BLS LLB 5 Years Sem 5 Labour Laws 2018-19 Question Paper with Solutions

Section 7A of the Industrial Disputes Act, 1947. The appropriate Government may, by notification, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule, and for performing such other functions as may be assigned to them under the Act.

A Tribunal consists of one person only, appointed by the appropriate Government, who must be, or have been, a Judge of a High Court, or have been a District Judge or Additional District Judge for not less than three years. The Government may appoint up to two assessors to advise the Tribunal.

Section 2(b): "award" means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal, and includes an arbitration award made under Section 10A.

An award must be in writing and signed by the presiding officer (Section 16), is published by the appropriate Government within thirty days of its receipt (Section 17), and becomes enforceable on the expiry of thirty days from the date of publication (Section 17A). The published award is final and shall not be called in question by any civil court (Section 17(2)).

A second difference follows: in a lay-off the workman is entitled to lay-off compensation under Section 25C at fifty per cent of basic wages and dearness allowance, whereas a lock-out carries no statutory compensation, though wages may be awarded if the lock-out is held illegal or unjustified.

Section 3 of the MRTU and PULP Act, 1971 defines "member" as a member of a union, and the definition is important because it fixes who is counted when membership is verified for recognition.

For the purposes of recognition, a person is treated as a member of a union for a month if he has paid his subscription to that union for that month, and the subscription must be paid by him personally. A person who is a member of more than one union is not counted for either, since the Act contemplates a single count of employees supporting a union; and only employees of the undertaking concerned count towards the thirty per cent required by Section 11.

Section 13(4) of the Industrial Employment (Standing Orders) Act, 1946: "No Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the second class shall try any offence under this section."

Section 13(3) adds that no prosecution for an offence under the section shall be instituted except with the previous sanction of the appropriate Government.

The offences themselves are in Section 13(1), failure to submit draft standing orders or to modify them as required, punishable with fine up to five thousand rupees and a further fine up to two hundred rupees for every day the offence continues; and Section 13(2), doing any act in contravention of the certified standing orders, punishable with fine up to one hundred rupees and a further fine up to twenty-five rupees for each day of continuance.

Conditions precedent. Section 25F. A workman in continuous service for not less than one year cannot be retrenched until (a) he is given one month's notice in writing indicating the reasons, or wages in lieu; (b) he is paid fifteen days' average pay for every completed year of continuous service or part thereof in excess of six months; and (c) notice is served on the appropriate Government. Continuous service is defined in Section 25B, and the working test is 240 days actually worked in the preceding twelve months.

Procedure. Section 25G requires last come, first go within a category unless reasons are recorded, and Section 25H gives retrenched workmen a preferential right to re-employment.

Larger establishments. Section 25N (Chapter VB, establishments with one hundred or more workmen) requires three months' notice and the prior permission of the appropriate Government.

Effect of breach. Section 25F is mandatory; retrenchment in breach of it is void, and the workman is entitled to reinstatement with continuity of service and such back wages as the court thinks fit.

2. Part B: diseases requiring continuous service of not less than six months in the specified employment. Examples: diseases caused by chrome, nitro compounds, carbon disulphide; skin cancer caused by tar, pitch, bitumen or mineral oil; hearing impairment caused by noise; occupational asthma.
3. Part C: diseases requiring service for such continuous period as the Central Government may specify. Examples: pneumoconiosis caused by sclerogenic mineral dust, such as silicosis and asbestosis; bagassosis; byssinosis; asbestos-induced cancer.

Effect. Where an employee employed in an employment specified in Schedule III contracts the disease specified against that employment, and has been in continuous service for the required period, the contracting of the disease is deemed to be an injury by accident arising out of and in the course of employment, and compensation is payable as if it were an accident, unless the contrary is proved.

Section 3(3) allows the Central or State Government to add diseases to the Schedule by notification.

Excluded is 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 a member of the Armed Forces of the Union.

Where the employee has died, the expression includes his dependants or any of them.

(a) the employee having been at the time of the accident under the influence of drink or drugs; (b) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees; or (c) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing his safety.

Occupational disease. Section 3(2) extends liability to the diseases in Schedule III, subject to the qualifying periods.

Amount. Section 4. Death: fifty per cent of monthly wages multiplied by the relevant factor or Rs. 1,20,000, whichever is more, plus not less than Rs. 5,000 for funeral expenses. Permanent total disablement: sixty per cent multiplied by the relevant factor or Rs. 1,40,000, whichever is more. Permanent partial disablement: the Schedule I percentage of the permanent total figure. Temporary disablement: a half-monthly payment of twenty-five per cent of monthly wages.

Obligations. Section 19 of the MRTU and PULP Act, 1971. A recognised union shall:

1. hold elections of its office bearers as required by its constitution or rules;
2. allow all its members to take part in such elections;
3. hold a general meeting at least once in a year for consideration of its accounts, the report of its working, and other matters; and
4. allow an auditor appointed by the State Government to audit its accounts at least once in each financial year.

Failure to observe these conditions is a ground for cancellation of recognition under Section 13(1)(iii).

Section 23 provides that up to two authorised members who appear or act on the union's behalf shall be treated as on duty and paid their salary and allowances for those days.

Section 13B excludes establishments whose workmen are governed by specified government service rules, such as the Fundamental and Supplementary Rules, the Civil Services (Classification, Control and Appeal) Rules, or the Indian Railway Establishment Code.

(a) What is nature of disablement by Rajesh Patil? Give reasons.

It is permanent partial disablement under Section 2(1)(g) of the Employees' Compensation Act, 1923.

Reasons.

1. Section 2(1)(g) defines partial disablement, where the disablement is of a permanent nature, as one which reduces the earning capacity of the employee in every employment which he was capable of undertaking at the time of the accident.

1. Where the injury is specified in Part II of Schedule I, the compensation is such percentage of the compensation which would have been payable for permanent total disablement as is specified in the Schedule as being the percentage of the loss of earning capacity caused by that injury.
2. Where the injury is not specified in Schedule I, it is such percentage of the compensation payable for permanent total disablement as is proportionate to the loss of earning capacity, as assessed by a qualified medical practitioner, permanently caused by the injury.
3. The base figure, that for permanent total disablement under Section 4(1)(b), is sixty per cent of the monthly wages multiplied by the relevant factor taken from Schedule IV against the employee's age, or Rs. 1,40,000, whichever is more.
4. Where more than one injury is caused by the same accident, the amounts are aggregated, but not so as to exceed what would have been payable for permanent total disablement.
5. Monthly wages are computed under Section 5 and are subject to the notified ceiling of Rs. 15,000 per month.

(a) To which authority the application for grant of recognition has to be made?

To the Industrial Court, under Section 11(1) of the MRTU and PULP Act, 1971. Any union which has, for the whole of the period of six calendar months immediately preceding the calendar month in which it applies, a membership of not less than thirty per cent of the total number of employees employed in an undertaking, may apply in the prescribed form to the Industrial Court to be registered as a recognised union for that undertaking.

The application must be disposed of as far as possible within three months where the undertaking is in one local area, and within four months in any other case.

1. to meet and discuss with the employer, or a person appointed by him, the grievances of any individual member relating to his discharge, removal, retrenchment, termination of service or suspension; and
2. to appear on behalf of any of its members employed in the undertaking in any domestic or departmental inquiry held by the employer.

Exercising these rights carries corresponding obligations: the union must confine itself to the individual grievances listed, must act through duly authorised persons in the manner and subject to the conditions prescribed by the State Government's rules, and must not engage in any of the unfair labour practices in Schedule III, in particular advising or instigating an illegal strike, coercing employees, or resorting to go slow, squatting or gherao.

The appellate authority is the authority appointed by the appropriate Government by notification under Section 2(a). On appeal it shall, by order in writing, confirm the standing orders either in the form certified by the Certifying Officer or after amending them by making such modifications or additions as it thinks necessary to render them certifiable. Within seven days of its order it sends copies to the employer, to the trade union or other prescribed representatives of the workmen, and to the Certifying Officer, who shall thereupon amend the register and send authenticated copies to the parties.

Under Section 11, both the Certifying Officer and the appellate authority have the powers of a civil court to receive evidence, administer oaths, enforce the attendance of witnesses and compel the discovery and production of documents.

(b) Within how many days that remedy should be availed by the employer?

Within thirty days from the date on which copies of the order of the Certifying Officer are sent under Section 5(3).

Note that the period runs from the date of despatch of the authenticated copies, not from the date of receipt, and the section admits of no general power of condonation, so the appeal must be filed in time.

1. D.N. Banerji v. P.R. Mukherjee (1953). The dismissal of employees of the Budge Budge Municipality was held to be an industrial dispute. The Court held that "undertaking" is wide enough to cover activities carried on without any profit motive, and that municipal conservancy and water supply are industries. The judiciary thus removed profit as a test at the very first opportunity.
2. State of Bombay v. Hospital Mazdoor Sabha (1960). A group of government hospitals was held to be an industry. The Court laid down a working test: an activity is an industry if it is analogous to trade or business, is organised as trade or business is organised, and involves cooperation between employer and employee in the production of material services. Only the regal or sovereign functions of the State stood outside.
3. Madras Gymkhana Club v. Workmen (1968) and Cricket Club of India v. Bombay Labour Union (1969). A members' club was held not to be an industry, being a self-serving institution rendering services to its own members, with no production of goods or services for others.
4. University of Delhi v. Ram Nath (1963). Education was held not to be an industry, the Court treating teaching as a noble vocation rather than a trade.

2. Dominant nature test. Where an undertaking carries on several activities, the predominant nature of the whole decides, and integrated departments take the character of the main activity.
3. Sovereign functions strictly understood are excluded, meaning the inalienable functions of the State; but welfare and economic activities of government are industries.
4. Also outside: institutions rendering free charitable service by people who serve without expectation of remuneration; and relationships in which the personal skill and confidence of an individual professional dominates.

What the judiciary asked Parliament to do. The Court expressly invited legislation. Parliament amended Section 2(j) by the Industrial Disputes (Amendment) Act, 1982, excluding hospitals and dispensaries, educational and research institutions, khadi and village industries, charitable and social service institutions, sovereign functions and units with fewer than ten workmen. That amendment has never been brought into force. The judicial test therefore continues to govern to this day.

For full marks, cover: Section 3(1) and its four ingredients; the two phrases separately; the meaning of "accident" and "personal injury"; notional extension with the leading cases; the increased-risk theory; occupational disease; and the proviso.

The provision. Section 3(1) of the Employees' Compensation Act, 1923: "If personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation."

Four ingredients must be proved: (i) personal injury; (ii) caused by accident; (iii) arising out of the employment; and (iv) in the course of the employment. Liability is strict: no negligence need be shown.

"Accident" means an unlooked-for mishap or untoward event which is not expected or designed, viewed from the point of view of the employee who suffers it. So an assault by a fellow worker, a snake bite, a fall, and a heart attack brought on by strain can each be an accident. An injury deliberately self-inflicted is not.

Notional extension. Employment is not limited to the hours and the four walls of the workplace. In Saurashtra Salt Manufacturing Co. v. Bai Valu Raja (1958) the Supreme Court accepted that employment may be notionally extended in time and place, so that an accident on the way to or from work may still be in the course of employment where it occurs in reasonable proximity to the workplace; but it held on the facts that workers drowned crossing a public creek were outside the extension, because they were exposed to a risk shared with the general public.

In General Manager, B.E.S.T. Undertaking v. Mrs. Agnes (1964) a driver was killed travelling home in the undertaking's own bus, which under his terms of service he was entitled to use. The Court held that the employment extended to that journey, because the transport was provided by the employer as part of the contract.

The theory of increased risk and unexplained accidents. In Mackinnon Mackenzie and Co. v. Ibrahim Mahommad Issak (1970) a seaman disappeared at sea. The Supreme Court held that where the cause of the accident is unknown, the claimant need only show circumstances from which a reasonable inference can be drawn that the accident arose out of the employment. The onus is discharged by probability, not certainty.

For full marks, cover: the definition and the object of the Act; the Schedule; the application threshold; then certification step by step with every time limit; the fairness jurisdiction and its date; appeal; date of operation; posting; and Section 12A.

What a standing order is. Section 2(g) of the Industrial Employment (Standing Orders) Act, 1946: "standing orders" means rules relating to the matters set out in the Schedule to the Act.

The object, stated in the preamble, is to require employers in industrial establishments formally to define conditions of employment under them, and to make them known to workmen. Before the Act, terms of service were largely unwritten and alterable at the employer's pleasure.

1. Submission. Section 3(1). Within six months of the Act becoming applicable, the employer submits to the Certifying Officer five copies of the draft standing orders. Section 3(2): provision must be made for every matter in the Schedule applicable to the establishment, and the draft must be, so far as practicable, in conformity with the model standing orders. Section 3(3): the draft is accompanied by a statement of 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 provision is made for every matter in the Schedule applicable to the establishment and they are otherwise in conformity with the Act; and it shall be the function of the Certifying Officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions. The second limb was inserted by the amendment of 1956.
3. Notice to workmen. Section 5(1). The Certifying Officer forwards a copy of the draft to the trade union, or where there is none, to the workmen in the prescribed manner, with a notice requiring objections within fifteen days of receipt.

7. Date of operation. Section 7. On the expiry of thirty days from the date copies are sent under Section 5(3), or where an appeal is preferred, on the expiry of seven days from the date copies of the appellate order are sent.
8. Posting. Section 9. The employer must prominently post the text 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.

Meanwhile. Section 12A: from the date the Act applies until the standing orders are certified, the model standing orders are deemed to be adopted.

Powers and enforcement. Section 11 gives the Certifying Officer and the appellate authority civil court powers. Section 13 creates offences with the requirement of previous sanction of the appropriate Government and trial by no court inferior to a Metropolitan Magistrate or Judicial Magistrate of the second class. Section 13A refers questions of application or interpretation of certified standing orders to the Labour Court.

Schedule II, on the part of employers, deals with interference with the right to organise: threatening discharge or dismissal if employees join a union; threatening a lock-out or closure if a union is organised; granting wage increases at crucial periods of union organisation to undermine the union; dominating or interfering with the formation of any union or contributing financial support to it; establishing employer-sponsored unions; discriminating in regard to hire, tenure or conditions of employment to encourage or discourage membership; discharging or dismissing for union activity or for giving evidence; and refusing to bargain collectively in good faith with the recognised union.

Schedule III, on the part of trade unions: advising, actively supporting or instigating an illegal strike; coercing employees in the exercise of the right to self-organisation, including picketing so as physically to debar non-strikers from entering the workplace, and force, violence or intimidation against non-strikers or managerial staff; a recognised union refusing to bargain collectively in good faith with the employer; coercive activities against certification of a bargaining representative; wilful go slow, squatting on the premises after working hours or gherao of managerial or other staff; and demonstrations at the residences of employers or managerial staff.

3. Where: complaints about Item 1 of Schedule IV (discharge and dismissal) go to the Labour Court under Section 7; all other unfair labour practices go to the Industrial Court under Section 5.
4. Investigation: the Court may direct the Investigating Officer to investigate and report within a specified time. He may visit the undertaking, make enquiries, and try to settle the complaint, and must report the facts and the efforts made; copies are supplied to the parties on payment of the prescribed fee.
5. Consideration: if the complaint is not settled satisfactorily and the circumstances require, the Court proceeds to consider it and give its decision, as far as possible within six months of receipt.
6. Order: in writing, and final; it shall not be called in question in any civil or criminal court. It is published as prescribed.
7. Representation: for items 2 and 6 of Schedule IV, an employee may appear only through the recognised union under Section 21, unless there is none.

For full marks, cover: both definitions; the lay-off provisions from Sections 25A to 25E; the retrenchment provisions in Sections 25F to 25H and 25N; and then a systematic comparison.

Lay-off. Definition, Section 2(kkk): the failure, refusal or inability of an employer, on account of shortage of coal, power or raw materials, the accumulation of stocks, the break-down of machinery, natural calamity or any other connected reason, to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched. A workman who presents himself at the appointed time and is not given employment within two hours is deemed to have been laid off.

Provisions.

1. Section 25A limits Sections 25C to 25E to establishments employing fifty or more workmen on an average per working day in the preceding calendar month, excluding seasonal establishments and those where work is performed only intermittently.

4. Section 25E: no compensation is payable if the workman refuses to accept alternative employment in the same or another establishment of the same employer within five miles, at the same wages, requiring no special skill or previous experience; if he does not present himself at the establishment at the appointed time at least once a day; or if the lay-off is due to a strike or slowing down of production on the part of workmen in another part of the establishment.
5. Section 25M (Chapter VB, one hundred or more workmen) prohibits lay-off without the prior permission of the appropriate Government, except for shortage of power or natural calamity, and in a mine also for reasons of fire, flood, excess of inflammable gas or explosion.

Retrenchment. Definition, Section 2(oo): the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, excluding voluntary retirement, superannuation under the contract, non-renewal of a contract on expiry or of a fixed-term contract per its terms, and termination on the ground of continued ill-health.

Provisions.

For full marks, cover: definition and origin; the ILO position; the Indian statutory framework; the levels and forms; advantages; disadvantages; and the Indian problem of the bargaining agent with the Industrial Relations Code answer.

Meaning. Collective bargaining is the process by which an employer or a group of employers and one or more representative organisations of workers negotiate the terms and conditions of employment, and arrive at an agreement binding both sides for a stated period. The expression was coined by Sidney and Beatrice Webb in Industrial Democracy (1897), who described it as the method by which workers, acting collectively, replace the individual bargain that leaves each worker at the employer's mercy.

It is a bilateral process. The parties themselves make the terms, unlike adjudication, where a third party imposes them, and unlike conciliation, where a third party only assists.

3. Section 2(p) defines settlement; Section 12 requires the conciliation officer to promote a settlement; Section 36 governs representation.
4. MRTU and PULP Act, 1971: creates a recognised union with exclusive rights under Sections 20 and 21, and makes an employer's refusal to bargain in good faith with the recognised union an unfair labour practice under Item 5 of Schedule II, and a recognised union's refusal to bargain in good faith an unfair labour practice under Item 3 of Schedule III.

Levels and forms. Bargaining may be at plant, industry or national level. In form it may be distributive (a contest over a fixed sum, typically wages), integrative (joint problem-solving, common in periods of difficulty), productivity bargaining (benefits tied to measurable output), or concession bargaining (workers accept reductions to preserve employment).

Advantages.

1. Terms are made by the parties themselves, so they are better understood and better observed than an imposed award.
2. It is speedy, flexible and inexpensive compared with litigation, and can be reopened as conditions change.

4. It can be inflationary in strong industries and does nothing for the vast unorganised sector, so it can widen inequality between workers.
5. Agreements may be reached at the expense of those not at the table, notably contract labour, casual workers and future entrants.
6. Enforcement is uneven: a settlement outside conciliation binds only the signatories, and failure to implement an agreement is remediable in Maharashtra only through Item 9 of Schedule IV.
7. It is not self-executing; without a legal duty to bargain, a determined employer may simply refuse to meet the union.