BLS LLB 5 Years Sem 5 Labour Laws 2017-18 Question Paper with Solutions

The Act extends to the whole of the State of Maharashtra. Under Section 2 it applies to the industries to which the Bombay Industrial Relations Act, 1946 applies, and to any industry as defined in Section 2(j) of the Industrial Disputes Act, 1947 in relation to which the State Government is the appropriate Government.

For the recognition machinery there is a separate threshold. Section 10 provides that Chapter III applies to every undertaking wherein fifty or more employees are employed, or were employed on any day of the preceding twelve months. The State Government may, on sixty days' notice, extend the Chapter to undertakings employing fewer than fifty.

If the number falls below fifty continuously for one year, Chapter III ceases to apply to that undertaking.

Section 10A of the Industrial Employment (Standing Orders) Act, 1946 provides that where a workman is suspended pending investigation or inquiry into charges of misconduct, the employer must pay him subsistence allowance at:

1. Fifty per cent of the wages he was entitled to immediately preceding the date of suspension, for the first ninety days of suspension; and
2. Seventy-five per cent of such wages for the remaining period, if the delay in completing the disciplinary proceedings is not directly attributable to the conduct of the workman.

Any dispute about the amount is decided by the Labour Court, whose decision is final.

Section 2(1)(l): "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement.

The proviso adds a deeming rule: permanent total disablement is deemed to result from every injury specified in Part I of Schedule I, or from any combination of injuries specified in Part II where the aggregate percentage of loss of earning capacity, as specified against those injuries, amounts to one hundred per cent or more.

Section 24(2) of the MRTU and PULP Act, 1971 defines an illegal lock-out. Two instances are:

1. A lock-out commenced or continued without giving the employees notice of lock-out in the prescribed form, or within fourteen days of the giving of such notice.
2. A lock-out commenced or continued during the pendency of conciliation proceedings under the Bombay Act or the central Act, and for seven days after the conclusion of those proceedings, in respect of matters covered by the notice of lock-out.

A third instance is a lock-out declared during any period in which a settlement or award is in operation, in respect of any matter covered by that settlement or award.

Section 10 of the Industrial Employment (Standing Orders) Act, 1946. Standing orders finally certified shall not be liable to modification until the expiry of six months from the date on which they, or the last modification of them, came into operation, except on agreement between the employer and the workmen or a trade union or other representative body of the workmen.

After that period, the employer or any workman or a trade union or other representative body may apply to the Certifying Officer to have the standing orders modified, and the application must be accompanied by copies of the modifications proposed. Where the modification is by agreement, a certified copy of the agreement is filed with the application.

The same procedure as for original certification then applies.

Section 9A of the Industrial Disputes Act, 1947. No employer who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule shall effect that change:

1. without giving to the workmen likely to be affected notice in the prescribed manner of the nature of the change proposed; and
2. within twenty-one days of giving such notice.

Matters in the Fourth Schedule include wages and the manner of their payment; contribution to provident fund or gratuity; compensatory and other allowances; hours of work and rest intervals; leave with wages and holidays; starting, alteration or discontinuance of shift working; classification by grades; withdrawal of any customary concession or privilege; introduction of new rules of discipline; rationalisation, standardisation or improvement of plant or technique likely to lead to retrenchment; and any increase or reduction in the number of persons employed in any department.

Section 20 of the MRTU and PULP Act, 1971. Authorised officers, office staff and members of a recognised union have the right:

1. to collect sums payable by members to the union on the premises where wages are paid;
2. to put up a notice board on the premises of the undertaking and affix notices on it;
3. for the prevention or settlement of an industrial dispute, to hold discussions on the premises with employees who are members, without interfering with the working of the undertaking; to meet and discuss with the employer the grievances of employees; and to inspect any place in the undertaking where an employee is employed;
4. to appear on behalf of any employee in any domestic or departmental inquiry held by the employer.

Section 20(2) adds the two rights that make recognition worth having:

Section 2(1)(dd) of the Employees' Compensation Act, 1923. "Employee" means a person, who is:

1. a railway servant as defined in the Railways Act, 1989, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any capacity specified in Schedule II;
2. a master, seaman or other member of the crew of a ship, a captain or other member of the crew of an aircraft, a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle, or a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II; or
3. employed in any such capacity as is specified in Schedule II,

whether the contract of employment was made before or after the passing of the Act and whether it is express or implied, oral or in writing. It excludes a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business, and members of the Armed Forces of the Union.

The triple test is the test for "industry" under Section 2(j) laid down by a seven-Judge Bench of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978). An activity is an industry where there is:

1. systematic activity;
2. organised by cooperation between employer and employee; and
3. for the production and/or distribution of goods and services calculated to satisfy human wants and wishes, not spiritual or religious wants, and not wants that are supplied free.

The Court added the dominant nature test: where a complex of activities is carried on, some of which qualify and some do not, the predominant nature of the undertaking decides, and the whole undertaking is an industry.

Section 2(c) of the Industrial Employment (Standing Orders) Act, 1946 defines "Certifying Officer" as a Labour Commissioner or a Regional Labour Commissioner, and any other officer appointed by the appropriate Government, by notification, to perform the functions of a Certifying Officer under the Act.

His functions are:

1. to receive the draft standing orders submitted by the employer under Section 3 within six months of the Act becoming applicable to the establishment;
2. to certify them under Section 5, after forwarding a copy to the trade union or the workmen, allowing fifteen days to file objections, hearing the parties, and making such modifications as are necessary to render the draft certifiable;
3. to adjudicate upon the fairness or reasonableness of any provision, a power expressly conferred by Section 4 as amended in 1956;

Under the Employees' Compensation Act, 1923, permanent disablement is of two kinds.

Permanent total disablement. Under Section 2(1)(l) read with its proviso, disablement which incapacitates an employee for all work he was capable of performing at the time of the accident, and which is permanent. It is deemed to result from every injury specified in Part I of Schedule I, or from any combination of injuries in Part II where the aggregate loss of earning capacity is one hundred per cent or more. Part I examples: loss of both hands, loss of sight to such an extent as to render the employee unable to perform any work for which eyesight is essential, very severe facial disfigurement, absolute deafness, amputation of an arm through the shoulder joint.

3. its membership must have been, during the whole of the six calendar months immediately preceding the month of application, larger than the membership of the recognised union; and
4. it must satisfy the conditions in Section 11 (thirty per cent membership for six months) and comply with Section 19.

On such an application the Industrial Court calls upon the recognised union to show cause within thirty days, displays notice on the notice board of the undertaking, holds an enquiry, and if satisfied, recognises the applicant union in place of the recognised union and issues a certificate.

If two years have not elapsed, Bhartiya Kamgar Sena must wait. In the meantime, if the Indian Workers' Association attracts any of the grounds in Section 13, for example its membership falls below the minimum for six continuous months, or it is not conducted bona fide in the interests of employees, an application for cancellation of its recognition lies.

(a) The standing orders which are applicable to PQR Industrial undertaking will continue to be applicable or cease to be operative.

They continue to be applicable. Certified standing orders are not a contract personal to the employer who obtained certification; they are the statutory conditions of service of the establishment, certified under the Industrial Employment (Standing Orders) Act, 1946 and operating under Section 7 from the date fixed there.

Two supporting points. Section 4 requires the Certifying Officer to adjudicate on the fairness or reasonableness of the provisions, so the certified term already carries a finding that it is fair. Section 10 prescribes the only route to change, and a private appointment letter is not that route; Section 36 of the Act makes oral evidence in contradiction of standing orders inadmissible.

So the six-month clause in the appointment letter is inoperative to the extent it conflicts, and the employee's probation ends at three months. The one qualification is that a contract more favourable than the standing orders is unobjectionable, because the Act sets a floor and not a ceiling.

So the workmen of Empire are entitled to compensation, but it is capped at three months' average pay however long their service.

The Explanation to the proviso is essential and cuts down the concession sharply: an undertaking closed down by reason merely of financial difficulties, including the loss of capital or financial losses, or the expiry of a lease or licence, or, in the case of a mine, exhaustion of the minerals, is not deemed to be closed on account of unavoidable circumstances beyond the employer's control.

(b) In the above mentioned situation employer is planning to restart the closed industry but refused to employ senior employees & appointed junior employees. What remedy is available to senior employee?

The senior employees' remedy is Section 25H, re-employment of retrenched workmen. Where a workman has been retrenched and the employer proposes to take any person into employment, he must give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves shall have preference over other persons.

The two phrases are separate and both must be satisfied. They are joined by "and", not "or", and the courts have insisted on treating them as distinct enquiries.

"In the course of employment" fixes the time and place. It means the injury occurred while the employee was doing what a man so employed might reasonably do within the time during which he was employed, and at a place where he might reasonably be during that time. It covers not only actual work but reasonable incidents of it: taking a meal on the premises, going to the toilet, and reasonable periods of rest.

"Arising out of employment" fixes the causal connection. It means the injury had its origin in the employment, that there was a causal relationship between the accident and the employment. The classic formulation is that the employment must have exposed the employee to a risk which caused the injury, and that risk must be one to which he would not have been equally exposed apart from the employment.

The theory of increased risk and the peripatetic worker. Where the employment exposes a man to a greater risk than that shared by the general public, an injury from that risk arises out of the employment. In Mackinnon Mackenzie and Co. v. Ibrahim Mahommad Issak (1970) the Supreme Court held that where a seaman disappeared at sea and the cause was unknown, the claimant need only show a reasonable inference that the accident arose out of the employment, because the workman was on the high seas by reason of that employment.

Death from natural causes. A heart attack or stroke at work is compensable only if the employment contributed to it, by strain, stress or exertion beyond the ordinary. If the disease would have struck at that moment wherever the man had been, the accident does not arise out of the employment.

Occupational disease. Section 3(2) deems the contracting of a disease specified in Schedule III to be an injury by accident arising out of and in the course of employment, where the employee has been in continuous service for the prescribed period in an employment specified against that disease. This spares the claimant the impossible task of proving a single accident.

For full marks, cover: a definition and the origin of the phrase; the statutory recognition of the settlement; the pre-conditions; the forms it takes; merits; demerits; and the position under the new codes.

Meaning. Collective bargaining is the process by which the terms and conditions of employment are settled by negotiation between an employer or association of employers and one or more representative organisations of workers, resulting in an agreement binding on both sides for a stated period. The phrase was coined by Sidney and Beatrice Webb in Industrial Democracy (1897). The International Labour Organisation, in its Right to Organise and Collective Bargaining Convention, 1949 (No. 98), requires member States to encourage and promote machinery for voluntary negotiation.

It is a bilateral process: the parties themselves make the terms, unlike adjudication, where a third party imposes them.

Statutory recognition in India. There is no Act called the Collective Bargaining Act. The process is recognised indirectly:

1. A strong, representative and recognised union, so that the employer knows with whom to bargain and the agreement can bind the workforce.
2. Freedom of association and the absence of victimisation of union office bearers.
3. Willingness to negotiate in good faith on both sides, with authority in the negotiators to conclude an agreement.
4. Mutual recognition and acceptance of the other side's right to exist and to differ.
5. Full and accurate information, so that demands are framed against the real financial position.
6. A defined bargaining unit and an agreed procedure and agenda.
7. Willingness to give and take, and to implement what has been agreed.
8. A legal framework that makes the agreement enforceable.

Forms. Bargaining may be conjunctive or distributive (each side seeking to gain at the other's cost, as over wages), cooperative or integrative (both sides working out a joint solution in hard times), or productivity bargaining (increases tied to measurable output). It may be at plant, industry or national level.

4. Bargaining may be conducted under the threat of a strike or lock-out, with heavy cost to production and to the public.
5. Agreements are often reached at the cost of outsiders, such as contract labour and casual workers, who are not at the table.
6. Enforcement depends on the good faith of the parties, and a settlement outside conciliation binds only the signatories.

Under the new labour codes. The Industrial Relations Code, 2020 addresses the bargaining agent problem directly. Section 14 provides that where only one registered trade union functions in an establishment the employer shall recognise it as the sole negotiating union; where more than one functions, the union with fifty-one per cent or more of the workers on the muster roll is the sole negotiating union; and where none reaches fifty-one per cent, a negotiating council is constituted from unions having not less than twenty per cent, with one representative for each twenty per cent. Recognition is valid for three years, extendable to five.

Schedule II. Unfair labour practices on the part of employers. These concern interference with the right to organise. Item 1 is to interfere with, restrain or coerce employees in the exercise of their right to organise, form, join or assist a trade union, including threatening discharge or dismissal if they join a union, threatening a lock-out or closure if a union is organised, and granting wage increases at crucial periods of union organisation to undermine the union. Other items include dominating or interfering with the formation of any union, or contributing financial support to it; establishing employer-sponsored unions; encouraging or discouraging membership by discrimination in regard to hire, tenure or conditions of employment; discharging or dismissing an employee for union activity or for giving evidence; and refusing to bargain collectively in good faith with the recognised union (Item 5).

Schedule III. Unfair labour practices on the part of trade unions.

1. To advise, actively support or instigate any strike deemed illegal under the Act.

1. To discharge or dismiss employees by way of victimisation; not in good faith but in colourable exercise of the employer's rights; by falsely implicating an employee in a criminal case on false or concocted evidence; for patently false reasons; on untrue or trumped-up allegations of absence without leave; or in utter disregard of the principles of natural justice.
2. To abolish work of a regular nature and give it to contractors as a measure of breaking a strike.
3. To transfer an employee mala fide from one place to another under the guise of following management policy.
4. To insist that employees who were on a legal strike sign a good conduct bond as a pre-condition to resuming work.
5. To show favouritism or partiality to one set of workers regardless of merit.
6. To employ employees as badlis, casuals or temporaries and continue them as such for years with the object of depriving them of the status and privileges of permanent employees.
7. To discharge or discriminate against an employee for filing charges or testifying against the employer.
8. To recruit employees during a strike which is not an illegal strike.

4. Investigation. On receipt of a complaint the Court may direct the Investigating Officer to investigate and report within a specified time. The Officer may visit the undertaking, make enquiries, and attempt to settle the complaint. He submits a report setting out the facts and the efforts made at settlement, and a copy is supplied to the parties on payment of the prescribed fee.
5. Hearing and decision. If the complaint has not been settled satisfactorily and the circumstances require further consideration, the Court proceeds to consider it and gives its decision, as far as possible within six months of receipt of the complaint.
6. Order. The decision is in writing, in the form of an order, and is final. It shall not be called in question in any civil or criminal court.
7. Representation. In complaints relating to items 2 and 6 of Schedule IV, an employee may appear only through the recognised union under Section 21, unless there is no recognised union.

For full marks, cover: the object and application of the Act; what standing orders are; the Schedule; submission of the draft; the certification procedure step by step; the fairness jurisdiction; appeal; date of operation; posting; modification under Section 10; and Section 12A on model standing orders.

Object and application. The Act requires employers in industrial establishments to define with sufficient precision the conditions of employment and to make them known to the workmen. Under Section 1(3) it applies to every industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months, and the appropriate Government may by notification apply it to establishments employing fewer.

1. Submission of draft. Section 3(1). Within six months from the date on which the Act becomes applicable to an industrial establishment, the employer shall submit to the Certifying Officer five copies of the draft standing orders proposed for adoption. The draft must, under Section 3(2), make provision for every matter set out in the Schedule applicable to the establishment, and shall be, so far as practicable, in conformity with the model standing orders. It must be accompanied by a statement giving prescribed particulars of the workmen employed, including the name of the trade union to which they belong.
2. Conditions for certification. Section 4. Standing orders shall be certifiable if (a) provision is made for every matter set out in the Schedule which is applicable to the establishment, and (b) they are otherwise in conformity with the provisions of the Act. It shall be the function of the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. This second limb was added by the amendment of 1956; before it the authority had no power to consider fairness.

5. Date of operation. Section 7. Standing orders come into operation on the expiry of thirty days from the date on which authenticated copies are sent under Section 5, or where an appeal is preferred, on the expiry of seven days from the date on which copies of the appellate order are sent.
6. Register and availability. Section 8 requires the Certifying Officer to maintain a register of certified standing orders and to supply copies on payment. Section 9 requires the text to be prominently posted by the employer in English and in the language understood by the majority of his workmen, on special boards at or near the entrance and in all departments where the workmen are employed.

Modification. Section 10.

1. Standing orders finally certified shall not be liable to modification until the expiry of six months from the date on which they, or the last modifications, came into operation, except on agreement between the employer and the workmen or a trade union or other representative body.

For full marks, cover: the text of Section 2(j); why the definition matters; the line of cases from Banerji to Safdarjung; Bangalore Water Supply and the triple test; the dominant nature test; what remains excluded; the 1982 amendment that never came into force; and the pending reference in Jai Bir Singh.

The definition. 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.

Why it matters. "Industry" is the gateway to the whole Act. There can be no "industrial dispute" under Section 2(k) unless it arises in an industry; without an industry there is no workman, no reference under Section 10, no Labour Court jurisdiction, and no protection against retrenchment or dismissal. Every employer resisting a claim therefore begins here.

The judicial expansion, stage by stage.

4. Management of Safdarjung Hospital v. Kuldip Singh Sethi (1970). A sharp retreat. A hospital run by government as a place of training and research, not as an economic activity, was held not to be an industry, and Hospital Mazdoor Sabha was doubted. The test was narrowed to activities analogous to trade or business producing material goods or material services.
5. Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978). A Bench of seven Judges overruled Safdarjung and settled the law with the triple test. Where there is (i) systematic activity, (ii) organised by cooperation between employer and employee, (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes, there is an industry. Absence of profit motive or a gainful objective is irrelevant, and so is the character of the employer, be it a private person, government or a statutory body. The nature of the activity, "with special emphasis on the employer-employee relations", is the decisive test.

What Bangalore Water Supply decided in detail.

1. Professions, clubs, educational institutions, cooperatives, research institutes, charitable projects and other kindred adventures are industries if they satisfy the triple test, whatever their motive.

What the Court did not do. It expressly invited Parliament to legislate a workable definition. Parliament responded with the Industrial Disputes (Amendment) Act, 1982, which substituted a new Section 2(j) excluding hospitals and dispensaries, educational and research institutions, khadi and village industries, charitable and social service institutions, sovereign functions, and small establishments with fewer than ten workmen. That amendment has never been brought into force, so the judicial test in Bangalore Water Supply continues to govern.

The correctness of Bangalore Water Supply was doubted in State of U.P. v. Jai Bir Singh (2005), where a five-Judge Bench referred the question to a larger Bench, observing that the triple test had swept in institutions Parliament could not have intended. That reference is still pending, so the 1978 decision remains binding law.

The wide meaning. In State Bank of India v. N. Sundara Money (1976) and conclusively in Punjab Land Development and Reclamation Corporation v. Presiding Officer, Labour Court (1990), a five-Judge Bench held that the words "for any reason whatsoever" mean what they say: retrenchment covers every termination other than the four excluded categories, and is not confined to discharge of surplus labour. So termination for loss of confidence, for unsatisfactory work short of misconduct, or for no stated reason at all, is retrenchment and attracts Section 25F.

Continuous service. Section 25B. A workman is in continuous service for one year if, during the preceding twelve calendar months, he has actually worked for not less than 240 days (or 190 days in a mine below ground). Days on which he was laid off, on leave with wages, absent due to a work-related accident, or, for a female workman, on maternity leave up to twelve weeks, are counted.

Conditions precedent. Section 25F. No workman employed in any industry who has been in continuous service for not less than one year shall be retrenched until:

1. he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or he has been paid wages in lieu of notice;

Re-employment. Section 25H. Where any workman is retrenched and the employer proposes to take persons into employment, he shall give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and they shall have preference over other persons.

Larger establishments. Chapter VB. For an industrial establishment (not seasonal or intermittent) in which not less than one hundred workmen were employed on an average per working day in the preceding twelve months, Section 25N applies. No such workman in continuous service for not less than one year shall be retrenched until he has been given three months' notice in writing indicating the reasons, or wages in lieu, and the prior permission of the appropriate Government has been obtained on an application stating the reasons. The Government must decide after enquiry and after hearing the parties; its order is final for one year and is subject to review. Compensation is fifteen days' average pay for every completed year.