ratika labour law.docx

Labour And Industrial Laws

Labour and Industrial Law Project

Report

Concept of Award: Commencement,

Binding Nature and Enforceability of

Awards and their Judicial Review

Submitted To: Submitted By:

Dr. Kusum Ratika Attri

B.A.ll.B(hons.) 9th Sem

68/11

Concept of Award


ACKNOWLEDGEMENT

I express my sincere gratitude to Dr. Kusum for her inspiration, expert guidance,

moral boosting, continuous encouragement and appreciation which are the vital

factors in successful completion of my project work.

I humbly acknowledge deep gratitude towards my teacher.

Thanking You.

Concept of Award


Contents

1. Award -Definition

2. Time period for submission of awards [Section 10 (2-A)]

3. Submission within three months

4. Extension of time period for submission of award [Section 10 (2-A)]

5. Computation of time-period [Section 10 (2-A)]

6. Form of award [Section 16(2)]

7. Publication of award (Section 17)

8. Commencement of the award (Section 17-A)

9. Commencement and conclusion of proceedings Court, Industrial Tribunal and National

Tribunal [Section 20(3)]

10. Penalty for breach of award (Section 29)

11. Non-disclosure of confidential information in the award (Section 21)

12. Penalty for disclosing confidential information (Section 30)

13. 'Award' of Labour Court, Industrial Tribunal and National Tribunal subject to "judicial

review"

14. Appeal against the award of the Tribunal to the Supreme Court under Art. 136 of the

Indian Constitution

15. Removal of doubts and difficulties in the awards (Section 36-A)

16. Enforcement of the award.

17. Bibliography

Concept of Award


Award

Award under Industrial Act is defined under Section 2(b) as "'award' means an interim or a

final determination of any industrial dispute or of any question relating thereto by any

Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an

arbitration award made under Section 10-A."

`Award' means an interim or final determination of any industrial dispute or of any question

relating thereto. The determination must be by any Labour Court, Industrial Tribunal, or National

Tribunal. It includes an arbitration award made under Section 10-A.

The definition of award falls in two parts. The first part covers a determination, final or

interim, of any industrial dispute.

The second part takes in a determination of any question relating to an industrial dispute. But

the basic postulate common to both the parts of definition is the existence of an industrial

dispute, actual or apprehended. The "determination" contemplated by definition is of the

industrial dispute or a question relating thereto on merits. In order to be an award, a

determination must be an adjudication of a question or point relating to an industrial dispute

which has been specified in the order of reference or is incidental thereto, and such adjudication

must be one on merits.1

Award includes final as well as an interim determination. The tribunal can grant only such

interim awards which they are competent to grant at the time of final award, because the relief,

which the Tribunal has no right to grant at the time of final determination, shall be outside its

authority at any stage of the proceedings.

Time period for submission of awards [Section 10 (2-A)] : According to sub-section (2-A) of

Section 10, “Labour Court, Tribunal or National Tribunal submits its award within the time

period specified by the appropriate Government in the order of reference.”

1 Cox and Kings (Agents) Ltd. v. Their Workmen, AIR 1977 SC 1666.

Concept of Award


First part of Section 10 (2-A) reads as follows: "An order referring an industrial dispute to a

Labour Court, Tribunal or National Tribunal shall specify the period within which such

Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the

appropriate Government."

Submission within three months

Section 10 (2-A) further provides that where such industrial dispute is connected with an

individual workman, no such period shall exceed three months.

Extension of time period for submission of award [Section 10 (2-A)]

According to sub-section (2-A) of Section 10, where the parties to an industrial dispute apply in

the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National

Tribunal for extension of such period or for any other reason, and the presiding officer of such

Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such

period, he may for reasons to be recorded in writing, extend such period by such further

period as he may think fit.

Computation of time-period [Section 10 (2-A)]

According to Section 10(2-A), in computing any period specified for the submission of award,

for which the proceedings before the Labour Court, Tribunal or National Tribunal had been

stayed by any injunction or order of a Civil Court shall be excluded.

According to Section 10(2-A), no proceedings before a Labour Court, Tribunal or National

Tribunal lapses merely on the ground that any period specified under Section 10(2-A) had

expired without such proceedings being completed.

Form of award [Section 16(2)]

According to Section 16(2), the award of a Labour Court or Tribunal or National Tribunal must

be in writing and must be signed by its presiding officer.

Concept of Award


Publication of award (Section 17)

According to Section 17(1), every award of a Labour Court, Tribunal or National Tribunal shall,

within a period of thirty days from the date of its receipt by the appropriate Government, be

published in such manner as the appropriate Government thinks fit.

According to Sec. 17(2), subject to the provisions of Section 17-A, the -award published under

sub-section (1) of Sec. 17 shall be final and shall not be called in question by any Court in any

manner whatsoever.

Commencement of the award (Section 17-A)

According to sub-section (1) of Section 17-A, an award (including an arbitration award)

becomes enforceable on the expiry of thirty days from the date of its publication under

Section 17. The appropriate Government or the Central Government, as the case may by

notification in the Official Gazette, declare that the award shall not become enforceable on the

expiry of the said period of thirty days-

(i) if the appropriate Government is of opinion, in any case where the award has been given

by a Labour Court, or Tribunal in relation to an industrial dispute to which it is a party;

(ii) if the Central Government is of opinion, in any case where the award has been given by

the National Tribunalthat it will be expedient on public grounds affecting national

economy or social justice to give such effect to the whole or any part of the award.

According to Section 17-A (2), where any declaration has been made in relation to an

award under the provision to sub-section (1) of Section 17-A, the appropriate Government

or the Central Government may, within ninety days from the date of publication of the

award under Section 17 make an order rejecting or modifying the award, and shall, on the

first available opportunity.

In Hotel Imperial, New Delhi v. Hotel Workers Union2, workmen of three hotels in New

Delhi were suspended on the charge of misconduct pending applications under Section 33.

The Tribunal had ordered these workmen to be paid their wages plus Rs. 25/- per month in

2 AIR 1959 SC 1342.

Concept of Award


lieu of food till final decision with regard to their dismissal. On appeal the Supreme Court

stayed the order of the Tribunal on the condition that the workmen should be paid a sum equal

to half of the amount adjudged payable by the Tribunal in respect of arrears accrued till then

and continue to pay a proportionate amount till the decision of the dispute. It was also

contended that the tribunal could not adjudicate upon the question on interim relief because it

was not referred to it. But the Supreme Court did not agree with this view because "interim

relief, where it is admissible, can be granted as a matter incidental to the main question

without being itself expressed in plain terms". It was further held that ordinarily interim relief

should not be the whole relief that the workmen would get if they finally succeeded.

In this regard the following principles are noteworthy:

(1) An interim award is not -the final determination of some of the points involved in an

industrial dispute. It is a provisional or temporary arrangement made in a matter of urgency

and subject to a final adjustment on the final determination of a dispute.

(2) Interim relief is granted in aid of the final relief to be granted. If final relief itself cannot

be granted no temporary relief of the same nature can be given. While awarding interim

relief, the final adjustment to be made at the time of the award must be kept in mind.

Finding on a preliminary issue is not an interim award.3 In giving retrospective effect to the

awards the tribunal should take into consideration that the Tribunal had on other occasions,

given increases to the workmen, it being immaterial whether the increases were referable to

the actual matter of dispute before the Tribunal. As observed by the Supreme Court no

retrospective operation can be given to an award for any period previous to the date on which

the demands in question were made.4 In view of Section 17 which says that a tribunal may

make its award operative from any date specified in the award, a tribunal has jurisdiction to

grant an award retrospectively.5 But an industrial tribunal cannot by way of interim relief

direct the employer to reinstate the workman, pending the disposal of an application under

section 33-A. 6

3 Tanneries of Dindigal v. Their Workmen, ( 1955) II LLJ 171. 4 Jhagra Khand Collieries (Private) Limited v. Central Government, Industrial Tribunal, Dhanbad, (1960) II5 LLJ 71. Caltex (India) Ltd. v. Industrial Tribunal No. 2 Ernakulam, (1961) II LLJ 85 (Kerala).6 Delhi Cloth and General Mills v. Additional Industrial Tribunal, (1960) II LLJ 712.

Concept of Award


Commencement and conclusion of proceedings Court, Industrial Tribunal

and National Tribunal [Section 20(3)]

According to sub-section (3) of Section 20, proceedings before Court, Industrial Tribunal or

National Tribunal is deemed to have commenced on the date the dispute is referred by the

appropriate Government for adjudication. Sub-Section (3) of Section 20 further provides that

the proceedings before Labour Court, Industrial Tribunal and National Tribunal is deemed to

have concluded on the date on which the award becomes enforceable under Section 17-A of

the Act.

Penalty for breach of award (Section 29)

According to Section 29, any person who commits a breach of any term of award which is

binding on him under the Act, is punishable:

(i) with imprisonment for a term which may extend to six months; or

(ii) with fine; or

(iii) with both, imprisonment and fine.

When the breach of award is continuing one, then the person is punishable with a further

fine which may extend to two hundred rupees for everyday during which the breach

continues after the conviction for the first.

Section 29 further provides that the Court trying the offence, if it fines the offender, may

direct that the whole or any part of the fine realized from him shall be paid, by way of

compensation, to any person who, in the opinion of the Court has been injured by such

breach.

Non-disclosure of confidential information in the award (Section 21)

A Trade Union, person, firm or company may request in writing to the authorities under the Act

to whom they give evidence of certain confidential information during the investigation or

inquiry, that such confidential information must not be disclosed. According to Section 21, upon

Concept of Award


receiving such written request, the authorities cannot include such confidential information in

their report or award.

Section 21 reads as under:

Certain matters to be kept confidential—

“There shall not be in any report or award under this Act any information obtained by .a

Conciliation Officer, Board, Court, [Labour Court, Tribunal, National Tribunal or an

arbitrator] in the course of an y investigation or inquiry as to a trade union or as to any

individual business (whether carried on by a person, firm or company) which is not available

otherwise than through the evidence given before such officer, Board, Court, [Labour Court,

Tribunal, National Tribunal or Arbitrator], if the trade, union, person, firm or company in

question has made request in .writing to. the Conciliation Officer, Board, Court, [Labour Court,

Tribunal, National Tribunal or arbitrator], as the case may be, that such information shall be

treated as confidential; nor shall such conciliation officer or any individual member of the

Board, [or Court or the presiding officer of the Labour Court, Tribunal or National Tribunal or

the Arbitrator] or any person present at or concerned in the proceedings disclosed any such

information without the consent in writing of the Secretary of the trade union or the person, firm

or company in question, as the case may be.

Provided that nothing contained in this section shall apply to a disclosure of any such

information for the purposes of prosecution under Section 193 of the Indian Penal Code (45 of

1860)”.

Penalty for disclosing confidential information (Section 30)

According to Section 30, any person who willfully discloses any such information as is referred

to in Section 21 in contravention of Section 21, on complaint made by or on behalf of the Trade

Union or individual business affected, be punishable with

(i) imprisonment for a term which may extend to six months; or

(ii) with fine which may extend to five thousand rupees; or

(iii) with both.

Concept of Award


'Award' of Labour Court, Industrial Tribunal and National Tribunal

subject to "judicial review"

The High Court exercises the power of writ jurisdiction under Art. 226 and power of

superintendence under Art. 227 of the Indian Constitution. The High Court exercises the

power of writ jurisdiction and supervision over all the Lower Courts and Tribunals within its

jurisdiction.

It is well settled that the decision of the Labour Court and the Tribunals rendered under the

Industrial Disputes Act would be subject to review by the High Court and under Articles

226/227 of the Indian Constitution.

The Full Bench of the Supreme Court in Hindustan Lever Ltd. v. B.N. Donge7 observed as

follows:

"Since against the decision of the Industrial Tribunal no remedy was available under t

provisions of the I.D. Act the aggrieved party could he only invoke the jurisdiction of the

High Court under Arts. 226/227 of the Indian Constitution."

The Court held8 that where both the employer and the Unions representing the workers were

aggrieved by the award, to the extent it went against them, they can prefer writ petition against

the award of the Industrial Tribunal to the High Court under Article 226 of the Indian

Constitution.

It is well settled that if the findings recorded by the Labour Court or Tribunals are on account

of a perverse reasoning or perverse approach to the matter, then the High Court is entitled to

interfere with the said finding by exercising the powers under Art. 226 and Art. 227 of the

Indian Constitution."9

In Engineering Mazdoor Sabha v. Hind Cycles10, the Supreme Court held that the award of

the Industrial Tribunal and voluntary arbitrator is subject to writ of certiorari issued by the

Court. The writ of certiorari is issued when the Lower Court or Tribunal acts illegally or in

excess of its jurisdiction.

7 AIR 1995 SC 817.8 Hindustan Lever Ltd. v. B.N. Donge, AIR 1995 SC 817.9 Shaw Wallace & Co. Ltd. v. N.R. Trivedi,1998 Lab IC 3309 (Guj.) 10 AIR 1963 SC 874

Concept of Award


Appeal against the award of the Tribunal to the Supreme Court

under Art. 136 of the Indian Constitution

Article 136(1) of the Indian Constitution provides as follows:

"Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant

special leave to appeal from any judgment, decree, determination, sentence or order in any

cause or matter passed or made by any Court or Tribunal in the territory of India."

The question that whether the Supreme Court can entertain an application for leave to appeal

against the award of Tribunal under Art.136 of the Indian Constitution was discussed in Bharat

Bank Ltd. v. The Employees of Bharat Bank11 It was held in this case that the Supreme Court

may entertain an application for leave to appeal against the award of Tribunal under Art.136 of

the Indian Constitution, because the Tribunal has all the characteristics of the Court and perform

the function which is judicial in its nature.

But the Supreme Court exercises very carefully its jurisdiction under Art. 136 of the Indian

Constitution while entertaining an application to leave to appeal against the award of a Tribunal.

The Supreme Court entertains any such application under Article 136 where the awards made by

the Tribunals are ' violation of the principles of natural justice, causing substantial and grave

injustice to the parties to the dispute.

Removal of doubts and difficulties in the awards (Section 36-A)

If in the opinion of the appropriate Government, any difficulty or doubt arises as to the

interpretation of any provision of an award or settlement may refer the question to such Labour

Court, Tribunal or National Tribunal as it may think fit.

The Labour Court, Tribunal or National Tribunal to which such question is referred gives the

opportunity to be heard to the parties to the dispute with respect to which the award has been

given. After giving the parties an opportunity of being heard, the Labour Court, Tribunal or

National Tribunal, as the case may be, decides such question and removes difficulty or doubt as

11 (1950) 2 LLJ 921.

Concept of Award


to the interpretation of any provision of an award or settlement. Such decision becomes final and

binding on all the parties under Section 36-A (2).

Payment of full wages to workman pending proceedings in higher Courts [Section 17-B]

Section 17-B intends to protect the workman from economic hardship which he may face when

his employer prefers any proceedings in a High Court or the Supreme Court against an award. of

Labour Court, Tribunal or National Tribunal which reinstates the workman.

Because Sec. 17-B provides for the payment of wages to the workman during the pendency of

proceedings in the higher Courts if:

(i) the workman had not been employed during such period, and

(ii) an affidavit by the workman had been filed to that effect in such court.

Section 17-B reads as under:

“Where in any case of Labour Court, Tribunal or National Tribunal by its award directs

reinstatement of any workman and the employer prefers any proceedings against such award in

a High Court or the Supreme Court, the employer shall be liable to pay such workman, during

the period of pendency of such proceedings in the High Court or the Supreme Court, full wages

last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if

the workman had not been employed in any establishment during such period and an affidavit by

such workman had been filed to that effect in such Court : Provided that where it is proved to the

satisfaction of the High Court or the Supreme Court that such workman had been employed and

had been receiving adequate remuneration during any such period orp art thereof, the Court

shall order that no wages shall be payable under this section for such period or part, as the case

may be.”

Enforcement of the award:-

An award may be enforced in the following ways-

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

party under Section 29 or Section 31.

Concept of Award


(2) Where any money is payable by the employer to workman, the workman may move to the

appropriate government for recovery of money due to him under the award.

(3) The party in whose favour the award has been granted may file a suit and obtain a decree

which shall be enforced under the execution under the provisions of the Civil Procedure Code.12

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

relating thereto but only determined whether the industrial Tribunal has been properly

constituted to which the industrial dispute could be referred for adjudication such order cannot be

said to be an award as defined in Section 2(b).13

Award of the Labour Court allowing a meager amount as house rent allowance to the workers

who are paid very low remuneration cannot be said to be unreasonable when financial position of

the company is sound.14

12 Bharat Bank Ltd. v. Their Employees, AIR 1950 SC188.13 A.C.E.S. Corpn. V. Workmen, AIR 1971 P& H 274.14 S.B. Products v. Workmen, AIR 1971 SC 2134.

Concept of Award


BIBLIOGRAPHYBooks:-

Meenu Paul. “Labour and Industrial Law”. Allahabad Law Agency. 8th edition. 2008

Malik, P.L., Law of Industrial Dispute,11th edition 2005, Allahabad law publications

Padhi P.K., “Labour and Industrial Laws” Prentice Hall of India Pvt.Ltd., ed. 2008, New

Delhi.

Statutes:-

The Industrial Dispute Act, 1947

Websites:-

http://www.slideshare.net/tkjainbkn/industrial-disputes-act-1947.

http://www.advocatekhoj.com/library/bareacts/industrial/19.php?Title=Industrial

%20Disputes%20Act,%201947&STitle=Period%20of%20operation%20of

%20settlements%20and%20awards.

http://www.lawyersclubindia.com/articles/ Enforcement/ of/ award.

http://www.en.m.wikipedia.org/wiki/Concept/ of/award.

Concept of Award

http://www.en.m.wikipedia.org/wiki/Concept/

http://www.advocatekhoj.com/library/bareacts/industrial/19.php?Title=Industrial%20Disputes%20Act,%201947&STitle=Period%20of%20operation%20of%20settlements%20and%20awards



http://www.slideshare.net/tkjainbkn/industrial-disputes-act-1947

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