BLS LLB 5 Years Sem 5 Labour Laws 2022-23 Question Paper with Solutions

The long title describes it as an Act "to make provision for the investigation and settlement of industrial disputes, and for certain other purposes". Its objects are:

1. to secure industrial peace by providing machinery for the investigation and settlement of disputes, through Works Committees, conciliation officers, Boards of Conciliation, Courts of Inquiry, Labour Courts, Tribunals and National Tribunals;
2. to protect workmen against unfair treatment, by regulating lay-off, retrenchment, transfer and closure, and by giving relief against wrongful dismissal;
3. to promote collective bargaining, by making settlements binding under Section 18; and
4. to prevent illegal strikes and lock-outs, and to provide for compensation and for the conditions of service to remain unchanged while a dispute is pending.

The Industrial Court, under Sections 11 and 12 of the MRTU and PULP Act, 1971.

A union which has, for the whole of the six calendar months immediately preceding the month of application, a membership of not less than thirty per cent of the total number of employees in the undertaking, applies in the prescribed form to the Industrial Court under Section 11. Under Section 12 the Court displays notice on the undertaking's notice board, hears objections, holds such enquiry as it thinks fit, and if satisfied that Sections 11 and 19 are complied with, grants recognition and issues a certificate.

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 serve two purposes:

1. under Section 3(2), the employer's draft must be, so far as is practicable, in conformity with them; and
2. under Section 12A, from the date the Act becomes applicable to an establishment until its own standing orders are certified, the model standing orders are deemed to be adopted in that establishment.

Section 9 of the MRTU and PULP Act, 1971. The Investigating Officer is under the control of the Industrial Court. Two of his functions are:

1. to assist the Industrial Court in matters of verification of membership of unions, and to assist the Industrial and Labour Courts in investigating into complaints relating to unfair labour practices; and
2. to report to the Industrial Court or the Labour Court the existence of any unfair labour practice in any industry or undertaking, with the names and addresses of the persons said to be engaged in it and any other information he thinks fit.

Under Section 28(4), when investigating a complaint he may visit the undertaking, make such enquiries as he considers necessary, and make efforts to promote a settlement.

Section 2(n) of the Industrial Disputes Act, 1947. "Public utility service" means:

1. any railway service or any transport service for the carriage of passengers or goods by air;
2. any service in, or in connection with the working of, any major port or dock;
3. any section of an industrial establishment on the working of which the safety of the establishment or the workmen employed therein depends;
4. any postal, telegraph or telephone service;
5. any industry which supplies power, light or water to the public;
6. any system of public conservancy or sanitation;
7. any industry specified in the First Schedule which the appropriate Government may, by notification, declare to be a public utility service for a period not exceeding six months at a time, where public emergency or public interest so requires.

Under the MRTU and PULP Act, 1971 the answer depends on which unfair labour practice is alleged.

1. For the practices in items 2 and 6 of Schedule IV, Section 21 provides that no employee shall be allowed to appear or act or be represented except through the recognised union, with a proviso that where there is no recognised union, the employee may appear or act himself.
2. For all other unfair labour practices, including Item 1 of Schedule IV (discharge and dismissal by victimisation), the employee may appear himself, or through a union. Under Section 22, an unrecognised union has the right to appear on behalf of any of its members in a domestic or departmental inquiry and to take up his discharge, removal, retrenchment, termination or suspension with the employer.
3. Under Section 28(1) a complaint may be filed by any union, any employee, any employer or any Investigating Officer, so the union itself may be the complainant.

The problem the provision solves. Section 3(1) of the Employees' Compensation Act, 1923 requires an accident, that is an identifiable untoward event. An occupational disease develops gradually, over months or years of exposure, and could never satisfy that requirement. Section 3(2) therefore creates a deeming provision.

Section 3(2). Where an employee employed in any employment specified in Schedule III contracts a disease specified against that employment as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident arising out of and in the course of the employment, unless the contrary is proved, and compensation is payable accordingly.

Schedule III has three parts.

1. Part A. No minimum period of employment is required. It covers infectious and parasitic diseases contracted in an occupation where there is a particular risk of contamination, such as work in hospitals or with animals, and poisoning by lead, mercury, phosphorus, benzene, arsenic and their compounds.

The provision. Section 10 of the Industrial Employment (Standing Orders) Act, 1946, headed "duration and modification of standing orders".

1. The six-month bar. Section 10(1). Standing orders finally certified under the Act shall not be liable to modification until the expiry of six months from the date on which the standing orders, or the last modifications 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.

2. Who may apply and how. Section 10(2). Subject to sub-section (1), an employer or any workman, or a trade union or other representative body of the workmen, may apply to the Certifying Officer to have the standing orders modified. The application shall be accompanied by copies of the modifications proposed and, where the modifications are proposed to be made by agreement, by a certified copy of that agreement.

Section 9A. 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 such change:

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

The Fourth Schedule lists the conditions of service for change of which notice is to be given:

1. wages, including the period and mode of payment;
2. contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law;
3. compensatory and other allowances;
4. hours of work and rest intervals;
5. leave with wages and holidays;
6. starting, alteration or discontinuance of shift working otherwise than in accordance with standing orders;

Consequence of breach. A change effected in contravention of Section 9A is illegal and inoperative; the workmen are entitled to be treated as though the previous conditions continued, and may raise an industrial dispute. Contravention is also an offence under Section 31(2).

Rights. Section 20(1). Authorised officers, office staff and members have the right:

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

Section 20(2) confers the two exclusive rights: the recognised union alone appoints the workmen's nominees to the Works Committee under Section 3 of the Industrial Disputes Act; and no employee may appear or be represented in a proceeding under that Act except through the recognised union, except in a proceeding about dismissal, discharge, removal, retrenchment, termination or suspension.

It is one of three conditions, the others being one month's notice in writing indicating the reasons for retrenchment, or wages in lieu, under Section 25F(a), and notice to the appropriate Government under Section 25F(c). In an establishment covered by Chapter VB the notice is three months and the prior permission of the appropriate Government is also required under Section 25N.

Illustration. A workman with six years and eight months' service and average pay of Rs. 24,000 per month. The part year exceeds six months and counts as a completed year, so seven years. Fifteen days' average pay is Rs. 12,000. Compensation is 7 x Rs. 12,000 = Rs. 84,000, plus one month's notice or Rs. 24,000 in lieu.

(b) Is the employer bound to pay retrenchment compensation to the terminated driver? Give reasons for your answer.

On the facts as stated, no, provided the corporation proves the ground it asserts, but it is not free to turn him out with nothing.

3. But the Court did not stop there. It held the terminations unjustified and inequitable, and directed that the affected employees be given retirement benefits, and either alternative employment in a post they were fit to hold or, where no vacancy existed, compensation, with liberty to be offered a job later on returning the compensation.
4. The burden is on the employer, and it must be discharged by medical evidence showing that the condition is continued, that is lasting and not correctable, and that it genuinely unfits him for a driver's work. Eyesight is central to driving, so on these facts that is readily shown. If the corporation cannot prove it, the termination is retrenchment, Section 25F was not complied with, the retrenchment is void, and he is entitled to reinstatement with continuity of service.

Conclusion. The corporation is not bound to pay retrenchment compensation under Section 25F, because this is not retrenchment. It is bound, on the authority of Anand Bihari, to give him his retirement and terminal benefits and either alternative employment or compensation.

2. Who may complain. Under Section 28(1), any union, employee, employer or Investigating Officer. Mr. Z may complain himself, or his union may complain for him.
3. Limitation. Within ninety days of the occurrence of the unfair labour practice, with power in the Court to condone delay for good and sufficient reasons. Where transfers are repeated, each transfer is a fresh occurrence and starts its own period.
4. Forum. Item 3 of Schedule IV is not Item 1, so the complaint lies to the Industrial Court under Section 5, not to the Labour Court.
5. Investigation. The Court may direct the Investigating Officer to investigate under Section 28(3), and he may visit the undertaking, make enquiries and attempt a settlement.
6. Relief. Section 30 empowers the Court to declare the practice, direct the employer to cease and desist, take affirmative action including reinstatement in the former post with or without back wages, and grant interim relief pending the decision. The order is final and cannot be questioned in any civil or criminal court.

2. Immunity under the Trade Unions Act, 1926. Section 17 gives office bearers and members of a registered trade union immunity from punishment for criminal conspiracy under Section 120B(2) of the Indian Penal Code in respect of agreements made to further the objects of the union set out in Section 15. Section 18 gives immunity from civil suit in respect of any act done in contemplation or furtherance of a trade dispute on the ground only that it induces some other person to break a contract of employment or interferes with trade, business or employment.

Two further protections: Section 21A and Section 22 of the Trade Unions Act on disqualification and the proportion of office bearers connected with the industry; and the unfair labour practice protections in Schedules II and IV of the MRTU and PULP Act, which cover discharge, dismissal, victimisation and mala fide transfer.

2. It is partial and not total, because it does not incapacitate him for all the work he was capable of performing at the time of the accident. Total disablement under Section 2(1)(l) is deemed only from an injury in Part I of Schedule I, or a combination of Part II injuries aggregating one hundred per cent.
3. Loss of one eye without complications, the other being normal, is an injury specified in Part II of Schedule I, which is deemed to result in permanent partial disablement, and the Schedule fixes the loss of earning capacity at forty per cent.

Note the qualification: if his other eye was already impaired, the combination of injuries could reach one hundred per cent and the disablement would then be permanent total.

(b) Will the employee get compensation under the Employees Compensation Act, 1923? Give Reasons for your answer.

Yes, and this is a straightforward case for the employee.

1. The claim is complete under Section 3(1). There is a personal injury, caused by an accident, in the course of his employment, at his work station during welding, and arising out of it, since eye injury is the characteristic risk of welding. Liability is without fault.

Compensation. Section 4(1)(c)(i): for an injury specified in Part II of Schedule I, such percentage of the compensation payable for permanent total disablement as is the percentage of loss of earning capacity specified in the Schedule, that is forty per cent of (sixty per cent of monthly wages multiplied by the relevant factor from Schedule IV, or Rs. 1,40,000, whichever is more). Monthly wages are capped at the notified ceiling of Rs. 15,000. Under Section 4A it must be paid as soon as it falls due, failing which the Commissioner may award interest at twelve per cent and a penalty of up to fifty per cent.

Where the workman is governed by any other law, award, agreement, contract of service or standing order under which he is entitled to a higher amount, Section 10A(4) provides that the higher amount prevails.

(b) How is such an allowance calculated?

Section 10A(1). The subsistence allowance is:

1. at the rate of fifty per cent of the wages which the workman was entitled to immediately preceding the date of suspension, for the first ninety days of suspension; and
2. at the rate of seventy-five per cent of such wages for the remaining period of suspension, if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.

Applying that to the facts. The enquiry has run for six months, that is roughly 180 days. For the first ninety days he is entitled to fifty per cent of his pre-suspension wages. For the remaining ninety days he is entitled to seventy-five per cent, unless the employer shows that the delay is directly attributable to his own conduct, for instance by repeated adjournments sought by him, or non-attendance.

4. where a submission in respect of any matter covered by the notice is registered under Section 66 of the Bombay Act, before it is lawfully revoked;
5. during voluntary arbitration proceedings under the Bombay Act or before an arbitrator under Section 10A of the central Act, until the proceedings are concluded or the award comes into operation, whichever is later;
6. during arbitration referred under Sections 72, 73 or 73A of the Bombay Act, on the same footing;
7. during the pendency of adjudication proceedings before an Industrial Tribunal or Labour Court under the central Act, in respect of matters covered by the notice of strike; and
8. during any period in which a settlement or award is in operation, in respect of any matter covered by it.

A proviso to clauses (g) and (h) protects a union which has offered in writing to submit the dispute to arbitration and has been refused, or has been met with disagreement over the choice of arbitrator.

1. It commits the unfair labour practice in Item 1 of Schedule III, "to advise or actively support or instigate any strike deemed to be illegal under this Act", exposing it to a complaint under Section 28 and to orders under Section 30 to cease and desist.
2. Under Section 12(6) the Industrial Court shall not recognise a union which has, within the six months immediately preceding its application, instigated, aided or assisted the commencement or continuation of an illegal strike.
3. Under Section 13(1)(v) the Industrial Court shall cancel the recognition of a recognised union on the same ground.
4. Its recognition may alternatively be suspended with the rights under Sections 20 and 21 for a specified period.

For an employer that declares an illegal lock-out:

1. It commits the general unfair labour practices in Schedule IV, and where the lock-out is used to defeat organisation, those in Schedule II as well.

For full marks, cover: the meaning and origin; the characteristics; the legal framework in India; the forms and levels; then the substance of the question, how it improves the relationship, taken point by point; the conditions on which that depends; and the reform in the Industrial Relations Code.

Meaning. Collective bargaining is the process by which an employer or association of employers and one or more representative organisations of workers negotiate the terms and conditions of employment and arrive at an agreement which binds both for a stated period. The expression was coined by Sidney and Beatrice Webb in Industrial Democracy (1897).

Characteristics. It is collective, replacing the individual bargain; bilateral, the parties themselves making the terms; continuous, since the agreement must be administered and interpreted throughout its life; flexible, since terms can be reopened; and binding, a settlement reached in conciliation binding everyone in the establishment under Section 18(3) of the Industrial Disputes Act, 1947.

1. It substitutes discussion for confrontation. Where there is a standing channel to raise demands, disputes are argued at a table rather than on the street, and the strike becomes the last resort instead of the first.
2. It creates mutual recognition. By bargaining, each side accepts the other's legitimacy: the employer accepts that the workers have an organisation entitled to speak for them, and the union accepts that the enterprise has to remain viable.
3. It produces terms both sides can live with, and therefore terms that are observed. An award imposed by a Tribunal may be resented and worked to rule; a negotiated settlement carries the union's own authority behind compliance.
4. It builds trust through information. Serious bargaining requires the employer to disclose its financial position and the union to be realistic about it. That exchange, repeated over years, is what converts an adversarial relationship into a working one.

The conditions on which all this depends. A strong, representative and recognised union; freedom of association without victimisation; good faith and authority to conclude on both sides; accurate information; a defined bargaining unit; willingness to give and take; and an enforceable legal framework.

Reform. Section 14 of the Industrial Relations Code, 2020 creates the bargaining agent nationally: a sole negotiating union where one union functions or where one has fifty-one per cent or more of the workers on the muster roll; otherwise a negotiating council of unions with not less than twenty per cent each, one representative per twenty per cent, an agreement requiring the assent of a majority of the representatives; recognition valid for three years, extendable to five.

2. Conciliation Officers. Section 4. Appointed by the appropriate Government, permanently or for a limited period, for a specified area or industry, charged with mediating in and promoting the settlement of industrial disputes. Duties in Section 12: to hold conciliation proceedings, mandatorily in a public utility service where a strike notice has been given; to investigate the dispute and induce a fair and amicable settlement; to report a settlement with the memorandum, or to send a failure report within fourteen days. Role: settlement by agreement, with the failure report becoming the basis of the Government's decision whether to refer.

3. Board of Conciliation. Section 5. Constituted as occasion arises, with an independent chairman and two or four members representing the parties equally. Duty under Section 13: to bring about a settlement and to report within two months of the reference; its report is published. Role: conciliation of larger or more difficult disputes.

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 Judge of three years; up to two assessors. Third Schedule matters: wages, allowances, hours of work and rest intervals, leave and holidays, bonus, provident fund and gratuity, shift working, classification by grades, rules of discipline, rationalisation, retrenchment and closure. Role: adjudication of disputes of interest as well as of right.

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, being or having been a High Court Judge; up to two assessors. Under Section 10(6), once a dispute is referred to it, proceedings on the same matter before a Labour Court or Tribunal stand quashed. Role: uniformity across States.

Under the Industrial Relations Code, 2020. Chapter VII simplifies the structure: Section 43 conciliation officers; Section 44 the Industrial Tribunal, now of two members, one Judicial and one Administrative; Section 46 the National Industrial Tribunal. Boards of Conciliation, Courts of Inquiry and Labour Courts as separate bodies disappear, their work passing to the Tribunal, and Section 4 adds a Grievance Redressal Committee in establishments employing twenty or more workers.

The doctrine. Employment may be notionally extended in point of time and in point of place, so that:

1. it is deemed to begin before the workman reaches his place of work and starts his duty, from the moment he enters the employer's premises or an area under the employer's control by an access reasonably used for that purpose; and
2. it is deemed to continue after he has left his post, while he leaves by the same route and for so long as he remains within that area.

The leading authorities.

1. Saurashtra Salt Manufacturing Co. v. Bai Valu Raja (1958). The Supreme Court accepted the doctrine but held it inapplicable. Workmen returning from a salt works drowned crossing a public creek by boat. The Court held that as a rule the employment begins when the workman reaches his place of work and ends when he leaves it, that the theory of notional extension may extend it in time and place, but that once a workman reaches a public place he is exposed to a risk shared by every member of the public, and the extension cannot reach that far.

3. Character of the risk: whether the workman faced a risk peculiar to or increased by the employment, or one shared with the general public.
4. Contractual entitlement: whether the facility used was one to which the employment entitled him.

Limits. The general rule remains that travelling to and from work is not in the course of employment. Notional extension is an exception, and it does not extend to public roads, public transport, a deviation for the workman's own purposes, or activities wholly unconnected with the employment. It also answers only the "in the course of" limb; the claimant must still show that the accident arose out of the employment.