BLS LLB 5 Years Sem 5 Labour Laws 2019-20 Question Paper with Solutions

Section 2(kkk): "lay-off" means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials, or the accumulation of stocks, or the break-down of machinery, or natural calamity, or for 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.

The Explanation adds a deeming rule: where a workman whose name is on the muster rolls presents himself for work at the appointed time and is not given employment within two hours, he is deemed to have been laid off for that day.

Section 2(1)(g) of the Employees' Compensation Act, 1923. "Partial disablement" means, where the disablement is of a permanent nature, such disablement as reduces the earning capacity of the employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement.

The proviso adds that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement, and the Schedule sets against each injury the percentage of loss of earning capacity it is taken to cause.

Examples from Part II: loss of a thumb, twenty-five per cent; loss of one eye without complications, the other being normal, forty per cent; amputation of a leg below the knee.

Two powers of the Certifying Officer are:

1. The power to modify the draft standing orders. Section 5(2): after giving the employer and the trade union or the workmen's representatives an opportunity of being heard, he shall decide whether or not any modification of or addition to the draft submitted by the employer is necessary to render the draft standing orders certifiable, and shall make an order in writing accordingly.
2. The power to adjudicate upon fairness or reasonableness. Section 4: 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.

A third is the power under Section 11 to exercise the powers of a civil court for the purpose of receiving evidence, administering oaths, enforcing the attendance of witnesses, and compelling the discovery and production of documents.

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

A Labour Court consists of one person only, the presiding officer, who must be or have been a Judge of a High Court, or a District Judge or Additional District Judge for not less than three years, or have held a judicial office in India for not less than seven years, or have been the presiding officer of a Labour Court constituted under a State Act for not less than five years.

Second Schedule matters include: the propriety or legality of an order passed by an employer under the standing orders; the application and interpretation of standing orders; discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed; withdrawal of any customary concession or privilege; illegality or otherwise of a strike or lock-out; and all matters other than those specified in the Third Schedule.

Section 8: the State Government may, by notification, appoint such number of Investigating Officers for any area as it considers necessary, to assist the Industrial Court and Labour Courts in the discharge of their duties.

Section 9: the Investigating Officer is under the control of the Industrial Court and exercises the powers and performs the duties imposed on him by it. His duties are to assist the Industrial Court in the verification of membership of unions and the Industrial and Labour Courts in investigating complaints relating to unfair labour practices, and to report the existence of any unfair labour practice in any industry or undertaking with the names and addresses of the persons engaged in it.

Chapter II of the MRTU and PULP Act, 1971 creates three authorities.

1. Industrial Court. Section 4. The State Government constitutes an Industrial Court consisting of such number of members as it thinks fit, one of whom is appointed President. A member must be qualified to be a Judge of a High Court, or must have held a judicial office in India for not less than ten years, or must have been an advocate for not less than ten years.

Duties. Section 5. It shall be the duty of the Industrial Court:

1. to decide complaints relating to unfair labour practices except those falling in item 1 of Schedule IV;
2. to decide applications for recognition of unions and for cancellation and re-recognition under Chapter III;
3. to decide references made to it by the State Government or a Labour Court;
4. to exercise superintendence over Labour Courts (Section 44) and to transfer proceedings (Section 45); and
5. to make regulations (Section 33), and to declare law binding on Labour Courts (Section 35).

Section 20(1). Such officers, members of the office staff and members of a recognised union as are authorised under the rules have the right, in the prescribed manner and subject to prescribed conditions:

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 in which its members are employed, and to affix notices on it;
3. for the purpose of the prevention or settlement of an industrial dispute, to hold discussions on the premises with the employees concerned who are members of the union, so as not to interfere with the due working of the undertaking; to meet and discuss with the employer, or a person appointed by him, the grievances of employees; and to inspect, if necessary, any place in the undertaking where an employee is employed; and
4. to appear on behalf of any employee or employees in any domestic or departmental inquiry held by the employer.

The rule. Section 3(1): 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. Liability is strict, arising without proof of negligence.

The exceptions, in the proviso. No compensation is payable:

1. in respect of an injury which does not result in total or partial disablement for a period exceeding three days;
2. in respect of an injury, not resulting in death or permanent total disablement, caused by an accident directly attributable to:

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

No contracting out. Section 17: any agreement by which an employee relinquishes his right to compensation is null and void.

3. Adjudicating on fairness. Section 4: it is his function, and that of the appellate authority, to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. This limb was added in 1956.
4. Modification. Section 10: he decides applications to modify certified standing orders, subject to the six-month bar and applying the same procedure as for original certification.
5. Register. Section 8: he maintains a register of certified standing orders and furnishes copies on payment of the prescribed fee.
6. Powers. Section 11: he has the powers of a civil court to receive evidence, administer oaths, enforce the attendance of witnesses, and compel the discovery and production of documents, and is deemed a civil court within Sections 345 and 346 of the Code of Criminal Procedure.

Appeal. Section 6: from his order an appeal lies to the appellate authority within thirty days, whose decision is final.

there is an industry.

Further propositions.

1. Absence of profit motive or a gainful objective is irrelevant, and so is the character of the employer, whether private, government or statutory.
2. Professions, clubs, educational institutions, cooperatives, research institutes, charitable projects and kindred adventures are industries if the triple test is met.
3. Dominant nature test: where a complex of activities is carried on, the predominant nature of the undertaking decides, and integrated departments take the character of the whole.
4. Sovereign functions strictly understood are excluded, but welfare or economic activities of government are not.
5. Excluded also are bodies rendering free charitable service by persons serving without expectation of remuneration, and relationships where the personal skill or confidence of a professional dominates.

Strike. Section 2(q): "strike" means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment.

Its essentials are: persons employed in an industry; cessation of work or refusal to work; and acting in combination or under a common understanding. Forms include the pen-down or tool-down strike, the sympathetic strike, the token strike and the hunger strike; a go-slow is not a strike but is misconduct, and in Maharashtra a wilful go-slow is an unfair labour practice under Item 5 of Schedule III of the MRTU and PULP Act.

Lock-out. Section 2(l): "lock-out" means the temporary closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him.

Prohibitions.

3. Section 24 declares a strike or lock-out illegal if commenced in contravention of Sections 22 or 23, or continued in contravention of an order under Section 10(3) or 10A(4A). A lock-out in consequence of an illegal strike, or a strike in consequence of an illegal lock-out, is not illegal.
4. Section 25 prohibits financial aid to illegal strikes and lock-outs. Sections 26 to 28 prescribe penalties.

(a) Can ABC be punished under M.R.T.U & P.U.L.P Act, 1971?

Yes. Section 49 of the MRTU and PULP Act, 1971 makes it an offence for any person who wilfully:

1. prevents or obstructs officers, members of the office staff, or members of any union from exercising any of their rights conferred by the Act;
2. refuses entry to an Investigating Officer to any place which he is entitled to enter;
3. fails to produce any document which he is required to produce; or
4. fails to comply with any requisition or order issued to him under the Act or the rules.

Procedure. Under Section 7 it is the duty of the Labour Court to try offences punishable under the Act, and Sections 38 to 41 govern the Labour Court's powers in relation to offences, including under Section 41 the power, where it considers the punishment inadequate, to record its opinion and forward the case to the Judicial Magistrate who may pass a higher sentence.

2. The injury was in the course of employment. He was on duty, during duty hours, and was doing the very thing his employer had directed him to do. The employer's own order is what placed him where he was and put him to that work.
3. It arose out of the employment. The causal connection is supplied by the employer's direction. An employer cannot rely on his own order to say that the workman had stepped outside the sphere of his employment: obedience to an express instruction given by the employer during working hours is itself an incident of the employment. The risk to which he was exposed was a risk to which his employer's command exposed him.
4. None of the other exceptions applies. There is no suggestion of drink or drugs, of wilful disobedience of a safety rule, or of removal of a safety device, and in any event those exceptions require wilfulness.

He is therefore entitled to compensation for temporary disablement under Section 4(1)(d), that is a half-monthly payment of twenty-five per cent of his monthly wages, payable on the sixteenth day from the date of disablement and thereafter half-monthly during the disablement.

Procedurally, Section 10 requires that notice of the accident be given as soon as practicable and that the claim be preferred within two years of the occurrence of the accident, or in the case of a disease, within two years of the date of its contraction, though want of or defect in notice is excused where the employer had knowledge or the failure was for sufficient cause. The claim is made to the Commissioner under Section 19 and Section 22, and Section 17 makes void any agreement by which the employee relinquishes his right.

2. There is no "termination by the employer" at all within the opening words of Section 2(oo). Nothing is done by the employer; the season closes and the engagement, by its own terms, is over.
3. Continuous service is unlikely to be made out. Even if the exclusion were doubted, Section 25F protects only a workman in continuous service for not less than one year, and by Section 25B the working test is 240 days actually worked in the preceding twelve months. A crushing season typically runs for four to six months, so seasonal workmen will usually fall short.
4. Seasonal establishments are treated separately elsewhere in the Act. Section 25A excludes an industrial establishment of a seasonal character, or one in which work is performed only intermittently, from the lay-off provisions in Sections 25C to 25E, and Section 25K and Section 25L similarly exclude seasonal establishments from Chapter VB. The Act plainly contemplates that seasonal working is not to be treated as a series of retrenchments each year.

1. one month's notice in writing indicating the reasons for retrenchment, and expiry of the notice period, or wages in lieu of notice;
2. payment at the time of retrenchment of compensation equal to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
3. notice in the prescribed manner served on the appropriate Government or the specified authority.

To these are added Section 25G, requiring last come, first go within a category unless reasons are recorded, and Section 25H, giving retrenched workmen a preferential right of re-employment. In an establishment covered by Chapter VB (one hundred or more workmen), Section 25N requires three months' notice and the prior permission of the appropriate Government.

The four exclusions from the definition are voluntary retirement; superannuation under a stipulation in the contract; non-renewal of a contract on its expiry or under a stipulation in it; and termination on the ground of continued ill-health.

For full marks, cover: meaning and origin; the characteristics that define it; the ILO position; the Indian statutory framework; the levels and types; the process stage by stage; the pre-conditions; the obstacles in India; and the Industrial Relations Code answer.

Meaning. Collective bargaining is the process by which an employer or association of employers and one or more representative organisations of workers negotiate with a view to reaching an agreement on wages and other terms and conditions of employment, which then binds both sides for a stated period. The expression was coined by Sidney and Beatrice Webb in Industrial Democracy (1897).

Characteristics.

1. It is a collective process: the workmen negotiate through their organisation, replacing the individual bargain in which each worker faces the employer alone.
2. It is bilateral, the parties themselves making the terms, unlike adjudication, where an award is imposed, and conciliation, where a third party only assists.
3. It is continuous, not a single event: negotiation, administration of the agreement, and interpretation of it go on throughout its life.

2. The Trade Unions Act, 1926 gives registered unions immunity from criminal conspiracy in furtherance of a trade dispute and immunity from civil suit in respect of acts done in contemplation or furtherance of a trade dispute.
3. The MRTU and PULP Act, 1971 supplies what the central law lacked, a statutory bargaining agent: a recognised union with exclusive rights under Sections 20 and 21, an employer's refusal to bargain with it being an unfair labour practice under Item 5 of Schedule II, and the recognised union's refusal to bargain in good faith being one under Item 3 of Schedule III.

Levels and types. Bargaining may be at plant, industry or national level, and in character distributive (a contest over a fixed sum), integrative (joint problem-solving), productivity bargaining, or concession bargaining in periods of difficulty.

The process. In practice it moves through identifiable stages: preparation (data on wages, costs and comparable settlements); presentation of the charter of demands; negotiation across the table; bargaining and concession; agreement, reduced to writing and signed; ratification by the membership; and implementation and administration, including a grievance procedure for disputes about what was agreed.

The Act is of 1971, not 1947; the paper misprints the year. It is the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (Maharashtra Act I of 1972).

For full marks, cover: the application of Chapter III; who may apply and on what qualification; the procedure and the competing-union rule; the two mandatory refusals; the obligations that must be kept; cancellation and suspension of rights; recognition of another union; re-recognition; and what recognition is worth.

Application. Section 10. 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 not less than sixty days' notice, apply the Chapter to undertakings with fewer employees. If the number falls below fifty continuously for one year, the Chapter ceases to apply.

3. Section 12(3): if the Court concludes that another union has the largest membership in the undertaking, and that union has notified its claim and satisfies Sections 11 and 19, recognition is granted to that union instead. By the Explanation it is deemed to have applied in the same calendar month.
4. Section 12(4): there shall not at any time be more than one recognised union in respect of the same undertaking.
5. Section 12(5): the Court shall not recognise a union if satisfied that the application is not bona fide in the interest of the employees but is made in the interest of the employer, to their prejudice.
6. Section 12(6): the Court shall not recognise a union if, within six months immediately preceding the date of the application, it has instigated, aided or assisted the commencement or continuation of a strike deemed illegal under the Act.

Obligations. Section 19. A recognised union must hold elections of office bearers as required by its constitution, allow all members to take part, hold an annual general meeting to consider its accounts and the report of its working, and allow an auditor appointed by the State Government to audit its accounts at least once each financial year.

The Court also has power to suspend the rights of a recognised union under Sections 20 and 21 for a specified period instead of cancelling recognition outright. Section 16 provides that cancellation does not relieve the union or its members of any liability incurred before it, and Section 17 requires publication of the order.

Recognition of another union. Section 14. Where a union applies to be registered as the recognised union in place of an existing recognised union, on the ground that it has the largest membership, the Industrial Court shall, if a period of two years has elapsed since the registration of the recognised union, call upon that union to show cause within thirty days. After notice on the notice board and such enquiry as it thinks fit, if the applicant complies with Section 11 and its membership was, during the whole of the six calendar months preceding, larger than that of the recognised union, the Court recognises it in its place. No application will be entertained unless one year has elapsed since the disposal of that union's previous application.

Re-recognition. Section 15. A union whose recognition has been cancelled may apply for re-recognition, and it shall not be entitled to apply until the expiry of the period prescribed by that section, which requires that the ground of cancellation has ceased to exist and that the union again satisfies the requirements of Section 11.

For full marks, cover: Section 3(1) and its ingredients; the two phrases separately; "accident" and "personal injury"; notional extension with contrasting cases; the risk theories; occupational disease under Section 3(2); 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." The liability is without fault.

Four ingredients: personal injury; caused by accident; arising out of the employment; and in the course of the employment. The two phrases are joined by "and", so both must be established.

"Accident" means an unlooked-for mishap or untoward event which is not expected or designed, looked at from the point of view of the workman who suffers it. It covers assault by a fellow employee, a fall, a snake bite, and a heart attack brought on by unusual strain.

Notional extension. In Saurashtra Salt Manufacturing Co. v. Bai Valu Raja (1958) the Supreme Court held that employment may be notionally extended in both time and place, so that an accident occurring near the workplace while going to or returning from it may be in the course of employment; but on the facts, workmen drowned crossing a public creek were outside, because the risk was shared with the public and the area was not under the employer's control.

In General Manager, B.E.S.T. Undertaking v. Mrs. Agnes (1964) a bus driver was killed while travelling home in the undertaking's own bus, which he was entitled to use as a term of service. The Court held the employment extended to that journey.

In Trustees, Port of Bombay v. Yamunabai (1952) a workman injured by a bomb thrown by a stranger in the workplace was held to be covered, the employment having brought him to the place where the risk operated.

Unexplained accidents. In Mackinnon Mackenzie and Co. v. Ibrahim Mahommad Issak (1970) a seaman disappeared at sea and the cause was unknown. The Supreme Court held that the claimant need only establish circumstances from which a reasonable inference can be drawn that the accident arose out of the employment; the standard is probability, not certainty.

For full marks, cover: the definition of model standing orders and their two functions; Section 12A; then the certification procedure with every time limit; the fairness jurisdiction; appeal; date of operation; posting; and enforcement.

Model standing orders. Section 2(f) of the Industrial Employment (Standing Orders) Act, 1946: "model standing orders" means the standing orders prescribed by the appropriate Government under the Act, framed by rules made under Section 15.

They do two things.

1. A template. Section 3(2): the employer's draft standing orders shall be, so far as is practicable, in conformity with the model standing orders.
2. A default. Section 12A: from the date on which the Act becomes applicable to an industrial establishment until the standing orders as finally certified come into operation, the model standing orders shall be deemed to be adopted in that establishment.

2. Conditions. Section 4. Standing orders shall be certifiable if provision is made for every applicable Schedule matter and they are otherwise in conformity with the Act; and it is the function of the Certifying Officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions, a power added by the 1956 amendment.
3. Notice and objections. 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.
4. Hearing and order. Section 5(2). After giving the employer and the union or the workmen's representatives an opportunity of being heard, he decides whether modification or addition is necessary to render the draft certifiable, and makes an order in writing.
5. Certification and copies. Section 5(3). He certifies the standing orders and, within seven days of his order, sends authenticated copies to the employer and to the union or the prescribed representatives of the workmen.

Powers and enforcement. Section 11 confers civil court powers on the Certifying Officer and the appellate authority. Section 13 creates offences, prosecution requiring the 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 gives the Labour Court jurisdiction over the application or interpretation of certified standing orders. Section 10 governs modification, barred for six months except by agreement.

2. Baroda Borough Municipality v. Its Workmen (1957) applied the same reasoning to municipal electricity supply.
3. State of Bombay v. Hospital Mazdoor Sabha (1960). A group of government hospitals was held to be an industry. The working test laid down was that the activity must be analogous to trade or business, organised as such, and involve cooperation between employer and employee in the production of material services. Only regal or sovereign functions were excluded. Contribution: the character of the employer is not a test.
4. University of Delhi v. Ram Nath (1963). Education was held not to be an industry; teaching was treated as a noble vocation, not a trade. Contribution: a narrowing, later overruled.
5. Secretary, Madras Gymkhana Club v. Workmen (1968) and Cricket Club of India v. Bombay Labour Union (1969). Members' clubs were held not to be industries, being self-serving bodies rendering services to their own members.

Exclusions after Bangalore Water Supply. Sovereign functions strictly understood, that is the inalienable functions of the State such as defence, the administration of justice and law and order; institutions rendering free charitable service where those who serve do so without expectation of remuneration; and relationships in which the personal skill or confidence of a professional dominates, such as a lone practitioner without an organised establishment.

Legislative response. Parliament substituted a new 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 employing fewer than ten workmen. That amendment has never been brought into force.

The pending doubt. In State of U.P. v. Jai Bir Singh (2005), a five-Judge Bench referred the correctness of Bangalore Water Supply to a larger Bench. The reference is still pending, so the 1978 decision continues to bind.

2. Conciliation Officers. Section 4. Appointed by the appropriate Government by notification, for a specified area or for specified industries, permanently or for a limited period. Duties, Section 12: where a dispute exists or is apprehended, the officer shall hold conciliation proceedings; in a public utility service where a strike notice has been given, conciliation is mandatory. He must investigate the dispute and do all such things as he thinks fit to induce the parties to come to a fair and amicable settlement. If a settlement is reached, he sends a report with the memorandum of settlement; if not, he sends a failure report setting out the steps taken and the reasons why a settlement could not be reached, within fourteen days. Powers, Section 11: entry and inspection, and the powers of a civil court in respect of enforcing attendance, examining on oath and compelling production of documents.

3. Board of Conciliation. Section 5. Constituted by the appropriate Government as occasion arises, with an independent chairman and two or four members representing the parties in equal numbers. Duty, Section 13: to bring about a settlement, and to send a report within two months of the reference. Its report, unlike the conciliation officer's, is published.

6. Industrial Tribunal. Section 7A. Constituted by the appropriate Government for matters in the Second or Third Schedule. One person, being or having been a High Court Judge, or a District or Additional District Judge for three years. Up to two assessors may advise. Third Schedule matters: wages including the period and mode of payment; compensatory and other allowances; hours of work and rest intervals; leave with wages and holidays; bonus, profit sharing, provident fund and gratuity; shift working; classification by grades; rules of discipline; rationalisation; retrenchment and closure; and any other matter prescribed.

7. National Industrial Tribunal. Section 7B. Constituted by the Central Government for disputes involving questions of national importance or affecting establishments in more than one State. One person, who is or has been a High Court Judge; up to two assessors.

Awards. Section 15 requires the authority to hold its proceedings expeditiously and submit its award; Section 17 requires publication within thirty days; Section 17A makes the award enforceable on the expiry of thirty days from publication; Section 18 fixes who is bound; Section 19 fixes the period of operation, ordinarily one year.

Under the new law. Chapter VII of the Industrial Relations Code, 2020 simplifies the structure: Section 43 conciliation officers, Section 44 the Industrial Tribunal now consisting of two members, one Judicial and one Administrative, and Section 46 the National Industrial Tribunal. Boards of Conciliation, Courts of Inquiry and Labour Courts as separate bodies disappear, and their work is taken over by the Tribunal, which also gains a Grievance Redressal Committee below it under Section 4.