CONSTITUTIONAL FRAMEWORK OF LABOUR LAWS

Sasi K.G.

01. INTRODUCTION

The Constitution of India, having passed by the Constituent Assembly of India on 26^th November, 1949 and came into force on 26^th January, 1950 is much younger than the Labour Law Legislations in India. Even the Labour Law Legislations were the historical outcome of a number of agitations by the collective strength of the working class, whose growth was in par with the industrial growth in India which was meagre at its origin in the early nineteenth century. Thus it is inevitable to approach the subject with a comparative methodology that is essentially having reference to the European history of the subject in discussion. The scope of the study of the constitutional framework of labour Laws of India is very vast and covers a lot of areas. However, this paper does not deal with all labour legislations in India, but resorts only to three representative legislations, namely Trade Union Act, 1926, Industrial Employment (Standing Orders) Act, 1946 and Industrial Disputes Act, 1947.

02. HISTORY OF LABOUR LAWS

The history of labour organizations and labour laws include the history of labour guilds that existed in Europe.

01. Early guild-like associations

In medieval cities, craftsmen tended to form associations based on their trades, confraternities of textile workers, masons, carpenters, carvers, glass workers, etc. each of whom controlled secrets of traditionally imparted technology, the "arts" or "mysteries" of their crafts. Usually the founders were free independent master craftsmen who hired apprentices.[i]

Signs such as traditional wrought-iron guild sign of a glazier in Germany can be found in many old European towns where guild members marked their places of business. Many survived through time or staged a comeback in industrial times. Today they are newly created or even restored, especially in old town areas.

02. Medieval guilds

There were several types of guilds, including the two main categories of merchant guilds and craft guilds[ii] but also the frith guild and religious guild.[iii] The continental system of guilds and merchants arrived in England after the Norman Conquest, with incorporated societies of merchants in each town or city holding exclusive rights of doing business there. In many cases they became the governing body of a town. For example, London's Guildhall became the seat of the Court of Common Council of the City of London Corporation, the world’s oldest continuously elected local government[iv] whose members to this day must be Freemen of the City.[v] The Freedom of the City, effective from the Middle Ages until 1835, gave the right to trade, and was only bestowed upon members of a Guild or Livery.[vi]

Trade guilds arose in the 14th century as craftsmen united to protect their common interest. Early egalitarian communities called "guilds" (for the gold deposited in their common funds) were denounced by Catholic clergy for their "conjurations"—the binding oaths sworn among the members to support one another in adversity, kill specific enemies, and back one another in feuds or in business ventures. The occasion for these oaths were drunken banquets held on December 26, the pagan feast of Jul (Yule)

In the Early Middle Ages, most of the Roman craft organizations, originally formed as religious confraternities, had disappeared, with the apparent exceptions of stonecutters and perhaps glassmakers, mostly the people that had local skills. Gregory of Tours tells a miraculous tale of a builder whose art and techniques suddenly left him, but were restored by an apparition of the Virgin Mary in a dream. Michel Rouche[vii] remarks that the story speaks for the importance of practically transmitted journeymanship.

In France, guilds were called corps de métiers. According to Viktor Ivanovich Rutenburg, "Within the guild itself there was very little division of labour, which tended to operate rather between the guilds. Thus, according to Étienne Boileau's Book of Handicrafts, by the mid-13th century there were no less than 100 guilds in Paris, a figure which by the 14th century had risen to 350."[viii] There were different guilds of metal-workers: the farriers, knife-makers, locksmiths, chain-forgers, nail-makers, often formed separate and distinct corporations; the armourers were divided into helmet-makers, escutcheon-makers, harness-makers, harness-polishers, etc.[ix] In Catalan towns, specially at Barcelona, guilds or gremis were a basic agent in the society: a shoemakers' guild is recorded in 1202. In England, specifically in the City of London Corporation, more than 110 guilds,[x] referred to as livery companies, survive today,[xi] with the oldest more than a thousand years old. Other groups, such as the Worshipful Company of Tax Advisers, have been formed far more recently. Membership in a livery company is expected for individuals participating in the governance of The City, as the Lord Mayor and the Remembrancer.

The guild system survived the emergence of early capitalists, which began to divide guild members into "haves" and dependent "have-nots". The civil struggles that characterize the 14th-century towns and cities were struggles in part between the greater guilds and the lesser artisanal guilds, which depended on piecework. "In Florence, they were openly distinguished: the Arti maggiori and the Arti minori—already there was a popolo grasso and a popolo magro". Fiercer struggles were those between essentially conservative guilds and the merchant class, which increasingly came to control the means of production and the capital that could be ventured in expansive schemes, often under the rules of guilds of their own. German social historians trace the Zunftrevolution, the urban revolution of guildmembers against a controlling urban patriciate, sometimes reading into them, however, perceived foretastes of the class struggles of the 19th century.

Unions in Britain were subject to often severe repression until 1824, but were already widespread in cities such as London. Trade unions were legalised in 1824, where growing numbers of factory workers joined these associations in their efforts to achieve better wages and working conditions. Workplace militancy had also manifested itself as Luddism and had been prominent in struggles such as the 1820 Rising in Scotland, in which 60,000 workers went on a general strike, which was soon crushed. From 1830 on, attempts were made to set up national general unions, most notably Robert Owen's Grand National Consolidated Trades Union in 1834, which attracted a range of socialists from Owenites to revolutionaries. That organisation played a part in the protests after the Tolpuddle Martyrs' case, but soon collapsed.

An important development of the trade union movement in Wales was the Merthyr Rising in May 1831 where coal and steel workers employed by the powerful Crawshay family took to the streets of Merthyr Tydfil, calling for reform, protesting against the lowering of their wages and general unemployment. Gradually the protest spread to nearby industrial towns and villages and by the end of May the whole area was in rebellion, and for the first time in the world the red flag of revolution was flown – which has since been adopted internationally by the trades union movement and socialist groups generally.

03. Charitism

In the later 1830s and 1840s, trade unionism was overshadowed by political activity. Of particular importance was Chartism, the aims of which were supported by most socialerals, although none appear to have played leading roles. Chartism was a working-class movement for political reform in Britain which existed from 1838 to 1858. It took its name from the People's Charter of 1838 and was a national protest movement, with particular strongholds of support in Northern England, the East Midlands, the Staffordshire Potteries, the Black Country, and the South Wales Valleys. Support for the movement was at its highest in 1839, 1842, and 1848, when petitions signed by millions of working people were presented to Parliament. The strategy employed was to use the scale of support which these petitions and the accompanying mass meetings demonstrated to put pressure on politicians to concede manhood suffrage. Chartism thus relied on constitutional methods to secure its aims, though there were some who became involved in insurrectionary activities, notably in south Wales and Yorkshire. The government did not yield to any of the demands, and suffrage had to wait another two decades. Chartism was popular among some trade unions, especially London's tailors, shoemakers, carpenters, and masons. One reason was the fear of the influx of unskilled labour, especially in tailoring and shoe making. In Manchester and Glasgow, engineers were deeply involved in Chartist activities. Many trade unions were active in the general strike of 1842, which spread to 15 counties in England and Wales, and eight in Scotland. Chartism taught techniques and political skills that inspired trade union leadership.[xii]

04. New establishments

Union activity from the 1850s to the 1950s in textiles and engineering was largely in the hands of the skilled workers. They supported differentials in pay and status as opposed to the unskilled. They focused on control over machine production and were aided by competition among firms in the local labour market.[xiii]

After the Chartist movement of 1848 fragmented, efforts were made to form a labour coalition. The Miners' and Seamen's United Association in the North-East, operated 1851–1854 before it too collapsed because of outside hostility and internal disputes over goals. The leaders sought working-class solidarity as a long-term aim, thus anticipating the affiliative strategies promoted by the Labour Parliament of 1854.[xiv]

More permanent trade unions were established from the 1850s, better resourced but often less radical. The London Trades Council was founded in 1860, and the Sheffield Outrages spurred the establishment of the Trades Union Congress in 1868. The legal status of trade unions in the United Kingdom was established by a Royal Commission on Trade Unions in 1867, which agreed that the establishment of the organisations was to the advantage of both employers and employees. Unions were legalised in 1871 with the adoption of the Trade Union Act 1871.

05. New Unionism: 1889–93

The "aristocracy of labour" comprise the skilled workers who were proud and jealous of their monopolies, and set up labour unions to keep out the unskilled and semiskilled. The strongest unions of the mid-Victorian period were unions of skilled workers such as the Amalgamated Society of Engineers. Trade unionism was quite uncommon amongst semi-skilled and unskilled workers.[xv] The union officials avoided militancy, fearing that strikes would threaten the finances of unions and thereby their salaries. An unexpected strike wave broke out in 1889–90, largely instigated by the rank and file. Its success can be explained by the dwindling supply of rural labour, which in turn increased the bargaining power of unskilled workers. The New Unionism starting in 1889 was a systematic outreach to bring in as union members the striking unskilled and semiskilled workers. Ben Tillett was a prominent leader of the London Dock strike of 1889. He formed the Dock, Wharf, Riverside and General Labourers' Union in 1889, which had support from skilled workers. Its 30,000 members won an advance in wages and working conditions.[xvi] Unions played a prominent role in the creation of the Labour Representation Committee which effectively formed the basis for today's Labour Party.

06. Women

Women were largely excluded from trade union formation, membership, and hierarchies until the late 20th century. When women did attempt to challenge male hegemony and make inroads into the representation of labour and combination, it was largely due to the tenacity of middle-class reformers such as the Women's Protective and Provident League (WPPL) which sought to amiably discuss conditions with employers in the 1870s. It became the Women's Trade Union League.[xvii] Militant Socialists broke away from the WPPL and formed the Women's Trade Union Association, but they had little impact.[xviii] There were a few cases in the 19th century where women trade union members took initiative. In the 1875 West Yorkshire weavers' strike, women did play a central role.[xix]

07. Children

The rapid industrialization of manufacturing at the turn of the 19th century led to a rapid increase in child employment, and public opinion was steadily made aware of the terrible conditions these children were forced to endure. The Factory Act of 1819 was the outcome of the efforts of the industrialist Robert Owen and prohibited child labour under nine years of age and limited the working day to twelve. A great milestone in labour law was reached with the Factory Act of 1833, which limited the employment of children under eighteen years of age, prohibited all night work and, crucially, provided for inspectors to enforce the law.  Factory Act of 1847 restricted the working hours of women and children in British factories to effectively 10 hours per day.

08. Legislations

A series of further Acts, in 1860 and 1872 extended the legal provisions and strengthened safety provisions. Steady development of the coal industry, increasing association among miners, and increased scientific knowledge paved the way for the Coal Mines Act of 1872, which extended the legislation to similar industries. The same Act included the first comprehensive code of regulation to govern legal safeguards for health, life and limb. National minimum wage laws were first introduced in the United States in 1938, Brazil in 1940 India in 1948, France in 1950 and in the United Kingdom in 1998. In the European Union, 18 out of 28 member states have national minimum wages as of 2011.

09. The Chicago Revolutionalists

There has always been a strong radical element amongst the organized workers of America. Indeed, in the decade prior to 1890 the whole movement was dominated by a militant spirit. The revolutionaries of those days attached themselves to the established trade unions and made their influence felt upon them. The tremendous "eight-hour day movement of that period, accompanied by colossal strikes, fought with great bitterness and militancy, was the fruit of their work. The Chicago anarchists who were hanged in 1887 were trade unionists and the real crime for which they were foully murderer was not bomb throwing, but revolutionary agitation in the labor unions.

03. LABOUR LAWS IN INDIA

Trade unionism is a world-wide movement. The evolution and growth of trade unionism has been sine qua non with growth in industrialization. Accordingly, the evolution of trade unionism in India is traced back towards the latter half of the nineteenth century.

The origin and development of trade union movement in India may well be studied under distinct phases with their distinguishing features from others. There are six phases of trade union movement in India are as follows:

01. Pre-1918 Phase

The earliest trade union in India was formed in Bombay when textile mills were established in 1851. In 1854 with the establishment of jute mills in Calcutta trade unions emerged there also. It was given to a social reformer Shorabji Shapurji Bengali to champion the cause of workers.

The setting up of textiles and jute mills and laying of the railways since 1850 played the way for that emergence of industrial activity and, in turn, labour movement in India. Some researchers have traced the origin of labour movement in India dated back to 1860. However, most of the writers on the subject trace the history of labour movement in India since 1875.

The first labour agitation, under the guidance and leadership of Mr. S. S. Bengalee, a social reformist and philanthropist, started in Bombay in 1875 to protect against the appalling conditions of workers in factories, especially those of women and children and appealed to the authorities to introduce legislation for the amelioration of their working conditions.

1872 saw C.P.Majumdar open six night schools in Bombay to remove illiteracy. Shripad Bannerji formed Brahmo Samaj: Working Men's Mission Bara Bazar in 1878. In 1879 first Factory Commission was set up to study the problems of workers.

As a result, the first Factory Commission was appointed in Bombay in the year 1875 and the first Factories Act of India was passed in 1881. Mr. N. M. Lokhande may be said to be the founder of organised labour movement in India who founded the first trade union in the country, namely, the Bombay Mill Hands Association (1890). This was followed by a series of associations such as the Amalgamated Society of Railway Servants in India (1897), The Printers’ Union of Calcutta (1905), The Madras and Calcutta Postal Union (1907), and the Kamgar Hitwardhak Sabha (1910). All these unions aimed at promoting welfare facilities for workers and spreading literacy among them.

Indian Factory Act 1881, however, remained ineffective. In 1884, Second Factory Commission was set up to which a memorandum signed by Narayan Meghji Lokhande with 5,300 workers submitted and Lokhande emerged as the first trade union leader in India. In 1885, Indian National Congress was born leading into the spirit for a fight for freedom. In 1895, Jute workers in Calcutta in Budge Budge jute mill resorted to strike for six weeks. In 1881 and 1890 Ghoossory Cotton Mills, Howrah saw strike of workers lasting for over a month. On 24.04.1890, Lokhande arranged a mass rally of 10,000 workers, where two women demanded Sunday as weekly off. A first memorandum was submitted to Mill Owner's Association too. On 10.08.1890, Mill owners accepted workers’ demand. This was the first trade union victory in India.

This victory of 1890 ushered the first trade union called Bombay Mill Hands Association. This Union had no funds, no office bearers or committee members. In 1890, Third factory commission was set-up. Lokhande filed petition with 17,000 workers behind him and workers gained in solidarity. In 1881, first Indian Factory Act was passed with stipulation of 11 hours’ work for women and half hour rest. Child labour was partly restrained too.

The strikes of 1903 (Madras Press Workers), 1905 (Printers Union, Calcutta), 1907 (Bombay Postal Union), etc added momentum to the trade union activity of India.

In 1905, Employees of Government Press in Calcutta resorted to strike. In 1907, Railwaymen strike took place in different railways. Workers struck work against trial of Balgangadhar Tilak. Lokhande prepared a charter of demand containing weekly-off, half hour rest at noon, work to begin at 6.30 a.m., end at sun set, payment of wages not later than 15 days from due date, payment of wages for injuries during employment, etc.  This demand eventually led to the enactment of Workmen's Compensation Act, 1923.

New Unions were formed in 1895 (Ahmedabad Weavers), in 1896 (Jute Mills, Calcutta), in 1897 (Bombay Mill Workers), in 1910 (Social League) etc.

The broad features of the labour movement during the pre-1918 phase may be subsumed as:

(i) The movement was led mostly by the social reformers and philanthropists and not by the workers.

(ii) There was, in fact, no trade union in existence in the true sense.

(iii) The labour movement was for the workers rather than by the workers.

(iv) The movement was confined to the revolt against the conditions of child labour and women workers working in various industries under appalling conditions.

02. 1918-1924 Phase

The phase 1918-1924 is considered as the era of formation of modem trade unionism in the country. The trade union movement got momentum just after the close of the World War I. The post­war economic and political conditions contributed to the new awakening of class consciousness among the workers. This led to the formation of trade unions in the truly modem sense of the term.

As a result, Ahmedabad Textile Labour Association (1917), led by Shrimati Ansuyaben Sarabhai; the Madras Labour Union (1918), led by B. P. Wadia; Indian Seamen’s Union, Calcutta Clerk’s Union; and All India Postal and RMS Association were formed.

The various factors that influenced the growth of trade union movement in India during this phase may be briefly catalogued as follows:

1. The wretched conditions of workers on account of spiralling prices of essential commodities during the post-World-War I led workers to form trade unions to improve their bargaining power and, in turn, living conditions.

2. The political scenario characterized by the home-rule movement and the martial law in Punjab made the politicians to recognize the workers movement as an asset to their cause. At the same time, workers also needed able guidance and leadership from the politicians to settle their grievances with the employers.

3. The Russian Revolution also swayed the labour movement in India showing a new social order to the common man in the country.

4. The setting up of the International Labour Organisation (ILO) in 1919 also gave a big fillip to the labour movement in India. India becoming a founder-member of the ILO required deputing delegates to the ILO. Mr. N. M. Joshi for the first time was deputed as the representative from India to International Labour Conferences and Sessions. It ignited workers’ anxiety to organize. As a result, the All India Trade Union Congress (AITUC) was formed in 1920. By 1924, the trade union movement in India proliferated to the extent of 167 trade unions with a quarter million members. This period in the history of trade union movement has been described as the Early Trade Union Period.

03. 1925-1934 Phase

With increasing hardships of workers, the signs of militant tendencies and revolutionary approach in trade unionism got expression into violent strikes since 1924. The communists gained influence in trade union movement during this period. They split the Trade Union Congress twice with their widening differences with the left-wing unionists.

The moderate section under the leadership of Mr. N. M. Joshi and Mr. V. V. Giri seceded from the Congress and set up a separate organization named the National Trade Unions Federation (NTUF).

Another split in AITUC took place in 1931 at its Calcutta session when the extreme left wing under the leadership of Messrs S. V. Deshpande and B T Randive broke away and formed a separate organization, namely, the All India Red Trade Union Congress Two Years later, the National Federation of Labour was formed to facilitate unity among all the left-wing organizations of labour. As a result, the AITUF and NFL merged to form the National Trade Union Federation (NTUF).

Another important feature of this period was the passing of two Acts, namely, the Trade Unions Act 1926 and the Trade Disputes Act, 1929 which also gave a fillip to the growth of trade unionism in India. The former Act provided for voluntary registration and conferred certain rights and privileges upon registered unions in return for obligations. The later Act provided for the settlement of trade unions. This phase of the Indian labour movement may be described as The Period of Left Wing Trade Unionism.

04. 1935-1938 Phase

The Indian National Congress was in power in seven provinces in 1937. This injected unity in trade unions. As a result, the All India Red Trade Union Congress itself with the AITUC in 1935. After three years in 1938, the National Trade Union Congress (NTUC) also affiliated with the AITUC. Other factors that contributed to the revival of trade unions were increasing awakening among the workers to their rights and change in the managerial attitude towards trade unions.

In 1938, one of the most developments took place was the enactment of the Bombay Industrial Disputes Act, 1938. An important provision of the Act, inter alia, to accord compulsory recognition of unions by the employers gave a big fillip to the growth of trade unionism in India.

05. 1939-1946 Phase

Like World War I, the World War II also brought chaos in industrial front of the country. Mass retrenchment witnessed during the post-World War II led to the problem of unemployment .This compelled workers to join unions to secure their jobs. This resulted in big spurt in the membership of registered trade unions from 667 in 1939-40 to 1087 in 1945-46.

So much so workers in the registered trade unions witnessed a phenomenal increase from 18,612 to 38,570 during the same period. The AITUC again split in 1941 when Dr. Aftab Ali, President of the Seamen s Association, Calcutta disaffiliated his union from the Congress and formed a new organization known as the “Indian Federation of Labour”.

The year 1946 was also marked by two important enactments, namely, the Industrial Employment (Standing Orders) Act, 1946 and the Bombay Industrial Relations Act, 1946. Both the Acts, through their provisions, contributed to strengthen the trade unionism in the country.

06. 1947 and Since

Proliferation of trade unions in the pattern of proliferation of political parties has been a distinguishing feature in the trade union history of India during the post-Independence period. In May 1947, the Indian National Trade Union Congress (INTUC) was formed by the nationalists and moderates and was controlled by the Congress Party. Since by then, the AITUC is controlled by the Communists.

The Congress socialists who stayed in AITUC at the time of the formation of INTUC subsequently formed the Hind Mazdoor Sabha (HMS) in 1948 under the banner of the Praja Socialist Party. Subsequently, the HMS was split up with a group of socialist and formed a separate association, namely, “Bhartiya Mazdoor Sabha” (BMS) which is now an affiliate of the Bhartiya Janata Party (B JP). Years after, the communist party split into various fractions forming the United Trade Union Congress (UTUC) and the Center of Indian Trade Unions (CITU).

Later again, a group disassociated itself from the UTUC and formed another UTUC—Lenin Sarani. Of late, with the emergence of regional parties since 1960, most of the regional parties have shown its inclination to a trade union wing, thus, adding to the proliferation of trade unions in the country. Thus, it is clear that the origin and growth of trade union movement in India is riddled with fragmented politicization.

07. Growth of the Trade Union Movement in India

A table of the growth of trade unions in India is given below.

Growth of the Trade Union Movement in India

Year	Number of Registered Trade Unions	Number of Unions furnishing information	Membership of the Unions submitting Returns (in lakhs)
1951-1952	4623	2556	20
1961-1962	11614	7087	40
1971	22484	9029	55
1981	35539	6082	54
1987	49329	11063	79
1990	52016	8828	70
1993	55784	6806	49.8

08. Main Trade Unions of India

The All India Trade Union Congress (AITUC) came into existence in 1920 mainly on the pattern of the British Trade Unions. It serves as the labour forum of Communist party of India at present.

The Indian National Trade Union Congress (INTUC) was formed in May 1947 by the Congress Party and the top congress leaders like Mr. Nehru and Patel were associated with it.

The United Trade Union Congress (UTUC) was formed on 30th April 1949 by those persons who were dissident socialists. Its political affiliations are with left-wing parties.

The Bharatiya Mazdoor Sangh (BMS) was formed on 23^rd July, 1955 as an affiliate to Bhartiya Jan Sangh Party.

The Centre of Indian Trade Unions (CITU) was formed in 1970.

The Hind Mazdoor Sangh (H.M.S.) was formed in December 1981 in Calcutta by the socialists who neither approved INTUC nor AITUC. The HMS was organised with a view to keeping its members free from any political or other outside interference. The Praja Socialist party and Samyuktha Socialist party had dominated this union.

09. History of Industrial Relations in India

The history of industrial relations, in India, can be seen in the following Context:

1. Pre independence Era  

2. Post-independence era.

3. Post Liberalization Era

01. Pre independence era

In India, following are the key issues about industrial relations at that time:

1. Workers used to have faced hired and fired policy. Employer used to fire workers at any stage of work for any reason. Worker was not having right to ask for explanation.

2. Employer was in commanding position over all workers. Workers have to do a work assigned by the employer.

3. The wages were very poor according to the nature of work and time of work.

4. Till the end of First World War trade unions movement had not emerged in India.

There were hardly any laws were present to protect the rights of workers except that of Employers and Workmen Dispute Act 1860 which was used to settle wage disputes. As results it has following implications from IR point of view:

1. Workers started resorting to violence and employers resorted to lockouts.

2. Numerous strikes and disturbances happened the great depression during 1928 and 1929.

As a result to above Government enacted Trade Disputes Act 1929 to enhance early settlement of industrial dispute based on British Industrial Courts (Act) 1919. But it did not provide for any standing machinery to settle industrial disputes and also state and central government made no adequate use of this law. In 1938, to meet acute industrial unrest prevailing then, Bombay Industrial Relations (BIR) Act was enacted by Bombay Government. For the first time permanent machinery called Industrial Court was established for settling disputes. This was replaced by BIR Act 1946, which was amended in 1948, 1949, 1953 and 1956 and so on. Soon after the Second World War, India faced many problems like rise in cost of living, high population, scarcity of essential commodities, unemployment and turbulent Industrial relations situation.

02. Post-Independence Era

After independence significant steps were taken to protect the rights of labour and provided a formal mechanism to settle their disputes. These enactments not only served as a machinery to settle industrial disputes but also to make these awards binding and legally enforceable on the parties. Constitution of India came into existence giving many rights to the citizens of India. Besides this Industrial Conference in December 1947 was held in India where an appeal was made to labor and management India in form of Industrial Truce Resolution to maintain industrial peace and harmony. The points are:

1. Setting up of Indian Labor Conference, a tripartite body with an objective to ensure Co-operation between employers, trade Unions and Government.

2. The above body met to discuss problems relating to labor-management relations and recommended and formulated the legislations.

However Indian Labor Conference met sporadically depending upon the concerns and issues of Labor Ministry. Main characteristic feature of industrial relation during this period was a change in Government’s attitude towards labor and their problems in the form of continuous focus on labour laws enactment. These labor laws cover many issues concerning labor, such as seniority, wage rates, paid holidays, disciplinary matters, social security. To protect the interest of workers and regulate their employment many acts came into existence: Some of the important labour enactments took place in post-independence era were:

1. Factories Act, 1948

2. Industrial Disputes Act, 1947

3. Employees State Insurance Act, 1948

4. Employees Provident Fund Act, 1952

5. Model Standing Orders Act, 1946

6. Payment of Minimum Wages Act, 1948

7. Payment of Bonus Act, 1965

8. Payment of Gratuity Act, 1972

9. Equal Remuneration Act, 1976

Despite all the above legal enactments and focus Industrial Reforms through legislations, formations of different bodies to facilitate Industrial Relations in India, Industrial Reforms Scenario during 1970’s to late 1980’s was characterized by violence in Indian Industry. Bombay Textile Industrial Reforms unrest took place during this phase. And there was industrial unrest across the country in many other companies. This unrest IR unrest caused many violent incidents in the Indian industry and as a result of these incidents; workers were losing confidence and getting impatient due to weaker prevailing collective bargaining situations. Other reasons for this continuous unrest in the Indian industry include government’s inability to maintain price levels, inability to provide effective settlement machinery, plethora of controls on manufacturing and its rigid licensing procedures, high rate of taxation, restriction on imports that affected the profits. All these were not only putting pressure on workers as well as the employers to run the business smoothly. The whole of above was having its impact on the Indian IR scenario and business performance in the country.

03. Post-Liberalization Era

Liberalization came in India in 1990s and it has caused a huge change in the Indian Industry. It opened the door for MNC companies in India which attracted foreign investment in the country. This has increased employment opportunity in India, increased flexibility for investment, import of new technology, new ways of doing business, automation, added new infrastructure and creation of world class facilities in the country. It also leveled up the quality of products, delivery and service standards in the industry.

Employees and workers were exposed to different world class technologies and work environment. Industry has witnessed unprecedented increase in salaries and benefits. Talent in Indian Industry received international exposure through visits to parent companies and their work culture and practices. The Liberalization had impact on IR in terms of reduction in labour disputes in the1990s.

However it has also caused stress in terms of increased competition, and pressure on maintain low costs. Increase in outsourced or contract manpower to main employee related cost to the minimum level and also to ensure flexibility in company operations. This has caused a divide among the blue collar and contract manpower. Due to increased automation employment growth has also slowed down in 1991 from 1.6 to 1.1 in 1998[xx]. Employment insecurity among the labour has increased. And all this reflects in resurgence of IR in Indian Industry, frequent instances of agitations ( some of them being violent in nature) in companies – Baxter, Maruti, Toyota, Baja, Coca Cola, Nokia, Shriram Piston and Hyundai etc.

10. Labour Legislations in India

The Labour legislations in India can be categorized as follows.

1) Labour laws enacted by the Central Government, where the Central Government has the sole responsibility for enforcement.
2) Labour laws enacted by Central Government and enforced both by Central and State Governments.
3) Labour laws enacted by Central Government and enforced by the State Governments.

4) Labour laws enacted and enforced by the various State Governments which apply to respective States.

01. Labour laws enacted by the Central Government, where the Central Government has the sole responsibility for enforcement

1. The Employees’ State Insurance Act, 1948
2. The Employees’ Provident Fund and Miscellaneous Provisions Act,1952
3. The Dock Workers (Safety, Health and Welfare) Act, 1986
4. The Mines Act, 1952
5. The Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labour Welfare (Cess) Act, 1976
6. The Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labor Welfare Fund Act, 1976
7. The Mica Mines Labour Welfare Fund Act, 1946
8. The Beedi Workers Welfare Cess Act, 1976
9. The Limestone and Dolomite Mines Labour Welfare Fund Act, 1972
10. The Cine Workers Welfare (Cess) Act, 1981
11. The Beedi Workers Welfare Fund Act, 1976
12. The Cine Workers Welfare Fund Act, 1981

02. Labour laws enacted by Central Government and enforced both by Central and State Governments

13. The Child Labour (Prohibition and Regulation) Act, 1986.
14. The Building and Other Constructions Workers’ (Regulation of Employment and Conditions of Service) Act, 1996.
15. The Contract Labour (Regulation and Abolition) Act, 1970.
16. The Equal Remuneration Act, 1976.
17. The Industrial Disputes Act, 1947.
18. The Industrial Employment (Standing Orders) Act, 1946.
19. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979.
20. The Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by Certain Establishments) Act, 1988
21. The Maternity Benefit Act, 1961
22. The Minimum Wages Act, 1948
23. The Payment of Bonus Act, 1965
24. The Payment of Gratuity Act, 1972
25. The Payment of Wages Act, 1936
26. The Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981
27. The Building and Other Construction Workers Cess Act, 1996
28. The Apprentices Act, 1961
29. Unorganized Workers Social Security Act, 2008
30. Working Journalists (Fixation of Rates of Wages Act, 1958
31. Merchant Shipping Act, 1958
32. Sales Promotion Employees Act, 1976
33. Dangerous Machines (Regulation) Act, 1983
34. Dock Workers (Regulation of Employment) Act, 1948
35. Dock Workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997
36. Private Security Agencies (Regulation) Act, 2005

03. Labour laws enacted by Central Government and enforced by the State Governments

37. The Employers’ Liability Act, 1938
38. The Factories Act, 1948
39. The Motor Transport Workers Act, 1961
40. The Personal Injuries (Compensation Insurance) Act, 1963
41. The Personal Injuries (Emergency Provisions) Act, 1962
42. The Plantation Labour Act, 1951
43. The Sales Promotion Employees (Conditions of Service) Act, 1976
44. The Trade Unions Act, 1926
45. The Weekly Holidays Act, 1942
46. The Working Journalists and Other Newspapers Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
47. The Workmen’s Compensation Act, 1923
48. The Employment Exchange (Compulsory Notification of Vacancies) Act, 1959
49. The Children (Pledging of Labour) Act 1938
50. The Bonded Labour System (Abolition) Act, 1976
51. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966

04. CONSTITUTION AND ITS APPROACH TO LABOUR ISSUES

The main provisions of the Constitution having direct relevance to labour laws are Articles 14, 15, 16, 19, 23, 24, 32, 39, 41, 42, 43, 43A, 54, 113, 132, 133, 136, 226, 227, 311, entry Nos. 55, 61 and 65 of the Union List and entry Nos. 22, 23 and 24 of the Concurrent List of the 7^th Schedule etc of the Constitution of India.

01. Constitutional Provisions Setting-out Goal-Values

The Constitution, besides empowering the legislatures to make laws about industrial relations, also specifies the goals and values to be secured.

Part IV enumerates the most important of these. It explicitly states, however, that they are not judicially enforceable. Some of these specify the goals and values to be secured by labour legislation for workmen. They are:

(i) an adequate means of livelihood (Art. 39(a));

(ii) prevention of the concentration of wealth and means of production (Art. 39(c));

(iii) equal pay for equal work by men and women (Art. 39(d));

(iv) protection and preservation of the workers' health (Art. 39(e));

(v) the right to work, the right to education, and the right to public assistance in cases of undeserved want (Art. 41);

(vi) just and humane conditions of work, and maternity relief (Art. 42);

(vii) a living wage, and a decent standard of life (Art. 43).

By and large, industrial legislation has been directed towards the implementation of these directives. The Factories Act, the Employees State Insurance Act, and The Workmen's Compensation Act, aim at the regulation of the employment of women and children in factories; the provision of just and humane conditions of work; the protection of health; and compensation for injuries received during work. The Minimum Wages Act provides for the fixing of minimum wages; the Payment of Wages Act regulates wage payment; and the Bonus Act seeks to bridge the gap between the minimum wage and a living wage. But the directives relating to distribution of wealth, living wages, equal pay for equal work, and public assistance in cases of undeserved want, have not been generally implemented as yet.

02. Limitations on Legislative Competency

The guarantees of fundamental rights, in Part III of the Constitution, limit and control legislative competency. Any law contravening any fundamental right is void. Any individual affected by such a law has a right of access to the courts under Articles 32 and 226; whereunder it is the duty of the Supreme Court, or a High Court, respectively, to enforce fundamental rights by issuing writs or suitable orders or directions.

The fundamental rights likely to affect industrial legislation are:

Article 14: The State shall not deny to any person equality before the law or equal protection of the laws.

Article 19 (1) : All citizens shall have the right-

(a) to freedom of speech and expression

(b) to assemble peaceably and without arms

(c) to form associations or unions ....

(d) to practise any profession, or to carryon any occupation, trade or business.

Article 23 (1): Traffic in human beings and begar[xxi] and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2): Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste, or class or any of them.

Article 24: No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

The rights of freedom of speech, freedom of assembly, and freedom of association; the prohibition of forced labour and employment of children in factories, protect some of the vital interests of the workers, strengthening their hands in forming trade unions, in staging demonstrations, and in carrying on collective bargaining. The freedom of trade and occupation may, presumably, be of help principally to the employers. The right to equality, however, protects both capital and labour, though in different ways.

03. Constitutional Provisions Relating to Appeals from Awards

Under the Indian Constitution any person aggrieved by a tribunal's award can, on the ground of a violation of a fundamental right guaranteed by Part III, move the Supreme Court, or the High Court, under Articles 32 and 226, respectively, for an appropriate writ, order or direction. He can also move the High Court under Article 226 on the ground of a violation of any other right. A High Court's dismissal on the merits of a petition under Article 226 operates as res judicata, barring the same or similar petition under Article 32.[xxii]

Another possible course is for the person aggrieved to invoke the Supreme Court's discretionary jurisdiction under Article 136. This he can do, on any ground, by special leave of that Court, Article 136 is designed to authorize the Supreme Court to intervene, -in its discretion, in any case where the requirements of justice warrant.

After a High Court has passed upon an award, the person aggrieved can appeal to the Supreme Court, in varying circumstances, under Article 132 (constitutional questions) or under Article 133 (civil appeals).

Under Article 132 he must obtain a certificate (from the High Court or in default thereof from the Supreme Court) that the case involves the interpretation of the Constitution. An appeal so certified may bring in other issues if the Supreme Court permits [Art. 132(3)]. Lacking a constitutional question, the person aggrieved can appeal to the Supreme Court only if the High Court certifies to the amount or value in dispute [Art. 133 (1)(a)(b)] provided, however, that if the High Court's decision was an affirmance, it must also certify to the existence of a substantial question of law. Or he can appeal if the High Court certifies to the fitness of the case for review [Art. 133(1)(c)]. In any appeal under Article 133, the claim can be raised that a constitutional question has been decided wrongly below [Art. 113(2)].

In addition to all these provisions, Article 227 confers on a High Court a power of superintendence over all courts and all tribunals in its jurisdiction. A High Court can exercise this power even suo motu, for the purpose of correcting any flagrant abuse of law or any grave miscarriage of justice. It cannot, however, substitute its judgment for that of the lower court.

04. Legislative Competency of Union and State

As per the seventh schedule of the Constitution of India, labour laws falls either under Union List or Concurrent List, as shown below.

Labour Jurisdiction – Constitutional Status
Union List
Entry No. 55	Regulation of labour and safety in mines and oil fields
Entry No. 61	Industrial disputes concerning Union employees
Entry No. 65	Union agencies and institutions for "Vocational ...training..." (a) professional, vocational or technical training, including the training of police officers; or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime.
Concurrent List
Entry No. 22	Trade Unions; industrisl and labour disputes.
Entry No. 23	Social Security and insurance, employment and unemployment.
Entry No. 24	Welfare of abour including conditions of work, provident funds, employers "invalidity and old age pension and maternity

In legislations of Concurrent List, often there shall be adequate provision for State amendments and in certain cases, State Governments are given Rule making power of certain subject matter.

05. CONSTITUTION AND THE INDIAN TRADE UNIONS ACT, 1926

01. Salient Features of the Trade Unions Act, 1926

Trade Unions are organization of Workers as well as Employers formed to protect and promote the interest of their members. Trade Unions have made headway due to rapid individual development. The workers come together to maintain and improve their bargaining power on wages and working conditions. The first organized Trade Union in India named as the Madras Labour Union was formed in the year 1918. From the beginning itself, Trade Unions were not confined to workers alone. From 19th Century itself there were Employer’s associations in the form of Chamber of Commerce, Industrial Associations etc. to protect and promote the interests of their members in a concerted manner. After independence, expansion of industrial activity and grouping worker’s Trade Unions acted as a spur for strengthening and expansion of employers’ organization.

In 1926, the Trade Union Act was passed which was a landmark in the history of Trade Unions in the country. The Act gave legal status to the Registered Trade Unions and conferred on them and their members a measure of immunity from Civil Suit and Criminal prosecution. Registration of Unions enhanced their status before general public. The Act gives protection to registered trade unions in certain cases against civil or criminal action. Employers and Registered Trade Unions are required to submit annual statutory returns to the Registrar of Trade Unions of respective States/Union Territories regarding their membership, sources of income, distribution of expenditure and detail of assets and liabilities, who in turn submit consolidated return on all these aspects to Labour Bureau in the specified proformae.

01. Coverage

The coverage of the Act is confined to :

(a) Only persons engaged in Trade or Business (which includes an Industry) can form a trade union or become members of the trade union. As such persons employed in Raj Bhawan for domestic and other duties cannot form a trade union. Likewise, the government servants engaged in the task of sovereign and legal functions are not entitled to the registration of a trade union.

(b) The Trade Unions Act 1926 applies to the whole of Indian Union.

(c) Any person who has attained the age of 15 years may become the member of a registered trade union.

02. Importance, Definition, and Concepts of the Act

01. Trade Union

Trade Union means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relation

(a) between workmen and employers, or

(b) between workmen and workmen, or

(c) between employers and employers or for imposing restrictive conditions on the conduct of any trade or business. It includes any federation of two or more trade unions.

02. Appropriate Government

Appropriate Government means in relation to trade unions whose subjects are not confined to one state, the Central Government and in relation to other trade unions, the State government.

03. Registrar

A Registrar of trade unions appointed by the appropriate government under section 3, and includes any Additional or Deputy Registrar of trade unions.

04. Executive

Executive means the body, by whatever name called, to which the management of the affairs of a trade union is entrusted.

05. Trade dispute

Trade dispute means any dispute

(a) between employers and workmen, or

(b) between workmen and workmen, or

(c) between employers and employers, which is connected with

i) employment or non-employment, or

ii) the terms of employment, or

iii) the conditions of labour, of any person

06. Workmen

Workmen means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises.

07. Public Sector

Public Sector means an establishment wholly owned, controlled or managed by:

i) The Government or the department of the Government.

ii) A Government company as defined under Section 617 of the Companies Act, 1956.

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

iv) A local authority

08. Private Sector

Private Sector means an establishment, which is not an establishment in the Public Sector.

09. Procedure to become members

Any person who has attained the age of 15 years may become the member of a registered trade union. Any Such member, subject to the rules of the trade union may enjoy all the rights of a member and execute all instruments and give all acquaintances necessary to be executed or given under the rules. But he cannot be an office bearer of the trade union until, he attains the age of 18 years.

Only persons engaged in trade or business which includes an industry can form a trade union or become members of the trade union. As such persons employed in Raj Bhawan for domestic and other duties cannot form a trade union. Likewise, the government servants engaged in the task of sovereign and legal functions are not entitled to the registration of a trade union.

10. Registration of Trade Unions

(i) Trade Union Act, 1926 provides for registration of trade unions. Any 7 or more members of a trade union by subscribing their names to the rules of the trade union and otherwise complying with provisions of this Act with respect to registration may apply for registration of trade union under this Act (Section 4) to the Registrar of Trade Unions.

(ii) The Registrar issues a Certificate of Registration in a prescribed form which acts as evidence that trade union has been duly registered under the Act.

11. Cancellation of Registration

A certificate of registration of a trade union may be withdrawn or cancelled by the Registrar (a) on the application of the trade union to be verified in such a manner as may be prescribed and (b) if the Registrar is satisfied that the certificate has been obtained by fraud or mistake or that trade union has ceased to exist and has will fully and after notice from Registrar, contravenes provisions of the Act.

12. Dissolution

i) When a registered trade union is dissolved, notice of the dissolution signed by 7 members and by the Secretary of the trade union shall, within 14 days of the dissolution be sent to the Registrar, and shall be registered by him if he is satisfied that the dissolution has been effected in accordance with the rules of the trade union, and the dissolution shall have effect, from the date of such registration

ii) Where the dissolution of a registered trade union has been registered and the rules of the trade union do not provide for the distribution of funds of trade union on dissolution, the Registrar shall divide the funds amongst the members in such a manner as may be prescribed.

13. Other provisions of the Act

i) The Act clearly defines the rights and liabilities of registered trade union. It indicates the objects on which general funds may be spent.

ii) The Act also provides for constitution of a separate fund for political purposes.

iii) The trade unions are given immunity from civil suits in certain cases

iv) The members of trade unions can inspect the books of trade unions

v) The trade unions can be amalgamated, provided votes of at least one half of the members of each or every such trade union entitled to vote is recorded.

14. Limitations

Under the Trade Unions Act, 1926, the registration of a trade union is not obligatory. Thus information regarding unregistered trade unions is not included in the Review. However, it is observed that response rate of States submitting returns to Labour Bureau is very poor. During 2011 only 27% of the registered trade unions from 10 States/Union Territories and during 2012 only 29.6 % of the registered trade unions from 15 States/Union Territories have submitted returns in the prescribed proformae to the concerned authorities. The data, therefore, are not strictly comparable with those of the earlier years.

Thus the Indian Trade Unions Act, 1926, did not provide for compulsory recognition of trade unions by employers. The Trade Unions (Amendment) Act, 1947, which proposed to provide for that, never came into force, and has lapsed. The erstwhile State of Bombay, and Madhya Pradesh, however, introduced their own systems of compulsory recognition.

03. Important Provisions of the Act

The Trade Unions Act, 1926, recognizes the existence and protects the interests of a trade union. It deals with many aspects of the establishment and administration of a union. It does not, however, seek to ensure recognition of unions by employers or to define, prohibit and penalize unfair labour practices. Consequently, employers, especially the unscrupulous ones, all too frequently try to scuttle the unions formed by their workers by refusing to recognize them. The Trade Unions (Amendment) Act, 1947, passed to remedy these defects, was allowed to die because it was opposed by employers, both private and public.

The Act of 1926 provides for registration by trade unions.[xxiii] Although such registration is voluntary, the statutory benefits, such as immunity from criminal conspiracy in trade disputes and from civil suits in certain cases, are made available to registered unions only.[xxiv]

The object of registration, presumably, is to encourage the growth of permanent and stable unions. To register, a union must have an adequate written constitution, and must keep audited accounts. It must, to apply for registration, set forth in its rules, among other things, its objects and the purposes for which its general funds may be used.[xxv] A registered union obtains a corporate personality and also powers to contract, to take and hold property, and to sue and be sued.

Any seven members of a union can apply for registration. This facilitates the registration of unions formed by splinter groups. This may also permit proliferation of little unions, which will be entitled to all the legal rights, powers and privileges of the big ones. This is still the general rule in Indian labour relations. There is, however, one striking exception, the Bombay Industrial Relations Act, 1946. That Act, now substantially adopted for Maharashtra, Madhya Pradesh and Gujarat, gives special rights to the largest union.

The main object of a union is to better the working conditions of its members, the workers. To help enable a registered union to realize this object, its officers are authorized to represent workers in any dispute with their employers.

An officer of a union skilled in negotiation and not dependent on the employer for his livelihood, is obviously in a better position than the worker or workers themselves to bargain with the employer effectively. In order that such bargaining be effective, the union must be reliable and self-reliant. In India, where the primary method of settlement of disputes is compulsory adjudication rather than collective bargaining, the conditions for the growth of such unions have not been very favourable. From time to time a union wilfully interferes with the business of the employer-as, for example, when it leads a strike-causing it financial injury. Until 1906 such interference was held actionable in England; and until 1926, in India. In the Quinn and Taff Vale cases in England and in the Buckingham and Carnatic Mills[xxvi] case in India the unions were held to be illegal conspiracies, and the employers were awarded damages. Dissatisfaction in England with the Taff Vale decision led to the Trade Disputes Act, 1906, which nullified that decision. That Act granted to the trade unions and officers and members thereof certain privileges and immunities. Some of these will be discussed in some detail in Rookes v. Barnard[xxvii], below. The Indian Act of 1926, modelled to a great extent on the English Act of twenty years previous, immunizes registered unions and officers and members thereof from liability for acts done in furtherance of a dispute inducing a breach of contract of employment. It also grants similar immunity for acts of the agents of the union done without the knowledge or against the wishes of the union. It also immunizes a registered union from the consequences of criminal conspiracy. The main contents of the Act are given below.

Object of the Act

To provide for the registration of Trade Union and in certain respects to define the law relating to registered Trade Unions

Registration of trade Union

• Any 7 or more members of a trade union may, by subscribing their names to the rules of the trade union and its compliance.

• There should be at least 10%, or 100 of the work-men, whichever is less, engaged or employed in the establishment or industry with which it is connected.

• It has on the date of making application not less than 7 persons as its members, who are workmen engaged or employed in the establishment or industry with which it is connected.

Registration of trade Union

Prescribed form with following details.

• Names, occupations and address of the members’ place of work.

• Address of its head office; and

• Names, ages, addresses and occupations of its office bearers.

Sec. 5 Minimum requirements for membership of trade union

Not less than 10%, or 100 of the workmen, whichever is less, subject to a minimum of 7, engaged or employed in an establishments etc.

Sec. 9A Cancellation of registration

• If the certificate has been obtained by fraud or mistake or it has ceased to exist or has wilfully contravened any provision of this Act.

• If it ceases to have the requisite number of members.

Sec. 10 Criminal conspiracy in trade disputes

No office bearer or member of a registered trade union shall be liable to punishment under sub section (2) of conspiracy u/s 120B of IPC in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union.

Sec. 17 Disqualification of office bearers of Trade Union

If one has not attained the age of 18 years. Conviction for an offence involving moral turpitude. Not applicable when 5 years have elapsed.

Sec. 21A Returns

Annually to the Registrar, on or before such date as may be prescribed, a general statement, audited in the prescribed manner, of all receipts and expenditure of every registered Trade Union during the year ending on the 31st December.

Sec. 28 Penalties Offence Punishment

U/s 31

• For making false entry in or any omission in general statement required for sending returns.

• For making false entry in the form.

• Fine upto Rs.500. On continuing default, additional fault, Rs.5 for each week (not exceeding Rs.50).

• Fine upto Rs.500.

U/s 32

• Supplying false information regarding Trade Union

• Fine upto Rs.200.

02. Some Important Case Laws

Rohtas Industries Staff Union v. State of Bihar Patna High Court, (1962) II LLJ 420

Claiming non-payment of bonus and failure to carry out an award, two Unions of workers served strike notices on the Rohtas Industries Ltd. The Company has many units of production, namely, cement, paper, sugar, and so forth, and employs a large number of workers. The strike started on 3 September 1957, and ended on 3 October 1957, pursuant to an agreement to refer certain matters to arbitration under Section 10A of the Industrial Disputes Act, 1947. The Government of Bihar duly published this agreement in the Bihar Gazette. It provided, among other things, for arbitration of the workers' claim for wages and salaries for the period of the strike, and for the employers' claim for compensation for loss of production. The arbitrators decided all the issues against the Unions, and held that the workers who had gone on strike should pay compensation to one Company Rs. 690000/- and to the other of Rs. 80000/-. The workers and their registered Unions obtained a rule from the High Court for certiorari to quash the award.[xxviii]

Sahitya Mandir Press v. State of Uttar Pradesh Labour Appellate Tribunal, Bombay, (1951) I LLJ 246

The facts sufficiently appear from the excerpts which follow from the judgment of the Appellate Tribunal. The Company contended, inter alia, that the Union could not represent the employees because it was not recognized. The Labour Tribunal below had so held.

The union was registered under the Trade Unions Act on the 27^th of August, 1949, but it had not been recognized by the management. One of the disputes referred to in {he Government order is as to the question whether the union was to be recognized by the employers or not. That was the subject matter of the issue No.6. That issue was decided against the union [by the Labour Tribunal]. The position, therefore, is that the union is a registered union but is not a recognized union....

Section 3 clause (d) of the U.P. Industrial Disputes Act empowers the Provincial Government, for the purposes inter alia of maintaining employment, to refer by a special order any industrial dispute for conciliation or adjudication, in the manner provided for in that order. The Provincial Government can, therefore, in the order of reference lay down the procedure to be followed by the adjudicator. In this case, the Government order directed the adjudicator to follow the procedure as laid down by the Industrial Disputes Act (XIV of 1947). The question of appearance or representation is, in our opinion, a matter pertaining to procedure....

Section 36 of the Industrial Disputes Act (XIV of 1947) provides for the representation of parties. Sub-section 1 'Says that-

"A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by an officer of a registered trade union of which he is a member."

In our view it is not necessary that the trade union which is entitled to represent a workman in an industrial dispute should be at the same time a union recognized by the management. All that is required is that the union should be a union registered under the Trade Unions Act and the workman concerned in the dispute should be a member thereof. These elements are present in this case.

The Labour Appellate Tribunal reversed the award of the Tribunal.[xxix]

Mewar Textile Mills v. Mill Mazdoor Sangh Labour Appellate Tribunal, Bombay, (1954) I LLJ 47

A dispute arose between the mill and its employee, Jorawar Mal, who had received a disciplinary suspension. This dispute was referred to the industrial tribunal for Rajasthan for adjudication. The employee was represented by Mill Mazdoor Sangh, Bhilwara, which is affiliated to INTUC.

The issue was whether the suspension of Jorawar Mal was justified, and whether, if not, he should be reinstated. The Tribunal's award was that the suspension was not justified, and that the mill should reinstate him and pay him back wages and allowances. The mill appealed to the Labour Appellate Tribunal of India from this award, impleading Mill Mazdoor Sangh as the sole respondent. While the appeal was pending, however, Mill Mazdoor Sangh wrote to the Tribunal that they did not want to contest the appeal, and that the order of the Industrial Tribunal might be set aside and the appeal accepted. This was pursuant to an agreement reached by INTUC and the mill setting all disputes outstanding. Jorawar Mal was given an opportunity to be heard by the Appellate Tribunal. He appeared through Shri Buch.]

It is true that the award in favour of the employee was much earlier than the agreement and to some extent the terms of this agreement materially take away the benefits which the employee had obtained under the award.... Taken as a whole, the agreement is a perfectly bona fide one and protected the interests of the 'Several employees, though with respect to some of them some concessions have been made and some advantages secured had to be surrendered… We are satisfied that as a result of this bona fide compromise, this appeal has to be allowed and the award of the industrial tribunal set aside....[xxx]

Vishwakarma v. Industrial Tribunal Supreme Court, 1961 I LLJ 504

An industrial dispute, raised over the dismissal of the appellant worker, by his Union, was referred with a number of other disputes to the Industrial Tribunal, Bihar on 29 April, 1955. After getting the proceedings adjourned from time to time in view of a compromise that was likely to be reached, the parties, that is, the Management and the Union, finally filed a joint petition of compromise settling all the disputes out of court. Earlier requests of the appellant worker to be allowed to present his case himself or through co-workers of his own choosing, instead of being represented by the Union's secretary, Fateh Singh, were turned down by the Tribunal, which made an award in the terms of the compromise. The appellant sought a writ from the Patna High Court to quash this award, but his application was dismissed summarily. He then appealed to the Supreme Court, by special leave, from the order of the High Court. The judgment of the Court, delivered by Das Gupta, J., follows:

It is now well-settled that a dispute between an individual workman and an employer cannot be an industrial dispute as defined in S. 2(k)[xxxi] of the Industrial Disputes Act unless it is taken up by a union of workmen or by a considerable number of workmen. In Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan (1957) I LLJ 27 (SC) Mr. Justice Venkatarama Ayyar, speaking for the Court, pointed out after considering numerous decisions in this matter that the preponderance of judicial opinion was clearly in favour of the view that a dispute between an employer and a single employee cannot per se be an industrial dispute but it may become one if it is taken up by a union or a number of workmen.

In the application before the High Court a statement was also made that the compromise was collusive and mala fide. The terms of the compromise of the dispute regarding the appellant's dismissal were that he would not get reemployment, but, by way of "humanitarian considerations, the company agreed, without prejudice, to pay an ex gratia amount of Rs, 1,000 (rupees one thousand) only" to him. There is no material on the record to justify a conclusion that this compromise was not entered in what was considered to be the best interests of the workman himself.[xxxii]

Ghatge and Patil Company Employees’ Union v. Powar Bombay High Court, (1966) II LLJ 251

A dispute between the Union and the Company was referred to the Industrial Tribunal for adjudication. At the hearing the Company filed an agreement dated 23 July 1963 signed by 90 workmen, and supplement to it dated 14 August 1963 signed by 14 other workmen. At that time the Company employed 124 employees in all. It, therefore, prayed that as the great majority of the workmen were parties to the agreement, an award should be made accordingly. The Union opposed this prayer. It contended that the agreement was with the employees individually and not with the Union and that the settlement was, therefore, opposed to the principles of collective bargaining. It also argued that the agreement was signed as a result of misrepresentation, coercion, and threats of discharge. It also objected to the terms of the agreement. The Tribunal held that the agreements were signed by workers voluntarily, and after considering the objections the Tribunal made its award in terms of the agreement except in regard to privilege leave and bonus. It awarded privilege leave in accordance with the provisions of the Shops and Establishments Act. In regard to bonus, the agreement provided for the payment of one-thirtieth of the total earnings for the years 1961-62 up to 1965-66. The Tribunal limited that period so as to end 31 July 1962. The Union challenged that award in the Bombay High Court. The judgment of the Court, delivered by Chainani, C.J., follows:

…………has contended that the tribunal had no jurisdiction to make the award for a period longer than one year. This argument of Sri Sowani seems to be correct. The proviso to S. 19(3) empowers Government to extend the period of operation of the award. Unless the period is so extended, the award can only remain in force for a period of one year. Sri Phadke has urged that even assuming that Sri Sowani is right on this point, we should not interfere as justice of the case does not call for our interference. He has relied on the decision, Raipur Manufacturing Company, Ltd. v. Nagrashna (1959-II L.L.J. 837) in which the Supreme Court observed that the Court would not go into the question of jurisdiction of the lower tribunal in an appeal under Art. 136 of the Constitution unless it was satisfied that the justice of any given case required it. Sri Phadke has urged that as the great majority of workmen-about 90 per cent-were parties to the agreement which provided for the agreement remaining in force for a period of three years, justice does not require that we should interfere with this term of the award. There is some force in this argument of Sri Phadke, but having regard to Sub-Sec. (3) of S.19 of the Act, it seems to us that the tribunal could not have directed that the award should remain in operation for a period longer than one year. It is not necessary for U'S to decide in this application whether the parties cannot arrive at an agreement that a settlement between them shall remain in force for a period longer than one year. That question does not arise in the present case, because, as I have observed, the award must be regarded as an award made by the tribunal itself after considering the merits of the case and it is flat a consent award. Such an award can only remain in operation for a period of one year. In the result, therefore, we direct that CI. IX of the award, which directs that it shall remain in force up to 31 July 1967, shall be deleted from the award. Subject to this modification, the award will stand. No order as to costs.[xxxiii]

Some other important Case laws

J.I. Case Co. v. NLRB, Supreme Court of the United States, 321 U.S. 332, 64 Sup. Ct. 576 (1944)

In that case the Company offered each employee an individual contract of employment. The contracts were uniform and for one year. They were obtained without coercion or unfair labour practice. While these contracts were in effect, The National Labor Relations Board (which administered the Wagner Act the federal labour-relations act) certified a Union as the exclusive bargaining representative of the employees, after an election, which the Union had won. The Union then asked the Company to bargain. The Company refused to deal with the Union on matters covered by individual contracts while those remained in effect, but offered to negotiate on other matters. It also offered to negotiate on all matters upon the expiration of the individual contracts. The Board ordered the Company to bargain as the Union requested. The Circuit Court of Appeals ordered enforcement of the Board's order. The Supreme Court took the case on certiorari and, on the merits, observed:

"The very purpose of 'providing by statute [The Wagner Act] for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group."

It found that the contention of the Company, that individual contracts warranted refusal to bargain during their duration, was properly overruled by the Board. The Court dismissed the Company's petition.

Giriashanker Kashiram v. Gujarat Spinning and Weaving Company, Ltd., Supreme Court, (1962) 1 LLJ 369

In this case the representative Union and the Company entered into an agreement on payment of bonus. The Union also agreed not to demand compensation for discharge of workers. This settlement was reached in March 1955. In July 1956, 376 discharged workers claimed compensation from the Company. No settlement could be reached. The workers then filed an application before the Labour Court. But the Union contended before the Court that the application should be dismissed in view of the earlier compromise between the Union and the Company. The Labour Court accepted this contention and dismissed the application. The workers' appeal to the Industrial Court and their subsequent petition to the High Court were also rejected. Against the decision of the High Court the workers appealed to the Supreme Court. Wanchoo, J., of the Supreme Court, held that the Act plainly intends that where a representative Union appears on behalf of a worker in any proceeding under the Act, it alone can represent the employee and the employee cannot appear or act in such proceeding. The Court accordingly dismissed the appeal. This was followed in Rane v. Municipal Corporation (1966) I LLJ 589. In that case the Bombay High Court held that where the representative Union "alone could appear…. and the petitioners [workers] could not appear after the union had appeared, the labour court had necessarily to transpose the union as the applicant .... "

Chowdhury v. Mcleod and Co., (1956) I LLJ 183

In this case, the Labour Appellate Tribunal of India (at Calcutta) decided that where an individual workman has a right of his own (to plead his case), and a Union takes up his case, it acts in a representative capacity. The Tribunal observed that "when the workman concerned objects to its authority to come to a compromise for his want of consent... the tribunal... should satisfy itself as to whether the compromise was by consent of that party or not and if that compromise was arrived at without his knowledge and authority, he can avoid that compromise and submit his own case before the tribunal by avoiding the proposed settlement. Even according to labour laws in our opinion, a union which acts on behalf of a workman, cannot enter into a compromise against the express wish and consent of the contending party…… The settlement may be binding between the company and the union, but whether this agreement is enforceable against the party concerned, i.e., the workman concerned, is another matter."

Elgin, Joliet & Eastern Railway v. Burley, Supreme Court of the United States, 325 U.S. 711, 65 Sup. Ct. 1282 (1945)

In that case ten employees claimed back pay, under their contract, over a period of years. The Grievance Committee of their Union handled their claims. The Committee worked out a compromise of their claims with the Company. Dissatisfied with the compromise, the ten took their claim to the Railroad Adjustment Board under the Railway Labor Act. But the Board denied their claim and accepted the settlement. The ten then filed a suit in the federal district court for contract violation. That court rendered summary judgment for the Company; but the Circuit Court of Appeals reversed. The appellate court held that the district court erred in not deciding whether the employees had authorized the Union to compromise their contract claim. The Supreme Court affirmed that decision by a five to four vote. Rutledge, J., for the majority, observed that the "collective bargaining power ... covers changing the terms of an existing agreement as well as making one in the first place. But it does not cover changing them with retroactive effects upon accrued rights or claims."

The Supreme Court, however, allowed a rehearing because of a storm of protests. Many labour organizations, and the Solicitor General of the United States, filed briefs amicus curiae opposing the holding. The Court reaffirmed its previous decision, 327 U.S. 661, 66 Sup. Ct. 721 (1946).

T.K. Rangarajan v. Government of Tamil Nadu 2003 (5) SCALE 537

There is no fundamental, legal/statutory, moral or equitable right to go on strike by government employees. Supreme Court also held that "the employees have no fundamental right to resort to strike". In this case the Tamil Nadu government terminated the services of all employees who have resorted to strike for their demands. This unprecedented action of the Tamil Nadu government was challenged. Their lordships of the apex court held: "now coming to the question of right to strike-whether fundamental, statutory or equitable/moral right—in our view, no such right exists with the government employees."

B.R. Singh v. Union of India 1990 AIR 1: 1989 SCR Supl. (1) 257: 1989 SCC (4) 710: JT 1989 (4) 21: 1989 SCALE (2) 697

The right to strike is not a fundamental right.

The court further held that the right to form associations or unions is a fundamental right under article 19(1)(c) of the constitution. Section 8 of the trade union act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions is obviously for voicing the demands of and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively with managements. This bargaining power would be considerably reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstrations. There are different modes of demonstration, e.g., go-slow, sit-in, work-to-rule, absenteeism etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though the right to strike is not a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers.

Rangaswami and Anr. v. Registrar of Trade Unions and Anr. AIR 1962 Mad 231: (1961) 1 LLJ 599 Mad: (1961) 2 MLJ 554

The order of the registrar of trade unions refusing to register the union of employees of the madras raj bhawan as a trade union under the act was upheld.

The Tamil Nadu Non-gazetted Government Officers' Union v. The registrar of Trade Unions AIR 1962 Mad 234: 1962 (5) FLR 168: (1962) I LLJ 753 Mad

Government servants engaged in sovereign activities of the government cannot be permitted trade dispute and thus form a trade union.

The high court further held that "collective bargaining" is a right conceded to labour organisations within the contractual field of the employer and employee relationship. It would become a grotesque anomaly that if civil services, for instance, % were permitted to raise a "trade dispute" with regard to the dismissal of a civil servant it may be for activities against the state itself, and at the same breath to claim that the constitutional safeguards under article 311, which are wholly irrelevant to the field to contract and to the employer-labour nexus, should be maintained intact for the benefit of the civil services.

Registrar of Trade Unions v. Government Press Employees Union (1975) 2 MLJ 347

Workmen employed in the Government Press, Pondicherry are entitled to the benefits of the trade unions act, 1926.

Tirumala Tirpuati Devasthanam v. Commissioner of Labour  (1996) III LLJ 362 SC: 1995 Supp (3) SCC 653

Registration of union of employees working in power and water wings of devasthanam could not be cancelled at the devasthanam’s instance.

In re inland steam navigation workers' union v. Unknown AIR 1936 Cal 57

It is the duty of the registrar to register the union if all requirements of the act are satisfied.

Chairman, State Bank of India v. All Orissa State Bank Officers Association AIR 2002 SC 2279: 2002 (94) FLR 338: JT 2002 (4) SC 537: 2002 Lab IC 2153: (2002) II LLJ 562 SC: (2002) 3 MLJ 48 SC: 2002 (4) SCALE 423: (2002) 5 SCC 669: 2002 3 SCR 797: 2002 (3) SCT 1127 SC: 2002 (3) SLJ 122 SC: (2002) 3 UPLBEC 2052

(section 8 and 2(e)—an unrecognized union is not a superfluous entity.)

The supreme court held that an unrecognized union is not a superfluous entity. It is entitled to meet and discuss with the management/employer about grievances of any individual member relating to his service conditions and to represent an individual member in domestic or departmental inquiry and proceedings before conciliation officer or labour court or industrial tribunal. The management/employer cannot out rightly refuse to have such discussions with an unrecognized trade union. However, whether in certain matters concerning individual workmen discussion and negotiation with the unrecognized union, of which they were members would be useful has to be decided by the management or its representatives at the spot. Hence, provision in state bank of india circular restraining its functionaries from entering into any dialogue or accepting any representation from the office-bearers of an unrecognized association, rightly set aside by the high court.

It is relevant to note here that the right of the citizens of this country to form an association or union is recognized under the constitution in article 19(1)(c). It is also to be kept in mind that for the sake of industrial peace and proper administration of the industry it is necessary for the management to seek cooperation of the entire work force. The management by its conduct should not give an impression as if it favours a certain sections of its employees to the exclusion of others which, to say the least, will not be conducive to industrial peace and smooth management. Whether negotiation relating to a particular issue is necessary to be made with representatives of the recognized union alone or relating to certain matters concerning individual workmen it will be fruitful to have discussion/negotiations with a non-recognized union of which those individual workmen/employees are members it is for the management or its representative at the spot to decide.

R.S. Ruikar v. Emperor AIR 1935 Nag 149

Trade union is not liable criminally for conspiracy to do certain acts in furtherance of trade dispute.

Rohtas Industries Limited and Anr v. Rohtas Industries Staff Union and Ors 1976 AIR 425, 1976 SCR (3) 12

Workers cannot be asked to make good the loss suffered by the employer because of the illegal strike.

Standard Chartered Bank v. Chartered Bank Employees Union 61 (1996) DLT 799: (1996) II LLJ 52 Del

Workers cannot have demonstration, dharnas or sticking of posters and tying of banners within the premises of the employer.

General Manager, Telecom v. A. Srinivasa rao AIR 1998 SC 656

Telecom department of Union of India was held to be an industry.

All India Bank Employees’ Association v. National Industrial Tribunal 1962 AIR 171, 1962 SCR (3) 269

In this case, the constitution bench of the supreme court held that even very liberal interpretation of sub-clause (c) of clause (1) of article 19 "cannot lead to the conclusion that trade unions have a guaranteed right to an effective collective bargaining or to strike either as part of the collective bargaining or otherwise."

Mangalore Ganesh Beedi Workers v. Union of India 1974 AIR 1832, 1974 SCR (3) 221

The provisions of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 referred to as “the act” are impeached as unconstitutional in these petitions and appeals.

Broadly stated, the act is challenged on the grounds...… the restrictions imposed by the act violate freedom of trade and business guaranteed under article 19(1)(g). The act imposes unreasonable burdens in cases where a manufacturer or trade mark holder of beedi has no master and servant relationship and no effective control on independent contractors or home-workers. The manufacturer or trade mark holder is rendered liable as the principal Employer of contract labour.

P. Syed Saheb & Sons v. State of Mysore Mysore High Court  [1972] Mysore Law Journal 450

Mysore High Court  held that sections 3 and 4 of the beedi and cigar workers (conditions of employment) act, 1966 are constitutional and not violative of articles 14 and 19(1)(g) of the constitution. Section 3 of the act prohibits establishment of an industrial premises without obtaining a licence granted under the act. Section 4 of the act provides for the procedure for the issue, renewal and cancellation of a licence.

Hussainbhai v. Alath Factory Thozhilali Union 1978 AIR 1410, 1978 SCR (3)1073

In All India Bank Employees’ Association v. National Industrial Tribunal, wherein the constitution bench of the supreme court held that even very liberal interpretation of sub-clause (c) of clause (1) of article 19 "cannot lead to the conclusion that trade unions have a guaranteed right to an effective collective bargaining or to strike either as part of the collective bargaining or otherwise."

Chirukandeth Chandrasekharan v. Union of India [1972] 1 LLJ 340

The kerala high court held that the provisions of sections 2(g)(a), 2(m), 3, 4, 21, 26 and 27 of the act impose unreasonable restrictions on business or trade and are violative of article 19(1)(g) of the constitution.

Union v. Registrar of Trade Unions, AIR 1958 Pat 470

High Court has jurisdiction to issue writ under Article 226 of the Constitution commending Registrar of Trade Unions to perform satisfactory duty imposed upon him under Section 7 and Section 8 of the Trade Unions Act if the application is kept pending for a sufficient time like three months as in the present case and ask him to dispose of application in accordance with law as promptly as possible.

Chemosyn (P) Ltd. v. Kerala Medical and Sales Representatives' Association 1988 Lab IC 1258: (1988) 2 LLJ 43 (Ker)

A Trade Union is not an 'authority' within the meaning of Article226 of the Constitution of India and is, therefore, not amenable to the writ jurisdiction of the High Court.

06. CONSTITUTION AND INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946

01. Salient features of the Act

Before the Industrial Employment (Standing Orders) Act, 1946, was placed on the statute book, the Labour Investigation Committee Commented on this subject as follows:

"An industrial worker has the right to know the terms and conditions under which he is employed and the rules of discipline which he is expected to follow. Broadly speaking, in Indian industry the rules of service are not definitely set out, and like all unwritten laws, where they exist they have been very elastic to suit the convenience of employers. No doubt, several large scale industrial establishments have adopted standing orders and rules to govern the day-to-day relations between the employers and workers; but, such standing orders or rules are merely one sided. Neither workers' organizations nor Government are generally consulted before these orders are drawn up and, more often than not, they have given the employers the upper hand in respect of all disputable points."[xxxiv]

Earlier, in 1940, the Bombay Textile Labour Enquiry Committee had commented that "there is no fear which haunts an industrial worker more constantly than the fear of losing his jobs as there is nothing which he prizes more than economic security.

The fear of being summarily dismissed for even a slight breach of rules of discipline or for interesting himself ill trade union activity disturbs his mind. It is a notorious fact that dismissals of workers have been the originating causes of not a few industrial disputes and strikes. The provision of effective safeguards against unjust and wrong dismissals is, therefore, in the interest as much of the industry as of the workers." [xxxv]

To ameliorate these evils, the Industrial Employment (Standing Orders) Act was passed in 1946. The statement of objects and, reasons points out that, "Experience has shown that. 'Standing Orders' defining the conditions of recruitment, discharge, disciplinary action, holidays, leave etc., go a long way towards minimizing friction between the management and workers in industrial undertakings." The Act applies to every industrial establishment where one hundred or more workmen are employed (or were employed on any day of the preceding twelve months) and sets up an elaborate machinery for the framing of the orders. The initial draft is prepared by the employer. A hearing is provided for the parties (management, union and workers) before a final order is passed. The certifying officer has a duty to see that all the matters set out in the schedule of the Act are covered by the standing orders, and to adjudicate upon the fairness and reasonableness of the provisions. There is a right of appeal. The Act also provides for maintaining a register of certified standing orders, and for the date of operation of such orders. It lays down a procedure for their modification.

The certified orders have to be displayed by the employer On the notice board of the Company. The Act prohibits the court from admitting oral evidence which would add to or otherwise vary or contradict standing orders as finally certified under the Act. Section 13 provides fines for violations of the Act. Section 14 and 15 confer power on the government to exempt certain industries, conditionally or unconditionally, and to make rules to carry out the purposes of the Act. Rules also are prescribed under this Act. Some other features are given below.

Applicability of the Act

Every industrial establishment wherein 100 or more (in many States it is 50 or more).

Any industry covered by Bombay Industrial Relations Act, 1946.

Industrial establishment covered by M.P. Industrial Employment (Standing Orders) Act, 1961.

Sec. 1 Matters to be provided in Standing orders

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

• Manner of intimating to workmen periods and hours of work, holidays, pay-days and wage rates.

• Shift working.

• Attendance and late coming.

• Conditions of, procedure in applying for, and the authority which may grant, leave and holidays.

• Requirement to enter premises by certain gates, and liability to search.

• Closing and re-opening of sections of the industrial establishments, and temporary stoppages of work and the right and liabilities of the employer and workmen arising therefrom.

• Termination of employment, and the notice thereof to be given by employer and workmen.

• Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.

• Means of redressal for workmen against unfair treatment or wrongful exactions by the employer or his agents or servants.

Additional Matters

Service Record – Matters relating to service card, token tickets, certification of service, change of residential address of workers and record of age Confirmation Age of retirement Transfer Medical aid in case of Accident Medical Examination Secrecy Exclusive service.

Secs.2(g), 3(2) and Rule 2A Conditions for Certification of Standing Orders

• Every matter to be set out as per Schedule and Rule 2A.

• The standing orders to be in conformity with the provisions of the Act.

Submissions of Draft Standing Orders

Within six months from the date when the Act becomes applicable to an industrial establishment. Five copies of the draft Standing Orders are to be submitted to the Certifying Officer under the Act.

Punishments

• Failure of employer to submit draft Standing Orders fine of Rs.5000 and Rs.200 for every day on continuation of offence.

• Fine of Rs.100 on contravention and on continuation of offence Rs.25 for every day.

Procedure for Certification of Standing Orders Certifying Officer to forward a copy of draft standing orders to the trade union or in the absence of union, to the workmen of the industry. The trade union or the other representatives, as the case may be, are to be heard.

Sec.5 Date of Operation of Standing Orders

On the date of expiry of 30 days from certification or on the expiry of 7 days from authentication of Standing Orders.

Sec. 7 Posting of Standing Orders

The text of the standing orders as finally certified shall prominently be posted in English or in the language understood by majority of workmen on special board at or near the entrance for majority of workers.

Sec. 9 Temporary application of Model Standing Orders

Temporary application of mod standing orders shall be deemed to be adopted till the standing orders as submitted are certified.

Sec.12A  Payment of Subsistence Allowance

Payment of Subsistence Allowance to the Suspended Workers At the rate of fifty per cent, of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension. At the rate of seventy-five percent 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 such workman. Sec.10-A

02. Some Important Case Laws

Associated Cement Co. Ltd. v. P.D. Vyas Supreme Court, (1960) 1 LLJ 563

The Company submitted its draft standing orders for certification in 1946. The Labour Commissioner made several alterations in the draft to bring it into conformity with the model standing orders. The Company appealed. The Industrial Court rejected the appeal and confirmed the modifications. The Company filed a writ petition in the Bombay High Court.

A single judge of that Court held that the Labour Commissioner and the Industrial Court had exceeded their jurisdiction. Therefore he set aside the modifications. The Labour Commissioner then appealed to the Court of Appeals of the Bombay High Court. It reversed the decision of its single judge and held that the modifications were justified. The Company appealed to the Supreme Court. The Supreme Court upheld the Division Bench Judgment of the High Court and dismissed the appeal with costs.

Bagalkot Cement Co. Ltd. v. R.K. Pathan Supreme Court, (1961-62) 21 FJR 528

The Company submitted its draft standing orders for certification. The Certifying Officer approved them with certain additions and modifications, made by paragraph 11 (7) granting ten paid festival holidays and fifteen days casual leave. The Company appealed, contending that clause 51 of the schedule does not confer jurisdiction on the Certifying Authority to deal with the substantive question of the extent and quantum of leaves and holidays. The AppeIIate Authority rejected this contention and retained the additions, with the following modifications, (a) that there be seven festival holidays instead of ten, and (b) that there be ten days of causal leave instead of fifteen. The Company obtained special leave from the Supreme Court. But the Supreme Court dismissed the appeal.

Salem - Erode Electricity Distribution Co. v. Their Employees Union Supreme Court (1966) 1 LLJ 443

The Company introduced a new rule by which workers entering the Company's service after 1st October, 1960 would be entitled to less leave than those already in employment. To regularize this rule, the Company applied to the Certifying Officer to amend its Standing Orders. The Union resisted the changes. The Certifying Officer held that the proposed changes were unfair and unreasonable and would discriminate unfairly between workers. The Company appealed. The Appellate Authority dismissed the appeal. The Company obtained special leave from the Supreme Court. But the Supreme Court dismissed the appeal.

Rohtak & Hissar Electric Supply Co. v. State of U.P. Supreme Court (1966) 2 LLJ 330

The employees of the Company had no Union to represent them in the preparation and certification of standing orders. The Labour Department conducted the elections in the industry to elect three representatives. The Company prepared the draft standing orders in consultation with these representatives. The Certifying Officer, after examining the fairness and reasonableness of the provisions; made several changes in conformity with model standing orders and certified them. The Company appealed. It contended that the Certifying Officer had no power to modify the agreed draft submitted by the two parties. The Industrial Tribunal rejected the appeal. The company obtained special leave from the Supreme Court. Supreme Court held that, “We would, therefore, modify the last sentence in the first paragraph of certified S.O. No. 29(a) by providing that if in cases where it would have been possible to give two days' notice of closure, but the employer has not given such a notice. he shall pay wages in lieu of such notice, i.e., two days' wages…………………..

The result is, certified Standing Order 29(a) is modified as indicated in this judgment; Standing Order 54 which deals with the age of superannuation or retirement and provides for consequential payment of pension, as well as the two provisos to Standing Order 47, and Standing Orders 48 and 49 are struck down and deleted from the list of certified Standing Orders. The rest of the order passed by the Appellants Authority is confirmed. The certified Standing Orders will now have to be renumbered.”

Workmen of Hindustan Shipyard v. Industrial Tribunal Andhra Pradesh High Court (1963) 1 LLJ 781

The Company increased the hours of work of its employees from six to six and a half. The Union raised an industrial dispute. The Industrial Tribunal held that the change did not amount to alteration in working conditions and, therefore, the withdrawal of concession did not require the agreement of the Union. The Union filed a writ petition in the Andhra Pradesh High Court. The learned single judge dismissed it. The Union appealed to the Division Bench. Division Bench held that the management has the power to vary the working hours within the limits prescribed by law.

Guest, Keen, William Private Ltd. v. P.J. Sterling, SC, [1959-60] 16 FJR 415

The standing orders of the Company, certified in December 1953 and effective from January 1954, fixed for the first time a retirement age of 55 years for its workers. The Company decided in May 1954 to retire 47 workers who had reached that age. The Union raised an industrial dispute. The Industrial Tribunal held that inasmuch as the Union had not preferred an appeal under the Industrial Employment (Standing Orders) Act, the scheme of forced retirement introduced by the Company could not now be attacked. The Union appealed. The Labour Appellate Tribunal reversed. It held that the existence of a scheme of forced retirement does not ipso facto bar disputes over the validity of that scheme and its application to individuals; and as there was no fixed retirement age before the standing orders were certified, it was reasonable to assume that those workers who had joined the Company's service before the certification had naturally and legitimately expected that they could continue in service as long as they remained physically fit; hence, the new scheme could not be enforced against those workmen. The Company obtained special leave from the Supreme Court. Supreme Court held, “In the present case, as we have already observed, the age of 55 has been fixed by both the tribunals for future entrants; and this- is substantially based on the standing order which we have already considered. In regard to the prior employees it is not seriously disputed that the retirement age can and may be fixed at 60. It is under these circumstances that we have come to the conclusion that the age of superannuation for prior employees should be fixed at 60.”

Some other important Case laws

D.K. Yadav v. J.M.A. Industries Ltd (1993) 3 SCC 259: 1993 SCC (L&S) 723

Certified Standing Orders have statutory force and, therefore, attract principle of natural justice as also Articles 14 and 21 of the Constitution of India in case of termination of service under Standing Orders.

Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. (1984) 3 SCC 369: 1984 SCC (L&S) 540

In view of Section 4 of the 1946 Act, Supreme Court in appeal under Article 136 shall have the power to adjudicate upon the fairness or reasonableness of the provision of a standing order and declare it ineffective and unenforceable.

Certified Standing Orders which statutorily prescribe the conditions of service shall be deemed to be incorporated in the contract of employment of each employee with his employer. If any rule framed by a company read with Standing Orders confers absolute and unfettered discretion on the employer to allow or disallow rightful claim of employees, that would be unfair and unreasonable as also arbitrary subject to test of Art. 14.

Central Workshop Karmachari Sangh v. Industrial Tribunal 1978 Lab IC 1560 (All)

The findings of the certifying officer or appellate authority under Section 4 are final but if the findings are recorded on extraneous considerations or under some misconception of law it is always open to the High Court under Article 226 to quash those findings.

Gaziabad Engg. Co. v. Certifying Officer (1978) 1 SCC 480: 1978 SCC (L&S) 68

The modification relating to grant of 6 days' casual leave on a paid basis to workers, done by the certifying officer after considering certain relevant factors, held, cannot be interfered with by the Supreme Court under Article 136.

07. CONSTITUTION AND INDUSTRIAL DISPUTES ACT, 1947

01. Salient features of the Act

The earliest Indian statute to regulate the relationship between employer and his workmen was the Trade Dispute Act, 1929 (Act 7 of 1929). Provisions were made in this Act for restraining the rights of strike and lock out but no machinery was provided to take care of disputes. The next phase, the Industrial Dispute Act of 1947 has been described as the latest milestone in the industrial development in India. The Act has seen new additions in the past few years.

Objectives of Indian Industrial Dispute Act

The principal objectives of the Industrial Dispute Act of 1947 are:

1. To encourage good relations between labor and industries, and provide a medium of settling disputes through adjudicator authorities.

2. To provide a committee for dispute settlement between industry and labor with the right of representation by a registered trade union or by an association of employers.

3. Prevent unauthorized strikes and lockouts.

4. Reach out to labor that has been laid-off, unrightfully dismissed, etc.

5. Provide labor the right to collective bargaining and promote conciliation.

Principles of New Indian Industrial Dispute Act

1. A permanent conciliation committee for the speedy settlement of industrial disputes.

2. Compulsory arbitration in public utility services and enforcement of arbitration awards.

3. Strikes during proceedings of conciliation and arbitration meetings are prohibited.

4. Set aside specific times for conciliation and arbitration meetings.

5. Employers have to be obliged to communicate with labor unions.

6. Mutual consultation has to be set up between industry and labor by the Works Committee.

7. Disputes between labor and industry have to be forwarded to an Industrial Tribunal. If the Industrial tribunal fails to handle the case, the case should be forwarded to the appropriate government.

Authorities under Indian Industrial Dispute Act

The authorities created under the Indian Industrial Dispute Act are:

1. Works committee.

2. Conciliation officer.

3. Boards of conciliation.

4. Courts of inquiry.

5. Labor courts.

6. Industrial tribunals.

7. National tribunals.

State Amendments

The Industrial Disputes Act, 1947, has been amended by many States. For example, the Industrial Disputes (Uttar Pradesh Amendment) Act, 1951, with the President's assent, added a few additional qualifications to those required of any person serving as a Labour Court. Similarly, The Industrial Disputes (Mysore Amendment) Act, 1953, with the President's assent, added to the Central Act a new clause facilitating the transfer of industrial disputes from one State tribunal to another. A few States have amended the Central Act in various other ways.

Under rule-making powers, delegated by the Centre, the States have often been able to adapt Central Acts to local needs without the President's assent. The Central Acts often give such powers. For example, Section 38 of the Industrial Disputes Act delegates to the appropriate government, which in many cases is the State Government, a power to promulgate such rules as may be needed for making the Act effective. Similarly, Sections 29 and 30 of the Minimum Wages Act and Section 26 of the Payment of Wages Act delegate rule-making powers to the State.

In pursuance thereof several States, including Assam, Bihar, and Bombay, have promulgated separate Minimum Wages Rules and Payment of Wages Rules. The Factories Act, too, contains similar provisions, and they have been similarly availed of.

There is yet another method by which a State can operate machinery created by a Central Act. For example, under the Industrial Disputes Act, the "appropriate government", which includes the State Government, is empowered to use the machinery created by the Industrial Disputes Act for the investigation and settlement of any industrial dispute coming within its jurisdiction. For example, it can refer an industrial dispute arising in an industry situated within its jurisdiction to any of the authorities for investigation and settlement.

This flexible framework, created by the Constitution, has probably tended to lessen the tensions and frictions between the Centre and the State, and has made it possible for both these governments to co-ordinate their efforts in resolving their complex and varied problems.

Important Provisions

Prohibition of Strikes & Lock Outs

• During the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months, after the conclusion of such proceedings.

• 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 (3A) of section 10A

• During any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award. Secs.22&23

Object of the Act

Provisions for investigation and settlement of industrial disputes and for certain other purposes.

Important Clarifications

Industry – has attained wider meaning than defined except for domestic employment, covers from barber shops to big steel companies. Sec. 2(I)

Works Committee – Joint Committee with equal number of employers and employees’ representatives for discussion of certain common problems. Sec.3

Conciliation – is an attempt by a third party in helping to settle the disputes Sec.4

Adjudication – Labour Court, Industrial Tribunal or National Tribunal to hear and decide the dispute.

Secs.7,7A & 7B Power of Labour Court to give Appropriate Relief

Labour Court/Industrial Tribunal can modify the punishment of dismissal or discharge of workmen and give appropriate relief including reinstatement. Sec.11A

Right of a Workman during Pendency of Proceedings in High Court Employer to pay last drawn wages to reinstated workman when proceedings challenging the award of his reinstatement are pending in the higher Courts. Sec.17B

Persons Bound by Settlement

• When in the course of conciliation proceedings etc., all persons working or joining subsequently.

• Otherwise than in course of settlement upon the parties to the settlement. Sec.18

Period of Operation of Settlements and Awards

• A settlement for a period as agreed by the parties, or

• Period of six months on signing of settlement.

• An award for one year after its enforcement. Sec.19

Lay off & Payment of Compensation –

Conditions for Laying off

Failure, refusal or inability of an employer to provide work due to

• Shortage of coal, power or raw material.

• Accumulation of stocks.

• Breakdown of machinery.

• Natural calamity. Sec.25-C

Notice of Change

21 days by an employer to workmen about changing the conditions of service as provided in IV^th Schedule. Sec.9A

• Without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking.

• Within fourteen days of giving such notice.

• Before the expiry of the date of strike specified in any such notice as aforesaid.

• During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

• During the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings.

Lay off Compensation

Payment of wages except for intervening weekly holiday compensation 50% of total or basic wages and DA for a period of lay off upto maximum 45 days in a year. Sec.25-C

Prior Permission for Lay off

When there are more than 100 workmen during preceding 12 months. Sec.25-M

Retrenchment of Workmen Compensation & Conditions

• Workman must have worked for 240 days.

• Retrenchment compensation @ 15 days’ wages for every completed year to be calculated at last drawn wages

• One month’s notice or wages in lieu thereof.

• Reasons for retrenchment

• Complying with principle of ‘last come first go’.

• Sending Form P to Labour Authorities.

Prior Permission by the Government for Retrenchment

• When there are more than 100 (in UP 300 or more) workmen during preceding 12 months.

• Three months’ notice or wages thereto.

• Form QA

• Compensation @ 15 days’ wages.

Sec. 25-N Conditions of service etc. to remain unchanged under certain circumstances during pendency of proceedings

• Not to alter to the prejudice of workmen concerned the condition of service.

• To seek Express permission of the concerned authority by paying one month’s wages on dismissal, discharge or punish a protected workman connected with the dispute.

• To seek approval of the authority by paying one month’s wages before altering condition of service, dismissing or discharging or punishing a workman. Sec.33

Conditions of service etc. to remain unchanged under certain circumstances during pendency of proceedings

• Not to alter to the prejudice of workmen concerned the condition of service.

• To seek Express permission of the concerned authority by paying one month’s wages on dismissal, discharge or punish a protected workman connected with the dispute.

• To seek approval of the authority by paying one month’s wages before altering condition of service, dismissing or discharging or punishing a workman. Sec.33

Prohibition of unfair labour practice either by employer or workman or a trade union as stipulated in fifth schedule. Both the employer and the Union can be punished. Sec.25-T

Closure of an Undertaking

60 days’ notice to the labour authorities for intended closure in Form QA. Sec.25FFA

Prior permission at least 90 days before in Form O by the Government when there are 100 or more workmen during preceding 12 months (in UP 300 or more workmen)

Penalties / Offence

Committing unfair labour practices

Illegal strike and lock-outs

Instigation etc. for illegal strike or lock-outs.

Giving financial aid to illegal strikes and lock-outs.

Breach of settlement or award

Disclosing confidential information pertaining to Sec.21

Closure without 60 days’ notice under Sec.25 FFA

Contravention of Sec.33 pertaining to change of conditions of

Service during pendency of dispute etc.

When no penalty is provided for contravention

Punishment

Imprisonment of upto 6 months or with fine upto Rs.3,000.

Imprisonment upto one month or with fine upto Rs.50(Rs.1000 for lock-out) or with both.

Imprisonment upto 6 months or with fine upto Rs.1,000

Imprisonment for 6 months or with fine upto Rs.1,000

Imprisonment upto 6 months or with fine.On continuity of offence fine uptoRs.200 per day

Imprisonment upto 6 months or with fine upto Rs.1,000

Imprisonment upto 6 months or with fine upto Rs.5,000

Imprisonment upto 6 months or fine upto Rs.1,000. Fine upto Rs.100

02. Some Important Case Laws

Nirmala Textile Finishing Mills Ltd. v. The Second Punjab Tribunal AIR 1957 SC 329

The State of Punjab referred a dispute between the appellant textile mills and their workmen to the Second Punjab Tribunal for adjudication. The mills, in a succession of High Court petitions, attacked the validity of the reference, and also that of section 10 of the Industrial Disputes Act. From adverse rulings they appealed to the Supreme Court alleging inter alia (1) that the Industrial Disputes Act, in general, and S. 10 of that Act, in particular, infringed the right to equal protection of the laws guaranteed by Article 14; and (2) that awards by industrial tribunals involved legislative decisions not properly delegated and therefore invalid, so that the Industrial Disputes Act was beyond Parliament's legislative competence. Supreme Court found that the Industrial Disputes Act was intra Vires the Constitution and dismissed the appeal.

All India Bank Employees Association v. National Industrial Tribunal AIR 1962 SC 171

The principal issues before the Supreme Court in this case were whether the right to form a union guaranteed by Article 19(1) (c) by implication confers a right on the workers or unions to go on strike, and a right to undertake collective bargaining for wages, conditions of service and the like. The Supreme Court held that Article 19(1) (c) does not extend its guarantees to those additional rights.

Kameshwar Prasad v. State of Bihar AIR 1962 SC 1166

The issue before the Supreme Court in this case was whether the rules in the Bihar Government Servant's Conduct Rules, prohibiting strikes and demonstrations, infringed freedom of speech, freedom of assembly and freedom of association, as those are guaranteed in Article 19(1) (a) (b) and (c). The Court held that the rules prohibiting, demonstrations contravened freedom of speech and freedom of assembly, but that the rule prohibiting strikes was valid in as much as Article 19 (1) (c) did not guarantee a right to strike.

Bhikusa Yamasa Kshatriya v. Sangamner Akola Taluka Bidi Kamagar Union Supreme Court (1962) II LLJ 736

The workers of certain bidi Manufactories demanded payment of wages at the rates fixed by the Government of Bombay in a notification issued pursuant to a report of its Committee on Minimum Wages. The Manufactories rejected their demand, but the Regional Authority, on application by the workers, decided in their favour. The Manufactories unsuccessfully challenged the validity of the Minimum Wages Act before the Bombay High Court and then appealed to the Supreme Court. They challenged particularly the validity of S. 3(3) (iv) authorizing the Government to fix or revise different minimum rates for different classes of employments and workers, and for different localities, Their contention was that by investing the Government with authority to make unlawful discrimination between employers in different industries, the section violated their right to equality (Constitution Art. 14) and also imposed an unreasonable restriction on their right to practice a lawful trade (Constitution Art. 19(1)(g)). They also raised the plea that the Government's notification also violated their right to equality. The judgment of the Court, delivered by Mr. Justice Shah states, “On a careful examination of the various provisions of the Act and the machinery set up thereby we hold that s. 3(3)(iv) does not contravene Art. 19(1)(f) of the Constitution nor does it infringe the equal protection clause of the Constitution; we also hold that the Notification dated April 19, 1,955 did not violate Art. 14 of the Constitution. We are further of the view that the constitution of the Committees and the Advisory Board did not contravene the statutory provisions in that behalf prescribed by the Legislature.”

Banglore Water Supply and Sewerage Board v. A. Rajappa 1978 AIR 548: 1978 SCR (3) 207: 1978 SCC (2) 213

In this case, a seven judge bench of the Supreme Court exhaustively considered the scope of industry. The supreme court in this case by a majority of five with two dissenting overruled safdarjung solicitors[xxxvi] case, gymkhana[xxxvii], delhi university[xxxviii], dhanrajgiri hospital[xxxix] and cricket club of India[xl]. It rehabilitated hospital mazdoor shabha[xli] and affirmed Indian standards institution[xlii]. The court followed banerji[xliii] and corporation of city of Nagpur[xliv] cases. The majority laid down the 'dominant nature test for deciding of whether the establishment is an industry or not, as given hereunder.

“The dominant nature test:

(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be the true test.                     The whole undertaking will be 'industry'   although those who are not 'workmen' by definition may not benefit by the status.

(b) Notwithstanding   the   previous   clauses, sovereign functions, strictly understood, (alone), qualify for exemption, not the welfare activities of economic adventures undertaken by Government or statutory bodies.

(c) Even in departments discharging sovereign functions if there are units which are industries and they are substantially severable, then they can be considered to come within sec. 2(j).

(d) Constitutionally and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.”

Coir Board, Ernakulam v. Indira Devi P.S. and Ors (1999) 1 LLJ 1109 SC: 1998 (6) SCALE 288 b, (2000) 1 SCC 224

In this case the two-judge bench of the Supreme Court said:

"The definition of industry under the industrial disputes act was held to cover all professions, clubs, educational institutions, cooperatives, research institutions, charitable projects and anything else which could be looked upon as organized activity where there was a relationship of employer and employee and goods were produced or service was rendered. Even in the case of local bodies and administrative organizations the court evolved a 'predominant activity' test so that whenever the predominant activity could be covered by the wide scope of the definition as propounded by the court, the local body or the organization would be considered as an industry. Even in those cases where the predominant activity could not be so classified, the court included in the definition all those activities of the organization which could be so included as industry, departing from its own earlier test that one had to go by the predominant nature of the activity. In fact, Chandrachud, J. (as he then was) observed that even a defence establishment or a mint or a security press could, in a given case, be considered as an industry. Very restricted exemptions were given from the all-embracing scope of the definition so propounded. For example, pious or religious missions were considered exempt even if a few servants were hired to help the devotees. Where normally no employees were hired but the employment was marginal the organization would not qualify as an industry. Sovereign functions of the state as traditionally understood would also not be classified as industry though government departments which could be served and labelled as industry would not escape the industrial disputes act.”

Municipal Corporation of Delhi v. Female workers (muster roll) 2000 (2) SCR 171

Workmen including those employed on muster roll for carrying on activity of Delhi Municipal Corporation in undertaking construction, laying and repairing of roads and digging of trenches were held to be "workmen” under the ID Act.

Superintending Engineer Machkund v. Workmen of Machkund Hydro Electric Project AIR 1960 Orissa 205

The Machkund Project is a hydroelectric undertaking which spreads over the border areas of Orissa and Andhra Pradesh. The offices are situated entirely in Orissa; but, under the interstate contract governing the project, the Superintending Engineer, who directly controls the whole project, is employed by and subordinate to the Government of Andhra Pradesh. On a writ petition to the Orissa High Court, a preliminary question was, which of the two Governments, Orissa or Andhra Pradesh, was the appropriate Government to decide that an industrial dispute existed and should be referred to a tribunal for adjudication. Orissa High Court held that, “We have no evidence to show the proportion of the capital sunk in Orissa State and in Andhra State in respect of those items and the ex parte statement of the Superintending Engineer must be taken as unchallenged. It is true that the workers employed in those works are also members of the Machkund Workers' Union, but this circumstance alone would not suffice to confer jurisdiction on the Orissa Government to make a reference under Section 10(1) of the Industrial Disputes Act unless further materials are placed before this Court to enable it to hold that this Industry is substantially or essentially located in Orissa. In the absence of such materials I must hold that the situs of this industry is in Andhra State and that the Andhra State is the "appropriate Government" for taking action under the Industrial Disputes Act.”

Some other important Case laws

Indian Cable Co. Ltd. v. Its Workmen (1962) 1 LLJ 409 (Supreme Court)

The closure of a branch of the Company at Ambala (Punjab), resulted in the retrenchment of some employees. The Company had its registered office in Calcutta (West Bengal). The Government of Punjab referred a dispute about the validity of the retrenchment.

In an appeal to the Supreme Court from the Tribunal's award the Company contended, inter alia, that in view of the closure of the business at Ambala in the Punjab the Punjab Government had no longer been competent to make the reference. The Supreme Court observed that the Industrial Disputes Act is silent on which of the governments has jurisdiction to refer a dispute arising in an industry with branches in two or more States.

This question, the Court held, must be decided "on the principles governing the jurisdiction of Courts to entertain actions or proceedings". According to these principles a Court would assume jurisdiction on the basis of the residence of the parties or on the basis of the place where the dispute arose. The reference was upheld as valid.

Ram Kishan v. Shambu Nath Vaid (1962) II LLJ 294 PH

The Government of Punjab referred a dispute about the legality of the dismissal of a worker for disobeying an order transferring him from Amritsar (Punjab) to Mussoorie (UP). The employer contended, in a petition to Punjab High Court, that the Punjab Government had not been the "appropriate government" in relation to this dispute. The Court observed that "appropriate government" really means the Government of the State "where the dispute arises", and held that as the employee was serving at Amritsar and had never gone to Mussoorie, the Punjab Government had continued to be competent to refer the case.

State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610: (1960) 1 LLJ 251

The Hospital retrenched two ward servants with due notice but without compliance with the Industrial Disputes Act, 1947, Sections 25 (F) and (H). They, with the Hospital Union, sought from the Bombay High Court a writ of mandamus directing their reinstatement. In opposition the Hospital urged that mandamus did not lie because the retrenchment orders were not void; but that even if they were void the Hospital (and the group of five Hospitals to which it belonged) did not constitute an industry, and so the Act did not apply.

The Bombay High Court, by Tendolkar, J. denied the writ petition on the ground that the retrenchment orders were not void, so that if they were invalid yet the remedy was mistaken.

08. RECENT TRENDS IN LABOUR FORCE

India’s growth story has remained incomplete as it did not match with the required employment growth. During the period, 2000 to 2009 the Indian economy grew at an average rate of 8 per cent but employment growth was rather sluggish as demonstrated by the following table.

Year	Annual GDP Growth Rate	Employment Growth Rate	Unemployment Rate
1999-00	8.00	1.25	7.31
2004-05	7.05	2.62	8.28
2009-10	8.59	0.92	6.53

This is for a variety of reasons but most important is India’s obsession with an archaic labour policy that is keeping investors away, hindering employment growth and making Indian enterprises uncompetitive. To circumvent the rigorous labour policies, companies are either shifting their manufacturing bases to foreign countries or turning capital intensive, reducing their manpower needs. Besides swelling unemployment, these measures are also pushing people to the informal sector. India is a labour surplus country with 47 million unemployed below the age of 24 years and 12-13 million youths joining the labour market every year.

09. CONCLUSION

To avoid the growing unemployment, India strongly needs labour intensive and labour friendly industries. Most of the labour laws were enacted 40-70 years back, to address the then needs of regulating the manufacturing sector. Today, service sector has taken the lead with 55% share in the GDP. Labour Laws need to be reoriented to address the emerging needs of the service sector and the new technology intensive manufacturing sector. However, the pro-workmen nature of Labour Laws shall be strengthened more on the ground that the grip of organized corporate capital is tightening day by day on the less organized and vulnerable working class.

APPENDIX I

Aggregate data on membership of CTUOs 1989 and 2002 (Provisional)

Sl. No	Name of the Union	Membership excluding A&RW		Membership including A&RW		Increase excluding A&RW	Increase including A&RW	A&RW (1989)	A&RW (2002)
		1989	2002	1989	2002
I	II	III	IV	V	VI	VII	VIII	IX	X
1	BMS	2769556	4879480	3117324	6215797	2109924	3098473	347768	1336317
2	INTUC	2582851	2947205	2706451	3892011	364354	1185560	119073	944806
3	HMS	1318569	2641988	923517	3342213	1323419	2418696	158668	580544
4	CITU	1767544	2567010	1477472	3222532	799466	1745060	30049	110969
5	AITUC	905975	1971907	1798093	2677979	1065932	879886	17542	1370306
6	UTUC (LS)	433416	622861	802806	1368535	189445	565729	369390	745674
7	SEWA	NA	383946	539523	606935	NA	NA	NA	304194
8	UTUC	229225	274846	NA	383946	45621	688140	310298	332089
9	TUCC	30792	183553	230139	732760	152761	502621	199347	549207
10	AICCTU	NA	135023	NA	639962	NA	NA	NA	504939
11	LPF	NA	314419	NA	611506	NA	NA	NA	297087
12	Others	504004	209291	603219	1214725	672603	542122	168599	393928
	Total	10541932	17131529	1226792 8	2460158 9	6589597	12333661	1720734	7470060
Source: Trade Union Verification Data, 1989 and 2002 (provisional), Ministry of Labour, GOI

NOTES

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[i] Jovinelly, Joann; Netelkos, Jason (2006). The Crafts And Culture of a Medieval Guild. Rosen. p. 8

[ii] "Guild", Britannica

[iii] Starr, Mark (1919). A worker looks at history: being outlines of industrial history specially written for Labour College-Plebs classes. Plebs League

[iv] Rashdall, Hastings (1895). The Universities of Europe in the Middle Ages: Salerno. Bologna. Paris. Clarendon Press. p. 150

[v] Jovinelly, Joann; Netelkos, Jason (2006). The Crafts And Culture of a Medieval Guild. Rosen. p. 8.

[vi] "Guild", Britannica

[vii] Jovinelly, Joann; Netelkos, Jason (2006). The Crafts And Culture of a Medieval Guild. Rosen. p. 8

[viii] "Guild". Britannica

[ix] Starr, Mark (1919). A worker looks at history: being outlines of industrial history specially written for Labour College-Plebs classes. Plebs League

[x] "History and heritage". City of London. Archived from the original on 18 May 2013. Retrieved 25 June 2015

[xi] http://www.cityoflondon.gov.uk/about-the-city/how-we-work/elections-and-wards/Documents/Common%20Council%20Qualification%20Guidance.pdf

[xii] Malcolm Chase, Chartism: A New History (Manchester University Press, 2007); Keith Laybourn, A History of British Trade Unionism c.1770–1990 (1992) pp 33–34

[xiii] Roger Penn, Roger. "Trade union organization and skill in the cotton and engineering industries in Britain, 1850–1960." Social History 8#1 (1983): 37–55

[xiv] John Flanagan, "'A gigantic scheme of co-operation': The Miners' and Seamen's United Association in the North-East, 1851–1854." Labour History Review 74#2 (2009): 143–159

[xv] John Field, "British historians and the concept of the labour aristocracy." Radical History Review 1978.19 (1978): 61–85

[xvi] Derek Matthews, "1889 and All That: New Views on the New Unionism." International Review of Social History 36#1 (1991): 24–58; Keith Laybourn, A History of British Trade Unionism (1992) pp 72–76; A. E. P. Duffy, "New Unionism in Britain, 1889–1890: A Reappraisal," Economic History Review (1961) 14#2 pp 306–319

[xvii] Robin Miller Jacoby, "Feminism and Class Consciousness in the British and American Women's Trade Union Leagues, 1890–1925." in Liberating Women's History ed. Berenice Carroll (University of Illinois Press, 1976) pp: 137–60

[xviii] Gerry Holloway (2007). Women and Work in Britain since 1840. Routledge. p. 81ff

[xix] Melanie Reynolds, "'A Man Who Won't Back a Woman is No Man at All'. The 1875 Heavy Woollen Dispute and the Narrative of Women's Trade Unionism." Labour History Review 71#2 (2006): 187–198

[xx] Gupta’s 1999, comparative study of the period

[xxi] Begar means forced labour

[xxii] Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457

[xxiii] Section 36 of Industrial Disputes Act, 1947

[xxiv] Quinn v. Leathem, [1901] A.C. 495

[xxv] Taff Vale Railway Co. v. Amalgamated Society of Railway Servants, [1901] AC 426

[xxvi] Rustamji, The Law of Industrial Disputes in India 145 (1964). The suit was compromised.

[xxvii]  [1964] UKHL 1

[xxviii] Rohtas Industries Staff Union v. State of Bihar Patna High Court, (1962) II LLJ 420

[xxix] Sahitya Mandir Press v. State of Uttar Pradesh Labour Appellate Tribunal, Bombay, (1951) I LLJ 246

[xxx] Mewar Textile Mills v. Mill Mazdoor Sangh Labour Appellate Tribunal, Bombay, (1954) I LLJ 47

[xxxi] Section 2(k) has since been amended so as to include individual disputes regarding dismissals, etc. Industrial Disputes (Amendment) Act, 1965.

[xxxii] Vishwakarma v. Industrial Tribunal Supreme Court, 1961 I LLJ 504

[xxxiii] Ghatge and Patil Company Employees’ Union v. Powar Bombay High Court, (1966) II LLJ 251

[xxxiv] Main Report, Labour Investigation Committee (1946) p. 113

[xxxv] Report of the Textile Enquiry Committee (1940) Vol. II-Final Report. p. 355

[xxxvi] Management of Safdarjung Hospital, New Delhi v. Kuldip Singh Sethi [1971] 1 SCR 177=AIR (1970) SC 1407

[xxxvii] Madras Gymkhana Club v. Employees' Union v. Management AIR [1968] SC 554

[xxxviii] University of Delhi & Anr v. Ramnath & Ors AIR [1963] SC 1873

[xxxix] Dhanrajgiri Hospital v. Workmen AIR 1975 SC 2032

[xl] Cricket Club of India v. Bombay Labour Union & Anr [1969] 1 SCR 600= AIR [1969] SC 276

[xli] State of Bombay and Others v. The Hospital Mazdoor Sabha and Others [1960] 2 SCR 866

[xlii] Workmen of Indian Standards Institution v. Management of Indian Standards 1976 AIR 145, 1976 SCR (2) 138

[xliii] N. Banerje's case [1953] SCR 302

[xliv] Corporation of City of Nagpur v. Its Employees [1960] 2 SCR 942