Enforcement of Labour Laws

Object

The Industrial Disputes Act, 1947 provides the machinery and procedure for the investigation and settlement of industrial disputes. The object of the Act is not only to make provision for investigation and settlements of industrial disputes, but also to secure industrial peace so that it may result in more production and improve national economy and to ensure fair settlements to the workmen and to prevent disputes between the employers and employees so that production may not be adversely affected and the larger interests of the public may not suffer.

Applicability of the Act

The Industrial Disputes Act applies to every establishment or factory whether in public or private sector which falls within the definition of  ‘industry’ and only such employees can avail of provisions of the Act who are covered under the definition of ‘ workman’ given in the Act. The Act presupposes the existence of a live industry because if the industry has ceased to exist the relationship of employer and employee would come to an end and nothing would be left to be regulated ( Sec 2(j) & 2(s)).

Conciliation Machinery

Section 4 of the Act envisages appointment of Conciliation Officers charged with the duty of mediating in and promoting settlement of industrial disputes. All the Labour Officers in the State have been appointed as Conciliation Officers under the Act along with the Labour Commissioner, and all the Deputy Labour Commissioner. The Joint Labour Commissioner has been notified as Chief Conciliation Officer ( Sec-4).

Sections 7 and 7A of the Act provide for constitution of Labour Courts and Industrial Tribunals respectively. The State Government have constituted nine Labour Courts/Industrial Tribunals in the State for adjudication of industrial disputes referred to such courts by the appropriate government ( Sec 7 & 7A).

Notice of Change in Conditions of Service

No employer can effect any change in the conditions of service applicable to any workman in respect of matters specified in the Fourth Schedule appended to the Act without giving notice to the workman likely to be affected by such a change; or within 21 days of giving such notice. However, no notice is required for effecting any such change if the same is effected in pursuance of any settlement or award or in pursuance of any condition of service applicable to such a workman ( Sec 9A).

Reference  of  Disputes There are following two types of disputes which can be taken cognizance under the Act i.e. individual disputes and disputes of collective  nature :-

Individual Disputes

Such disputes relate to the termination of services of a workman, whether by way of retrenchment or dismissal or forced resignation. Therefore, any workman whose services have been terminated or who has been dismissed from service, may address a demand notice to his employer and forward five copies of such a demand notice to the Conciliation Officer of the area. The workman may do so either himself or through an authorised representative. The Conciliation Officer on receipt of such a demand notice is required to hold conciliation proceeding on the same to resolve the dispute by way of settlement. In case he fails to bring about any settlement, he is required to send his failure report to the Labour Commissioner who is vested with the powers of appropriate government in individual cases. The Labour Commissioner may, after prima facie examination of the facts of the case refer the dispute for adjudication to the Labour Court or reject the dispute, if in his opinion, the dispute does not merit reference.(Sec 2A, 10 and 12).

Collective disputes

This type of industrial dispute is defined under section 2(k) of the Act. It may be raised either by a substantial number of workers of the industry where the workers  are employed showing interest in such a dispute and by electing their representative to pursue the demand notice. In case there is a trade union of workers in the industry, the union after passing the requisite resolution showing substantial interest in the dispute may approach the management with the demand notice with a requisite number of copies of the demand notice to the Conciliation Officer of the area. The Conciliation Officer is required to adopt same course of action as is contemplated in the case of an individual dispute. The Labour Commissioner or the Joint Labour Commissioner, may call the parties before them if it is considered desirable to do so, to resolve the dispute. The Labour Commissioner may recommend reference or rejection of the demands raised by the workers/ trade unions to the government after prima facie examination of the merits of each demand and final decision is taken at the level of government { Sec 2(k) 10(1) & 12}.

The Government may refer all the demands or some of them to the Labour Court/ Industrial Tribunal for adjudication and reject the rest of the demands keeping in view the merits of each demand.

Joint reference of dispute

Where the parties to an industrial dispute apply in the prescribed manner whether jointly or separately for a reference of the dispute to the Labour Court or Tribunal and if the appropriate government is satisfied that the persons applying represent the majority of each party, the government will be bound to make reference of such a dispute { sec 10(2) rules 3 &4}.

Prohibition of strike lock-out

The government is competent to prohibit the continuance of any  strike or lockout in connection with an industrial dispute which may be in existence after referring such a dispute for adjudication to the Labour Court/Industrial Tribunal. { Sec 10(3)}

Payment of full wages to workmen pending proceeding in higher courts.

Where in any  case the Labour Court or Industrial Tribunal directs reinstatement of a workman by its award and the employer challenges such an award in the High Court or the Supreme Court, the employer shall be liable to pay such workman full wages last drawn by him (before the termination of his services) during the period of pendency of such proceedings in the aforesaid courts subject to the condition that the workman will give affidavit to the employer to the effect that he has not been employed in any establishment during the relevant period ( Sec 17B).
 

Strike  and Lockouts Prior notice of strike/lockout in certain cases

No person employed in a “ public utility service” shall go on strike in breach of contract without giving to the employer notice of strike; within six weeks before striking; within 14 days of giving such notice or before the expiry of date of strike specified  in any such notice or during the pendency of any conciliation proceedings before a Conciliation Officer and seven days after the conclusion of such proceedings. 

No employer of any public utility service shall lockout any of his workman without giving notice of lockout in the prescribed manner within six weeks before the lockout or within 14 days of giving such notice or before the expiry of the date of lockout, specified in any such notice or during the pendency of any conciliation proceedings before a Conciliation Officer and seven days after the conclusion of such proceedings. 
 

General prohibition of strikes and lock-outs
 

No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lockout  during the pendency of conciliation proceedings, before a Board and seven days after the conclusion of such proceeding during the  pendency of proceeding before the Labour Court or Industrial Tribunal and two months after the conclusion of such proceeding during the pendency of arbitration proceedings before an Arbitrator and two months after the conclusion of such proceedings and during any period for which a settlement or award is in operation in respect of any matter covered by the settlement or award ( Sec 23)

Deemed illegality of strike/lockout

A strike or a lock out shall be deemed to be illegal after the same is commenced or declared in contravention of the provisions of section 22 or 23 of the Act or it is continued in contravention of an order made under sub section (3) of section 10 or sub section (4A) of section 10A of the Act.

However, a lockout or a strike declared in consequence of an illegal strike or illegal lockout shall not be deemed to be illegal. ( section 24)
 

General Lay  Off, Retrenchment and Closure ( Chapter-VA of the Act) In an establishment in which not less than 50 workmen on an average per working day have been employed in the preceding twelve months and the employer intends to lay off a workman who has completed not less than 240 days continuous service under the employer, he shall be paid during such lay off period compensation equal to fifty percent of his wages. ( Sec 25-C)

No workman employed in an industry who has been in continuous service for not less than 240 days in a year, can be retrenched by his employer unless he has been given one month’s notice in writing indicating the reasons for retrenchment and period of such notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice. The workman is also required to be paid retrenchment  compensation which shall be equivalent of 15 days average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner is also required to be served on the appropriate government. ( Sec 25-F)

If any employer intends to close down his industry he is required to serve atleast sixty days notice to the appropriate government before the date of the intended closure stating the reasons for such a closure. An employer who has thus closed down his undertaking, he will be liable to pay to every workman 15 days wages for every completed year of service as per the requirement of section 25-F of the Act. In case the Industry is closed down on account of unavoidable circumstances beyond the control of the employer the compensation to be paid to the workman under section 25-F shall not exceed his average pay for three months. ( Sec 25 FF and FFA rule 75 A)

Procedure for retrenchemnt and re-employment

  Where any workman of an industrial establishment is to be retrenched, the employer shall ordinarily retrench the workman who was the last person to be retrenched in his category. Similarly in case the employer needs the services of any workman after such termination /retrenchment he will be required to employ those workmen first who have been retrenched by him. ( Sec 25-G & 25-H)

Prior Permission for Lay Off OR Retrenchment OR Closure(Chaper VB of the Act)

In any industrial establishment wherein not less than one hundred workmen were employed on an average per working day for the preceding twelve months and which is a factory within the meaning of the Factories Act, no employer of such an industrial establishment shall lay off or retrench any of his workmen or close down his establishment without prior permission of the Specified Authority or the “ appropriate government as the case may be.”

HOW TO APPLY

Lay off

An employer who intends to lay off any of his workman or workmen shall be required to apply to the Specified Authority for permission stating clearly the reasons for the intended lay off in Form O-3 in triplicate  and simultaneous service on the workmen concerned. Joint Labour Commissioner has been appointed as the Specified Authority for the purpose of such cases. The Specified Authority is required to decide such an application within sixty days from the date  of receipt otherwise the permission shall be deemed to have been granted ( Sec 25-M rule 74-B)

Retrenchment

An employer who intends to retrench any of his workmen who has been in continuous service for not less than one year under him, shall be required to apply to the Specified Authority for permission to retrench such workman indicating the reasons in Form PA in triplicate. The concerned workman shall be required to be served three months notice in writing. The Specified Authority is required to decide such an application within a period of sixty days otherwise the permission shall be deemed to have been granted. Joint Labour Commissioner has been appointed as Specified Authority for this purpose ( Sec 25 N, rule 75-A)

Closure

An employer who intends to close down an undertaking of his industrial establishment, shall be required to apply to the appropriate government at least ninety days before the date on which he intends to close down his undertaking in Form-QA in triplicate. The government is required to decide the application within a period of sixty days otherwise the permission shall be deemed to have been granted. ( Sec 25-O rule 75-C)

UNFAIR LABOUR PRACTICE

No employer or workman or a Trade Union, whether registered under the Trade Unions Act or not, shall commit any, “ unfair labour practice” as defined under section 2(ra) ( Sec 2, 25-T)

MISCELLANEOUS PROVISIONS

Conditions of service etc. to remain unchanged in certain situations

During the pendency of any conciliation proceedings, before a Conciliation Officer or any  proceeding before an Arbitrator or a Labour Court or Tribunal in respect of an industrial dispute, no employer shall in regard to any matter connected with the dispute, alter to the prejudice of the workman concerned in such a dispute, the conditions of service applicable to him immediately before the commencement  of such proceedings or for any misconduct connected with the dispute, discharge or punish whether by dismissal or otherwise any workman concerned in the dispute except with the express permission in writing of the authority before which the proceeding is pending.

However, an employer may, in accordance with the standing orders applicable to a workman concerned in such dispute 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, may 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 or for any misconduct not connected with the dispute, discharge or punish whether by dismissal or otherwise, that  workman.

Provided that no such workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer ( Sec 33(1) and (2).

Recovery of money due from an employer

Where any money is due to a workman from an employer under a settlement or award or under the provisions of Chapter V-A or V-B of the Industrial Disputes Act, 1947 the workman himself or any other person authorised by him in writing in this behalf or in the case of death of the workman his heirs, may without prejudice to any mode of recovery, make an application to the appropriate government for the recovery of money due to him and if the appropriate government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue. All the Labour Officers in the State have been vested with the powers of Assistant Collector-1st grade for this purpose. ( Sec 33-C(1)

Computation of money or benefit due from an employer

Any workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount by which such benefit should be computed, then the question shall be decided by the Labour Court specified in this behalf.

The Haryana Government has specified all the Labour Courts in the State for this purpose ( Sec 33-C(2))

PENAL PROVISIONS

The Act envisages punishment for violation of different provisions of the Act and the rules framed thereunder, especially violation of sections 25M, 25-N, 25-O and 25-T and violation of breach of settlement or award. For the violation of section 25-M and 25-N an employer is liable to be punished with imprisonment for a term which may extend to one month or with fine which may extend to one thousand rupees or with both. ( sec 25-Q)

In case of violation of section 25-O of the Act an employer is liable to be punished with imprisonment for term which may extend to six months or with fine which may extend to five thousand rupees, or with both and any employer who contravenes an order refusing to grant permission to close down an undertaking shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.

Where the contravention is a continuing one a further fine which may extend to two thousand rupees for every day during which the contravention continues after the conviction ( Sec 25-R).

The punishment for committing “ unfair labour practice” whether by management or workman or Trade Union is imprisonment to the extent of six months or fine which may extend to one thousand rupees or with both ( Sec 25-U)

The punishment for breach of settlement or award is imprisonment for a term which may extend to six month or with fine or with both and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realized from him shall be paid, by way of compensation, to any person who in its opinion, has been injured by such breach ( Sec 29).
 

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