The Remaining Provisions of the Code

Section 90: the standstill during proceedings

This is the substantial section in the Chapter and it deserves the most space.

90(1): matters connected with the dispute

Where an industrial dispute pertaining to an establishment is already pending before a conciliation officer, an arbitrator, a Tribunal or a National Industrial Tribunal, with regard to matters not covered by a notice of change issued under section 40, no employer shall:

• (a) in regard to any matter connected with such dispute, alter to the prejudice of the workers concerned the conditions of service applicable to them immediately before the commencement of the proceedings; or
• (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any worker concerned in the dispute,

save with the express permission in writing of the authority before which the proceeding is pending.

The reason for the section is plain once stated. A dispute is pending about, say, the night-shift allowance. Without section 90 the employer could simply alter the allowance while the case ran, and present the Tribunal with an accomplished fact; or he could dismiss the workers who raised it, and there would be nobody left to press the claim. The section freezes the position on the matters in issue and on the people involved.

Note the two limbs are different. Limb (a) is about conditions of service, and only alterations to the prejudice of the workers are caught: an improvement is not. Limb (b) is about punishment, and it catches discharge or any other punishment for misconduct connected with the dispute.

And the permission must be express and in writing, from the authority before which the proceeding is pending, not from anybody else.

90(2): matters not connected with the dispute

During the pendency of such a proceeding, the employer may, in accordance with the standing orders applicable to the worker or, where there are none, in accordance with the terms of the contract, express or implied:

• (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that worker; or
• (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that worker.

Proviso: no such worker 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.

So the scheme is a two-tier one and the tier depends on connection with the dispute.

The difference between the two rows is the difference between permission and approval, and it is exactly the kind of distinction an examiner rewards. For a connected matter the employer must ask before. For an unconnected matter he may act, but must pay a month's wages and apply for approval afterwards.

90(3): protected workers

Notwithstanding sub-section (2), no employer shall, during the pendency of any proceeding in respect of an industrial dispute, take any action against any protected worker concerned in such dispute by altering the conditions of service to his prejudice, or by discharging or punishing him, save with the express permission in writing of the authority.

So a protected worker gets under sub-section (3) the protection that an ordinary worker gets only for connected matters. The distinction between connected and unconnected matters disappears for him: everything requires express prior permission.

Who is a protected worker. The section provides for the recognition, as protected workers, of a number of office-bearers of a registered Trade Union in the establishment, in the prescribed manner and subject to the prescribed limits. The purpose is obvious and should be stated: the office-bearers are the people an employer has most reason to remove during a dispute, and they are the people whose removal most damages the workers' side of it.

Section 91 is the companion provision. It provides for a special adjudication of the question whether conditions of service were changed during the pendency of proceedings, so that the section 90 question can be decided without waiting for the main dispute.

Section 92: transfer of proceedings

The appropriate Government may transfer certain proceedings, and section 60(3) provides that a proceeding before a Tribunal is deemed to commence on the date of filing or reference. Section 54(2) refers to a dispute transferred under section 92 by the Central Government to a National Industrial Tribunal, which is how a dispute of national importance can be moved up without a fresh reference.

Section 93: protecting the worker who refuses an illegal strike

93(1): no person refusing to take part, or to continue to take part, in any strike or lock-out which is illegal under the Code shall, by reason of that refusal or of any action taken by him under the section:

• be subject to expulsion from any Trade Union or society;
• or to any fine or penalty;
• or to deprivation of any right or benefit to which he or his legal representatives would otherwise be entitled;
• or be liable to be placed in any respect, directly or indirectly, under any disability or at any disadvantage as compared with other members of the union or society,

anything to the contrary in the rules of a Trade Union or society notwithstanding.

93(2): nothing in the rules of a Trade Union or society requiring the settlement of disputes in any manner shall apply to a proceeding for enforcing a right or exemption secured by the section.

This is the mirror image of everything Module I taught, and the pairing is worth making explicit. Chapter III protects the union against the employer. Section 93 protects the individual member against his own union, and only in one situation: where he declines to join a stoppage that is illegal.

Compare it with section 15(3), worked in [The Funds of a Trade Union, and the Political Fund], which protects a member who refuses to contribute to the political fund from exclusion from benefits or from any direct or indirect disability. The two sections are drafted in almost the same words, and both override the union's own rules.

Note the limit. The protection applies only where the strike or lock-out is illegal. A member who refuses to join a lawful strike has no protection under section 93 against his union's rules.

Section 94: representation of parties

94(1): a worker who is a party to a dispute is entitled to be represented in any proceeding under the Code by:

• (a) any member of the executive or other office-bearer of a registered Trade Union of which he is a member;
• (b) any member of the executive or other office-bearer of a federation to which that union is affiliated;
• (c) where the worker is not a member of any Trade Union, any member of the executive or other office-bearer of any Trade Union connected with, or any other worker employed in, the industry in which he is employed.

The section then makes corresponding provision for the employer, who may be represented by an officer of an association of employers or by an office-bearer of such an association.

Clause (c) is the important one for an unorganised worker. A worker who belongs to no union is not left to represent himself: he may be represented by an office-bearer of any union connected with the industry, or by a fellow worker.

Legal practitioners are dealt with separately in the section, and the ordinary position in industrial adjudication is that a legal practitioner appears only with the consent of the other party and the leave of the forum. That is a familiar feature of industrial law and it exists so that a worker is not outmatched by counsel he cannot afford.

Section 95: interpreting an award or settlement

95(1): if, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Tribunal or National Industrial Tribunal as it thinks fit.

95(2): the Tribunal shall, after giving the parties an opportunity of being heard, decide the question, and its decision shall be final and binding on all such parties.

Distinguish section 95 from section 37, because the two look alike and are not.

The difference in who may move is the point. A worker may take a standing-orders question to the Tribunal himself. He cannot take an award-interpretation question there; the Government must refer it.

Sections 96, 97 and 98: exemption, the civil courts, and good faith

Section 96(1): where the appropriate Government is satisfied, in relation to an establishment or a class of establishments, that adequate provisions exist to fulfil the objects of any provision of the Code, it may by notification exempt it, conditionally or unconditionally, from that provision.

96(2): notwithstanding that, where the appropriate Government is satisfied in relation to any new industrial establishment or class of new establishments that it is necessary in the public interest, it may by notification exempt them.

The test in sub-section (1) is worth noticing. The ground is not hardship or expense but that adequate provisions already exist to fulfil the object. That is the same logic as section 28(2), which disapplies the standing orders Chapter to workers governed by civil service rules.

Section 97: jurisdiction of civil courts barred.

No civil court shall have jurisdiction in respect of any matter to which any provision of this Code applies and no injunction shall be granted by any civil court in respect of anything which is done or intended to be done by or under this Code.

Two limbs and the second is as important as the first. No jurisdiction, and no injunction. Without the second limb an employer could obtain an injunction restraining a strike, or a union an injunction restraining a retrenchment, and the Code's own forums would be bypassed.

Read section 97 with the other exclusions the book has met. Section 22(2) bars every civil court other than the Tribunal from Trade Union disputes. Section 36 excludes oral evidence contradicting certified standing orders in any Court. Section 37 sends the interpretation of standing orders to the Tribunal. Together they express a single policy: industrial questions are decided by industrial forums.

Section 98: protection of action taken in good faith.

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Code or any rules made thereunder.

Note the breadth: "any person", not only officers of the Government. A conciliation officer who enters premises under section 49(2), a certifying officer who refuses to certify a standing order, and an employer or union official acting in good faith under the Code are all within it. The condition is good faith.

Sections 99 to 103: the powers

Section 99: the appropriate Government may, subject to the condition of previous publication, make rules for giving effect to the Code, with a proviso allowing publication to be dispensed with in stated circumstances. Rules are laid before Parliament or the State Legislature in the usual way.

Section 100: delegation of powers. The appropriate Government may direct that a power exercisable by it shall be exercisable also by a specified officer or authority.

Section 101: power to amend the Schedules. This matters more than it looks, because the First Schedule is the content of standing orders, the Second Schedule is the list of unfair labour practices, and the Third Schedule is the list of matters requiring notice of change. All three can therefore be altered without amending the body of the Code.

Section 102: amendment of Act 7 of 2017, a consequential amendment substituting references to the Industrial Disputes Act 1947 with references to this Code, and references to the Industrial Tribunal constituted under that Act with the Tribunal constituted under section 44(1) of this Code.

Section 103: power to remove difficulties. If any difficulty arises in giving effect to the Code, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the Code, as appear necessary for removing the difficulty; with a proviso that no such order shall be made after the expiry of three years from the commencement of the Code. Every such order must be laid before each House of Parliament.

The three-year limit is the safeguard and it should be mentioned. A removal-of-difficulties power lets the executive alter the working of a statute, so Parliament confines it to the settling-in period.

A worked example

The facts. A packaging plant in Wada. An industrial dispute about the night-shift allowance is pending before the Tribunal. Consider six events during its pendency.

One: the employer reduces the night-shift allowance. The allowance is the very matter connected with the dispute, and the change is to the prejudice of the workers concerned. Section 90(1)(a): he may not do it save with the express permission in writing of the Tribunal, obtained first.

Two: the employer dismisses Meera for refusing to work the night shift, which is the conduct the dispute is about. That is punishment for misconduct connected with the dispute. Section 90(1)(b): express permission in writing, first.

Three: the employer dismisses Rakesh for theft from the stores, which has nothing to do with the allowance. That is misconduct not connected with the dispute, so section 90(2)(b) permits it in accordance with the standing orders. But the proviso applies: Rakesh must be paid wages for one month, and the employer must apply to the Tribunal for approval of the action taken.

Four: the same dismissal, but Rakesh is a recognised protected worker. Section 90(3) applies notwithstanding sub-section (2): no action may be taken against a protected worker concerned in the dispute, whether by altering conditions to his prejudice or by discharge or punishment, save with the express permission in writing of the Tribunal. The connected-or-unconnected distinction does not help the employer.

Five: the union expels a member who refused to join a strike that was illegal for want of notice. Section 93(1) protects him: he may not be expelled, fined, penalised, deprived of any right or benefit, or placed directly or indirectly under any disability or at any disadvantage compared with other members, anything in the union's rules notwithstanding. And by section 93(2) the union's own internal dispute-settlement rules do not apply to a proceeding to enforce that right.

Change it: the strike was lawful and he refused to join. Section 93 does not protect him, because it is confined to a strike or lock-out which is illegal.

Six: the employer applies to the civil court for an injunction restraining the union from striking. Section 97: no civil court has jurisdiction in respect of any matter to which any provision of the Code applies, and no injunction shall be granted by any civil court in respect of anything done or intended to be done by or under the Code.

And two questions of representation and interpretation. Meera belongs to no union and asks who may appear for her: under section 94(1)(c) she may be represented by an office-bearer of any Trade Union connected with the industry, or by another worker employed in it. The parties later disagree about what a clause of the resulting award means: only the appropriate Government may refer that question, under section 95(1), to a Tribunal, whose decision after hearing the parties is final and binding. Had the disagreement been about the standing orders, Meera could have applied to the Tribunal herself under section 37.

What this does NOT mean

It does not mean an employer can do nothing while a dispute is pending. Section 90(2) permits alterations and punishment in matters not connected with the dispute, in accordance with the standing orders or the contract, subject to the month's wages and the application for approval where the worker is discharged or dismissed.

It does not mean every worker is a protected worker. The stronger protection in section 90(3) is for office-bearers of a registered union recognised as protected workers in the prescribed manner and within the prescribed limits.

It does not mean permission and approval are the same. Section 90(1) requires express permission in writing before acting; the proviso to section 90(2) requires an application for approval of the action taken.

It does not mean section 93 protects a refusal to join any strike. It is confined to a strike or lock-out which is illegal under the Code.

It does not mean a worker may take an award-interpretation question to the Tribunal. Only the appropriate Government may refer it, under section 95(1). Section 37 is different: there the employer, the workers concerned or the union may apply.

It does not mean the Schedules are fixed. Section 101 permits their amendment, and the First, Second and Third Schedules are the content of standing orders, the list of unfair labour practices and the matters requiring notice of change.

It does not mean the removal-of-difficulties power is permanent. Section 103's proviso bars an order after three years from the commencement of the Code.

Limits, criticism and amendments

Section 90's protection depends on there being a pending proceeding, so an employer who acts before a dispute is raised is outside it entirely. That is the standard criticism, and it is why the notice-of-change provision in section 40, worked in [Notice of Change in Conditions of Service], matters: it catches the alteration before any dispute exists.

The protected worker regime depends on the rules. The number of office-bearers who may be recognised, and the manner of recognition, are prescribed rather than stated, so the practical value of section 90(3) is set by delegated legislation.

Section 96's exemption power is wide. The test is the Government's satisfaction that adequate provisions exist to fulfil the objects of a provision, and section 96(2) allows exemption of new establishments simply on the ground of the public interest, which is a broad standard for removing statutory protections from a class of workplaces.

Section 101's power to amend the Schedules is the most significant of the powers. Three Schedules carry the content of standing orders, the definition of unfair labour practices and the list of matters requiring notice, and all three may be altered without amending the Code.

And section 97's bar, though necessary, leaves the worker dependent on the Code's own forums. Where a Tribunal is not functional, section 104(1A) keeps the old ones running, but the civil court is closed either way.

Quick revision

• Section 90(1): during the pendency of a dispute before a conciliation officer, arbitrator, Tribunal or National Industrial Tribunal, no employer shall, in a matter connected with the dispute, alter conditions of service to the prejudice of the workers concerned, or discharge or punish for misconduct connected with it, save with the express permission in writing of the authority.
• 90(2): for matters not connected, he may act in accordance with the standing orders or the contract; proviso: no discharge or dismissal unless one month's wages are paid and an application for approval is made.
• 90(3): for a protected worker, express permission in writing is needed for any action, connected or not. Section 91: special adjudication of whether conditions were changed during pendency.
• Section 92: transfer of proceedings; a dispute may be transferred to a National Industrial Tribunal, section 54(2).
• Section 93: a person refusing to take part in an ILLEGAL strike or lock-out may not be expelled, fined, penalised, deprived of any right or benefit, or placed directly or indirectly under any disability or disadvantage, notwithstanding the union's rules; and the union's internal dispute rules do not apply to enforcing that right.
• Section 94: a worker may be represented by an office-bearer of his registered union, of a federation it is affiliated to, or, if he belongs to no union, of any union connected with the industry or by another worker in it.
• Section 95: only the appropriate Government may refer a difficulty or doubt about an award or settlement to a Tribunal, whose decision after hearing the parties is final and binding. Contrast section 37 for standing orders, which the employer, workers or union may move.
• Section 96: exemption by notification, conditionally or unconditionally, where adequate provisions exist to fulfil the object; and for new establishments where necessary in the public interest.
• Section 97: no civil court jurisdiction, and no injunction. Section 98: no suit, prosecution or proceeding against any person for anything done in good faith under the Code.
• Sections 99 to 103: rules subject to previous publication; delegation; power to amend the Schedules; consequential amendment of Act 7 of 2017; and removal of difficulties, barred after three years from commencement and laid before Parliament.

Test yourself

1. What restrictions does section 90 place on an employer while a dispute is pending? Under section 90(1), where an industrial dispute is already pending before a conciliation officer, an arbitrator, a Tribunal or a National Industrial Tribunal, the employer may not, in regard to any matter connected with the dispute, alter to the prejudice of the workers concerned the conditions of service applicable to them immediately before the proceedings commenced, nor for any misconduct connected with the dispute discharge or punish any worker concerned, save with the express permission in writing of the authority before which the proceeding is pending. Under section 90(2) he may, in matters not connected with the dispute, alter conditions or punish in accordance with the standing orders or, where there are none, the terms of the contract, but by the proviso no such worker may be discharged or dismissed unless he has been paid one month's wages and an application has been made to that authority for approval of the action taken.

2. Who is a protected worker and what does section 90(3) give him? A protected worker is an office-bearer of a registered Trade Union in the establishment who is recognised as such in the prescribed manner and within the prescribed limits. Section 90(3) provides that, notwithstanding sub-section (2), no employer shall during the pendency of any proceeding in respect of an industrial dispute take any action against a protected worker concerned in the dispute by altering his conditions of service to his prejudice or by discharging or punishing him, save with the express permission in writing of the authority. The distinction between matters connected and not connected with the dispute therefore falls away for him, and everything requires prior express permission.

3. What protection does section 93 give, and to whom? It protects a person who refuses to take part, or to continue to take part, in a strike or lock-out which is illegal under the Code. By reason of that refusal he may not be expelled from any Trade Union or society, subjected to any fine or penalty, deprived of any right or benefit to which he or his legal representatives would otherwise be entitled, or placed in any respect, directly or indirectly, under any disability or at any disadvantage as compared with other members, and this operates notwithstanding anything to the contrary in the rules of the union or society. By section 93(2) the union's rules requiring the settlement of disputes in any particular manner do not apply to a proceeding to enforce a right or exemption secured by the section. The protection does not extend to a refusal to join a lawful strike.

4. May a worker who belongs to no union be represented in a proceeding? Yes. Under section 94(1)(c), where the worker is not a member of any Trade Union he may be represented by any member of the executive or other office-bearer of any Trade Union connected with the industry in which he is employed, or by any other worker employed in that industry. Where he is a member of a registered union he may be represented by an office-bearer of it under clause (a), or of a federation to which it is affiliated under clause (b).

5. Explain section 97 and its relationship with the other exclusions in the Code. Section 97 provides that no civil court shall have jurisdiction in respect of any matter to which any provision of the Code applies, and that no injunction shall be granted by any civil court in respect of anything done or intended to be done by or under the Code. The second limb matters as much as the first, since without it an employer could obtain an injunction restraining a strike and bypass the Code's forums. It sits with section 22(2), which bars every civil court other than the Tribunal from Trade Union disputes; section 36, which excludes oral evidence contradicting certified standing orders in any court; and section 37, which sends the interpretation of standing orders to the Tribunal. Together they express the policy that industrial questions are decided by industrial forums.

6. Distinguish section 95 from section 37. Section 37 deals with a question as to the application or interpretation of certified standing orders, and it may be moved by the employer, by any worker or workers concerned, or by the Trade Union, who apply to the Tribunal within whose jurisdiction the establishment is situated; the Tribunal decides after giving all parties a reasonable opportunity of being heard and its decision is final and binding. Section 95 deals with a difficulty or doubt as to the interpretation of a provision of an award or settlement, and it may be moved only by the appropriate Government, which forms the opinion that such a difficulty has arisen and refers the question to such Tribunal or National Industrial Tribunal as it thinks fit; that forum decides after giving the parties an opportunity of being heard and its decision is final and binding. The critical difference is that a worker may move under section 37 and cannot under section 95.