the workmen onthe other. So also, there is nothing in the Act to require that workmen raising the controversy should form

a majority of the employees or the controversy affects, or will affect the interest of workmen as a class.

The law envisages that in the interest of peace, the industrial dispute should be examined and decided inthe manner laid down in the Act {Indian Oxygen Ltd. vis Us workmen 1979 LIC 585 (SC)], it is not

necessary that the dispute should have been espoused only by a recognised union. It can be espoused byunrecognised union also [State of Bihar v/sKripa Shankar Jaiswal, AIR 1961, SC 304]. In the case ofDA.C.C. v/s workmen, AIR 1960 SC 777. PradipLamp Works vis Workmen 1970 ILLJ 491, Tata

Chemicals v/s Workmen1978I LLJ 22(SC)], it was held that even a minority union canraise the dispute.

However, when the agenda of the meeting in which the cause of individual workmen was not produced,there was no other record to show that the cause of the workmen was taken up save and except theoralevidence of the Secretary. It was held that the cause of individual workman was not espoused to treat


17/41

it as an industrial dispute. It was held that, at least, the Resolution espousing the cause of workmen was

necessary [BombayUnion Journalists v/s The Hindu, AIR 1963 SC 318]. However, in the case ofWorkmen v/s Rohtak General Transport Company1962 I LLJ 634 & 1975 LIC 838] it was held that

relevant documents showing espousal of dispute by union need notbe examined too technically. TheTairvi by the union, in conciliation is sufficient proof to show espousal of the cause[WIMCO o/s its

workmen, AIR 1970 SC 1205].It is not necessary that the same union should remain in charge of that

dispute till adjudication because it is not necessary thatthe dispute must be espoused or conducted only bya registered trade union. Therefore, it is necessary to bear in mind the distinction between espousal andrepresentation. The emphasis is on espousal and not on representation. Thus it is not necessary that thedispute must be espoused or conducted only by a registered trade union. Even if a union ceases to be a

registered trade union that would not affect maintainability of the order of reference [Management of

Gammon (India) Ltd. v/s State of Orissa 1974 II LLJ 34]. The new Union can takeover and conduct thematter further [Ramlal Guramal TextileMills v/s State of Punjab, 1958 II LLJ 245].In Mukund Ltd. v/s

M.Staff & Officers Association, 2000 ICLR 707, the question before the Court was whether employees falling in the category of Workman

under the ID Act can espouse the cause of the non-workmen working in the same establishment. TheCourt held that they can because they have substantial interest in the subject matter of the dispute and that

there is a community of interest. As such, the reference was validity made.

Settlement - Binding - not Binding: If a copy of the settlement is not forwarded to authorities prescribedby rule 58 (4) of the Central Rules that will not have any effect on the validity of the settlement.

1. Settlements arrived at in the course of conciliation and

2. Settlements arrived at privately or otherwise than in the course of conciliation.

STRIKES: Strike is concerted refusal to work on the part of workmen who are in a particular vocational

area. The workers in a democratic state have a right to strike to withhold their labour in order to express

their grievance or to make certain demands. Thus a strike is a necessary safety valve in industrial

relations. Forms of Strikes are Go-slow, Legal and Illegal Strike, Justified & Unjustified Strike.Prohibition of Strikes in Public Utility Service

Strike Notice: Sub-section (1) requires a 14 days Strike Notice in public utility services. It says that:i.no person employed in public utility service shall go on a strike in breach of contract:ii. without giving strike notice.

iii. within 6 weeks of such notice.iv. within 14 days of giving such notice.

v. before the expiry of the date of strike specified in notice; orvi. during the pendency of any conciliation proceedings and 7 days after conclusion of such proceedings.

LOCK-OUT: Strike is cessation of work by employees, the Lock-out is cessation of work by the

Employer. Just as Employees have a right not to sale their Labour, the same way the Employer has a right

not to buy it, as a measure of setting the industrial dispute. When the Employer closes temporarily hisplace of Employment in order to force his employees to accept a compromise favourable to him on anindustrial dispute raised by his employees, it is a Lock-out.

Lock-out, When Legal: The Act treats strikes and lock-out on the same basis; it treats one as the counterpart of the other. (Mohammed Sumsuddin, 1956 I LLJ 575), the circumstances under which the

legislature has banned strike, it has also at the Same time banned the lock-out. Thus what holds good-bad;

legal-illegal, justified unjustified for strikes, holds the same for the lock-out. As such, the provisions ofthe Act which prohibit the strike also prohibits the lock-out.


18/41

The object and reasons for which the Lock-out are banned or prohibited are the same for which strikes are

banned or prohibited. It is because the Employer and the Employees are not discriminated in theirrespective rights in the field of industrial relationship between the two. As such, lock-out if not in conflict

with Section 22 and 23 may be said to be legal or not legal. Sections 24(1) (iii), 10(3) and 10A (4A)similarly controls the lock-out. A lock-out in consequence of illegal strike is not deemed to be illegal. But

if lock-out is illegal, Section

26(2), 27 and 28 will come in operation to deal with the situation. The Act does not lay down anyguidelines to settlethe claims arising out of illegal lock-out. The courts, therefore, have adopted the technique ofapportioning the blame between the Employer and employees. This once again brings to the fore the

concept of justifiability of lock-out.

If strike is unjustified followed by a justified lock-out, the workmen will get no wages at all conversely ifstrike is legal and lock-out is unjustified, the workmen will get the full wages for the period of strike-

lock-out. However, where strike is illegal followed by an illegal lock-out, the question of apportionmentwill arise (India Marine Services (P) Ltd. vis Their Workmen, AIR 1963 SC 528). Relying upon this, the

apex court granted half wages. In this case, in which the Industrial Tribunal had held chat strike wasunjustified, so the lock-out was justified on the following day but its continuance was not justified. In

Statesman Ltd. v/s Their Workmen, AIR 1976 SC 758, the apex court refused to interfere in the Award of

Industrial Tribunal in which the Tribunal had awarded 50% wages for the lock-out period. The Tribunalhas held both the parties equally responsible. The apex court observed that in between lies a grey of

twilight Law. Strictly speaking the whole field is left to the judicious discretion of the Tribunal, Where

the strike is illegal and sequel of lock-out legal, we have to view the whole course of development andnot stop with examining the initial legitimacy. If one side or the other behaves unreasonably or over-all

interest of good industrial relations warrant theTribunal making such direction regarding strike period wages will meet with justice, fair play and

pragmatic wisdom; there is no error in doing so. This power of Tribunal is flexible. In EngineeringMazdoor Sabha vis S. Taki Bilgrami, 1971 I LLJ 71, the Bombay High Court held that it is permissible

for the Employer to prove misdemeanor and misconduct of employees sufficient to absolve him from the

lock-out liability to pay wages for the period of illegal lock-out. Thus according to Bombay High Court,merely because a lock-out is illegal will not ipse-dixit result in payment of wages to the workmen but the

Employer can take the opportunity to prove disentitlement of workmen in a case of reference made toindustrial tribunal for adjudication on a demand for wages for the period of lock-out.

Penalties for strike and Lock-out: Section 26 prescribes - penalty for, both, strike as well as lockout.However, before any - punishment is imposed under this Act or rather under this Section, it must be

proved beyond all reasonable doubt that:1. A workman has in fact commenced or continued or has otherwise acted in furtherance of a strike OR in

case of a lock-out an Employer has commenced or continued or has acted in furtherance of- a lock-out;

and2. the strike or lock-out is illegal. The illegality must be proved strictly with reference to the provisions ofthe Act and the mens-rea on the part of a workman or an employer is wholly irrelevant and immaterial.

These two ingredients must co-exist and only if these two ingredients are present then Workman shall be

punishable with imprisonment for a term upto one month or with fine which may extend upto FiftyRupees or with both.

a. Employer shall be punishable with imprisonment for a term which may extend to Rupees one month orwith fine which may extend to Rupees one thousand or both.

LAY-OFF: When the employer decides to discontinue his business forever it is called as Closure. But

when he decides to discontinue his business, not forever but for a short while, in order to tide over his

difficulties, it cannot be called as closure. Nevertheless, during this period also the employer discontinues


19/41

to employ his labour force. Such a discharge of labour-force, (for a temporary period when the employer

has suspended his business activities) is called as lay-off.

Refusal to Give Work: The Employers refusal to give work must be for:

shortage of coal

shortage of power (Electricity) shortage of raw material

accumulation of stocks break down of machinery

natural calamity - Force-Majorand any other connected reason.

Contract of Employment: In lay-off, the contract of employment goes under suspended animationor the relationship is kept in cold storage. The workman continues to be on the muster roll but the

employer suspends the contract for the time being. The relationship (of master and servant) is resumed assoon as the work is resumed by the employer. Thus, the lay-off is a temporary suspension of work and it

is resumed as soon as the circumstances permit the employer to do so. It means that the Employer cannotkeep away the workman for an indefinite period in the garb of lay-off or cannot breach the contract ofemployment. But period can have treated as temporary and what period can be treated as long or

indefinite will depend upon the facts of each case and the Act is completely silent on this issue.

RETRENCHMENT: Retrenchment means the termination by the Employer of the services of a

workman for any reason whatsoever.

Retrenchment Compensation: Section 25 F:

1. One Months Notice to the workman who is to be retrenched must be given.

2. Notice of Retrenchment must be in writing.3. Reasons for retrenchment must be given in the Notice of Retrenchment to the workman.

4. Notice period of one month must have expired unless one months wages must have been paidin lieu of Notice of one month to the workman.

5. (Payment to workman must have been effected at the time of retrenchment and not after theretrenchment.

6. Notice in prescribed manner must have been served upon the appropriate Government or suchother authority as may have been specified by the appropriate government.

Clause (b) Lays down that a workman shall be:

i. paid compensation

ii. at the time of retrenchment (and not after the retrenchment)in. calculated at the rate of 15 days (average pay)iv. for every completed year of continuous service or

v. any part in excess of six months

The average pay has been defined in Section 2 (aaa). It means if in one month, a workmans pay wasRs.1000/- in second month, it was Rs.1400/- and in the third month, it is only Rs 900/-The Employer has

to take the average pay and not the last drawn wages. As such in given illustration, the average pay willwork out to be [1000 + 1400 + 900 = 3300 - 3] Rs. 1100/- p.m. Undoubtedly, it may work out against theworkman also, if in first month, wages are Rs.900/- in the second month, it is Rs.1000/- and in the third

month it is Rs. 1400/- but the workman will be paid at the rate of Rs. 1100/- (it being his average wages).

CLOSURES: In the case of closure, the Employer closes down his business permanently, finally andirrevocably. There is no intention on his part to restart the work. The right of closing down is as much a


20/41

fundamental right as to carry on business. The Notice of termination has to be given individually or

collectively but a notice is a must. Closer can be Partial Closure and Closure by Stages. It is afundamental right, for payment of money to those employees who are thrown out of employment on

account of closure. For computing quantum of money, on closure, has adopted the same methodology asadopted for the retrenchment. Provision to exception is there for the Unavoidable circumstances beyond

the control of the employer and if mine, If minerals get exhausted and employer ensure alternative

employment on same terms and condition and remuneration is given to workman, Services remain un-interrupted and in subsequent closure, employer undertakes to pay closure compensation for thethroughout period - on the basis of continuous service. Employer shall give Notice at least 60 days beforeintended closure failing attracts penalty of imprisonment for a term upto 6 months or fine upto Rs. 5000/-

or both.

Special Provisions for Mines: Sub-section 1-A provides that in case of Mines, workmen will not be given

closure compensations if minerals get exhausted and as a result, the mining operations have to be

discontinued.

This benefit is available only on conditions :1. If minerals get exhausted and2. Employer fulfills three conditions

a. alternative employment on same terms and condition and remuneration is given to workmanb. Services remain un-interrupted and

3. in subsequent closure, employer undertakes to pay closure compensation for the throughout period - onthe basis of continuous service.

Special Provisions for Building Industry: The second exception to the general rule of closure

compensation is laid down in sub-section 1-A. It is applicable to undertakings set up for construction of

1. Buildings2. Bridges3. Roads

4. Canals5. Dams or

6. Construction work which is over on completion of job.The benefit of this exception is available only when the undertaking is closed down within two years fromthe data of its set up. However, if no closure within two years then workmen will be entitled to the closurecompensation at the same rate as prescribed under sub-section (1), if an undertaking takes up construction

work wherever available, and if it deploys local persons for local work then it has freedom of

discontinuing the local staff and the test of Unity of ownership, unity of management or unity of controlon all different local units is not available. As such, the workmen of local units, if retrenched, do not haveany right to demand the benefits flowing from this Section [Hindustan - Steel Works, Construction Ltd.

v/s HSWC Employees Union, 1995 LIC 1594, (SC)].

Protected Workmen: Member of the executive (Managing) committee or other office, bearer of aRegistered Trade Union and their number are 5% of total workmen with Minimum 5 and Maximum 100.


21/41

THE CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970

Applied 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, to every contractor who employs or who

employed on any day of the preceding twelve months twenty or more workmen. Registration ofEstablishments should be done who are employing contract labour and contractor licensing done through

the prescribed process. Welfare and Health measure of Contract Labour should be maintained asprescribed. Contractor is responsible for payment of wages then representative duly authorized and finally

principal employer liable.

The Advisory Boards:

Central Advisory Board1. The Central Government shall, as soon as may be, constitute a board to be called the Central Advisory

Contract Labour Board (hereinafter referred to as the Central Board) to advise the Central Government onsuch matters arising out of the administration of this Act as may be referred to it and to carry out otherfunctions assigned to it under this Act.

2. The Central Board shall consist of a. a Chairman to be appointed by the Central Government; b. the

Chief Labour Commissioner (Central), ex-officio; c. such number of members, not exceeding seventeen

but not less than eleven, as the Central Government may nominate to represent that Government, theRailways, the coal industry, the mining industry, the contractors, the workmen and any other interestswhich, in the opinion of the Central Government, bought to be represented on the Central Board.

3. The number of persons to be appointed as members from each of the categories specified in sub-section(2), the term of office and other conditions of service of, the procedure to be followed in the discharge of

their functions, by, and the manner of filling vacancies among, the members of the Central Board shall besuch as may be prescribed: Provided that the number of members nominated to represent the workmen

shall not be less than the number of members nominated to represent the principal employers and thecontractors

State Advisory Board

1. The State Government may constitute a board to be called the State Advisory Contract Labour Board(hereinafter referred to as the State Board) to. advise the State Government on such matters arising out ofthe administration of this Act as may be referred to it and to carry out other functions assigned to it under

this Act.2. The State Board shall consist of - a. a Chairman to be appointed by the State Government; b. the

Labour Commissioner, ex~officio, or in his absence any other officer nominated by the State Government

in that behalf; c. such number of members, not exceeding eleven, but not less than nine, as the StateGovernment may nominate to represent that Government, the industry, the contractors, the workmen andany other interests which, in the opinion of the State Government, ought to be represented on the State

Board.

3. The number of persons to be appointed as members from each of the categories specified in sub-section(2), the term of office and other conditions of service of, the procedure to be followed in the discharge oftheir functions by, and the manner of filling vacancies among, the members of the State Board shall be

such as may be prescribed:Provided that the number of members nominated to represent the workmen shall not be less than the

number of members nominated to represent the principal employers and the contractors.

Registration of Establishments Employing Contract Labour:Appointment of registering officers: The appropriate Government may, by an order notified in the

Official Gazette,-

a. appoint such persons, being Gazetted Officers of Government, as it thinks fit to be registering officersfor the purposes of this Chapter; and


22/41

b. Define the limits, within which a registering officer shall exercise the powers conferred on him by or

under this Act.Registration of Certain Establishments

1. Every principal employer of an establishment to which this Act applies shall, within such period as theappropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to

establishments generally or with respect to any class of them, make an application to the registering

officer in the prescribed manner for registration of the establishment:Provided that the registering officer may entertain any such application for registration after expiry of theperiod fixed in this behalf, if the registering officer is satisfied that the applicant was prevented bysufficient cause from making the application in time.

2. If the application for registration is complete in all respects, the registering officer shall register the

establishment and issue to the principal employer of the establishment a certificate of registrationcontaining such particulars as may be prescribed.

Revocation of registration in certain cases

If the registering officer is satisfied, either on a reference made to him in this behalf or otherwise, that the

registration of any establishment has been obtained by misrepresentation or suppression of any materialfact, or that for any other reason the registration has become useless or ineffective and therefore requires

to be revoked, the registering officer may, after giving an opportunity to the principal employer of the

establishment to be heard and with the previous approval of the appropriate Government revoke theregistration.

Effect of Non-registration

No principal employer of an establishment, to which this Act applies, shalla. in the case of anestablishment required to be registered under section 7, but which has not been registered within the time

fixed for the purpose under that section,b. in the case of an establishment the registration in respect of which has been revoked under section 8,

employ contract labour in the establishment after the expiry of the period referred to in clause (a) or afterthe revocation of registration referred to in clause (b) as the case may be. Contract labour cannot become

employees of principal employer merely because contractor or employer has not obtain license or

registration respectively. Dinanath v. National Fertilizers Ltd. 1992 I LLJ 289 (S.C.): 1992 (64) FLR 39:1992 I CLR 1: 19921 LLN53

Prohibition of Employment of Contract Labour1. Notwithstanding anything contained in this Act, the appropriate Government may, after consultation

with theCentral Board or, as the case may be, a State Board, prohibit, by notification in the official Gazette,employment of contract labour in any process, operation or other work in any establishment.

2. Before issuing any notification under sub-section (1) in relation to an establishment, the appropriateGovernment shall have regard to the conditions of work and benefits provided for the contract labour in

that establishment and other relevant factors, such as a. whether the process, operation or other work is

incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on inthe establishment; b. whether it is of perennial nature, that is to say, it is of sufficient duration, havingregard, to the nature of industry, trade, business, manufacture or occupation carried on in that

establishment; c. whether it is done ordinarily through regular workmen in that establishment or an

establishment similar thereto; d. whether it is sufficient to employ considerable number of whole-timeworkmen.

Licensing of Contractors:

Appointment of Licensing Officers

The appropriate Government may, by an order notified in the Official Gazette,-

a. appoint such persons, being Gazetted Officers of Government, as it thinks fit to be licensing officers forthe purposes of this Chapter; and b. define the limits, within which a licensing officer shall exercise thepowers conferred on licensing officers by or under this Act.


23/41

Licensing of Contractors: 1. With effect from such date as the appropriate Government may, by

notification in the OfficialGazette, appoint, no contractor to whom this Act applies, shall undertake orexecute any work through contract labour except under and in accordance with a license issued in that

behalf by the licensing officer.2. Subject to the provisions of this Act, a license under subsection (I) may contain such conditions

including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in

respect of contract labour as the appropriate Government may deem fit to impose in accordance with therules, if any, made under section 35 and shall be issued on payment of such fees and on the deposit ofsuch sum if any, as security for the due performance of the conditions as may be prescribed. Contractorcannot be registered as a Contractor as well as principal employer Gammon India Ltd. Bombay v.

Assistant Labour Commissioner, 1976 I LLN 410 (Born. DB): 1976 LlC 745.

13. Grant of Licenses1. Every application for the grant of a license under sub-section (I) of section 12 shall be made in the

prescribed form and shall contain the particulars regarding the location of the establishment, the nature ofprocess, operation or work for which contract labour is to be employed and such other particulars as may

be prescribed.2. The licensing officer may make such investigation in respect of the application received under sub-

section (1) and in making any such investigation the licensing officer shall follow such procedure as may

be prescribed.3. A licence granted under this Chapter shall be valid for the period specified therein and may be renewed

from time to time for such period and on payment of such fees and on such conditions as may be

prescribed.14. Revocation, Suspension and Amendment of Licenses

1. If the licensing officer is satisfied, either on a reference made to him in this behalf or otherwise, that a.a license granted under section 12 has been obtained by misrepresentation or suppression of any material

fact, or b. the holder of a license has, without reasonable cause, failed to comply with the conditionssubject to which the license has been granted or has contravened any of the provisions of this Act or the

rules made there under, then, without prejudice to any other penalty to which the holder of the license

may be liable under this Act, the licensing officer may, after giving the holder of the license anopportunity of showing cause, revoke or suspend the license or forfeit the sum, if any, or any portion

thereof deposited as security for the due performance of the conditions subject to which the license hasbeen granted.

2. Subject to any rules that may be made in this behalf, the licensing officer may vary or amend a licensegranted under section 12.


24/41

CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986

Define the Child a person who has not completed his Fourteenth year of age. There is prohibition of

employment of children in certain occupations and processes prescribed in part A and part B of the

schedule. If no age certificate, then decision to be given by the prescribed medical authority.Contravention of the provisions of Section 3 attract imprisonment from 3 months to 1 year and fine from

Rs.10000 to Rs.20000 or both. Second or subsequent offence, attract imprisonment from 6 months to 2year and fine from Rs.10000 to Rs.20000 or both. If fails to give notice, Section 9, 11, 12 attract

Imprisonment upto to 1 month and fine upto Rs.10000 or both.

Prohibition of Employment of Children in Certain Occupations and Processes:No child shall be employed or permitted to work in any of the occupations set forth in Part A of theSchedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carriedon; Provided that nothing in this section shall apply to any workshop wherein any process is carried on by

the occupier with the aid of his family or to any school establishment by, or receiving assistance or

recognition from, Government.

Power to amend the Schedule.The Central Government, after giving by notification in the Official Gazette, not less than three months

notice of its intention so to do, may, by like notification, add any occupation or process to the Scheduleand thereupon the Schedule shall be deemed to have been amended accordingly.Child Labour Technical Advisory Committee

1. The Central Government may, by notification in the Official Gazette, constitute an advisory committeeto be called the Child Labour Technical Advisory Committee (hereafter in this section referred to as the

Committee) to advise the Central Government for the purpose of addition of occupation and processes tothe Schedule.

2. The Committee shall consist of a Chairman and such other members not exceeding ten, as may beappointed by the Central Government.3. The Committee shall meet as often as it may consider necessary and shall have power to regulate its

own procedure.

4. The Committee may, if it deems it necessary so to do, constitute one or more sub-committees and may

appoint to any such sub- committee, whether generally or for the consideration of any particular matter,any person who is not a member of the Committee.5. The term of office of, the manner of filling casual vacancies in the office of, and the allowances, if any,

payable to, the Chairman and other members of the Committee, and the conditions and restrictions subjectto which the Committee may appoint any person who is not a member of the Committee as a member of

any of its sub-committees shall be such as may be prescribed.

Part IIIRegulation of Conditions of Work of Children

Application of Part

The provisions of this Part shall apply to an establishment or a class of establishments in which none ofthe occupations or processes referred to in Section 3 is carried on.

Hours and Period of Work

1. No child shall be required or permitted to work in any establishment in excess of such number of hours

as may be prescribed for such establishment or class of establishments.2. The period of work on each day shall be so fixed that no period shall exceed three hours and that no

child shall work for more than three hours before he has had an interval for rest for at least one hour.

3. The period of work of a child shall be so arranged that inclusive of his interval for rest, under sub-section (2), it shall not be spread over more than six hours, including the time spent in waiting for workon any day.

4. No child shall be permitted or required to work between 7 p.m. and 8 a.m.

5. No child shall be required or permitted to work overtime.


25/41

6. No child shall be required or permitted to work in any establishment on any day on which he has

already been working in another establishment.Weekly Holidays

Every child employed in an establishment shall be allowed in each week, a holiday of one whole day,which day shall be specified by the occupier in a notice permanently exhibited in a conspicuous place in

the establishment and the day so specified shall not be altered by the occupier more than once in three

months.Notice to Inspector

1. Every occupier in relation to an establishment in which a child was employed or permitted to workimmediately before the date of commencement of this Act in relation to such establishment shall, within a

period of thirty days from such commencement, send to the Inspector within whose local limits the

establishment is situated, a written notice containing the following particulars, namely: -a. the name and situation of the establishment;

b. the name of the person in actual management of the establishment;c. the address to which communications relating to the establishment should be sent; and

d. the nature of the occupation or process carried on in the establishment.2. Every occupier, in relation to an establishment, who employs, or permits to work, any child after the

date of commencement of this Act in relation to such establishment, shall, within a period of thirty days

from the date of such employment, send to the Inspector within whose local limits the establishment issituated, a written notice containing the particulars as are mentioned in subsection (1)

3. Nothing in Sections 7,8 and 9 shall apply to any establishment wherein any process is carried on by the

occupier with the aid of his family or to any school established by, or receiving assistance or recognitionfrom, Government.

Disputes as to Age

If any question arises between an Inspector and an occupier as to the age of any child who is employed or

is permitted to work by him in an establishment, the question shall, in the absence of a certificate as to theage of such child granted by the prescribed medical authority, be referred by the Inspector for decision to

the prescribed medical authority.

Maintenance of RegisterThere shall be maintained by every occupier in respect of children employed or permitted to work in any

establishment, a register to be available for inspection by an Inspector at all times during working hoursor when work is being carried on in any such establishment, showing

a. the name and date of birth of every child and so employed or permitted to workb. hours and periods of work of any such child and the intervals of rest to which he is entitledc. the nature of work of any such child; and

d. such other particulars as may be prescribed.Display of Notice Containing Abstract of Section 3 and 14

Every railway administration, every port authority and every such occupier shall cause to be displayed in

a conspicuous and accessible place at every station on its railway or within the limits of a portor at theplace of work, as the case may be, a notice in the local language and in the English language containingan abstract of Sections 3 and 14.


26/41

THE EQUAL REMUNERATION ACT 1976:

This Act has Overriding Effect to all other acts which says PAYMENT OF REMUNERATION NOT

AT EQUAL RATES TO MEN AND WOMEN WORKERS AND OTHER MATTERS. It is a Duty of

employer to pay equal remuneration to men and women workers for same work or work of a similarnature and No Discrimination to be Made While Recruiting Men and Women Workers. Act not to Apply

in Certain Special Cases affecting the terms and conditions of a womans employment in complying withthe requirements of any law giving special treatment to women, or to any special treatment accorded to

women in connection With the birth or expected birth of a child, or the terms and conditions relating toretirement, marriage or death or to any provision made in connection with the retirement, marriage or

death.

same work or work of a similar nature 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 awoman and the differences, if any, between the skill, effort and responsibility required of a man and thoserequired of woman are not of practical importance in relation to the terms and conditions of employment;

i. worker means a worker in any establishment or employment in respect of which this Act has come

into force;

ii. Words and e

Labour Law1

Documents

Transcript of Labour Law1