Chapter 4(C) The Industrial Employment Act, 1946 – CS Professional Labour Laws and Practice Notes is designed strictly as per the latest syllabus and exam pattern.
The Industrial Employment Act, 1946 – CS Professional Labour Laws and Practice Study Material
Question 1.
Write short notes on the following:
‘Payment of subsistence allowance1 under the Industrial Employment (Standing Orders) Act, 1946. (Dec 2009, 5 marks)
Answer:
- Section 10A of the Industrial Employment (Standing orders) Act, 1946 provides for the payment of subsistence allowance.
- An amount equal to 50% of his last drawn salary for first 90 days of suspension and 75% of wages for the remaining period.
- Dispute relating to subsistence allowance may be referred to the Labour Court formed under Industrial Disputes Act, 1947.
- Section 10 A of the Industrial Employment (Standing Order) Act, 1946 provides that where any workman is suspended and inquiry/investigation is pending against the employee, he shall receive subsistence allowance at the following rate: For first 90 days of suspension Period – 50% of wages which the workman was entitled to immediately preceding the date of such suspension
- F r first remaining Suspension Period (Provided delay in disciplinary proceeding in not due to the conduct of – 75% of such wages workman)
- Where
- Wages shall be calculated on basis of wages he was entitled before date of suspension.
- Disputes regarding 10A shall be referred to labour court.
Question 2.
Write short notes on the following:
Procedure to be followed for the certification of standing orders under the Industrial Employment (Standing Orders) Act, 1946. (June 2010, 5 marks)
Answer:
- The conditions mentioned under Section 4 of the Industrial employment (Standing orders) Act, 1946 which needs to satisfied for certification of standing order, are as follows:
- Provision is made with regards to all the matters specified in the schedule
- Proper compliance has been made with the provisions of the Act.
- Provisions relating to the modification of the certified standing orders are as follows:
- An employer cannot modify the standing orders after the same has been certified
- Exception – Standing orders can be modified if there is an agreement between employer and workmen
- Modification cannot be made within 6 months of certification
- In case of an agreement to modify, application needs to be made to the certifying officer along with 5 copies of proposed modifications. Section 5 of the Industrial Employment (Standing Orders) Act, 1946 describes the procedure to be followed for certification of draft standing order by the Certifying Officer.
- Certifying Officer shall forward the copy of standing order received from the employer to Trade union of workmen, if it exists or Workmen, if no trade union exists
- The recipient are expected submit their objections within 15 days from receipt of notice.
- On the basis of objections raised, opportunity of being heard shall be given and required changes shall be made.
- He shall certify the same and within 7 days send a copy to Employer and Employees association
Question 3.
Write short notes on the following:
Matters to be provided in standing orders under the Industrial Employment Standing Orders) Act, 1946. (June 2011, 5 marks)
Answer:
The matters that are to be provided in the standing orders under the Act are as follows
- Classification of workmen
- Shift Working
- Attendance
- Procedure to be followed for informing hours of work, holidays wages etc. to workmen
- Procedure to be followed with regards to application and grant of leave
- Redressal procedure available to workmen in case of any unjust practice advocated by the employer.
- Requirement to enter through specific gates
- Closing and reopening of section or temporary stoppage of work and related matters
- Termination of employment and notice related thereto
- Suspension or dismissal in case of misconduct.
Question 4.
Write short notes on the following:
Temporary application of model standing orders’ under the Industrial Employment (Standing Orders) Act, 1946. (Dec 2011, 5 marks)
Question 5.
Write short notes on the following:
Certification of standing orders under the Industrial Employment (Standing Orders) Act, 1946. (June 2012, 5 marks)
Question 6.
Write short notes on the following:
Procedure to be followed for certification of standing orders under the Industrial Employment (Standing Orders) Act, 1946. (June 2013, 5 marks)
Question 7.
Distinguish between the following:
‘Model standing orders’ and ‘certified standing orders’ under the Industrial Employment (Standing Orders) Act, 1946. (Dec 2009, 5 marks)
Question 8.
Distinguish between the following:
‘Draft standing orders’ and ‘certified standing orders’ under the Industrial Employment (Standing Orders) Act, 1946. (Dec 2010, 5 marks)
Question 9.
Distinguish between the following:
‘Model standing orders’ and ‘certified standing orders’ under the Industrial Employment (Standing Orders) Act, 1946. (June 2011, 5 marks)
Question 10.
Distinguish between the following:
‘Model standing orders’ and ‘certified standing orders’ under the Industrial Employment (Standing Orders) Act, 1946. (Dec 2012, 5 marks)
Question 11.
Discuss the following:
Payment of subsistence allowance to a suspended workman under the Industrial Employment (Standing Orders) Act, 1946. [CSIG -II] (June 2006, 5 marks)
Answer:
- Section 10 A of the Industrial Employment (Standing Order) Act, 1946 provides that where any workman is suspended and inquiry/investigation is pending against the employee, he shall receive subsistence allowance at the following rate: For first 90 days of suspension Period – 50% of wages which the workman was entitled to immediately preceding the date of such suspension
- For first remaining Suspension Period (Provided delay in disciplinary proceeding in not due to the conduct of – 75% of such wages workman)
- Where
- Wages shall be calculated on basis of wages he was entitled before date of suspension.
- Disputes regarding 10A shall be referred to labour court.
Question 12.
Discuss the following:
Important matters which are to be provided in standing orders under the Industrial Employment (Standing Orders) Act, 1946 [CSIG -II] (Dec 2007, 5 marks)
Question 13.
Attempt the following stating the relevant legal provisions and case law, if any:
Sam, an employee of Saurabh Ltd., tendered his resignation from the services of the company with effect from 1st July, 2003. The management of the company immediately accepted his resignation and this fact was known to Sam. But the communication of acceptance of his resignation was sent to Sam after 13 days from the date of receipt of his resignation. Meanwhile, on 9th July, 2003, Sam sent a fax message to Saurabh Ltd. withdrawing his resignation.
(1) What is the date of acceptance of Sam’s resignation letter?
(2) Whether the employer should take cognizance of the withdrawal letter of Sam and he be allowed to resume his duties in Saurabh Ltd.? [CSIG -II] (June 2004, 3 marks)
Answer:
In the given case, date of acceptance of Sam’s resignation letter shall be 1st July 2003. As per the case of Rajkumar V. Union of India .Supreme Court was of the view that where there are no statutory rules governing the terms and conditions of service, it will not be open to the employee to withdraw resignation once it has been accepted and he became aware of the same.
Question 14.
Attempt the following stating the relevant legal provisions and case law, if any:
As per the provisions of the Industrial Employment (Standing Orders) Act, 1946, a workman was entitled to subsistence allowance on suspension. However, the certified standing orders provided that the workman has to mark his attendance during the suspension to claim subsistence allowance. The workman argued that he could not be compelled to attend the office during the period of suspension. Decide. [CSIG -II] (Dec 2004, 3 marks)
Answer:
The matters that are to be provided in the standing orders under the Act are as follows
- Classification of workmen
- Shift Working
- Attendance
- Procedure to be followed for informing hours of work, holidays wages etc. to workmen
- Procedure to be followed with regards to application and grant of leave
- Redressal procedure available to workmen in case of any unjust practice advocated by the employer.
- Requirement to enter through specific gates
- Closing and reopening of section or temporary stoppage of work and related matters
- Termination of employment and notice related thereto
- Suspension or dismissal in case of misconduct. Apart from provisions of Section A no other condition needs to complied with, in order to receive subsistence allowance.
In BPCL V/S Petroleum employees union and others (2003) it was held that subsistence allowance given to a workman cannot be curtailed by the standing orders. Hence as the facts, it is evident that the suspended workman cannot be compelled to attend the office during the period of suspension.
Question 15.
Attempt the following stating the relevant legal provisions and case law, if any:
A workman was suspended for an act of misconduct. The certified standing orders of the establishment provided that the workman has to mark attendance to be eligible for subsistence allowance. The workman argued that he could not be compelled to attend office during the period of suspension. Will he succeed? (June 2005)
Question 16.
Attempt the following stating the relevant legal provisions and case law, if any:
Rakshit was suspended for an alleged act of misconduct and an inquiry was instituted against him. He did not appear before the inquiry officer on the ground that the allegations levelled against him were false. The inquiry could not be completed even after the lapse of six months. He files a case for grant of the subsistence allowance. Will he succeed? [CSIG -II] (Dec 2005, 3 marks)
Answer:
Thus, taking into account the provisions of Section 10A, Rakshit will succeed in getting subsistence allowance.
Question 17.
Attempt the following stating the relevant legal provisions and case law, if any:
A development officer of an insurance company used to remain absent from duty without leave. He was asked to show cause why he should not be removed from the service. He sent his reply. Thereupon, he was removed from the service without holding any inquiry, is the removal justified ? [CSIG -II] (June 2006, 3 marks)
Answer:
- The facts of the given case are similar to that of – State of Rajasthan V. Sujata Malhotra
- In this case Supreme Court was of the view that for removal of an employee from service on the ground of his remaining absent without authorised permission of leave can be justified only after holding properly the departmental enquiry.
- Hence in the light of these fact we can conclude that development officer of the Insurance company cannot be removed since any inquiry was not held before removing him.
Question 18.
Attempt of the following stating relevant legal provisions and decided case law, if any:
A worker was placed under suspension and disciplinary proceedings were initiated against him. The proceedings could not be completed in 90 days after which the suspended worker demanded increase in subsistence allowance under the Industrial Employment (Standing Orders) Act, 1946. Will he succeed ? [CSIG -II] (June 2008, 3 marks)
Answer:
Yes, the worker will succeed in procuring an increase in subsistence allowance provided the delay in disciplinary proceeding is on account of management default and not of the workmen.
Question 19.
Attempt the following stating relevant legal provisions and decided case law, if any:
Naresh, a workman abused his supervisor in a public place outside the factory premises, for having refused to sanction leave on compassionate grounds. On a complaint lodged by the supervisor, the management initiated disciplinary proceedings against Naresh for the act of misconduct. Naresh contended that his action did not amount to misconduct. Is his contention tenable ? (Dec 2010, 4 marks)
Answer:
- The facts of the case are quite similar to that of BPL India Ltd.
- The contention of Naresh is not legally tenable.
- Even if there is act of breach of discipline outside the factory premises in a public place, the act shall be regarded as misconduct.
- The only requirement which needs to be fulfilled is that misconduct should be in relation to the job only.
Question 20.
Attempt the following stating relevant legal provisions and decided case law, if any:
Gemini Ltd. has an industrial unit employing 500 workmen but has not got the standing orders certified under the Industrial Employment (Standing Orders) Act, 1946. The management initiated proceedings against one of its workmen for misconduct. The management is of the view that as there are no certified standing orders applicable to the factory establishment, it is under no obligation to follow any procedure except the principles of natural justice. State whether the view held by the management is legally valid. (June 2011, 4 marks)
Answer:
- In the above case, employee claimed the allowance as per the rates prescribed by the law of the particular state & not as per the rate specified in the Act.
- Section 10-A of the Act provide that where provisions relating to the payment of subsistence allowance under any law for the time-being in force in any state are more beneficial than the rate specified in the Act, then provisions of other law shall be applicable.
- Thus, the employee will succeed in this case.
Question 21.
Attempt of the following stating relevant legal provisions and decided case law.
The employer wants to modify standing orders duly certified by the Certifying Officer just after the expiry of 3 months form the date on which the standing orders came into operation. Give suitable advice to the employer. (June 2013, 4 marks)
Answer:
- Section 10 of the Industrial Employment (Standing Orders) Act prohibits an employer to modify the standing orders once they are certified under the Act except on agreement between the employer and the workmen or a trade union or other representative body of the workmen.
- Such modification will not be affected until the expiry of 6 months from the date on which the standing orders were last modified or certified as the case may be.
Question 22.
Attempt the following stating relevant legal provisions and decided case law:
Ankit was placed under suspension for an act of alleged misconduct and disciplinary proceedings were initiated against him. The inquiry officer could not complete the proceedings within the stipulated period of 90 days. The suspended employee demanded an increase in subsistence allowance.
Is he entitled to an increase in the subsistence allowance under the Industrial Employment (Standing Orders) Act, 1946? If so, how much? Will the position be different if the delay in the completion of disciplinary proceedings is attributable to the conduct of Ankit ? (Dec 2013, 4 marks)
Question 23.
On every working day, when the workers canteen of the company is opened, there would be a big rush of employees for purchase of snacks and tea. Normally employees stand in queue for the purchase of various items from two different counters. The canteen remains open for half- an-hour and all employees who come there can conveniently purchase eatables, if they stand in queue. One day, Shubham came to canteen when in both counters people were standing in queue, and he tried to purchase the snacks through Sarvesh, a co-worker who was in queue.
This was objected by Prashant who was standing just behind Servesh. Arguments started between Shubham and Prashant. They were both angry and in the process, Shubham slapped Prashant. The canteen supervisor intervened and separated them. Both of them were active members of two different rival unions. Analyse the point of issue in the case and state the main points of chargesheet to be issued to the employees concerned for this misconduct. Also state any six matters to be provided in the standing orders under the Industrial Employment (Standing Orders) Act 1946. (Dec 2019, 6 marks)
Answer:
The point of issue in the given case is indiscipline and non-adherence to the Company’s Standing Order/Rules leading to clash between two workers belonging to two different trade unions.
The main points which should be included in the charge sheet are:
- Act of misconduct
- Violence in factory premises
- Violation of establishment standing orders.
Some matters to be provided in the standing order under the Industrial Employment (Standing Orders) Act, 1946:
- Classification of workmen, e.g., whether permanent, temporary, apprentices, probationers or badlis.
- Manner of intimating to workmen periods and hours of work, holidays, pay-days and wage rates.
- Shift working.
- Attendance and late coming.
- Conditions of, procedure in applying for, and the authority which may grant leave and holidays.
- Requirement to enter premises by certain gates, and liability to search.
- Closing and reopening of sections of the industrial establishment, and temporary stoppage of work and the rights and liabilities of the employer and workmen arising therefrom.
- Termination of employment, and the notice thereof to be given by employer and workmen.
- Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.
- Means of redress for workmen against unfair treatment or wrongful exactions by the employer or his agents or servants.
Question 24.
The certified standing orders of a company provided that the retirement age of the workman would be 58 years of age. The company enhanced the age to 60 years, as a temporary measure to retain the employees and to cut costs. However, the financial performance of the company still did not improve and few years later, the company withdrew the enhancement and restored the retirement age back to 58 years.
The company contended that it was just a temporary measure and even if the benefit of enhancement of age of superannuation from 58 to 60 years has been extended in favour of the workmen, they have got no right to retain the same for the reason that Service Rules and Certified Standing Orders applicable to the workmen stipulates the age of 58 years and since the same has not been am mended in accordance with law, hence the provisions of Service Rules and Certified Standing Orders are binding upon the workmen. The trade union wants to challenge this action of the company as bad in the eyes of law, as the employer was bound to give prior notice. Will the trade union succeed? (Dec 2019, 12 marks)
Answer:
Section 9A of the Industrial Disputes Act, 1947 lays down that any employer who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in Fourth Schedule is required to follow the procedure laid down in Section 9A of the Act.
According to Section 9A, the workmen likely to be affected by the proposed changes are to be given a notice in the prescribed manner. No change can be made within 21 days of giving such notice. However, no notice is required for effecting any such change when it is in pursuance of any settlement or award.
In the instant case, the grievance of the trade union is justified as the withdrawal of the age of superannuation i.e. restoration of age from 60 years to 58 years without prior notice amount to contravention of the Fourth Schedule of the Industrial Disputes Act, 1947. Hence employer was bound to give proper notice.
The Industrial Disputes Act, 1947 intends to provide and protect the interest of employees. If the company freely allowed to do so, then it could defeat the objective of the Act. It shall also defeat the rule of natural justice. Right to work is a vital right of every employee and it should not be taken away without giving reasonable opportunity of being heard.
Moreover company’s plea that Standing Orders stipulated the age of 58 years as superannuation age does not stand, as it had already implemented the change to enhance the superannuation age to 60 years without making amendment in the Standing Orders, while same had been accepted by the employees.
Any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is not appropriate in the eyes of law, therefore the trade union will succeed.
RECENT CASE LAWS
| No. | Case Law | Decision |
| 1 | Khadi Gram Udyog Sangh V Jit Ram | It was held that the appellate authority has no power to set aside the order of Certifying Officer. The appelate authority can only confirm or amend the Standing Orders |
| 2 | Indian Express Employees Union V Indian Express | It was held in this case that Section 10(2) of the Industrial Employment (Standing Orders) Act, 1946 does not contain any time limit for making modification application. It can be made at any time |
| 3 | Indian Iron and Steel Co. Ltd V Ninth Industrial Tribunal | It was held that in case there are two categories of workers, daily rated and monthly rated but the certified Standing Orders are made only in respect of daily rated workmen and not for monthly rated workmen, then in such circumstances the Model Standing Orders provided under Section 12-A of the Industrial Employment (Standing Orders) Act, 1946 can be applied to the monthly rated workmen |
| 4 | Barauni Refinery PragatiSheel Parishad V Indian Oil Corporation Ltd. | It was held that the Industrial Employment (Standing Orders )Act, 1946 is set up to have uniform standing orders in respect of matters enumerated in the Schedule to the Act and is applicable to all workers irrespective of their time of appointment |
| 5 | Derby Textiles Ltd Karamchaari and Shramik Union |
It was held in this case that the certified standing orders as per the Industrial Employment (Standing Orders) Act, 1946 are binding on both the employer and the employees |
The Industrial Employment Act, 1946 Notes
Objective & Scope of Industrial Employment (Standing Orders) Act
- An act to provide for the conditions of employment of the workmen in certain establishments.
- Applies to whole of India including Jammu & Kashmir.
- Objective of the Act is to enforce uniformity in the conditions of services under different employers indifferent industrial establishments.
- Deals with classification of workmen, holidays, shifts, payment of wages, leaves, termination etc.
Applicability of the Act
- Industrial Establishment where 100 or more workmen are employed on any day of the preceding 12 months.
Where, - Industrial Establishment means:
- Factory
- Railway
- An industrial establishment defined by Section 2(ii) of the Payment of Wages Act, 1936
- Establishment of a person who, for the purpose of fulfilling a contract with the owner of any industrial establishment, employs workmen.
Standing Orders
- Within 6 months from the date on which this Act becomes applicable to an industrial establishment, the employer of that establishment shall submit to the Certifying Officer five copies of the draft Standing Orders proposed by him for adoption in that establishment.
- The draft Standing Orders shall be accompanied by a statement containing prescribed particulars of the workmen employed in the industrial establishment including the name of the trade union etc.
- Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders.
- Certifying Officer to file a copy of all the Standing Orders as certified by him in a register.
- Within 30 days an employer or workman can challenge an order given by the Certifying Officer and file an appeal before the Appellate Authority.
- Certified Standing Orders to be prominently posted by the employer in English and in the language understood by the majority of his workmen on:
- Signboards
- At Entrance
- All Departments
- Standing Orders may be modified by an agreement between the employer and the workmen or a trade union or other representative body of the workmen.
Noteworthy Points
- Subsistence allowance payable to a workman at the rate of 50% for the first 90 days when he has been suspended pending an inquiry against him.
- 75% of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.