Express Newspapers Ltd. v. Workers (1962)
Express Newspapers Ltd. v. Workers (1962)
Express Newspapers Ltd. v. Workers (1962)
Wages
If illegal, then entitled to wages. Industrial tribunal will decide whether lockout is
illegal or not. HC, under Art. 227, cannot conduct inquiry regarding legality because
primary function has to be discharged by the authority over which the function has
been imposed. HC can check the validity of the order passed by IT.
Ex gratia basis
Claiming something to which you are not entitled and the grant of it is dependent on
the absolute mercy from which it is claimed. It cannot be claimed as a matter of right
and no parity can be claimed. No parity in charity.
A person employed somewhere under IDA and Factories Act, 1948, cannot be
employed anywhere else if he is already working with a particular employee unless
the standing order of that industry permits so. A person cannot be employed on a
single day at two different industries or factories.
Employment shall start only if a workman starts to act under the control of the
employer with expectancy of wages, otherwise there cannot be any employment.
If a workman who is employed for a fixed period of time under the contract of
employment, wants to leave the employment before the termination of the said period
and join another place, then injunction can be sought against the third party who is
employing the employee restraining him from employing.
VV Deshpande v. UOI: injunction can be issued against the employee. Injunction has
to be issued against a particular person, cannot be issued against the world.
Misconduct has to be defined under standing order and there cannot be any act of
misconduct outside the definition which has been accepted by the parties in the
standing order. Employer shall decide whether misconduct has taken place or not.
Industrial tribunal or any other authority cannot interfere.
Whether there can be a lockout where the employees are being paid?
This is not possible. Absence of payment is necessary for lockout.
28th February
LAY-OFF
Sec 2(kkk)
Lay-off: Inability or failure to provide employment due to reason outside the control
of the employer. 50% wages are to be paid for the time period lay-off continues.
Lockout: Deliberate action of employer. No wages unless illegal.
High prices shall not amount to shortage. Shortage means that it is not available in the
market. Financial incapacity of the employer cannot be a ground for lay-off.
It is not possible to conduct any inquiry by any court or tribunal regarding that the
employer could have prevented this inability by being vigilant.
‘for any other connected reason’: if reason is such that it is preventing the
production.
‘retrenchment’: removed from service. A workman removed from service can raise
industrial dispute depending upon the time the dispute arose.
For lockout presence of workman at the workman is not necessary. For lay-off, the
workman has to make himself available on each and every day as provided in the
Explanation.
Lay-off will start from the time from which the workman makes himself available.
The two hours are included in the lay-off.
Second proviso will not be applicable until first proviso has been applied.
Second proviso: 50% of first shift, full wages for second shift.
1st March
Integration test: where there is a process which shall be complete only after
combining different activities, in such a case if one of them is missing, process cannot
be completed and it shall be a valid ground for declaration of lay-off.
Section 25A
For applicability of lay-off, atleast 50 workmen.
Intermittent: Pre-fixed gap between two breaks.
Seasonal v/s. temporary.
Industrial tribunal or labour court does not have the power to decide whether the
industry is seasonal or temporary. It is the appropriate government (govt which
controls the activities undertaken by the industry and depends upon the nature of the
activities).
5th March
Difference between Industrial tribunal and appropriate government on one hand, and
labour court on the other hand, is that the first two authorities exercise quasi-judicial
functions which are not subject to statutes like CPC, CrPC but such authorities are
bound by rules of natural justice and equity meaning thereby that they cannot pass
blanket orders or unreasonable/silent orders.
Employer is authority under IDA for disbursement of wages and deduction of wages,
and for termination.
Section 25B
Continuous service: 240 days actually worked in one year.
SLASLC + LLDM
Sickness, authorised leave, accident, legal strike, illegal lockout, cessation of work
which is not because of any part of workman
Period of lay-off, leaves earned in past year, disablement due to accident in the
industry, maternity leave
These will be included in continuous service. Any other leave will not be covered in
the 240-days time period.
If a person is not in continuous service, he is not entitled to lay-off compensation.
No requirement of one year working period, 240 days must be completed.
Overtime (working on holidays) will be included in actually worked.
6th March
Employer must be same. Employer and owner need not be same. Transfer within the
industry from one unit to another will not amount to change continuous service. In
govt. entities, whoever has been designated as employer shall be the employer.
Indian Evidence Act is not applicable on IDA. Central Industrial Disputes Rules, 1957
is applicable. For state undertakings, different rules may be applicable.
Section 25C
Requirement of continuous service of one year. Some states do not require continuous
service of one year. Eg., Karnataka, minimum requirement of 6 months and 120 days
Badly workman: employed in order to substitute any regualr workman for a short
period of time due to absence of regular workman. Once, a badly workman completes
240 days in service, he ceases to be a badly workman and becomes a regular
workman.
Casual workman: workman employed casually meaning that there is no continuity of
employment of such workman. It is different from temporary workman as temporary
workman are employed for a fixed duration (contract basis) whereas in case of casual
workman, there is no pre-fixed time limit for employment.
Contract workman: supplied by third party on contract basis who is responsible for
him as an employer.
Proviso: if there is no agreement, the employer will be liable to pay compensation for
all days, there is no limit. [Generally, in every contract of employment, clause 9 talks
about lay-off]
Section 25D
Sec 31(2): penalty for contravention
7th March
Section 25E
Can there be any industrial establishment which is not industry? (see Expl. Sec 25A)
The employee must make himself available on each and every day to get
compensation.
Belonging to the employer means industrial activity in the establishment is under the
control of the employer and can cease to exist the very moment the employer decides
otherwise.
Cognizance of a matter cannot be taken by any authority suo moto in matters of civil
disputes between two private parties as none of the statutes provide for suo motot
cognizance of civil disputes including IDA and Factories Act.
Once a dispute has been raised under Sec 2(k
12th March
Voluntary retirement
Bengal Nagpur Cotton Mills v. J Bastion
Superannuation
Contractual termination
Is not retrenchment.
Mohan Lal v. Management, Bharat Electronics Ltd. (1981)
There can be retrenchment in the probation period, no compensation.
Continued ill-health
Anand Bihari v. RSRTC (1991)
SC: they should be granted ex gratia compensation.
Casual workers
SM Nilajkar v. Telecom District Manager (2003)
13th March
Monthly salary 10,000. Total service in employment: 2 years. What shall be the
compensation without notice? 20,000
Back wages: to be paid where employer was in default.
14th March
CLOSURE
Sec 2(cc)
Closure can be done in part of the industry also. Closure is against the activity.
Closure can be done in stages. Last man’s retrenchment will be closure.
The motive cannot be taken into consideration. The closure must be genuine and bona
fide.
16th March
Whether a person who has been terminated on retrenchment can claim reinstatement
and compensation under Sec 25F? No, either of them can be claimed. Back wages can
be given with reinstatement.
After closure, there cannot be an industrial dispute. Sec 2A does not cover
compensation. For any dispute relating to compensation, the workman needs the
support of substantial no. of workmen or trade union. After closure, for a dispute
related to compensation, the workman can raise the dispute individually because after
closure, the industry ceases to be an industry and the dispute will not be an industrial
dispute. Any dispute, whether it is industrial dispute or not, if it is related to an
undertaking which has been an industry has to be entertained by Industrial Tribunal or
Labour Court (Central Industrial Dispute Rules, 1957).
Sec 25FFF
This is a condition subsequent whereas in retrenchment, compensation is a condition
precedent. Every workmen are being removed, while in retrenchment there can be
removal fo any no. of workman. For retrenchment, the industry is alive and the
dispute is industrial dispute. Here, the industry is closed and there can be no industrial
dispute.
Sec 25FF and 25FFF, it is a condition subsequent. Under Sec 25FF, if compensation
is not paid, it can be raised as industrial dispute as the industry is being transferred
and not being closed. The dispute can be raised against the transferee employer only.
Can an industry be transferred in parts? Yes, but it will not be transfer of industry but
will be transfer of undertaking. In case of transfer of undertaking, an industrial dispute
may be raised against the transferee employer only because in case of transfer of
undertaking which is capable of completing an activity by itself, there need not to be
transfer of whole industry.
Proviso treats at par the employees who have worked for different tenures. All will be
paid compensation for 3 months.
18th March
For IDA – Category or Class means terms and conditions of employment are same.
Grade means scales of pay
19th March
Sec 25H
Application of Sec 25F is not necessary.
Can there be retrenchment which is not covered under Sec 25F? only in one
circumstance, when the workman has not served for a continuous period of one year
(240 days).
Whether a person at a regular post who was retrenched and then the post was made a
contractual post, Sec 25H will still be applicable? Even if nature of the post is
changed from regular to contractual, Sec 25H will be applicable. Sec 25H has not
provided the nature of job. The functions should be same. If the qualifications for the
job have changed, Sec 25H shall not be applicable.
“in such manner”: Notice to the retrenched is required, public advertising shall also be
sufficient.
Reinstatement: Restoring the postion; Re-employment: may or may not restore the
original position. Back wages may or may not be awarded in reinstatement.
Continuity of services: may be claimed under reinstatement and not in re-
employment. No benefits arising during the period of termination cannot be claimed.
Both reinstatement and compensation cannot be provided. If a person has been
reinstated, no compensation is to be given.
SECTION 17B
There cannot be any appeal against the award of the Labour Court, Industrial Tribunal
or National Tribunal. No review, no reference, no revision.
Arts 32, 226, 227, 136 are proceedings under this provision. This section is for
pendency of proceedings before HC and SC only. For Art. 32, Art. 19(1)(g) is to be
claimed. Continuity of employment without arbitrary interference is a FR under Art.
19(1)(g).
23nd March
Whether contravention of any provision of IDA is unfair trade practice? No, penalties
are prescibed for contravention of provisions.
Only Maharashtra has a state law for unfair labour practices, Maharashtra Prevention
of Unfair Labour Practices Act, 1971.
Any officebearer of the trade union can be held liable for committing unfair labour
practice under Sec 25T.
Metal Box India Ltd. v. The Association of Engineering Workers Union & Ors. (2001)
Lockout against illegal strike is not illegal.
There cannot be two punishments for the same cause of action. Illegal lockout can be
unfair labour practice but Sec 26 and Sec 25U cannot be applied together, one has to
be chosen.
Burden of proof is always attached to right to begin (to begin upon a particular issue).
No inference can be drawn relating to unfair labour practice, evidence is to be given.
26th March
TRADE UNION
Can officials be a member of trade unions? Yes, possible after the case of 2002.
A person cannot be a member of more than one trade union at the same time.
Definition of trade union: Sidney & Beatrice Webbs. Wage – Anything which is
payable by the employer in lieu of employment.
A person can resign from the membership of the trade union. After resigning, the
trade union cannot represent the person even if the matter arose before the resignation.
Member services are not the services provided after payment of fees.
27th March
After becoming a member of the trade union, the person loses his right to settle and
right to raise dispute individually.
Sec 2(h) of Trade Unions Act: ‘Trade Union’. ‘imposing restrictive conditions’ –
trade union can impose restrictions on the employer as well as employee.
Federation: all the trade unions which are the members of the federation retain their
individualism.
Sec 2(g): ‘Trade Dispute’ and ‘Workmen’. The difference between trade dispute and
industrial dispute is that industrial dispute can also be raised by a substantial no. of
workmen, if the industrial dispute is supported by trade union, it becomes trade
dispute. Also, for industrial dispute industry is necessary, trade dispute can be related
to trade also.
Compulsory Trade Unionism – Closed shop: there is only one trade union and its
membership is required to be employed. Union shop: there are no. of trade unions and
membership of one of them is required. Compulsory trade unionism is not there in
govt. undertaking in India because these undertakings have their own rules and IDA
and TRA are not applicable to them.
There are 6 categories of trade unions. Craft Unions: Membership depends on the skill
or profession, work done by the member is the criteria. General Unions: No
membership criteria; in India there is no major industry which has recognised any
general union. Industrial Unions: industry-wise, nature of industrial activity as a
whole, the work of the member is not taken into consideration, any person involved
with the industry. Any person below third grade is blue collar employee.
Trade dispute can be raised even if there is no employer as it also includes trade.
28th March
First trade union in the world, but was not registered – National Association for
Protection of Labour (John Doherty), 1830 (UK)
First trade union which was registered – Grand National Consolidated Trade Union,
1834
Factories Act, 1881 – did not recognise trade union but for the first time, allowed
association to raise dispute.
Indian National Congress is not a trade union under the meaning of Sec 2(h), but it
can raise dispute if it is recognised as trade union. Registration is not a pre-condition
for recognition.
First trade union in India (restricted to textile industry only in Bombay) – Bombay
Millhands Association (NM Lokhande), 1890
First trade union of India – Madras Trade Union (PP Wadia), 1918 – operative
throughout India and open to workmen of all industries.
Madras Textile Labour Union v. Binny & Co. Ltd. (1920, Madras HC)
Injunction against trade union in textile industry that the trade union shall not operate
in such a manner which may incite the other workmen to break their contract of
employment with the employer. (Such an injunction cannot be issued today because
of Sec 18 and 19 of Trade Unions Act, 1926, civil immunity as against Sec 27, ICA)
Compulsory recogntion: Maharashtra Recogniton Act, Kerala Rules and Orissa Act.
Germany, Sweden and Canada do not permit the trade union to be associated with any
political party.
29th March
30th March
9th April
10th April
Sec 18 of IDA
The term ‘collective bargaining’ has not been used in any domestic legislation.
Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate
Collective bargaining has to be recognised as method of ID settlement as IDA and
Trade Union Act does not prohibit adoption of measures other than what have been
prescribed.
In India, a non-citizen can be office bearers of a trade union but the no. of such non-
citizens must not be more than 50% of the office bearers.
Any settlement entered into by an employer with a trade union which is not registered
but is recognised by the employer cannot be enforced under IDA or TUA, however, it
can be enforced as a contract under ICA.
Enforcement of settlement cannot be done by any civil court, the jurisdiction is with
the Labour Court or Industrial Tribunal. In places where neither exist, HC imposes the
powers of labour court on civil court.
If there are more than one recognised trade unions, any settlement between the
employer and one such trade union will be binding on the members of that trade union
only.
If the no. of members in different trade unions is equal, it will be the discretion of the
employer to settle with whichever trade union.
It is not permissible in IDA to remove all the workmen and appointment of new
workmen. If all workmen are removed, the industry can be closed down.
Sangramgarh Industries v. Management, Sangramgarh Industries
ONGC Videsh Ltd. v. CMD
Types of Collective Bargaining
1. Industry level
2. Plant level
3. Regional level (operative throughout a state)
4. National level
If the employer refuses to comply with the collective bargaining agreement, this
cannot be raised as an industrial dispute. The agreement can be enforced under Sec
18.
Bargaining Power