Industrial Disputes Act, 1947 – CS Professional Study Material

Chapter 4(A) Industrial Disputes Act, 1947 – CS Professional Labour Laws and Practice Notes is designed strictly as per the latest syllabus and exam pattern.

Industrial Disputes Act, 1947 – CS Professional Labour Laws and Practice Study Material

Question 1.
Write short notes of the following: (Dec 2008)
(i) Matters within the jurisdiction of industrial tribunals constituted under the Industrial Disputes Act, 1947. (5 marks)
(ii) Tests for determination of ‘industry’ under the Industrial Disputes Act, 1947. (5 marks)
Answer:
(i) Labour Court
Under Section 7, the appropriate Government is empowered to constitute one or more labour court for adjudication of industrial dispute relating to any matter specified under the second schedule and such other functions assigned to it.

Tribunals

It adjudicate the matters which are specified under the second schedule or the Third Schedule and for performing other function assigned.

(ii) Industry:

As per Section 2(j) of the Industrial Disputes Act, 1947 industry means “any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft, or industrial occupation or avocation of workmen”.
The Supreme Court carried out an in-depth study of the definition of the term industry in a comprehensive manner in the case of Bangatore Water Supply and Sewerage Board v. A Rajiappa, and evolved a new concept of the term industry.
In the said case, Supreme Court laid down the following tests to determine whether an activity is covered by the definition of industry or not, also termed as the famous ‘triple test’.
Triple test includes following 3 areas:
- systematic activity
- organised by co-operation between employer and employee
- for the production and/or distribution of goods and services calculated to satisfy human wants and wishes
Absence of profit motive or gainful objective is irrelevant wherever the undertaking is whether in the public private or other sector.
The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
Research institutes, charitable projects and other kindred adventures, if they satisfy the triple tests cannot be exempted from the scope of Section 2(j).
A restricted category of professions, clubs, co-operatives and gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantially and going by the dominant nature criterion substantively, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non-employee character of the unit.

Question 2.
Write short notes on the following:
Principles laid down by the Supreme Court with regard to retrenchment under the Industrial Disputes Act, 1947. (June 2009, 5 marks)
Answer:
Principles Laid Down by Supreme Court with Regard to Retrenchment
The Industrial Disputes Act, 1947 defines retrenchment under Section 2(oo) as “the termination by the employer, of the service of the workman, for any reason, whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include voluntary retirement, compulsory retirement of the workman on reaching the age of superannuation or termination of service on the grounds of continued ill health.”

Thus, the definition contemplates following requirements for retrenchment:

There should be termination of the service of the workman.
The termination should be by the employer.
The termination is not the result of punishment inflicted by way of disciplinary action.
The definition excludes termination of service on the specified grounds or instances mentioned in it.

The Supreme Court in the case of Workmen of Subong Tea Estate v. Subong Tea Estate, (1964) 1 LL.J. 333, laid down the following principles with regard to retrenchment:
1. The management can retrench its employees only for proper reasons, which means that it must not be actuated by any motive of victimisation or any unfair labour practice.

2. It is for the management to decide the strength of its labour force and the number of workmen required to carry out efficiently the work in his industrial undertaking must always be left to be determined by the management in its discretion.

3. If the number of employees exceeds the reasonable and legitimate needs of the undertaking, it is open to the management to retrench them.

4. Workmen may become surplus on the ground of rationalisation or on the group of economy reasonably and bona fide adopted by the management or of other industrial or trade reasons.

5. The right of the employer to effect retrenchment cannot normally be challenged but when there is a dispute in regard to the validity of the retrenchment, it would be necessary for the tribunal to consider whether the impugned retrenchment was justified for proper reasons and it would not be open to the employer either capriciously or without any reason at all to say that it proposes to reduce its labour for no rhyme or reason.

Thus, in case the workmen is rendered surplus or any other valid ground, the management is empowered to retrench the workmen. However, where there exist no reasonable cause of retrenchment the tribunal is empowered to judge the validity of retrenchment.

Question 3.
Write short notes on the following:
‘Authorities for the investigation and settlement of industrial disputes’ under the Industrial Disputes Act, 1947 (Dec 2009, 5 marks)
Answer:

Settlement means the written agreement arrived between the employer & employee regarding settlement of Industrial dispute.
The various authorities established under the act for settlement are:
- Work committee – It is required where 100 or more workers are employed in an undertaking. It promotes and develop good relation between the employee and workman.
- Board of Conciliation – It shall have a duty to investigate into the dispute and bring a settlement between the employee and employer.
- Court of Enquiry- It is an authority set up to enquire into the matter referred to it and to submit its report to appropriate government.
- Labour Court- Labour court is constituted to adjudicate into the industrial dispute and pass appropriate orders by conducting proper proceedings.

Question 4.
Write short notes on the following:
Principles governing domestic enquiry. (June 2010, 5 marks)
Answer:
The principles governing a domestic enquiry are as follows:

The enquiry should be conducted by an unbiased person i.e. who is neither against nor in favour of a particular party.
Must be conducted honestly.
The enquiry officer need not wait for the criminal proceeding if any, pending against any workman.
Employee should be given fair opportunity to defend himself.
Holding of preliminary enquiry is not mandatary.
Enquiry officer must record the conclusions of enquiry.

Question 5.
Write notes on the following:
Unfair labour practices on the part of workmen and trade unions of workmen under the Industrial Disputes Act, 1947. (Dec 2010, 5 marks)
Answer:
The various unfair labour practices on part of employee workman includes:

To take part or support any illegal strike.
To force the workman to join the trade union
To indulge in the acts of force or violence against non- striking
Wrongful demonstrations at the residence of the employers.
To indulge in wilful damage of employers property.
For a recognised union to refuse to bargain collectively in good faith with the employer.

Question 6.
Write notes on the following:
Legality of strike under the Industrial Disputes Act, 1947. (June 2011, 5 marks)
Answer:

A strike will be legal if it does not violate any provisions of the Act.
The Justifiability of strike has no relation with its legality or illegality.
The court held that the Justifiability will be seen from the standpoint of fairness and reasonableness of demands made by workmen and not merely from the standpoint of their exhausting all other legitimate means open to them for getting their demand fulfilled.
In Gujrat Steel Tubes Ltd v/s Gujrat Steel Tubes Majdoor Sabha, Supreme Court held that justifiability of strike is purely a question of fact.

Therefore if the strike is resorted to by the workers in support of their reasonable, fair and bonafide demands in peaceful manner, then the strike will be justified. Where it was resorted to using violence or acts of sabotage or for any wrong purpose, then the strike will be unjustified.

Question 7.
Write notes on the following:
‘General prohibition of strikes and lock-outs’ under the Industrial Disputes Act, 1947. (Dec 2011, 5 marks)
Answer:
Section 23 of the Industrial Disputes Act, 1947 covers in its ambit the general prohibition of strike & lock-outs, Some of these situations include:

During the pendency of conciliation proceedings
Conducting strike during the pendency of arbitration proceedings
Conducting strike during the pendency of proceedings before the Labour Court, Tribunal or National Tribunal
During the period in which a settlement or award is in operation

Question 8.
Write notes on the following:
Tests laid down by the Supreme Court in Bangalore Water Supply and Sewerage Board vs. A. Rajiappa [AIR 1978 SC 548] to determine whether an activity is covered by the definition of ‘industry’ under the Industrial Disputes Act, 1947. (Dec 2012, 5 marks)

Question 9.
Write short notes on the following:
Unfair labour practices on the part of workmen and trade unions of workmen under the Industrial Disputes Act, 1947. (June 2013, 5 marks)
Answer:
The various unfair labour practices on part of employee workman includes:

To take part or support any illegal strike.
To force the workman to join the trade union.
To indulge in the acts of force or violence against non-striking
Wrongful demonstrations at the residence of the employers.
To indulge in wilful damage of employers property.
For a recognised union to refuse to bargain collectively in good faith with the employer.

Question 10.
Write short notes on the following:
Prohibition of strikes and lock-outs in public utility services under the Industrial Disputes Act, 1947. (Dec 2013, 5 marks)

Question 11.
Discuss the following:
Difference between an ‘award’ and ‘settlement’ under the Industrial Disputes Act, 1947. [CSIC Old Syllabus] (Dec 2004, 5 marks)
Answer:

Basic	Award	Settlement
Meaning	Award is a determination of any industrial dispute by labour court, Industrial Tribunal or National Tribunal.	A written agreement arrived at in course of conciliation proceedings between employer and workman relating to an industrial dispute.
Agreement	There is no such agreement between the employer and employee	There is an agreement entered into by a employer & employee.

Question 12.
Distinguish between of the following:
‘Individual dispute’ and ‘industrial dispute’ under the Industrial Disputes Act, 1947. (Dec 2008, 5 marks)
Answer:
Industrial dispute has been defined under Section 2(K) of the Industrial Disputes Act 1947 as “Any dispute or difference between employer and employees, or between employers and workmen or between workmen and workmen, which is connected with the employment or non employment or terms of employment or with the conditions of labour of any person.” Individual dispute on the other hand does not affect a large group of workmen. It relates to an individual and there does not exist any community of interest.

An individual dispute may turn out to be an industrial dispute if there arises a community of interest. However, an individual dispute cannot be subsequently treated as an industrial dispute merely because it (i.e. dispute) received afterwards support of some more workmen, once the same has been referred for adjudication.

Question 13.
Distinguish between the following:
(i) ‘Lay-off’ and lock-out’ under the Industrial Disputes Act, 1947.
(ii) ‘Arbitration’ and ‘adjudication’ of disputes under the Industrial Disputes Act, 1947. (June 2009, 5 marks each)
Answer:

In case of arbitration, the dispute is referred to independent party known as arbitrator.
They decide the dispute.
It is fast and less costly method.
Intervention by arbitrator helps in arriving at relevant decisions.
Section 10A of Industrial Disputes Act, 1947 provides for arbitration.

Question 14.
Distinguish between the following:
‘Legal strike’ and ‘justified strike’. (June 2010, 5 marks)
Answer:
Legal Strike: A legal strike is one which does not violates the provisions of law. Thus, a strike made within the legal boundaries is termed as legal strike.

Justified Strike: As the very name suggest ‘justified strike’ is one which is justified in other words one which is fair as well as reasonable. In case the demands of those involved in strike are legitimate and bonafide the same will get the nomenclature of ‘justified strike’.

Thus, the former deals with the legality related aspects while the latter deals with the issue of reasonableness. Thus, a justified strike may be legal or illegal i.e. may be in accordance with legal framework or not but appears just considering the facts of the case.

Question 15.
Distinguish between the following:
‘Award’ and ‘settlement’ under the Industrial Disputes Act, 1947. (Dec 2010, 5 marks)
Answer:
As per Section 2(b) of the Industrial Disputes Act, 1947 “Award” mean an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Cost, Industrial Tribunal or National Tribunal. It also includes an arbitration award made under Section 10-A. “Settlement” has been defined under Section 2(p) of the Industrial Disputes Act, 1947.

It means a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceedings 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 authorized in this behalf by the appropriate Government and the conciliation officer.

Question 16.
Distinguish between the following:
‘Courts of inquiry’ and ‘labour courts’ under the Industrial Disputes Act, 1947. (June 2011, 5 marks)
Answer:
Court of enquiry

The Appropriate government may as the occasion arises by notification in official gazette constitute a court of inquiry to look into any matter of industrial dispute.
A court of inquiry shall consist of one independent person or of such number of independent person as the appropriate Government may specify
Where the court consist of more than one member one of them shall act as a chairman.
The court of enquiry shall inquire into the matters referred to it and shall submit its report to appropriate Government within six months.

Labour Courts

Appropriate Government is empowered to constitute one or more labour court for adjudication of Industrial Dispute relating to any matter specified in Second Schedule and for performing such other function as may be specified from time to time.
This court shall consist of one person only to be appointed by appropriate Government.
Whenever any industrial dispute is referred to a labour court for adjudication, it is a duty of labour court to hold its proceedings expeditiously and submit its award to appropriate Government.

Question 17.
Distinguish between the following:
(i) ‘Arbitration’ and ‘conciliation’ for the resolution of industrial disputes under the Industrial Disputes Act, 1947. (Dec 2011, 5 marks)
(ii) ‘Lay-off’ and ‘lock-out’ under the Industrial Disputes Act, 1947. (5 marks)
Answer:
(i) Arbitration:
Arbitration is a procedure in which the parties to a contract opts for a private dispute resolution procedure instead of going to court.

Arbitration is an alternative for court.
In case of arbitration the dispute is referred to independent party know as arbitrator
It is fast & less costly method
Section 10 A of Industrial Disputes Act, 1947 provides for arbitration.

Conciliation:

It is the process of settlement of industrial disputes through third party intervention
It is different from arbitration as it aims to reduce the extend of differences of parties and to arrive at an amicable solution.

(ii)

Basic	Lay off	Lock out
Meaning	In lay off employer refuses to give employment due to some specific reason	Lock out is a temporary closure of place of employment or refusal to employ the workers employed by him.
Business	In lay off, business continues	In Lock out, business closed down for some time.
Reason	Due to trade reason	No such specific reason. It is a weapon of collective bargaining.
Penalties	No such Penalties	Penalties in case of unlawful Lock-out

Question 18.
Distinguish between the following:
‘Lay-off’ and ‘retrenchment’ under the Industrial Disputes Act, 1947. (June 2012, 5 marks)
Answer:
‘Lay off & ‘retrenchment’ under the Industrial Disputes Act, 1947

Basic	Lay off	Retrenchment
(i) Meaning	In lay off employer refuses to give employment due to some specific reason.	It is the termination by the employer of the service of the workmen for any reason whatsoever otherwise than as a punishment.
(ii) Reason	It is the result of trade reasons .	It is on account of surplus labour.
(iii) Wages	Wages are not paid unless it is held to be unjustified	Workmen are paid the prescribed compensation.

Question 19.
Distinguish between the following:
‘Award’ and ‘settlement’ under the Industrial Disputes Act, 1947. (Dec 2012, 5 marks)

Question 20.
Discuss the following:
(i) Industrial discipline.
(ii) Voluntary reference of disputes to arbitration. [CSIG – II] (June 2004, 5 marks)
Answer:
(i)

Industrial Discipline means working by employees to predetermined rules, regulation and code of conduct in the industry, knowledge or information and motivation are of utmost importance for ensuring good Industrial discipline.
The objectives of Industrial dispute are:
- Facilitate cooperation of subordinates
- To reform the offender causing disclosure, deters others from making the same mistake.

(ii)

For settlement of industrial dispute by voluntary reference the following provision are applicable.
- When an industrial dispute exist, the employer and employee can refer the dispute under a written agreement to arbitration.
- A copy of arbitration agreement shall be forwarded to appropriate government and after wards the arbitrator after investigation submit to appropriate government the arbitration award.

Question 21.
Discuss the following:
Retrenchment compensation. [CSIG – II] (June 2005, 5 marks)
Answer:
Retrenchment has been defined under the Industrial Dispute Act, as termination by the employer of the service of the workmen for any reason whatsoever, otherwise than as a punishment, but does not include voluntary retirement, retirement by superannuation or termination due to ill-health.

On retrenchment the retrenched workmen will be entitled for retrenchment compensation under section 25-F of the Act.

According to this Section, no workman employed in any industry, who has been in continuous service for not less than a year under a employer, shall be retrenched, until at the time of retrenchment, be paid compensation which shall be equivalent to fifteen day’s average pay for every completed year of service or any part thereof in excess of six months. If retrenchment compensations is not paid at the time of retrenchment, the retrenchment is illegal.

Question 22.
Discuss the following:
Unfair labour practices on the part of workmen and trade unions of workmen under the Industrial Disputes Act, 1947. [CSIG – II] (Dec 2005, 5 marks)

Question 23.
Discuss the following:
Principles governing domestic inquiry. [CSIG – II] (June 2006, 5 marks)

Question 24.
Discuss the following:
(i) Adjudication as a method of resolution of industrial disputes.
(ii) Lay-off compensation. [CSIG – II] (June 2007, 5 marks)
Answer:
(i) Adjudication means intervention of the dispute by the third party app inted by the government. The Industrial Dispute Act, 1947 provides for a three -tier system of adjudication.

Labour Court
Industrial Tribunal
National Tribunal

The labour court adjudicate upon dispute listed in schedule II of the Act. The Industrial Dispute adjudicate disputes listed in schedule III of the Act. The National Tribunal adjudicate upon disputes which are of national importance. Thus adjudication is the formal decision arrived at by the third party on an industrial dispute referred to it under the Act. It is one of the method of resolution of Industrial Dispute.

(ii) Lay off compensation means temporary inability of an employer to provide employment to the worker due to any of the following reason.

Accumulation of stock
Natural Calamity
Shortage of coal, power or raw material
Break down of machinery.

According to the permissions of the Act, if the employees are laid off in pursuance of Section 2(kkk) they are entitled to lay off compensation. Where a employer completed year of service and is laid off, he shall be paid by the employer for all the days during which he has been laid off, 50% of the basic wages and dearness allowance

Question 25.
Discuss the following:
Object and scope of the Industrial Disputes Act, 1947. [CSIG – II] (June 2008, 5 marks)
Answer:
In the case of “The Workmen of Dimakuchi Tea Estate v/s Dimakuchi Tea Estate” the Supreme Court claim down the various objective of the Act as :

Taking measures for good relations between the employer and workman.
Investigation and settlement of industrial dispute between employers and employer or between employers & workman or among workman.
Prevent illegal strike or lock out.
Protection of workman in case of lay off and retrenchment.
Promotion of collective bargaining.

Question 26.
(a) Differentiate the role of work committee and conciliation officer in resolving industrial dispute. (June 2019) (6 marks)
(b) In what cases wages for the Strike period are paid ? (6 marks)
Answer:
(a) Section 3 of the Industrial Disputes Act, 1947 provides that the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee in industrial establishments, where 100 or more workmen are employed or have been employed on any working day in the preceding 12 months. The Works Committee will be comprised of the representatives of employers and workmen engaged in the establishment.

It shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and, to that end, to comment upon matters of their common interest or concern and endeavor to compose any material difference of opinion in respect of such matters.

Section 4 of the Industrial Disputes Act, 1947, provides that with the duty of mediating in and promoting the settlement of industrial disputes, the appropriate Government may, by notification in the Official Gazette, appoint such number of Conciliation Officers as it thinks fit. The Conciliation Officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period.

The main objective of appointing the Conciliation Officers, by the appropriate Government, is to create congenial atmosphere within the establishment where workers and employers can reconcile on their disputes through the mediation of the Conciliation Officers. Thus, they help in promoting the settlement of the disputes.

(b) Pursuant to the provisions of the Industrial Dispute Act, 1947 the payment of wages for the strike period will depend upon whether the strike is justified or unjustified. This also depends upon several factors such as service conditions of workmen, the cause which led to strike, the urgency of cause or demand of workmen, the reason for not resorting to dispute settlement machinery under the Act or service rules/regulations etc. No wages are payable if the strike is illegal or it is unjustified. Further, if the workers indulge in violence, no wages will be paid even when their strike was legal and justified (Dum Dum Aluminium Workers Union v. Aluminium Mfg. Co.).

The workmen must not take any hasty steps in resorting to strike. They must, first take steps to settle the dispute through conciliation or adjudication except when the matter is urgent and of serious nature. Thus, in the case of Chandramalai Estate v. Workmen, it was observed that when workmen might well have waited for some time, after conciliation efforts had failed, before starting a strike, and in the meantime could have asked the Government to make a reference, the strike would be unjustified and the workmen would not be entitled to wages for the strike period.

In the case of Crompton Greaves Ltd. v. The Workmen it was observed that for entitlement of wages for the strike period, the strike should be legal and justified. Reiterating this position, the Court held in Syndicate Bank v. Umesh Nayak that where the strike is legal but at the same time unjustified, the workers are not entitled for wages for the strike period. It cannot be unjustified unless reasons for it are entirely perverse or unreasonable. The use of force, violence or acts of sabotage by workmen during the strike period will not entitle them for wages for the strike period.

Question 27.
Elaborate in what circumstances during the pendency of proceedings, change in condition of services are permissible? (June 2019, 6 marks)
Answer:
According to Section 33(2) of the Industrial Disputes Act, 1947 during the pendency of proceedings before any authority in respect of an industrial dispute, the employer is permitted to take following actions, in accordance with the standing orders applicable to workmen concerned in such disputes or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman:

(a) to alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceedings.
(b) to discharge or punish, whether by dismissal or otherwise, that workman for any misconduct not connected with the dispute.

However such action of discharge or dismissal can be taken by an employer during pendency of proceedings only after he has paid wages for one month and made an application to the authority before which the proceedings are pending for approval of the action taken by the employer. The authority concerned shall, without delay, hear such application and pass within a period of three months from the date of receipt of such application, such order in relation thereto as it deems fit (unless extended on reasonable grounds).

According to Section 33(3) of the Industrial Disputes Act, 1947, employer shall obtain the express permission in writing of the authority before which the proceeding is pending before taking any such action mentioned in section 33(2) against a protected workmen.

Question 28.
Define Strike and Lock-out. When are Strikes and Lock-outs illegal? Can financial aid be given to workers engaged in such illegal Strikes and Lock-out? (Dec 2020, 12 marks)
Answer:
Strikes and lock-outs are the two weapons in the hands of workers and employers respectively, which they can use to press their viewpoints in the process of collective bargaining. The Industrial Disputes Act, 1947 does not grant an unrestricted right of strike or lock-out. Under Section 10(3) and Section 10A (4A) of the Industrial Disputes Act, 1947, the Government is empowered to issue order for prohibiting continuance of strike or lock-out. Sections 22 and 23 make further provisions restricting the commencement of strikes and lock-outs.

According to Section 2(q) of Industrial Disputes Act, 1947, Strike means:

cessation of work by a body of persons employed in any industry acting in combination,
or a concerted refusal to any number of persons who are or have been employed in any industry to continue to work or to accept employment, or
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.

According to Section 2(l) of Industrial Disputes Act, 1947, “Lock-out” 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.

Illegal strikes and lock-outs
According to Section 24 (1) of the Industrial Disputes Act, 1947 a strike or lock-out shall be illegal if it is:

commenced or declared in contravention of Section 22 in a public utility, service;
Commenced in contravention of Section 23 in any industrial establishment (including both public utility and non- public utility service)
Continued in contravention of an order made by the Appropriate Government under Section 10 (3) or sub – section (4A) of Section 10A of the Act.

Section 24 (2) provides that where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of reference of the dispute to a Board, an arbitrator, Labour Court, Tribunal or National Tribunal, the Continuance of such strike or lock-out shall not be deemed to be illegal provided that such strike or lock -out was not at its commencement in contravention of the provisions of this Act or the continuance there of was not prohibited under Section 10 (3) or Sub section (4-A) of Section 10-A.

Section 25 of the Industrial Disputes Act, 1947 prohibits financial aid to illegal strikes and lock-outs, It says that no person shall knowingly spend or apply any money in direct furtherance or support of an illegal strike or lock-out. Section 25 has the following ingredients:

spending or applying money;
money spent or applied in direct furtherance or support of an illegal strike or lockout;
the strike or lockout must actually be illegal;
knowledge on the part of the person expending or applying money that the strike or lock-out is illegal.

It is sufficiently clear that the persons spending or applying money must know that the strike or lock-out is illegal. This means rea is a necessary element of an offence under this section. The provisions of this section are attracted only if the strike or lockout is illegal and not otherwise.

Question 29.
The employees employed in an Airline Industry gave notice of strike stating that they would go on strike dated 1st December, 2018. In fact, they struck the work before the said date. Is the strike illegal? Discuss. (Aug 2021, 6 marks)
Answer:
Yes, the strike is illegal. As per Section 22 of Industrial Dispute Act 1947, 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 herein- after 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.

Section 24 of the Industrial Disputes Act, 1947, lays down that, a strike shall be illegal if, it is commenced or declared in contravention of Section 22 or Section 23.

The strike shall be illegal if, it is commenced or continued in public utility service like the Airlines, within fourteen days of giving such notice of strike. In this case, the workmen struck before the expiry of the date of strike, specified in the notice which is in contravention of sub-section (c) of Section 22 of the Industrial Disputes Act, 1947.

Therefore, the strike is illegal.

Question 30.
An employee who is ‘laid-off by his employer at Dadar, Mumbai refuses to accept an alternative employment, offered in another establishment situated of Sion in Mumbai, belonging to the some employer. Is the employee entitled to claim ‘Lay-off’ Compensation? (Aug 2021, 6 marks)
Answer:
The workman is not entitled to claim “Lay-off” Compensation. Section 25E of the industrial Disputes Act, 1947, lays down that, no compensation shall be paid to a workman who has been laid-off, if he refuses to accept any alternative employment in any other establishment belonging to the same employer situate in the same city, town or situate within a radius of 5 miles from his previous employment, provided that such alternative employment does not call for any special skill or previous experience and can be doen by the workman and the wages are protected, i.e., the same wages would be paid to workman in such alternative employment also.

In this case, it is not clear whether same wages are offered to the workman or not. Assuming that the wages would be protected, the alternative employment belongs to the same employer and it is within the same city of Mumbai. On these grounds, the workman is not entitled to claim compensation for lay-off.

Question 31.
Is the Right to Lay off can be claimed as an inherent right of the employer ? (Dec 2021, 6 marks)
Answer:
According to the Section 2(kkk) of the Industrial Disputes Act, 1947, “Lay-off” (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer to give employment due to following reasons, to a workman whose name appears on the muster-rolls of his industrial establishment and who has not been retrenched:

(a) shortage of coal, power or raw materials, or
(b) accumulation of stocks, or
(c) break-down of machinery, or
(d) natural calamity, or
(e) for any other connected reason.

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

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

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

From the above provisions, it is clear that lay-off is a temporary stoppage and within a reasonable period of time, the employer expects that his business would continue and his employees who have been laid-off, the contract of employment is not broken but is suspended for the time being.

The right to lay-off cannot be claimed as an inherent right of the employer. This right must be specifically provided for either by the contract of employment or by the statute (Workmen of Dewan Tea Estate v. Their Management). In fact ‘lay-off’ is an obligation on the part of the employer, i.e., in case of temporary stoppage of work, not to discharge the workmen but to lay-off the workmen till the situation improves. Power to lay-off must be found out from the terms of contract of service or the standing orders governing the establishment (Workmen v. Firestone Tyre and Rubber Co., 1976 3 SCC 819).

There cannot be lay-off in an industrial undertaking which has been closed down. Lay-off and closure cannot stand together.

Question 32.
The legality or illegality of a strike has nothing to do with the liability for deduction of wages.
Even if the strike is legal, it does not save the workers from losing the salary for the period of strike. Comment with the help of decided cases. (Dec 2021, 12 marks)
Answer:
As per Section 2(q) of the Industrial Disputes Act, 1947 “strike” means a cessation of work by a body of persons employed in any industry acting in combination or a concerned refusal, or a 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.

The Industrial Disputes Act, 1947 does not grant an unrestricted right of strike or lock-out. Under Section 10(3) and Section 10A (4A), the Government is empowered to issue order for prohibiting continuance of strike or lock-out. Sections 22 and 23 make further provisions restricting the commencement of strikes and lock-outs.

If a strike is in contravention of the above provisions, it is an illegal strike. Since strike is the essence of collective bargaining, if workers resort to strike to press for their legitimate rights, then it is justified. Whether strike is justified or unjustified will depend upon the fairness and reasonableness of the demands of workers.

In the case of Chandramalai Estate v. Its Workmen, (1960) II L.L.J. 243 (S.C.), the Supreme Court observed: “While on the one hand it be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour, it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged.

It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking the Government to make a reference. In such cases, strike even before such a request has been made, will be justified”.

Thus, if workmen go on strike without contravening statutory requirements, in support of their demands, the strike will be justified. In the beginning strike was justified but later on workmen indulged in violence, it will become unjustified.

In the case of Indian General Navigation and Rly. Co. Ltd. v. Their Workmen, (1960) I L.L.J. 13, the Supreme Court held that the law has made a distinction between a strike which is illegal and one which is not, but it has not made distinction between an illegal strike which may be said to be justifiable and one which is not justifiable. This distinction is not warranted by the Act and is wholly misconceived, especially in the case of employees in a public utility service. Therefore, an illegal strike is always unjustified.

It is well settled that in order to entitle the workmen to wages for the period of strike, strike should be legal as well as justified. A strike is legal if it does not violate any provision of the statute. Again a strike cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether a particular strike is justified or not is a question of fact which has to be judged in the light of the facts and circumstances of each case, it is also well settled that the use of force or violence or acts of sabotage resorted to by the workmen during a strike disentitled them to wages for the strike period (Crompton Greaves Limited v. Workmen, 1978 Lab. I.C. 1379).

Question 33.
The Supreme Court of India, in a leading case, determined the triple test for determining any establishment as an ‘industry’ and the criteria for its dominant nature. Keeping in view of this, define the meaning of ‘industry’ as provided under the relevant law. (June 2022, 6 marks)

Question 34.
Attempt the following stating the relevant legal provisions and case law, if any:
(i) Raghav was retrenched from service and the reason assigned to him was that he had become an economic surplusage. Is the action of the employer justified?

(ii) There is an industrial dispute pending before the conciliation officer. The employer makes changes in the conditions of service of the workmen in respect of the matters connected with the pending industrial dispute without the permission of the conciliation officer but the alterations are not to the prejudice of the workmen. Is the action of the employer justified and legal? [CSIC Old Syllabus] (June 2004, 3 marks each)
Answer:
(i) The action of the employer in the given case is fully justified. If in an scheme of reorganisation of business of the employer results in surplusage of employee, then retrenchment is valid.

(ii) No, the actions of employer in the given case is not justified. As according to the provisions of the Act, if any industrial dispute is pending before conciliation officer, Labour Court or Tribunal the employer is allowed to make changes in the service only after taking proper permission of authority in writing. Thus, the actions of the employer are not justified.

Question 35.
Attempt the following stating the relevant legal provisions and case law, if any: (Dec 2004)
(i) Raman, while working in a factory, died a natural death following a cardiac arrest. The fellow workers refused to work until his family members are summoned and dead body is sent to his native place. Does it amount to strike on their part? (3 marks)

(ii) The management without holding any inquiry terminated the services of certain workmen who had merely participated in an illegal strike. Is the action of the management justified? (3 marks)

(iii) Zenith Industries Ltd. terminated the services of five workmen on account of retrenchment. Their names were displayed on the notice board of the company. Does the action of the management amount to a valid retrenchment under the Industrial Disputes Act, 1947? [CSIC Old Syllabus] (3 marks)
Answer:
(i) Yes it will amount to strike as the workers in a factory refuses to work and cessation of work is the important character of strike on the part of employee. Thus in the above case also workers refuses to work and thus it constitute as strike.

(ii) The actions of the management is not justified under the act for dismissal of employee. Proper domestics enquiry must be undertaken. In the above case the employees were dismissed for taking part in illegal strike without conducting enquiry, will not be a valid dismissal.

(iii) For valid retrenchment to take place the employee/ workmen must be given 1 month notice in writing. The notice must also specify the reason for retrenchment. In the given case the Zenith Industries Ltd. terminated the services without giving sufficient notice as required.

Question 36.
Attempt the following stating the relevant legal provisions and case law, if any:
Adarsh was a primary school teacher in a private school. He was dismissed from service after an inquiry. He wants to institute a suit in the Labour Court challenging the order of dismissal. Will he succeed? [CSIC Old Syllabus] (June 2005, 3 marks)
Answer:
He will not succeed in the suit in labour court as teachers were not held to be a worker under the Industrial Dispute Act.

As in the above situation, Adarsh was a primary school teacher in a private school, and is being dismissed will not be able to succeed as he is not a workmen under the Act.

Question 37.
Attempt the following stating the relevant legal provisions and case law, if any:
Bhaskar, a school teacher, was dismissed from service for gross misconduct. He seeks reinstatement under the Industrial Disputes Act, 1947 on the ground that he is a ‘workman’ and that his dismissal amounts to an industrial dispute. Will he succeed? [CS/C Old Syllabus] (Dec 2005, 3 marks)

Question 38.
Attempt the following stating the relevant legal provisions and case law, if any:
Due to accumulation of stocks, the company declared lay-off for 5 days. The workers’ union protested that it was not the legal right of the employer to lay-off the workers and that they should be paid full wages for the period of lay-off. Will they succeed in a court of law, if the employer refuses to concede to their demand ? [CSIC Old Syllabus] (June 2006, 3 marks)
Answer:
No, the trade union will not be able to succeed. The employer has a right to terminate the services temporary through lay off on the following ground.

Accumulation of stock
Shortage of power, fuel
Natural calamity etc In the above situation, the employer laid off the workers on account of accumulation of stock, hence the trade union will not be able to succeed.

Question 39.
Attempt the following stating the relevant legal provisions and case law, if any:
(i) Prem and Qureshi established a legal consultancy firm. They employed three law graduates, a stenographer and a typist to assist the firm. After five years, the services of the stenographer were terminated without assigning any reason. He raised a dispute before the Labour Court asking for reinstatement or retrenchment compensation as contemplated by the Industrial Disputes Act, 1947. Will he succeed ?

(ii) Sameer died suddenly while working in a factory. The workmen refused to resume work to express solidarity with the deceased worker. Does the action of the workmen amount to strike under the Industrial Disputes Act, 1947?

(iii) Fragile Ltd. was running in continuous losses for 5 years. As a result, the company’s financial position worsened. The company declared lay-off of 10 of its employees. The employees protested the lay-off. Is the action of the employer justified ? [CSIC Old Syllabus] (Dec 2006, 3 marks each)
Answer:
(i) In the above case, the services of stenographer were terminated, but he shall not be able to succeed in a dispute before the Labour Court.

(iii) Lay off means the refusal or inability of employer to employ the workmen due to any to the following reason
Accumulation of stock Shortage of coal, power or raw material.
Natural calamity etc.
In the given case the company laid off the workers on account of company’s weak financial position which is not justified.

Question 40.
Attempt the following stating the relevant legal provisions and case law, if any:
Efficiency Ltd. is in the process of reorganistion of its business. It is likely to result in some labour being rendered surplus. It has proposed retrenchment of economic dead weight. Can the company do so? [CSIC Old Syllabus] (Dec 2007, 3 marks)
Answer:
No, the workers in the given case will not be entitled for retrenchment compensation under the Act. When person is employed on daily wages, there termination from work will not constitute retrenchment.

Question 41.
Attempt of the following stating relevant legal provisions and decided case law, if any:
The workers in a factory went on strike. The strike was legal. The employer deducted wages for the strike period on the ground that the legality of strike did not always exempt the workers form deduction of their wages for the period of strike. Was the employer’s action justified? [CSIC Old Syllabus] (June 2008, 3 marks)
Answer:
If a strike is in contravention of legal provisions it is an illegal strike. Whether the strike is justified or unjustified will depend upon the fairness and reasonableness of the demands of workers.

The workmen in order to entitle the wages for the period of strike, the strike must be legal as well as justified.

Hence, employer cannot deduct the wages in the said case.

Question 42.
Attempt the following stating relevant legal provisions and decided case law, if any: (June 2009)
(i) The workman of Bharat Chemicals went on go-slow strike to compel the management to concede to their demands. The management contended that go- slow is a serious misconduct and initiated disciplinary action against the erring workmen. Is the action of the management justified? (4 marks)

(ii) Anil, a workmen raised an industrial dispute contending that he was employed with effect from 1st April, 1986 on regular basis and his services were illegally terminated on 12th February, 1994. The employer took the stand that the workman was engaged on casual basis on daily wages for a specific period and for the specific work and that his services were not terminated on 12 th February, 1994 but he had abandoned his job. The employer did not produce attendance record before the Labour Court and also failed to prove that the workman had worked for less than 240 days. The workman alleged violation of the provisions of the Industrial Disputes Act, 1947 relating to retrenchment. Will he succeed? (4 marks)
Answer:
(i)

In the above case, the act of workman of Bharat Chemicals was a misconduct.
The workman went on go slow strike to compel the management to concede to their demands.
The action of the management is justified.

(ii)

In the above case, the workman will not succeed.
The workman allegation regarding violation of the provisions of the Act relating to the retrenchment will not be tenable in law.

Question 43.
Attempt the following stating relevant legal provisions and decided case law, if any: (Dec 2009)
(i) The workmen went on sympathetic strike by absenting themselves from work in support of the workmen belonging to some other employer. The management intends to take disciplinary action against those workmen. Is the intention of the management justified and legal? (4 marks)
(ii) Efficiency Ltd. is in the process of reorganising its business. It is likely to result in some labour being rendered surplus. It has proposed retrenchment of economic dead weight. Can the company do so? (4 marks)
Answer:
(i)

As sympathetic strikes also falls within the category of unjustified strike whereby by absenting themselves from work, interruption is caused into the day to day affairs.
Hence, the same constitutes a valid ground for disciplinary action of management.

Question 44.
Attempt the following stating relevant legal provisions and decided case law, if any: (Dec 2010)
(i) Mohan has been working in a foundry for the last 20 years. Recently, it was found that he was suffering from diabetes. Based on that, the management terminated his services. Does the action of the management tantamount to retrenchment? (4 marks)

(ii) A copy of the memorandum of settlement was not despatched by the conciliation officer to the appropriate government. Will the settlement be treated as invalid? Give reasons. (4 marks)
Answer:
(i)

Mohan has been working in a foundry for the last 20 years.
Yes, the action of the management tantamount to retrenchment.
A person suffering from diabetes cannot be regarded as unfit for the organization.
Since there was no support for medical illness, the termination of services of Mohan amounts to retrenchment.

(ii)

Yes, the settlement will be treated as invalid.
Section 12 of the Industrial Disputes Act, 1947 stipulates that the conciliation officer, needs to send report in relation to settlement of the dispute to the Appropriate Governments.
Even in case the settlement has taken place without conciliation officer as an intermediary, the parties need to sent a copy of the same to the labour commissioner.
Since the statutory requirement has not been fulfilled, the settlement shall be treated as invalid.

Question 45.
Attempt the following stating relevant legal provisions and decided case law, if any: (June 2011)
(i) Promod Electronics is a small scale industry (SSI) employing 15 workmen. Due to a fall in demand for its products, the management decided to lay-off its workmen. The workmen contended that they cannot be laid-off as there is no provision to lay-off in the terms and conditions of appointment. Examine the legality of the action of the management. (4 marks)
(ii) The members of a trade union who are not workmen of the employer raised a dispute and sought redressal from the authorities. Will they succeed in their dispute? (4 marks)
Answer:
(i)

In the given case the action of management is not legal.
The power to lay off must be provided under terms of contract or appointment or must be provided in a statute.
The power to lay off is not an inherent right of management.
It must have been specifically provided in terms & conditions of employment agreement.

(ii)

Persons who are not workmen of the employer against whom the dispute is sought to be raised, cannot by their support convert an individual dispute into an industrial dispute.
The persons who seek to support the cause must themselves be directly and substantially interested in the dispute and person who are not the employees of the same employer cannot be regarded as so interested.

Question 46.
Attempt the following stating relevant legal provisions and decided case law, if any:
(i) A copy of the ‘memorandum of settlement’ was not dispatched by the Conciliation Officer to the appropriate government. Will the settlement be treated as invalid?
(ii) Azad Ltd. implemented a scheme of re-organisation of the business. It resulted in the surplus of 10 employees. The company dispensed with their services. The employees union challenged it that it was not a ground for the retrenchment of the employees. Will the union succeed? (June 2012, 4 marks each)
Answer:
(i)

In the above case, a copy of’memorandum of settlement’was not dispatched by the Conciliation Officer to the appropriate Government which is a mandatory requirement under Section 12 of the Industrial Disputes Act, 1947.
The Conciliation Officer must send a report to the appropriate Government in case the settlement of the dispute is arrived at in the course of the conciliation proceedings.
Thus, the settlement will be treated as invalid.

Question 47.
Attempt the following stating relevant legal provisions and decided case law, if any:
(i) Suresh, a primary school teacher, was dismissed from service due to unauthorised absence for a week. Suresh intends to raise an industrial dispute with regard to his dismissal seeking reinstatement with consequential benefits. Will he succeed? Give reasons in support of your answer.

(ii) A workman was charged with theft of an article from the factory. The management initiated disciplinary proceedings against him for an act subversive of discipline and simultaneously initiated criminal proceedings by lodging a complaint with the police. The workman pleaded for stay of disciplinary proceedings till the outcome of criminal proceedings. Is the plea of the workman tenable? Discuss.

(iii) The management of a tea garden terminated the services of a technician on the ground of incompetence. His cause was espoused by the workers’ union which raised an industrial dispute. The management contended that the technician was not a member of the
workers’ union and that there could not be an industrial dispute in this case. Will the management succeed in its stand? Discuss.

(iv) The management of an industrial establishment declared an unjustified lock-out due to the illegal and unjustified strike by a section of the workers. Later on when the strike was called off, the management did not pay wages for the lock-out period. Is the action of the management justified and legally tenable? Give reasons. (Dec 2012, 4 marks each)
Answer:
(i)

In one of the decided cases, Supreme Court held that the teachers employed by the educational institutions cannot be considered as workmen under the Industrial Disputes Act as main function of the teachers is imparting of education which can not be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work.
Manual work comprises of work involving physical exertion as distinct from mental and intellectual exertion.
Teaching involves mental & intellectual exercise instead of manual.
Thus Suresh will not be able to claim benefits under Industrial Disputes Act, 1947.

(ii)

Disciplinary proceedings can be carried out even if the outcome of criminal proceeding have not come. If any criminal proceeding eg., theft etc. are pending against any workman, the enquiry officer need not wait for the completion of those proceedings.
Hence workman will not succeed in its plea.

(iii) The management will not succeed in its stand.

Section 2A of the Industrial Disputes Act, 1947 provides that where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or differences 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 despite not withstanding that no other workman nor any union of workmen is a party to the dispute.

(iv)In the case of ‘India Marine Service V. Their Workman’ it was held by the Supreme Court that where a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises which is to be determined by industrial court/ tribunal.

Hence the action of the management is not justified.

Question 48.
Attempt of the following stating relevant legal provisions and decided case law. (June 2013)
(i) Five persons were employed as malis (gardeners) in the private houses of senior functionaries of a company. They were looking after the garden attached to bungalows provided by the company to its officers and directors. Are these malis ‘employees’ and ‘employed in an industry’ under the Industrial Disputes Act, 1947 ? (4 marks)

(ii) The President and General Secretary of a registered trade union were dismissed from service for having instigated workers to go on a strike for the acceptance of their justified demands. Challenging the dismissal in the court of law, they contended that it was unjust on the part of the employer and that going on strike was their fundamental and statutory right. Will they succeed ? (4 marks)

(iii) The services of a bus conductor of a state roadways corporation were terminated on the ground of weak eyesight which was below the standard requirement. Does the termination amount to being due to continued ill-health under the Industrial Disputes Act, 1947 ? Give reasons. (4 marks)
Answer:
(i) In the decided case of “ J. K. Cotton Spinning and Weaving Mills Co. Ltd,” the Supreme Court held that “malis” looking after the garden attached to the bungalow provided by the company to its officers and directors, are engaged in operations incidentally connected with the main industry carried on by the employer.

According to the provisions contained in Industrial Dispute Act, 1947, no employer or workman or a Trade Union, whether registered or not, shall commit any unfair labour practice.

Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industry operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly connected with the main work or operation of the industry.

Thus, yes malis are employees and employed under the Industrial Dispute Act, 1947.

(ii) To advice or actively support or investigate any strike deemed to be illegal under the Act is a unfair labour practice on the part of workmen and trade unions of workmen.

Thus, President and General Secretary of a registered trade union will not succeed.

(iii) Yes, the termination on the ground of weak eyesight which was below the standard requirement will amount to being due to continued ill – health under the Industrial Dispute Act, 1947. as held in case of Anand Behari V. RSRTC.

Question 49.
University XYZ is a newly form State University in Jaipur, Rajasthan in 2007. University is providing variety of professional courses like MBA, MBBS, LLB, B.Tech., MCA, B.Ed. etc. The university is situated at the outskirts of city Jaipur, around 20 km from main bus-stand north-east direction. University provides residential facilities to students as well as academic and non-academic staff. For day scholar, it provides the community transport facility from University to Central Park, Jaipur. The University has been ranked as the 7^th upcoming University in higher education. Government of Rajasthan has invested around ₹ 500 crore for its development. University has around 200 teaching staff in various departments and 250 non-teaching staff including bus driver, library staff, administrative staff. Teachers have formed association named ‘XUTA’ (XYZ University Teachers Association) and non-academic staff has formed ‘XUTU’ (XYZ University Trade Union).

Apart from specific complain, both groups have some general grounds of complain of the following nature:

University has not implemented 7^th pay commission salary structure.
Working conditions are harsh and not as per UGC guidelines.
University not providing pension scheme of any nature.
Infrastructure conditions of building and buses are pathetic.

As per the guidelines of XYZ University, seats in the University for Rajasthan domicile is 85% reserved and 15% of seat are reserved for students from outside state. Around 300 students stay in the hostel of University and 450 students are day scholars. Students have their Union named as ‘SXUA’ (Student of XYZ University Association). Students have certain regular complains to the University about poor infrastructure, poor conditions of buses/transport facility, lack of basic amenities, lock of good canteen and playing grounds.

University has not responded to any complain of teaching staff, non-teaching staff and student’s union positively. It has not deliberated on the issue at any forum showing their non-sensitiveness to the complaints. On 15 January 2015, while commuting from Jaipur to University in early hours, the University bus met with an accident. Driver of the bus along with 2 students suffered injury. Ramlal, the driver due to accident lost his left eye and broken left hand. Students with minor injuries are safe.

Instead of making proper inquiry to the issue, the university administration issued a show cause notice of termination to Ramlal, saying that he was driving bus in inebriated conditions and therefore, he alone is responsible for the accident. Ramlal is not the member of the “XYZ University Staff Union” on the day of accident and notice.

His reply to the notice of termination was not taken into consideration on this ground. Realizing the injustice to Ramlal, the XUSU, XUTA and SXUA joined together and gheraoed the administrative head of University for 2 hours on 30 January, 2015. After the intervention of enforcement agency the matter was sorted out on that day. However, these three groups continued with strike in the University.

On the basis of above facts, please advise on the following issues : (June 2019)
(a) Whether the above mentioned dispute is an ‘ industrial dispute’ ? (8 marks)
(b) Whether the University is an ‘industry’ ? (8 marks)
(c) Whether the faculties of University are workman ? (8 marks)
(d) Whether an individual dispute can be named as industrial dispute ? (8 marks)
(e) Whether students’ union can raise an industrial dispute? (8 marks)
Answer:
(a) Section 2(k) of the Industrial Disputes Act, 1947 defines “industrial dispute “as 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. The dispute should relate to an industry as defined in Section 2(j) of the Industrial Dispute Act, 1947.

Therefore, going by the definition of “industrial dispute” as stated above, following may be concluded about the dispute of University XYZ:- Existence of dispute or difference: Both academic and non-academic staff have common complaints apart from specific complaints like non-implementation of 7^th Pay Commission Recommendations, harsh working conditions, University XYZ not providing pension scheme, pathetic conditions of infrastructure and buses etc., students have regular complaints of poor hostel facility, lack of basic amenities, good canteen and playground etc.

Despite continuous complaints, there was no response from the side of University XYZ. Irresponsible behavior of University XYZ in terminating the driver Ramlal without conducting any inquiry, show cause notice and without any response towards his reply to termination letter further aggravated the situation. The continuous non-sensitive behavior of University XYZ towards complaints of academic staff, non-academic staff and students have caused them to join hands and go on strike on termination of Ramlal. Therefore, first requirement of existence of dispute is satisfied here.

Parties to the dispute : University XY2 is employer of academic and non-academic staff. The disputes can be raised by workmen themselves or their union or federation on their behalf. Ramlal is a non-academic workman of University XYZ and there is no requirement that he should be a member of trade union of non-academic staff on the date of dispute.

Therefore, the second requirement of between whom dispute should arose is also satisfied.

Subject matter of thedispute:The dispute should relate to employment or non-employment or terms of employment or conditions of labour of any person. As dispute relates to dismissal of Ramlal – an employee, therefore, the third requirement is also satisfied.

Dispute in an Industry: University XYZ is an “Industry” as clarified in answer 1(b). As all the requirements of definitions of section 2(k) of the Industrial Disputes Act, 1947 are satisfied, therefore, there exists “industrial dispute” in the present case.

(b) According to section 2(j) of the Industrial Disputes Act, 1947, “Industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft, or industrial occupation or avocation of workmen. In the case of Bangalore Water Supply and Sewerage Board vs. A Rajiappa, AIR 1978 SC 548, the Supreme Court, laid down the following tests (known as “Triple Test”) to determine whether an activity is covered by the definition of “industry” or not.

There is an “industry” in an enterprise, where there is
(i) systematic activity,
(ii) organised by co-operation between employer and employee.
(iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g., making, on a large scale, prasad or food) prima facie.

The Supreme Court observed that professions, clubs, educational institutions, co-operatives, research institutes, charitable projects and other kindred adventures, if they fulfil the triple tests listed above, cannot be exempted from the scope of Section 2(j). It was held that even a university would be an industry if it satisfies triple test.

As University XYZ satisfies triple test as follows:
(i) Systematic Activity : As University XYZ is providing variety of professional courses, providing residential facilities to students, academic and non-academic staff, providing community transport facility, is ranked 7^th upcoming University in higher education, having an appreciable number of academic and non-academic staff which are having organized associations and trade unions…This all shows that University XYZ is carrying systematic activity of providing education.

(ii) Organised by co-operation between employer and employee :
The University has such a huge academic as well as nonacademic staff and vast number of residential and day scholar students, it has got huge funds from Government of Rajasthan for development, 7^th Pay Commission recommendations are applicable to it… These all indicate that University XYZ is organized by co-operation between employer and employee.

(iii) Prima facie purpose of University is to render higher educational services to students, therefore third test of Bangalore Water Supply Case is satisfied.

As all the three tests are satisfied. Therefore. University XYZ may be considered as an “industry” in accordance with the Industrial Disputes Act, 1947.

(c) According to section 2(s) of the Industrial Disputes Act, 1947, “Workman”, means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied and for the purposes of any proceeding under this Act in relation to an industrial dispute. It includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of dispute.

In Bangalore Water Supply Case, it was held that educational institution is an industry in terms of Section 2(j) of the Industrial Disputes Act, 1947 though not all of its employees are workmen. It was held as under: “The premises relied on is that the bulk of the employees in the university is the teaching community. Teachers are not workmen and cannot raise disputes under the Act.

In the case of E.S.I.C. Medical Officer’s Association vs. E.S.I.C. &ANR., Indian Labour Journal, July 2014 the apex Court observed that a profession requires extensive training, study and mastery of the subject, whether it is teaching students, providing legal advice or treating patients or diagnosing diseases. Persons performing such functions cannot be seen as a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.

In the case of Sunderambal vs. Government of Goa, the Supreme Court held that the teachers employed by the educational institution cannot be considered as workmen within the meaning of Section 2(s) of the Act, as imparting of education which is the main function of the teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. The Court in this case also said that manual work comprises of work involving physical exertion as distinct from mental and intellectual exertion. The teacher necessarily performs intellectual duties and the work is mental and intellectual as distinct from manual.

Therefore, faculties of University XYZ do not fall in the definition of “Workman” under the Industrial Disputes Act, 1947.

(d) Till the provisions of Section 2A were inserted in the Industrial Disputes Act, 1947, it has been held by the Supreme Court that an individual dispute per se is not industrial dispute. But it can develop into an industrial dispute when it is taken up by the union or substantial number of workmen (Central Province Transport Service v. Raghunath Gopal Patwardhan).

In the case of Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate, the Supreme Court held that it is not that dispute relating to “any person” can become an industrial dispute. There should be community of interest. A dispute may initially be an individual dispute, but the workmen may make that dispute as their own, they may espouse it on the ground that they have a community of interest and are directly and substantially interested in the employment, non-employment, or conditions of work of the concerned workmen.

All workmen need not to join the dispute. Any dispute which affects workmen as a class is an industrial dispute, even though, it might have been raised by a minority group. It may be that at the date of dismissal of the workman there was no union. But that does not mean that the dispute cannot become an industrial dispute because there was no such union in existence on that date.

If it is insisted that the concerned workman must be a member of the union on the date of his dismissal, or there was no union in that particular industry, then the dismissal of such a workman can never be an industrial dispute although the other workmen have a commonality of interest in the matter of his dismissal and the cause for which on the manner in which his dismissal was brought about directly and substantially affects the other workmen.

The only condition for an individual dispute turning into an industrial dispute, as laid down in the case of Dimakuchi Tea Estate is the necessity of a commonality of interest and not whether the concerned workman was or was not a member of the union at the time of his dismissal. At the time of making reference for adjudication, individual dispute must have been espoused, otherwise it will not become an industrial dispute and reference of such dispute will be invalid.

Section 2A does not declare all individual disputes to be industrial disputes. It is only when a dispute is connected with a discharged, dismissed retrenched or terminated workman that it shall be treated as an industrial dispute. If the dispute or difference is connected with some other matter e.g. payment of bonus/ gratuity etc. then it would have to satisfy the test laid down in judicial decisions.

A perusal of Section 2A of the Industrial Disputes Act, 1947 would show that once the employee is aggrieved by his dismissal and the employer disputes his dismissal, the dismissal would be “Industrial dispute”.

In this case, termination of Ramlal, an employee, though an individual dispute becomes Industrial Dispute by virtue of satisfying requirement of section 2A of the Industrial Disputes Act, 1947.

(e) The pre-requisite of raising an industrial dispute is that the person must be a ‘workman’. A person cannot be a workman unless he is employed by the employer in any industry. The relationship of employer and workman is usually supported by a contract of employment which may be expressed or implied. This is also a must for regarding an apprentice as a worker (Achutan v. Babar, 1996-LLR-824 Ker.). But such a question cannot be derived merely on the basis of apprenticeship contract (R.D. Paswan v. L.C., 1999 LAB 1C Pat 1026).

The employee agrees to work under the supervision and control of his employer. Here one must distinguish between contract for employment or service and contract of employment or service. In the former, the employer can require what is to be done but in the latter, he can not only order what is to be done, but also how it shall be done. In the case of contract for employment, the person will not be held as a ‘workman1 but only an ‘independent contractor’.

There should be due control and supervision by the employer for a master and servant relationship (Dharangadhara Chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC 264). Since there is no master and servant relationship between the students and the management of the University, hence the students’ union cannot raise an industrial dispute.

Question 50.
Read the case below and answer the questions at the end: (Dec 2019)

There arose a dispute between the management and two rival trade unions over the dismissal of some employees. Both the trade unions served notices for strike on the management on 21^st July 2018, specifying their demands

and their intention to go on strike from 10^th August 2018. An attempt was made to conciliate between parties involved and conciliation proceedings lasted between 26^th July 2018 to 8^th August 2018. A failure report was sent to the Government by the Conciliation officer. A large number of workmen went on strike on 10^th August, 2018. The management of the company alleged that they forcibly entered the company’s premises and other places and obstructed the work of the loyal workers. The workmen turned violent and therefore the District Magistrate issued prohibitory orders on 10^th August 2018. On the same day, the company declared a lock out.

Around a week later on 19^th August 2018, the trade unions called off the strike, whereas company lifted the lock out on 27^th August 2018. The company suspended those workmen whom it claimed to have obstructed the loyal ones and dismissed those who were convicted for violation of prohibitory orders.

The Industrial Tribunal held that the strike although illegal, was justified, and the company was not entitled to dismiss the workmen. The company was directed to reinstate the workers except those who have been convicted under Indian Penal Code. It was also directed to reinstate the workers dismissed originally due to which the dispute arose.

The company wants to appeal against this order by special leave to the Supreme Court.
Questions:
(a) State the chances of the management in getting relief from Supreme Court, assuming that it is a case of a public utility service. Was the strike of the workers on 10^th August 2018 consistent with the provisions?
(b) Explain the meaning of ‘justified’ and ‘unjustified’ strikes.
(c) Are wages payable to the workers for the strike period?
(d) Are there general rules prescribed for the prohibition of strikes and lockouts in public utility and non-utility service?
(e) Explain the meaning of public utility services, also state that is it true that these services can be carried out only by government and public companies? (8 marks each)
Answer:
(a) The conciliation proceedings shall be deemed to have concluded when the conciliation officer served its report to Government on 8^th August 2018. The strike commenced on 10^th August, 2018, is in contravention of the provisions of Section 22 of the Industrial Disputes Act, 1947.

Section 22 as mentioned above provides that no person employed in a public utility service shall go on strike in breach of contract and during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. Here in the present case strike was started before the expiry of seven days after the conciliation proceeding.

Section 24 of the Industrial Disputes Act, 1947 categorically provides that a strike or lock-out shall be illegal if it is commenced or declared in contravention of section 22. Hence the strike is illegal Under Section 24 of the Industrial Disputes Act, 1947 as it violates the provisions of Section 22 of the Act.

In the case of Indian General Navigation and Rly. Co. Ltd.v. Their Workmen,(1960) I L.L.J. 13, the Supreme Court held that the law has made a distinction between a strike which is illegal and one which is not, but it has not made distinction between an illegal strike which may be said to be justifiable and one which is not justifiable. This distinction is not warranted by the Act and is wholly misconceived, specially in the case of employees in a public utility service. Therefore, an illegal strike is always unjustified.

In the present case company has got better chance to get relief from Supreme Court. The strike of the workers on 10^th August 2018 in the circumstances as explained here in above is in contravention to the provisions of the Section 22 read with Section 24 of Industrial Disputes Act, 1947.

(b) If a strike is in contravention of the provisions of the Industrial Disputes Act, 1947, it is an illegal strike. Since strike is the essence of collective bargaining, if workers resort to strike to press for their legitimate rights, then it is justified. Whether strike is justified or unjustified will depend upon the fairness and reasonableness of the demands of workers.

If workmen go on strike without contravening statutory requirements, in support of their demands, the strike will be justified. In the beginning strike was justified but later on workmen indulged in violence, so it will become unjustified.

(c) The payment of wages for the strike period will depend on legality and justifiability of strike. If strike is legal but unjustified or justified but illegal, the employees would not be entitle to wages during strike period. The view is that for such entitlement the strike must be both legal as well as justified.

This also depends upon several factors such as service conditions of workman, the cause which led to strike, the urgency of cause or demand of workman, the reason for not resorting to dispute settlement machinery under the Act or service rules/regulations etc.

No wages are payable if the strike is illegal or it is unjustified. Further, if the workers indulge in violence, no wages will be paid even when their strike was legal and justified (Dum Dum Aluminium Workers Union v. Aluminium Mfg. Co.). The workmen must not take any hasty steps in resorting to strike. They must, first take steps to settle the dispute through conciliation or adjudication except when the matter is urgent and of serious nature.

It was observed that when workmen might have waited for some time, after conciliation efforts had failed, before starting a strike, and in the meantime could have asked the Government to make a reference, the strike would be unjustified and the workmen would not be entitled to wages for the strike period.

(d) Section 23 of the Industrial Disputes Act, 1947 provides that 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 the conclusion of such proceedings;
(b) during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;
(c) 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 Section 10A(3A); or
(d) 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. Section 22 of the Industrial Disputes Act, 1947 provides additional safeguards for the smooth and uninterrupted running of public utility services and to obviate the possibility of inconvenience to the general public and society.

(e) According to Section 2(n) of the Industrial Disputes Act, 1947 public utility service 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 of the ID Act 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 the Act, for such period as may be specified in the notification.
In view of the above it is not true that public utility services can be carried out only by government and public companies.

Question 51.
Ramesh is working with XYZ Motor Manufacturing Ltd. as senior motor mechanic. The manufacturing company has two active trade union. Ramesh being introvert and shy in personality, has not shown much of the interest in trade union polities and not member of them. One day during course of employment on duty time, due to malfaction of machine, accident occurs causing him partially paralysed. He was admitted to hospital for one month. In his absence, company arbitrarily terminate him from job without paying proper and adequate compensation. On recovery he raise issue with company. The company dismiss his claim and blame him for being negligent on duty and cause of accident.

Can Mohan raise an Industrial Dispute? Advice. (Dec 2020, 6 marks)
Answer:
According to Section 2(k) of the Industrial Dispute Act, 1947, “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.

These are following ingredient of the definition:

There should exist a dispute or difference;
The dispute or difference should be between:
(a) employer and employer;
(b) employer and workmen; or
(c) workmen and workmen.
The dispute or difference should be connected with
(a) the employment or non-employment, or
(b) terms of employment, or
(c) the conditions of labour of any person;
The dispute should relate to an industry as defined in Section 2(j).

It is not mandatary that the dispute should be raised by a registered trade Union. Once it is shown that a body of workmen either acting through their union or otherwise had sponsored a workman’s case, it becomes an industrial dispute. The dispute can be raised by minority union also even a sectional union or a substantial number of members of the union can raise an industrial dispute.

In the case of Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate (1958) I. L.L.J. 500, the Supreme Court held that it is not that dispute relating to “any person” can become an industrial dispute. There should be community of interest.

A dispute may initially be an individual dispute, but the workmen may make that dispute as their own, they may espouse it on the ground that they have a community of interest and are directly and substantially interested in the employment, non-employment, or conditions of work of the concerned workmen. All workmen need not to join the dispute. Any dispute which affects workmen as a class is an industrial dispute, even though, it might have been raised by a minority group.

It may be that at the date of dismissal of the workman there was no union. But that does not mean that the dispute cannot become an industrial dispute because there was no such union in existence on that date. If it is insisted that the concerned workman must be a member of the union on the date of his dismissal, or there was no union in that particular industry, then the dismissal of such a workman can never be an industrial dispute although the other workmen have a community of interest in the matter of his dismissal and the cause for which on the manner in which his dismissal was brought about directly and substantially affects the other workmen.

The only condition for an individual dispute turning into an industrial dispute, as laid down in the case of Dimakuchi Tea Estate is the necessity of a community of interest and not whether the concerned workman was or was not a member of the union at the time of his dismissal. Further, the community of interest does not depend on whether the concerned workman was a member or not at the date when the cause occurred, for, without his being a member the dispute may be such that other workmen by having a common interest therein would be justified in taking up the dispute as their own and espousing it.

Whether the individual dispute has been espoused by a substantial number of workmen depends upon the facts of each case. If after supporting the individual dispute by a trade union or substantial number of workmen, the support is withdrawn subsequently, the jurisdiction of the adjudicating authority is not affected. However, at the time of making reference for adjudication, individual dispute must have been espoused, otherwise it will not become an industrial dispute and reference of such dispute will be invalid.

Therefore in the given case, dispute can be raised by Ramesh if such dispute is espoused by trade union.

Question 52.
A, a lawyer and B a company secretary by profession had established a firm and started giving consultancy to the various company/clients of Delhi/NCR region. In the short span of 5 years they had made good reputation and also started to appear NCLT and NCLAT.

For the smooth discharges of functioning of the firm they employed a team of around 20 people which includes lawyers, Stenographer, accountants, computer operators, peon and driver for smooth discharge of function. One peon X apart from his normal function also used to work as domestic servant at the house of A.

The brief function of the Stenographer is to prepare the petition and other correspondence of the firm. He also entrusted with the function of making the attendance record of other staff members and maintain the diary of the cases pending before the various court, he also used to work late hours apart from his normal duty hours. After two years, the services of peon X and stenographer was terminated.

They raised an industrial dispute relating to their termination. Now in the lights of provisions of Industrial Disputes Act, 1947, answer the following questions : (Dec 2021)
(a) Whether the Firm established by Mr. A and B is covered in the domain of Industry for extending the benefits of Industrial Disputes Act, 1947 ? How far the services of domestic servants are covered under the concept of Industry of the IDA 1947 ? (8 marks)

(b) What is the principle of “Triple Test” for the determination of Industry ? (8 marks)

(c) Is the term “workman” and “person employed for delivering goods or services” are the same terms under the Industrial Disputes Act, 1947 ? (8 marks)

(d) With the help of decided cases decide whether the following persons are workmen under Industrial Disputes Act, 1947 :

A Temple Priest
An engineer of XYZ Ltd.
Head Constable of Delhi Police
Development officer of LIC. (8 marks)

(e) With the help of decided case/reason, briefly enumerate whether the following activities can be treated as an industry :

The ICSI, New Delhi,
Central Jail
A temple in which the activities of Dharma, Dhyan, Bhakti and Puja are carried out,
A Registered Trade Union. (8 marks)

Answer:
(a) According to the Section 2(j) of the Industrial Disputes Act, 1947, “industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

The Supreme Court carried out an in-depth study of the definition of the term industry in a comprehensive manner in the case of Bangalore Water Supply and Sewerage Board v. A Rajiappa, AIR 1978 SC 548 , after considering various previous judicial decisions on the subject and in the process, it rejected some of them, while evolving a new concept of the term “industry” by laying down triple test.

The Supreme Court observed that professions, clubs, educational institutions, cooperatives, research institutes, charitable projects and other kindred adventures, if they fulfil the triple tests listed in (1), cannot be exempted from the scope of Section 2(j). A restricted category of professions, clubs, co-operatives and gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantially and going by the dominant nature criterion, substantively, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non-employee character of the unit.

If in a pious or altruistic mission many employ themselves, free or for small honoranum or like return, mainly drawn by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then the institution is not an industry even if stray servants, manual or technical, are hired. Such undertakings alone are exempt – not other generosity compassion, developmental compassion or project.

A solicitor’s establishment can be an “industry” (as per Bangalore Water Supply and Sewerage Board v. A Rajiappa, case). Regarding liberal professions like lawyers, doctors, etc., the test of direct cooperation between capital and labour in the production of goods or in the rendering of service or that cooperation between employer and employee is essential for carrying out the work of the enterprise. The personal character of the relationship between a doctor or a lawyer with his professional assistant may be of such a kind that requires complete confidence and harmony in the productive activity in which they may be cooperating.

In view of the above, Firm established by Mr. A and B is covered in the domain of Industry for extending the benefit of and domestic service are not included in industry.

(b) According to the Section 2(j) of the Industrial Disputes Act, 1947, “industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

The Supreme Court carried out an in-depth study of the definition of the term industry in a comprehensive manner in the case of Bangalore Water Supply and Sewerage Board v. A Rajiappa, AIR 1978 SC 548, after considering various previous judicial decisions on the subject and in the process, it rejected some of them, while evolving a new concept of the term “industry”.

Triple Tests for determination of “industry”
After discussing the definition from various angles, in the above case, the Supreme Court, laid down the following tests to determine whether an activity is covered by the definition of “industry” or not. It is also referred to as the triple test.
I. (a) Where there is (i) systematic activity, (ii) organised by co-operation between employer and employee, (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g., making, on a large scale, prasad or food) prima facie, there is an “industry” in that enterprise.

(b) Absence of profit motive or gainful objective is irrelevant wherever the undertaking is whether in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organisation is a trade or business, it does not cease to be one because of philanthrophy animating the undertaking.

II. Although Section 2(i) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to over-stretch itself. Undertaking must suffer a contextual and associational shrinkage, so also, service, calling and the like. This yields the inference that all organised activity possessing the triple elements in (i) although not trade or business, may still be “industry”, provided the nature of the activity, viz., the employer – employee basis, bears resemblance to what we find in trade or business.

This takes into the fold of “industry”, undertaking, callings and services, adventures analogous to the carrying on of trade or business. All features, other than the methodology of carrying on the activity, viz., in organising the co-operation between employer and employee, may be dissimilar. It does not matter, if on the employment terms, there is analogy.

III. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition, nothing less, nothing more.

(c) According to the Section 2(s) of the Industrial Disputes Act, 1947, “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person—

who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or
who is employed in the police service or as an officer or other employee of a prison; or
who is employed mainly in a managerial or administrative capacity; or
who, being employed in a supervisory capacity, draws wages exceeding fifteen thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

To be a workman, a person must have been employed in an activity which is an “industry” as per Section 2(j). Even those employed in operation incidental to such industry are also covered under the definition of workman.

In the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd. V. L.A. T; AIR 1964 S.C. 737, the Supreme Court held that ‘malis’ looking after the garden attached to bungalows provided by the company to its officers and directors, are engaged in operations incidentally connected with the main industry carried on by the employer.

It observed that in this connection it is hardly necessary to emphasise that in the modern world, industrial operations have become complex and complicated and for the efficient and successful functioning of any industry, several incidental operations are called in aid and it is the totality of all these operations that ultimately constitutes the industry as a whole.

Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry.

Therefore, a person employed for delivering goods or services would be a workman.

(d) (i) A Temple Priest: A priest is not a workman under the provisions of section 2(s) of the Industrial Disputes Act. The function of the priest cannot be equated with a mere wage earner and his services cannot be treated as manual or clerical etc. as held in the case of Kesava Bhatt vs. Shree Ambulam Trust (1990) Lab LJ 192 (Ker).

(ii) Engineer of XYZ Ltd. : A person doing technical work is also held as a workman. A work which depends upon the special training or scientific or technical knowledge of a person is a technical work. Once a person is employed for his technical qualifications, he will be held as a workman under the provisions of Industrial Disputes Act.

(iii) Head Constable of Delhi Police : The Head Constable of Delhi Police is not a workman under the Industrial Disputes Act, 1947 as he is performing the sovereign function, further the function of Delhi Police cannot be an Industry under any circumstance. The main function of the Delhi Police is to maintain law and order which is a sovereign function. (Exception (ii) of section 2(s) of ID Act, 1947).

(iv) Development officer of LIC : A Development officer of LIC was held to be a workman. Keeping in view the nature of duties performed by such officers and the powers vested in them they cannot be said to be engaged in any administrative or managerial work. Designation and name of the post is not a decisive factor. It was found that a Development officer has no subordinate staff working under him, he is generally placed on par with subordinate and clerical staff. (Standard Vacuum Oil Co. vs. Commissioner of labour).

(e) (i) The ICSI, New Delhi: The ICSI is an industry within the meaning of section 2(j) of the Industrial Disputes Act, as test laid down in Bangalore Water Supply Case. As regards institutions, if the triple test of systematic activity, cooperation between employer and employee and production of goods and services were to be applied, a university, a college, a research institute or teaching institutions will be “Industry”.

(ii) Central Jail: Central Jail is not an industry. Maintenance of law and order is a sovereign function which strictly understood alone qualifies for exemption under the definition of Industry.

(iii) A Temple in which the activities of Dharma, Dhyan, Bhakti and puja are carried out is not an industry as held in the case of Manager, Shri Panchasara jain derasar vs. Mahamandkha Gajikha Baloch, 1993 LLJ 523. Since it falls under the inner satisfaction the triple test is not applicable in religious activities if they are merely for the satisfaction /peace for devotee.

(iv) A registered trade union cannot be held as an industry as it is meant for self-regulation of its members. Further the services for this registered trade union are voluntary and they are not undertaking any commercial activities.

RECENT CASE LAWS
1. Hospital
Employees Union V Christian Medical College :
It was held that Industrial Disputes Act, 1947 applies to the industries owned by the Central and the State Governments also. It applies to all industries irrespective of religion or caste of parties.

2. J.K. Cotton Spinning and Weaving Mills Co. Ltd V L.A.T. :
It was held by the Supreme Court in this case that the’ malis’ looking after the garden attached to bungalows provided by the company to its officer and directors are workman as he is engaged in operations incidentally connected with the main industry carried on by the employer even though his work is not directly concerned with the main work of the industry.

3. Gujarat Steel Tubes Ltd V Gujarat Steel Tubes Majdoor Sabha :
It was held by the Supreme Court that if the strike was resorted to by workers in support of their reasonable and bonafide demands in peaceful manner, then the strike will be justified and vice-versa.

4. Express Newspapers (P) Ltd V Their Workers :
It was held that ‘lock out’ is an antithesis to strike. Lock out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands.

5. Crompton Greaves Ltd V The Workmen :
It was held that for entitlement of wages for the strike period, the strike should be legal and justified. Where the strike is legal but at the same time unjustified, the workers are not entitled for wages for the strike period.

Industrial Disputes Act, 1947 Notes

Objectives of Industrial Disputes Act

An Act to provide a machinery for peaceful resolution of disputes and to promote harmonious relation between employers and workers.
Applies to whole of India including Jammu & Kashmir.
Objective of the act is to provide for the investigation and settlement of industrial disputes

What is industry as per the Act
Any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft, or industrial occupation or avocation of workmen.

The various authorities established under the act for settlement are

Work committee – It is required where 100 or more workers are employed in an undertaking. It promotes and develop good relation between the employee and workman.
Board of Conciliation – It shall have a duty to investigate into the dispute and bring a settlement between the employee and employer.
Court of Enquiry- It is an authority set up to enquire into the matter referred to it and to submit its report to appropriate government.
Labour Court- Labour Court is constituted to adjudicate into the industrial dispute and pass appropriate orders by conducting proper proceedings.

Matters within the jurisdiction of industrial tribunals as per the Act

Adjudication means intervention of the dispute by the third party appointed by the government.
The Industrial Dispute Act, 1947 provides for a three-tier system of adjudication.
- Labour Court
- Industrial Tribunal
- National Tribunal
Labour Court- Under Section 7, the appropriate Government is empowered to constitute one or more labour court for adjudication of industrial dispute relating to any matter specified under the second schedule and such other functions assigned to it.
Tribunals – It adjudicate the matters which are specified under the second schedule or the Third Schedule and for performing other function assigned.
The Labour Court adjudicate upon dispute listed in schedule II of the Act.
The Industrial Tribunal adjudicate disputes listed in schedule III of the Act.
The National Tribunal adjudicate upon disputes which are of national importance.

When is the strike legal as per the industrial Dispute Act, 1947

A strike will be legal if it does not violate any provisions of the Act.
The Justifiability of strike has no relation with its legality or illegality.
The Court held that the Justifiability will be seen from the standpoint of fairness and reasonableness of demands made by workmen and not merely from the standpoint of their exhausting all other legitimate means open to them for getting their demand fulfilled.
The Supreme Court in Gujarat Steel Tubes Ltd v/s Gujarat Steel Tubes Majdoor Sabha held that justifiability of strike is purely a question of fact.

What is Arbitration & Conciliation as per the Act

Arbitration is a procedure in which the parties to a contract opts for a private dispute resolution procedure instead of going to Court.
Arbitration is an alternative for Court.
In case of arbitration, the dispute is referred to independent party known as arbitrator.
It is fast & less costly method
Section 10 A of Industrial Disputes Act, 1947 provides for arbitration.
Conciliation is the process of settlement of industrial disputes through third party intervention
It is different from arbitration as it aims to reduce the extend of differences of parties and to arrive at an amicable solution.

Industrial Disputes Act, 1947 – CS Professional Labour Laws and Practice Study Material

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