IDA

Industrial Dispute Act 1947

[1] Overview [2] Definition [3] Dispute Settlement Authorities [4] Award [5] Strikes & Lock outs [6] Lay-off & Retrenchment [7] Penalty for Lay-off & Retrenchment [8] Unfair Labour Practice [9] First Schedule [10] Fourth Schedule

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[1] Overview

1.1    The main objective of the Industrial Disputes Act 1947 is to secure industrial peace and harmony by providing machinery and procedure for the investigation and settlement of industrial disputes by negotiations. Hereinafter, this Act may be called Act.

1.2    This Act deals with – (a) Retrenchment process of the employees, (b) Procedure for layoff, (c) Procedure and rules for strikes and (d) Lockouts of the company.

1.3    The Industrial Dispute Act of 1947, came into force on 1^st April, 1947.

1.4    The aim of this Act is to protect the workmen against – (a) victimization by the employers and (b) to ensure social justice to both employers and employees.

1.5    The unique object of the Act is to promote collective bargaining and to maintain a peaceful atmosphere in industries by avoiding illegal strikes and lock outs.

1.6    It extends to whole part of the country including Jammu & Kashmir.

[2] Definition

2.1    Appropriate Government [Sec. 2(a)]: Appropriate Government means (a) The Central Government if the industry/corporation belongs to Centre Government, (b) The State Government if the industry/corporation belongs to State Government or any private industry under the jurisdiction of the State Government.

2.2    Award [Sec 2 (b)]: Award means – an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under section 10A.

2.3    Industry [Sec. 2(j)]: Industry means any – (a) business, (b) trade, (c) undertaking, (d) manufacture or calling of employers and includes any calling, (e) service, (f) employment, (g) handicraft or (j) industrial occupation or avocation of workmen.

2.4    Industrial Dispute [Sec. 2(k)]: According to sec. 2(k) of the Act, Industrial Dispute means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.

Bullet: Difference in between the workman and his employer connected arising out of following activities shall be deemed to the industrial dispute.

• Dismissal of workman
  
• Discharge of workman
  
• Retrenchment of the workman
  
• Termination of workman from his services
  

Bullet: Workman should make an application to labour courts or tribunals for adjudication before the expiry of 3 years from the date of discharge, dismissal, retrenchment or otherwise termination of service of workman [Sec 2A (3)].

2.5    Industrial Dispute (Section 2a): According to Section 2A, where any employer discharges, dismisses, retrenches  or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute…………….?

2.6    Public Utility Service[Sec. 2(n)]:  means – (i) any railway service or any transport service for the carriage of passengers or goods by air;
(ia) any service in, or in connection with the working of, any major port or dock;
(ii) any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends;
(iii) any postal, telegraph or telephone service;
(iv) any industry which supplies power, light or water to the public;
(v) any system of public conservancy or sanitation;
(vi) any industry specified in the First Schedule which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification

2.7    Settlement [Sec. 2(p)]: Settlement means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between an employer and a workman arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised by the Appropriate Government and the Conciliation Officer.

2.7    Wages [Sec. 2(rr)]: Wages mean all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied were fulfilled, be payable to a workman in respect of his employment or of the work done in such an employment and includes:

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

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

(iii) Any traveling concession. But the following are excluded:

(a) Any bonus.
(b) Any contribution paid or payable to any pension fund or provident fund, or for the benefit of the workman under any law for the time being in force.
(c) Any gratuity payable on the termination of his service.

2.8    Workman [Sec. 2(s)]: Workmen under the Industrial Disputes Act, 1947 (Act) are defined as employees who have been engaged to do manual, unskilled, skilled, technical work but excludes people who are (a) employed in managerial or administrative capacity; and (b) employed in supervisory capacity if their wages exceed Rs 10,000 per month. The question of whether the work performed by an educated and highly skilled employee of an IT/ITES company would be ‘skilled, manual, technical or unskilled‘ for such an employee to be a workman under the Act, has taken significance in the recent times.

[3] Dispute Settlement Authorities

3.1    The Industrial Dispute Act, 1947 provides elaborate and effective machinery for the investigation and amicable settlement of industrial disputes by setting up the various authorities. These Authorities are:

1. Works Committee;
   
2. Conciliation Officer;
   
3. Conciliation Board;
   
4. Court of Enquiry;
   
5. Labour Court;
   
6. Industrial Tribunal;
   
7. National Tribunal;
   
8. Arbitrators;
   
9. Grievances Settlement Authority.
   

3.2    Works Committee [Sec. 3]: In the case of an industrial establishment in which 100 or more workmen are employed, the appropriate Government may require the employer to constitute a ‘Work Committee’.

3.2    It consists of equal number of representatives of employers and workmen engaged in the establishment.

3.3    The representatives of the workmen shall be chosen from amongst the workmen engaged in the establishment and in consultation with the registered trade union, if any. Works committee deals with the workers problem arising day to day in the industrial establishment.

3.4    Conciliation Officer [Sec. 4]: The appropriate Government is empowered to appoint any number of persons, as it thinks fit, to be conciliation officers. The conciliation officer having duty of mediating and acts as the mediators in between the parties to resolve the dispute.

3.5    In the case of public utility services matters like strikes and lockouts, the Conciliation Officer can initiate the conciliation proceeding and tries to settle the dispute in between the parties.

3.6    If the conciliation officer fails to resolve the dispute between the parties, he should report to the appropriate government. If necessary the dispute shall be referred to the Board, Labour Court, Tribunal or National Tribunal, by the appropriate government [Sec 12 (5)].

3.7    Duties of conciliation officers. [Sec 12]: According to section 12 of the Act, duties of the Conciliation Officers are as under –
(a) Hold conciliation proceedings relating to Strikes and lockouts procedural matters of public utility services.

(b) Investigate the matters of the disputes.

(c) Conciliation officers shall induce the parties to come to a fair and amicable settlement of the dispute.

(d) Duty to send the report of settlement of dispute and memorandum of the settlement signed by the parties to the dispute to the government or his superior.

(e) In case of failure of settlement of dispute in between parties, duty to send them to the government or his superior, report of facts and circumstances relating to the disputes and in his opinion, a settlement could not be arrived at,

(f) Duty to send the report to the government or his superior within 14 days from the commencement of the proceeding. or within such shorter period as may be fixed by the appropriate Government.

3.8    Conciliation Board [Sec. 5]: The appropriate Government is authorised to constitute a Board of Conciliation for promoting the settlement of an industrial dispute.

3.9    It consists of – (a) A Chairman who shall be an independent person, and (b) two or four other members. The members appointed shall be in equal numbers to represent the parties to the dispute.

3.10    When the dispute is referred to the Board, it is the duty of the Board to do all things as it thinks fit for the purpose of inducing the parties to come to fair and amicable settlement.

3.11    If there are many parties relating to or in the dispute, the government may appoint the conciliation board consisting of the above said members.

3.12    When parties in the industrial dispute apply to the government to refer dispute to the Conciliation Board and if government satisfies it shall make the reference to the Conciliation Board [Sec. 10(2)].

3.13    Duties of board. [Sec 13]: According to section 13 of the Act, duties of the Conciliation Board are –

(i) It shall be the duty of the Board to endeavour to bring about a settlement of dispute.

(ii) Investigate the matters relating to the dispute between parties and inducing the parties to come to a fair and amicable settlement of the dispute.

(iii) In case of failure of settlement of dispute in between parties, duty to send to the government the report of facts and circumstances relating to the disputes and board opinion, a settlement could not be arrived at,

(iv) The Board shall submit its report under this section within 2 months of the date on which the dispute was referred to it or within such shorter period as may be fixed by the appropriate Government.

3.14    Court of Enquiry [Sec. 6]: As and when occasion arises, Government can initiate a Court of Inquiry. The Court of Inquiry is set up to find out matters connected with or relevant to an industrial dispute. Where a Court consists of two or more members, one of them shall be appointed as the chairman.

3.15    A Court of Inquiry looks into only matters which are referred to it by Government and submits its report to the Government ordinarily within certain period from the date of reference.

3.16     Labour Court [Sec. 7]: The appropriate Government is empowered to constitute one or more Labour Courts. Its function is the adjudication of industrial disputes relating to any matter specified in the Second Schedule.

3.17    A Labour Court consists of one person only. A person is qualified to be appointed as presiding officer of a Labour Court, if:

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

(b) he has been a District judge or an Additional District judge for at least three years, or

(c) he has held the office of the chairman or any other member of the Labour Appellate Tribunal or of any Tribunal for at least two years, or

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

(e) he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for at least five years.

(f) he is or has been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the State Labour Department , having a degree in law and at least 7 years’ experience in the labour department after having acquired degree in law including three years of experience as Conciliation Officer:

(g) as the case may be, before being appointed as the presiding officer; or (g) he is an officer of Indian Legal Service in Grade III with three years’ experience in the grade.”

3.18    According to [Sec 10 (2)], when parties in the industrial dispute apply to the government to refer dispute to the labour court and if government satisfies it shall make the reference to the labour courts.

3.19    According to [Sec 10 (6)], no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal.

3.20    Jurisdiction of Labour Courts: This is referred in the Second Schedule of the Act. The jurisdiction are –

1. The propriety or legality of an order passed by an employer under the standing orders;
   
2. The application and interpretation of standing orders;
   
3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed;
   
4. Withdrawal of any customary concession or privilege;
   
5. Illegality or otherwise of a strike or lock-out; and
   

3.21    According to [Sec 10 (1) (c)] matters specified in THIRD SCHEDULE, dispute not effecting more than 100 workers can be referred to labour court.

3.20    Industrial Tribunal [Sec. 7A]: The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule and for performing such other functions as may be assigned to them under this Act.

3.21    A Tribunal consists of one person only. For appointment as the presiding officer of a Tribunal –

(a) One is, or has been, a Judge of a High Court; or

(b) One has, for a period of not less than 3 years, been a District Judge or an Additional District Judge;

(c) One is or has been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the State Labour Department, having a degree in law and at 7 seven years’ experience in the labour department after having acquired degree in law including three years of experience as Conciliation Officer subject to the condition that – no such Deputy Chief Labour Commissioner or Joint Labour Commissioner shall be appointed unless he resigns from the service of the Central Government or State Government, as the case may he, before being appointed as the presiding officer; or he is an officer of Indian Legal Service in Grade III with three years’ experience in the grade.”

3.22    Jurisdiction of Industrial Tribunals: Matters under the jurisdiction of Industrial Tribunals are incorporated in THIRD SCHEDULE and these are:

1. Wages, including the period and mode of payment;
2. Compensatory and other allowances;
3. Hours of work and rest intervals;
4. Leave with wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity;
6. Shift working otherwise than in accordance with standing orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalisation;
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed.

3.23    According to [Sec 10 (2)] when parties in the industrial dispute apply to the government to refer dispute to the industrial tribunal and if government satisfies it shall make the reference to the industrial tribunal.

3.24    According to [Sec 10 (6)] no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal.

3.25    National Tribunal [Sec. 7 (B)]: The Central Government may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals. Its main function is the adjudication of industrial disputes which involve questions of national importance or affecting the interest of two or more States.

3.26    According to [Sec 10 (1-A)], dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State, whether it relates to any matter specified in the Second Schedule or the Third Schedule, the government will order in writing refer to National Tribunal for adjudication.

3.27    According to [Sec 10 (2)], when parties in the industrial dispute apply to the government to refer dispute to the National Tribunal and if government satisfies it shall make the reference to the National Tribunal.

The Central Government shall appoint a National Tribunal consisting of one person only.

(a) A person to be appointed a presiding officer of a National Tribunal must be, or

(b) must have been, a judge of a High Court or

(c) must have held the office of the chairman or

(d) any other member of the Labour Appellate Tribunal for a period of not less than two years.

The Central Government may appoint two persons as assessors to advise the National Tribunal.

3.28    Arbitration [Sec. 10 (a)]: An Arbitrator is appointed by the Government. Whether the dispute is before Labour Court, or Industrial Tribunal or National Tribunal, the parties can go to arbitration by written agreement.

3.29    The arbitrators conduct the investigation in to the dispute matters and give arbitration award (final decision or settlement or decree) as for making reference of an industrial dispute.

3.30    If an industrial dispute exists or is apprehended and the employer and the workman agree to refer the dispute to an arbitration, they may refer the dispute to an arbitration. But such reference shall be made before the dispute has been referred under Sec. 19 to a Labour Court or Tribunal or National Tribunal by a written agreement.

3.31    The arbitrator may be appointed singly or more than one in number. The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be.

3.32    Grievances Settlement Authority [Sec. 9(c)]: This Section is incorporated as a new chapter II B of the Act. As per this Section, the employer in relation to every industrial establishment in which 50 (Fifty) or more workmen are employed or have been employed on any day in the preceding twelve months, shall provide for, in accordance with the rules made in that behalf under this Act, a Grievances Settlement Authority.

• every industrial establishment employing 20 or more workmen shall have one or more Grievance Redressal Committee for the resolution of disputes arising out of individual grievances.
  
• The Grievance Redressal Committee shall consist of equal number of members from the employer and the workmen.
  
• The chairperson of the Grievance Redressal Committee shall be selected from the employer and from among the workmen alternatively on rotation basis every year.
  
• The total number of members of the Grievance Redressal Committee shall not exceed more than 6 subject to the condition that there shall be, as far as practicable, one woman member if the Grievance Redressal Committee has two members and in case the number of members is more than two, the number of women members may be increased proportionately.
  
• The Grievance Redressal Committee may complete its proceedings within forty-five days on receipt of a written application by or on behalf of the aggrieved party.
  
• The workman who is aggrieved of the decision of the Grievance Redressal Committee may prefer an appeal to the employer against the decision of Grievance Redressal Committee and the employer shall, within one month from the date of receipt of such appeal, dispose off the same and send a copy of his decision to the workman concerned.
  
• Nothing contained in this section shall apply to the workmen for whom there is an established Grievance Redressal Mechanism in the establishment concerned.
  

[4] Award (decree) [Sec. 16, 17, 17A]

4.1    The award of a Labour Court or Tribunal or National Tribunal shall be in writing and shall be signed by its presiding officer [Sec 16(2)].

4.2    Every Arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of 30 days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit [Sec 17(1)].

4.3    The award published shall be final and shall not be called in question by any Court in any manner whatsoever. [Sec 17 (2)].

4.4    An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication [Sec 17A (1)].

4.5    Where the award has been given by a National Tribunal, that it will be inexpedient (neither advisable or nor practicable) on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days [Sec 17A (1) (b)].

4.6    The appropriate Government or the Central Government may, within 90 days from the date of publication of the award under section 17, make an order rejecting or modifying the award, to legislature of sate or parliament [Sec 17A (2)] and if no pursuance is made, the order become enforceable after the expiry of 90 days [Sec 17A (3)].

4.7    Any award as rejected or modified laid before legislature of state or parliament, shall become enforceable on the expiry of 15 days from the date on which is so laid [Sec 17A (3)].

4.8    Award declared becomes enforceable on the specified date if mentioned, if no date mentioned award becomes enforceable according to above rules.

4.9    Payment of full wages to workman in case of pending proceedings in higher courts [Sec. 17B]:
Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court as the case may be, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court subject to the condition that – where it is proved to the satisfaction of the High Court or the Supreme Court as the case may be that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.

4.10    Period of operation of settlements and Awards [Sec 19]: A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute.

(ii) An award shall remain in operation for a period of one year from the date on which the award becomes enforceable under section 17A: Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit.

(iii) The appropriate Government may, before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit, so however, that the total period of operation of any award does not exceed three years from the date on which it came into operation.

Example: if the court orders the employer to reinstate the workman in case of unreasonable removal or discharge , the employer is bind over for one year or in some cases, the period specified by the courts.

[5] Strikes & Lockouts

5.1    Strike [Sec. 2 (q)]: Strike means “a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal under a common understanding of any number of persons who are or have been so employed, to continue to work or to accept employment”. Mere stoppage of work does not come within the meaning of strike unless it can be shown that such stoppage of work was a concerted action for the enforcement of an industrial demand.

5.2    Lockout [Sec. 2(1)]: Lockout means “the temporary closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him”. Lockout is the antithesis of strike.

1. It is a weapon of the employer while strike is that of the workers.
   
2. Just as a strike is a weapon in the hands of the workers for enforcing their industrial demands, lockout is a weapon available to the employer to force the employees to see his points of view and to accept his demands.
   
3. The Industrial Dispute Act does not intend to take away these rights.
   
4. However, the rights of strikes and lockouts have been restricted to achieve the purpose of the Act, namely peaceful investigation and settlement of the industrial disputes.
   

5.3    In a judgement in – General Labour Union (Red Flag) Vs B. V. Chavan & Ors on 16 November, 1984, the Hon. Supreme Court of India expressed – “Imposing and continuing a lockout deemed to be illegal under the Act is an unfair labour practice.”

5.4    Procedure of Strikes: According to Sec. 22(1), no person employed in a public utility service shall go on strike in breach of contract-

(a) without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or

(b) within fourteen days of giving such notice; or

(c) before the expiry of the date of strike specified in any such notice as aforesaid; or

(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

Bullet: Section 22(1) is applicable to the workmen employed in public utility services and lays down that  “no person employed in a public utility service shall go on without following below said steps –

1. Notice of strike (with or without the date of strike) to the employer  by the employees is mandatory.
   
2. If the date of strike  by the employees is not mentioned in the notice such notice is valid for six weeks only.
   
3. If the date of strike is mentioned in the notice, the date of strike should not be before the expiry of 14 days from the date of notice of strike according to the clause (b).
   
4. Therefore, employees should not go on strike before the expiry of 14 days from the date of issue of notice of strike to the employer.
   
5. Notice of strike without the date of strike is valid for six weeks only, if employees do not go on strike within six weeks, again a fresh notice of strike by employees is necessary if they want to go on strike.
   
6. Employees should not go on strike during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.
   

5.5    Significance of “within fourteen days & within six weeks“: The clauses ‘a’ and ‘b’ appearing in Section 22(1) are significantly incorporated to prohibit the workmen from going on strike without giving a minimum of 14 days’ notice to the employer, a copy of which is also served on the Conciliation Officer. The purpose is quite obvious. It intends to give some time for the employer to consider. over the demands of the workers who are now appeared to be more serious to go on strike in furtherance of their demand. It also imposes statutory obligation on the Conciliation Officer to commence conciliation proceedings immediately so that the strife between the workmen and employer shall not result in stoppage of work and production.

5.6    The Section 22(l) also prohibits the workers from going on strike before the expiry of the date mentioned in the strike [Clause (c)]. It necessarily follows that such date can be fixed after the period of fourteen days during which workers cannot go on strike (clause b). Now in clause (a) the phrase “within six weeks before striking” is incorporated to determine the effectiveness of the notice given by the workmen. In other words, the notice of strike given by the workmen in accordance with Section 22 will be effective only for a period of six weeks, after the expiry of which, another fresh notice would be required.

Bullet: Suppose workmen give a notice of strike under Section 22 on 01/07/2020 and fix the date to go on strike as 20/07/2020. Now, they cannot go on strike before 20/07/2020 as is required under clause (c). They cannot fix any date in the notice in this case before 14/01/2020 as they are prevented from going on strike “within 14 days” of giving such notice by virtue of clause (b). Thus the requirements of both the clauses (b) and (c) arc complied with. Now, suppose workmen do not go on strike on or after 20/07/2020, the date fixed by them in the notice of strike and kept quiet for several months. Then suddenly they go on strike on any day after several months. This situation would defeat the very purpose of the Industrial Dispute Act to avert stoppage of work. Therefore, to avoid such situation it is laid down in clause (a) that the workmen cannot go on strike “without giving to the employer notice of strike within six weeks before striking”. It means that, in this example, the workmen cannot go on strike in consequence to their notice given on 01/07/2020 after the expiry of six weeks i.e. 15/08/2020, thus the effect of the notice is confined to a period of six weeks requiring the notice “within six weeks before striking”.

Lastly, the workmen cannot go on strike during the period of pendency of any conciliation proceeding before the Conciliation Officer and seven days after the conclusion of such proceedings (clause d).

Same conditions are incorporated under sub-section (2) relating to the employers who, too, cannot declare lockout without following the requirements laid down in clauses (a) to (d) of sub-section 2.

It must be noted .hat Section 22 of the I.D. Act does not totally prohibit the strike or lockout, but requires the parties engaged in Public Utility Service to give notice before resorting to the double-edged weapon of strike  or lockout. This was also clarified by Court in State of Bihar v. Deodhar Jha

5.7    Procedure of Lockouts: According to Sec. 22(2), no employer carrying on any public utility service shall lock-out any of his workmen—

(a) without giving them notice of lock-out as hereinafter provided, within six weeks before locking out; (b) within fourteen days of giving such notice; or (c) before the expiry of the date of lock-out specified in any such notice as aforesaid; or (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

5.8    Notice of lock-out or strike: According to Sec. 22 (3),  the notice of lock-out or strike under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out in the public utility service.

5.9    General prohibition of strikes and lock-outs: No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out—

(a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;

(b) during the pendency of proceedings before 1*[a Labour Court, Tribunal or National Tribunal] and two months after the conclusion of such proceedings;

(bb) 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;

(c) 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.

5.10    Illegal strikes and Lockouts [Section 24 of ID Act 1947]: A strike or a lockout shall be illegal, if employers or worker who ever disobeys or fails to follow Sec 22, 23, 10(3), 10-A (4-A) for commencing strikes or lockout, those strikes and lockout are said to illegal.

5.11    As per Sec. 24(3), a lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.

5.12    Prohibition of financial aid to illegal strikes and lock-outs [Sec. 25]: No person shall knowingly expend or apply any money in direct furtherance of support of any illegal strike or lock-out.

5.13    Penalty for illegal strikes and lock-outs. [Section 26]: As per Sec. 26(1), any workman who commences, continues or otherwise acts in furtherance of, a strike which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both.

5.14    As per Sec. 26(2), any Employer who commences, continues, or otherwise acts in furtherance of a lock-out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

5.15     Difference between Strike & Lock out : The major difference is tabulated below:

[6] Lay-off & Retrenchment

6.1    Retrenchment [Section 2(oo)]: “retrenchments” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-

(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
43[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation on that behalf contained therein; or]
(c) termination of the service of a workman on the ground of continued ill-health;]

6.2    Condition for Retrenchment: Section 25F of the Act is a very essential provision for law relating to retrenchment. If the conditions or requirements given in this provision are not followed by the employer, then the retrenchment of employee will be illegal and invalid.

6.3    According to this provision, a workman employed in any industry who has been in continuous service for not less than one year under an employer cannot be retrenched unless-

(a) The workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) The workman has been paid compensation at the time of retrenchment;

(c) Notice in the prescribed manner is served on the appropriate Government

Hence, if aforesaid conditions have not fulfilled by the employee before retrenching employee, then the employee can challenge the same.

6.4    Retrenchment of White Collar Employees: The term white collar employees has nowhere been expressly defined under the Indian Law. However, white collar employees are those who work in the managerial capacity. Hence, the employees who don’t fall under the definition of “workman” under Section 2(s) of the Act are white collar employees. The definition of “workman” specifically excludes those persons who are employed in managerial or administrative capacity.

6.5    Hence, white collar employees are not governed by the Act and retrenchment or termination on account of redundancy is also not governed by the provisions of the Act. In private sector organizations, the employment and termination of white collar employees or employees who do not fall under the definition of “workman” under Section 2(s) of the Industrial Dispute act, 1947, will majorly be governed by the terms of the employment or the employment contract.

6.6    Re-employment of retrenched workmen [Section 25H]: Where any workmen are retrenched, and the employer proposes to take into his employee any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons.

6.7    Retrenchment conditions: According to the Sec. 25F, no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay [for every completed year of continuous service] or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate government [for such authority as may be specified by the appropriate government by notification in the Official Gazette].

6.8    Lay-off: The term ‘lay-off’ is defined under section 2 (kkk) of the Industrial Disputes Act, 1947. Lay-off means the failure, refusal or inability of an employer on account of the shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity or for any other unconnected reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.

6.9    Layoff is the temporary suspension or permanent termination of employment of an employee or, more commonly, a group of employees (collective layoff) for business reasons, such as personnel management or downsizing (reducing the size of) an organization. Originally, layoff referred exclusively to a temporary interruption in work, or employment.

6.10    Lay-off is a measure to cope with the temporary inability of an employer to offer employment to a workman to keep the establishment as going concern. It results in immediate unemployment though temporary in nature. It does not put an end to the employer-employee relationship, nor does it involve any alteration in the conditions of service.

6.11    Lay-off occurs only in a continuing (running) business. When the industrial establishment is closed permanently or lock-out is declared by the employer, the question of lay-off has no relevance.

6.12    Lay-off is justified only when it is in conformity with the definition given under Section 2 (kkk) of the Industrial Disputes Act. The explanation given to this section further provides that if a worker whose name is borne on the muster roll of the industrial establishment and who presents himself for work during normal hours on any day, and he is not given employment within two hours of his commencement of duty, he is said to be laid-off for the day.

6.13    In case, if he is asked to present himself during the second half of the shift and is given employment, he is deemed to be laid-off for half the day. However, if the workman is not given employment even after presenting himself at the commencement of the second half of the shift, he is deemed to have been laid-off for the full day.

6.14    Section 25A of the Act provides clearly that the provisions of the Industrial Disputes Act, 1947 relating to lay- off and retrenchment compensation do not apply to the following three types of industrial establishments:

(a) An industrial establishment in which less than fifty (50) workmen on an average per working day have been employed in the preceding calendar month.

(b) Industrial establishments which are of a seasonal character or in which work is performed only intermittently.

(c) Industrial establishments to which chapter V-B applies as inserted by the Industrial Disputes Amendment Act, 1976.

6.15    Right to Compensation: The right to compensation under the Act accrues to a workman only if he has put in at least ‘one year of continuous service.  Section 25 B defines what amounts to continuous service. A workman is said to be in continuous service if he is for that period in uninterrupted service.

6.16    Interruption on account of sickness, authorised leave, an accident, a strike which is not illegal, a lock out and a cessation of work which is not due to the fault of the workman should not be taken into consideration for calculating the period of continuous service.

6.17    Even if a workman has not been in continuous service for a period of one year, he shall be deemed to be in continuous service for the period of one year if he satisfies the following two conditions:

(i) He was in employment for twelve calendar months preceding the date with reference to which calculation is to be made, and

(ii) During such twelve months, he actually worked for not less than (a) one hundred and ninety days in the case of employment in a mine, and (b) two hundred and forty days in any other case.

6.18    Compensation for Lay-Off (Rights of Workmen)[Sec. 25C]: According to Section 25 C of the Industrial Disputes Act, a workman who is laid-off is entitled to compensation equivalent to 50 per cent of the total basic wages and dearness allowance for the period of lay-off except for weekly holidays which may intervene.

6.19    Compensation can normally be claimed for not more than forty-five days during any period of twelve months. Even if lay-off exceeds forty five days during any period of twelve months no compensation is required to be paid for the excess period if there is an agreement to that effect between the workman and the employer.

6.20    This right of compensation is, however, subject to the following conditions: –

(i) He is not a badly or a casual workman.

(ii) His name should be borne on the muster rolls of the establishment.

(iii) He should have completed not less than one year of continuous service under the employer.

6.21    A badli workman means a workman who is employed in place of another workman whose name is borne on the muster rolls of the establishment. However, such a workman ceases to be a badli workman on his completion of one year of continuous service in the establishment.

6.22    The right of workmen to lay off compensation is designed to relieve the hardship caused by unemployment due to no fault of the employee. The provision for payment of compensation for lay-off does not mean that the employer can pay lay-off compensation and declare lay-off. Payment of compensation is not a condition precedent to lay-off.

6.23    Duties of the Employer in Connection with Lay-Off: The following duties are laid down for the employer in connection with a lay-off –

(a) The employer must maintain a muster roll of workmen and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours notwithstanding that workman in any industrial establishment have been laid off.

(b) The lay-off must be for the reasons specified in Section 2(kkk).

(c) The period of detention of workmen if stoppage occurs during working hours should not exceed two hours after the commencement of the stoppage.

(d) The compensation for lay-off must be at the rate and for the period specified in Section 25-C of the Industrial Disputes Act.

6.24    Cases in which a Workman is not Entitled to Lay-Off Compensation: The provisions of Section 25E provide certain exceptions to the general rule for the payment of lay-off compensation. In other words, even if the workman is laid off, he will be disentitled to claim compensation if his case falls within any of the three clauses of this section. In the following cases, a worker who is laid-off will not be entitled to claim compensation.

1. Refusal to Accept Alternative Employment: If a laid off workman refuses to accept alternative employment provided that such alternative employment is:

(a) In the same establishment from which he has been laid-off or

(b) In any other establishment belonging to the same employer situated in the town or village within a radius of five miles from the establishment to which he belongs,

(c) In the opinion of the employer the alternative employment does not call for any special skill or previous experience and can be done by the workman and

(d) It carries the same wages which would normally have been paid to the workman in his original employment.

2. Absence From the Establishment: If the workman does not present himself at the appointed time during normal working hours at least once a day.

3. Strike or Go Slow: If such laying-off is due to a strike or slowing down of production on the part of workmen in another part of the establishment.

[7] Penalty for lay-off and retrenchment [Section5Q ]

7.1    This section applies to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than one hundred workmen were employed on an, average per working day for the preceding twelve months[Section 25K].

7.2    Any employer who contravenes the provisions of section 25M or section 25N shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

[8] Unfair Labour Practices

8.1    According to Sec. 25T, no employer or workman or a trade union, whether registered under the Trader Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.

8.2    According to Sec. 25U, there is a provision of Penalty for committing unfair labour practices. Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine.

8.3    Penalty under this act at a glance is tabulated as follows:

8.4    Unfair labour practices are classified into two parts – (i) On the part of Employers & Trade Unions of Employers, (ii) On the Part of Workman & Trade Unions of Workman. These classifications of unfair labour practices are discussed in successive paras hereinafter.

8.5    (a)On the part of Employers and Trade Unions of Employers: (1) To interfere with, restrain from, or coerce, workmen in the exercise of their right to organise, form, join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say that:

(a) threatening workmen with discharge or dismissal, if they join a trade union;

(b) threatening a lock-out or closure, if a trade union is organised; and

(c) granting wage increase to workmen at crucial periods of trade union organisation, with a view to undermining the efforts of the trade union at organisation.

(2) To dominate, interfere with or contribute support, financial or otherwise, to any trade union, that is to say that:-

(a) an employer taking an active interest in organising a trade, union of his workmen; and

(b) an employer showing partiality or granting favour to one of several trade unions attempting to organise his workmen or to its members, where such a trade union is not a recognised trade union.

(3) To establish employer-sponsored trade unions of workmen.

(4) To encourage or discourage membership in any trade union by discriminating against any workman, that is to say that:-

(a) discharging or punishing a workman, because he urged other workmen to join or organise a trade union;

(b) discharging or dismissing a workman for taking part in any strike (not being a strike which it deemed to be an illegal strike under this Act);

(c) changing seniority rating of workmen because of trade union activities;

(d) refusing to promote workmen to higher posts on account of their trade union activities;

(e) giving unmerited promotions to certain workmen with a view to creating discord amongst other workmen, or to undermine the strength of their trade union;

(f) discharging office bearers or active members of the trade union on account of their trade union activities.

(5) To discharge or dismiss workmen –

(a) by way of victimisation;

(b) not in good faith, but in the colourable exercise of the employer’s rights;

(c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;

(d) for patently false reasons;

(e) on untrue or trumpet up allegations of absence without leave;

(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;

(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the workman, thereby leading to a disproportionate punishment.

(6) To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike.
(7) To transfer a workman mala fide from one place to another, under the guise of following management policy.
(8) To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a precondition to allowing them to resume work.
(9) To show favouritis or partiality to one set of workers regardless of merit.
(10) To employ workmen as “badlis” casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.
(11) To discharge or discriminate against any workman for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.
(12) To recruit workmen during a strike which is not an illegal strike.
(13) Failure to implement award, settlement or agreement.
(14) To indulge in acts of force or violence.
(15) To refuse to bargain collectively, in good faith with the recognised trade unions.
(16) Proposing or continuing a lock-out deemed to be illegal under this Act.

8.6    On the part of Workmen and Trade Unions of Workmen: (1) To advise or actively support or instigate any strike deemed to be illegal under this Act.
(2) To coerce workmen in the exercise of their right to self-organisation or to join a trade union or refrain from joining any trade union, that is to say that –

(a) for a trade union or its members to picketing in such a manner that non-striking workmen are physically debarred from entering the work places;
(b) to indulge in acts of force or violence or to hold out threats of intimidation in connection with a strike against non-striking workmen or against managerial staff.

(3) For a recognised union to refuse to bargain collectively in good faith with the employer.
(4) To indulge in coercive activities against certification of bargaining representative.
(5) To stage, encourage or instigate such forms of coercive actions as willful “go slow”, squatting on the work premises after working hours or “gherao” of any of the members of the managerial or other staff.
(6) To stage demonstrations at the residences of the employers or the managerial staff members.
(7) To incite or indulge in wilful damage to employer’s property connected with the industry.
(8) To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work.

8.7    Prohibition of unfair labour practice: According to Sec. 25T, no employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.

8.8    Penalty for committing unfair labour practices: According to Sec. 25U, any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to Rs.1000/- or with both.

[9] First Schedule

9.1    This schedule belongs to services which may be treated as public utility services under sec. 2(n)(vi) and these services are –

1. Transport (other than railways) for the carriage of passengers or goods by land or water.
   
2. Ports or Docks
   
3. any postal, telegraph or telephone service;
   
4. any industry which supplies power, light or water to the public
   
5. any system of public conservancy or sanitation;
   
6. Banking.
   
7. Cement.
   
8. Coal.
   
9. Cotton textiles.
   
10. Foodstuffs.
    
11. Iron and steel.
    
12. Defence establishments.
    
13. Service in hospitals and dispensaries.
    
14. Fire brigade service.
    
15. India Government Mints.
    
16. India Security Press.
    
17. Copper Mining.
    
18. Lead Mining.
    
19. Zinc Mining.
    
20. Iron Ore Mining.
    
21. Service in any oil field.
    
22. Omitted
    
23. Service in uranium industry.
    
24. Pyrites mining industry.
    
25. Security Paper Mill, Hoshangabad.
    
26. Services in Bank Note Press, Dewas.
    
27. Phosphorite mining.
    
28. Magnesite Mining.
    
29. Currency Note Press.
    
30. Manufacture or production of mineral oil (crude oil), motor and aviation spirit, diesel oil, kerosene oil, fuel oil, diverse hydrocarbon oils and their blends including synthetic fuels, lubricating oils and the like.
    
31. Service in the International Airports Authority of India.
    
32. Industrial establishments manufacturing or producing Nuclear Fuel and Components, Heavy Water and Allied Chemicals & Atomic Energy.
    

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