Labour Laws

Frequently Asked Questions on Labour Laws

Ans. Scope of the Act. - The Indian Workmen's Compensation Act, 1923, provides for compensation to a workman who becomes incapacitated due to any accidental injury in the course of employment. The Act owes its salient features to the common law relating to grant of compensation to the workmen in England. In the interpretation of the Act, the Indian Courts have been guided by the English decisions.

The Act extends to the whole of India except the State of Jammu and Kashmir. It applies to all factories employing ten or more persons and using power and to those factories, which do not use power but employ 50 or more workers. The Act also applies to shipmasters and seamen of power-driven ships or non-power-driven ships of 500 or more tons. In general it applies to all organized industries and hazardous occupations. Besides, the State Government may extend the application of the Act to other occupations, which in its opinion are hazardous.

The Statement of Objects and Reasons appended to the Act says that "the growing complexity of industry in this country with the increasing use of machinery and consequent danger to the workmen, alongwith the comparative poverty of workmen themselves, renders it advisable that they should be protected from hardships arising out from accidents".

This Act initially applied only to workers employed otherwise than in clerical capacity and receiving monthly wages not exceeding Rs. 300 in factories, mines and ports, to those engaged on the railways, tramways on loading, unloading ships at dock, etc., where mechanical power was used in a building trade, construction of bridges, telegraph and telephone lines and posts and overhead electric cables, in connection with seers and in the brigade services. The Act also applied to specified occupational diseases and the Government of India was empowered to extend the list of such diseases as well as to hazardous occupations.

Presently this - Act applies to all workers other than those whose employment is casual nature.

Applicability of Act to Workers of Public Sector Section 2 (n) of the Act reads as under :-

`Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is-

(i) A railway servant as defined in Clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989) not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

"(ia)(a) a master, seaman or other member of the crew of a ship.

(b) A captain or other member of the crew of an aircraft.

(c) a person recruited for work abroad by a company,

and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or

(ii) Employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them."

This Section makes it clear that for being termed as a workman, a person has to be working in a contract employment as has been observed in any capacity. In "Sunil Industries, M/s. v. Ram Chander Pradhan" AIR 2001 SC 220 it was observed that it is true that the Workmen's Compensation Act, 1923 has been amended on a number of occasions. However in spite of numerous amendments the Legislature has purposely omitted to specifically provide that only a workman who is employed in a factory, as defined in the Factories Act, could make a claim. All that has been done is that in Schedule II of the Workmen's Compensation Act it is inter alia clarified that persons employed, otherwise than in a clerical capacity, in any premises wherein a manufacturing process as defined in clause (k) of Section 2 of the Factories Act, 1948, is carried out are workmen. Significantly the definition of the term "Factory" as appearing in clause (m) of Section 2 of the Factories Act, 1948 has not been incorporated in the Workmen's Compensation Act. Thus it is clear that for the Workmen's Compensation Act to apply it is not necessary that the workman should be working in a factory as defined in the Factories Act, 1948. It has not been denied that the workshop of the appellant would fall under clause (k) of Section 2 of the Factories Act.

So whoever is workman within the meaning of Section 2(n) of Act will be entitled to protection of Workmen's Compensation Act irrespective of the fact that he is employed in private or public sector.

Ans. (A) Dependant :- Section 2(1)(d) of the Act defines dependant. Under this sub-section relations of a workman are divided into three classes. However, there is no preferential right amongst dependants to maintain claim application. The dependants are not classified in different categories in the sense that those specified in category I will exclude others. Dependants belonging to any category may claim simultaneously.

(i) The first category includes a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter and a widowed mother. They are deemed in law as dependants of a workman whether they are in fact dependent on the earnings of the workman or not.

(ii) In the second category of dependants are included a son and a daughter, they have to fulfil the following conditions, namely :

(a) They must be wholly dependant on the earnings of the workman at the time of his death;

(b) They must be infirm; and

(c) They must have attained the age of 15 years.

(iii) The following are included in the third category of dependants provided they are wholly or in part dependant on the earnings of the workman at the time of his death :

(a) a widower,

(b) a parent other than a widowed mother,

(c) (i) a minor illegitimate son,

(ii) an unmarried illegitimate daughter,

(iii) a daughter whether legitimate or illegitimate or adopted if married and minor, or if widowed and a minor,

(d) a minor brother or an unmarred sister or a widowed sister if a minor,

(e) a widowed daughter-in-law,

(f) a minor child of a predeceased son,

(g) a minor child of a predeceased daughter where no parent of the child is alive, or

(h) A parental grandparent if no parent of workman is alive.

Explanation. - For the purposes of sub-clause (ii) and item (f) and (g) of sub-clause (iii), references to a son, daughter of child includes an adopted son, daughter or child respectively.

In B. M. Hobeebullah's case AIR 1977 Mad. 390, it was observed dependency is a question of fact. Therefore, where a person claims compensation as a dependant of the deceased workman, he must establish that he is a dependant within the meaning of Section 2(1)(d) of the Act. In all those cases the question of payment of compensation is conditioned by such claimant being wholly or in part dependent upon the earnings of the workman, it is not necessary for the dependants to obtain written letters of administration or a succession certificate. Dependant does not include all the heirs of a workman but only those who, to some extent, depend upon him. Kinship coupled with dependency is made the sole criterion for a person to fall within the ambit of the definition of dependant.

(B) Employer. - In view of Section 2(1)(e) employer includes the following :

(1) any body of persons whether incorporated or not,

(2) any managing agent of an employer,

(3) legal representative of a deceased employer, and

(4) When the services of a workman are temporarily lent on hire to another person by the person, with whom the workman has entered into a contract of service or apprenticeship means such other person while the workman is working for him.

Till 1948, the liability to pay compensation under the Act was only that of the person with whom the workman has entered into a contract of service or apprenticeship. But later on the Act was amended so as to cover cases under Section 12 of the Act, which makes the borrowing employer also liable. If a person is employed for the purposes of any game or recreation and engaged or paid through a club, the manager or the members of the managing committee of the club will, for the purpose of the Act, be deemed to be the employer.

(C) Managing Agent. - "Managing Agent" means any person appointed or acting as the representative of another person for the purpose of carrying on such other person's trade or business, but does not include an individual manager subordinate to an employer. [Section 2 (1) (f)]

In Baijnath Singh v. O.T. Railway, AIR 1960 All. 362, dependants of a workman, who died from an accident resulting from collision of a light engine with a trolley which he was plying, made General Manager O.T., Railway a party to their claim. The Allahabad High Court held that "the `manager' of a railway is according to the definition of railway administration in Section 3 (6) of the Railways Act, equated to the Government. He, therefore, satisfied the definition of managing agent in the Workmen's Compensation Act, because he can be said to be running the department which he is directly concerned with."

(D) Partial Disablement. - Section 2 (1)(g) defines partial disablement. Such disablement is of two kinds -

(i) Temporary partial disablement.

(j) Permanent partial disablement.

The test of such disablement is the reduction in the earning capacity of the workman. If the earning capacity of a workman is reduced in relation to the employment he had been at the time of the accident resulting in such disablement, it is temporary partial disablement. If the injury caused by an accident results in the reduction of the earning capacity in respect of employment which the workman was capable of as specified in part II of Schedule I shall be deemed to result in permanent partial disablement. Compensation under the Act is payable only if the injury caused by accident results in workman's disablement exceeding three days.

To determine whether the injury is permanent or temporary the Courts have to see whether the injury has incapacitated the workman from every employment which he was capable of undertaking at the time of accident or merely from the particular employment in which he was at the time of the accident resulting in disablement. In the former case the disablement is partial but permanent, in the latter case it is temporary.

In Calcutta Licensed Measures Bengal Chamber of Commerce v. Md. Hossain, AIR 1969 Cal. 378 it was observed, loss of earning capacity or the extent of it is question of fact. It has to be determined by taking into account the diminution or destruction of physical capacity as disclosed by the medical evidence and then it is to be seen to what extent such diminution or destruction would reasonably be taken to have disabled the affected workman from performing the duties which a workman of his class ordinarily performs.

The following propositions are helpful in deciding the nature of disablement :

(i) Earning is not the same as earning capacity. There is difference between earning of a person and his capacity to earn.

(ii) Rise in earning may be because of various factors and rise in wages in not decisive of any loss of earning capacity.

(iii) Loss of physical capacity is not co-extensive with loss of earning capacity. To what extent there is loss of earning capacity for every employment which the workman was capable of undertaking at the time or the employment in which he was engaged at the time of the accident as the case falls for consideration.

(E) Total Disablement. - According to Section 2(1) of Workmen's Compensation Act, 1923 "Total Disablement" means such disablement whether of a temporary or permanent nature as incapacitates a workman for all work which he was capable of performing at the time of accident resulting in such disablement.

Provided that permanent total disablement shall be deemed to result from every injury specified in part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity as specified in said part II against those injuries amounts to one hundred percent or more" It was held in National Insurance Co. Ltd. v. Mohd. Saleem Khan and another, 1992 II LLJ 377 that if the workman is incapacitated to do all the work which he was capable of performing at the time of accident it is a case of total disablement. It may be that in view of the injuries the workman is capable enough to render some other sort of work, but still when there is incapacity to do the work which he was capable of performing by the date of the accident it is a case of total disablement. The certificate of the doctor of physical impairment and loss of physical function is not material in deciding the question of total disablement.

(F) Wages. - "Wages" includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any Pension or Provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment. [Section 2 (1) (m)]

Bonus is wages. Dearness allowance and amenities of free water and accommodation come under the privileges and benefit is thus within the definition of wages.

Overtime allowance is also wages. It has been held by the Mysore High Court in the case of Hindustan Aeronautics Ltd. v. Bone Jan, (1971 22 FLR 808, that overtime allowance and out-station allowance are the privilege or benefit which the employee was entitled to get for working beyond specified hours and for his work at out-station.

Maternity benefit payable to a woman delivering a child is also included in the term wages.

In the case of Bharat Heavy Plate and Vessles Ltd. v. Commissioner for Workmen's Compensation and others, (1983) I LLJ 477, the term "wages" has been given a wider meaning. The Court observed that the definition of "wages" includes overtime allowance drawn by the workman. The expression wages used in the Workmen's Compensation Act includes any privilege or benefit, which may be estimated in terms of money. It is to be noted here that following are not included in the term wages.

(i) travelling allowance; or

(ii) the value of travelling concession; or

(iii) a contribution made towards any Pension; or

(iv) a contribution made towards Provident fund; or

(v) a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment.

Ans. Employer's liability for Compensation. - The liability of an employer to pay compensation is limited and is subject to the provisions of the Act. Under sub-section (1) of Section (3) the liability of the employer to pay compensation is dependant upon the following four conditions :

(1) Personal injury must have been caused to a workman;

(2) Such injury must have been caused by an accident;

(3) The accident must have arisen out of and in the course of employment; and

(4) The injury must have resulted either in death of the workman or in his total or partial disablement for a period exceeding three days.

The employer shall not be liable to pay compensation in the following cases :

(a) If the injury did not result in total or partial disablement of the workman for a period exceeding three days;

(b) In respect of any injury not resulting in death or permanent total disablement the employer can plead :

(i) that the workman was at the time of accident under the influence of drinks or drugs;

(ii) that the workman willfully disobeyed an order expressly given or a rule expressly framed for the purpose of securing safety of workmen; and

(iii) That the workman having known that certain safety-guards or safety devices are specifically provided for the purpose of securing the safety of workman, willfully disregarded or removed the same.

Employer's liability in case of Occupational Diseases According to Section 3(2) of Workmen's Compensation Act, if a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect to each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section, and, unless the contrary, is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment :

[Provided that if it proved, -

(a) that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment; and

(b) that the disease has arisen out of and in the course of the employment, the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section :

Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting or the disease shall be deemed to be injury by accident within the meaning of this section.]

Contracting of any one the diseases specified in the Schedule 3 of the Act is deemed to be personal injury caused by accident out of and in the course of employment. These diseases are called occupational diseases. Schedule 3 is divided into Parts A, B and C. To support any claim for compensation in case of occupational diseases in Part A, no specified period of employment is necessary. In the case of Part B, the workman contracting the diseases must have been in the service of the employer for a continuous period of not less than six months. Regarding the disease in Part C, the workman must have been in continuous services of one or more employers for such period as the Central Government may specify.

Arising out of and in the course of employment :- The accident must arise out of and in the course of employment so as to attract the liability under Section 3 of the Act. These twin conditions must co-exist before it can be said that the employer has incurred the liability. These tow conditions will be involved if the following questions are answerable affirmatively :-

(i) whether at the moment of the accident the employee was obliged to present on that site by the express or implied term of contract of his service;

(ii) whether he was there in his capacity as an employee or merely as a member of the public;

(iii) whether he was at that time under the control or direction of the employer or was acting as a completely free man;

(iv) whether his presence at the spot was incidental to his employment; and

(v) Whether there was a proximate connection between the employment and the accident; (General Manager, B.E.S.T. Undertaking Bombay v. Mrs. Agnes, AIR 1964 Supreme Court 193).

In Sakinabibi v. Gujarat State Road Transport Corpn., 1992 Lab. I. C. 365, it was observed that the accident must arise out of and in the course of an employment. Therefore, the personal injury by accident must arise both out of as well as in the course of a workman's employment. The expression `in the course of employment' means in the currency of the employment. The test is in the course of discharge of duties incidental to the contract of service. The employee must show that he was at the time of the accident engaged in employer's business or in furthering with business and was not doing something for his own benefit or accommodation, that he was doing something in discharge of his duty to his employer directly or indirectly imposed upon him by his contract of service.

Section 3(2-A) - In case of any employment mentioned in Part C of Schedule III where there are more than one employers, sub-section (2-A) of Section 3 authorizes the Commissioner to fix up the extent of responsibility of different employers in respect of the amount of compensation payable to a workman.

Section 3(3) - The Central Government or the State Government after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may by a like notification, add any description of employment to the employments specified in Schedule III and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational disease peculiar to those employments respectively and thereupon provisions of sub-section (2) shall apply in the case of a notification by the Central Government within the territories to which this Act extends or, in case of a notification by the State Government within the State as if such diseases had been declared by this Act to be occupational disease peculiar to those employment's.

Section 3(4) - The employer is liable to pay compensation only if the disease can be directly attributed to a specific injury by accident arising out of and in the course of his employment. Exceptions to this rule are the cases covered by sub-sections (2), (2-A) and (3) of Section 3.

Ans. Section 4 of the Act deals with the amount of compensation that a workman would be entitled to get under the Act. The amount of compensation depends upon the gravity of the injury and the nature of disablement. For the purpose of determination of compensation the injuries have been divided into four categories, namely :

(i) death;

(ii) permanent total disablement;

(iii) permanent partial disablement; and

(iv) Temporary disablement whether total or partial.

(i) Death Compensation :- If the injury from the accident results in the death of the workman the compensation is payable by the employer to the dependents of the workman. In such cases the amount of compensation is determined by making a reference to Schedule IV. In that Schedule 20 different levels of monthly wages are given in the first column and the amount of compensation payable in respect of that wage level is given in the second column. The maximum amount payable to the dependent of a worker in case of death is Rs. 30,000/- after the 1976 amendment. By the 1984 amendment the rates of compensation in the event of death is further raised from a minimum of Rs. 7,200 to 20,000/- and a maximum of Rs. 90,000/- from the present Rs. 30,000/-. The amount is payable in lump sum in such cases.

(ii) Permanent total disablement Compensation :- In case of injuries not resulting in death, the amount of compensation depends upon the nature of the disablement. When there is 100 percent loss in the earning capacity of the injured workman, it is a case of permanent total disablement. Schedule one, part one of the Act enumerates six injuries with 100 per cent loss of earning capacity. Apart from this if the aggregate of the loss of earning capacity due to two or more injuries specified in part two of Schedule one, comes to 100 percent or more then also it becomes a case of permanent total disablement. In such cases the amount of compensation payable will be proportionate to the loss of earning capacity of the workman concerned based on the wages group he falls Schedule IV of the Act.

(iii) Permanent partial disablement compensation :- When the loss of earning capacity is below 100 percent it partakes the nature of permanent partial disablement. Part II of Schedule I of the Act enumerates certain injuries as cases of permanent partial disablement showing in their corresponding column of the percentage of loss of earning capacity. If the injury in question is one listed is part II of Schedule I, the loss of earning capacity can be easily seen from the corresponding column. In such cases, depending upon the wage structure of the concerned employee he is entitled to compensation proportionate to the loss of earning capacity payable in the case of permanent total disablement compensation as stated in Schedule IV of the Act.

Compensation on unscheduled injuries :- Under Section 4(1)(c)(2) if the injury is not specified in Schedule I, the amount of compensation shall be such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury. The loss of earning capacity is a question of fact.

In Calcutta Licensed Measures v. Mohammed Hussein, AIR 1969 Cal. 378, the Court laid down the following propositions -

(i) earning is not the same as earning capacity;

(ii) the rise in earning may be because of various factors and rise in wages is not decisive of no loss of earning capacity;

(iii) loss of physical capacity is not co-extensive with loss of earning capacity;

(iv) Loss of physical capacity or physical incapacity may be relevant not as to which extent there is loss of earning capacity, for every employment which the workman was capable of undertaking at that time or the employment in which he was engaged at the time of the accident as the case falls for consideration.

(iv) Compensation in case of temporary disablement :- For temporary disablement whether total or partial, compensation is payable in the form of recurring half-monthly payments. The first such payment becomes due on the 16th day after the expiry of the waiting period of three days where such disablement lasts for a period of less than 28 days. Thereafter payments are made in half monthly installments during the period the disablement lasts or during a period of five years whichever is shorter. The payment of half- monthly payment payable to a workman is shown in column 4 of the Schedule IV that varies according to the particular wage group to which the workman concerned belongs. If the workman has received any amount by way of compensation except allowance towards medical treatment during the period of disablement prior to receipt of the first half-monthly payment, such amount shall be deducted from half monthly payment.

Sub-section (1) of Section 4-A provides that the compensation shall be paid as soon as it becomes due. Sub-section (2) provides that if there is a dispute regarding amount of compensation claimed by a workman, where the employer accepts his liability but not to the extent claimed the employer shall either provisionally pay the amount accepted by him to the workman or deposit it with the Commissioner. Any provisional payment or deposit so made by the employer shall not prejudicially affect any claim by the workman of any further amount under the Act. The workman may accept the amount as payable by the employer provisionally and make further claim for any additional amount. The employer is bound to make provisional payment of any amount based on the extent of liability he accepts within one month from the date it fell due whether in case of death or permanent or temporary disablement of any kind.

Sub-sections (3) and (3-A) which have been substituted by Amendment Act 30 of 1995 provide as follows :-

Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the commissioner shall -

(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent, per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and

(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty :

Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.

Ans. Calculation of wages. - Section 5 of the Act provides that in this Act and for the purposes thereof, the expression "monthly wages" means the amount of wages deemed to be payable for a month's service (whether the wages are payable by the month or by whatever other period or at piece rate) and calculated as follows, namely :

(a) Where the length of service of the affected workman, preceding to the injury, is of at least 12 months, the monthly wages of the person will be one-twelfth of the sum of the salary drawn during preceding 12 months.

(b) The second category of cases are those in which the period of employment of the affected person preceding to injury, was of less than one month. In such cases the computation of monthly wages is done on a different basis. The wages earned by any other person engaged in the similar employment (similar to that of affect person) is taken to be a standard and the same will be monthly wages of injured person.

(c) In other cases, including cases in which it is not possible for want of necessary information to calculate the monthly wages under clause (b), the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is liable to pay Compensation divided by the number of days comprising such period.

A period of service shall, for the purposes of this section be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days.

Computation of half monthly payment. - Any right to receive half monthly payments may, by agreement between the parties or, if the parties cannot agree and the payments have been continued for not less than six months, on the application of either party to the Commissioner, be redeemed by the payment of a lump sum of such amount as may be agreed to by the parties or determined by the Commissioner, as the case may be. (Section 7)

The Commissioner shall form an estimate of the probable duration of the disablement and shall award a sum equivalent to the total of the half-monthly payments which would be payable for the period during which he estimates that the disablement will continue, less one half percent of that total for each month comprised in that period.

Power of review. - Any half-monthly payments payable under this Act, either under an agreement between the parties or under the order of a Commissioner, may be reviewed by the Commissioner on the application either of the employer or of the workman accompanied by the certificate of qualified medical practitioner that there has been no change in the condition of the workman or subject to rules made under this Act on application made without such certificate (Section 6) .

Any half-monthly payments may, on review as above, subject to the provisions of this Act, be continued, increased, decreased or ended or, if the accident is found to have resulted in permanent disablement, be converted to the lump sum to which the workman is entitled less any amount which he has already received by way of half-monthly payments. Section 6 of the Act makes an express provision for altering the amount once fixed as compensation on the ground of a subsequent change in the circumstances, but under the terms of the section it is limited to half-monthly payments which are prescribed by the Act for only temporary disablement total or partial. If on examining an application for review by an employer in which the reduction or discontinuance of half-monthly payment is sought, and if it appears to the Commissioner that there is reasonable ground for believing that the employer has a right to such reduction or discontinuance, he may, at any time, issue an order withholding the half-monthly payments in whole or in part pending his decision on the application. Besides Section 6, there is no provision in the Act, which empowers the parties to seek a reopening of the question of compensation, whether fixed by agreement or determined by award.

Ans. The following remedies are available to a workman in respect of an injury by accident arising out of and in the course of his employment, namely :-

(1) a suit for damages in the Civil Court;

(2) a suit in a Civil Court for Compensation under Section 3 of the Workmen's Compensation Act;

(3) agreement with the employer providing for compensation under Section 28 of the Workmen's Compensation Act;

(4) Claim under Section 10 of the Workmen's Compensation Act before the commission appointed under the Act.

Under sub-section (5) of Section 3 no claim for Compensation shall be maintainable by a workman in respect of any injury if he has already instituted a Civil proceeding for damages in respect of the same injury against the employer or any other person. So also no suit for damages shall be instituted by a workman in any Court of law in respect of any injury in the following two circumstances:

(1) if such workman has made a claim for compensation in respect of such injury before a commissioner; or

(2) If the amount of Compensation in respect of the injury has been settled by an agreement between the workman and the employer in accordance with the provision of the Act.

In case of an injury caused by an accident a workman has the following alternative remedies :

(i) he can claim compensation under this Act; or

(ii) he can claim damages in torts; or

(iii) He can claim under the Employer's Liability Act.

Section 3(5) imposes a bar on the recovery by the workman of compensation twice for the same injury.

Suspension of right to get compensation. - According to Section 11(2) of the Act, if a workman, on being required to do so by the employer under sub- section (1) or by the Commissioner at any time, refuses to submit himself for examination by a qualified medical practitioner or in any way obstructs the same, his right to Compensation shall be suspended during the continuance of such refusal or obstruction unless, in the case of refusal, he was prevented by any sufficient cause from so submitting himself. And again Section 11(3) says that if a workman, before the expiry of the period within which he is liable under sub-section (1) to be required to submit himself for medical examination, voluntarily leaves without having been so examined, his right to compensation shall be suspended until he returns and offers himself for such examination.

Notice of the accident an essential condition precedent. - According to Section 10, no claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within (two years) of the occurrence of the accident or, in case of death, within (two years) from the date of death.

Ans. Notice and claims of the accident. - (Section 10) A workman who is injured by an accident must give a notice of it in writing. This has to be done as soon as practicable after the occurrence of the accident. No hard and fast rule can be laid down in regard to what is meant by "as soon as practicable". It depends upon the individual circumstances.

The notice must contain :-

(i) the name and address of the workman injured;

(ii) the date of the accident;

(iii) The cause of the injury.

The notice has to be served upon the employer or on any one of the several employers or upon any person who is responsible to the employer for the management of the branch of trade or business where the injured workman was employed. It may be delivered to the person concerned by hand or sent by registered post.

Any claim for compensation must be made within two years of the occurrence of the accident or in case of death, within two years from the date of death.

Where the accident results in any physical or bodily injury, the date of the accident can be easily ascertained. In case of occupational disease specified in Schedule III it would not be possible to know exactly the date on which the disease was contracted. It has, therefore, been provided that in the case of an occupational disease, the first day of the period during which the workman was continuously absent from work in consequence of the contracting of such a disease, should be considered as the date of the accident.

In case of partial disablement due to the contracting of any occupational disease which does not compel such workman to absent from duty, the period of two years for the purpose of making any claim for compensation shall be counted from the day the workman gives notice of the disablement to his employer.

Where a person who has been in employment for a continuous period specified under Section 3 (2) in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment, within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected.

The object of giving such a notice is to enable the employer to check the fact of the accident having occurred to the workman in the course of this employment and also to enable the employer to take such steps as he may think fit to mitigate the consequence in the accident.

No claim for compensation shall be turned down want to defect or irregularity in the notice in the following cases :

(a) Where the claim for compensation is made in respect of the death of the workman resulting from an accident which occurred on the employer's premises or at any place under the employer's control at the time of the accident and the workman died on such premises or at place or premises belonging to employer or died without having left the vicinity of the premises or place where the accident occurred;

(b) Where the employer or any one of the several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed had knowledge of the accident from any other source at or about the time it occurred.

The Commissioner for Workmen's Compensation is empowered to condone any failure to give notice or prefer the claim if he is satisfied that the failure had been for sufficient cause.

Ans. (A) Statement of Fatal Accident :- Section 10-A of Workmen's Compensation Act provides :-

"(1) Where a Commissioner receives information from any sources that a workman has died as a result of an accident arising out of and in the course of his employment, he may send by registered post a notice to the workman's employer requiring him to submit, within thirty days of the service of the notice, a statement, in the prescribed from, giving the circumstances attending the death of the workman, and indicating whether, in the opinion of the employer, he is or is not liable to deposit compensation on account of the death.

(2) If the employer is of opinion that he is liable to deposit compensation, he shall make the deposit within thirty days of the service of the notice.

(3) If the employer is of opinion that he is not liable to deposit compensation, he shall in his statement indicate the grounds on which he disclaims liability.

(4) Where the employer has so disclaimed liability, the Commissioner, after such inquiry as he may think fit, may inform any of the dependents of the deceased workman that it is open to the dependants to prefer a claim for compensation, and may give them such other further information as he may think fit".

(B) Employer's Liability to report Fatal Accidents. (Section 10-B) :- Where under the provision of any other law in force, the employer or someone on his behalf is required to give notice of any accident occurring on his premises which results in death or serious bodily injury, the person so required to give notice shall within seven days of such occurrence send a report to the Commissioner giving the circumstances attending death or serious bodily injury. Where the State Government has so prescribed, the person required to give notice may, instead of sending such report to the Commissioner, send it to the authority to whom he is required to give the notice. For the purpose of this section `serious bodily injury' means an injury which involves or in all probability will involve, (i) the permanent loss of the use of, or permanent injury to any limb; or (ii) the permanent loss of or injury to the sight or hearing; or (iii) the fracture of any limb; and (iv) any injury which compels the injured person to be absent from his work for a period exceeding twenty days.

This notice has to be given in a form prescribed by the Government stating therein :

(1) The time of accident;

(2) Place where accident occurred;

(3) Manner in which the deceased was employer; and

(4) Cause of the accident.

In addition to this the following particulars of the workman should also be supplied :

(1) Name; (2) Sex; (3) age; (4) nature of employment; and (5) postal address.

The provisions of Section 10-B of the Workmen's Compensation Act do not apply to factories to which the Employee's State Insurance Act, 1948 applies.

(C) Compensation Return :- Section 16 of the Act provides that the State Government may, by notification in the Official Gazette, direct that every person employing workmen, or that any specified class of such persons shall send at such time and in such form and to such authority, as may be specified by State Government by notification, a correct return specifying the number of injuries in respect of which compensation has been paid by the employer during the previous year and the amount of such compensation, together with such other particulars as to the compensation as the State Government may direct.

Whoever fails to make a return, as required above, shall be punishable with fine, which may extend to five hundred rupees. [Section 18-A (1)].

(D) Contracting out. - Section 17 of the Act provides that any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal inquiry arising out of or in the course of the employment, shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act.

Ans. Section 11 of the Workmen's Compensation Act provides in this regard, a workman who is injured and has given notice of an accident to the employer shall submit himself for medical examination if offered by the employer.

Any such offer made by the employer must be free of charge and made within three days from the time at which service of the notice has been effected. So also any workman who receives half-monthly payment shall submit himself for medical examination if and when required buy the employer. Any workman shall be required to submit himself for examination by a medical practitioner only in accordance with the rules made under this Act and at such intervals as prescribed by these rules.

If a workman refuses to submit himself for examination by a qualified medical practitioner as required either by the employer of the Commissioner, his right to compensation shall be suspended for the period of refusal or obstruction. In these cases he will be entitled to full compensation only if he can show that he was for some sufficient cause prevented from submitting himself. If any such refusal or obstruction by the workman leads to the aggravation of injury he shall be entitled to compensation for only such disablement which would have resulted if the injury would have been properly treated. Difficulty arises where the medical treatment results in deterioration of the injury. If the intervening act is the direct or foreseeable consequence of the defendant's act then the doctrine novus actus interveniens does not apply, nor does it apply where the intervening actor is not fully responsible or if his act is intentionally procured by the plaintiff.

Where the workman whose right to compensation has been suspended under sub- sections (2) and (3) of Section 11, dies without having submitted himself for medical examination as required, the Commissioner may, if he thinks fit, direct the payment of compensation to the dependants of the deceased workman. But no compensation in such cases shall be payable in respect of the period of suspension and if the period of suspension commences before the expiry of the waiting period referred to in clause (d) of sub-section (1) of Section 4, the waiting period shall be increased by the period during which the suspension continues.

The aggravation of any injury shall not be taken into consideration in the assessment of compensation in the following cases under Section 11 (6) :

(i) where an injured workman has refused to be attended by a qualified medical practitioner whose services have been offered to him by the employer free of charge; or

(ii) where the injured workman has deliberately disregarded the instructions given by a qualified medical practitioner :

Provided it is proved that such refusal, disregard or failure was unreasonable in the circumstances of the case.

The purpose of medical examination is to prevent a dishonest worker having an opportunity of concealing the nature of his injury from any impartial observer and the certificate or evidence given by the employer's doctor cannot, however, be considered to be conclusive. In case the employer doubts the bona fide of the workman, he may get him examined by a competent medical practitioner free of cost but he cannot demand of the worker a medical certificate.

Ans. Where the principal in the course of or for the purpose of his trade or business contracts with any contractor for the execution by or under the contract of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him, and where compensation is claimed from the principal, this Act shall apply as if reference to the principal were substituted for reference to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.

Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation and all questions as to the right to and the amount of any such indemnity shall in default of agreement, be settled by the Commissioner.

This section shall not prevent a workman recovering compensation from the contractor instead of the principal.

It will, however, not apply in case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management (Section 12)

In the case of Executive Engineer P.W.D. v. Subbiah Naicker and another, (1983) II LLJ 320, the question as to whether an award for compensation can be passed against the principal employer under the provisions of Section 12 was settled.

In this case it was laid down that in the light of the provisions of Section 12 it was very much clear that the legislature has clearly and specifically provided that an award for compensation is to be passed directly against the principal employer and at the same time the principal employer is given a right of indemnification as against the contractor. In such circumstances, the Additional Commissioner is entitled to pass an award granting compensation either in full or in part directly against the principal employer with the condition precedent that the principal employer will get indemnified by the contractor.

Ans. Section 14 of Workmen's Compensation Act provides :-

(1) Where any employer has entered into a contract with any insurer in respect of any liability under this Act to any workman, then in the event of the employer becoming insolvent or making a composition or scheme of arrangement with his creditors or, if the employer is company, in the event of the company having commenced to be wound up, the rights of the employer against the insured as respects that liability shall, notwithstanding anything in any law for the time being in force relating to insolvency or the winding up of companies, be transferred to and vest in the workmen, and upon any such transfer the insurers shall have the same rights and remedies and be subject to the same liabilities as if they were the employer, so, however, that the insurer shall not be under any greater liability to the workman than they would have been under to the employer.

(2) If the liability of the insurers to the workman is less than the liability of the employer to the workman, the workman may prove for the balance in the insolvency proceedings of liquidation.

(3) Where in any case such as is referred to in sub-section (1) the contract of the employer with the insurers be void or voidable by reason of non- compliance on the part of the employer with any terms or conditions of the contract (other than a stipulation for the payment of premium), the provisions of that sub-sections hall apply as if the contract were not void or voidable, and the insurers shall be entitled to prove in the insolvency proceedings or liquidation for the amount paid to the workman :

Provided that the provisions of this sub-section shall not apply in any case in which the workman fails to give notice to the insurers of the happening of the accident and of any accident resulting in disablement as soon as practicable after he becomes aware of the institution of the insolvency or liquidation proceedings.

(4) There shall be deemed to be included among the debts which under Section 49 of the Presidency-towns Insolvency Act, 1909 (33 of 1909), or under Section 61 of the Provincial Insolvency Act, 1920 (5 of 1920) or under Section 530 of the Companies Act, 1956 (1 of 1956) are in the distribution of the property of an insolvent or in the distribution of the assets of a company being wound up to be paid in priority to all other debts, the amount due in respect of any compensation the liability wherefor accrued before the date of the order of adjudication of the insolvent or the date of the commencement of the winding up, as the case may be and those Acts shall have effect accordingly.

(5) Where the compensation is a half-monthly payment, the amount due in respect thereof shall, for the purposes of this section, be taken to be the amount of the lump sum for which the half-monthly payment could, if redeemable, be redeemed if applications were made for that purpose under Section 7, and a certificate of the Commissioner as to the amount of such sum shall be conclusive proof thereof.

(6) The provisions of sub-section (4) shall apply in the case of any amount for which an insurer is entitled to prove under sub-section (3), but otherwise those provisions shall not apply where the insolvent or the company being wound up has entered into such a contract with insurers as is referred to in sub-section (1)

(7) This section shall not apply where a company is wound up voluntarily merely for the purpose of reconstruction or of amalgamation with another company.

In R.B. Moondra and Co. v. Mst. Bhanwari, AIR 1970 Raj 111, it was observed the Commissioner for the Workmen's compensation has no jurisdiction to award Compensation to a workman against the insurance company unless the case falls within Section 14 of the Act because the term, employer, as defined in the Act, does not cover the insurance company.

Ans. Section 19 of Workmen's Compensation Act provides :-

(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by [a Commissioner].

(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.

So any Commissioner of an area concerned shall have the power to decide and settle all questions as to the liability of any person to pay compensation. In default of an agreement between the parties to arrive at a conclusion in respect of any claim to compensation, the Commissioner has jurisdiction to decide inter alia, -

(i) The question as to whether a person injured is a workman.

(ii) The liability of any person to pay compensation.

(iii) The amount and duration of compensation.

(iv) The nature or extent of disablement.

In "Pratap Narain Singh Deo v. Shrinivas Sabata" AIR 1976 SC 222 it was observed that in case of a personal injury caused to a workman by an accident which arises out of and in the course of employment, unless the right to compensation is taken away under sub-section (5) of Section 3 the employer becomes liable to pay the compensation as soon as the aforesaid personal injury is caused to the workman. Section 19 only provides for settlement by the Commissioner of any question regarding liability of any person to pay compensation or the amount or duration of compensation, in default of any agreement if such question arises in any proceeding under the Act. The Section does not have the effect of suspending the liability of an employer to pay compensation under Section 3 till after the settlement contemplated under Section 19. It is the duty of the employer to pay compensation under Section 4-A (1) at the rate provided by Section 4 as soon as the personal injury is caused to the workman. Where the employer fails to do so and also makes no provisional payment under Section 4 (2) but challenges the jurisdiction of the Commissioner, the employer is liable to pay interest and penalty.

Section 19 refers to a liability arising by virtue of this Act. The liability adjudicated upon by Claims Tribunal under the Motor Vehicles Act is a liability founded in tort and thus falls outside the scope of this section.

The Commissioner acting under the Workmen's Compensation Act is a Tribunal and not a Civil Court. He constitutes an independent Tribunal. His function is to judge and decide and not merely to enquire and advice and in judging and deciding the matters before him, he has to proceed judiciously and not arbitrarily. Further the Civil Court has no jurisdiction to enforce any liability incurred under the Workmen's Compensation Act. Thus the jurisdiction of the Civil Court is expressly barred by Section 19(2) in respect of any matter that falls within the jurisdiction of the Commissioner for Workmen's Compensation.

Section 20. Appointment of Commissioner. - For the purpose of deciding the question of the liability of any person to pay compensation under the Act, the State Government has been authorised to appoint any person as the Commissioner for Workmen's Compensation. The State Government in the Official Gazette must notify the appointment. The Government must specify the area of jurisdiction of a Commissioner by such notification. If more than one Commissioner have been appointed for the same area, the State Government may by general or special order regulate the distribution of business between them. The Commissioner may take the assistance or the services of any person who is an expert in the matter referred to him for decision. Any such person shall assist the Commissioner in holding the inquiry.

Under Section 22 of the Act - (1) No application for the settlement of any matter by a Commissioner (other than an application by a dependant or dependants for compensation) shall be made unless and until some question has arisen between the parties in connection therewith which they have been unable to settle by agreement.

It simply means that if the parties are able to settle matter of compensation between them, the application may not be made because in that case the agreement made by them will govern their rights and liabilities.

(2) An application for payment of compensation to Commissioner is to be made in prescribed form and the same is to be accompanied by the prescribed fee if any.

In addition to the other particulars the application for compensation is to contain following facts also :

(a) a concise statement of circumstances in which the application is made and the relief or order which the applicant claims;

(b) in the case of a claim for compensation against an employer, the date of service of notice of the accident on the employer and if such notice has been served or has not been served in due time, the reason for such omission;

(c) the name, and address of the parties; and

(d) Except in the case of an application by dependants for compensation a concise statement of the matters on which agreement has and those on which agreement has not come to.

(3) If the applicant is illiterate or for any other reason is unable to furnish the required information in writing, the application shall, if the applicant so desires, be prepared under the direction of the Commissioner.

Power of Commissioner. - Section 23 of the Workmen's Compensation Act lays down that the Commissioner shall have all the powers of the Civil Court under the Civil Procedure Code, for the purpose of taking evidence on oath, and of enforcing the attendance of witness and compelling the production of documents and material objects, and the Commissioner shall be deemed to be a Civil Court for all the purposes of Section 195 and of Chapter XXXX of the Code of Criminal Procedure.

The Commissioner has discretion to all costs incidental to any proceeding before him.

A Commissioner may, if he thinks fit, submit any question of law for the decision of the High Court and if he does so, shall decide the question in conformity with such decision.

Ans. HISTORY :- The Factory legislation in India has a bearing with the Factory legislation of England. In England and other western countries `laissez faire' philosophy in the 19th century resulted in the emergence of new problems and new evils inside and outside the factories. New regulations became inevitable to improve the lot of the workers and to eradicate the miseries and other defects faced by the workers in the factories.

In India for the first time public attention was drawn to the miserable conditions of factory workers in a report published in 1873. The first Factory Act was passed in 1881 by which children were allowed to work for 9 hours a day from the age of 8 onwards. The Factory Act of 1911 further improved the situation by securing one weekly holiday for all workers in factories and fixing a maximum 11 hours work a day for women with one and half hours rest. It also prohibited the work of women and children at night and raised the age of children permitted to work in mills from 8 to 9 years with maximum 7 hours work a day. The 1911 Factories Act was replaced by the 1934 Factories Act. The 1934 Factories Act of India provided for various matters. However, this Act was also found to be quite inadequate. The provisions relating to safety, health and welfare of the workers provided in the 1934 Act were found to be quite inadequate and unsatisfactory and further the ambit and scope of the Act did not extend to the large mass of workers employed in work places not covered by the Act. This demanded for a more comprehensive legislation like the existing Factories Act, 1948.

Object of the Act :- The 1948 Act was also designed to implement many provisions of the International Labor Organization Code of industrial hygiene. The object of the Act is to protect human beings from subjecting to unduly long hours of bodily strain or manual labor. It also provides that employee should work in healthy and sanitary condition so far as the manufacturing processes will allow and that precautions should be taken for their safety and for the prevention of accidents.

The Act was intended to consolidate and amend the law regulating to labour in factories.

Scope and features of the Act :- The Act has cured many of the existing defects; done away with the distinction between seasonal and perennial factories; raised the minimum age of children from 12 to 13; and reduced their working hours from 5 to 4 hours. The Act provides certain minimum requirements regarding health (cleanliness, ventilation, temperature, dangerous dust and fumes, lighting and control of glare), and safety and general welfare of workers.

The notable feature of the Act is following :

(1) The definition of factory is made more comprehensive to include many establishment employing ten or more workmen with the aid of power or 20 more workmen without the aid of power;

(2) By the 1976 Factories (Amendment) Act, the definition of factory is further widened to include within its ambit the contract labour also for the purpose of computing the ten or 20 limit of workers in order to determine the total strength of the workers for the purpose of the Act.

(3) The distinction between seasonal and perennial factories had been done away with;

(4) The minimum age of children for employment has been raised from 12 to 14 and their working hours reduced from 5 to 4-1/2, with powers of Provincial Government to prescribe even a higher minimum age for employment in hazardous undertakings;

(5) Certain basic minimum facilities regarding health, safety and welfare of workers are duly dealt with under the Act;

(6) Employment of children and women is prohibited between 7 p.m. and 6 a.m. in the factory;

(7) The Act also lays down provisions for licensing and registration of a factory requiring prior scrutiny by Factory Inspectors of the plant and specifications.

(8) Under the Factories (Amendment) Act, 1976, the Chief Inspector or the Director General of Factory Advice Service and Labour Institute of the Director General of Health Service or any authorised person on their behalf can undertake safety and occupational health surveys for the safety and welfare of the factory workers.

Ans. (i) Adult :- As defined in Section 2(a) Adult means a person who has completed 18 years of age.

(ii) Adolescent :- Adolescent means a person who has completed his fifteenth year of age but not completed his eighteenth year [Section 2(b)].

(iii) Child :- Child means a person who has not completed his fifteenth years of age [Section 2(c)].

(iv) Competent Persons :- In relation to any provision of this Act means a person or an institution recognised as such by the Chief Inspector for the purposes 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; or

(ii) the qualification 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 or institution can be recognised as competent person in relation to a Factory.

(v) Power :- Power means electrical energy or any other form of energy which is mechanically transmitted or is not generated by human or animal agency [Section 2 (g)].

(vi) Prime Mover :- Prime mover means any engine, motor or other appliance, which generates or otherwise provides power [Section 2(h)].

(vii) Transmission Machinery :- Transmission Machinery means any shaft, 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 or received by any machinery or appliance [Section 2(i)].

(viii) Machinery :- Machinery includes prime mover, transmission machinery and all other appliances whereby power is generated, transformed, transmitted or applied.

(ix) Manufacturing Process :- Manufacturing Process means any process for -

(i) 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 use, sale, transport, delivery or disposal; or

(ii) pumping oil, water, sewage or any other substance; or

(iii) generating, transforming power, or transmitting power; or

(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding; or

(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ship or vessels; or

(vi) preserving or storing any article in cold storage.

In "V. P. Gopala Rao v. Public Prosecutor, Andhra Pradesh" AIR 1970 SC 66 it was observed that manufacturing processes as defined in Section 2(k)(i) were carried on in the premises. Under Section 2(k)(i) manufacturing process means any process for "making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal." The definition is widely worded. The moistening was an adaptation of the tabacco leaves. The stalks were stripped by breaking them up. The leaves were packed by bundling them up and putting them into gunny bags. The breaking up, the adaptation and the packing of the tobacco leaves were done with a view to their use and transport. All these processes are manufacturing processes within Section 2 (k) (i).

In State of Kerala v. V. M. Patel, 1961-1 Lab LJ 549 (SC) the Court held that the work of garbling pepper by winnowing, cleaning, washing and drying it on concrete floor and a similar process of curing ginger dipped in lime and laid out to dry in a warehouse were manufacturing processes.

In Col. Sardar C. S. Angre v. The State, ILR (1965) 15 Raj 117 : (AIR 1965 Raj 65) it was held that it is sufficient to say that the work of sorting and drying potatoes and packing and re-packing them into bags was held not to be a manufacturing process as the work was done for the purpose of cold storage only and not for any of the purposes mentioned in Section 2 (k) (i).

(x) Worker :- Worker means a person employed directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with the manufacturing process or the subject of the manufacturing process. But work does not include any member of the armed forces of the Union. [Section 2(1)]

In State of Bombay v. Alisaheb Kashim Tamboli. AIR 1955 Bom 209, it was observed that a person, in order to be a worker within the meaning of this section, need not necessarily. Therefore, a person working on any manufacturing process in a factory is a worker even though he does not receive wages. The expression `whether for wages or not' used in this sub-section means whether the person receives wages as remuneration for his services or such person is an apprentice learning work or is an honorary worker. Whether a person is always a worker or not is a question of fact in each case.

In Chintaman Rao v. State of Madhya Pradesh, 1958 SCR 1340 : (AIR 1958 SC 388) the Court gave a restricted meaning to the words "directly or through an agency" in Section 2 (1) and held that a worker was a person employed by the management and that there must be a contract of service and a relationship of master and servant between them. On the facts of that case the Court held that certain "sattedars" were independent contractors and that they and the coolies engaged by them for rolling "bidis" were not "workers".

In "V. P. Gopala Rao v. Public Prosecutor, Andhra Pradesh" AIR 1970 SC 66 it was observed that a "worker" within meaning of Section 2 (1) is a person employed by the management and there must be a contract of service and a relationship of master and servant between them. It is a question of fact in each case whether the relationship of master and servant exists between the management and the workman. The critical test of the relationship of master and servant is the master's right of superintendence and control of the method of doing the work. In the instant case there was prima facie evidence showing that the relationship of master and servant existed between the workman and the management.

In "Lal Mohammad v. Indian Railway Construction Co. Ltd." AIR 1999 SC 355 it was observed that all the workers employed by the construction company would squarely attract the definition of the term `workmen' as found in Section 2(l) of the Factories Act as they are working for remuneration in a manufacturing process carried out by the project. Thus all the requirements of the term `Factory' as defined by Section 2(m) of the Factories Act are satisfied on the facts of the present case.

(xi) Factory :- Factory means any premises including the precinct thereof -

(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on; or

(ii) Whereon twenty or more workers are working, or were working on any of the preceding twelve 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.

Factory does not include a mine subject to the operation of the Mines Act, 1952 or a mobile unit belonging to the armed forces of the Union, a railway running shed or hotel, restaurant or eating place.

Explanation I : For computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account.

Explanation II : For the purpose of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof.

The phrase "premises including precincts" means "both premises with and premises without precincts". Where a premises is a building it would include precincts also, but where premises are lands, they would not have precincts. Thus both buildings and lands are covered by the above expression. It was held in State of Bombay v. Ardeshir Hormosji Bhiwandiwala (1956) I L.L.J. 26 that lands in which the process of manufacturing salt is carried on is a factory.

In "Grauer and Weil (India) Ltd., M/s. v. Collector of Central Excise, Baroda" AIR 1995 SC 543 it was observed that the words "any premises including the precincts thereof" under Section 2(m) of the Factories Act are wide enough to include all buildings with its surroundings which form part of one unit. If therefore in such an area ten or more workers are working and in any part thereof manufacturing process are being carried on with the aid of power it would be a Factory within the meaning of Section 2(m).

(xii) Occupier :- Occupier of a Factory means the person who has ultimate control over the affairs of the Factory :

Provided that -

(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;

(ii) in the case of a company, any one of the directors shall be deemed to be the occupier;

(iii) in the case of a factory owned or controlled by the Central Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier:

Provided further that in the case of a ship which is being repaired, or on which maintenance work is being carried out, in a dry dock which is available for hire, -

(1) the owner of the dock shall be deemed to be the occupier for the purposes of any matter provided by or under -

(a) Section 6, Section 7, Section 7-A, Section 7-B, Section 11 or Section 12;

(b) Section 17 in so far as it relates to the providing and maintenance of sufficient and suitable lighting in or around the dock;

(c) Section 18, Section 19, Section 42, Section 46, Section 47 or Section 49, in relation to the workers employed on such repair or maintenance;

(2) The owner of the ship or his agent or master or other Officer-in- charge of the ship or any person who contracts with such owner, agent or master or other Officer-in-charge to carry out the repair or maintenance work shall be deemed to be the occupier for the purposes of any matter provided for by or under Section 14, Section 15, Section 16, or Section 17 (save as otherwise provided in this proviso) or Chapter IV (except Section 17) or Section 43, Section 44 or Section 45, Chapter VI, Chapter VII, Chapter VIII or Chapter IX or Section 108, Section 109 or Section 110, in relation to -

(a) the workers employed directly by him, or by or through any agency; and

(b) The machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other Officer-in-charge or person. [Section 2(n)]

In Donald Mackenzie v. Chief Inspector of Factories, AIR 1962 SC 1351 the expression `occupier' as defined in Section 2(n) of Factories Act is not to be equated with `owner'. No doubt the ultimate control over a factory must necessarily be with an owner unless the owner has completely transferred that control to another person. Whether that was done in a particular case is a question of fact. Therefore, the manager of a factory who claims to be an occupier of the factory must lay before the Chief Inspector of the Factories the necessary material for showing that the company had in some manner transferred the entire control over the factory to him. In the absence of such material an application for renewal of license signed by the manager is not in proper form and cannot be acted upon.

In "Indian Oil Corporation Ltd. v. Chief Inspector of Factories" AIR 1998 SC 2456 it was observed that for the purpose of Section 2 (n) what is to be seen is who has the `ultimate control' over the affairs of the Factory. As the factories run by the Indian Oil Corporation are effectively and really owned and controlled by the Central Government they fall within the purview of clause (iii) and not clause (ii) of the first proviso to Section 2 (n). The persons appointed by the Central Government to manage the affairs of the factories should be deemed to be the occupiers of those factories for the purposes of Section 2 (n) of the Factories Act.

In "Kanpur Suraksha Karamchari Union (Regd.) v. Union of India" AIR 1988 SC 1965 it was observed that under clause (iii) of Section 2(n) of the Act, in the case of a factory owned or controlled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the `occupier'.

Ans. The Act envisage six types of Inspectors, namely, Inspectors, Chief Inspectors, Additional Inspectors, Additional Chief Inspectors, Joint Chief and Deputy Chief Inspectors. The State Government may by notification in the Official Gazette, appoint such persons as possessed of the prescribed qualifications to be Inspectors and may assign to them such local limits as it may think fit. Chief Inspectors who shall be similarly appointed shall, in addition to the powers of an Inspector throughout the State. Every District Magistrate shall be an Inspector for his district. The State Government may also by notification as aforesaid appoint such public Officer as it thinks fit to be Additional Inspectors for all or any of the purposes of the Act. Every Chief Inspector, Additional Chief Inspector, Joint Chief Inspector, Deputy Chief Inspector, Inspector and every other Officer appointed under Section 8 shall be deemed to be public Officer within the meaning of the term as used in the Indian Penal Code. Also no such Officer shall continue to hold office, after becoming directly or indirectly interested in a factory or in any process or business carried on therein or in any patent or machinery connected therewith. In any area where there are more Inspectors than one, the State Government may, by notification in the Official Gazette, declare the powers, which such Inspectors shall respectively, exercise and the Inspector to whom the prescribed notices are to be sent.

Power of Inspectors. - An Inspector may exercise the following powers subject to any rules made in this behalf and within the local limits for which he is appointed -

(a) enter with such assistants, being person in the service of the Government, or any local or other public authority, or with an expert as he thinks fit any place which is used, or which he has reason to believe is used as a factory;

(b) make examination of the premises, plant and machinery, article or substance, require the production of any prescribed register and any other document relating to the factory, and take on the spot or otherwise statement of any persons which he may consider necessary for carrying out the purposes of this Act; and

(c) exercise such other powers as may be prescribed for carrying out the purposes of this Act :

Provided that no persons shall be compelled under this section to answer any question or give nay evidence tending to incriminate himself. [Section 9]

Ans. Chapter III of Factories Act, deals with safeguards provided for protection of health of factory workers.

Section 11 lays down that every factory shall be kept clean and free from effluvia arising from any drain, privy or other nuisance. The following precautions shall be taken in particular :

(a) accumulation of dirt and refuse shall be removed daily by sweeping or by any other effective method from the floors and benches of work rooms and from staircases and passages and disposed of in a suitable manner;

(b) the floor of every work-room shall be cleaned at least once in every week by washing, using disinfectant, where necessary or by some other effective method;

(c) where a floor is liable to become wet in the course of any manufacturing process to such extent as incapable of being drained, effective means of drainage shall be provided and maintained;

(d) all inside walls, and partitions, all ceilings or tops of rooms and all walls, sides and tops of passages and staircases shall -

(i) where they are painted otherwise than with washable water paint or varnished, be repainted or revarnished at least once in every period of five years;

(ia) where they are painted with washable water paint be repainted with at least one coat of such paint at least once in every period of three years and washed at least once in every period of six months;

(ii) where they are painted or varnished or where they have smooth impervious surfaces, be cleaned at least once in every period of fourteen months by such method as may be prescribed;

(iii) in any other case, be kept whitewashed or colour-washed, and the white-washing or color-washing shall be carried out at least once in every period of fourteen months;

(dd) all doors and window frames and other wooden or metallic frame work and shutters shall be kept painted or varnished and the painting or varnishing shall be carried out at least once in every period of five years;

(e) The date on which the process required by clause (d) is carried out shall be entered in the prescribed register.

Section 11 (2) lays down, if in view of the nature of the operations carried on in a factory or class or description of factories or any part of factory or any class or description of factories, it is not possible for the occupier to comply with all or any of the provisions of sub-section (1), the State Government may by order exempt such factory or class or description of factories or part thereof from any of the provisions of that sub-section and specify alternate methods for keeping the factory in a clean state.

Disposal of waste and effluents. - Section 12(1) lays down that effective arrangement shall be made in every factory for the treatment of wastes and effluents due to the manufacturing process carried on therein, so as to render them innocuous, and for their disposal.

Section 12(2) provides that the State Government may make rules prescribing the arrangements to be made under sub-section (1) or requiring that the arrangements made in accordance with sub-section (1) shall be approved by such authority as may be prescribed.

Section 13. Ventilation and temperature. - According to Section 13(1) effective and suitable provision shall be made in every factory for securing and maintaining in every workroom -

(a) adequate ventilation by the circulation of fresh air, and

(b) such a temperature as will secure to workers therein reasonable conditions of comfort and prevent injury to health.

It is further provided that walls and roofs shall be of such material and so designed that such temperature shall not be exceeded but kept as low as practicable. Where the nature of the work carried on in the factory involves, or is likely to involve, the production of excessively high temperatures, such adequate measures as are practicable shall be taken to protect the workers therefrom, by separating the process which produces such temperatures from the work-room, by insulating the hot posts or by other effective means.

Section 13(2) empowers the State Government to prescribe a standard of adequate ventilation and reasonable temperature for any factory or class or description of factories or part thereof.

According to the Section 13(3) if it appears to the Chief Inspector that excessively high temperatures in any factory can be reduced by the adoption of suitable measures, he may, without prejudice to the rules made under sub- section (2) serve on the occupier, an order in writing specifying the measures which in his opinion, should be adopted, and requiring them to be carried out before a specified date.

Dust and Fumes. - Section 14(1) deals with the effective measures, which should be adopted to keep the workrooms, free from dust, and fume. Every factory in which by reason of the manufacturing process carried on, there is given off any dust or fumes or other impurity of such a nature and to such an extent as is likely to be injurious or offensive to the workers employed therein, or any dust in substantial quantities, effective measures shall be taken to prevent its inhalation and accumulation in any work-room. If any exhaust appliance is necessary for the above purposes, it shall be applied as near as possible to the point of origin of the dust, fume or other impurity and such point shall be enclosed as far as possible.

Artificial humidification. - Section 15(1) lays down that in respect of all factories in which the humidity of the air is artificially increased the State Government may make rules -

(a) prescribing standards of humidification;

(b) regulating the methods used for artificially increasing the humidity of the air;

(c) directing prescribed tests for determining the humidity of the air to be correctly carried out and recorded;

(d) prescribing methods to be adopted for securing adequate ventilation and cooling of the air in the workroom.

Overcrowding. - Section 16 deals with the general provision relating to overcrowding. According the sub-section (1) no room in any factory shall be overcrowded to an extent injurious to the health of the workers employed therein. Sub-section (2) lays down that thee shall be in every workroom of a factory in existence on the date of the commencement of this Act at least 9.9 cubic meters of space for every worker employed therein. No account shall be taken of any space, which is more than 4.2 meters above the level of the floor of the room, for the purpose of this sub-section.

Section 16(3) lays down that if the Chief Inspector by order in writing so requires there shall be posted on each work-room of a factory a notice specifying the maximum number of workers who may, in compliance with the provisions of this section, be employed in the room.

Lighting. - Section 17(1) provides that in every part of the factory, where workers are working or passing, there shall be provided and maintained sufficient and suitable lighting, natural, artificial or both.

Drinking Water. - Section 18 deals with the provisions relating to arrangements for drinking water in factories. Sub-section (1) provides that in every factory effective arrangements shall be made to provide and maintain at suitable points conveniently situated for all workers employed therein, a sufficient supply of wholesome drinking water.

Latrines and urinals. - Section 19(1) provides that in every factory -

(a) sufficient latrine and urinal accommodation of prescribed type shall be provided conveniently situated and accessible to workers at all times while they are at the factory;

(b) separate enclosed accommodation shall be provided for male and female workers;

(c) such accommodation shall be adequately lighted and ventilated, and no latrine or urinal, shall, unless specially exempted in writing by the Chief Inspector, communicate with any work-room except through an intervening open space or ventilate passage;

(d) all such accommodation shall be maintained in a clean and sanitary condition at all times;

(e) Sweepers shall be employed whose primary duty would be to keep clean latrines, urinals and work places.

Sub-section (2) of Section 19 lays down that in every factory wherein more than two hundred and fifty workers are ordinarily employed -

(a) all latrine and urinal accommodation shall be of prescribed sanitary types;

(b) the floors and internal walls upto a height of ninety centimeters of the latrines and urinals and the sanitary block shall be laid in glazed tiles or otherwise finished to provide a smooth polished impervious surface;

(c) Without prejudice to the provisions of clause (d) and (e) of sub-section (1), the floors, partitions of the walls and blocks so laid or finished and the sanitary pans of latrine and urinals shall be thoroughly washed and cleaned at least once in every seven days with suitable detergent or disinfectants or with both.

Spittoons. - Section 20(1) lays down that in every factory there shall be provided a sufficient number of spittoons in convenient places. They shall be maintained in a clean and hygienic condition. Section 20(2) authorizes the State Government to make rules prescribing the type and the number of spittoons to be provided and their location in any factory and to provide for such further matters relating to their maintenance in a clean and hygienic condition. Section 20(3) lays down that a person shall not spit within the premises of a factory except in the spittoons provided for the purpose and a notice containing this provision and the penalty for its violation shall be prominently displayed at suitable places in the premises. It is further provided by Section 20(4) that whoever spits in contravention of sub-section (3) shall be punishable with fine not exceeding five rupees.

Ans. Chapter IV of the Factories Act imposes the following duties on the factory owners in order to ensure the safety of the workers.

1. Fencing of machinery. - Section 21 lays down that the following shall be properly fenced by safeguards of substantial construction which shall be kept in position while the parts of the machinery fenced are in motion or in use :

(a) Every moving part of a prime mover, and every flywheel connected to prime mover, whether they are in the engine house or not;

(b) The head race and tail race of every water wheel and water turbine;

(c) Any part of stock bar which projects beyond the head stock of a lathe; and

(d) Unless they are in such position or of such construction as to be safe to every portion employed in the factory as they would be if they were securely fenced, the following shall be fenced securely and safeguarded substantially :

(i) Every part of an electric generator; a motor or rotary converter;

(ii) Every part of transmission machinery; and

(iii) Safeguards of substantial construction, which shall be constantly maintained and kept in position, shall securely fence every dangerous part of any other machinery while the parts of machinery they are fencing are in motion or in use.

It is clear from the perusal of the above mentioned provisions that every part of machinery is required to be fenced by safeguards of substantial construction while the machinery is in motion or in use.

Mere fixation of safeguards of substantial construction is not enough. They must be constantly maintained and kept in position to avoid inherent danger of accidents which are likely to take place in absence of such safety measures :

Provided that for the purpose of determining whether any part of machinery is in such position or is of such construction as to be safe as aforesaid, account shall not be taken of any occasion when :-

(1) it is necessary to make an examination of any part of the machinery aforesaid while it is in motion or, as a result of such examination, to carry out lubrication or other adjusting operation while the machinery is in motion being an examination or operation which is necessary to be carried out while that part of the machinery is in motion, or

(2) In the case of any part of a transmission machinery used in such process as may be prescribed (being a process of a continuous nature the carrying on of which shall be, or is likely to be, substantially interfered with by the stoppage of that part of the machinery), it is necessary to make an examination or, as result of such examination, to carry out any mounting or shipping of belts or lubrication or other adjusting operation while the machinery is in motion, and such examination or operation is made or carried out in accordance with the provisions of sub-section (1) of Section 22.

The State Government may by rules prescribe such further precautions as it may consider necessary in respect of any particular machinery or part thereof or exempt, subject to such condition as may be prescribed, for securing the safety of the workers, any particular machinery or part thereof from the provisions of the Section 21.

2. Work on or near machinery in motion. - Where in any factory it becomes necessary to examine any part of machinery referred to in Section 21, while the machinery is in motion, or, as a result of such examination, to carry out -

(a) in a case referred to in clause (i) of the proviso to sub- section (1) of Section 21 lubrication or other adjusting operation; or

(b) in a case referred to in clause (ii) of the proviso aforesaid, and mounting or shipping or belt or lubrication or other adjusting operation,

while the machinery is in motion, such examination or operation shall be made or carried out only by a specially trained adult male worker wearing tight- fitting clothing (which shall be supplied by the occupier) whose name has been recorded in the register prescribed in this behalf and who has been furnished with a certificate of his appointment, and while he is so engaged;

(c) such worker shall not handle a belt at a moving pulley unless -

(i) the belt is not more than fifteen centimeters in width;

(ii) the pulley is normally for the purpose of drive and not merely a fly wheel or balance wheel (in which case belt is not permissible);

(iii) the belt joint is either laced or flush with the belt;

(iv) there is reasonable clearance between the pulley and any fixed plant or structure;

(v) secure foot-hold, and where necessary, secure hand-hold, are provided for the operator, and

(vi) any ladder in use for carrying out any examination or operation aforesaid is securely fixed or lashed or is firmly held by a second person;

(d) without prejudice to any other provision of this Act relating to the fencing of machinery, every set screw, bolt and key on any revolving shaft, spindle, wheel or pinion, and spur, worm and other toothed or friction gearing in motion with which such worker would otherwise be liable to come into contact, shall be securely fenced to prevent such contact.

No woman or young person shall be allowed to clean, lubricate or adjust any part of a prime mover or of any transmission machinery while the prime mover or transmission machinery is in motion, if the cleaning, lubrication or adjustment thereof would expose the woman or young person to risk of injury from any moving part or either of that machine or of any adjacent machinery [Section 22 (2)].

The State Government may prohibit by notification in the Official Gazette, in any specified factories, or class or description of factories, the cleaning, lubrication or adjusting by any person of specified parts of machinery when those parts are in motion [Section 23(3)].

3. Employment of young persons on dangerous machines. - Section 23 provides that "No young person shall be required or allowed to work at any such machine which is in the opinion of the State Government of dangerous character, unless he has been fully instructed as to the dangers arising in connection with the machine and the precaution to be observed and :

(a) has received sufficient training in work at the machine; or

(b) is under adequate supervision by a person who has a thorough knowledge and experience of the machine.

The following machines have been termed as dangerous by the various State Governments and no young person is allowed to work on such machines unless the requirements of Section 23(1) are fully satisfied :

1. Decorticator and oil expeller.

2. Milling machines used in metal trades.

3. Guillotine machines.

4. Power presses, other than hydraulic processes.

5. Platen printing machine.

6. Circular sanos.

4. Striking gear and devices for cutting off power. - Section 24 of the Act provides that in every factory :-

(a) Suitable striking gear or other efficient mechanical appliance shall be provided and maintained and used to move driving belts to and from fast and loose pulleys which form part of the transmission machinery, and such gear or appliances shall be so constructed, placed and maintained as to prevent the belt from creeping back on to the fast pulley.

(b) Driving belt when not in use shall not be allowed to rest or ride upon shafting in motion.

In every factory suitable device for cutting of power in emergencies from running machinery shall be provided and maintained in every workroom.

But in respect of factories in operation before the commencement of this Act, this Section shall apply only to workrooms in which electricity is used as power. When a device, which can inadvertently shift from "off" to "on" position is provided in a factory to cut off power, arrangement shall be provided for locking the device in safe position to prevent accidental starting of the transmission machinery or other machines to which the device is fitted.

5. Self-acting machines - No traversing part of a self-acting machine in any factory and no material carried thereon shall, if the space over which it runs is a space over which any person is liable to pass, whether in the course of his employment or otherwise, be allowed to run on its outward inward traverse within a distance of forty-five centimeters from any fixed structure which is not part of the machine. However, the Chief Inspector may permit the continued use of a machine installed before the commencement of this Act which does not comply with above provisions on such conditions of ensuring safety as he may think fit to impose. {Section 25}.

6. Casting of new machinery. - In all machinery driven by power and installed in any factory after the commencement of this Act -

(a) every set of screw, bolt or key on any revolving shaft, spindle, wheel or opinion shall be sunk, encased or otherwise effectively guarded as to prevent danger;

(b) All spur, worm and other toothed or friction gearing, which does not require frequent adjustment while in motion shall be completely encased unless it is so situated as to be as safe as it would be if it were completely encased.

According to sub-section (2) of Section 25, whoever does not comply with the provisions of sub-section (1) or any rules made under sub-section (3) of Section 25 shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to Rs. 500 or both in case the person :-

(a) sells; or

(b) lets on hire or as agent of seller or hire;

(c) causes or procures to be sold or let on hire, for use in a factory any machinery driven by power.

The State Government is empowered under Section 26 (3) to make rules specifying safeguard to be provided in respect of any other dangerous part of any particular machine or class or description of machines. (Section 26)

7. Prohibition of employment of women and children near cotton openers. - No women or child shall be employed in any part of a factory for pressing cotton in which a cotton-opener is at work; however if the feed-end of a cotton opener is in a room separated from the delivery and by a partition extending to the roof or to such height as the Inspector may in any particular case specify in writing, women and children may be employed on the side or the partition where the feed end is situated.

8. Hoists and lifts. - (1) In every factory :-

(a) Every hoist and lift shall be

(i) of good mechanical construction, of sound material and of adequate strength;

(ii) properly maintained, and shall be thoroughly examined by a competent person at least once in every period of six months, and a register shall be keep containing the prescribed particulars of every such examination;

(b) every hositway and liftway shall be sufficiently protected by an enclosure fitted with gate, and the hoist or lift and every such enclosure shall be constructed as to prevent any person or thing from being trapped between any part of the hoist or lift and any fixed structure or moving part;

(c) the maximum safe working load shall be plainly marked on every hoist or lift, and no load greater than such load shall be carried thereon;

(d) the cage of every hoist or lift used for carrying persons shall be fitted with a gate on each side from which access is afforded to landing;

(e) Every gate referred to in clause (b) or clause (d) shall be fitted with interlocking or other efficient device to secure that the gate cannot be opened except when the cage is at the landing and that the cage cannot be moved unless the gate is closed.

(2) The following additional requirements shall apply to hoists and lifts used for carrying persons and installed or reconstructed in a factory after the commencement of this Act, namely :-

(a) where the cage is supported by rope or chain, there shall be at least two ropes or chains separately connected with the cage and balance weight and rope or chain with its attachment shall be capable of carrying the whole weight of the cage together with its maximum load;

(b) efficient devices shall be provided and maintained capable of supporting the cage together with its maximum load in the event of breakage of ropes, chains or attachments;

(c) An efficient automatic device shall be provided and maintained to prevent the cage from overrunning.

(3) The Chief Inspector may permit the continued use of hoist or lift installed in a factory before the commencement of this Act which does not fully comply with the provisions of sub-section (1) upon such conditions for ensuring safety as he think fit to impose.

(4) The State Government may if, in respect of any class or description of hoists or lifts, it is opinion that it would be unreasonable to enforce any requirements of sub-sections (1) and (2) by order direct that such requirements shall not apply to such class or description of hoist or lift.

According to the Explanation added to Section 28 by Act 20 of 1987, no lifting machine or appliance shall be deemed to be a hoist or lift unless it has a platform or cage, the direction of which is restricted by a guide or guides.

9. Lifting Machines. - In every factory the following provisions shall be complied with in respect of every lifting machine, other than a hoist and lift, and every chain, rope and lifting tackle for the purpose of rising or lowering person, goods or materials :

(a) All parts, including the working gear, and every chain, rope of lifting tackle shall be of good construction, sound material and adequate strength and free from defects. They should be properly maintained and thoroughly examined by a competent person at least once a year;

(b) No lifting machine should be loaded beyond that safe working load which shall be plainly marked thereon;

(c) While any person is employed or working on or near a wheel track of a travelling crane, effective measures shall be taken to ensure that the crane does not approach within six meters of that place. (Section 9)

The Government may make rules for any lifting machine etc. and may prescribe further requirements to be complied with in addition to those set out in this section; or it may exempt the compliance of any requirements set out in this section.

10. Revolving Machinery. - Section 30 of the Act in substance provides that effective measures shall be taken to ensure that the safe working, peripheral speed of every revolving vessel, cage, basket, flywheel, pulley, discord similar appliance driven by power is not exceeded (Section 30).

11. Pressure Plant. - If any factory, any plant or machinery thereof is operated at a pressure above the atmospheric pressure, effective measures shall be taken to ensure that the safe working pressure of such plant or machinery or part is not exceeded.

Section 31 further empowers the State Government to make rules providing for the examination and testing of any plant or machinery such as is referred to in sub-section (1) of Section 31, and prescribing such other safety measures in relation thereto as may in its opinion be necessary in any factory, class or description of factories.

It is further provided under sub-section (3) of Section 31 that the State Government may, by rules, exempt, subject to such conditions as may be specified therein any part of any plant or machinery referred to in sub- section (1) from the provisions of this section. (Section 31)

12. Excessive Weight. - No person shall be employed in any factory to lift, carry or move any load so heavy as to be likely to cause him injury. (Section 34).

13. Floors, Staircases etc. - In every factory all floors, steps, stairs, passages and gangways shall be of a sound construction and properly maintained and wherever necessary they shall be provided by handrails. Also, so far as it is reasonably Practicable, there shall be provided and maintained safe means of access to every place at which any person at any time is required to work.

When any person has to work at a place for where he is likely to fall, provision shall be made, so far as is reasonably Practicable, by fencing or otherwise, to ensure the safety of the person so working. (Section 32).

In every factory every fixed vessel, sump, tank, pit or opening in the ground or in a floor which by reason of its depth, situation, construction or contents is or may be a source of danger, shall be either securely covered or securely fenced. (Section 33).

14. Protection of eyes. - Section 35 of the Act empowers the State Government to provide by making rules regarding the protection of eyes of the workers in a factory.

15. Precautions against dangerous fumes. - In every factory no person shall enter or be permitted to enter any chamber, tank, vat, pit, pipe, flue or other confined scope in which any gas, fume, vapour or dust is likely to be present to such an extent as to involve risk of person being overcome thereby, unless it is provided with a main hole of adequate size or other effective means of egress. (Section 36).

16. Precautions in case of fire. - In every factory there shall be provided such means of escape of fire as may be prescribed. (Section 38)

17. Miscellaneous Protections. - Besides the above the Act provides elaborate provisions regarding the protection of the eyes of the workmen, their protection against dangerous fumes, explosive or inflammable dust gas, etc., and protection in the case of fire.

Section 36-A provides that in any factory -

(a) No portable electric light or any other electric appliance of voltage exceeding twenty four volts shall be permitted for use inside any chamber, tank, vat, pit, pipe, flue or other confined space unless adequate safety devices are provided; and

(b) If any inflammable gas, fume, or dust is likely to be present in such chamber, tank, vat, pipe, flue or other confined space on lamp or light other than that of flame proof construction shall be permitted to be used therein.

18. Maintenance of building. Section 4-A provides that if it appears to the Inspector that any building or part of a building in a factory is in such a state of unrepair as is likely to lead to conditions detrimental to the health and welfare of the workers, he may serve on the occupier or manager or both of the factory an order in writing specifying the measures which in his opinion should be taken and requiring the same to be carried out before such date as is specified in the order.

Ans. Chapter V of Factories Act, 1948 contains provisions for welfare of workers in factories which are being discussed below:-

Washing facilities. - Section 42 (1) provides that in every factory -

(a) adequate and suitable facilities for washing shall be provided and maintained for the use of workers;

(b) separate and adequately screened facilities shall be provided for the use of male and female workers;

(c) such facilities shall be conveniently accessible and shall be kept clean.

Facilities for storing and drying clothing. - Section 43 empowers the State Government to make rules, in respect of any factory or class or description of factories, requiring the provision therein of suitable places for keeping clothing not worn during working hours and for the drying of wet clothing.

Facilities for sitting. - According to Section 44(4) in every factory suitable arrangements for sitting shall be provided and maintained for all workers obliged to work in a standing position, in order that they may take advantage of any opportunities for rest which may occur in the course of their work.

According to Section 44(2) if in the opinion of the Chief Inspector, the workers of any factory engaged in a particular manufacturing process or working in a particular room are able to do their work efficiently in a sitting position, he may by order in writing, require the occupier of the factory to provide before a specified date such seating arrangement in as may be practicable for all workers so engaged or working.

First-aid appliances. - According to Section 45 (1) in every factory shall be provided and maintained so as to be readily accessible during all working hours first-aid boxes or cupboards equipped with the prescribed contents and the number of such boxes or cupboards to be provided and maintained shall not be less than one for every one hundred and fifty workers ordinarily employed at any one time in the factory.

Canteens. - The State Government may, according to Section 46(1), make rules requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed a canteen or canteens shall provided and maintained by the occupier for the use of the workers.

Thus sub-section (1) confers general rule making power upon the State Government and sub-section (2) of Section 46 authorises the State Government to make rules providing for -

(a) the date by which canteen shall be provided;

(b) the standards in respect of construction, accommodation, furniture and other equipment of the canteen;

(c) the foodstuffs to be served therein and the charges which may be made thereof;

(d) the constitution of a managing committee for the canteen and representation of the workers in the management of the canteen;

(dd) the items of expenditure in the running of the canteen which are not to be taken into account in fixing the cost of foodstuffs and which shall be borne by the employer;

(e) delegation to the Chief Inspector, subject to such conditions as may be prescribed, of the powers to make rules under clause (c).

Shelters, rest rooms and lunch rooms. - Section 47 (1) lays down that in every factory wherein more than one hundred and fifty workers are ordinarily employed, adequate and suitable shelters or rest rooms and a suitable lunch room, with provision for drinking water, where workers can eat meals brought by them, shall be provided and maintained for the use of the workers. But any canteen maintained in accordance with the provisions of Section 46 shall be regarded as part of the requirements of this sub-section, and where a lunchroom exists no worker shall eat any food in the workroom.

Section 47 (2) requires that the shelters or rest rooms or lunchrooms to be provided under sub-section (1) shall be sufficiently lighted and ventilated and shall be maintained in a cool and clean condition.

Crches. - Section 48(1) lays down that in every factory wherein more than thirty women workers are ordinarily employed there shall be provided and maintained a suitable room or rooms for the use of children under the age of six years of such women.

According to Section 48(2) such rooms shall provide adequate accommodation, shall be adequately lighted and ventilated, shall be maintained in a clean and sanitary condition and shall be under the charge of women trained in the care of children and infants.

Section 48 (3) empowers the State Government to make rules -

(a) prescribing the location, and the standards in respect of construction, accommodation, furniture and other equipment of rooms to he provided, under this Section;

(b) requiring the provision in factories, to which this section applies, of additional facilities for the care of children belonging to women workers including suitable provision of facilities for washing and changing their clothing;

(c) requiring the provision in any factory of free milk or refreshment or both for such children;

(d) Requiring that facilities shall be given in any factory for the mother of such children to feed them at the necessary intervals.

Welfare Officer. - Section 49 (1) provides that in every factory wherein five hundred or more workers are ordinarily employed the occupier shall employ in the factory such number of Welfare Officers as may be prescribed. According to Section 49 (2) the State Government may prescribe the duties, qualifications and conditions of services of Officer employed under sub- section (1).

Section 50 of Act empowers the State Government to make rules to supplement this chapter.

Ans. Chapter IV of the Factories Act deals with the working hours of adult worker. Sections 51 and 54 lay down the general rule in the following words :

Section 51 :- "No adult worker shall be required or allowed to work in a factory for more than forty eight hours in any week".

This Section does not prohibit the alteration of hours of work after a departmental transfer. (Imperial Tobacco Co. v. State of West Bengal, AIR 1971 Cal. 90) Section 54. -" Subject to the provisions of Section 51, no adult worker, shall be required or allowed to work in a factory for more than nine hours in any day :

Provided that subject to the previous approval of the Chief Inspector, the daily maximum specified may be exceeded in order to facilitate the change of shifts." First day of the week shall be a weekly holiday and a worker can be required or allowed to work in a factory on his weekly holiday only if -

(a) he has or will have a holiday for a whole day on one of the three days immediately before or after the weekly holiday; and

(b) the manager of the factory has, before the said day or before the substitution day under clause (a) whichever is earlier, delivered a notice at the office of the Inspector of his intention to require the worker on the said day and of the day which is to be substituted, and also displayed a notice to that effect in the factory.

In any case no substitution shall be made which results in any worker working for more than 10 days consecutively without a holiday for a whole day.

Where any worker works for the first day of the week and has a holiday on one of three days immediately before it that first day of the work shall, for the purposes of calculating his weekly hours of work, be included in the preceding week. (Section 52).

Compensatory holidays. - Section 53 provides that where as a result of the passing of an order or the making of a rule exempting the workers in a factory from the provision contained in Section 52, a worker is deprived of any of the weekly holidays (first day of the week), he shall be allowed, within the month in which the holidays were due to him or within the two months immediately following that month, compensatory holidays of equal number of holidays so lost. (Section 53)

Intervals for rest. - The period of work of adult workers, in a factory each day shall be so fixed that no period shall exceed 5 hours and that no worker shall work for more than 5 hours before he has an interval for rest of at least half an hour. But the State Government or subject to the control of the State Government, the Chief Inspector, may by written order and for reasons specified in that order, exempt any factory from this rule so however that the total number of hours worked by a worker without an interval does not exceed six. (Section 55)

Spreader. - The period of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest, they shall not spread over more than ten and half hours in any day. But the Chief Inspector may for reasons to be specified in writing, increase the spread over to 12 hours. (Section 56)

Night Shift. - Section 57 provides that where a worker in a factory works on a shift which extends beyond midnight -

(a) for the purposes of Sections 52 and 53, a holiday for a whole day shall mean in his case a period of 24 consecutive hours beginning when his shift ends;

(b) the following day for him shall be deemed to be the period of 24 hours beginning when such shift ends, and the hours he has worked after midnight shall be counted in the previous day. (Section 57)

Prohibition of overlapping shifts. - Work shall not be carried on in any factory by means of a system of shifts so arranged that more than one relay of workers is engaged in work of the same kind at the same time. (Section 58)

This Section prohibits multiple shifts except to the extent to which the State Government or subject to the control of State Government, the Chief Inspector, may by written order and for specified reasons exempt on such condition as may be deemed expedient any factory or class or description of factories or any department or section of a factory or any category or description of workers therein from the provisions of sub-section (1) of Section 58.

Extra wages for overtime. - Where a worker works in a factory for more than nine hours in any day or for more than 48 hours in any week, he will be in respect of overtime work entitled to wages at the rate twice his ordinary rate of wages. (Section 59)

Double employment. - No adult worker shall be required or allowed to work in any factory on any day on which he has already been working in another factory, save in the prescribed circumstances. (Section 60).

Notice of periods of work for adults. - According to Section 6 (1), a notice of periods of work for adults, showing clearly every day the periods during which adult workers, may be required to work, shall be displayed and correctly maintained in the factory in accordance with the provisions of Section 108(2)

Section 61(2) lays down that the period shown in the notice required by sub- section (1) shall be fixed beforehand in accordance with the following provisions of the section, and shall be such that workers working for those periods would not be working in contravention of any of the provisions of Sections 51, 52, 54, 55, 56 and 58.

Register of adult workers. - Section 62(1) lays down that the manager of every factory shall maintain a register of adult workers to be available to the Inspector at all times during working hours, or when any work is being carried on in the factory showing -

(a) the name of each adult worker in the factory;

(b) the nature of his work;

(c) the group, if any, in which he is included;

(d) where his group works on shifts, the relay to which he is allotted;

(e) such other particular as may be prescribed.

But if the Inspector is of opinion that any muster roll or register maintained as part of the routine of a factory gives in respect of any or all the workers in the factory the particulars required under this Section, he may by order in writing, direct that such muster roll register shall, to the corresponding extent be maintained in place of, and be treated as, the register of adult workers in that factory.

According to sub-section (1-A) no adult worker shall be required or allowed to work in any factory unless his name and other particulars have been entered in the register of adult workers.

Hours of work to correspond with notice under Section 61 and register under Section 62. - Section 63 provides that no adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adult displayed in the factory and the entries made before hand against his names in the register of adult workers of the factory.

Section 64 empowers State Government to make exempting rules.

Power to make exempting order. - According to Section 65 (2), the State Government or subject to the control of the State Government, the Chief Inspector, may, by written order, exempt any or all of the adult workers in any factory or group or class or description of factories from any or all of the provisions of Sections 51, 52, 54 and 56.

Section 66 (1) lays down that the provisions of this Chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely :

(a) no exemption for the provisions of Section 54 may be granted in respect of any woman;

(b) no woman shall be required or allowed to work in any factory except between the hours of 6 a. m. and 7 p. m.

But the State Government may, by notification in the Official Gazette, in respect of any factory or group or class or description of factories vary the limit laid down in clause (b) in such a manner that in no case any such variation shall authorize the employment of any woman between the hours of 10 p. m. and 5 a. m.;

(c) There shall be no change of shifts except after a weekly holiday or any other holiday.

Ans. There is total prohibition for employing a person below the age of fourteen years. If the child has completed 14 years then he can be employed but there are certain restrictions on his employment. There are as follows :

1. Non-adult workers to carry token. - A child who has completed the age of fourteen years or an adolescent (i.e. above the age of 15 years but not 18 years) shall not be required or allowed to work in any factory unless -

(a) a certificate of fitness granted with reference to him under Section 69, is in the custody of the manager of the factory, and

(b) such child or adolescent carries while he is at work a token giving a reference to such certificate. (Section 68)

2. Certificate of fitness. - Section 69 provides for giving certificate of physical fitness to a young person for working in a factory, subject to Section 67 of the Act which prohibits the employment of children upto 14 years of age. For the employment of a young person it shall be necessary that he should have a certificate of fitness from the certifying surgeon. The certifying surgeon is bound to examine the young person on an application made to him for this purpose.

Who can make an application ? - Any of the following persons may apply for a certificate of fitness -

(a) a young person himself; or

(b) his parents; or

(c) guardian; or

(d) The manager of the factory.

It is to be noted that when a person other than the manager of the factory makes the application for a certificate of fitness, the application must be accompanied by a document signed by the manager of that factory, in which the person shall be employed. Contrary to this when the manager of the factory makes the application for certificate of fitness, no document signed by the manager of the factories is to accompany the application.

Condition for grant. - The Section also provides the conditions under which a certificate of fitness may be granted or renewed. There are as follows :-

(i) if the certifying surgeon is satisfied -

(a) that the young person has completed his fourteenth year;

(b) that he has attained the prescribed physical standard; and

(c) that he is fit for a full day work;

(ii) in case of an adolescent if the certifying surgeon is satisfied that the person has completed the 15th year and is fit for a full day's work;

(iii) but unless the certifying surgeon has personal knowledge of the place where the young person proposes to work and the manufacturing process in which he shall be employed, he shall not grant or renew until he has examined such place.

When a certificate can be revoked. - A certifying surgeon shall revoke any certificate granted under sub-section (2) of Section 69 in case the holder, in his opinion, is no longer fit to work in the capacity stated therein in a factory.

A certificate granted shall be valid only for a period of 12 months from the date of issue and it may also be granted with the condition of examining the person before the expiry of such period of 12 months.

Reasons of refusal. - In case a certifying surgeon refuses to grant or renew a certificate of the kind requested or he revokes a certificate, he shall state reasons in writing for doing so, if requested by the person who has applied for the same.

Certificate with conditions. - If a certifying surgeon has granted or renewed a certificate subject to any condition, the person shall not be required or allowed to work except in accordance with those conditions.

Fees for the certificate. - Any fee, payable for a certificate under Section 69, shall be paid by the occupier and shall not be recoverable from the young person, his parents or guardian.

Effect of certificate of fitness granted to adolescent. - Section 70 speaks of the effect of grant of a certificate of fitness to an adolescent. It lays down -

(1) That an adolescent having been granted a certificate of fitness would be treated as an adult in a factory for the purpose of working hours for adult as provided under Chapter VI and annual leave provided under Chapter VIII.

(2) No adolescent who has not attained the age of 17 years but who has been granted a certificate of fitness to work in a factory as an adult, shall be required or allowed to work in any factory except between 6 a. m. and 7 p. m. However the State Government is empowered to allow certain exceptions in case of serious emergency where National interest is involved;

(3) That an adolescent who has not been granted a certificate shall for the purpose of the Act, notwithstanding his age, be deemed to be a child.

3. Working hours for children. - Section 71 of the Act provides that no child shall be employed or permitted to work in any factory -

(a) for more than four and a half hours in any day;

(b) during the night.

`Night' shall mean a period of at least twelve consecutive hours, which shall include the interval between 10 p.m., and 6 a.m. No child shall be required or allowed to work in any factory on any day on which he has already been working in another factory. For female children, it has how been specifically provided that they would not be required to work in any factory except between 8 a.m. and 7 p.m.

The period of work of all children employed in a factory shall be limited to two shifts which shall not overlap or spread over more than five hours each and each child shall be employed in only one of the relays which shall not except with the previous permission in writing of the Chief Inspector, be changed more frequently than once in a period of thirty days. The provisions of Section 52 regarding the weekly holidays, shall apply also to child workers and no exemption from the provisions of that Section may be granted in respect of any child. No child shall be required or allowed to work in any factory on any day on which he has already been working in another factory.

4. Notice of the period of work for children. - Section 72 requires the display and maintenance of notice regarding the periods of work for children. The conditions for such notice are -

(i) that notice be displayed and correctly maintained in accordance with the provisions of Section 108;

(ii) that the notice should clearly show for every day the periods children may be required or allowed to work;

(iii) that such period be fixed before hand as per Section 61, regarding the period of work for adults;

(iv) that there should be no contravention of Section 71;

(v) That the provisions of sub-section (8), (9) and (10) of Section 61 dealing with the prescription of form and the manner of maintenance, issue of notice to the Inspector, and also any change shall be applicable to notice under sub-section (1) of Section 72.

5. Register of child workers. - The Manager of every factory in which children are employed shall maintain a register of child workers, to be available to the Inspector at all times during working hours or when any work is being carried on in a factory showing :-

(a) the name of each child worker in the factory,

(b) the nature of his work,

(c) the group, if any, in which he is included,

(d) where the group works on shifts, the relay to which he is allotted, and

(e) the number of his certificate of fitness granted under Section 69; and

No child worker shall be required or allowed to work in any factory unless his name and other particulars have been entered in the register of child workers.

The State Government may prescribe the form of the register and the manner in which it shall be maintained.

Besides the above provision, Section 75 of the Factories Act empowers the Inspector to require medical examination of any young person who is working without a certificate of fitness to work as a young person, or any young person who, though working with as a certificate of fitness, is no longer fit to work in the capacity stated therein.

Ans. Chapter 8 of the Factories Act deals with a number of holidays available to the workers employed in factories. The provisions of this chapter are mandatory and the employer has no discretion to withhold the benefits conferred to the worker under this chapter.

Annual leave with wages :- Under Section 79 every worker who has worked for 240 days or more in a factory during the calendar year is entitled during the subsequent calendar year, leave with wages as follows :-

(i) in the case of an adult worker, one day for every 20 days of work performed by him during the previous calendar year;

(ii) in the case of a child one day for every 15 days of work performed by him during the previous calendar year.

For computing the period of 240 days or more the following also should be included :

(a) The days of lay-off by agreement or contract or a permissible under the standing order;

(b) In case of a female worker, her maternity leave for any number of days not exceeding 12 weeks; and

(c) The leave earned in the year prior to that in which the leave is applied for.

The leave so admissible shall be exclusive of all holidays whether occurring during or at either end of the period of leave. A worker whose services commence after first of January of the calendar year would be entitled to leave with wages at the rate laid down in (1) above and in the case of child at the rate as stated in (2) above if such persons work for 2/3 of the total number of days in the remainder of the calendar year. After the 1976 amendment a worker who is discharged or dismissed or who quits his employment or superannuated or dies while in service during the course of the calendar year, he or his heir or nominee is entitled to wages in lieu of the quantum of leave to which the worker was entitled immediately before his discharge, dismissal or quitting of employment, superannuation or death as the case may be, as is admissible to other workers even if he had not worked for the entire period which makes him eligible under the Act as stated above.

Leave not availed of :- Under Section 79 (5) if a worker does not avail of any portion of his leave in the calendar year such unavailed leave will be added along with the leave to be allowed in the succeeding calendar year. However, such carry forward to the succeeding year shall not exceed 30 days in the case of an adult and 40 days in the case of a child. But this limit to carry forward will not be applicable in the case of a worker who has applied for his leave with wages but has not been given such leave in accordance with any scheme drawn up under the provisions of this Act.

Procedural formalities to avail of leave :- The worker who wants to avail of leave shall apply in writing to the Manager of the factory at least 15 days in advance. But in the case of public utility service such leave application must be made 30 days in advance.

Sub-sections (8) and (9) of Section 79 empower the occupier of the factory to draw up "Scheme" with collaboration of the workers representatives, for regulating the grant of leave. The Scheme should be lodged with the Chief Inspector and the Scheme will remain in force in 12 months unless renewed for another 12 months. The Scheme so approved must be displayed in certain notable place in the factory.

Payment in lieu of leave :- Under Section 79 (11) if the services of a worker are terminated by a occupier of the factory and such worker has not availed of the leave due to him, then he would be entitled to get leave salary at the rate of his daily average of his earnings for the day he worked during the months including dearness allowance and cash equivalent accruing through the concessional sale of food grains and other articles. In the case of termination of service such payment shall be made before the expiry of the second working day after such termination of service and in the case of quitting the service on or before the next pay day.

Wages during leave period :- The wages due to a worker during leave period under Section 79 are to be calculated in accordance with Section 80. A worker shall be paid at the rate equal to the daily average of his total full-time earnings for the day on which he actually worked during the month immediately preceding his leave, exclusive of any overtime and bonus but inclusive of any dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles. In case a worker has not worked on any day during the calendar month immediately preceding his leave then he shall be paid at the rate equal to the daily average of his total full-time earnings for the days he actually worked during the last calendar month preceding his leave, in which he actually worked excluding bonus and overtime but inclusive of dearness allowance, and cash equivalent of concessional sale of foodgrains, etc.

Advance payment of leave wages :- In the case of an adult worker who has been allowed leave for not less than 4 days and in case of a child who has been allowed leave for not less than 5 days can claim payment in advance of leave wages admissible to him. (Section 81)

Mode of recovery of unpaid wages :- Any sum required to be paid by the employer under the provisions of this chapter shall be recoverable as delayed wages under the provisions of the Payment of Wages Act (Section 82).

Section 84 empowers State Government to make rules in this regard.

Ans. Section 91 of the Factories Act empowers an Inspector that he may at any time during the normal working hours of a factory after informing the occupier or manager of the factory or other person for the time being purporting to be in charge of the factory take in the manner hereinafter provided a sufficient sample of any substance used or intended to be used in the factory, such use being -

(a) in the belief of the Inspector in contravention of any of the provisions of this Act or the rules made thereunder, or

(b) in the opinion of the Inspector, likely to cause bodily injury to or injury to the health of workers in the factory.

The sample taken by Inspector shall be divided in three portions and the same will be effectively sealed and suitably marked. The occupier or Manager of the factory will also be allowed to put his own seal on the sample containers.

If required by the Inspector, the Manager or the occupier of the factory shall provide the appliances for dividing, sealing and making the sample.

The Inspector shall -

(a) forthwith give one portion of the sample to the person informed, namely, the occupier or Manager of the factory;

(b) forthwith send the second portion of the sample the Government Analyst for nalysis and report thereon;

(c) Retain the third portion for production to the Court before which proceedings, if any, are instituted in respect of the substance.

The report of the Government Analyst upon any substance submitted to him for analysis may be used in evidence in any proceedings instituted in respect of the substance.

Section 91-A provides the duties of the Chief Inspector or the Director- General of Factory Advice Service and Labour Institutes or the Director- General of Health Officer or any authorised person. After giving a written notice to the occupier or Manager of a factory, any of these officials may undertake occupational and health survey. The occupier or Manager is required to give facilities for the examination and testing of plant and machinery as well as for collection of samples and other relevant data.

It will be duty of every worker, if so required by the person conducting the survey -

1. to present himself to undergo such medical examination as may be considered necessary by such person;

2. to furnish all information in his possession relevant to the survey.

The time spent by the worker for the above purpose shall be included in his working hours for purpose of calculating his wages and extra wages for overtime work.

Ans. General Penalties for Offences. - Section 92 of the Act makes any contravention of the following to be an offence -

(i) the provisions of the Act; or

(ii) any rules made under the Act; or

(iii) any order given in writing under the Act.

Under this Section both the manager and the occupier of the factory are guilty of the offence except in cases where the liability definitely rests on one under the provisions of the Act or the provisions of Section 93 of the Act apply. Any contravention as aforesaid can be penalized with -

(a) imprisonment for a term which may extend to two years; or

(b) fine which may extend to one lakh rupees; or

(c) both fine and imprisonment subject to the limitation contained above.

In case the contravention is continued after conviction, the Court is empowered to impose a further fine, which may extend to one thousand rupees for each day on which the contravention is so continued :

Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under Section 87 has resulted in an accident causing death or serious bodily injury, the fine shall bot be less than twenty-five thousand rupees in the case of an accident causing death and five thousand rupees in the case of an accident causing serious bodily injury.

In State of Maharashtra v. V.S. Raghavan, Manager, Lorcom Factory, Chikalthana, Aurangabad, (1989) II L.L.J. 427 (Bom), it was held that the provisions of Section 92 do not indicate that the prosecution under that section should be a joint prosecution of the occupier and Manager or that they should be simultaneously prosecuted.

Liability of owner of premises in certain circumstances. - Section 93(1) provides that where in any premises separate buildings are leased to different occupiers for use as separate factories, the owner of the premises shall be responsible for the provisions and maintenance of common facilities and services, such as approach roads, drainage, water supply, lighting and sanitation.

Section 93(2) empowers the Chief Inspector, subject to the control of the State Government, to issue order to the owner of the premises in respect of the carrying out of the provisions of sub-section (1).

Under Section 93(3) where in any premises independent or self-contained floors or flats are leased to different occupiers for use as separate factories the owner of the premises shall be liable as if he were the occupier or Manager of a factory, for any contravention of the provisions of this Act in respect of -

(i) latrines, urinals and washing facilities in so far as the maintenance of the common supply for these purposes is concerned;

(ii) fencing of machinery and plant belonging to the owner and not specifically entrusted to the custody or use of an occupier;

(iii) safe means of access to floors or flats and maintenance and cleanliness of staircases and common passages;

(iv) precautions in case of fire;

(v) maintenance of hoists and lifts; and

(vi) Maintenance of any other common facilities provided in the premises.

Under Section 93 (4) the Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out of the provisions of sub-section (3).

Section 93 (5) lays down that the provisions of sub-section (3) relating to the liability of the owner shall apply where in any premises independent rooms with common latrines, and washing facilities are leased to different occupiers for use as separate factories. But the owner shall be responsible also for complying with the requirements relating to the provisions and maintenance of latrines, urinals and washing facilities.

Section 93 (6) empowers the Chief Inspector, subject to the control of the State Government, to issue orders to owner of the premises referred to in sub-section (5) in respect of the carrying out of the provisions of Section 46 or Section 48.

Enhanced penalty after previous conviction. - According to Section 94 (1) if any person, who has been convicted of any offence punishable under Section 92, is again guilty of an offence involving a contravention of the same provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to three years or with the fine which shall not be less than ten thousand rupees but which may extend to two lakh rupees or with both :

Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a fine of less than ten thousand rupees :

Provided further that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under Section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than thirty five thousand rupees in the case of an accident causing death and ten thousand rupees in the case of an accident causing serious bodily injury.

(2) For the purposes of sub-section (1), no cognizance shall be taken of any conviction made more than two years before the commission of the offence for which the person is subsequently being convicted.

Penalty for obstructing Inspector. - Under Section 95, whoever, willfully obstructs an Inspector in the exercise of any power conferred on him by or under this Act, or fails to produce on demand by an Inspector any register or other documents in his custody kept in pursuance of this Act or of any rules made thereunder, or conceals or prevents any worker in a factory from appearing before or being examined by an Inspector, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to ten thousand rupees or with both :

Offence by workers. - Section 97 (1) lays down that if any worker employed in a factory contravenes any provisions of this Act, or any rules or orders made thereunder, imposing any duty or liability on workers, he shall be punishable with fine which may extend to five hundred rupees. The above provisions are subject to the provisions of Section 111 of the Act.

Section 97 (2) lays down that where a worker is convicted of an offence punishable under sub-section (1), the occupier or Manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its prevention.

Penalty for using false certificate of fitness. - According to Section 98, whoever knowingly uses or attempts to use, as a certificate of fitness granted to himself under Section 70, a certificate granted to another person, shall be punishable with imprisonment for a term which may extend to two months or with fine which may extend to one thousand rupees or with both.

Penalty for permitting double employment of child. - According to Section 99 if a child works in a factory on any day on which he has already been working in another factory, the parent or guardian of the child or the person having custody of or control over him or obtaining any direct benefit from his wages, shall be punishable with fine which may extend to one thousand rupees unless it appears to the Court that the child so worked without the consent or connivance of such parent, guardian or person.

Ans. Exemption under Section 101 of the Act. - If certain facts are proved, the Manager or the occupier of the factory is exempted under Section 101 of the Act.

Section 101 comes into action to save the occupier or Manager when he is charged with an offence punishable under this Act. To have the benefit of this section the Manager or the occupier, as the case may be, will have to prove that some person other than he himself is the actual offender.

That Manager or occupier of the factory will have to prove -

(a) that he has used due diligence to enforce the execution of this Act, and

(b) that the said other person committed the offence in question without his knowledge, consent or connivance. If the above facts are proved the other person shall be convicted of the offence and shall be liable to like punishment as if he were the occupier or Manager of the factory, and the occupier or Manager shall be discharged from any liability under this Act in respect of such offence.

However, in seeking to prove as aforesaid, the occupier or Manager of the factory, as the case may be, may be examined on oath and his evidence and that of any witness who may be called in his support shall be subject to cross- examination on behalf of the person, he charges as the actual offender, and by the prosecutor.

Also if the person charged as the actual offender by the occupier or manager cannot be brought before the Court at the time appointed for hearing of the charge, the Court shall adjourn the hearing from time to time for a period not exceeding three months and if by the said period the person charged as the actual offender cannot be brought before the Court, the Court shall proceed to hear the charge against the occupier or Manager and shall if the offence is proved, convict the occupier or Manager.

Under Section 102, while convicting an occupier or a manager and awarding him punishment, the Court may also order him to remedy the matters within a specified period in respect of which the offence was committed. The period originally allowed might be extended from time to time on the application of the person convicted. In case of non-compliance of the order the occupier or manager shall be deemed to have committed a further offence and liable to a further and enhanced punishment.

The minimum punishment under Section 102 provided is :-

(a) six months imprisonment, or

(b) fine or Rs. 100/- per day from the day of non-compliance of the order, for every day, or

(c) Both fine and imprisonment.

The liability for breach in respect of the offence shall remain stayed during the period allowed for compliance of the order of the Court.

Onus of proof. - The Amending Act 20 of 1987 has added Section 104-A to the Act, which deals with an important aspect about the onus of proof. It lays down that in any proceeding for an offence for the contravention of any provision of the Act or rules consisting of a failure to comply with a duty or requirement to do something, it shall be for the person who is alleged to have failed to comply with such duty or requirement, to prove that it was not reasonably practicable or all practicable measures were taken to satisfy the duty or requirement.

Ans. The Industrial Law in pre-independence days was in a rudimentary form. But later on with the development of industry, the Industrial Law developed side by side. The growth of this law was slow in the beginning but gained its pace in the recent years as is evident from the bulk of the cases before the Supreme Court on Industrial Law matters.

There was practically no effective machinery in India until the Second World War for settlement of industrial disputes. The Bombay Industrial Disputes Act, 1938 was an important enactment in this direction. The 1947 Industrial Disputes Act, is the first effective measure of all an India application for the settlement of Industrial Disputes. Under this Act various Tribunals have passed awards regulating wages and other relations in many industries. The Act regulates the relationship of employers in many matters irrespective of whether the employer is the State or not. The Act streamlines a network of machinery and authorities stipulating their powers and procedures. It lays down differential provisions to strikes and lockouts. It prescribes the penalties against violation of the provisions. Similarly, the Act provides for regulation of lay off and retrenchment and also envisages compensation in appropriate cases.

Object and Scope of Act The object of the Industrial Disputes Act, 1947 is laid down in the preamble of the Act. The object of all labour legislations is to ensure fair wages and to prevent disputes so that production might not be adversely affected.

The principal objects of the Act as analyzed by the Supreme Court in Workmen of Dimakuchi Tea v. Mangt. of Dimakuchi Tea Estate (AIR 1958 Supreme Court 353) are as follows :

(1) The promotion of measures for securing amity and good relations between the employer and workmen;

(2) An investigation and settlement of industrial disputes between employers and employers, employers and workmen or workmen and workmen;

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

(4) Relief to workmen in the matter of lay-off, retrenchment and closure of an undertaking;

(5) Collective bargaining.

The Industrial Disputes Act is a progressive measure of social legislation aiming at the amelioration of the conditions of workmen in industry.

Ans. (i) Appropriate Government According to Section 2 (a) of Industrial Disputes Act, the appropriate Government is the Central Government in relation to the following :

(i)(a) Any industry carried on by or under authority of the Central Government or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government; or

(i)(b) A Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948, or the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956, or the Employees `State Insurance Corporation established under Section 3 of the Employees' State Insurance Act, 1948, or the Board of Trustees constituted under Section 3-A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948, or the Central Board of Trustees and the State Boards of Trustees constituted under Section 5-A and Section 5-B, respectively, of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, or the Life Insurance Corporation of India established under Section 3 of the Life Insurance Corporation Act, 1956, or the Oil and Natural Gas Corporation Limited registered under the Companies Act, 1956, or the Deposit Insurance and Credit Guarantee Corporation Act, 1961, or the Central Warehousing Corporation established under Section 3 of the Warehousing Corporation Act, 1962, or the Unit Trust of India established under Section 3 of the Unit Trust of India Act, 1963, or the Food Corporation of India established under Section 3, or a Board of Management established for two or more contiguous States under Section 16 of the Food Corporation of Act, 1964, or the Airports Authority of India constituted under Section 3 of the Airports Authority of India Act, 1994, or a Regional Rural Bank established under Section 3 of the Regional Rural Bank Act, 1976, or the Export Credit and Guarantee Corporation Limited, or The Industrial Reconstruction Bank of India or The National Housing Bank established under Section 3 of the National Housing Bank Act, 1987 or the Banking Service Commission established under Section 3 of the Banking Service Commission Act, 1975 or an air transport service, or a banking, or an insurance company, a mine, an oil field, a Cantonment Board, or a Major port.

(ii) In all other cases the Appropriate Government is the State Government, within whose territory the industrial dispute arises.

Whether the Appropriate Government is the Central Government or the State Government depends on the subject matter of the dispute.

(ii) Average Pay :- "Average Pay" means the average of the wages payable to a workman. The expression `Average Pay' is defined by reference to the average wages. Therefore, `average wages' instead of `average pay' would have been the more appropriate phrase for this definition. This definition lays down the method of calculating average pay in respect of a workman whether he is paid by month, by week or by day.

Average Pay in case of a workman means :

(i) in the case of monthly paid workmen - the average of monthly wages payable in three complete calendar months;

(ii) in the case of weekly paid workmen - the average of the weekly wages payable in four complete weeks;

(iii) in the case of daily paid workman - the average of the wages for twelve full working days.

But any of the above three periods must be the period preceding the date on which the average pay becomes payable, provided the workman had worked during the said period. Where the calculation of the average pay is not possible because the workman has not put in the required service, the average pay shall be calculated as the average of the wages payable to a workman during the period he actually worked.

(iii) Award - `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.

In "Cox and Kings (Agents) Ltd., M/s. v. Their Workmen" AIR 1977 SC 1666 it was held that the definition of "award" in Section 2 (b) 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 the definition is the existence of an industrial dispute, actual or apprehended. The "determination" contemplated by the definition is of the industrial dispute or a question relating thereto on merits. Section 2 itself, expressly makes the definition subject to "anything repugnant in the subject or context." Courts have therefore to consider this definition in the context of Section 19 and other related provisions of the Act.

From a conjoint reading of Cl. (b) of Section 2 and sub-sections (1) and (4) of Section 10, it is clear that in order to be an `award' within the second part of the definition, a determination must be

(i) 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

(ii) Such adjudication must be one on merits.

(iv) Continuous Service :-`Continuous Service' means uninterrupted service and includes service which may be interrupted merely on account is sickness or authorised leave or an accident or a strike which is not illegal, or a lock- out or a cessation of work which is not due to any fault on the part of the workman. [Section 2(f)]

(v) Employer :- According to Section 2(g) of the Industrial Disputes Act, 1947, "employer" means :-

(i) in relation to any industry carried on by or under the authority of any department of the Central Government or State Government the authority prescribed in this behalf or where no authority is prescribed the head of the department;

(ii) in relation to an industry carried on by or on behalf of a local authority, the Chief Executive Officer of that authority.

(vi) Industry :- "Industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

This definition is in two parts. The first says that industry means any business, trade, undertaking, manufacture or calling of employers and the second part provides that it includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. The definition read as a whole denotes a collective enterprise in which employers and employees are associated. There must, therefore, be an enterprise in which the employers follow their avocations as detailed in the definition and employ workmen. Thus, a basic requirement of industry is that the employers must be carrying on any business, trade, undertaking, manufacture or calling of employers. There is not much difficulty in ascertaining the meaning of the words business, trade, manufacture, or calling of employers in order to determine whether a particular activity carried on with the co-operation of employer and employees is an industry or not but the difficulties have cropped up in defining the word undertaking.

Industry, as defined in Section 2(j) has a wide import : (a) Where

(i) systematic activity

(ii) organized by co-operation between employer and employee, (the direct and substantial element is chimerical)

(iii) For the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss, e.g. making, on a large scale prasad or food), prima facie, there is an industry in that enterprise.

(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public joint or other sector.

(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.

(d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking.

In "Workmen of Indian Standards Institution v. Management of Indian Standards Institution" AIR 1976 SC 145 it was observed that an activity can be regarded as an `industry' within the meaning of Section 2(j) only if, there is relationship of employer and employees and the former is engaged in `business, trade, undertaking, manufacture or calling of employers' and the latter, `in any calling, service, employment, handicraft or industrial occupation or avocation'. Though `undertaking' is a word of large import and it means anything undertaken or any project or enterprise, in the context in which it occurs, it must be read as meaning an undertaking analogous to trade or business. In order that an activity may be regarded as an undertaking analogous to trade or business, it must be "organized or arranged in a manner in which trade or business is generally organized or arranged". It must not be casual nor must it be neither for oneself nor for pleasure. And it must rest on co-operation between employer and employees who associate together with a view to production, sale or distribution of material goods or material services. It is entirely irrelevant whether or not there is profit motive or investment of capital in such activity. It is also immaterial that its objects are charitable or that it does not make profits or even where profits are made, they are not distributed amongst the members, or that its activity is subsidized by the Government. Again it is not necessary that the employer must always be a private individual. The Act, in terms, contemplates cases of industrial disputes where the Government or a local authority or a public utility service may be the employer. It also makes no difference that the material services rendered by the undertaking are in public interest, whether an activity is carried on in public interest or not can, therefore, never be a criterion for determining its character as an industry.

Similarly in "Bangalore Water Supply and Sewerage Board v. A. Rajappa" AIR 1978 SC 548 it was observed that "Industry" as defined in Section 2 (j) has a wide import. Where there is

(i) systematic activity,

(ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical),

(iii) For the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale, prasad or food,) prima facie, there is an "industry" in the enterprise.

Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.

The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.

If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking.

Although Section 2 (j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to over-reach itself.

In "Avon Services Production Agencies (P) Ltd., M/s. v. Industrial Tribunal, Haryana" AIR 1979 SC 170 it was observed that the expression, `undertaking' is not defined in the Act. It also finds its place in the definition of the expression `industry' in Section 2 (j). While ascertaining the amplitude of the expression `undertaking' in the definition of the expression `industry', noscitur a sociis canon of construction is to be invoked and a restricted meaning has to be assigned to it. While thus reading down the expression, in the context of Section 25FFF it must mean a separate and distinct business or commercial or trading or industrial activity. It cannot comprehend an infinitesimally small part of a manufacturing process.

In "Management of Som Vihar A.O.H.M. Socy Ltd. v. Workmen C/o. I. E. and G. Mazdoor" AIR 2002 SC 2530 it was observed that when personal services are rendered to the members of a society and that society of apartments is constituted only for the purposes of those members to engage the services of such employees, activity cannot be treated as an industry nor are they workmen.

In "Municipal Corporation of Delhi v. Female Workers" AIR 2000 SC 1274 it was observed that since the activity of the Delhi Municipal Corporation by which construction work is undertaken or roads are laid or repaired or trenches are dug would fall within the definition of "industry". The workmen or, for that matter, those employed on muster roll for carrying on these activities would, therefore, be "workmen" and the dispute between them and the Corporation would have to be tackled as an industrial dispute in the light of various statutory provisions of the Industrial Law.

In "Agricultural Produce Market Committee v. Ashok Harikuni" AIR 2000 SC 3116 it was observed that sovereign function in the new sense may have very wide ramification but essentially sovereign functions are primary inalienable functions which only State could exercise. Thus, various functions of the State, may be ramifications of `sovereignty' but they all cannot be construed as primary inalienable functions. Broadly it is taxation, eminent domain and police power which covers its field. It may cover its legislative functions, administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon. So, the dichotomy between sovereign and non-sovereign function could be found by finding which of the functions of the State any private person or body could undertake. The one, which could be undertaken, cannot be sovereign function. In a given case even in subject on whom the State has the monopoly may also be non-sovereign in nature. Mere dealing in subject of monopoly of the State would not make any such enterprise sovereign in nature. Absence of profit making or mere quid pro would also not make such enterprise to be outside the ambit of "industry".

In "General Manager, Telecom v. S. Srinivasa Rao" AIR 1998 SC 656 it was held that Telecom Department of Union of India is engaged in commercial activity and is not discharging any sovereign functions of State is thus industry.

In "All India Radio v. Santosh Kumar" AIR 1998 SC 941 it was observed that the functions carried on by All India Radio and Doordarshan cannot be said to be confined to sovereign functions as they carry on commercial activity for profit by getting commercial advertisements telecast or broadcast through their various kendras and stations by charging fees. Looking to the functions of Doordarshan and its set up, as seen from the extracts from Doordarshan Manual Vol. I, it cannot be said that the functions carried on by them are of purely sovereign nature. Day in and day out advertisements are being telecast and even serials are being telecast on payment of appropriate charges and on which there cannot be any dispute. Consequently, it must be held that the appellant-All India Radio as well as Doordershan is industries within the meaning of Section 2(j) of the Act.

Term "Industry" has been substituted by Amendment Act of 1982. Although amended definition of "Industry" has not yet been enforced by its more wide definition. It reads as :- `Industry' means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or trough any agency, including a contract) for the production, supply or distribution of goods or services with a view to satisfy human wants or (wishes not being wants or wishes which are merely spiritual or religious in nature), whether or not -

(i) any capital has been invested for the purpose of carrying on such activity; or

(ii) such activity is carried on with a motive to make any gain or profit, and includes -

(a) any activity of the Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948;

(b) Any activity relating to the promotion of sales or business or both carried on by an establishment.

But does not include -

(1) Any agricultural operation except where such "agricultural operation" is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.

Explanation. - For the purposes of this sub-clause "agricultural operation" does not include any activity carried on in a plantation as defined in clause (f) of Section 2 of the Plantation Labour Act, 1951; or

(2) hospitals or dispensaries; or

(3) educational, scientific, research or training institutions; or

(4) institutions owned or managed by organization wholly or substantially engaged in any charitable, social or philanthropic service; or

(5) khadi or village industries; or

(6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or

(7) any domestic service; or

(8) any activity, being a profession practiced by an individual or body of individuals, if the number of person employed by the individual or body of individuals in relation to such profession is less than ten; or

(9) Any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of person employed by the co-operative society, club or other like body of individuals also in relation to such activity is less than ten.

(vii) Wages :- This term implies all remuneration capable of being expressed in terms of money which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment and includes :-

(i) such allowance (including dearness allowance) as the workman is, for the time being entitled to;

(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food-grains or other articles;

(iii) any travelling concessions;

(iv) but does not include -

(a) any bonus;

(b) any contribution paid or payable by the employer to Pension fund or Provident fund or for the benefit of the workman under any law for the time being in force; and

(c) Any gratuity payable on the termination of the service.

(viii) Workman :- The existing definition of the term `workman' has been substituted by the Act 6 of 1956. The term as contained in Section 2(s) of the Act means :-

"Any person (including an apprentice) employed in any industry to do any skilled, unskilled, manual, supervisory, technical or clerical or operational work for hire or reward, whether the terms of employment be express or implied and for the purpose of any proceeding under this Act in relation to an industrial dispute includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any person-

(i) who is subject to Army Act, 1950, or the Air Force Act, 1950 or Navy Act, 1957; or

(ii) who is employed in the police service or as an Officer or other employee of prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem, or exercises either by the nature of the duties attached to the office or by reason of the power and duties attached to the office or by reason of the power vested in him, functions mainly of a managerial nature.

The definition of `workman' clearly indicates that all persons employed in any industry to do any skilled, or unskilled, manual technical, operational, clerical or supervisory work are workmen within the meaning of this Act. It includes any apprentice also. However, there are certain exceptions to this general rule, which are mentioned above.

In "Sharad Kumar v. Govt. of NCT of Delhi" AIR 2002 SC 1724 it was observed that determination of question whether employee falls within meaning of `workman' as defined under Section 2(s) depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. Neither the State Government nor or even the High Court has made any attempt to go into the different types of duties discharged by the employee with a view to ascertain whether he came within the meaning of Section 2(s) of the Act. The State Government merely considered the designation of the post held by him, which is extraneous to the matters relevant for the purpose. From the appointment order in which are enumerated certain duties which the appellant employee may be required to discharge it cannot be held therefrom that he did not come within the first portion of the Section 2(s) of the Act. That determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the appellant employee was not a workman within the meaning of Section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. The Government of National Capital Territory of Delhi, herein, is directed to refer the dispute raised by the appellant including the question whether the appellant is a workman under the Act, to the Industrial Tribunal/Labour Court for adjudication.

In "Hussan Mithu Mhasvadkar v. Bombay Iron and Steel Labour Board" AIR 2001 SC 3290 it was observed that in a case where the Labour Court as well as the High Court entertains doubts about the status of the appellant as a workman within the meaning of Section 2(s) of the I.D. Act, instead of embarking upon an adjudication in the first instance as to whether the undertaking in which the appellant works is an industry or not, so as to attractthe provisions of the Industrial Disputes Act, it should take up the question about the status of the appellant for adjudication at the threshold and if only the finding recorded is against the appellant refrain from adjudicating on the larger issue affecting the various kinds of other employees, as to the character of the undertaking, as an industry or not. The larger issue should be entertained for consideration only in case where it is absolutely necessary and not when the claim before it could have been disposed of otherwise without going into the nature and character of the undertaking itself.

In "Steel Authority of India Ltd. v. National Union Water Front Workers" AIR 2001 SC 3527 it was observed that it cannot be said that by virtue of engagement of contract labour by the contractor in any work of or in connection with the work of an establishment, the relationship of master and servant is created between the principal employer and the contract labour. Even a combined reading of the definition of the terms `contract labour' `establishment' and `workman' does not show that a legal relationship between a person employed in an industry and the owner of the industry is created irrespective of the fact as to who has brought about such relationship. The word `workman' is defined in wide terms. It is a generic term of which contract labour is a species. It is true that a combined reading of the terms `establishment' and `workman' shows that a workman engaged in an establishment would have direct relationship with the principal employer as a servant of master. But what is true of a workman could not be correct of contract labour. When the provisions of the Act neither contemplate creation of direct relationship of master and servant between the principal employer and the contract labour nor can such relationship be implied from the provisions of the Act on issuing notification under Section 10(1) of the CLRA Act a fortiori much less can such a relationship be found to exist from the Rules and the Forms made thereunder.

Ans. Whether a single workman, who is aggrieved by an action of the employer can raise industrial dispute. Section 2(k) of the Act speaks of a dispute between employer and workmen i.e. plural form has been used. Before insertion of Section 2-A of the Act an individual dispute could not per se be an industrial dispute, but it could become one if taken up by the Trade Union or a number of workmen. The provisions of the Act lead to the conclusion that its applicability to an individual dispute as opposed to dispute involving a group of workmen is excluded unless it acquires the ge neral characteristics of an industrial dispute viz., the workmen as a body or a considerable section of them make common cause with the individual workman [Newspaper Ltd. v. State Industries, U.P. AIR 1957 SC 532] Thus a dispute regarding a single workman can become an industrial dispute only if it is espoused by a group of workmen of the establishment. Only a collective dispute could constitute an industrial dispute but collective dispute does not mean that the dispute should either be sponsored by a registered Union or that all or majority of the workmen of an industrial establishment should be parties to it [State of Bihar v. Kripa Shanker AIR 1961 SC 304]. As to how many workers should espouse an individual dispute for it to become an industrial dispute, there is no indication in the Act. It is not necessary that all the workmen or a majority of employees of the establishment concerned should support and sponsor the individual dispute. The number of workmen must however be such as to lead to an inference that the dispute is one, which affects the workmen as a class [Bombay Union of Journalists v. The Hindu (1951) II LLJ 436 (SC)]. What is necessary is that there must be some expression of "collective will" of substantial or appreciable number of workmen taking up the cause of the aggrieved workman [Mrs. P. Soma Sundaram v. Labour Court (1970) 1 LLJ 558 (AP)] In Workmen of Indian Express Newspapers Ltd. v. Management of Indian Express Newspapers (AIR 1970 SC 737), a dispute relating to two workmen of Indian Express Newspapers Ltd. was espoused by the Delhi Union of Journalists, which was an outside union. About 25 percent of the working journalists of the Indian Express were members of that union. But there was no Union of the journalists of the Indian Express. It was held that the Delhi Union of Journalists could be said to have a representative character qua the working jurnalist Indian Express and the dispute was thus transformed into an industrial dispute.

In 1965, The Industrial Disputes (Amendment) Act, 1965, inserted Section 2a, which reads : "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an Individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.

Section 2(a) can be treated as an explanation to Section 2(k). After this an individual dispute even though not sponsored by other workmen or espoused by the union would be deemed to be an industrial dispute if it covers any of the matters mentioned in Section 2-A. But whether a particular dispute amounts to an industrial dispute has to be ascertained with reference to the principle laid down in Section 2(k).

Section 2-A is of limited application. It does not declare all individual disputes to be industrial disputes, but covers only cases of discharge, dismissal, retrenchment or other termination of service.

Industrial Dispute :-The main objective of the Act, as pointed out in the preamble is to make provision for the investigation and settlement of industrial dispute; therefore the definition of industrial dispute has special significance. The following elements should exist to constitute an industrial dispute :-

(i) a dispute or difference between :

(a) employers and employers, or

(b) employers and workmen, or

(c) workmen and workmen.

(ii) the dispute or difference should be connected with :

(a) employment or non-employment, or

(b) terms of employment, or

(c) conditions of labour of any person;

(iii) The dispute may be in relation to any workman or workmen or any other person in whom they are interested as a body. (Section 2k)

In "Workman Employed by Hindustan Lever Ltd. v. Hindustan Lever Limited" AIR 1984 SC 1683 it was observed that the expression "industrial dispute" has been so widely defined as not to leave anything out of its comprehension and purview involving the area of conflict that may develop between the employer and the workmen and in respect of which a compulsory adjudication may not be available. This is recognised to be the width and comprehension of the expression.

Certified standing orders, which have a statutory flavour, prescribe the conditions of service and they shall be deemed to be incorporated in the contract of employment of each workman with his employer. The employer will have to classify the workmen and failure to classify would be violative of the Industrial Employment (Standing Orders) Act. In respect of the classification, a dispute can conceivably arise between the employer and the workman because failure of the employer to carry out the statutory obligation would enable the workman to question his action, which will bring into existence a dispute. Therefore, without anything more where the demand of the workmen was to confirm employees employed in an acting capacity in a grade, it would unquestionably be an industrial dispute.

In "Tata Chemicals Ltd., M/s. v. The Workmen employed under M/s. Tata Chemicals Ltd." AIR 1978 SC 828 it was observed that Section 2 (k) of the Act does not restrict the ambit of the definition of `industrial dispute' to a dispute between an employer and recognised majority union but takes within its wide sweep any dispute or difference between employer and workmen including a minority union of workmen which is connected with employment or terms of employment or conditions of labour of workmen as well as the observations made by this Court in Workmen of Dharampal Premchand v. Dharampal Premchand, (1965) 3 SCR 394 : (AIR 1966 SC 182). In "Shambu Nath Goyal v. Bank of Baroda" AIR 1978 SC 1088 it was observed that the Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of a public utility service. The key words in the definition of industrial dispute in Section 2 (k) are `dispute or difference'. The term `industrial dispute' connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjudicated to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section.

In "State of Punjab v. Gondhara Transport Co. (P) Ltd." AIR 1975 SC 531 where out of sixty workmen employed in the Company only 18 workmen sponsored the cause of the dismissed and retrenched workmen and these 18 included thirteen dismissed workers of the Company. Held that the espousing of the cause of the workmen was only by five workmen who were at the relevant time actually in the employment of the Company i. e. the proportion was five to sixty. Such an espousal could not be considered to be by an appreciable or substantial body of workmen so as to constituting the dispute an industrial disputes. Hence there being no industrial dispute the reference made by the State Government was incompetent.

In "Workmen of Indian Express Newspaper Pvt. Ltd. v. Management of Indian Express Newspaper Pvt. Ltd." AIR 1970 SC 737 it was observed that a dispute relating to two workmen in a newspaper establishment in Delhi arose in July 1959. Thereafter the Delhi Union of Journalists espoused the dispute, an outside Union, whose membership was open to the members of the newspaper establishment concerned. The dispute was referred to the Industrial Tribunal in August 1961. The question arose whether the dispute was an industrial dispute (and not an individual dispute) as the Delhi Union of Journalists not being exclusively a Union of the workmen employed in the newspaper establishment concerned, had espoused the said cause. It was found that about 25 per cent of the working journalists of the newspaper establishment concerned at least were members of the Delhi Union of Journalists. It was clear from the evidence that at the material time there was no union of working journalists employed by the newspaper establishment concerned. Held that the Delhi Union of Journalists could be said to have a representative character qua the working journalists employed in the newspaper establishment concerned, and the dispute was transformed into an "industrial dispute".

In "Management of Safdar Jung Hospital, New Delhi v. Kuldip Singh Sethi" AIR 1970 SC 1407 it was held that before an industrial dispute as defined in Section 2 (k) can be raised there must be first established a relationship of employers and employees associating together, the former following a trade, business, manufacture, undertaking or calling of employers in the production of material goods and material services and the latter following any calling, service, employment, handicraft, or industrial occupation or avocation of workmen in aid of the employers' enterprise. It is not necessary that there must be a profit motive but the enterprise must be analogous to trade or business in a commercial sense.

In "Secretary Madras Gymkhana Club Employees' Union v. Management of the Gymkhana Club" AIR 1968 SC 554 it was observed that primarily industrial disputes occur when the operation undertaken rests upon cooperation between employers and employees with a view to production and distribution of material goods, in other words, wealth, but they may arise also in cases where the co- operation is to produce material services. The normal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expression trade, business and manufacture.

The expressions `terms of employment' and `conditions of labour' indicate the kind of conflict between that engaged in industry on opposite but co- operating sides. These words take in dispute as to the share in which the receipts in a commercial venture shall be divided and generally cover hours of work and rest, recognition of representative bodies of workmen, payment for piece work, wages - ordinary and overtime, benefits, holidays, etc. The definition takes in disputes between employees and employees such as demarcation disputes and disputes between employers and employers such as wage warfare in an area where labour is scarce and dispute of a like character.

Ans. Lay off :- "Lay-off", according to Section 2(kkk) of the Act means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery of or natural calamity or for any other connected reasons to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has been retrenched.

Every workman whose name is borne on the muster rolls of the industrial establishment and who present himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid off for that day within the meaning of this clause;

Provided that if the workman, instead of being given employment at the commencement of any shift for any day, is asked to present himself for the purpose during the second half of the shift for the day and is given employment then he shall be deemed to have been laid off only for the one half of the day :

Provided further that if he is not given any such employment even after so presenting himself he shall not be deemed to have been laid off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day.

The analysis of Section 2(kkk) of industrial Disputes Act, 1947 reveals following essentials of a law-off -

1. There must be :-

(a) failure

(b) refusal

(c) inability of the employer to give employment to a workman.

2. The names of the workmen laid off must be on the muster rolls of the industrial establishment on the date on which they have been laid off.

3. The failure, refusal or inability to give employment must be on account of one or more of the reasons mentioned hereunder -

(a) Shortage of coal,

(b) Shortage of power

(c) Shortage or raw materials

(d) Accumulation of stocks,

(e) Breakdown of machinery, or

(f) Natural calamity or for any connected reason.

4. The workman, in question, must not have been retrenched.

It is evident that lay-off is a temporary deprivation of work to those workmen whose names are on the muster rolls of the industry. The reason behind the deprivation is either of the reasons mentioned above. These reasons are by nature beyond the control of the employer. The employer never intends to refuse work but the circumstances compel him to do so. As soon as the condition is normalized and the scarcity goes off, the employer will re-engage the laid off workers.

Such denial of job operates for a certain duration upto which the scarcity prevails. In other words, it is a temporary denial of job.

Kinds of lay-offs :- The lay-off may be divided into three classes on the ground of duration -

(a) Lay-off for a day occurring when work is denied within two hours of his presenting himself for work.

(b) Lay-off for one half of day occurring when work is denied in the first half of the shift but the workman is called in the second half of the shift for doing job.

(c) Lay-off for more than a day but not amounting to retrenchment.

In "Workmen of Dewan Tea EState v. Their Management" AIR 1964 SC 458 it was observed that it would be legitimate to hold that lay off which primarily gives rise to a claim for compensation under Section 25C must be a lay off as defined by Section 2(kkk). If the relevant clauses in the Standing Orders of industrial employer make provisions for lay off and also prescribe the manner in which compensation should be paid to them for such lay off, perhaps the matter may be covered by the said relevant clauses; but if the relevant clause merely provides for circumstances under which lay off may be declared by the employer and a question arises as to how compensation has to be paid to the workmen thus laid off, Section 25C can be invoked by workman provided, of course, the lay off permitted by the Standing Order also satisfies the requirements of Section 2(kkk). When the laying off of the workmen is referred to in Section 25C, it is the laying off as defined by Section 2(kkk), and so, workmen who can claim the benefit of Section 25C must be workmen who are laid off and laid off for reasons contemplated by Section 2(kkk); that is all that Section 25C means. If any case is not covered by the Standing Orders, it will necessarily be governed by the provisions of the Act, and lay off would be permissible only where one or the other of the factors mentioned by Section 2(kkk) is present, and for such lay off compensation would be awarded under Section 25C. Therefore, it is not correct to say that Section 25C recognizes the inherent right of the employer to declare lay off for reasons which he may regard as sufficient or satisfactory in that behalf. No such common law right can be spelt out from the provisions of Section 25C.

Lock-out :- If the employer shuts down his place of business as a means of reprisal or as an instrument of coercion or as a mode of exerting pressure on the employees, there may be lock-out. According to Section 2(e), lock-out means :

(1) temporary closing of a place of employment; or

(2) the suspension of work; or

(3) the refusal by an employer to continue to employ any number of persons employed by him, but it does not include the discharge of employees by an employer.

Difference Between Lay-off and Lock-out (1) Lockout is an act on the part of the employer taken to coerce or pressurize the labour; lay-off is for trade reasons beyond the control of the employer, i.e., it is not intentional act.

(2) Lockout is due to an industrial dispute and continues during the period of dispute; lay-off is not concerned with a dispute with the workmen.

In "Management of Kairbetta Estate, Kotagiri P. O. v. Rajamanickam" AIR 1960 SC 893 while explaining the difference between lay-off and strike, it was observed that lock-out can be described as the antithesis of a strike. Just as strike is a weapon available to the employees for enforcing their industrial demands, a lock-out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. The use of both the weapons by the respective parties must, however, be subject to the relevant provisions of the Act.

Stated broadly lay-off generally occurs in a continuing business, whereas a lock-out is the closure of the business. In the case of a lay-off, owing to the reasons specified in Section 2 (kkk) the employer is unable to give employment to one or more workmen. In the case of a lock-out the employer closes the business and locks-out the whole body of workmen for reasons which have no relevance to causes specified in Section 2 (kkk). Thus, the nature of the two concepts is entirely different and so are their consequences. In the case of a lay-off the employer may be liable to pay compensation as provided by Section 25 (C), (D) and (E) of the Act; but this liability cannot be invoked in the case of a lock-out. The liability of the employer in cases of lock-out would depend upon whether the lock-out was justified and legal or not; but whatever the liability, the provisions applicable to the payment of lay-off compensation cannot be applied to the cases of lock-out. Therefore, where the closure of business amounts to a lock-out under Section 2 (1), it does not come within definition of `lay-off' so as to entitle workers to claim lay-off compensation.

Ans. Retrenchment :- Retrenchment connotes in its ordinary acceptation the discharge of surplus labour or staff by the employer for any reasons whatsoever. The order of termination must be actuated with a motive of economy. Section 2(oo) which defines the term "Retrenchment" may be analyzed as follows :

(1) Retrenchment means the termination by the employer of the service of a workman;

(2) The termination may be for any reason whatsoever;

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

The following are not retrenchment :

(a) voluntary retirement of a workman, or

(b) retirement of a workman on reaching the age of superannuating if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, or

(bb) termination of the service of a workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein, or

(c) Termination of the service of a workman on the ground of continued ill health.

In "Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd." AIR 1994 SC 2696 it was observed that Retrenchment, as defined in Section 2(oo), means termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action and those expressly excluded by clauses (a), (b) and (c) of the definition. In view of this settled position it cannot be said that retrenchment means termination by the employer of the service of a workman as surplus labour. Such restricted meaning of retrenchment cannot be held to govern the exercise of the power by the appropriate Government or the authority under sub-section (2) of Section 25N.

In "J.K. Cotton Spg. and Wvg. Mills Company Ltd., M/s. Kanpur v. State of U.P." AIR 1990 SC 1808 it was observed that when an employee voluntarily tenders his resignation it is an act by which he voluntarily gives up his job. Such a situation would be covered by the expression `voluntary retirement' within the meaning of clause (i) of Section 2(s). It cannot be said that because the employer accepted the resignation offer voluntarily made by the employee, he terminated the service of the employee and such termination, therefore, fell within the expression `retrenchment' rendering him liable to compensate the employee under Section 6N. This was a case of `voluntary retirement' within the meaning of the first exception to Section 2(s) and therefore the question of grant of compensation under Section 6N does not arise.

In "Gammon India Limited v. Niranjan Dass" AIR 1984 SC 500 it was observed that where the service of the employee of company was terminated on account of recession and reduction in the volume of work of the company, and the termination of service of the employee did not fall in any of the excluded categories, the termination of his service would amount to retrenchment. That being so, when the pre-requisite for a valid retrenchment as laid down in Section 25-F was not complied with, the retrenchment bringing about termination of the service of employee would be ab initio void.

In "Hari Mohan Rastogi v. Labour Court" AIR 1984 SC 502 it was observed that where the case of termination of an employee did not fall under any of exceptions in Section 2(oo), such termination would amount to retrenchment and where the prerequisites for a valid order of retrenchment were absent, the order of termination would be invalid and inoperative.

In "Management of Karnataka State Road Transport Corporation, Bangalore v. M. Boraiah" AIR 1983 SC 1320 it was held that as retrenchment as defined in Section 2 (oo) covers every case of termination of services except those which have been embodied in the definition, discharge from employment or termination of service of a probationer would also amount to retrenchment. As such, where while discharging a probationer requirements of Section 25-F had not been complied with the same was void.

In "L. Robert D'Souza v. Executive Engineer, Southern Railway" AIR 1982 SC 854 it was observed that if termination of service of a workman is brought about for any reason whatsoever, it would be retrenchment except if the case falls within any of the excepted categories, i.e.

(i) termination by way of punishment inflicted pursuant to disciplinary action;

(ii) voluntary retirement of the workman;

(iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in the behalf;

(iv) or termination of the service on the ground of continued ill health.

Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in Section 2 (oo). It must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment.

Strike - Strike means :

(1) cessation of work by a body of persons employed in any industry acting in combination; or

(2) a concerted refusal of any number of persons who are or have been employed in any industry to continue to work or to accept employment; or

(3) a refusal under a common understanding of any number of persons who are or have been employed in industry to continue to work or to accept employment. [Section 2 (Q]

Difference Between Lock Out and Retrenchment (1) Lockout is temporary, retrenchment is permanent.

(2) In lockout the relationship of employer and employee is only suspended, it does not come to an end; in retrenchment such a relationship is severed at the instance of the employer.

(3) Lockout is with a motive to coerce the workmen; the intention of retrenchment is to dispense with surplus labour.

(4) Lockout is due to and during an industrial dispute, whereas in case of retrenchment, there is no such dispute.

Ans. (i) Works Committee. - Section 3(1) of the Industrial Disputes Act provides for Works Committee. In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may, by general or special order, require the employer to constitute in the prescribed manner a Works Committee consisting of representatives employer and workmen engaged in the establishment. The number of representatives of workmen on the committee shall not be less than the number of representatives of the employer. The representatives of the workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the Indian Trade Union Act, 1926, (46 of 1926).

Its duties :- Sub-section (2) enumerates the duties of a Works Committee as follows :-

(a) to promote measures for securing and preserving amity and good relations between the employer and the workmen; and

(b) To that end, to comment upon matters of their common interests or concern and endeavour to compose one material difference of opinion in respect of such matters.

Thus, there is no subject concerning the relations between the employers and the employees which the Works Committee is precluded from considering. In the Metal Box Company of India Ltd. v. their Workmen, it was observed that agreed solutions between the Works Committee and the management are always entitled to great weight and should not be readily disturbed, particularly in matters like classification, grades and scales which are peculiarly within the personal knowledge of the members of the Works Committee.

The finding of Works Committee is recommendatory or advisory. The final power to decide whether they are to be implemented rests with the employer. The employer is not bound to implement the findings of such committee.

Delegation of powers. - The appropriate Government may by order direct that the powers of the Works Committee exercised by it under this Section shall, in such circumstances and under such conditions, if any, as may be specified in the order, may be exercised by any Officer or authority subordinate to such Government.

The Works Committee has been quite successful in its functions but several formidable difficulties also arose which hampered the smooth functioning of such committees. Some of the difficulties are :

(i) lack of appreciation on the part of both the parties;

(ii) illiteracy and lack of understanding amongst the workers;

(iii) disinclination of the workers' representatives to participate in the deliberations of the committee; and

(iv) works representatives became unpopular because of their failure in satisfying the high expectation of the workers.

(ii) Conciliation Officer. - Section 4 of the Industrial Disputes Act, provides for Conciliation Officers. This Section corresponds to Section 18-A of the Trade Disputes Act, 1929. According to this section, the appropriate Government is empowered to appoint, by notification in the Official Gazette, such number of persons as it thinks fit, to be Conciliation Officers, charged with the duty of mediating in and promoting the settlement of industrial disputes. According the sub-section (2), a Conciliation Officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries either permanently or for a limited period.

Conciliation Officer shall be deemed to be a public servant within the meaning of Section 21, Indian Penal Code.

(iii) Board of Conciliation. - Section 5 of the Act provides for the constitution of a Board of Conciliation and its powers and duties. A Board of Conciliation is a body of persons, which the appropriate Government may constitute by notification in the Official Gazette for the purpose of promoting the settlement of an industrial dispute. It shall consist of a Chairman and two or four other members, as the appropriate Government may think fit. The Chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appointed to represent shall be appointed on the recommendation of that party. But if any party fails to make recommendation aforesaid within the prescribed time, the appropriate Government shall appoint shall persons as it thinks fit to represent that party.

A Board having a prescribed quorum may act notwithstanding the absence of the Chairman or any of its members or any vacancy in its number.

The above-mentioned provisions are subject to the restriction that if the appropriate Government notifies the board that the services of the Chairman or of any other member have ceased to be available, the board shall not act until a new Chairman, or member, as the case may be, has been appointed.

(iv) Court of Inquiry. - Provisions for Court of Inquiry have been made in Section 6 of the Industrial Disputes Act, which says:

(1) Formation and scope. - The Central Government or the State Government, as the case may be, can appoint a Court of Inquiry. Such appointment is to be notified in the Official Gazette. After notification in Official Gazette it attains a valid status. Such Court of inquiry is meant to inquire into any matter appearing to be connected with or to an industrial dispute.

(2) Quorum. - A Court may consist of one independent person or such number of independent person as the appropriate Government may think fit and where a Court consists of two or more members, one of them shall be appointed Chairman.

(3) A Court, having the prescribed quorum, may act notwithstanding the absence of the Chairman or any of its members or any vacancy in its number.

(4) In absence of Chairman of the Court of inquiry the Court shall not function. If the appropriate Government notifies the Court that the services of the chairman have ceased to be available the Court shall not act until a new Chairman has been appointed.

The powers and duties of these Courts are provided in Sections 11, 14 and 16 to 21 of Chapter IV.

(v) Labour Court. - The power of appointment of Labour Court under Section 7 of the Act is vested with the Appropriate Government. The Appropriate Court together with names of persons constituting the Labour Court should be notified in the Official Gazette. The functions of the Labour Court as provided in the Act are :

(i) adjudication of industrial disputes relating to any matter specified in the Second Schedule;

(ii) performing of such other functions as may be assigned to them under this Act.

The following matters are specified in the Second Schedule, namely :

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

(ii) The application and interpretation of standing Orders;

(iii) Discharge or dismissal of workmen, including reinstatement of, or grant of, or relief to, workmen wrongfully dismissed;

(iv) Withdrawal of any customary concession or privilege;

(v) Illegality or otherwise of a strike or lockout

(vi) All matters other than those specified in the Third Schedule.

According to Section 7(2) a Labour Court shall consist of one person only, whom the appropriate Government shall appoint. The qualifications of a person who can be appointed as Presiding Officer of the Labour Court are mentioned in sub-section (3) of Section 7 as follows :

(a) he is, or has been, a judge of a High Court; or

(b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or

(c) he has held any judicial office in India for not less than seven years; or

(d) he has been the Presiding Officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years.

Section 7-C. No person shall be appointed to, or continue in the office of the Presiding Officer of a Labour Court, Tribunal or National Tribunal, if -

(a) He is not an independent person; or

(b) He has attained the age of sixty-five years.

The moment any person suffers from any disqualification, he shall cease to have authority to act in the office concerned.

In "Statesman (Private) Ltd. v. H.R. Deb" AIR 1968 SC 1495 it was observed that the expression "holding a judicial office" in Section 7 (3) (d) signifies more than discharge of judicial functions while holding some other office. The phrase postulates that there is an office and that that office is primarily judicial. Office means a fixed position for performance of duties. The use of same expression in Chapter V of Part VI of the Constitution not in pari materia can have no bearing upon the Industrial Disputes Act and vice versa.

The intention of the Legislature really is that men who can be described as independent and with sufficient judicial experience must be selected. The mention of High Court Judges and District Judges earlier in the same section indicates that ordinarily Judicial Officers from the Civil judiciary must be selected at least so long as the separation of judiciary from the executive in the public services is not finally achieved. The appointment of a person from the ranks of Civil judiciary carries with it an assurance, which is unique. The functions of a Labour Court are of great public importance and quasi Civil in nature. Men of experience on the Civil side of the law are more suitable than Magistrates. Persons employed on multifarious duties and in addition performing some judicial functions, may not truly answer the requirement of Section 7 and it may be open in a quo warranto proceeding to question their appointment on the ground that they do not hold essentially a judicial office because they primarily perform other functions.

In "South Indian Bank Ltd. v. A.R. Chacko" AIR 1964 SC 1522 it was observed that Schedule II of the Industrial Disputes Act, 1947 refers specifically to Section 7 of the Act. That section lays down that the appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act. Section 33C (2) in terms assign the determination of the amount of benefit to which the workman is entitled to receive from the employer and which is capable of being computed in terms of money to such Labour Court as may be specified in this behalf by the appropriate Government. The Labour Court, therefore, as specified by the Government, and not the Industrial Tribunal, has jurisdiction to deal with an application made to it under Section 33C (2) of the Act.

(vi) Tribunal :- The power to constitute Industrial Tribunal is conferred upon the Appropriate Government. The appointment of an Industrial Tribunal together with the names of persons constituting the Tribunal shall be notified in the Official Gazette. Further, one or more than one Tribunals may in the discretion of Appropriate Government, be constituted. It is the duty of the Tribunal to adjudicate upon any industrial dispute. These Tribunals shall perform such other functions as may be assigned to them under this Act.

The Tribunal shall consist of one person only, whom the State Government shall appoint. Any person having one of the following qualifications may be appointed as the Presiding Officer of the Industrial Tribunal, namely :

(a) if he is, or has been, a judge of a High Court; or

(b) if he has for a period of not less than three years, been a District Judge or an Additional District Judge.

It is provided by Section 7-A(4) that the Appropriate Government, if it thinks fit, may appoint two persons as assessors to advise the Tribunal in the proceedings before it.

The Government is empowered under Section 7-A of the Act of constitute a Tribunal for a limited time or for any particular case as the case may be.

In J.K. Iron and Steel Co., Kanpur v. Iron and Steel Mazdoor Union, AIR 1956 SC 231, it was observed that although these Tribunals are invested with many trappings of a Court but do not have the same status as Courts.

The Tribunal can consider the conditions of service of the workmen and can vary them if it is found necessary. The fact that a particular condition exists in other similar concerns is no justification if it could not be justified on its own merits [(1966) 1 LLJ 417 (Supreme Court)].

(vii) National Tribunals : Aim of formation :- National Tribunal are constituted by the Central Government through Official Gazette. These Tribunals are constituted for deciding industrial disputes of National importance. These Tribunals are also constituted to solve the industrial disputes of the industries situated in two or more States,

Quorum of Tribunal. - One person as a Presiding Officer is to be appointed by the Central Government. If it is deemed necessary, the Central Government may appoint two or more persons as assessors to advise and assist the Presiding Officer of one-man Tribunal.

Qualifications to be appointed as Presiding Officer of the National Tribunal. - No person shall be qualified for appointment as Presiding Officer of a National Tribunal unless he is or has been a Judge of a High Court.

Section 15 lays down that where an industrial disputes has been referred by the Central Government to a National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall submit the award to the appropriate Government, as soon as possible.

Ans. Section 9-A of Industrial Disputes Act provides for two conditions to be fulfilled before an employer can effect any change in conditions of service applicable to any workman which are :

(a) The employer should give notice to workmen likely to be affected by such change.

(b) The employer must wait, after giving such notice for 21 days.

The conditions of service for change of which notice is to be given as enumerated in Schedules IV are :-

(1) Wages, including the period and mode of payment.

(2) Contribution paid or payable, by the employer to any Provident fund, Pension fund or for the benefit of the workmen under any law for the time being in force;

(3) Compensatory and other allowances;

(4) Hours of work and rest intervals;

(5) Leaves with wages and holidays;

(6) Starting, alteration or discontinuance of shift working otherwise than in accordance with Standing Orders;

(7) Classification by grades;

(8) Withdrawal of any customary concession or privilege or change in usage;

(9) Introduction of new rule of discipline, or alteration of existing rules, except so far as they are provided in Standing Orders;

(10) Rationalization, standardization or improvement of plant or technique which is likely to lead to retrenchment of workmen;

(11) Any increase or the reduction (other than causal) in the number of persons employed or to be employed in any occupation or process or department or shift, not occasioned by circumstances over which the employer has control.

In view of the proviso no notice as aforesaid need to be given in the following cases -

(a) Where the change is effected in pursuance of any settlement or award.

(b) Where the workmen likely to be affected by the change are persons to whom the following Rules, Regulations or Code, as the case may be, apply -

(i) Fundamental and Supplementary Rules;

(ii) Civil Service (Classification, Control and Appeal) Rules;

(iii) Civil Service (Temporary Service) Rules;

(iv) Revised Leave Rules;

(v) Civil Service Regulations;

(vi) Civilians in Defence Service (Classification, Control and Appeal) Rules;

(vii) The Indian Railway Establishment Code; or

(viii) Any other rules or regulations that may be notified in this behalf by any Appropriate Government in the Official Gazette.

In "Assam Match Company Ltd. v. Bijoy Lal Sen" AIR 1973 SC 2155 it was observed that the real object and purpose of Section 9-A is to afford an opportunity to the workmen to consider the effect of a proposed change and, if necessary, to represent their view on the proposal. Even assuming that the alteration of the date of the holiday for Diwali will amount to a change in the condition of service, there is no question, in this case, of a contravention of Section 9-A, when the majority of the workmen themselves requested the employer to make the alteration.

In "L. Robert D'Souza v. Executive Engineer, Southern Railway" AIR 1982 SC 854 it was observed that in order to attract Section 9-A the change proposed must be in the conditions of service applicable to the workman in respect of any matters specified in the Fourth Schedule. If the proposed change falls in any of the matters specified in the Fourth Schedule the change can be effected after giving notice in the prescribed manner and waiting for 21 days after giving such notice. When a workman is retrenched it cannot be said that change in his conditions of service is effected. The conditions of service are set out in Fourth Schedule. No item in Fourth Schedule covers the case of retrenchment. In fact, retrenchment is specifically covered by Item 10 of the Third Schedule. Now, if retrenchment, which connotes termination of service, cannot constitute change in conditions of service in respect in respect of any item mentioned in Fourth Schedule, Section 9-A would not be attracted. If the change proposed does not cover any matter in Fourth Schedule Section 9-A is not attracted and no notice is necessary.

In "Lokmat Newspapers Pvt. Ltd., M/s. v. Shankarprasad" AIR 1999 SC 2423 it was observed that it is clear from the very wordings of Section 9-A read with item No. 10 of Fourth Schedule that any management which seeks to introduce a new working pattern for its existing work force by any future scheme of rationalization, standardization or improvement of plant or technique which has a tendency to lead to future retrenchment of workmen has to give prior notice of proposed change. Notice under Section 9-A must precede the introduction of rationalization concerned, it cannot follow the introduction of such a rationalization.

Ans. Reference of Disputes to Boards, Courts or Tribunals. - Section 10 (1) of the Act is in the nature of operative provision providing for reference of any matter relating to an industrial dispute or the dispute itself to various authorities created by the Act. Where the Appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time :

(a) refer the dispute to a Board for promoting a settlement thereof; or

(b) refer any matter appearing to be connected with or relevant to, the dispute to a Court for inquiry; or

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

(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute (where it relates to any matter specified in the second Schedule or third Schedule), to a Tribunal for adjudication :

Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen the Appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c) above :

Provided further that where the dispute relates to a public utility service and a notice of strike or lock-out under Section 22 has been given, the Appropriate Government shall make a reference under this sub- section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced. No such reference shall be made if the notice has been frivolously or vexatiously given or that it would be inexpedient to make the reference:

Provided also that where the dispute in relation to which the Central Government is the Appropriate Government, it shall be competent for the Government to refer the dispute to Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.

Under Section 10 (1-A) the Central Government may refer a dispute to a National Tribunal for adjudication if it is of the opinion that -

(a) any dispute exists or a apprehended; and

(b) the dispute involves any question of National importance; or

(c) the dispute is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by such dispute; and

(d) A National Tribunal should adjudicate the dispute.

It is further provided that the reference to National Tribunal shall be made by the Central Government only whether it is the Appropriate Government in relation to that dispute or not. The reference must be by an order in writing. The Central Government may refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the second Schedule or the third Schedule.

Section 10 (2) of the Act provides for compulsory reference of an industrial dispute by the Appropriate Government. The two conditions that make it obligatory for the Appropriate Government to make a reference are :

(a) An application in the prescribed manner made by the parties to an industrial dispute, whether made jointly or separately;

(b) Satisfaction of the Appropriate Government as to the fact that the persons applying represent the majority of each party.

If these two conditions are fulfilled then the industrial dispute may be referred to Board, Court, Labour Court, Tribunal or National Tribunal.

(2-A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the Appropriate Government :

Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months :

Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, 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 :

Provided also that in computing any period specified in this sub- section, the period, if any 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 :

Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed.

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

Where an order making the reference of any industrial dispute to any authorities as mentioned in this section had been made and wherein the points of dispute for adjudication are specified the adjudication shall be confined only to those points and the matters incidental thereto.

Sub-section (5) of Section 10 empowers the Appropriate Government to include at the time of making the reference or at any time before the submission of the award any other establishment, group or class of establishments of a similar nature.

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

In "Secretary, Indian Tea Association v. Ajit Kumar Barat" AIR 2000 SC 915 it was held that the appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or apprehended and if such a reference is made it is desirable wherever possible, for the Government to indicate the nature of dispute in the order of reference. The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi- judicial one and the Court, therefore, cannot canvass the order of the reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial order. An order made by the appropriate Government under Section 10 of the Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government. If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material; the Court may in a given case consider the case for a writ of mandamus. It would, however, be open to a party to show that what did the Government refer was not an industrial dispute within the meaning of the Act. (See also : "Ram Avtar Sharma v. State of Haryana" AIR 1985 SC 915)

In "Karnal Leather Karamchari Sanghatan v. Liberty Footwear Company" AIR 1990 SC 247 it was held that Sections 10 and 10-A of the Act are the alternative remedies to settle an industrial dispute. An industrial dispute can either be referred to an Industrial Tribunal for adjudication under Section 10, or the parties can enter into an arbitration agreement and refer it to an arbitrator under Section 10-A. But once the parties have chosen their remedy under Section 10-A the Government cannot refer that dispute for adjudication under Section 10.

In "Telco Convoy Drivers Mazdoor Sangh v. State of Bihar" AIR 1989 SC 1565 it was observed that while exercising power under Section 10(1) the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10. It is true that in considering the question of making a reference under Section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended". But the formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. Where, as in the instant case, the dispute was whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. The order of the Govt. refusing to refer the dispute on ground that the persons raising the dispute are not workmen is liable to be set aside. As the Govt. had persistently declined to make a reference under Section 10(1) the Supreme Court directed the Govt. to make a reference.

In "Rajasthan State Road Transport Corporation v. Krishna Kant" AIR 1995 SC 1715 it was held that the principles as regards jurisdiction of Civil Court in relation to dispute between employer and employee are as follows :-

(1) Where the dispute arises from general law of contract, i.e. where reliefs are claimed on the basis of the general law of contract, suit filed in Civil Court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A, of the Industrial Disputes Act, 1947.

(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.

(3) Similarly, where the dispute involves the recognition, observance of enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 - which can be called `sister enactment' to Industrial Disputes Act - and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k).

(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, the Supreme Court thought if fit to commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly

(6) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to Civil Courts. Indeed, the powers of the Court and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.

In "Jitendra Nath Biswas v. M/s. Empire of India and Ceylone Tea Co." AIR 1990 SC 255 it was held that Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the Civil Court to grant such relief. The scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the Civil Court by implication in respect of remedies which are available under the Act and for which a complete procedure and machinery has been provided in the I.D. Act. In view of language of Section 10 read with Section 12(5) of the I.D. Act adequate remedy is available to the worker under the Scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages.

Ans. Section 10-A of Act provides, where an arbitration agreement provides for a reference of the dispute to arbitrators, the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purposes of this Act.

An arbitration agreement shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed.

The copy of the arbitration agreement shall be forwarded to the appropriate Government and the Conciliation Officer and the appropriate Government shall within one month from the date of the receipt of such copy, publish the same in the Official Gazette. Where an industrial dispute has been referred to arbitrator and the appropriate Government is satisfied that the persons making the reference represent the majority of each party, the appropriate Government may, within the time referred to on sub-section (3) issue a notification in such manner as may be prescribed; and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrators. The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government, the arbitration award signed by the arbitrator, or all the arbitrators as the case may be.

Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3-A), the appropriate Government may, by order, prohibit the continuance of strike or lock-out in connection with such dispute which may be in existence on the date of the reference.

Section 10-A (5)of the Industrial Disputes Act, as amended, up-to-date, provides that nothing in the Arbitration Act, 1940, shall apply to arbitration under this Section. Thus the provisions of Arbitration Act, 1940, do not apply to the reference of industrial disputes to arbitration under Section 10-A of this Act.

In "Karnal Leather Karamchari Sanghatan v. Liberty Footwear Company" AIR 1990 SC 247 it was observed that it must be recognised that in a modern welfare State, healthy industrial relations are a matter of paramount importance. In attempting to solve industrial disputes, industrial adjudication, therefore, should not be delayed. Voluntary arbitration appears to be the best method for settlement of industrial disputes. The disputes can be resolved speedily and in less than a year, typically in a few months. The Tribunal adjudication of reference under Section 10(1) often drags on for several years, thus defeating the very purpose of the industrial adjudication. Arbitration is also cheaper than litigation with less legal work and no motion practice. It has limited document discovery with quicker hearings and is less formal than trials. The greatest advantage of arbitration is that there is no right of appeal, review or writ petition. Besides, it may, as well reduce company's litigation costs and its potential exposure to ruinous liability apart from redeeming the workmen from frustration.

In "Rohtas Industries Ltd. v. Rohtas Industries Staff Union" AIR 1976 SC 425 it was observed that the arbitrator under Section 10A of the Industrial Disputes Act, (as amended in 1964) has power to bind even those who are not parties to the reference or agreement and the whole exercise under Section 10A as well as the source of the force of the award on publication derives from the statute. It is legitimate to regard such an arbitrator as part of the methodology of the sovereign's dispensation of justice, thus falling within the rainbow of statutory Tribunals amenable to judicial review. An award under Section 10A is not only not invulnerable but also more sensitively susceptible to the writ lancet being a quasi-statutory body's decision. Admittedly, such an award can be upset if an apparent error of law stains its face. The distinction, in this area, between a private award and one under Section 10A is fine, but real. AIR 1963 SC 874, Foll.

Ans. The Labour Court adjudicates disputes relating to matters specified in the second Schedule, namely :

1. The propriety or legality of an order passed by an employer under the standing orders

2. The application and interpretation of standing orders.

3. Discharge or dismissal of workman including reinstatement of or grant of relief to workmen wrongly dismissed.

4. Withdrawal of any customary concession or privilege.

5. Illegality or otherwise of a strike or lock-out.

6. All matters other than those specified in the Third Schedule.

The Labour Courts derive their powers from the statute and they have to function with the limits imposed by the Act. The Act limits the jurisdiction of the Labour Court to adjudicate the disputes relating to the matter mentioned in Second Schedule. Section 10(1) also speaks about the jurisdiction of the Labour Courts. The Labour Courts have no jurisdiction to adjudicate any matter mentioned in Third Schedule.

The jurisdiction of Labour Court to adjudicate upon an industrial dispute springs from the reference made to it and is confined to the dispute as referred to it. (AIR 1961 Mad. 370). Madras High Court has held that it is not necessary that the person applying to a Labour Court must be in service at the time of making application. [(1961)] 1 LLJ 52 (Mad.)]

The Labour Courts are not Courts of general and residuary jurisdiction but a Court with specific jurisdiction enumerated by the terms of the order of reference and such other functions as may be assigned under the Act.

The Labour Courts have not the jurisdiction of taking ex parte proceedings in appropriate cases. The Labour Court can grant relief of reinstatement in proper case if the Court finds the dismissal was wrongful.

The jurisdiction of the Labour Court cannot be taken away by the Government by canceling, withdrawing or superseding reference made to it. The same can also not be taken away by subsequent act of parties [(1961) 1 LLJ 288 (Mad.)]

Power of Labour Court. - Every Labour Court shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of any matter namely -

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents and material objects;

(c) issuing commission for the examination of witnesses;

(d) in respect of such other matters as may be prescribed and every investigation by a Labour Court shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.

Additional power of Labour Court. - Besides this, a Labour Court also enjoys the following powers :

(1) The power to appoint one or more persons having special knowledge of the matter under consideration as assessors to advise it in the proceeding before it.

(2) The powers to have its Presiding Officer considered as a public Officer within the meaning of Section 21.

(3) The power to determine the costs of, and incidental to, any proceeding before it. The Labour Court shall have, in its discretion, full power to determine by and to whom and to what extent and subject to what condition, if any, such costs are to be paid.

(4) The power to be considered as a Civil Court for other purposes of Sections 345, 346 and 348 of the Code of Criminal Procedure, 1973.

Now the problem is whether Labour Courts could enter into questions of fact itself and then decide them. As their Lordships of the Supreme Court have pointed out in Tata Oil Mills Co. Ltd. v. The Workman (AIR 1965 SC 155), the Industrial Tribunal can discard the findings of the domestic Tribunal and give its own findings on question of fact provided the proceedings before the domestic Tribunal are vitiated by basic error such as violation of principles of natural justice.

Where an industrial dispute relating to discharge or dismissal of a workman has been referred to Labour Court for adjudication and the Labour Court is satisfied in the course of adjudication that the order of discharge or dismissal was not justified, it may set aside the order of discharge or dismissal through its award.

The Labour Court may also direct the reinstatement of the workman with or without conditions.

If any order relating to discharge or dismissal of a workman is found correct, the Labour Court may okay the previous disputed order or give such punishment as it thinks fit in lieu of discharge or dismissal according to the circumstances of the case.

The above-mentioned provisions are subject to the restriction that in any proceeding under section 11-A, the Labour Court shall rely on the material on record and shall not take any fresh evidence in relation to the matter.

Where an industrial dispute has been referred to a Labour Court for adjudication, it shall hold its proceedings expeditiously and shall within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2-A) of Section 10, submit its award to the appropriate Government.

It a trade union, person, firm or company makes a request in writing to a Labour Court to treat any information which is not available otherwise than through the evidence given before such Court, as confidential, then such Court shall not disclose any such information without the consent in writing of the Secretary of the trade union, or the person, firm or company in question.

Provided that the above provisions shall not apply to a disclosure of any such information for the purposes of a prosecution under Section 193 of the Indian Penal Code.

Ans. Procedure and Powers of Conciliation Officers, Boards, Courts and Tribunals. - Section 11 of the Act as it stood at the time of its enactment in 1947 has been amended in 1956. Sub-section (1) gives very wide powers to the authorities in so far as the procedure to be followed by them is concerned.

Section 11(1) provides that subject to any rules that may be made in this behalf, an arbitrator, Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit. These provisions give very wide discretion to the authorities, and the discretion must be exercised with care and caution bearing in mind the principles of natural justice.

Under Section 11 (2) a Conciliation Officer or a member of a Board or Court or the Presiding Officer of a Labour Court, Tribunal or National Tribunal may, for the purpose of inquiry into any existing or apprehended industrial dispute, enter the premises occupied by any establishment to which the dispute relates. But before entering the premises such authority must give reasonable notice of its intention to do so.

Sub-section (3) which is in the nature of a proviso to sub-section (1) enacts that every Board, Court, Labour Court, Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Civil Procedure Code, 1908, when trying a suit in respect of the following matters, namely -

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents and material objects;

(c) issuing commission for the examination of witnesses;

(d) in respect of such other matters as may be prescribed.

Every inquiry or investigation by a Board, Labour Court, Tribunal and National Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.

Sub-section (4) deals specially with the procedure to be followed by the Conciliation Officer. He may enforce the attendance of any person for the purpose of examination of such person or call for and inspect any document, which he has ground for considering :

(i) to be relevant to the industrial dispute; or

(ii) to be necessary for the purpose of verifying the implementation of any award; or

(iii) carrying out any other duty imposed on him under this Act.

Section 11 (5) provides that a Labour Court, Tribunal or National Tribunal may, if it so thinks fit, appoint on or more persons having special knowledge of the matter under consideration as assessor to advise it in the proceeding before it.

Under Section 11(6) all Conciliation Officers, members of Board or Court and the Presiding Officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.

Sub-section (7) deals with the cost to be awarded by the authorities under the Act. The cost of any proceeding or the cost incidental to any proceeding before a Labour Court, Tribunal or National Tribunal shall be in the discretion of authority before which the proceedings are going on. The authority concerned shall have full power to determine by whom and to whom the costs are to be paid. It shall have further power to determine the extent and the conditions subject to which any such costs are to be paid.

Under Section 11 (8) every Labour Court, Tribunal or National Tribunal shall be deemed to be a Civil Court for the purposes of Sections 345, 346 and 348 of the Code of Criminal Procedure, 1973.

In "Workmen, Williamson Magor and Co. Ltd. v. Williamson M. and Co." AIR 1982 SC 78 it was observed that the Industrial Tribunals are intended to adjudicate industrial disputes between the management and the workmen, settle them, and pass effective awards in such a way that industrial peace between the employers and the employees may be maintained so that there can be more production to benefit all concerned. For the above purpose, the industrial Tribunals, as far as practicable, should not be constrained by the formal rules of law and should avoid inability to arrive at an effective award to meet justice in a particular dispute.

In "Grindlays Bank Ltd v. Central Government Industrial Tribunal" AIR 1981 SC 606 it was held that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex parte award, it is as if the party is visited with an award without a notice of the proceedings. An award without notice to a party is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh.

It is true that there is no express provision in the Act or the Rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well-known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. The words `shall follow such procedure as the arbitrator or other authority may think fit' occurring in Section11 (1) are of the widest amplitude and confer ample power upon the Tribunal and other authorities to devise such procedure as the justice of the case demands.

The language of R. 22 of the Industrial Disputes (Central) Rules (1957) unequivocally makes the jurisdiction of the Tribunal to render an ex parte award and carries with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. And in view of R.24 when an ex parte award is passed, provisions of O. 9 R. 13, Civil P.C. are attracted.

In "Rohtas Industries Ltd., M/s. v. Workmen represented by Rohtas Industries Mazdoor Sangh" AIR 1977 SC 1867 it was held that in an industrial matter, the fact that the opposite party had not earlier submitted the written statement was not a sufficient ground for the Tribunal to refuse opportunity to that party to examine witnesses when it later on pressed for it. That would be against the principles of natural.

In "Hochtief Gammon v. Industrial Tribunal, Bhubaneshwar, Orissa" AIR 1964 SC 1746 it was observed that Section 11 (3) of the Act prescribes, inter alia, that the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, when trying a suit in respect of the matters specified in claues (a) to (d). The power to add a party to the proceedings pending before a Tribunal which may be exercised under the Code of Civil Procedure under O. 1 R. 10 is not included in Section 11(3), and there is no other section which confers such a power on the Tribunal. Therefore, if Section 18(b) contemplates that persons other than parties to the industrial dispute can be summoned, there is no specific provision conferring power on the Tribunal to summon them, and that inevitably suggests that the power must be read as being implicit in Section 18 (b) itself.

The result of the relevant provisions (Ss. 18 (b), 11 (3) and 10(1)) is that if the Industrial Tribunal, while dealing with an industrial dispute, came to the conclusion that persons other than those mentioned as parties to the industrial dispute were necessary for a valid determination of the said dispute, it had the power to summon them; and if such persons were summoned to appear in the proceedings the award that the Industrial Tribunal may ultimately pronounce would be binding on them.

Power of High Court to issue writ against decisions of the Tribunal. - The High Courts have under Article 226 of the Constitution power to issue writs of certiorari for quashing the decision of a Tribunal. (H.V. Kamath v. Syed Ahmed Ishaque, AIR 1955 SC 233). Section 11-a. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. - Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and in the course the adjudication proceeding, the Labour Court, Tribunal or National Tribunal as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award set aside the order of discharge of dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of the lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require :

Provided that in any proceeding under this Section the Labour Court, Tribunal or National Tribunal as the case may be shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.

In "Neeta Kaplish v. Presiding Officer, Labour Court" AIR 1999 SC 698 it was observed that Section 11-A was introduced in the Act by the Parliament, wherein it was provided that the Tribunal had not only the power to set aside the order of dismissal and direct reinstatement of the workman, it had also the power to award lesser punishment. The proviso to Section 11-A, however, provided that the Tribunal would rely only on the material already on record and shall not take any fresh evidence. The Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show by fresh evidence, that the termination or dismissal order was proper. If the Management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the Management, the validity of the action taken by it has to be scrutinized and adjudicated upon on the basis of such fresh evidence. The record pertaining to the domestic enquiry would not constitute "fresh evidence" as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute "material on record", within the meaning of Section 11-A as the enquiry proceedings, on being found to be bad, have to be ignored altogether.

Duties of Conciliation Officers. - The duties of Conciliation Officer as laid down in Section 12 (1) are of two kinds, namely, discretionary and mandatory. His duties are :

(i) Where any industrial disputes exists or an apprehended in any industrial establishment the Conciliation Officer may hold conciliation proceedings in the prescribed manner.

(ii) Where the dispute relates to a public utility service and a notice under Section 22 has been given the Conciliation Officer shall hold conciliation proceeding in the prescribed manner.

Thus, in the former case the duty imposed upon the Conciliation Officer is only discretionary and that too is dependent upon one or the other of the two exigencies, namely, the existence or apprehension of the industrial dispute. In the latter case, on the satisfaction of the two conditions (i.e., if dispute relates to a public utility service and a notice under Section 22 has been given), it shall be obligatory from him to hold conciliation proceedings.

What the Conciliation Officer shall do for the purpose of bringing about a settlement of the dispute is stated in Section 12 (2) . He shall without any delay investigate the dispute and all matters affecting the merits and the right settlement of the dispute. He may also do all such things, as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. He shall try to find out the points of difference between the parties, ascertain the grounds on which respective claims are based and explore the possibilities to settle the differences. He shall persuade the parties to avoid any conflict. Practically he has no power to pass any independent order.

Section 12 (3) provides that if a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the Conciliation Officer shall send a report thereof. The report of the settlement shall be submitted to the appropriate Government or to an Officer authorised in this behalf by the Appropriate Government. The report shall also be accompanied with a memorandum of the settlement. The parties to the dispute shall sign the memorandum.

In case no settlement is arrived at, the Conciliation Officer shall, as soon as practicable, after the close of investigation, send the case to the Appropriate Government containing :-

(i) a full report setting forth the steps taken by him for ascertaining the facts and circumstances resulting to the dispute and for bringing about a settlement of the dispute; and

(ii) A full statement of such facts and circumstances and the reasons on account of which in his opinion, a settlement could not be arrived at.

Power of Government to make a reference. (Section 12 (5) :- This sub- section authorises the Government either to make or not to make a reference. The Government is authorised to examine the report and see whether there is a case for reference or not. If it is satisfied that there is no case for reference it shall record the reasons therefor. But if the Government feels that there is a case for reference, can it even then refuse to refer the dispute.

In "State of Bombay v. K. P. Krishnan" AIR 1960 SC 1223 it was observed that Even if the appropriate Government may be acting under Section 12 (5) the reference must ultimately be made under Section 10 (1). Section 12 (5) by itself and independently of Section 10 (1) does not confer power on the appropriate Government to make a reference. While deciding whether a reference should be made under Section 12 (5) it would be open to the appropriate Government to consider, besides the report of the Conciliation Officer, other relevant facts which may come to its knowledge or which may be brought to its notice. Just as discretion conferred on the Government under Section 10 (1) can be exercised by it in dealing with industrial disputes in regard to non- public utility services even when Government is acting under Section 12 (5), so too the provisions of the second proviso to Section 10 (1) can be pressed into service by the Government when it deals with an industrial dispute in regard to a public utility service under Section 12(5).

Duties of Boards. - Section 13 (1) provides that where a dispute has been referred to a Board under this Act, it shall be the duty of the Board to endeavour to bring about a settlement of the same. For the purpose of bringing about a settlement, the Board shall, if it thinks fit and without any delay, investigate the dispute and all matters affecting the merits and the right settlement of the dispute. The Board may do all things, as it thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.

Section 13(2) lays down that if a settlement of the dispute or of any of the matters in dispute is arrived at during the course of the conciliation proceedings, the Board shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.

If no such settlement is arrived at, the Board shall, as soon as practicable after the close of the investigation send to the appropriate Government a full report setting forth the proceedings and steps taken by the Board for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof. The report shall be accompanied with a full statement thereof.

Section 13 (4) provides that, if on the receipt of a report under sub- section (3) in respect of a dispute relating to a public utility service, the appropriate Government does not make a reference to a Labour Court, Tribunal or National Tribunal under Section 10, it shall record and communicate to the parties concerned its reasons therefor. Provisions of this sub-section are very much similar to the provision of Section 12 (5). Therefore comments with regard to Section 12 (5) of the Act shall with equal force apply to this sub- section also.

Duties of Courts. - Section 14 of the Act deals with the duties of the Court. The exercise of jurisdiction by the Court of inquiry is subject to a reference having been made by the Appropriate Government regarding any matter appearing to be connected with or relevant to an industrial dispute, existing or apprehended. The reference shall be made under Section 10 (1) of the Act. The procedure and powers of a Court of inquiry are laid down in Section 11. The duties of a Court of Court of inquiry as laid down in Section 14 of the Act are :

(i) To enquire into the matter referred to it by the appropriate Government.

(ii) To make a report to the appropriate Government on the enquiry held on mattes referred to it.

Duties of Labour Courts, Tribunals and National Tribunals. - The duties of these bodies as laid down by Section 15 of the Act are two folds :

(i) to hold adjudication proceedings expeditiously; and

(ii) to submit its award to the appropriate Government within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2-A) of Section 10.

In order to enable these bodies to hold adjudication proceedings a valid reference under Section 10 is necessary. The exercise of jurisdiction by these bodies is subject to a reference being made to it. Further the dispute referred to adjudication must strictly be an industrial dispute and conform the requirements of Section 2(k) of the Act.

Ans. Form of report or awards. - Section 16 of the Industrial Disputes Act provides for the form in which a report or award is to be made regarding an industrial dispute. The report of a board or Court shall be in writing and shall be signed by all the members of the Board or Court, as the case may be. A memorandum of the settlement signed by the parties to the dispute when the settlement is arrived at shall accompany the report of the Board. It is not necessary for all the members of a Board or Court to give a concurrent opinion or finding. Any such member may dissent from the report or from recommendations made therein.

It is a mandatory provision that an award of Labour Court or Tribunal or National Tribunal shall be in writing and shall be signed by its Presiding Officer. An award of a Tribunal ought not to be written in vague terms which would create difficulties in the implementation of the same, because it may also provide scope for further industrial dispute.

Publication of reports and awards. - Section 17 (1) of the Act provides for the publication of the reports and awards according to which every report to a Board or Court together with any minute of dissent recorded therewith, every arbitration award and 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 Section 17 (2) of the Act, subject to the provisions of Section 17- an award published under Section 17 (1) shall be final and shall not be called in question by any Court in any manner whatsoever.

In "C.T. Nikam v. Municipal Corporation of Ahmedabad" AIR 2002 SC 997 it was observed that the Industrial Disputes Act is enacted by the Parliament to provide speedy, inexpensive and effective forum for resolution of disputes arising between workmen and the employers, the underlying idea being to ensure that the workmen do not get caught in the labyrinth of Civil Courts which the workmen can ill-afford. The procedure followed by Civil Courts is too lengthy and consequently, is not an efficacious forum for resolving Industrial Disputes speedily. The power of Industrial Courts also is wide and such forums are empowered to grant adequate relief, as they think just and appropriate. It is in the interest of the workmen that their disputes, including the disputes of illegal termination are adjudicated upon by an industrial dispute within the meaning of Section 2(k) and under Section 17 of the Industrial Disputes Act, every Award of Labour Court, Industrial Tribunal or National Tribunal is required to be published by the appropriate Government within a period of thirty days from the date of its receipt and such Award published under sub- section (1) of Section 17 is held to be final.

In "Remington Rand of India Ltd. v. The Workmen" AIR 1968 SC 224 it was held that a provision as to time in Section 17 (1) is merely directory and not mandatory. Section 17 (1) makes it obligatory on the Government to publish the award. The limit of time has been fixed for that the publication of the award ensuring is not held up. But the fixation of the period of 30 days mentioned therein does not mean that the publication beyond that time will render the award invalid. AIR 1964 SC 160, Explained. (1962) 2 Lab LJ 144 (Ker) and AIR 1961 SC 751, Ref. to.

Generally speaking the publication of an award results in two consequences, namely :

(1) Subject to certain provisions, relating to modification after publication, the award shall become final on its publication and shall not be called in question by any Court in any manner whatsoever.

(2) It becomes enforceable on the expiry of thirty days from the date of its publication subject to the restrictions as to its enforceability, and, on date when it is specified in the award, as to its commencement.

Sub-section (1) of Section 17-A lays down that an award including an arbitration award shall become enforceable on the expiry of thirty days from the date of its publication under Section 17. A proviso to this sub-section provides that the Central Government or the appropriate Government, as the case may be, may withhold the enforcement of award. It is provided under this proviso that :

(a) If the appropriate Government is of opinion in any case where the award has been given by a labour Court or Tribunal in relation to an industrial dispute to which it is a party that it will be inexpedient on public grounds affecting National economy or social justice to give effect to the whole or any part of the award, the appropriate Government 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.

(b) Similarly, if the Central Government is of opinion, in any case, where the award has been given by a National Tribunal that it will be inexpedient on public grounds affecting National economy or social justice to give effect to the whole or any part of the award, the Central Government 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.

Where any declaration has been made in relation to an award under the proviso to sub-section (1), the appropriate Government or the Central Government may within ninety days from the publication of the award, under Section 17 make an order rejecting or modifying the award and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of State, if the order has been made by the State Government or before Parliament, if the order has been made by the Central Government. [Section 17-A(2)]

Where any award as rejected or modified by an order under sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid. Where no order under sub-section (2) is made in pursuance of declaration under the proviso to sub-section (1) the award shall become enforceable on he expiry of the period of ninety days referred to in sub- section (2). [Section 17-A (3)].

The award shall come into operation with effect from such date as may be specified therein but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under sub-section (1) or sub-section (3) as the case may be. [Section 17-A (4)]

Under sub-section (4), it lies within the discretion of the Tribunal to give retrospective effect to its award. This discretion should be exercised on reasonable grounds.

The 1982 amendment has introduced a new Section 17-B which provides that if an employer prefers proceedings in a High Court or Supreme Court against in award by Labour Court, Tribunal or National Tribunal, he shall be liable to pay to such workman the full wages last drawn by him inclusive of all the allowances.

Ans. Persons on whom settlements and awards are binding. - Section 18 of the Act enumerates persons on whom settlements and award are binding. For this purpose settlements are classified in two categories, namely -

(i) settlements arrived at otherwise than in the course of conciliation proceedings, i.e., without the aid of statutory agency, and

(ii) settlements arrived at in the course of conciliation proceeding, i.e. with the aid of statutory agency.

Section 18 (2) which is made subject to the provisions of Section 18 (3) provides that an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to the arbitration.

Sub-section (3) provides that -

(a) a settlement arrived at in the course of conciliation proceedings under this Act; or

(b) an arbitration award in a case where a notification has been issued under sub-section (3-A) of Section 10-A; or

(c) an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on :

(i) all parties to the industrial dispute,

(ii) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, Arbitrator, Labour Court, Tribunal or National Tribunal as the case may be, records the opinion that they were so summoned without proper cause,

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

(iv) Where a party referred to in Clause (a) or Clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part thereof.

In "National Engineering Industries Ltd. v. State of Rajasthan" AIR 2000 SC 469 it was observed that Sub-sections (1) and (3) of Section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings and (2) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. A settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. Recognized union having majority of members is expected to protect the legitimate interest of labour and enter into a settlement in the best interest of labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the Workers' Union as laid down by Section 18(3)(d) of the Act. It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of unions that are signatories to such settlement under Section 12(3) of the Act. Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace.

Period of operation of settlements and awards. - Section 19 of the Act deals with the period of operation of settlement and awards. Sub-sections (1) and (2) deal with commencement and period of operation of settlements arrived at in the course of proceedings before a conciliation Officer or board. Sub- sections (3) to (7) deal with the period of operation of award.

For the purpose of operation settlement are classified in two categories, namely :

(i) settlements in which the date of operation is fixed; and

(ii) settlements in which no date of operation is fixed.

In the former case the settlement shall come into operation on the date agreed upon by the parties to the dispute. In the latter case, it shall come into operation on the date on which parties to the dispute sign the memorandum of the settlement.

Sub-section (2) says that the settlement shall be binding for such period as is agreed upon by the parties. If no period is agreed upon it shall be binding for a period of six months from the date on which the parties to the dispute sign the memorandum of settlement. The settlement shall continue to be binding after expiry of the entire period as aforesaid and until the expiry of further period of period of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to other party or parties to the settlement.

Ans. Section 21 of the Act provides that certain matters obtained by the Conciliation Officer, Board, Labour Court, Tribunal, National Tribunal or an arbitrator should be kept confidential. The following information shall not be included in the award or report as the case may be :-

(a) information which relates to a trade union or any individual business whether carried on by a person, a firm or a company;

(b) information which is not available otherwise than through the evidence given before the authority; and

(c) information for which the trade union, person, firm or company has requested the authority in writing that it should be treated as confidential.

The second part of the section lays down that no such information shall be disclosed by the authority or any person concerned in the proceeding without the written consent of the party concerned.

The provisions regarding confidentiality shall not apply to a disclosure of any such information for the purposes of a prosecution under Section 193 of the Indian Penal Code.

Section 21 does not say that the inspection of a document, which is to be used as evidence, can be denied or refused.

Ans. Prohibition of Strikes and Lockouts. - Section 22 of the Act deals with the prohibition of strikes and lockouts. Conditions laid down in Section 22(1) are to be fulfilled in case of strike in any public utility service and conditions as laid down in Section 22 (2) are to be fulfilled in case of any lock-out by the employer carrying on any public utility service.

Section 22 (1) provides that no person employed in public utility service shall go on strike in breach of contract :

(a) without giving to the employer notice of strike within six weeks before striking; or

(b) within fourteen days of giving such notice; or

(c) before the expiry of the date of strike specified in any such notice as aforesaid; or

(d) during the pendency of any conciliation proceeding before Conciliation Officer and seven days after the conclusion of such proceedings.

Notice of strike within six weeks before striking is not necessary where there is already a lock-out in existence. Notice may be given by the Trade Union or representative of the workmen elected to do so. A notice of strike shall not be effective after 6 weeks from the date it is given. So, the strike must be commenced within that period.

Section 22 (2) lays down that no employer carrying on any public utility service shall lock-out any of his workmen -

(a) without giving them notice of lock-out as hereinafter provided within six weeks before locking out; or

(b) within fourteen days of giving such notice; or

(c) before the expiry of the date of lock-out specified in any such notice as aforesaid; or

(d) during the pendency of any conciliation proceeding before a Conciliation Officer and seven days after the conclusion of such proceedings.

Section 22 (3) provides that the notice of strike or lock-out as provided by sub-sections (1) and (2) may in certain cases be dispensed with.

(1) No notice of strike shall be necessary where there is already in existence a lock-out in the public utility service concerned.

(2) No notice of lock-out shall be necessary where there is already in existence a strike in the public utility service concerned.

Section 22 (6) deals with the intimation of notices given under sub- section (1) or (2) to specified authorities. If on any day an employer receives from any person employed by him any such notice as is referred to in sub-section (1), he shall within five days report to the appropriate Government or to such authority as that Government may prescribe, the number of such notices received on that day. Similarly, if an employer gives any notice as is referred to in sub-section (2) to any person employed by him, he shall report this fact within five days to the appropriate Government or to such authority as the Government may prescribe.

The prohibition against strikes and lock-outs contained in Section 23 is general in nature. It applies to contract by workmen and lock out by the employer is prohibited in the following cases :

(i) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;

(ii) during the pendency of proceedings before a labour Court, Tribunal or National Tribunal, and two months after the conclusion of such proceedings;

(iii) during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under sub-section (3-A) of Section 10-A, or

(iv) during any period in which a settlement or award is in operation in respect of the matters covered by such settlement or award.

In "Syndicate Bank v. K. Umesh Nayak" AIR 1995 SC 319 it was observed that a strike may be illegal if it contravenes the provisions of Sections 22, 23 or 24 of the Act or of any other law or of the terms of employment depending upon the facts of each case. Similarly, a strike may be justified or unjustified depending upon several factors such as the service conditions of the workmen, the nature of demands of the workmen, the cause which led to strike, the urgency of the cause or the demands of the workmen, the reason for not resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules and regulations etc. An enquiry into these issues is essentially an enquiry into the facts, which in some cases may require taking of oral and documentary evidence. Hence such an enquiry has to be conducted by the machinery which is primarily invested with the jurisdiction and duty to investigate and resolve the dispute. The machinery has to come to its findings on the said issue by examining all the pros and cons of the dispute as any other dispute between the employer and the employee.

Illegal strikes and lock outs. -According to Section 24(1) a strike or lock-out shall be illegal if it is :

(1) commenced or declared in contravention of Section 22 in a public utility service;

(2) commenced in contravention of Section 23 in any industrial establishment (including both public utility and non-public utility service);

(3) continued in contravention of an order made by the appropriate Government under Section 10 (3) or sub-section (4-A) of Section 10-A of the Act.

Sub-section (2) provides that where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of reference of the dispute to a board, an arbitrator, a labour Court, Tribunal or National Tribunal, the continuance of such strike or lock-out shall not be deemed to be illegal provided that such strike or lock-out was not at its commencement in contravention of the provisions of this Act or the continuance thereof was not prohibited under Section 10 (3) or sub-section (4-A) of Section 10-A.

According to Section 25(3) a lock-out declared in consequence of an illegal strike or strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.

Punishment for illegal strikes. - If a strike is illegal the party guilty of the illegality is liable to punishment under Section 26 of the Act. Even in case of illegal strikes a distinction has been attempted to be made between (i) illegal but justified strike; and (ii) illegal and unjustified strike. It is said that a strike may be technically illegal because it is in contravention of the provision of this Act but because the causes that lead to a strike are often mixed question of legal and illegal demands, a strike may not be unjustified but the conduct of workmen may be objectionable, or their behaviour may be violent.

In "Rohtas Industries Ltd. v. Rohtas Industries Staff Union" AIR 1976 SC 425 it was held that since the Industrial Disputes Act which creates rights and remedies has to be considered as one homogenous whole, it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act. The claim for compensation and the award thereof in arbitral proceedings is invalid on its face. Such a compensation for loss of business is not a dispute or difference between employers and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. AIR 1975 SC 2238, Foll.

Section 25 of Act prohibits financial aid to illegal lockouts and strikes.

Ans. Definition of continuous service. - Section 25-B of the Act defines continuous service. The definition of continuous service as given in this Section is applicable to this Chapter only. A workman shall be said to be in continuous service for a period, if for that period his service is uninterrupted. It is also provided that any interruption on certain accounts shall not be considered an interruption and the service shall still be deemed to be continuous. These interruptions may be on account of (1) sickness; or (2) authorised leave; or (3) an accident; or (4) a strike which is not illegal; or (5) a lock-out; or (6) a cessation of work which is not due to any fault on the part of the workmen.

Sub-section (2) of Section 25-B defines continuous service for a period of one year or a period of six months. Clause (a) of sub-section (2) provides that a workman shall be deemed to have been in continuous service for a year, if -

(1) he has been in employment for 12 calendar months; and

(2) he actually worked for not less than -

(a) One hundred and ninety days in the case of a workman employed below ground in a mine, and

(b) Two hundred and forty days in any other case.

The following conditions must be fulfilled by a workman to entitle him for a continuous service of six months. As provided by clause (b) of sub-section (2) these conditions are :-

(1) The workman has been in employment for a period of six calendar months;

(2) Such workman has actually worked for not less than -

(a) Ninety-five days in he case of his being employed below ground in a mine; and

(b) One hundred and twenty days in any other case.

Explanation. - For the purpose of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which -

(i) he has been laid-off under an agreement or as permitted by Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment;

(ii) he has been on leave with full wages, earned in the previous year;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course his employment; and

(iv) in the case of a female, she has been on maternity leave so however, that the total period of such maternity leaves does not exceed twelve weeks.

In "Mohan Lal v. Management of M/s. Bharat Electronics, Ltd." AIR 1981 SC 1253 it was held that before a workman can complain of retrenchment being not in consonance with Section 25-F, he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. Section 25-B is the dictionary clause for the expression `continuous service'. Both on principle and on precedent it must be held that Section 25-B (2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period 12 calendar months commencing and counting backwards from the relevant date, i.e., the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of Section 25-B and Chapter V-A.

Sub-sections (1) and (2) of Section 25-B introduce a deeming fiction, as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter V-A. Sub-section (1) provides a deeming fiction that where a workman is in service for a certain period he shall be deemed to be in continuous service for that period even if service is interrupted on account of sickness or authorised leave or an accident of a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the part of the workman. Situations such as sickness, authorised leave, an accident, a strike not illegal, a lockout or a cessation of work would ipso facto interrupt a service. These interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which could be deemed to be uninterrupted would be continuous service for the period for which the workman has been in service. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in clause (a) of sub-section (2).

In "Surendra Kumar Verma v. Central Government Industrial Tribunal-cum- Labour Court, New Delhi" AIR 1981 SC 422 it was observed that there is no stipulation that a workman should have been in employment or service under the employer for a whole period of 12 months. In fact the thrust of the revision is that he need not be. That appears to be the plain meaning without gloss from any source. A workman who has actually worked for not less than 240 days during a period of 12 months shall be deemed to have been in continuous service for a period of 1 year whether or not he has in fact been in such continuous service for a period of 1 year. It is enough that he has worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year.

In "Workmen of A.E.I.B. Corpn. v. Management A.E.I.B. Corpn." AIR 1986 SC 458 it was observed that the qualification for relief under Section 25-F is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in Section 25-B of the Act. In view of sub-section (2) of Section 25-B the workman shall be deemed to be in continuous service if he has "actually worked under the employer" for particular period. The expression "actually worked under the employer" cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. Thus Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workman could be said to have actually worked.

Ans. Whenever a workman other than a Badli workman or a causal workman whose name is borne on the muster rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid off, he shall be paid by the employer for all days during which he is so laid off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty percent of the total of the basic wages and dearness allowances which would have been payable to him, had he not been so laid off. But the compensation payable to any workman during any period of twelve months shall not be for more than forty five days.

If during any period of twelve months a workman is laid off for more than forty five days whether continuously or intermittently and the lay off after the expiry of the first forty five days comprises continuous period of one week or more, the workman shall unless there is any agreement to the contrary between him and the employer, be paid for all the days comprised in every such subsequent period of lay off at the rate of fifty per cent of the basic wages and allowances. Retrench the workman in accordance with the provisions of law at any time after the expiry of the first forty five days of lay off and where he does so, any compensation paid to the workman for having been laid off during the preceding twelve months may be set off against the compensation payable for retrenchment.

Exceptions. - However the above provisions regarding compensation shall not be applicable -

(a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or

(b) to industrial establishments, which are of a seasonal character, or in which work is performed only intermittently.

Thus, Section 25-C, confers on the workmen who are laid off the right to compensation and prescribes the method in which the same has to be calculated. Only those workmen can claim the benefit of this Section who are workmen laid off for reasons contemplated by Section 2 (kkk).

In case of any dispute, an Industrial Tribunal can determine the questions whether an employer was responsible for deliberately bringing about the situation, leading to lay off or whether the workmen were laid off in order to victimize them for some ulterior motive. Such findings of fact, arrived at the Tribunal, are not to be interfered with the High Court in its writ jurisdiction under Article 226 of the Constitution. [(1962) 1 LLJ 382 (SC)]

No compensation shall be paid to a workman who has been laid off -

(i) if he refuses to accept any alternative employment in the same establishment from which he has been laid off, or in any other establishment belonging to the same employer, situate in the same town or village or situate within a radius of five miles from the establishment to which he belongs, if in the opinion of the employers such alternative employment does not call for any special skill or previous experience and can be done by the workman, provided that the wages which would normally have been paid to the workman are offered for the alternative employment also;

(ii) if he does not himself for work at the establishment at the appointed time during normally working hours at least once a day;

(iii) if such laying off is due to a strike or slowing down production on the part of workmen in another part of the establishment [Zhandu Pharmaceutical Works Ltd. v. R. N. Kulkarni and Co., (1966) 1 LLJ 560 (Bom)]

Ans. According to Section 25-F, no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer unless :

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice wages for the period of the notice. But no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the retrenchment of service;

(b) the workman has been paid at the time of retrenchment, compensation which shall be equivalent of fifteen days average pay for every complete year of service or any part thereof in excess of six months; and

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

The provisions of Section 25-F (a) and (b) are mandatory and any order of retrenchment in violation of these conditions is invalid [Delhi Cloth and General Mills Co. Ltd. v. Sambhu Nath Mukherji, AIR 1978 SC 8].

In the case of Workmen of Mukund Iron and Steel Works Ltd. v. Mukund Iron and Steel Works Ltd. (1982) 1 LLJ 140 (Bom), the Court held that where the employment opportunities are in existence retrenchment cannot be permitted on the ground that the workmen are not working to cooperate to give agreed norms of production. Such lack of co-operation cannot be the basis for retrenchment where no enquiry has been made and opportunity to dispute the allegations is not given.

Ans. Section 25-FF deals with the cases where the ownership of management of undertaking is transferred. Such a transfer may be effected either by agreement or by operation of law. The section provides that in all cases which do not fall under the proviso to the Section, on a transfer of ownership or of management of an industrial undertaking, every workman who has been in continuous service for not less than one year in that undertaking immediately proceeding such transfer, shall be entitled to notice and compensation in accordance with the provisions of Section 25-F as if the workman had been retrenched.

Section 25-FF of the Act entitles a workman to notice and compensation in case of transfer of the ownership or management, but before a workman is so entitled, the following conditions must cumulatively be satisfied :-

(a) there should be a transfer of ownership or management of an undertaking either :

(i) by agreement, or

(ii) by operation lf law;

(b) such undertaking should be an industry within the meaning of Section 2 (j) and the workman claming compensation should be a workman within the meaning of Section 2 (s), and

(c) such workman should have put in minimum one year of continuous service within the meaning of Section 25-B, immediately before the transfer of the ownership or management of the undertaking.

The proviso to the Section lays down that in the following cases a workman will not be entitled to benefits under Section 25-FF in case of transfer or change in the ownership or management -

(a) if the service of the workman is not interrupted by such transfer;

(b) if the terms and conditions applicable to the workman after the transfer is not in any way less favourable than the previous one; and

(c) if the new employer is, under the terms of such transfer, otherwise legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by transfer.

In "Anakapalle Co-operative Agricultural and Industrial Society Ltd. v. Workmen" AIR 1963 SC 1489 it was observed that the first part of Section 25-FF postulates that on a transfer of the ownership or management of an undertaking, the employment of workmen engaged by the said undertaking comes to an end, and it provides for the payment of compensation to the said employees because of the said termination of their services, provided, of course, they satisfied the test of the length of service prescribed by the section. The said part further provides the manner in which and the extent to which the said compensation has to be paid. Workmen shall be entitled to notice and compensation in accordance with the provisions of Section 25-F, as if they had been retrenched. The last clause clearly brings out the fact that the termination of the services of the employees does not in law amount to retrenchment. The Legislature, however, wanted to provide that though such termination may not be retrenchment technically so called, nevertheless the employees in question whose services are terminated by the transfer of the undertaking should be entitled to compensation, and so, Section 25-FF provides that on such termination compensation would be paid to them as if the said termination was retrenchment. The words "as if" bring out the legal distinction between retrenchment defined by Section 2(oo) as it was interpreted by the Supreme Court in AIR 1957 SC 121 and termination of services consequent upon transfer with which it deals. In other words, the section provides that though termination of services on transfer may not be retrenchment, the workmen concerned are entitled to compensation as if the said termination was retrenchment. This provision has been made for the purpose of calculating the amount of compensation payable to such workmen; rather than provide for the measure of compensation over again. Section 25-FF makes a reference to Section 25-F for that limited purpose, and, therefore, in all cases to which Section 25-FF applies, the only claim which the employees of the transferred concern can legitimately make is a claim for compensation against their employers. No claim can be made against the transferee of the said concern.

See also :- "Gurmail Singh v. State of Punjab" AIR 1993 SC 1388

Ans. Section 25-G lays down the procedure for retrenchment and has given legislative recognition to the principle, "last come, first go" and the section also lays down that when it is proposed to retrench workmen on the ground of surplusages, the rule that the last to come should be the first to go should ordinarily be observed. But this rule is applied subject to the limitation that it operates only within the establishment in which the retrenchment is to be made, and to the category department is closed this rule cannot be applied.

Section 25-G prescribes the following conditions, which must be fulfilled before a workman can claim the benefit and protection given by the provision :-

(a) The workman should be a workman within the meaning of Section 2(s) of the Act.

(b) He should be citizen of India.

(c) The industrial establishment should be an industry within the meaning of Section 2 of the Act.

(d) There should be no arrangement to the contrary to the rule of "last come first go".

In the case of Madho Solm Land v. Chase Bright Steel Ltd. (1984) 1 LLJ 517 (Bom), it was held that when senior employee is retrenched, retaining his juniors, it is open to the employer to establish that the rule of "last come first go" was departed from for sound and good reasons.

Where any of the workmen is retrenched, and the employer proposes to take into his employment any persons he shall in such manner as may be prescribed, give an opportunity to the retrenched workmen to offer themselves for re- employment. Section 25-H provides for preference to retrench employees in getting employment. The re-employment should be on the same terms and conditions.

The following conditions should be satisfied for the application of Section 25-H :-

(a) the workman should be `retrenched' before the re-employment;

(b) he should be a citizen of India;

(c) he should offer himself for re-employment in response to the notice by the employer; and

(d) he should be from the same category in which the employment is proposed.

In "Workmen, A.B. Koyla Kamgar Union v. M/s. Bharat Coking Coal Ltd." AIR 2001 SC 1994 it was observed that the claim made in the present case was one relating to employment under Section 25H of the Act which merely creates an obligation that a retrenched workman will have preference when fresh appointments are made, an opportunity will have to be given to them to offer themselves for re-employment. Such an obligation does not fall within the scope of Section 9 of the Nationalization Act. In such a case, it could not be said that as soon as transfer has been effected under Section 25-FF of the Act all the employees became entitled to claim compensation and thus who had been paid such compensation will not be entitled to claim re-employment under Section 25-H of the Industrial Disputes Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment when the workmen had been paid compensation only under Section 25-F and not under Section 25-FF of that Act on transfer of the colliery to the present management.

In "Cawnpore Tannery Ltd., Kanpur v. S. Guha" AIR 1967 SC 667 it was observed that though Section 25-H now statutorily recognizes the right of a retrenched workman to be given an opportunity of re-employment when the employer has to employ additional hand, the principle underlying it was generally recognised by industrial adjudication prior to its enactment.

When the employer had retrenched a worker on the ground of his becoming surplus, the retrenched worker had to be given an opportunity to join service if and when the employer had occasion to employ another hand. The principle was regarded, as of general application on the ground that it was based on considerations of fairplay and justice.

Ans. Sixty days' notice to be given of intention to close down any undertaking - (1) An employer who intends to close down an undertaking shall serve, at least sixty days before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking :

Provided that nothing in this section shall apply to -

(a) an undertaking in which -

(i) less than fifty workmen are employed, or

(ii) less than fifty workmen were employed on an average per working day in the preceding twelve months;

(b) an undertaking set-up for the construction of buildings, bridges, roads, cannals, dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do, by order direct that provisions of sub-Section (1) shall not apply in relation to such undertaking for such period as may be specified in the order.

Compensation to workmen in case of closing down of undertaking. According to sub-section (1) of Section 25-FFF where an undertaking is closed down for any reason every workman is entitled to:

(1)(i) Notice; and (ii) compensation, provided that such workman has been in continuous service for not less than one year in that undertaking immediately before the closure. The right of a workman under this sub-section is subject to the provisions of sub-section (2); and.

(2) When any compensation under thisfsection is payable it shall be paid in accordance with the provision of Section 25-F as if the workmen had been retrenched. Where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of Section 25-F shall not exceed his average pay for three months. If the closure was on account of unavoidable circumstances beyond the control of the employer and the workman fulfils the conditions under Section 25-FFF, the workman shall be entitled to compensation, which shall be determined by reference to Section 25-F (b) of the Act.

Explanation. - An undertaking which is closed down by reason merely of financial difficulties (including financial loss); or accumulation of undisposed of stocks; or the undertaking is engaged in mining operations, exhaustion of the minerals in the area in which such operation are carried on,

shall not be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to this sub-section.

Sub-section (1-A) of this section provides as follows :-

(1A) Notwithstanding anything contained in sub-section (1), where an undertaking engaged in mining operations is closed down by reason merely carried on, no workman referred to in that sub-section shall be entitled to any notice or compensation in accordance with the provisions of Section 25-F, if -

(a) the employer provides the workman with alternative employment with effect from the date of closure at the same remuneration as he was entitled to receive, and on the same terms and conditions of service as were applicable to him, immediately before the closure;

(b) the service of the workman has not been interrupted by such alternative employment; and

(c) the employer is, under the terms of such alternative employment or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by such alternative employment.

Ans. Conditions of service, etc., to remain unchanged. - The purpose of Section 33 is to maintain status quo during the pendency of certain proceeding under this Act. It ensures against victimization of workman by the employer.

Section 33 (1) applies during the pendency of the following proceedings, namely :-

(a) conciliation proceedings before a Conciliation Officer or a board;

(b) any proceeding before an arbitrator; and

(c) Any proceeding before a Labour Court, Tribunal or National Tribunal.

The above proceedings must be in respect of an industrial dispute. While any such proceeding is pending, the employer is prohibited to take the following actions, except with express permission in writing of the authority before which the proceeding is pending :

(a) The employer shall not in regard to any matter connected with the dispute, alter to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) The employer shall not discharge, dismiss or otherwise punish for any misconduct connected with the dispute any workmen concerned in such dispute.

Section 33(2) provides that the employer may take the following action during the pendency of any proceeding in respect of an industrial dispute :-

(a) he may alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding;

(b) he may discharge or punish, whether by dismissal or otherwise, that workman for any misconduct not connected with the dispute.

Section 33(3) deals with the right of protected workmen. The employer shall not take the following action against a protected workman in regard to any matter not connected with the pending dispute :-

(i) The employer shall not alter to the prejudice of protected workman the conditions of service applicable to him immediately before the commencement of such proceedings.

(ii) The employer shall not discharge, or punish, whether by dismissal or otherwise such protected workman.

It is further provided that the prohibition operates during the pendency of any proceedings in respect of an industrial dispute. No alteration in the conditions of service, discharge or dismissal, etc. can be made without the express permission in writing of the authority before which the proceeding is pending.

Section 33(4) provides that in every establishment the number or recognised protected workmen shall be one percent of the total numbers of workmen employed therein. But there shall be a minimum of five and a maximum of one hundred protected workmen. The appropriate Government is empowered by this sub-section to make rules for choosing and recognizing the protected workman. It is also empowered to make rules for distribution of protected workmen among various trade unions connected with the establishment.

Section 33(5) deals with the disposal of an application made by the employer for approval of the action taken by him to Conciliation Officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal. The authority shall without delay hear the application and dispose it within a period of three months from the date of receipt of such application. It means that a proper order in respect of such application should be passed as expeditiously as possible on the application.

Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing extend such further period as it may think fit :

Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings beings completed.

Section 33-A of the Industrial Disputes Act, provides that where an employer contravenes the provisions of Section 33, during the pendency of proceedings before a Conciliation Officer, board, an arbitrator, Labour Court Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing in the prescribed manner to such Conciliation Officer or board who shall take it into account in promoting settlement and such arbitrator, Labour Court, Tribunal and National Tribunal on receipt of such complaint that Labour Court, Tribunal or National shall adjudicate upon the complaint as if it were a dispute referred to or pending before it in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly. (The Bhatnagar Municipality v. Alibhai Karimbhai, AIR 1977 SC 1220)

Ans. Section 33-C of the Industrial Disputes Act is an answer to the above question. According to it, where any money is due to workman from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B, the workman himself or, any other person authorised by him in writing in this behalf, or, in the case of death of workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the collector who shall proceed to recover the same in the same manner as an arrear of land revenue.

Every such application be made within one year from the date on which the money became due to the workman from the employer [proviso 1 of Section 33-C (1)]

The second proviso of sub-section (1) lays down that any such application may be entertained after the expiry of the said period of one year if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

Where a workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which benefit should be computed may, subject to any rule that may be made under this Act, be decided by such labour Court as may be specified in this behalf by the appropriate Government, within a period not exceeding three months and the amount so determined may be recovered as mentioned above :

Provided that where the Presiding Officer of a Labour Court considers it necessary or expedient to do so, he may, for the reasons to be recovered in writing extend such period as he may think fit.

For the purpose of computing the money value of benefit, the Labour Court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the labour Court. The labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case.

The appropriate Government has jurisdiction to entertain an application under Section 33-C of the Act and refer it to a particular labour Court specified by it. The labour Court on such reference alone can proceed even if there is no separate application by the workman.

In "State Bank of India v. Ram Chandra Dubey" AIR 2000 SC 3734 it was held that whenever a workman is entitled to receive from his empoyer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit, he can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered, just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. No relief can be granted on application under Section 33-C(2) for computation of back wages on basis of award of reinstatement particularly when it cannot be spelt out from the award of reinstatement that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to which a reference under Section 10 of the Act is made

In "Fabril Gasosa, M/s. v. Labour Commissioner" AIR 1997 SC 954 it is observed that an analysis of the Scheme of Sections 33C (1) and 33C (2) shows that the difference between the two sub-sections is quite obvious. While the former sub-section deals with cases where money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or V-B, sub-section (2) deals with cases where a workman in entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. Thus, where the amount due to the workmen, flowing from the obligations under a settlement, is pre-determined and ascertained or can be arrived at by any arithmetical calculation or simpliciter verification and the only inquiry that is required to be made is whether it is due to the workman or not, recourse to the summary proceedings under Section 33-C(1) of the Act is not only appropriate but also desirable to prevent harassment to the workmen. Sub-section (1) of Section 33-C entitles the workmen to apply to the appropriate Government for issuance of a certificate of recovery for any money due to them under an award or a settlement or under the provisions of Chapter V-A and the Government, if satisfied, that a specific sum is due to the workmen, is obliged to issue a certificate for the recovery of the amount due. After the Government issues the requisite certificate to the Collector, the Collector is under a statutory duty to recover the amounts due under the certificate issued to him. The procedure is aimed at providing a speedy, cheap and summary manner of recovery of the amount due, which the employer has wrongfully withheld.

Ans. Section 34 of the Industrial Disputes Act provides that no Court shall take cognizance of any offence punishable under this Act or of the abatement of any such offence save on complaint made by or under the authority of the appropriate Government and no Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this Act.

Sub-section (1) of Section 34 confers two powers on the appropriate Government :-

(1) To make complaint, and

(2) To authorize the making of a complaint.

The Appropriate Government may even authorize a private person to make a complaint of an offence punishable under the Act.

No doubt the control of proceedings as regards the actual complaint is to be held by the Government and the person authorised cannot claim to, as it were, extend to authority given to him in general form according to his own view of the particular offence (AIR 1950 Cal. 116).

Sub-section (2) of Section 34 lays down the form of trying the offence under the Act. According to it, no Court inferior to that of Presidency Magistrate or Magistrate of First class shall try any offence punishable under this Act.

Ans. Sub-section (1) of Section 35 gives protection to person refusing to take part in illegal strikes or lock-outs against the following actions :-

(a) expulsion from the Trade Union or society;

(b) deprivation of any right or benefit to which he or his legal representatives would otherwise be entitled; or

(c) Liability to be placed in any respect either directly or indirectly under any disability or any disadvantage as compared with other members of the Trade Union or Society.

Power of Civil Court. - Sub-section (2) enables the Civil Court to give relief to the persons expelled from membership of a Trade Union or society of being restored to such membership and also award compensation or damages in its discretion payable out of the funds of the Trade Union or society, if such a person has been expelled from the Trade Union or the Society for his refusal to take part in any illegal strike or lock-out as envisaged under sub-section (1) of Section 35.

Ans. Section 36 deals with the representation of parties in disputes. Sub- section (1) of Section 36 gives right to workman to be represented in any proceeding under this Act. According to this sub-section a workman is entitled to be represented in any proceedings by :-

(a) any member of the executive or other office-bearer of a registered union of which he is a member;

(b) any member of the executive or other oOffice-bearer of a federation of the trade unions to which the trade union referred to in clause (a) is affiliated;

(c) Where the worker is not a member of any trade union, by any member of the executive or other office-bearer of any trade union connected with or by any other workman employed in the industry in which the worker is employed and authorised in such manner as may be prescribed.

An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by -

(a) an Officer of an association of employers of which he is a member,

(b) an Officer of a federation of associations of employers to which the association referred to in clause (a) is affiliated,

(c) where the employer is not a member of any association of employers, by an Officer of any association of employers connected with or any other employer engaged in the industry in which the employer is engaged and authorised in such manner as may be prescribed.

Legal practitioners are allowed to represent only when - (i) consent has been given by the other party, and (ii) with the leave of the labour Court.

Ans. To give effect to the new ideology the Industrial Employment (Standing Orders) Act, 1946 was enacted by the Central Government. The preamble of the Act makes it amply clear that the Standing Order shall deal with the "conditions of employment of workers in industrial establishment".

The object of the Standing Orders is to make it clear to both the parties on what terms and conditions the workmen are offering to work and the employer is offering to engage them. This Act requires the employers to define the conditions of service in their establishments and to reduce them to writing and to get them compulsorily certified with a view to avoid unnecessary industrial disputes. The Act applies to every industrial establishment :-

(1) situated within the Indian Union, except the State of Jammu and Kashmir;

(2) employing 100 or more workmen on any day of the preceding 12 months.

The Appropriate Government may by a Gazette notification apply the Act to any industrial establishment employing such number of persons as specified in the notification. The number of employees fixed by the Government may be less than 100. But the Appropriate Government must give two months' prior notice of its intention to make any such extension of the Act.

The Act does not apply to the following establishments :-

(1) Any industry to which the provisions of Chapter VII of the Bombay Industrial Disputes Act, 1946 apply;

(2) Any industrial establishment to which the provisions of the M. P. Industrial Employment (Standing Orders) Act, 1961 apply :

Provided that notwithstanding anything contained in the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 the provisions of the Act shall apply to all industrial establishments under the control of the Central Government.

The Act does not apply to such workmen employed in any industrial establishment as are covered by the following rules and regulations :-

(1) The Fundamental and Supplementary Rules;

(2) The Civil Services (Classification, Control and Appeal) Rules;

(3) The Civil Services (Temporary Service) Rules;

(4) The Revised Leave Rules;

(5) The Civil Services Regulations;

(6) The Civilians Defence (Classification, Control and Appeal) Service Rules;

(7) The Indian Railway Establishment Code; or

(8) Any other Rules or Regulations that may be notified in this behalf by the Appropriate Government in the Official Gazette. (Section 13-B)

Section 14 of the Act authorizes the Appropriate Government to exempt conditionally or unconditionally any industrial establishment or class of industrial establishments from all or any of the provisions of this Act.

Ans. (i) Appellate Authority. :- "Appellate Authority" means an authority, appointed by the Appropriate Government by notification in the Official Gazette, to exercises in such area as may be specified in notification, the functions of an appellate authority under this Act :

Provided that in relation to an appeal pending before an Industrial Court or other authority immediately before the commencement of the Industrial Employment (Standing Orders) Amendment Act, 1963, that Court or authority shall be deemed to be the appellate authority.

(ii) Appropriate Government :- "Appropriate Government" means in respect of Industrial establishment under the control of the Central Government or Railway Administration or in a major port, or oilfield, the Central Government and in all other cases, the State Government.

It is to be noted here that where any question arises as to whether any industrial establishment is under the control of the Central Government, the question is to be decided by the Central Government. Central Government may decide this question either on a reference made to it by employer or the workman, or on its own motion. While deciding this question, the Central Government will give an opportunity of hearing to the parties. Such decision shall be final and binding on the parties.

(iii) Certifying Officer :- "Certifying Officer" means a labour commissioner or a Regional labour commissioner and includes any other Officer appointed by the appropriate Government by notification in the Official Gazette to perform all or any of the functions of a certifying Officer under this Act.

The definition given in the Act mentions three persons, who may be certifying Officer :-

(a) Labour Commissioner, or

(b) Regional Labour Commissioner, or

(c) Any other Officer appointed by the appropriate Government.

In case the Appropriate Government appoints any other Officer than the labour commissioner or Regional labour commissioner, the appointment is to be notified in the Official Gazette by the Appropriate Government.

(iv) Employer :- "Employer" means the owner of an industrial establishment to which this Act, for the time being, applies, and includes -

(i) in a factory any person named under clause (f) of sub-section (1) of Section 7 of the Factories Act, 1948, as manager of factory;

(ii) in any industrial establishment under the control of any department of any Government of India, the authority appointed by such Government in this behalf, or where no authority is so appointed the head of the department;

(iii) in any other industrial establishment, any person responsible to the owner for the supervision and control of the industrial establishment;

(v) Industrial Establishment. - "Industrial Establishment" means :-

(i) an industrial establishment as defined in clause (ii) of Section 2 of the Payment of Wages Act, 1956, or

(ii) a factory as defined in clause (m) of Section 2 of the Factories Act, 1948, or

(iii) a railway as defined in sub-section (4) of Section 2 of the Indian Railway Act, 1890, or

(iv) the establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employees workmen.

(vi) Workman :- "Workman" means any person (including an apprentice) employed in any industrial establishment to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, but does not include any such person -

(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950 or the Navy (Discipline) Act, 1957; or

(ii) who is employed in the police service or as an Officer or other employees of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in supervisory capacity, draws wages exceeding five hundred rupees per month or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Ans. Section 3 of Industrial Employment (Standing Orders) Act, 1946 provides this regard as :-

(1) Within six months from the date on which this Act becomes applicable to an industrial establishment the employer of that establishment shall submit to the Certifying Officer five copies of the Draft Standing Orders proposed by him for adoption in his industrial establishment.

(2) The Draft Standing Orders must make provision for every matter, set out in the Schedule, which may be applicable to the industrial establishment. In those cases where Model Standing Orders have been prescribed the Draft Standing Orders shall be, so far as practicable, in conformity with such model.

(3) The Draft Standing Orders submitted under this section shall be accompanied by a statement giving prescribed particulars of the workmen employed in Industrial establishment. The name of the Trade Union, if any to which workmen belong, should also be sent along with the Draft Standing Orders.

(4) A group of employers in similar industrial establishments may submit a joint draft of Standing Orders under this Section provided they satisfy the conditions, if any prescribed in this respect.

In "Rohtak and Hissar Districts Electric Supply Co. Ltd. v. State of U.P." AIR 1966 SC 1471 it was observed that Under Section 3 (2) of the Act the employers have to frame draft Standing Orders and they must normally cover the items in the Schedule to the Act. If, however, it appears to the appropriate authorities that having regard to the relevant facts and circumstances, it would not be unfair and unreasonable to make a provision for a particular item, it would be competent for them to do so; but the employer cannot insist upon adding a condition to the Standing Order which relates to a matter which is not included in the Schedule. Section 3 (2) of the Act specifically requires that the Standing Orders shall be, as far as practicable, in conformity with the Model Standing Orders. These words indicate that the appropriate authority may permit departure from the Model Standing Orders if it satisfied that insistence upon such conformity might be impracticable. This fact also shows that in a given case, the appropriate authority may permit departure from the Model Standing Orders and may come to the conclusion that one or the other of the conditions included in the Model Standing Orders may not, for the time being, be included in the Standing Orders of any particular establishment. AIR 1960 SC 665, Rel. on.

Ans. Section 4 of the Act lays down the conditions of certification of Standing Orders. It says : "Standing Orders shall be certifiable under this Act, if -

(a) provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment; and

(b) the Standing Orders are otherwise in conformity with the provisions of this Act;

And it shall be the function of the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders".

Section 5 of the Act lays down the procedure to be followed by the Certifying Officer on receipt of the Draft Standing Orders. The following are the steps to be taken by the certifying Officer before final certification of standing orders :-

(a) To send a copy of draft standing orders together with a notice to the Trade Union or workmen to file objections within 15 days of the receipt of the notice,

(b) To give the employer and the Trade Union or any representatives of the workmen an opportunity of being heard,

(c) To decide whether or not after hearing them, any modification or addition to the draft is necessary to render this draft certifiable under the Act and make an order in writing to this effect,

(d) To make the modifications or additions according to his orders passed under sub-section (2) of Section 5 in the draft; and finally,

(e) To certify the Standing Orders authenticate in the prescribed manner and send copies of the certified order and of his order under sub- section (2) of Section 5 to the employer and the Trade union or any other representative of the workmen.

In "Bagalkot Cement Co. Ltd., v. R.K. Pathan" AIR 1963 SC 439 it was observed that Under Section 4, the Standing Orders, required under Section 3 to be submitted, become certifiable if provisions are made therein for every matter set out in the Schedule and they are found to be otherwise in conformity with the provisions of the Act. After the amendment of this section made in 1956 the Legislature has imposed upon the Certifying Officer and the appellate authority the duty to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. Prior to the amendment, it was not open to the said authorities to examine the fairness of the Standing Orders submitted by the employer. The result of Section 4. therefore, is that the Standing Orders have to provide for all the topics specified in the Schedule and they have to be in conformity with the Act. The appropriate authorities can examine their reasonableness and they can make suitable modifications in accordance with their decision.

Ans. Section 6 of the Industrial Employment (Standing Orders) Act, 1946 lays down :

(1) Any employer, workman, Trade union, or other prescribed representative of the workmen, aggrieved by the order of the Certifying Officer under sub-section (2) of Section 5, may within 30 days from the date on which copies are sent under sub-section (3) of that section, appeal to the appellate authority. The appellate authority, whose decision shall be final, by order in writing confirm the Standing Orders either in the form certified by the Certifying Officer or after amending the said Standing Orders by making such modifications thereof or additions thereto as it thinks necessary to render the Standing Orders certifiable under this Act.

(2) The appellate authority shall, within seven days of its order under sub-section (1) send copies thereof to the Certifying Officer, to the employer and to the Trade Union or other prescribed representatives of the workmen accompanied, unless it has confirmed with amendment the standing orders as certified by it and authenticated in the prescribed manner.

The appellate authority shall have the powers of a Civil Court for the purposes of receiving evidence, administering oaths, enforcing attendance of witness and compelling the discovery and production of documents, and shall be deemed to be a Civil Court within the meaning of Sections 345 and 346 of the Code of Criminal Procedure, 1973. [Section 11(1)]

Ans. Duration and modification of Standing Orders :- Section 10 lays down the provisions in regard to the duration and the manner in which the same can be modified. Sub-section (1) of Section 10 provides that the standing orders finally certified under this Act shall not be liable for modification until the expiry of 6 months from the date on which the standing orders came into operation. However, there is an exception to this general rule. Standing Orders can be modified before the expiry of 6 months period from the date of operation, if the employer and the workmen or a trade union or other representative body of the workmen agree to make the modifications.

Sub-section (2) of Section 10 makes provision subject to the provisions of sub-section (1) in regard to the question of modification of the Standing Orders. In case the employer or the workmen, or a trade union or other representative body of the workmen desires a modification, either, he or they may apply to he Certifying Officer to have the standing orders modified. Such application for modification shall be accompanied by :

(a) five copies of the modification proposed to be made, and

(b) a certified copy of agreement if the modifications are proposed to be made by agreement between the employer and the workmen.

To attract the provisions for modifications, it is necessary to show that the existing standing orders are not suitable in view of a new set of circumstances which have arisen, such as -

(1) when the certified Standing Orders result in inconvenience, hardship and anomaly; or

(2) when it is realized later on that some important fact was ignored at the time of certification; or

(3) when the applicant feels that a modification will be more beneficial.

Procedure. - Sub-section (4) of Section 10 provides that all the provisions, applicable in the matter of certification of standing orders, shall apply in respect of an application under Section 10 (2) for the modification of the Standing orders.

Exception. - Sub-section (4) of Section 10 is an exception to the application of sub-section (2) of the said section to an industrial establishment in respect of which the Appropriate Government is the Government of the State of Gujarat or the Government of the State of Maharashtra.

In "Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S. S. Railway Workers Union" AIR 1969 SC 513 it was observed that Section 10 does not state that once a standing order is modified and the modification is certified, no further modification is permissible except upon proof that new circumstances have arisen since the last modification. As a matter of fact the legislature has not incorporated any words in the sub-section restricting the right to apply for modification except of course the time limit of six months in sub- section (1). Section 6 no doubt lays down that the order of the appellate authority in an appeal against the order of the certifying Officer under Section 5 is final but that finality is itself subject to the application under Section 10(2). Therefore it cannot be urged that the finality of the order under Section 6 was indicative of a condition precedent to the jurisdiction under Section 10 (2) to entertain an application for modification on a new set of circumstances having arisen in the meantime.

Section 6, when read with Section 12 indicates that the finality given to the certification by the appellate authority is against a challenge thereof in a Civil Court. But the finality given to the appellate authority's order is subject to the modification of those very standing orders certified by him. Section 10 itself does not lay down any restriction to the right to apply for modification. Apart from the right to apply for modification under the Act, the workmen can raise an industrial dispute with regard to standing orders. There is nothing in the Industrial Disputes Act restricting the right to raise such a dispute only when a new set of circumstances has arisen. If that right is unrestricted it is not possible that the very legislature which passed both the Acts could have, while conferring the right on the workmen individually, restricted that right.

Power of a certifying Officer. - Sub-section (1) of Section 11 lays down that every Certifying Officer and appellate authority shall have all the powers of a Civil Court for the purpose of :-

(a) receiving evidence;

(b) administering oaths;

(c) enforcing the attendance of witnesses; and

(d) Compelling the discovery and introduction of documents.

Sub-section (1) of Section 11 also provides that every Certifying Officer and appellate authority shall be deemed to be a Civil Court within the meaning of Sections 345 and 346 of the Code of Criminal Procedure, 1973.

Power to correct clerical or arithmetical mistakes. - Sub-section (2) of Section 11 lays down that clerical or arithmetical mistakes in any order passed by a Certifying Officer or appellate authority, or errors arising therein from any accidental slip or omission may, any time, be corrected by that Officer or authority or the successor-in-Officer of such Officer or authority as the case may be.

Ans. Section 10-A. Payment of subsistence allowance. - (1) Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance -

(a) at the rate of fifty percent of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and

(b) at the rate of seventy five per cent of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.

(2) If any dispute arises regarding the subsistence allowance payable to a workman under sub-section (1) the workman or the employer concerned may refer the dispute to the labour Court, constituted under the Industrial Disputes Act, 1947 (14 of 1947), within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situate and the labour Court to which the dispute is so referred shall, after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties.

(3) Notwithstanding anything contained in the foregoing provisions of this Section, where provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this Section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State.

In "B.D. Shetty v. M/s. Ceat Ltd." AIR 2001 SC 2953 it was observed that it is clear from Section 10A that the employer is required to pay subsistence allowance to a workman suspended pending inquiry at the the rate of 50% of wages for the first 90 days and at the rate of 75% of wages for the remaining period of suspension, if delay in completion of disciplinary proceedings is not directly attributable to the conduct of the workman concerned. If under Section 10A(1)(b) of Act only the word `attributable to' were used, the position would have been different but prefixing the word `directly' to the words `attributable to' makes a drastic difference to emphasise that in order to deny a workman subsistence allowance at the rate of 75% the delay should be directly attributable to the conduct of such workman in completion of disciplinary proceedings and not that every kind of delay is covered by the said provision. If that was the intention of the legislature there was no need for emphasis by adding the word `directly' and instead they would have simply used the words `attributable to'. In the field of interpretation of statutes the Courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. Further, it cannot be said that word or words used in a statute are either unnecessary or superfluous unless there are compelling reasons to say so looking to the Scheme of the statute having regard to the object and purpose sought to be achieved by it. In this view, the use of the word `directly' in the provision has to be given meaning and effect in the context of the said provision under the Scheme of the Act. A plain reading and clear understanding of Section 10-A(1)(b), excludes the delay in completion of disciplinary proceedings caused on account of order granted by a competent Court from the mischief of the said provision. It is only the delay that is directly attributable to the workman is covered by the said provision.

Ans. Section 13 of Act lays down that :

(1) An employer who fails to submit Draft Standing Orders as required by Section 3, or who modifies his standing orders otherwise than in accordance with Section 10, shall be punishable with fine which may extend to five thousand rupees, and in the case of a continuing offence with a further fine which may extend to rupees two hundred per day after the first during which offence continues.

(2) An employer who does any act in contravention of the standing orders finally certified under this act for his industrial establishment shall be punishable with fine which may extend to one hundred rupees, and in the case of a continuing offence with a further fine which may extend to twenty five rupees for every day after the first during which the offence continues.

(3) No prosecution for an offence punishable under this Section shall be instituted except with the previous sanction of the Appropriate Government.

(4) No Court inferior to that of a Metropolitan Magistrate or judicial Magistrate of second class shall try any offence under this Section.

Ans. History of Trade Union :- Signs of Trade Union were firstly seen in year 1890 when association of Mill workers was formed by name of "Bombay Mill- hands Association." However progress of trade union movement in India during pre-independence period was not much but there has been tremendous trade union activities during post-independence period.

Industrialization around the world has created a large labour force. In the early stages of industrialization, the labour class lacked social coherency to organize themselves in an orderly manner to fight against the evils of the system in which they found themselves entrapped not of their own choosing but because of the compelling forces of the time. There was exploitation of workers due to various reasons like - State policy of laissez faire (Let things be; free economy with minimum of State control), the doctrine of freedom of contract, the prevalence of hire and fire rule, etc.

The trade union movement has emerged as a result of growing complexities of economic structure, growth of class-consciousness and attainment of common objectives among the working class.

Objects and Function of Trade Unions The prosperity of an industry depends upon the co-operation of its two components - the capital and the labour. As disputes between the capital and the labour are inevitable so the object of any industrial legislation is to ensure smooth relationship between the two and to strive for settlement of any dispute by resorting to negotiation and conciliation. The importance of the trade unions lies in the fact that they encourage such collective bargaining as it ensures better terms and conditions of employment to the labour, and at the same time endeavours for maintenance of good relations between employer and employees.

The trade union regulates the relations between the workers and the employers, and the workers and the State, in matters of mutual concern such as the terms and conditions of employment, regulation of wages and other allied matters such as social welfare schemes, etc.

The trade union is essentially a bargaining agent by collective actions and, therefore, collective bargaining is the natural outcome of a trade union action in order to augment the welfare of its members and the trade it represents.

Thus, the Trade Union basic function is to protect the legitimate interest of the working classes. The National Commission on Labour on the future role of the Trade Union movement in India has made the following recommendations;

(i) to secure for workers fair wages :

(ii) to safeguard security of tenure and improve conditions of service;

(iii) to enlarge opportunities for promotion and training;

(iv) to improve working and living conditions;

(v) to provide for educational, cultural and recreational facilities;

(vi) to co-operate in and facilitate technological advance by broadening the understanding of workers on its underlying issues;

(vii) to promote identity of interests of the workers with their industry;

(viii) to offer responsive co-operation in improving trends of production and productivity, discipline and high standard of quality; and gradually,

(ix) to promote individual and collective welfare.

The Trade Unions in India are governed by the Trade Unions Act, 1926 which was primarily enacted to accord protection to the union leaders for the acts done by them in connection with the legitimate trade union activities.

The Act inter alia provides for the following :-

(a) It legalizes Trade Union and gives it corporate personality (Section 13)

(b) It provides for their registration (Section 4-8).

(c) It gives certain immunities to a registered trade union (Section 14-18).

(d) It gives Trade Union the right to participate in political activities (Section 16)

(e) It allows the Trade Union to associate outsiders with it (Section 22).

The important fallout the Trade Unions Act, 1926 is that it indirectly gives the workers :-

(a) the right to go on a peaceful strike, and

(b) To engage in collective bargaining.

Further the collective agreement arrived at between workmen and employer is binding on both by virtue of Section 18(1) of the Industrial Disputes Act, 1947.

Ans. (a) Appropriate Government :- " The Appropriate Government" means in relation to Trade Unions whose objects are not confined to one State, the Central Government and in relation to other Trade Unions the State Government.

(b) Executive :- "Executive" means the body; the name called, to which the management of the affairs of a Trade Union is entrusted.

(c) Registered Office :- "Registered Office" means that Office of a Trade Union, which is registered under this Act as the Head Office thereof.

(d) Registrar :-"Registrar" means a Registrar of Trade Unions appointed by the Appropriate Government under Section 3 and includes in additional or deputy Registrar of Trade Unions, and in relation to any Trade Union means, the Registrar appointed for the State in which the head or registered office as the case may be of the Trade Union is situated. [Section 2 (f)]

(e) Trade Dispute :- "Trade Dispute" means any dispute between employers and workman or between workmen and workmen, or between employers and employers which is connected with the employment or non-employment, or the terms of employment or the conditions of labour, of any person and workmen means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises. [Section 2(g)]

(f) Trade Union :- "Trade Union" means any combination whether temporary or permanent formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen or between employers and employers imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Union :

Provided that the Act shall not effect;

(i) any agreement between partners as to their own business.

(ii) Any agreement between an employer and those employed by him as to such employment; or

(iii) Any agreement in consideration of the sale of the goodwill of a business or of instruction in any profession, trade or handicraft. [Section 2 (h)]

The definition of the Trade Union as contained in Section 2 (h) of the Trade Union Act, 1926 clearly indicates that it is a combination or association of people based on mutual confidence, understanding and co- operation for safeguarding common interests of the workmen. It may be an association of workmen or employers. It need not be permanent combination; it can be formed even for a shorter period. The primary purpose of the Trade Union is expressly indicated by the definition.

Test of determine whether a union is Trade Union (i) It is the principal object of a combination, which determines whether the combination is a Trade Union or not. The object must be one connected with the regulation of relations between workmen and employer, etc., or imposition of restrictive conditions on the conduct of trade or business of its members.

(ii) However, a union of any persons will not become a Trade Union if they have the above mentioned objects. It is also necessary that the combination be formed either of `workmen or of employers' i.e. the persons are equally important, besides the object. The members of a Trade Union must be workmen of the employer engaged in the conduct of any trade or business in a commercial undertaking, otherwise the definitions in Section 2 (g) and 2 (h) could not apply to them and they could not raise a "trade dispute" nor form a "Trade Union". In other to attract the provisions of the Act both the conditions, namely, workmen engaged or trade or business must be fulfilled.

Ans. Provision to be contained in the rules of a Trade Union. - Every registered Trade Union is required to have written rules dealing with certain matters specified in Schedule II of the Central Trade Union Regulations, 1938. These rules generally determine and govern the relationship between the Trade Union and its members. They also provide guidance for the internal administration of the Trade Union. A Trade Union shall be entitled to registration under this Act, if :-

(1) the executive of the Trade Union is constituted in accordance with the provisions of this Act; and

(2) the rules of Trade Union provide for the following matters, namely :

(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 of which 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 inspection thereof by the office-bearers and members of the Trade Union.

(e) The admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected and also the admission of the number of honorary or temporary member as office- bearers required under Section 22 to form the executive of the Trade Union;

(f) The payment of a minimum subscription by members of the Trade Union which shall not be less than -

(i) one rupee per annum for rural workers;

(ii) three rupees per annum for workers in other unorganized sectors; and

(iii) twelve rupees per annum for workers in any other case;

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

(h) the manner in which the rules shall be amended, varied or rescinded;

(i) the manner in which the members of the executive and the other office-bearers of the Trade Union shall be elected and removed;

(j) the duration of period being not more than three years, for which the members of the executive and other officer-bearers of the Trade Union shall be elected;

(k) the safe custody of the funds of 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 the office- bearers and members of the Trade Union ; and

(l) The manner in which the Trade Union may be dissolved.

Power to call for further particulars and to require alteration of name. - Section 7 of the Act lays down that the Registrar may call for further information for the purpose of satisfying himself that any application made for registration complies with the provisions of Section 5, or that the Trade Union is entitled to registration under Section 6, and may refuse to register the Trade Union until such information is supplied. However, the Registrar can call for such information only from the applicants and not from any other source.

If the name under which the Trade Union is proposed to be registered is identical with that by which any other existing Trade Union has been registered or in the opinion of the Registrar, so nearly resembles such name as to be likely to deceive the public or the members of either Trade Union, the Registrar shall require the persons applying for registration to alter the name of the Trade Union stated in the application and shall refuse to registered the union until such alteration has been made.

Ans. Procedure/Essential conditions for registration. - Before a union can be granted registration, it is required to comply with certain formalities :

(i) It has to be sponsored by at least 7 members who may apply by filing an application for registration to the Registrar of Trade Unions of the State in which the head officer or registered officer of the Trade Union is to be located (Section 30

(ii) All the members applying for registration must subscribe their names to the rules of the Trade Union and also comply with the provisions of the Act relating to registration of unions (Section 4).

(iii) The application for registration should be accompanied with a copy of rules of the Trade Union and a statement of the particulars like name of the Union, its head office address; names, occupations and addresses of members making the application and of the office-bearers of Union (Section 5).

(iv) A trade union is not entitled to registration unless the executive thereof is constituted in accordance with the provisions of the Act, and the rules of the union provide for the following matters (Section 6) - name and objects of Trade Union; the purposes for which the general funds of the union shall be applicable; the maintenance of a list of the members of union; the admission of ordinary and honorary members; a minimum membership subscription of 25 paise per month; the manner of the dissolution of Trade Union, etc.

The written rules framed by the Trade Union making for the above matters generally govern and determine the relationship between the union and its members. They as a matter of fact, provide guidelines for the internal management of the union affairs.

(v) Under the provisions of the Act, at least of the office-bearers must be persons actually engaged or employed in the plant/industry with which the union is concerned.

(vi) The workmen of an establishment can form as many unions as they like. There is nothing in the Act that bars the formation of rivals Unions or requires a union applying for registration to give notice to all existing unions. [Keshoram Rayon Workers Union v. Registrar AIR 1967 Cal 597] When a union seeks registration, all it has to do is to ensure that the provisions of the Act, Rules and regulations made there under relating to registration of Trade Union has been complied with by the body of workers applying for registration.

Duties and Powers of Registrar The primary function of the Registrar is to examine the applications made to him for registration and look at the objects of the unions for which it may be formed. On compliance of statutory conditions as provided in the Act, he shall grant registration certificate to the union (Sections 8 and 9)

The registration will be refused by the Registrar if the name under which a Trade Union is proposed to be registered is identical with that of any existing Trade Union or so nearly resembles such name as to be likely to deceive the public or the members of the either Trade Union. In such a case, the Registrar may require the persons applying for such registration to change the name of union, and it shall be registered only after such alteration. The Registrar may also ask for further information which he thinks necessary for the purpose of satisfying himself that the application complies with the provisions of Sections 5 and 6 of the Act (Section 7).

Section 8 imposes a statutory duty upon the Registrar to register the Trade Union on being satisfied that the Trade Union has complied with the requirements of the Act. If the registration is unreasonably delayed (viz., no action taken on application or more than 3 months), writ under Article 226 of the Constitution can be issued. [ACC Rajanka Lime Stone Quarries Mazdoor Union v. Registrar AIR 1958 Pat. 175]

Ans. (1) Any person aggrieved by refusal of the Registrar to register a Trade Union or by the withdrawal or cancellation of a certificate of a registration may, within such period as may be prescribed appeal :

(a) where the head office of the Trade Union is situated within the limits of a presidency town to the High Court, or

(b) where the head office is situated in any other area, to such Court, not inferior to the Court of an additional or assistant judge or principal Civil Court of original jurisdiction as the Appropriate Government may appoint in this behalf for that area.

(2) The appellate Court may dismiss the appeal, or pass an order directing the Registrar to register the Union and to issue a certificate of registration under the provisions of Section 9 or set aside the order for withdrawal or cancellation of the certificate, as the case may be and the Registrar shall comply with such order.

(3) For the purpose of an appeal under sub-section (1) an appellate Court shall, so far as may be, follow the same procedure and have the same powers as it follows when trying a suit under the Code of Civil Procedure, 1908, and may direct by whom the whole or any part of costs of the appeal shall be paid, and such costs shall be recovered as if they had been awarded in suit under the code.

(4) In the event of the dismissal of an appeal by any Court appointed under clause (b) of sub-section (1), the person aggrieved shall have a right of appeal to the High Court, and the High Court shall for the purpose of such appeal, have all the powers of an appellate Court under sub-sections (1) and (3) and the provisions of those sub-sections shall apply accordingly. (Section 11)

Ans. Section 15. Objects on which general funds may be spent. - Section 15 of the Act is in the form of general restraint against expenditure of the general funds of a trade union. The general funds of a registered Trade Union shall not be spent on any other objects than the following, namely :-

(a) the payment of salaries, allowances and expenses to office-bearers of the Trade Union.

(b) The payment of expenses for the administration of the Trade Union including audit of the accounts of the general funds of the Trade Union;

(c) The prosecution or defence of any legal proceeding to which the Trade Union or any member thereof is a party, when such prosecution or defence is undertaken for the purpose of security or protecting any rights of the Trade Union as such or any rights arising out of the relation of any member with his employer or with a person whom the member employs.

(d) The conduct of the trade disputes on behalf of the Trade Union or any member thereof;

(e) The compensation of members for loss arising out of trade disputes;

(f) The allowances to members or their dependants on account of death, old age, sickness accidents or unemployment of such members;

(g) The issue of, or the undertaking of liability under policies of assurance on the lives of members, or under policies insuring members against sickness, accident or unemployment;

(h) The provision of educational, social or religious benefits for members (including the payment of the expenses of general or religious ceremonies for deceased members) or for the dependants of members;

(i) The upkeep of a periodical published mainly for the purpose of discussing questions affecting employers or workmen as such:

(j) The payment in furtherance of any of the object on which the general funds of the trade union may be spent, of contributions to any cause intended to benefit workmen in general provided that the expenditure in respect of such contributions in any financial year shall not at any time during that year be in excess of one-fourth of the combined total of the gross income which has upto that time accrued to the general funds of the Trade Union during that year and of the balance at the credit of those funds at the commencement of that year; and

(k) Subject to any conditions contained in the notification, any other object notified by the Appropriate Government in the Official Gazette.

Separate funds for Civil and political interest of the members of Trade Union :- According to Section 16 of the Act, a registered Trade Union may constitute a separate fund, from contributions separately levied for or made to that fund, from which payments may be made for the promotion of the civil and political interest of its members, in furtherance of any of the objects specified below namely :-

(a) the payment of any expenses incurred, either directly or indirectly, by a candidate or a prospective candidate for election as a member of any legislative body constituted under the Constitution or of any local authority, before, during, or after the election in connection with his candidature or election; or

(b) the holding of any meeting or the distribution of any literature or documents in support of any such candidate or prospective candidate; or

(c) the maintenance of any person who is a member of any legislative body constituted under the constitution or of any local authority; or

(d) the registration of electors or the selection of a candidate for any legislative body constituted under the Constitution or any local authority; or

(e) the holding of political meetings of any kind, or the distribution of political or political documents of any kind [Section 16 (1) and (2)]

The Act further provides that no member shall be compelled to contribute to the fund constituted as above, and a member who does not contribute to the said fund shall not be excluded from any benefits of the Trade Union, or placed in any respect either directly or indirectly under any disability or at any disadvantage as compared with other members of the Trade Union, except in relation to the control or management of the said fund, by reason of his not contributing to the said fund, and contribution to the said fund shall not be made a condition for admission to the Trade Union. [Section 16(3)]

The provisions of sub-section (3) of Section 16 are meant for avoiding any pressure on the members for contributing to the separate fund for political purposes. Even if a person does not contribute to such fund, he cannot be denied any benefit under the Trade Union. The Trade Unions cannot make the contribution to this fund as a condition for admission to the membership.

Ans. Sections 17 to 19 of the Indian Trade Union Act, 1926 provide for the privileges of the registered Trade Unions, respectively with regard to Criminal, Civil and contractual liabilities. They may be stated as under :

(1) As to Criminal Liability :- Section 17 of the Trade Union Act, provides immunity from liability for criminal conspiracy. It says that no office-bearer or member of a registered trade union shall be liable to punishment under Section 102-B of the Indian Penal Code, in respect of furthering any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in Section 15, unless the agreement be to commit an offence.

(2) As to Civil Liability :- According to Section 18 of the Act, no suit or other legal proceedings shall be maintainable in any Civil Court against any registered Trade Union or any office-bearer or member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the Trade Union is party on the ground that such act induces some other person to break a contract of employment or that it is an interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or his labour as he wills.

A registered Trade Union shall not be liable in any suit or other legal proceeding in any Civil Court in respect of any tortuous act done in contemplation of furtherance of a trade dispute by an agent of the Trade Union if, it is proved that such person acted without the knowledge of, or contrary to express instructions given by the executive of the Trade Union.

(3) As to Contractual Liability :- Section 19 of the Act provides that notwithstanding any other law for the time being in force, an agreement between the members of a registered Trade Union shall not be void or voidable merely by reason of the fact that any of the objects of the agreement are in restraint of trade :

Provided that nothing in this section shall enable any Civil Court to entertain any legal proceeding instituted for the express purpose of enforcing or recovering damages for the breach of any agreement concerning the conditions on which any members of a Trade Union shall or shall not sell their goods, transact business, work, employ or be employed.

Ans. Section 21 gives the right of membership of a registered Trade Union even to persons who are minors but not less than 15 years of age. This right of minors is subject to any rules of the Trade Union to the contrary. The minor members of a registered Trade Union will :

(a) enjoy all the rights of a member;

(b) execute all instruments; and

(c) give all acceptances necessary to be executed or given under the rules.

According to Section 21-A, nobody can become a member of the executive or an office-bearer of a Trade Union -

(a) if he has not attainted the age of 18 years;

(b) if he has been convicted by a Court in India of any offence involving moral turpitude and sentenced to imprisonment, unless a period of 5 years has elapsed since his release.

According to sub-section of Section 21-A, a member of the executive or other office-bearer of a registered Trade Union who, before the commencement of the India Trade Unions (Amendment) Act, 1964, has been convicted of any offence involving moral turpitude and sentenced to imprisonment, shall on the date of such commencement, cease to be such member or office -bearer unless a period of five years elapsed since his release before that date.

Ans. "Unfair practices" by a Trade Union - These may be stated as follows :

(1) For a majority of the members of a Trade Union, it is unfair practice to take part in an irregular strike.

(2) For the Executive of the union, it is unfair to advise, instigate or actively support such a strike.

(3) For an office-bearer of the Trade Union, it is unfair practice to submit a false return.

Unfair practice by employers. - These may be enumerated as below :

(1) It is very unfair for the employer to interfere with, restrain or coerce his workmen in the exercise of their rights to organize, form, join or assist a Trade Union, and to engage in concerted activities for the purpose of mutual, aid or protection.

(2) The employer should not interfere with the formation or administration of any Trade Union or contribute financial or other support to it.

(3) The discharging of any workman or any discrimination against him because he has made allegations or given evidence in any enquiry or proceedings relating to any matter such as is referred to in sub-section (1) of Section 25-F.

(4) The discharging of or discriminating against any officer of a recognised Trade Union because of his being such officer.

(5) Failure to comply with the provisions of Section 28-F :

Provided that the refusal of an employer to permit his workmen to engage in Trade Union activities during their hours of work shall not be deemed to be unfair practice on his part.

Ans. The Minimum Wages Act, 1948 was passed for the welfare of labour. This Act has been enacted to secure the welfare of the workers in a comparative market by providing for a minimum limit of wages in certain employment. This statement of Object of Bill points out :

"The justification for statutory fixation of minimum wages is obvious. Such provisions which exist in more advanced countries are even necessary India, where workers' organizations are yet poorly developed and the worker's bargain-power is consequently poor".

The Act provides for fixation by the Central Government of minimum wages for employment detailed in the Schedule of the Act and carried on by or under the authority of the Central Government, by a railway administration or in relation to a mine, oilfield or major port, or any corporation established by a Central Act, and by the State Government for other employment covered by the Schedule of the Act.

In "Hindustan Antibiotics Ltd. v. The Workmen" AIR 1967 SC 948 it was observed that the object of the industrial law is two fold, namely, (i) to improve the service conditions of industrial labour so as to provide for them the ordinary amenities of life, and (ii) by that process, to bring about industrial peace which would in its turn accelerate productive activity of the country resulting in its prosperity. The prosperity of the country, in its turn, helps to improve the conditions of labour. By this process, it is hoped that the standard of life of the labour can be progressively raised from the stage of minimum wage, passing through need -found wage, fair wage, to living wage. Industrial adjudication reflected in the judgments of Tribunals and the Courts have evolved some principles governing wage fixation though accidentally they related only to industries born in the private sector. The principle of region-cum-industry, the doctrine that the minimum wage is to be assured to the labour irrespective of the capacity of the industry to bear the expenditure in that regard, the concept that fair wage is linked with the capacity of the industry, the rule of relevancy of comparable concerns, and the recognition of the totality of the basic wage and clearness allowance that should be borne in mind in the fixation of wage structure, are all so well settled and recognised by industrial adjudication that further elaboration is unnecessary. There is socio-economic justification for the said principles. The social and economic upliftment of the labour is important for securing industrial peace, which is essential to increase the National productivity. It is an accident that industrial adjudication in the private sector has thrown out the said principles. All the said considerations equally apply to industries in the Public sector. AIR 1958 SC 30, AIR 1958 SC 578, AIR 1963 SC 1327 and AIR 1963 SC 1332, Ref.

In "Bhikusa Yamasa Kshatriya, M/s v. Sangamner Akola Taluka Bidi Kamgar Union" AIR 1963 SC 806 it was observed that the object of the Act is to prevent exploitation of the workers, and for that purpose it aims at fixation of minimum wages which the employers must pay. The Legislature undoubtedly intended to apply the Act to those industries or localities in which by reason of causes such as unorganised labour or absence of machinery for regulation of wages, the wages paid to workers were, in the light of the general level of wages, and subsistence level, inadequate.

In "U. Unichoyi v. State of Kerala" AIR 1962 SC 12 it was held that the two decisions of the Supreme Court in AIR 1955 SC 25 and AIR 1955 SC 33, have firmly established the validity of the Act, and there can no longer be any doubt that in fixing the minimum wage rates as contemplated by the Act the hardship caused to individual employers or their inability to meet the burden has no relevance.

What the Act purports to achieve is to prevent exploitation of labour and for that purpose authorizes the appropriate Government to take steps to prescribe minimum rates of wages in the scheduled industries. In a under- developed country, which faces the problem of unemployment on a very large scale, it is not unlikely that labour may offer to work even on starvation wages. The policy of the Act is to prevent the employment of such sweated labour in the interest of general public and so in prescribing the minimum wage rates the capacity of the employer need not be considered. What is being prescribed minimum wage rates, which a welfare State assumes every employer, must pay before he employs labour. AIR 1958 SC 30, Foll.

The object of the Act is directed against exploitation of the ignorant, less organized and less privileged members of the society by the capitalists. The anxiety of the State for improving the general economic condition of some of its less favoured members appears to be in suppression of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. The object of this Act is to prevent exploitation of the workers and for this purpose; it aims at fixation of minimum wages which employer must pay. The legislature undoubtedly intended to apply the Act to those industries or localities in which, by reason of causes such as unorganised labour or absence of machinery for regulation of wages, the wages paid to workers were in the light of the general level of wages and subsistence level inadequate.

Salient Features of the Act (i) This Act provides for fixation of (a) minimum time rate of wages, (b) minimum piece rate (c) guaranteed time rate, (d) Over time for different class of works.

(ii) The minimum rate of wages under the Act may consist of (a) basic rate of wages & cost of living allowance or (b) basic rate of wages with or without cost of living allowance and cash value of concessions in respect of essential commodities.

(iii) Act lays down that cost of living allowance and cash value of concessions in respect essential commodities supplied, shall be computed by the competent authority at certain interval.

(iv) Act empowers appropriate Government to fix the number of house of work per day, to provide weekly holiday.

(v) Act also provides for appointment of Inspectors and authorities to hear and decide claims arising out of payment of wages less than minimum rates or remuneration for rest day, work on rest day and over time.

Ans. (a) Competent Authority :- "Competent Authority" means the authority appointed by the Appropriate Government by notification in its Official Gazette to ascertain from time to time the cost of living index number applicable to the employees employed in the scheduled employment specified in such notifications. [Section 2(c)]

(b) Cost of Living Index Number :- "Cost of Living Index Number" in relation to employees in any scheduled employment in respect of which minimum rates of wages have been fixed, means the index number ascertained and declared by the competent authority by notification in the Official Gazette to be the cost of living index number applicable to employees in such employment. [Section 2(d)]

(c) Employer. :- "Employer" means any person who employs whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum wages heave been fixed under this Act, and includes except in sub-section (3) of Section 26 -

(i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of the wages have been fixed under this Act, any person named under clause (f) of sub-section (1) of Section 7 of the Factories Act, 1948 (LXIII of 1948) as manager of the factory;

(ii) in any scheduled employment under the control of any Government in India in respect of which minimum rates of wages have been fixed under this Act, the person or authority appointed by such Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;

(iii) in any scheduled employment under the local authority in respect of which minimum rates of wages have been fixed under this Act, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the Chief Executive Officer of the local authority.

(iv) In any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person responsible to the owner for the supervision and control of the employees or for the payment of wages. [Section 2 (e)].

(d) Scheduled employment :- "Scheduled Employment" means an employment specified in the Schedule or any process or branch of work forming part of such employment. [Section 2(g)].

(e) Wages :- "Wages" means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment express or implied, were fulfilled, be payable to a person employed in respect of his employment or of a work done in such employment, (and includes house rent allowance) but does not include -

(i) The value of -

(i) Any house accommodation, supply of light, water, medical attendance, or

(ii) Any other amenity or any service excluded by general or special order of the Appropriate Government.

(ii) Any contribution paid by the employer to any Pension, Fund or Provident fund or under any Scheme of social Scheme;

(iii) Any travelling allowance or the value of any travelling concession;

(iv) Any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(v) Any gratuity payable of discharge. [Section 2(h)].

The perusal of this section reveals that following essential requirements are essential for wages :-

(i) Wages include all remuneration paid to an employee including house rent allowance;

(ii) Wages must always be capable of being expressed in terms of money;

(iii) A contract for the payment of wages may be implied or expressed. When there is a contract between employer and employer for the payment of the wages on a stipulated date the wages become due on that date;

(iv) The employee must have completed the work assigned him or the terms and condition of the contract must have been fulfilled.

The term "wages" portrays a composite meaning. It is inclusive of all remuneration and other payments payable to an employee, in terms of money. However, it does not include that remuneration, which have been expressly excluded by the provisions of the Act.

In "Bidi, Bidi Leaves and Tobacco Merchants' Association, Gondia v. State of Bombay" AIR 1962 SC 486 it was observed that the definition of the term "wages" postulates the binding character of the other terms of the contract and brings within the purview of the Act only one term and that relates to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term "wages" can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act.

(f) Employee :- "Employee means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or electrical in a scheduled employment in respect of which minimum rates of wages have been fixed. It includes :

(1) an out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adopted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out worker or in some other premises not being premises under the control and management of that other person.

(2) An employee declared to be an employee by the Appropriate Government.

It does not include any member of the Armed Forces of the Union. The definition of employee in this Act is wide enough to include a person working on job basis or piece work. [Section 2 (i)]

Ans. Fixation of minimum rates of wages. - Section 3 lays down that the Appropriate Government shall be empowered to fix the minimum rates of wages in the manner prescribed under this Act. It shall fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either part by notification under Section 27.

But the Appropriate Government may, in respect of employees employed in an employment specified in Part II of the Schedule, instead of fixing minimum rates of wages under this clause for the whole State, fix such rates for a part of the State or for any specified class or classes or such employment in the whole of the State or part thereof.

The Appropriate Government shall review the minimum rates of wages to fix and revise the minimum rates, if necessary, at such intervals as it may think fit. The intervals as aforesaid shall not exceed five years. But where for any reason the appropriate Government has not reviewed the minimum rates of wages fixed by it within an interval of five years, the Appropriate Government shall not be without power to review or revise after five years. Until the minimum rates are so revised the minimum rates in force immediately before the expiry of the said period of five years shall continue in force.

Sub-section (1-A) provides that the Appropriate Government may refrain from fixing minimum rates of wages in respect of any scheduled employment in which there are in the whole State less than one thousand employees engaged in such employment. But if at any time, the Appropriate Government comes to a finding after such enquiry that scheduled employment in respect of which it has refrained from fixing minimum rates of wages, has risen to one thousand or more, it shall fix minimum rates of wages payable to employee in such employment as soon as may be after such finding.

Sub-section (2) provides the Government may fix -

(a) a minimum rate of wages for time work (i.e., "a minimum time rate");

(b) a minimum rate of wages for piece work (i.e., "a minimum piece rate"). When a piece rate is fixed, every worker will not earn the same amount for the day. If the difference is due to reasons which are purely personal to the worker, no grievance can be made, but if the difference is brought about by furnishing one with an appreciable advantage over the other as for example providing one with a machinery and the other with a hand mallet, there may be a possibility of injustice and an attempt must be made for arriving at a result which may really be reasonable and just in the circumstances.

(c) A minimum of remuneration to apply in the case of employees employed on piece work for the purpose of securing to such employees a minimum rate of wages on a time work basis which is known as "a guaranteed time rate". Clause (c) of Section 3 (2) is intended to meet a situation where operation of minimum piece rate fixed by Government may result in worker earning less than minimum wage.

(d) A minimum rate (whether a time rate or a piece rate) to apply in substitution for the minimum rate which would otherwise be applicable, in respect of overtime work done by employees which is known as "overtime".

Section 4 provides that any minimum rates of wages fixed or revised by the Appropriate Government in respect of scheduled employment under Section 3 may consist of -

(i) a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the Appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (which is known as the cost of living allowance); or

(ii) a basic rate of wages with or without the cost of living allowance and the cash value of the concession in respect of supplies of essential commodities at concession rates, where so authorised; or

(iii) an all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash of the concessions, if any.

The cost of living allowance and cash value of the concession in respect of supplies of essential commodities at concessional rate shall be computed by the competent authority at such intervals and in accordance with such direction as may be specified or given by Appropriate Government.

The special allowance mentioned in Section 4(1) of the Act, is a variable amount forming part of the wages, being linked with the cost of living index number. The phrase "a special allowance" does not take within its ambit the "trip allowance". This allowance is specifically referred to in Section 4(1) as "cost of living allowance". Therefore "trip allowance" and "cost of living allowance" fall in different categories for the former has not much to do with the prevailing cost of living index number.

In "Hydro (Engineers) Pvt. Ltd., M/s. v. The Workmen" AIR 1969 SC 182 it was observed that in fixing the minimum wage the fact that an employer might find it difficult to carry on his business on the basis of minimum wages is an irrelevant consideration. The Act contemplates that minimum wage rates must ensure not merely the mere physical need of the worker which would keep him just above starvation but must ensure for him not only his subsistence and that of his family but also preserve his efficiency as a workman. It should, therefore, provide not merely for the bare subsistence of his life but for the preservation of the worker and so must provide for some measure of education, medical requirements and amenities.

In "Airfreight Ltd. v. State of Karnataka" AIR 1999 SC 2459 it was observed that minimum rate of wages fixed under the Act is remuneration payable to the worker as one package of fixed amount. In cases where minimum wage is linked with the cost of living index, the amount paid on the basis of dearness allowance is not to be taken as an independent component of the minimum wages but as part and parcel of the process of computing the rates of minimum wages which is to be determined after taking into consideration the cost of various necessities. Once rates of minimum wages are prescribed under the Act, whether as all inclusive under Section 4(1) (iii) or by combining basic plus dearness allowance under Section 4(1)(i) they are not amenable to split up. It is one pay package. Neither the Scheme nor any provision of the Act provides that the rates of minimum wages are to be split up on the basis of the cost of each necessity taken into consideration for fixing the same. Hence, in cases where employer is paying total sum which is higher than minimum rates of wages fixed under the Act including the cost of living index (VDA), he is not required to pay VDA separately. However, that higher wages should be calculated as defined in Section 2(h) of the Act. Section 2(h) specifically provides that value of items mentioned therein are not required to be computed for finding out whether employer pays minimum wages as prescribed under the Act. But while deciding the question of payment of minimum wages, the competent authority is not required to bifurcate each component of the costs of each item taken into consideration for fixing minimum wages, as lump sum amount is determined for providing adequate remuneration to the workman so that he can sustain and maintain himself and his family and also preserve his efficiency as a worker. Dearness Allowance is part and parcel or cost of necessities. In cases where the minimum rates of wages is linked up with V.D.A., it would not mean that it is a separate component which is required to be paid separately where the employer pays a total pay package which is more than the prescribed minimum rate of wages.

In "Express Newspaper (Private) Ltd. v. Union of India" AIR 1958 SC 578 it was observed that the following are the principles of fixation of rates of wages :

(1) In the fixation of rates of wages which include within its compass the fixation of scales of wages also, the capacity of the industry to pay is one of the essential circumstances to be taken into consideration except in cases of bare subsistence or minimum wage where the employer is bound to pay the same irrespective of such capacity;

(2) The capacity of the industry to pay is to be considered on an industry cum-region basis after taking a fair cross-section of the industry; and

(3) The proper measure for gauging the capacity of the industry to pay should take into account the elasticity of demand for the product, the possibility of tightening up the organisation so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest paid workers resulting in increase in production considered in conjunction with the elasticity of demand for the product - no doubt against the ultimate back ground that the burden of the increased rate should not be such as to drive the employer out of business.

Procedure for fixing and revising minimum wages. - Section 5 lays down that in fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed, the Appropriate Government shall either :-

(a) appoint as many committees and sub-committees as it considers necessary to hold enquires and advise it in respect of such fixation or revision, as the case may be; or

(b) by notification in the Official Gazette, publish its proposals for the information of persons likely to be affected thereby and specify a date not less than two months from the date of the notification on which the proposals will be taken into consideration.

After considering the advice of the committees appointed, and all representation received by it before the date specified in the Gazette notification, the appropriate Government may by notification in the Official Gazette, fix or revise the minimum rates of wages in respect of each scheduled employment, which shall come into force after the expiry of 3 months unless otherwise provided in the notification.

Where the Appropriate Government proposes to revise the minimum rates of wages by the mode specified in Section 5(1) (b), the Appropriate Government shall consult the Advisory Board also.

Where the Appropriate Government proposes to revise the minimum rates of wages by the mode specified in Section 5 (1) (b), the Appropriate Government shall consult the Advisory Board also.

Ans. (a) Advisory Board. - Section 7 of the Act makes it incumbent upon the Appropriate Government to appoint an advisory board for the following purposes :-

(1) to co-ordinate the work of the committees and sub-committees, when they are appointed under Section 5 of the Act; and

(2) to advise the Appropriate Government generally in the matter of fixing and revising the minimum rates of wages.

No procedure has been provided in the Act as to the method which the Advisory Board is to adopt before making its recommendations to the State Government. It can devise its own procedure and collect some information by appointment of a sub-committee consisting only of some of its members. But the Advisory Board has no power to appoint a rival sub-committee to the one appointed by the Government and take in such sub-committee persons who are not members of the Board.

It, however, does not necessarily allow that the report of the Advisory Board is thereby vitiated. Held, the irregularity, even characterizing it as an illegality, committed by the Advisory Board in taking into consideration the report of the sub-committee was not such as to nullify its recommendation contained in its report, of any event, the final decision of the Government contained in the impugned notification [State of Rajasthan v. Hariram Nathwal, AIR 1976 S.C. 277] (b) Central Advisory Board :- Section 8 makes it obligatory upon the Central Government to appoint a Central Advisory Board for the following purposes :-

(a) to advise the Central and State Government in the matters of fixing and revising minimum rates of wages;

(b) to advise the Central and State Governments in other matters under Act XI of 1948; and

(c) to co-ordinate the work of Advisory Boards appointed under Section 7 by the State Governments.

Composition of Central Advisory Board :- According to Section 8 (2) of the Act, the Central Advisory Board shall consist of:-

(1) persons to be appointed by the Central Government representing employers and employees in the scheduled employment who shall be equal in number; and

(2) independent persons not exceeding one-third of Board's total number of members.

The Chairman shall be one of the independent persons and shall be appointed by the Central Government.

(c) Composition of Committees :- Each of the committees, sub-committees and Advisory Board shall consist of persons to be nominated by the Appropriate Government representing employees and employers in the scheduled employements, who shall be equal in number and independent persons not exceeding one-third of its total number of members, one of such independent persons shall be appointed the chairman by the Appropriate Government.

Meaning of `Independent Persons'. :- A member of an industrial Tribunal, who was not concerned with the formation or carrying out of the Government's policy in economic or industrial field, but was performing judicial and quasi-judicial function is not an `independent person' for the purpose of Section 9 of the Act.

In State of Andhra Pradesh v. Narayan Velur Beedi Manufacturing Factory, AIR 1973 SC 1307, it was held that the that language of Section 9 does not contain any indication whatsoever the persons in the employment of the Government would be excluded from the category of independent person, that is to say, they are capable of being appointed as independent persons. [See also State of Rajasthan v. Hariram Nathwani, AIR 1976 SC 277]. The presence of high Government Officials who may have actual working knowledge, about the problems of employers and employees can afford a good deal of guidance and assistance in formulating the advice which is to be tendered under Section 9 to the Appropriate Government. [State of A. P. v. N.V. Beedi Manufacturing Factory, AIR 1973 SC 1307] (d) Overtime :- Where an employee whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the Appropriate Government for the time being in force, whichever is higher.

Nothing in this Act shall prejudice the operation of the provision of Section 59 of the Factories Act, 1948 in any case where whose provisions are applicable. [Section 14]

Ans. If an employee whose minimum rate of wages has been fixed under the Act by day works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day, he shall, subject to the provisions of this Act, be entitled to receive wages in respect of work done by him on that day as if he had worked for a full working day :

Provided however, that he shall not be entitled to receive wages for a full normal working day :-

(i) in any case where his failure to work is caused by his unwillingness to work and not by the omission of the employer to provide him with work, and

(ii) in such other cases and circumstances may be prescribed.

The Act further provides that where an employee is employed on piece work for which minimum time rate and not a minimum piece rate has been fixed under this Act, the employer shall pay to such employee wages at the rate not less than the minimum time rate (Section 17).

Ans. Claims. - Section 20 (1) empowers the Appropriate Government to appoint, by notification in the Official Gazette, an authority to hear and decide for any specified area the following claims :-

(i) any claims arising out of payment of less than the minimum rates of wages; or

(ii) any claim in respect of the payment of remuneration for days of rest; or

(iii) any claim in respect of payment of remuneration for work done on such days under clause (b) or (c) or Section 13 (1); or

(iv) any claim of wages at the overtime rate under Section 14, or employees employed or paid in that area.

In Anand Oil Industries v. Labour Court, Hyderabad, AIR 1979 AP 182, it was held that Section 20(1) of the Act does not cover all claims in respect of minimum wages; it covers only cases where there is a dispute as to the rate at which the minimum wages are payable. When there is no dispute as to the rate of wages, but the dispute is as to the quantum of wages to which a workman is entitled, it would not be a matter falling under Section 20 (1) of the Act and consequently a petition under Section 33-C (3) of the Industrial Disputes Act could not be held barred.

Who can be appointed as authority. - The following may be appointed as an Authority to decide any claims as aforesaid :-

(a) any Commissioner for Wormnen's Compensation; or

(b) any Officer of Central Government exercising function as a labour Commissioner for any region; or

(c) any Officer of the State Government not below the rank of a labour Commissioner; or

(d) any other Officer with experience as a Judge of a Civil Court or as Stipendiary Magistrate.

The expression "other Officer with experience as a judge of a Civil Court" means that the Officer should be working or should have worked as Presiding judge of a Civil Court. He need not be appointed by name but by office only.

Who can apply. - Sub-section (2) provides that where an employee has any claim as referred to in Section 20 (1) the following may apply to the Authority for a direction :-

(a) the employee himself; or

(b) any legal practitioner authorised in writing to act on his behalf; or

(c) any Official or a registered Trade Union authorised in writing to act on behalf of the employee; or

(d) any Inspector; or

(e) any person acting with the permission of the Authority.

Procedure for deciding claims. - Sub-section (3) provides that when any application for claim is entertained, the authority shall hear the applicant and the employer or give them an opportunity of being heard, and after such further inquiry, if any as it may consider necessary, may without prejudice to any other penalty to which the employee may be liable under this Act, direct -

(i) in the case of a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid together with the payment of such compensation as the authority may think fit. In no case any payment so directed should exceed ten times the amount of such excess as stated above;

(ii) in any other case, the payment of the amount due to the employee, together with payment of such compensation as the authority may think fit, but not exceeding ten rupees; and

(iii) payment of such compensation in cases where the excess of the amount due is paid by the employer to the employee before the disposal of the application.

Powers of the authority :- Section 20 (4) lays down that if the authority hearing any application under this Section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.

Recovery of amount under order of authority. - According to Section 20 (5) any amount directed to be paid by the authority may be recovered :-

(a) if the authority is a Magistrate, by the authority as if it were a fine imposed by the authority as a Magistrate; or

(b) if the authority is not a Magistrate, by any Magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such Magistrate.

In view of Section 20 (6) every direction of the authority under this Section shall be final. This merely means that the decision of the authority cannot be questioned under any provision of the Act. It does not exclude the jurisdiction of the Civil Court when the challenge is as to the applicability of the Act to a certain class of workers.

Section 20 (7) lays down that the authority under Section 20 (1) has all the powers of a Civil Court under the Civil Procedure Code for the purpose of :

(a) taking evidence;

(b) enforcing the attendance of witnesses; and

(c) compelling the production of documents.

Every such authority shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Criminal Procedure Code, 1898.

Ans. Section 24 bars the jurisdiction of Civil Court to entertain a suit for recovery of wages in so far as the sum so claimed :-

(a) forms the subject of an application under Section 20 (which has been presented by or on behalf of the plaintiff; or

(b) has formed the subject of a direction under that section in favour of the plaintiff; or

(c) has been adjudged in any proceeding under that section not be due to the plaintiff; or

(d) could have been recovered by an application under that Section.

This Section does not bar an employer from instituting a suit when he claims that he has been called upon to pay wages and compensation to persons who are not governed by the notification under the Act [AIR 1968 SC 271].

Ans. The Payment of Bonus Act, 1965 is outcome of recommendation made by Tripartite Commission set up by Government of India in 1961. With the view to accept its recommendations a Payment of Bonus Ordinance 1965 was promulgated and said Ordinance was adopted by Parliament and present Act was enacted as such payment of bonus became a statutory obligation imposed upon employers, covered under the Act.

The object of the Act as contained in the preamble is to provide for payment of bonus to persons employed in certain establishments and for matters connected therewith.

Broadly speaking the Scheme of the Act is four dimensional :

(1) to impose statutory liability upon the employer of every establishment covered by the Act to pay bonus to employees in its establishment;

(2) to define the principle of payment of bonus according to the prescribed formula;

(3) to provide for payment of minimum and maximum bonus and linking the payment of bonus with the Scheme of "set-off and set-on"; and

(4) to provide machinery for enforcement of the liability for payment of bonus. Sub-section (3) of Section 1 provides that save as otherwise provided in this Act, it shall apply to (a) every factory; and (b) every other establishment in which twenty or more persons are employed on any day during an accounting year.

While assessing the constitutonal validity of Payment of Bonus Act, Apex Court in "Jalan Trading Co. Private Ltd., M/s. v. Mill Mazdoor Sabha" AIR 1967 SC 691 it was observed that the power of Parliament to fix minimum bonus cannot be questioned because it flows from jurisdiction over industrial and labour disputes, welfare of labour including conditions of work and wages. The legislation is, therefore, neither a fraud on the Constitution nor a colourable exercise of power. By enacting the Act, the Parliament has not attempted to trespass upon the province of the State Legislature.

The Scheme of the Payment of Bonus Act, broadly stated, is four dimensional :

(1) to impose statutory liability upon an employer of every establishment covered by the act to pay bones to employees in the establishment :

(2) to define the principle of payment of bonus according to the prescribed Formula;

(3) to provide for payment of minimum and maximum bonus and linking the payment of bonus with the Scheme of "set-off and set-on", and

(4) to provide machinery for enforcement of the liability for payment of bonus.

In "Sanghvi Jeevraj Ghewar Chand, M/s. v. Madras Chillies, Grains and Kirana Merchants Workers Union" AIR 1969 SC 530 it was observed that Provisions of sub-section (3) and (4) of Section 1of Payment of Bonus Act do not necessarily mean that the Act was not intended to be a comprehensive and exhaustive law dealing with the entire subject of bonus and the persons to whom it should apply. Even where an Act deals comprehensively with a particular subject- matter, the legislature can surely provide that it shall apply to particular persons or groups of persons or to specified institutions only. Therefore, the fact that the preamble States that the Act shall apply to certain establishments does not necessarily mean that it was nor intended to be a comprehensive provision dealing with the subject matter of bonus. While dealing with the subject-matter of bonus the legislature can lay down as a matter of policy that it will exclude from its application certain types of establishments and also provide for exemption of certain other types of establishments even though such establishments would otherwise fall within the scope of the Act. The exclusion of establishments where less than 20 persons are employed in Section 1 (3) therefore is not a criterion suggesting that Parliament has not dealt with the subject matter of bonus comprehensively in the Act. There was until the enactment of this Act no statute under which payment of bonus was a statutory obligation on the part of an employer or a statutory right therefor of an employee.

Ans. The dictionary meaning of the term "bonus is a boon or gift over and above what is nominally due as remuneration to the receiver and which is therefore something wholly to the good". In industrial relations the term is usually intended as a stimulus to extra effort, but sometimes represents the desire of the employer to share with his workers their common enterprise.

The term bonus is applied to a cash payment made in addition to wages. It generally represents the cash incentive given additionally on certain standards of attendance and efficiency being maintained.

The concept of bonus as evolved in the industrial law of this country by Industrial Tribunals. There are four types of bonus which have been evolved under the industrial law. Firstly, there is what is called a production bonus or incentive wage (Titaghur Paper Mills v. Its Workmen, AIR 1959 SC 1095); the second is bonus as an implied term of contract between the parties (Ispahani Ltd. v. Ispahani Employees' Union, AIR 1959 SC 1147)); the third is customary bonus in connection with some festival (Grahams Trading Co v. Its Workmen, AIR 1959 SC 1151) and the fourth is profit bonus which was evolved by the Labour Appellate Tribunal in 1950-2 Lab LJ 1247 and which has been considered by this Court fully in two cases. We are in the present case dealing with bonus of the fourth kind, namely, profit bonus and what we say subsequently refers only to this kind of bonus.

In Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, AIR 1955 SC 170 Apex Court pointed out that -

"There are two conditions, which have to be satisfied before a demand for bonus can be justified and they are :

(1) when wages fall short of the living standard, and

(2) industry makes huge profits part of which are due to the contribution which the workmen make in increasing production.

The demand for bonus becomes an industrial claim.......The basis for the claim is that labour and capital both contribute to the earning of the industrial concern and it is fair that labour should derive some benefit, if there is a surplus after meeting prior or necessary charges ....... The surplus that remained after meeting the aforesaid prior charges would be available for distribution as bonus."

Apex Court in the Associated Cement Companies' case, AIR 1959 SC 967 considered at length the Full Bench formula evolved by the Labour Appellate Tribunal in Mill Owners Association, Bombay v. Rashtriya Mill Mazdoor Sangh Bombay, 1950 Lab LJ 1247. It was there held that -

"the Full Bench formula had on the whole worked fairly satisfactorily in a large number of industries all over the country, and the claim for bonus should be decided by the Tribunals on the basis of this formula without attempting to revise it. The formula was elastic enough to meet reasonably the claims of the industry and labour for fairplay and justice.........It was based on two considerations : first, that labour was entitled to claim a share in the trading profits of the industry, because it had partially contributed to the same; and second, that labour was entitled to claim that the gap between its actual wage and the living wage should within reasonable limits be filled up."

The Full Bench formula provided for arriving at the available surplus after meeting prior charges, namely, (i) depreciation, (ii) taxes, (iii) return on paid-up capital, (iv) return on working capital, and (v) rehabilitation. The formula further dealt with the claim for bonus on the basis that the relevant year is a self-sufficient unit and appropriate accounts have to be made in respect of the said year. Finally, it was pointed out that it was only after all the prior charges had thus been determined and deducted from the gross profits that the available surplus could be ascertained for payment of bonus, and that when the available surplus had been ascertained, there were three parties entitled to claim shares therein, namely, (i) labour's claim for bonus, (ii) industry's claim for the purpose of expansion and other needs, and (iii) the shareholders' claim for additional return on the capital invested by them; the ratio of distribution would necessarily depend on several factors.

Ans. Computation of available surplus. - The available surplus in respect of any accounting year shall be the gross profit for that year after deducting therefrom the sums referred to in Section 6 :

Provided that the available surplus in respect of the accounting year commencing on any day in the year 1968 and in respect of every subsequent accounting year shall be the aggregate of -

(a) the gross profits for that accounting year after deducting therefrom the sums referred to in Section 6; and

(b) an amount equal to the difference between -

(i) the direct tax, calculated in accordance with the provisions of Section 7, in respect of an amount equal to the gross profits of the employer for the immediately preceding accounting year, and

(ii) the direct tax, calculated in accordance with the provisions of Section 7, in respect of an amount equal to the gross profits of the employer for such preceding accounting year after deducting therefrom the amount of bonus which the employer has paid or is liable to pay to his employees in accordance with the provisions of this Act for that year.

In computation of available surplus the following sums are deductible from gross profits :

(1) If there is a discrepancy in different statement of account with regard to particular item of expenditure and the employer fails to explain it, the difference should be totalled up with the gross profits.

(2) Employer is entitled to deduct his tax liability without deducting first the amount of bonus, he would be liable to pay from and out of the amount computed under Sections 4 and 6.

The following sums shall be deducted from the gross profit as prior charges, namely :-

(a) any amount by way of depreciation admissible in accordance with the provisions of sub-section (1) of Section 32 of the Income Tax Act or in accordance with the provisions of the Agricultural Income-Tax law as the case may be :

Provided that where an employer has been paying bonus to his employees under a settlement or an award or agreement made before the 29th May, 1965, and subsisting on that date after deducting from the gross profits notional normal depreciation, then, the amount of depreciation to be deducted under this clause shall, at the option of such employer (such option to be exercised once and within one year from that date) continue to be such notional normal depreciation;

(b) any amount by way of employment rebate or investment allowance or development allowance which the employer is entitled to deduct from his income under the Income-tax Act;

(c) subject to the previsions of Section 7, any direct tax which the employer is liable to pay for the accounting year in respect of his income, profits and gains during that year;

(d) such further sums as are specified in respect of the employer in the third Schedule. (Section 6)

Ans. Section 10 of Act say, "Subject to the other provisions of this Act, every employer shall be bound to pay to every employee in respect of the accounting year commencing on any day in the year 1979 and in respect of every subsequent accounting year, a minimum bonus which shall be 8.33 percent of the salary or wage earned by the employee during the accounting year or one hundred rupees, whichever is higher, whether or not the employer has any allocable surplus in the account year :

Provided that where an employee has not completed fifteen years of age at the beginning of the accounting year, the provisions of this section shall have, effect in relation to such employee as if for the words "one hundred rupees", the words "sixty rupees" were substituted."

In Anand Oil Industries v. Labour Court AIR 1979 AP 182 it was observed, the minimum bonus under the Act is a right vested in an employee under a statute. The right to minimum bonus is a statutory right which vests in the employee and no further adjudication of the right to the payment of minimum bonus is called for. It constitutes an existing statutory right. The denial of this right by the employer does not render it an industrial dispute calling for an adjudication by way of reference under Section 10 of the Industrial Disputes Act, read with Section 22 of the Payment of Bonus Act. A claim for the payment of minimum bonus cannot constitute an industrial dispute within the meaning of Section 20 of the Payment of Bonus Act. However, for the enforcement of this right an employee can file an application under Section 33-C(2) of the Industrial Disputes Act.

In "Jalan Trading Co. (P) Ltd. v. D. M. Aney" AIR 1979 SC 233 it was held that Section 10 of the Payment of Bonus Act is not ultra vires Arts. 19 (1) (g) and 301 of the Constitution. The restriction imposed by the Bonus Act in compelling the employer to pay the statutory minimum bonus even in years where there has been a loss sustained by the management is reasonable or in public interest within the meaning of Arts. 19 (6) and 302. What is reasonable depends on a variety of circumstances, but what is important is that the Directive Principles of State Policy in Part IV of the Constitution are fundamental to governance of the country. Therefore, what is directed as State Policy by the founding fathers of the Constitution cannot be regarded as unreasonable or contrary to public interest even in the context of Article 19 or 302. It follows that payment of bonus, being in implementation of Arts. 39 and 43 of the Constitution, is reasonable.

Ans. Section 27 of Payment of Bonus Act, 1965 provides :-

(1) The Appropriate Government may, by notification in the Official Gazette, appoint such persons as it thinks fit to be Inspectors for the purposes of this Act and may define the limits within which they shall exercise jurisdiction.

(2) An Inspector appointed under sub-section (1) may, for the purpose of ascertaining whether any of the provisions of this Act has been complied with -

(a) require an employer to furnish such information as he may consider necessary;

(b) at any reasonable time and with such assistance, if any, as he thinks fit, enter any establishment or any premises connected therewith and require any one found in charge thereof to produce before him for examination any accounts, books, registers and other documents relating to the employment of persons or the payment of salary or wage or bonus in the establishment;

(c) examine with respect to any matter relevant to any of the purposes aforesaid, the employer, his agent or servant or any other person found in charge of the establishment or any premises connected therewith or any person whom the Inspector has reasonable cause to believe to be or to have been an employee in the establishment;

(d) make copies of, or take extract from any book, register or other document maintained in relation to the establishment; and

(e) exercise which other powers as may be prescribed.

(3) Every Inspector shall be deemed to be public servant within the meaning of the Indian Partnership Act, 1860.

(4) Any person required to produce any accounts, books register or other document or to give information by an Inspector under sub-section (1) shall be legally bound to do so.

(5) Nothing contained in this Section shall enable an Inspector to require a banking company to furnish or disclose any statement or information or to produce or give inspection of, any of its books of account or other documents which a banking company cannot be compelled to furnish, disclose, produce or give inspection of, under the provisions of Section 34-A of the Banking Regulation Act, 1949.

Ans. The need to protect the wages earned by the worker had been felt from the early years of the twentieth century, but it was as early as 1925 that a Private Bill called the "Weekly Payment Bill" was for the first time introduced in the Legislative Assembly. At that time different periods of payment of wages were prevalent. An attempt was made to remedy some of the evils viz., delay in payment of wages, non-payment of wages, deductions made from wages on account of fines imposed by the employer etc. The Bill was, however, withdrawn on an assurance of the Government that the matter was under consideration of the Government. Imposition of fines by employers on workers and deduction of even double the amount of wages for absence period by way of fine was very much customary in those days. The desirability of regulating the extent of fines and other deductions, through legislation was felt by the Government in 1926.

The Royal Commission on Labour in India made some valuable recommendations. The present Act is mostly based on those recommendations. The Commission was of the opinion that legislation regarding deductions from wages and fines was essential.

The preamble of the Act states that the object of the Act is "to regulate the payment of wages to certain classes of employed persons." The regulation contemplated by the Act is twofold : first the date of payment of wages and secondly the deductions from wages whether as fine or otherwise. To ensure payment of wages to persons covered by the Act certain provisions have been made in this Act.

Ans. The Act itself has defined the important terms.

(1) Factory. - Factory means a factory defined in clause (m) of Section 2 of Factories Act, 1948, and includes any place to which the provisions of that Act have been applied under sub-section (1) of Section 85, thereof.

(2) Industrial or other establishment means any -

(a) tramway service, motor transport service, engaged in carrying passengers and goods or both by road, for hire or reward;

(b) air transport service other than such service belonging to, or exclusively employed in the military, naval or air force of the union or the Civil Aviation Department of the Government of India;

(c) dock, wharf or jetty;

(d) Inland vessel, mechanically propelled;

(e) Mine quarry or oilfield;

(f) Plantation;

(g) Workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale;

(h) Establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on;

(i) The term industry includes any other establishment or class of establishment which the Appropriate Government, (Central or State Government), by keeping in view the protection of the persons employed therein, notifies in Official Gazette. While notifying, the Appropriate Government will keep the nature of establishment in consideration.

Hydel Upper Bari Doab Construction Project is an establishment within the meaning of Section 2 (ii) (g) of the Payment of Wages Act [State of Punjab v. Labour Court, Jullundur, AIR 1979 SC 1981]. (3) Plantation. - Plantation has the meaning assigned to it in clause (1) of the Plantation Labour Act, 1951.

(4) Railway Administration. - Railway administration has the meaning assigned to it in clause (6) of Section 3 of the Indian Railway Act, 1890.

Ans. Section 2 (vi) of Payment of Wages Act, defines the term "Wages" :- Wages means all remuneration, whether by way of salaries, allowances or otherwise, expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment.

Wages includes :-

(a) any remuneration payable under any award or settlement between the parties or order of a Court;

(b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period;

(c) any additional remuneration payable under the terms of employment, whether called a bonus or by any other name;

The definition of wages is not limited to remuneration payable under an agreement or contract. The amended definition would apply to all kinds of remuneration, whether arising from a contract, an award, a settlement or under a statute.

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

(e) any sum to which the person employed is entitled under any Scheme framed under any law for the time being in force.

Wages does not include :-

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

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

(3) any contribution paid by the employer to any Pension or Provident fund, and the interest which may have accrued thereon;

(4) any travelling allowance or the value of any travelling concession;

(5) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or

(6) any gratuity payable on the termination of employment in cases other than those specified in clause (d) of Section 2 (vi)

Ans. Section 3 lays down that every employer shall be primarily responsible for the payment to person employed by him of all wages required to be paid under this Act. The following are exceptions to the above rule :-

(a) Where a person is employed (otherwise than by a contractor) in a factory and a manager is appointed for the factory under Clause (f) of Section 7(1) of the Factories Act, 1948, the manager shall be responsible for the payment of wages.

(b) In the case of persons employed (otherwise than by contractor) in industrial or other establishment, if there is a person responsible to the employer for the supervision and control of the industrial or other establishment, such person shall be responsible for the payment of wages;

(c) In the case of persons employed (otherwise than by contractor) upon railways (otherwise than a factory), if the employer is the railway administration and the railway administration has nominated a person, in this behalf for the local area concerned, such person shall also be responsible for the payment of wages.

Section 5 of the Payment of Wages Act, 1936 lays down that the wages of every person employed upon or in :-

(a) any railway, factory or industrial or other establishment or in which there are less than one thousand employees, the wages shall be paid before the expiry of the seventh day; and

(b) any other railway, factory or industrial or other establishment shall be paid before the expiry of the tenth day, after the last day of the wage period in respect of which the wages are payable.

Provided that in the case of persons employed on a dock, wharf of jetty or in the mine, the balance of wages found due on completion of the final tonnage account of the ship or wagons loaded or unloaded, as the case may be, shall be paid before the expiry of the seventh day from the day of such completion.

Sub-section (2) of Section 5 of the Act provides that where the employment of any person is terminated by or on behalf of the employer, the wages earned by him shall be paid before the expiry of the second working day from the day on which his employment is terminated.

Provided that where the employment of any person in the establishment is terminated due to the closure of the establishment for any reason other than a weekly or other recognised holiday, the wages earned by him shall be paid before the expiry of the second day from the day on which his employment is so terminated.

Section 5, sub-section (3) of the Payment of Wages Act, 1936, lays down that the State Government may subject to such conditions as specified and to such extent as may be specified in the order, exempt the person responsible for the payment of the wages to the person employed upon any railway (otherwise than in a factory). Or persons employed as daily rate workers in the PWD of the Central Government or the State Government from the operation of Section 5 in respect of wages of any such persons or class of such persons. However, in the case of persons employed as daily rated workers as aforesaid, no such order shall be made except in consultation with the Central Government. According to sub-section (4) of the Section 5 of the Act all payment of wages shall be made on a working day.

Deductions which may be made from wages. - Section 7(1) of the Act provides that wage for employed person shall be paid to him without deductions of any kind except those authorised by or under this Act. Thus Section 7(1) lays down a general prohibition against any deduction from the wages of a worker. Sub-section (2) enumerates the deductions, which are permissible and shall be made in accordance with the provisions of this Act.

What is deduction. - Explanation No. 1 Section 7(1) says that every payment made by the employed person to the employer or his agent shall, for the purposes of this Act, be deemed to be a deduction from wages. Explanation No. 2 lays down that any loss of wages resulting from the imposition, upon a person, of the following penalties shall not be deemed to be a deduction from wages;-

(i) the withholding of increment or promotion including the stoppage of increment at any efficiency bar;

(ii) the reduction to a lower post or time scale or to a lower stage in a scale; or

(iii) suspension.

But these penalties shall not be deemed to be deductions provided the rules framed by the employer for the imposition of any such penalty are in conformity with the requirements, if any, which may be specified in this behalf by the State Government by notification in the Official Gazette.

Permissible deductions. - In view of Section 7(2) deductions from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely -

(a) .....

(b) fines;

(c) deduction for damage to or loss of goods expressly entrusted to the employed person for custody; or for loss of money for which he is required to account, where such damage or loss is directly attributable to his neglect or default;

(d) deduction for house accommodation supplied by the employer or by Government or any Housing Board set up under any law for the time being in force (whether the Government or the Board is employer or not) or any other authority engaged in the business of subsidizing house accommodation which may be specified in this behalf by the State Government by notification in the Official Gazette;

(e) deduction for such amenities and services supplied by the employer as the State Government or any Officer specified by it in this behalf may by general or special order authorize.

Explanation. - The word "services" in this sub-clause does not include the supply of tools and raw material required for the purpose of employment;

(f) deductions for recovery of advances of whatever nature (including advances for travelling allowance) and the interest due in respect thereof, or for an adjustment of overpayments of wages.

(g) Deduction for recovery of advances of whatever nature (including advance, for travelling allowance or conveyance allowance), and the interest due in respect thereof, or for adjustment of over payment of wages;

(h) Deductions for recovery of loans made from any fund constituted for welfare of the labour in accordance with the rules approved by the State Government and the interest due in respect thereof;

(i) Deductions for recovery of loans granted for house building or other purpose approved by the State Government and the interest due in respect thereof;

(j) Deduction of income-tax payable by the employed person;

(k) Deductions required to be made by order of a Court or other authority competent to make such order;

(l) Deduction for subscription to and for re-payment of advances from any Provident fund for which the Provident Fund Act, 1925, applies or any recognised Provident fund as defined in Section 58-A of the Indian Income Tax Act, 1922, or any Provident fund approved in this behalf by the State Government during the continuance of such approval;

(m) Deduction for payment to co-operative societies approved by the State Government or to a Scheme of insurance maintained by the Indian Post Office;

(n) Deduction made with written authorization of the person employed for payment of any premium on his life insurance policy to the L.I.C. of India established under the Life Insurance Corporation Act, 1956, or for purchase of securities of the Government of India or any State Government or for being deposited in any Post Office saving bank in furtherance of any saving scheme of any such Government;

(o) Deduction made with the written authorisation of the person employed for payment of his contribution to any fund constituted by the employer or a trade union registered under the Trade Union Act, 1926 for the welfare of the employed persons or the members of their families, or both, and approved by the State Government or any Officer specified by it in this behalf, during the continuance of such approval;

(p) Deductions for payment of insurance premium on Fidelity Guarantee Bonds;

(q) Deduction for recovery of losses, sustained by a railway administration on account of acceptance by the employed person of a counterfieit or base coin or mutilated or forged currency notes;

(r) Deduction for recovery of losses sustained by a railway administration on account of the failure of the employed person to invoice to bill, to collect or on account for the appropriate charges, due to that administration, whether in respect of sale of food in catering establishments or in respect of sale of commodities in grain shop or otherwise;

(s) Deduction for recovery of losses sustained by a railway administration on account of any rebates or refunds incorrectly granted by the employed person where such loss directly attributes to his neglect or default; and

(t) Deductions made with the written authorisation of the employed person for contribution to the Prime Minister's National Relief Fund or to such other funds as the Central Government may by notification in the Official Gazette specify.

Ans. Clause (a) of Section 7(2) provides that deduction by way of fine from the wages of an employed person shall be made only in accordance with the provisions of this Act.

Section 8 lays down the general requirements for imposition and deductions of fines. Section 8(1) provides that fines shall be imposed on any employed person in respect of any such acts and omissions on his part as the employer, with the previous approval of the State Government or of the prescribed authority, may have specified by notice under Section 8(2).

A notice specifying such acts and omissions shall be exhibited in the prescribed manner on the premises in which the employment is carried on or in the case of person employed upon a railway (otherwise than a factory) at the prescribed place or places. No fine shall be imposed on any employed person until he has been given an opportunity of showing cause against the fine, or otherwise than in accordance with such procedure as may be prescribed for the imposition of fines.

The total amount of fine which may be imposed in any wage period on any employed person shall not exceed an amount equal to three per cent of the wages payable to him in respect of the wages period. No fine shall be imposed on any employed person who is under the age of fifteen years. No fine imposed on any person shall be recovered from him by instalments or after the expiry of sixty days from the day on which it was imposed. Every fine shall be deemed to have been imposed on the day of the Act or omission in respect of which it was imposed.

All fines and all realizations of the fine shall be recorded in a register to be kept by the person responsible for the payment of wages under Section 3, in such form as may be prescribed. All realizations of fine shall be applied only to such purposes beneficial to the persons employed in the factory or establishments as are approved by the prescribed authority.

Ans. Section 15 deals with the appointment of authority and its jurisdiction to decided claims, arising out of deductions from wages, or delay in payment of wages and penalty for malicious or vexatious claims. The section also provides for the procedure to be adopted in such cases and the power of such an authority.

Appointment of authority. - Sub-section (1) of Section 15 deals with the appointment of such an authority. The sub-section lays down that the State Government may appoint any of the following to be the Authority;

(a) a Presiding Officer of any labour Court or industrial Tribunal constituted under Industrial Disputes Act, 1947, or under any corresponding law relating to the investigation and settlement of industrial disputes in force in the State; or

(b) Commissioner for Workmen's Compensation; or

(c) Other Officer with experience as a judge of a Civil Court or as a stipendiary magistrate.

Procedure of selection and authority. - The person is to be selected by the State Government and the Officer may be a retired person. The authority appointed under this section is empowered to hear and decide for specified area -

(1) all claims arising out of deduction from wages; and

(2) delay in payment of wages of the persons employed or paid in that area.

Jurisdiction of such authority. - Section 15 gives the authority so appointed two-fold jurisdiction of deciding -

(1) firstly, all claims arising out of deduction from wages; and

(2) secondly, the delay in payment of wages.

Sub-section (2) of Section 15 enables the employed person to move the authority for a direction under Section 15 of the Act in the following cases :-

(1) when any deduction has been made contrary to the provisions of Sections 7 to 13 of the Act; or

(2) when any payment of wages has been delayed within the meaning of Section 4.

Any of the following persons may move the authority -

(a) The person aggrieved;

(b) Legal practitioner;

(c) An Officer of a registered Trade Union authorised on behalf of the aggrieved person;

(d) An Inspector appointed under Section 14 of the Act.

(e) A stranger with the permission of the authority.

Limitation. - An application under Section 15(2) may be made within twelve months :-

(a) from the date on which the deduction from the wages was made; or

(b) from the date on which the payment of wages was due to be made.

In "Krishan Prasad Gupta v. Controller, Printing and Stationery" AIR 1996 SC 408 it was observed that the "Authority", constituted under Section 15 and the Appellate Authority under Section 17 of the Payment of Wages Act, fall within the exception indicated in Section 28 of the Administrative Tribunals Act and this Act, namely, Payment of Wages Act, is positively covered by the connotation "Corresponding Law" used in that Section. Consequently, the jurisdiction of the Authority to entertain and decide claim cases under Section 15 of the Payment of Wages Act is not affected by the establishment of the Administrative Tribunals.

In "Dilbagh Rai Jerry v. Union of India" AIR 1974 SC 130 it was observed that First proviso to Section 15(2) ex facie indicates two alternative terminii a quo for limitation, namely (i) the date on which deduction from wages was made, or (ii) the date on which the payment of the wages was due to be made. Terminus a quo (i) in the proviso expressly relates to the deduction of wages, while (ii) is referable to the delayed wages. It cannot be said that the two expressions "wages deducted" and "wages delayed" though used in the alternative carry the same meaning, and in the proviso are always referable to one and the same time. The very fact that two distinct starting points of limitation referable to two distinct concepts, have been stated in the proviso, shows that the Legislature had visualised that the date of deduction of wages and the due date of delayed wages, may not always coincide. The legislature is not supposed to indulge in tautology; and when it uses analogous words or phrases in the alternative, each may be presumed to convey a separate and distinct meaning, the choice of either of which may involve the rejection of the other.

Procedure for hearing. - Section 15(3) lays down the broad heads of the procedure which is to be followed by the authority when an application has been presented. When an application is properly entertained, the authority shall hear the applicant and the employer of the person responsible for giving the payment of wages under Section 3. The authority may give them an opportunity being heard and after such further enquiry as may be necessary, give a direction of refunding the unauthorised deduction or for the payment of wages delayed along with the compensation, i.e. if any, which may not exceed the amount of the unauthorised deduction and not exceeding Rs. 25 in the case of delay in payment of wages.

No direction by the authority. - In the following cases the authority shall not make a direction in case of delay wages if the authority is satisfied that that the delay was due to -

(a) bona fide error or bona fide dispute as to the amount payable; or

(b) the occurrence of an emergency, or the existence of exceptional circumstances; or

(c) the failure of the employed person to apply for or accept payment.

Malicious or vexatious applications. - If the authority hearing any application is satisfied that it was either malicious or vexatious, the authority may impose a fine not exceeding Rs. 50 to be paid to employer or other person responsible for the payment of wages by the person making the application. [Section 15 (4)]

Ans. The object of the Employees' Provident Funds Act, is to provide for the institution of Provident funds, Pension fund and deposit linked insurance funds for employees in factories and other establishments. The principal duty is laid upon the employer to put the Provident Fund Scheme into operation and to make contribution of both the employees' and employer's share to the fund then and there and deduct the employees' share from their wages. The Act extends to the whole of India except the State of Jammu and Kashmir. The Act and Scheme were enforced in the scheduled industries in November 1952. There had been a persistent demand for extension of the Employees' Provident Funds Act to all categories of industrial workers and the Planning Commission and Tripartite Consultative Committees recommended for such extension. The Act was accordingly extended to many additional industries so as to cover millions of employees.

Employees' Provident Funds (Amendment) Act, 1956 empowered the Government to extend the Act to non-factory establishments. In view of the Amendment Act, 1976, this Act is now called Employees' Provident Funds and Miscellaneous Provisions Act, 1952. According to Section 1 (3) (a) this Act applies to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed. According to Section 1 (3) (a) it shall also apply to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf.

In "Andhra University v. Regional Provident Fund Commissioner of Andhra Pradesh" AIR 1986 SC 463 it was observed that the Act is a beneficent piece of Social Welfare legislation aimed at promoting and securing the well being of the employees and the Court will not adopt a narrow interpretation which will have the effect of defeating the very object and purpose of the Act. Once it is found that there is an establishment which is a `Factory' engaged in an `industry' specified in Schedule I and employing 20 or more persons the provisions of the Act will get attracted to the case and it makes no difference to this legal position that the establishment is run by a larger organisation which may be carrying on other additional activities falling outside the Act.

Ans. Employee's Provident Fund Scheme. - The Central Government by notification in the Official Gazette, frame Scheme to be called the Employees' Provident Fund Scheme for the establishment of Provident funds under the Act for employees or for any class of employees and specify the establishments or class of establishments to which the said Scheme shall apply and there shall be established, as soon as may be, after the framing of the Scheme, a fund in accordance with the provisions of this Act and the Scheme. (Section 5)

The fund shall vest in and be administered by the Central Board.

The contribution which shall be paid by the employer to the fund shall be eight and one-third per cent of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees, and the employee's contribution shall be equal to the contribution payable by the employer in respect of him, and may, if any employee so desires, be an amount exceeding eight and one-third per cent of his basic wages, dearness allowance and retaining allowance, if any.

The Board of Trustees constituted for administering the fund under the Scheme shall be a body corporate.

The Central Government may by notification in the Official Gazette, amend or vary either prospectively or retrospectively, the Scheme or the Family Pensions Scheme or insurance Scheme as the case may be. [Section 7 (1)].

The amount standing to the credit of any member in the fund or of any exempted employee in a Provident fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Court in respect of any debt or liability incurred by the member or the exempted employee and neither the Official Assignee appointed under the Presidency Towns Insolvency Act, 1909, nor any Receiver appointed under the Provincial Insolvency Act, 1920, shall be entitled to, or have any claim on any such amount. [Section 10 (1)].

It is further provided in Section 10 (2) that any amount standing to the credit of a member in the fund or of an exempted employee in a Provident fund at the time of death and payable to is nominee under the Scheme or the rules of the Provident fund, shall subject to any deduction authorised by the said Scheme or rules, vest in the nominee and shall be free from any debt or other liability incurred by the deceased or the nominee before the death of the member or of the exempted employee, and shall also not be liable to attachment under any decree or order of Court.

The provisions of sub-section (1) and sub-section (2) shall, so far as may be, apply in relation to the Family Pension or any other amount payable under the Family Pension Scheme and also in relation to any amount payable under the Insurance Scheme as they apply in relation to any amount payable out of the fund.

Ans. Priority of payment of contributions. - Section 11 of the Act provides that where an employer is adjudicated insolvent or, being a company, an order for winding up is made, the amount due :-

(a) from the employer in relation to an establishment to which any Scheme applies in respect of any contribution payable to the fund, damages recoverable under Section 14-B, accumulations required to be transferred under sub-section (2) of Section 15 or any charges payable by him under any other provisions of this Act or of any provision of the Scheme, or the Insurance Scheme; or

(b) from the employer in relation to any exempted establishment in respect of any contribution to the Provident fund or any insurance fund (in so far as relates exempted employees), under the rules of the Provident fund any contribution payable by him towards the Family Pension fund under section 14-B or any charge payable by him to the Appropriate Government under the provisions of this Act or under any of the conditions specified under Section 17;

shall, where the liability therefor has accrued before the order of adjudication or winding up is made, be deemed to be included amount the debts which under Section 49 of the Presidency Insolvency Act, 1920 or under Section 230 of the Companies Act, 1956 are to be paid in priority to all other debts in distribution of the property of the insolvent or the assets of the company being wound up, as the case may be.

Explanation. - In this sub-section and in Section 17, the Insurance Fund, means any fund established by an employer under any Scheme for providing benefits in the nature of life insurance to employees, whether linked to their deposits in Provident fund or not, without payable by the employees of any separate contribution or premium in that behalf.

According to sub-section (2) of Section 11, without prejudice to the provisions of sub-section (1), if any amount is due from an employer in respect of the employee's contribution deduction, from the wages of the employee or the employer's contribution, the amount so due shall be deemed to be the first charge on the assets of the establishment and shall, notwithstanding anything contained in any other law, for the time being in force, be paid in priority to all other debts.

Section 11 of the Act deals with the priority of payment of contribution over other debts, but it is restricted only when the employer is adjudicated insolvent or in the case of company, when ordered to be wound up. It is clear that the payment of contribution has no priority over secured and unsecured debts. [State Bank of Indore v. Regional Provident Funds Commissioner, 1977(2) LLJ 622]

Ans. Circumstances under which a company is said to be guilty of an offence under the Act. - Section 14-A of the Act deals with this subject. It lays down as follows :

(1) If a person committing an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme, is a company, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act, the Scheme, the Family Pension Scheme or the Insurance Scheme, has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Explanation :- For the purpose of this section :-

(a) company means any body corporate and includes a firm and other association of individuals, and

(b) director in relation to a firm means a partner in the firm.

Ans. Section 13 of the Act speaks of Inspectors who are to be appointed to secure the proper enforcement of the Act. Such Inspectors appointed under the Act shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code. The Section lays down the purpose of the appointment of Inspectors to enquire into the correctness of any information furnished in connection with the Act or with any Scheme or for purpose of ascertaining whether any of the provisions of the Act or any Scheme has been complied with or not or for the purpose of ascertaining whether the provisions of this Act or Scheme are applicable to an establishment or for other purposes which have been specified in detail in this section.

Appointment. - Sub-section (1) of Section 13 lays down that the Appropriate Government may, by notification in the Official Gazette, appoint such persons it thinks fit to be Inspectors for the purpose of this Act or of any Scheme, the Family Pension Scheme or the Insurance Scheme and may define their jurisdiction.

Powers. - The Central Provident Funds Commissioner, Deputy Provident Funds Commissioner or Regional Provident Funds Commissioner, may, by order determine the amount due from any employer under any provision of this Act or of the Scheme. The Officer conducting the inquiry shall have the same powers as are vested in a Court under the Code of Civil Procedure in respect of the following maters :-

(a) enforcing the attendance of any witness or examining him on oath;

(b) requiring the discovery and production of document;

(c) receiving evidence on affidavits; and

(d) issuing commissions for examining witnesses.

Powers of Inspectors. - An Inspector appointed under the Act according to the provisions of Section 13 (2) may -

(1) For the purpose of enquiring into the correctness of any information furnished in connection with this Act or with any Scheme or the Insurance Scheme or for the purpose of ascertaining whether any of the provisions of this Act or of any Scheme or the Insurance Scheme has been complied with in respect of an establishment to which any Scheme or the Insurance Scheme applied or for the purpose of ascertaining whether the provisions of this Act or any Scheme are applicable to any establishment to which the Scheme or the Insurance Scheme has not been applied or for the purpose of determining whether the conditions subject to which exemption was granted under Section 17 are being complied with by the employ or in relation to an exempted establishment -

(a) require an employer or any contractor from whom any amount is recoverable under Section 8-A to furnish such information as he may consider necessary;

(b) at any reasonable time and with such assistance, if any, as he may think fit, enter and search any establishment or any premises connected therewith and require any one found in charge thereof to produce before him for examination :-

(i) any account,

(ii) registers, and

(iii) other documents relating to the employment of persons or the payment of wages in the establishment;

(c) examine, with respect to any matter relevant to any of the purposes aforesaid, the employer or any contractor from whom any amount is recoverable under Section 8-A, his agent or servant or any or any other person found in charge of the establishment or any premises connected therewith or whom the Inspector has reasonable cause to believe to be or to have been, an employee in the establishment;

(d) make copies of or take extracts from any book, register or other document maintained in relation to the establishment and where he has reason to believe that any offence under this Act, has been committed by an employee, seize with such assistance as he may think fit, such book, register or other document or portions thereof as he may consider relevant in respect of the offence;

(e) exercise such other powers as specified in the Scheme.

(2) Any Inspector appointed under sub-section (1) may for the purpose of inquiring into the correctness of any information furnished in connection with the Family Pension Scheme or for the purpose of ascertaining whether any of the provisions of this Act or of the Family Pension Scheme have been complied with in respect of an establishment to which the Family Pension Scheme applies, exercise all or any of the powers conferred on him under clause (a) clause (b), clause (c), or clause (d) of sub-section (2).

(3) The provisions of the Code of Criminal Procedure, 1973 so far as may be apply to any search or seizure under sub-section (2) or under sub-section (2) as the case may be as they apply to any search or seizure made under the authority of a warrant issued under Section 98 of the said Code.

(4) Every Inspector shall be deemed to be a public servant within the meaning in Section 21 of the Indian Penal Code.