BLS LLB 5 Years Sem 5 Labour Laws 2023-24 Question Paper with Solutions

Legislative competence comes from the Seventh Schedule. Labour is principally in the Concurrent List (List III), so both Parliament and the State Legislatures may legislate:

1. Entry 22: Trade unions; industrial and labour disputes.
2. Entry 23: Social security and social insurance; employment and unemployment.
3. Entry 24: Welfare of labour including conditions of work, provident funds, employers' liability, workmen's compensation, invalidity and old age pensions and maternity benefits.

The Union List (List I) carries Entry 55 (regulation of labour and safety in mines and oilfields) and Entry 61 (industrial disputes concerning Union employees).

Section 2(ra) of the Industrial Disputes Act, 1947 defines "unfair labour practice" as any of the practices specified in the Fifth Schedule, and Section 25T prohibits them. Part II of the Fifth Schedule lists practices on the part of workmen and trade unions of workmen. Two are:

1. To advise or actively support or instigate any strike deemed to be illegal under the Act.
2. To indulge in coercive activities against certification of a bargaining representative, or to stage, encourage or instigate such forms of coercive actions as wilful go slow, squatting on the work premises after working hours, or gherao of any of the members of the managerial or other staff.

Others in Part II include coercing workmen in the exercise of their right to self-organisation, including picketing so as physically to debar non-striking workmen from entering the workplace; refusal by a recognised union to bargain collectively in good faith; and wilful damage to the employer's property.

Section 5 of the MRTU and PULP Act, 1971. Three functions of the Industrial Court are:

1. to decide complaints relating to unfair labour practices, except those relating to Item 1 of Schedule IV, which fall to the Labour Court under Section 7;
2. to decide applications under Chapter III for recognition of a union (Sections 11 and 12), cancellation of recognition (Section 13), recognition of another union in its place (Section 14) and re-recognition (Section 15); and
3. to exercise superintendence over Labour Courts (Section 44) and to transfer proceedings from one Labour Court to another (Section 45).

It also hears appeals under Section 42 against a conviction, acquittal or sentence by a Labour Court, within thirty days, and under Section 35 the law it declares binds Labour Courts.

In Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978) a Bench of seven Judges laid down the test for "industry" under Section 2(j) of the Industrial Disputes Act, 1947. Where there is:

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

there is an industry.

Absence of a profit motive or gainful objective is irrelevant, and so is the character of the employer, whether private, government or a statutory body.

The Industrial Court, constituted under Section 4 of the MRTU and PULP Act, 1971.

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

Section 10 of the Industrial Employment (Standing Orders) Act, 1946.

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 of them, came into operation, except on agreement between the employer and the workmen or a trade union or other representative body.

Section 10(2): thereafter, 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, accompanied by copies of the modifications proposed and, where by agreement, a certified copy of that agreement.

Section 10(3): the provisions applicable to original certification apply, so the proposal goes through notice, fifteen days for objections, a hearing, an order, and a right of appeal within thirty days under Section 6.

Application. Section 1(3): the Act applies to every industrial establishment employing one hundred or more workmen, or which employed that number on any day of the preceding twelve months, and to smaller establishments to which the appropriate Government extends it on not less than two months' notice.

The procedure.

1. Submission of the draft. Section 3(1). Within six months from the date on which the Act becomes applicable, the employer shall submit to the Certifying Officer five copies of the draft standing orders proposed for adoption, accompanied under Section 3(3) by a statement of prescribed particulars of the workmen employed, including the name of the trade union to which they belong. Section 3(2) requires the draft to make provision for every matter set out in the Schedule applicable to the establishment, and to be, so far as is practicable, in conformity with the model standing orders.

6. Appeal. Section 6. Any employer, workman, trade union or other prescribed representative aggrieved may appeal to the appellate authority within thirty days from the date on which copies are sent. The appellate authority shall confirm the standing orders either as certified or after amending them by such modifications or additions as it thinks necessary; its decision is final; and within seven days it sends copies to the parties and to the Certifying Officer, who amends the register kept under Section 8.
7. Date of operation. Section 7. The standing orders come into operation 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 shall 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: until the standing orders are certified, the model standing orders are deemed to be adopted.

Entitlement to lay-off compensation arises under Section 25C of the Industrial Disputes Act, 1947. A workman is not entitled in the following circumstances.

1. He is outside Section 25C itself.

1. He is a badli workman or a casual workman. A "badli workman" is one employed in the place of another whose name is borne on the muster rolls, and he ceases to be a badli on completing one year of continuous service.
2. His name is not borne on the muster rolls of the establishment.
3. He has not completed one year of continuous service, tested under Section 25B by whether he actually worked for 240 days in the preceding twelve months.
4. The days claimed are weekly holidays, which are expressly excluded.
5. He has already received compensation for forty-five days in the period of twelve months. Beyond that, the employer may, under the proviso to Section 25C and subject to any agreement, either continue to pay or retrench him under Section 25F, setting off the lay-off compensation paid against retrenchment compensation.

2. if he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day; or
3. if such laying-off is due to a strike or slowing down of production on the part of workmen in another part of the establishment.

4. It is not a lay-off at all. If the stoppage does not fall within Section 2(kkk), because it is not attributable to shortage of coal, power or raw materials, accumulation of stocks, break-down of machinery, natural calamity or a connected reason, then there is no lay-off. Such a stoppage is in substance a lock-out, and the workmen's claim is not for half wages but potentially for full wages if the lock-out is illegal or unjustified.

Matters it deals with in practice: conditions of work, ventilation, lighting and sanitation; safety and accident prevention; canteen, drinking water and welfare amenities; the administration of welfare funds; educational and recreational facilities; and the ventilation of small grievances before they harden.

What it cannot do. It is bipartite and advisory. It has no power to decide a dispute and no power to make a binding settlement. The Supreme Court has held that its function is to smooth away friction, and that it cannot trespass upon matters that belong to the recognised union or to the conciliation and adjudication machinery, nor supersede a registered union in collective bargaining.

Maharashtra overlay. Section 20(2)(a) of the MRTU and PULP Act, 1971 provides that where there is a recognised union, that union alone has the right to appoint its nominees to represent workmen on a Works Committee constituted under Section 3, and Schedule I to that Act amends Section 3 accordingly.

3. It prevents strikes and lock-outs by providing a standing channel through which demands are made and grievances answered, so that industrial action becomes the last resort rather than the first.
4. It preserves the relationship. The parties must live with each other after the dispute, and bargaining leaves them with an agreed procedure for the next round.
5. It promotes industrial democracy, giving workers a voice in the terms that govern their working lives, an object reflected in Article 43A of the Constitution.
6. A settlement in conciliation binds everyone, including future entrants, under Section 18(3), which gives the employer certainty that no rival group can reopen the same dispute.
7. It permits productivity bargaining, tying increases to measurable improvements so that gains are shared rather than fought over.

Disadvantages.

1. It presupposes roughly equal strength. Where the union is weak, unrecognised or divided, the process is dictation with a signature at the bottom.
2. Multiplicity of unions and inter-union rivalry make it hard to identify a bargaining agent, and rivals may outbid one another in demands.

1. "Injury" is not confined to visible physical harm. It includes a physiological injury brought about by the conditions of work, and pneumonia contracted through repeated exposure to sharp changes of temperature is such an injury.
2. "Accident" means an unlooked-for mishap or untoward event which is not expected or designed, viewed from the point of view of the workman. Suresh did not expect or design to contract pneumonia; the contracting of the disease was, from his standpoint, an accident.
3. It arose "in the course of" the employment. The exposure occurred while he was doing his work, at his workplace, within working hours.
4. It arose "out of" the employment. The causal connection is supplied by the nature of the duties: it was the employment that required him to move repeatedly between the heating room and the cooling plant, and that exposure was a risk peculiar to and increased by the employment, not one shared with the general public. This is an application of the theory of increased risk.

Distinguish the case of ordinary illness. If a workman simply falls ill at work from a cause unconnected with the work, the death does not arise out of the employment. The distinguishing feature here is that the employment itself created the exposure.

The amount. Section 4(1)(a), death: fifty per cent of the monthly wages of the deceased multiplied by the relevant factor in Schedule IV, or Rs. 1,20,000, whichever is more; monthly wages are capped by notification at Rs. 15,000 per month. Section 4(4): the employer must in addition deposit not less than Rs. 5,000 for funeral expenses, payable to the eldest surviving dependant.

To whom. Section 8(1): compensation for death must be deposited with the Commissioner, and no payment made directly by the employer to a dependant counts as compensation. Section 8(4): the Commissioner apportions the amount among the dependants as he thinks fit. Dependants are defined in Section 2(1)(d), the first class being a widow, minor legitimate son, unmarried legitimate daughter and widowed mother.

Time and default. Section 4A: compensation shall be paid as soon as it falls due; on default the Commissioner may order simple interest at twelve per cent per annum and, where the default is without justification, a penalty of up to fifty per cent of the compensation.

(a) Can the Plant head be punished under MRTU & PULP, 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.

Note that the section speaks of "any person", so the Plant head is personally liable; it is not an offence of the company alone.

1. Section 7: it is the duty of the Labour Court to decide complaints relating to unfair labour practices in Item 1 of Schedule IV and to try offences punishable under this Act.
2. Sections 38 to 40: the powers and procedure of the Labour Court in relation to offences, including its special jurisdiction.
3. Section 41: where the Labour Court considers that the punishment it can award is inadequate, it may record its opinion and forward the case to the Judicial Magistrate, who may pass a higher sentence.
4. Section 42: an appeal against conviction lies to the Industrial Court within thirty days, and the State Government may appeal for enhancement of sentence.

2. In Punjab Land Development and Reclamation Corporation v. Presiding Officer, Labour Court (1990) a Constitution Bench held that the words "for any reason whatsoever" mean what they say, so retrenchment is not confined to the discharge of surplus labour. Termination for any reason outside the four exclusions and not by way of disciplinary punishment is retrenchment.
3. On these facts the workmen were simply terminated without notice. Nothing suggests disciplinary punishment after an inquiry, nothing suggests voluntary retirement, superannuation, expiry of a fixed-term contract or ill-health. It is therefore retrenchment, and Section 25F applied.
4. The two questions of fact. First, was each workman in continuous service for not less than one year, tested under Section 25B by whether he actually worked 240 days in the preceding twelve months? Section 25F protects only such a workman. Second, is this a seasonal establishment? A jam factory may work only when fruit is in season, and if the men were engaged for the season under a contract expiring with it, Section 2(oo)(bb) would take the case out of retrenchment altogether.

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 equivalent 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.

Section 25G: last come, first go. Where a workman of a particular category is to be retrenched, the employer shall ordinarily retrench the workman who was the last person employed in that category, unless for reasons to be recorded he retrenches another.

Section 25H: re-employment. Where the employer proposes to take persons into employment after a retrenchment, he must give the retrenched workmen an opportunity to offer themselves, and they have preference over other persons.

Section 25N (establishments with one hundred or more workmen): three months' notice and the prior permission of the appropriate Government, applied for with reasons, decided after hearing the parties.

(a) Can it be treated as illegal Lockout?

Yes.

1. Section 22(2) of the Industrial Disputes Act, 1947: no employer carrying on any public utility service shall lock-out any of his workmen:

(i) without giving them notice of lock-out as provided in that section within six weeks before locking out; (ii) within fourteen days of giving such notice; (iii) before the expiry of the date of lock-out specified in any such notice; or (iv) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

1. Section 24(1) declares a lock-out illegal if it is commenced or declared in contravention of Section 22 or Section 23.

4. The definition is satisfied: Section 2(l) defines lock-out as 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.
5. Was the industry a public utility service? Under Section 2(n) some services are public utility services at all times, railways and air transport, service connected with a major port or dock, a section on whose working the safety of the establishment depends, postal, telegraph and telephone services, industries supplying power, light or water to the public, and public conservancy or sanitation. Others, listed in the First Schedule, become public utility services only when the appropriate Government declares them so for a period not exceeding six months at a time. The problem states that this is a public utility service, so the point is conceded.

4. Protection of the workmen's own action. Section 24(3): a strike declared in consequence of an illegal lock-out is not illegal. So the workmen may respond without themselves committing an offence.

5. Reference and prohibition. Section 10(3): where a dispute has been referred, the appropriate Government may by order prohibit the continuance of the lock-out, and continuance in breach of such an order makes it illegal under Section 24(1)(ii).

6. In Maharashtra, an unfair labour practice. A lock-out declared to defeat the workmen's right to organise falls within Schedule II of the MRTU and PULP Act, 1971, and the general practices in Schedule IV may also be attracted. A complaint lies under Section 28 within ninety days, and the Industrial Court may under Section 30 order the employer to cease and desist, order affirmative action including payment of wages, and grant interim relief. Section 24(2) of that Act separately defines an illegal lock-out, and Section 25 allows a reference to the Labour Court for a declaration that the lock-out is illegal.

For full marks, cover: the full text of Section 2(s); each of the four exclusions; the tests the courts apply; the case law in sequence; the position of specific categories; and the change made by the Industrial Relations Code, 2020.

The definition. Section 2(s) of the Industrial Disputes Act, 1947: "workman" means any person, including an apprentice, employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under the Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute.

Who is not a workman. The definition excludes any such person:

1. who is subject to the Air Force Act, 1950, the Army Act, 1950 or the Navy Act, 1957;

2. Ananda Bazar Patrika (P) Ltd. v. Its Workmen (1970). The dominant nature of the duties actually performed decides, not the designation. The question is what the person's main work is, and incidental supervisory or clerical duties do not change the character of the employment.
3. May and Baker (India) Ltd. v. Their Workmen (1961). A medical representative was held not to be a workman, since his main duty was canvassing and promoting sales, which was none of the categories then enumerated.
4. H.R. Adyanthaya v. Sandoz (India) Ltd. (1994). A Constitution Bench settled the point: a person must be employed to do work of one of the categories named in Section 2(s), and since sales promotion is not among them, medical representatives are not workmen under the Act. The decision is the leading modern authority on the structure of the definition.

3. Teachers have been held not to be workmen, as their work is not manual, skilled, technical, operational, clerical or supervisory in the statutory sense.
4. Contract labour are workmen of the contractor, and become workmen of the principal employer only where the contract is a sham or the arrangement is abolished under the Contract Labour (Regulation and Abolition) Act, 1970.

Under the new law. Section 2(zr) of the Industrial Relations Code, 2020 defines "worker" in substantially the same terms, with two changes worth knowing: it expressly includes working journalists and sales promotion employees, reversing the effect of H.R. Adyanthaya for that category, and it raises the supervisory wage ceiling to eighteen thousand rupees per month or such higher amount as may be notified.

"Accident" means an unlooked-for mishap or untoward event which is not expected or designed, judged from the standpoint of the workman who suffers it. It covers a fall, an assault, a snake bite, a heart attack brought on by strain, and, as Indian News Chronicle Ltd. v. Mrs. Lazarus (1951) shows, a disease contracted through the conditions of the work.

"Personal injury" is not limited to visible physical harm. It includes physiological injury produced by strain or nervous shock, and it includes death.

"In the course of employment": the time and place test. The injury must occur while the workman is doing what a man so employed might reasonably do, within the period of employment, at a place where he might reasonably be. It extends to reasonable incidents of work: meals taken on the premises, rest intervals, and movement about the workplace.

"Arising out of employment": the causation test. There must be a causal connection between the accident and the employment, in the sense that the employment exposed the workman to the risk which injured him. Three propositions follow:

1. the risk must be incidental to the employment;

1. Trustees, Port of Bombay v. Yamunabai (1952). A workman injured on the premises by a bomb thrown by a stranger was compensated: the employment had brought him to the place where the risk operated.
2. Indian News Chronicle Ltd. v. Mrs. Lazarus (1951). An electrician required to move repeatedly between a heating room and a cooling plant died of pneumonia; the employment created the exposure, so the injury arose out of it.

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

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

For full marks, cover: the application of Chapter III; the qualification for recognition; the procedure and the competing-union rule; the two mandatory refusals; the obligations in Section 19; cancellation and suspension; 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, after not less than sixty days' notice, apply the Chapter to undertakings employing fewer. 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, that union has notified its claim, and it 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 for the same undertaking.
5. Section 12(5): the Court shall not recognise a union if satisfied that the application is not made bona fide in the interest of the employees but in the interest of the employer, to their prejudice.
6. Section 12(6): the Court shall not recognise a union which, within six months immediately preceding the date of the application, 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 its office bearers as required by its constitution, allow all members to take part, hold a general meeting at least once a year 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 may, instead of cancelling recognition, suspend the rights of the recognised union under Sections 20 and 21 for such period as it thinks fit. Section 16 provides that cancellation does not relieve the union or its members of liability incurred before it, and Section 17 requires publication of the order.

Recognition of another union. Section 14. Where a union applies to be recognised 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 satisfies Section 11 and its membership was, during the whole of the six calendar months immediately preceding, larger than that of the recognised union, the Court recognises it in place of the recognised union. 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, subject to the period prescribed by that section and on showing that the ground of cancellation has ceased to exist and that it again satisfies Section 11.

For full marks, cover: the definition and its ingredients; the distinction from lay-off and closure; when a lock-out is legal; the four restrictions in Section 22 for public utilities; the four in Section 23 generally; Section 24 on illegality and its exceptions; the consequences; the position on wages; and the Maharashtra provisions.

Definition. Section 2(l) of the Industrial Disputes Act, 1947: "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.

Ingredients.

1. It is an act of the employer.
2. It takes one of three forms: temporary closing of the place of employment, suspension of work, or refusal to continue to employ.

When a lock-out is legal. A lock-out is legal when it is not prohibited by Sections 22 and 23 and is not continued in breach of an order under Section 10(3) or 10A(4A). In practice this means:

1. In a public utility service, the employer has given notice of lock-out within six weeks before locking out, has waited fourteen days after the notice, has not locked out before the date specified in it, and is not locking out during conciliation proceedings before a conciliation officer or within seven days after their conclusion; and it has reported the notice to the appropriate Government under Section 22(6).
2. Everywhere, the employer is not locking out during conciliation before a Board and seven days after; during proceedings before a Labour Court, Tribunal or National Tribunal and two months after; during arbitration under Section 10A and two months after; or while a settlement or award is in operation on a matter covered by it.
3. A lock-out declared in consequence of an illegal strike is legal, by Section 24(3).
4. Under Section 22(3), notice is not necessary where a strike is already in existence, though intimation must be sent on the day the lock-out is declared.

4. Section 24(3) protects the workmen: a strike in consequence of an illegal lock-out is not illegal.
5. In Maharashtra, the lock-out may also be an unfair labour practice under Schedules II and IV of the MRTU and PULP Act, 1971, giving rise to a complaint under Section 28 within ninety days and to orders under Section 30 to cease and desist, to pay wages, and for interim relief. Section 24(2) of that Act separately defines an illegal lock-out, and Section 25 allows a reference to the Labour Court for a declaration.

Legal but unjustified. A lock-out may be legal and yet unjustified, and the distinction matters for wages. Legality is tested by Sections 22, 23 and 24; justification is tested by whether, on the merits, the employer was warranted in resorting to a lock-out at all, having regard to the conduct of the parties. A legal but unjustified lock-out will ordinarily still attract an award of wages for the period.