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

Section 2(s): "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 includes any such person dismissed, discharged or retrenched in connection with, or as a consequence of, an industrial dispute.

It does not include a person:

1. subject to the Air Force Act, the Army Act or the Navy Act;
2. employed in the police service or as an officer or employee of a prison;
3. employed mainly in a managerial or administrative capacity; or
4. employed in a supervisory capacity drawing wages exceeding ten thousand rupees per month, or who, by the nature of his duties or the powers vested in him, functions mainly in a managerial capacity.

The employer, under Section 25D of the Industrial Disputes Act, 1947: "Notwithstanding that workmen in any industrial establishment have been laid off, it shall be the duty of every employer to maintain for the purposes of this Chapter a muster roll, and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours."

Section 25M(6), in Chapter VB, imposes the same duty on employers of establishments to which that Chapter applies.

Two examples from Part II of Schedule I to the Employees' Compensation Act, 1923, every injury in which is deemed to result in permanent partial disablement:

1. Loss of one eye, without complications, the other being normal, for which the Schedule fixes the loss of earning capacity at forty per cent; and
2. Loss of thumb, for which the figure is twenty-five per cent.

Others include amputation of a leg below the knee, loss of index finger (fourteen per cent), and loss of hearing in one ear.

Two unfair labour practices on the part of employers:

1. From Schedule II, Item 1: to interfere with, restrain or coerce employees in the exercise of their right to organise, form, join or assist a trade union, including threatening employees with discharge or dismissal if they join a union, threatening a lock-out or closure if a union is organised, and granting wage increases at crucial periods of union organisation to undermine the union.
2. From Schedule IV, Item 1: to discharge or dismiss employees by way of victimisation, not in good faith but in colourable exercise of the employer's rights, by falsely implicating an employee in a criminal case on false or concocted evidence, for patently false reasons, on untrue or trumped-up allegations of absence without leave, or in utter disregard of the principles of natural justice.

Section 24(1) of the MRTU and PULP Act, 1971. Two situations in which a strike is illegal are where it is commenced or continued:

1. without giving to the employer notice of strike in the prescribed form, or within fourteen days of the giving of such notice; and
2. where there is a recognised union, without obtaining the vote of the majority of the members of the union in favour of the strike before the notice of strike is given.

A third is a strike commenced or continued during the pendency of conciliation proceedings and for seven days after their conclusion, in respect of matters covered by the notice of strike; and a fourth, during any period in which a settlement or award is in operation on a matter covered by it.

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

Powers. Section 11 gives it the power to follow its own procedure, and the powers of a civil court in respect of enforcing attendance, examining witnesses on oath, compelling production of documents and issuing commissions, and it is deemed a civil court for certain purposes of the Code of Criminal Procedure. Section 11A empowers it, in a discharge or dismissal case, to set aside the order of discharge or dismissal and direct reinstatement on such terms as it thinks fit, or give such other relief including the award of a lesser punishment, if satisfied that the order was not justified.

Constitution. Section 4 of the MRTU and PULP Act, 1971: the State Government shall constitute an Industrial Court consisting of such number of members as it thinks fit, one of whom shall be the President. A member must be qualified to be a Judge of a High Court, or have held judicial office in India for not less than ten years, or 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, which are for the Labour Court under Section 7. This covers the whole of Schedule II (employers, interference with organisation), the whole of Schedule III (trade unions), and Items 2 to 10 of Schedule IV;
2. to decide applications under Chapter III concerning recognition of unions under Sections 11 and 12, cancellation under Section 13, recognition of another union in place of the recognised one under Section 14, re-recognition under Section 15, and recognition for more than one undertaking under Section 18;

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

1. The 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. The application. 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 must be accompanied by copies of the modifications proposed and, where the modifications are proposed by agreement, by a certified copy of that agreement.

3. The procedure. Section 10(3). The foregoing provisions of the Act apply to such an application as they apply to the certification of the first standing orders. Accordingly:

The rule first. Section 3(1) of the Employees' Compensation Act, 1923 makes the employer liable to pay compensation if personal injury is caused to an employee by accident arising out of and in the course of his employment. Liability is strict, arising without any proof of the employer's negligence.

The exceptions are in the proviso to Section 3(1). The employer shall not be liable:

1. The three-day rule. In respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days.
2. The fault-based exceptions. In respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to:

Section 17 provides that any contract or agreement by which an employee relinquishes his right to compensation is null and void, so these exceptions cannot be enlarged by agreement.

(a) Can the tea workers union take up the case of Dr. X ?

It depends on whether Dr. X is a "workman" under Section 2(s) of the Industrial Disputes Act, 1947. If he is, the union may take up his case; if he is not, there is no industrial dispute at all.

1. A tea estate is an industry under Section 2(j), satisfying the triple test in Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978): systematic activity, organised by cooperation between employer and employee, for the production of goods to satisfy human wants.

4. If he is not a workman, the union cannot convert his grievance into an industrial dispute, because Section 2(k) requires a dispute connected with the employment or non-employment or the terms of employment of workmen, and in Workmen of Dimakuchi Tea Estate v. Management (1958) the Supreme Court held that the person whose case is espoused must be one in whose employment the workmen have a direct and substantial interest, and must ordinarily be a workman.
5. In Maharashtra there is a further point. Where there is a recognised union, Section 20(2)(b) of the MRTU and PULP Act, 1971 provides that no employee may be represented in Industrial Disputes Act proceedings except through it, but that restriction is expressly not applied to proceedings about dismissal, discharge, removal, retrenchment, termination or suspension. So in a termination case any union, or the man himself, may act.

(b) Can Dr. X claim retrenchment compensation?

Probably not, for two independent reasons, and each must be examined.

3. But if he has completed 240 days, the position changes. In Punjab Land Development and Reclamation Corporation v. Presiding Officer, Labour Court (1990) a Constitution Bench held that "for any reason whatsoever" in Section 2(oo) means what it says, so termination of a probationer for unsuitability, being neither punishment by way of disciplinary action nor within the four exclusions, is retrenchment, and non-compliance with Section 25F makes it void.
4. A caution on the label. If the termination is in truth punitive, that is if it is founded on misconduct and the "unsuitability" is a cloak, it is a dismissal, and the employer must have held a proper inquiry. The Labour Court will look behind the order, and under Section 11A may set aside the dismissal, order reinstatement, or award a lesser punishment.

2. Is he an "employee"? Yes. Work in a bakery involving the operation of an oven falls within Schedule II of the Act, and he is not a person whose employment is casual and outside the employer's trade or business.
3. The proviso does not save the employer. The employer would rely on the third fault-based exception, the wilful removal or disregard of a safety guard or other device which the employee knew to be provided for his safety. But every fault-based exception in the proviso applies only "in respect of any injury, not resulting in death or permanent total disablement". Mr. X died. The exception is therefore excluded by its own opening words, and it does not matter whether he wilfully disregarded the safety gear or merely forgot it.
4. The three-day rule is likewise irrelevant where death has resulted.

The employer is liable.

(b) How much of compensation will be given and to whom?

How much. Section 4(1)(a): where death results from the injury, the compensation is an amount equal to fifty per cent of the monthly wages of the deceased employee multiplied by the relevant factor, or an amount of one lakh twenty thousand rupees, whichever is more.

1. Section 8(1) requires that compensation for death be deposited with the Commissioner, and provides that no payment made directly to a dependant by the employer shall be deemed to be a payment of compensation. This is a protective provision: the money must pass through the Commissioner.
2. Section 8(4) requires the Commissioner to apportion the amount among the dependants or any of them in such proportion as he thinks fit, or to allot it to any one dependant.
3. "Dependant" is defined in Section 2(1)(d). The first class, who are dependants without having to prove dependency, are a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter, and a widowed mother.
4. On these facts, Mr. X was married and had no children, so his widow is a dependant of the first class and, in the ordinary case, the whole amount would be allotted to her, subject to the claims of a widowed mother if there is one. The eldest surviving dependant, again the widow here, receives the funeral expenses.

What must be proved is mala fides. An employer usually has power to transfer, whether under the contract, the certified standing orders or the conditions of service, so the transfer will look lawful on its face. Item 3 is drafted to meet exactly that: it concedes the power and attacks the motive, catching a transfer made in bad faith "under the guise of following management policy". The evidence that carries such a case is the pattern and frequency of the transfers, their timing against union events such as a recognition application, a charter of demands or a strike ballot, the absence of any operational justification, and the contrasting treatment of comparable employees who are not union activists.

(b) What relief does Mr. X have against his employer?

A complaint of unfair labour practice under Section 28 of the MRTU and PULP Act, 1971.

1. Who may complain. Section 28(1): any union, any employee, any employer or any Investigating Officer. So Mr. X may complain himself, or his union may complain on his behalf, which is what the problem contemplates.

6. Finality and recovery. Section 28(7): the order is final and shall not be called in question in any civil or criminal court. Section 50: money due under it is recovered on a certificate as arrears of land revenue.
7. A separate protection. If a conciliation or adjudication proceeding is pending and Mr. X is a protected workman under Section 33(3) of the Industrial Disputes Act, 1947, being an office bearer of a registered trade union recognised as such, his conditions of service cannot be altered to his prejudice without the express permission in writing of the authority before which the proceeding is pending.

For full marks, cover: both definitions with their essential ingredients; the forms a strike takes; Sections 22, 23, 24 and 25 in order with every time period; the penalties; the position on wages; and the constitutional position of the right to strike.

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.

Essentials: persons employed in an industry; cessation of work or refusal to work or to accept employment; and combination or a common understanding. A single workman staying away is absence, not a strike.

1. without giving to the employer notice of strike within six weeks before striking;
2. within fourteen days of giving such notice;
3. before the expiry of the date of strike specified in any such notice; or
4. during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

The same four restrictions apply to an employer declaring a lock-out in a public utility service. Notice is not necessary where there is already a lock-out or strike in existence, but the employer must report it to the appropriate Government, and under Section 22(6) must report the receipt of a strike notice within five days.

General prohibition. Section 23. No workman shall go on strike, and no employer shall declare a lock-out:

1. during the pendency of conciliation proceedings before a Board and seven days after their conclusion;
2. during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after their conclusion;

Penalties. Section 26: a workman who commences or continues an illegal strike is punishable with imprisonment up to one month or fine up to fifty rupees or both; an employer who commences or continues an illegal lock-out, with imprisonment up to one month or fine up to one thousand rupees or both. Section 27 punishes instigation, and Section 28 the giving of financial aid, with imprisonment up to six months or fine up to one thousand rupees or both.

Wages. There is no statutory rule, and the position rests on case law. Workmen are not entitled to wages for the period of an illegal strike. For a legal but unjustified strike, wages are ordinarily refused; where the strike is legal and justified, the Tribunal may award wages. Conversely, where a lock-out is illegal or unjustified, workmen are ordinarily entitled to full wages for the period.

Constitutional position. In All India Bank Employees' Association v. National Industrial Tribunal (1962) the Supreme Court held that the right to form associations under Article 19(1)(c) does not carry with it a fundamental right to strike; the right to strike is statutory and regulated. In T.K. Rangarajan v. Government of Tamil Nadu (2003) it held that government employees have no legal, moral or equitable right to strike.

The solution. Section 3(2): where an employee employed in any employment specified in Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section, and unless the contrary is proved, the accident shall be deemed to have arisen out of and in the course of the employment.

Schedule III, its three Parts and their qualifying periods.

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

Section 3(4): save as provided by sub-sections (2), (2A) and (3), no compensation shall be payable to an employee in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.

The employer's liability and its measure. Once the deeming provision operates, the ordinary machinery applies:

1. Section 4 fixes the amount. Death: fifty per cent of monthly wages multiplied by the relevant factor in Schedule IV, 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, or, for an injury not in the Schedule, the percentage assessed by a qualified medical practitioner. Temporary disablement: a half-monthly payment of twenty-five per cent of monthly wages. Monthly wages are capped at the notified ceiling of Rs. 15,000.
2. Section 4A: compensation shall be paid as soon as it falls due; on default the Commissioner may order interest at twelve per cent and a penalty of up to fifty per cent.

For full marks, cover: meaning and origin; the legal framework; the role it plays in disputes, set out as a process; then advantages and disadvantages in balanced numbers; the Indian obstacles; 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 reach an agreement binding both sides for a stated period. The term was coined by Sidney and Beatrice Webb in Industrial Democracy (1897). It is bilateral: the parties make the terms themselves, unlike adjudication, where an award is imposed, and conciliation, where a third party only assists.

Legal framework in India. There is no dedicated statute. Support comes from:

1. Section 18 of the Industrial Disputes Act, 1947, which makes a settlement reached in the course of conciliation proceedings binding on all persons employed in the establishment, present and future, while a settlement outside conciliation binds only the parties;

2. Definition of the issue. Negotiation forces both sides to state precisely what they want and what they can pay, which narrows the area of disagreement even where it does not close it.
3. Settlement. Where agreement is reached, Section 18 turns it into a binding instrument enforceable against everyone in the establishment.
4. Administration of the agreement. A collective agreement establishes a grievance procedure, so disputes arising during its life are dealt with by a known route rather than by a fresh trial of strength.
5. Continuity. Because the relationship survives the dispute, each round starts from an accepted procedure, which litigation never provides.

Advantages.

1. Terms are made by the parties themselves and are therefore workable and observed.
2. It is quick, flexible and inexpensive compared with adjudication.
3. It prevents strikes and lock-outs by providing an alternative channel.
4. It promotes industrial democracy, reflected in Article 43A of the Constitution.

6. Enforcement is uneven: a settlement outside conciliation binds only the signatories, and failure to implement one is remediable in Maharashtra only through Item 9 of Schedule IV.
7. Without a legal duty to bargain, a determined employer may simply refuse to meet the union, which is why Item 5 of Schedule II was needed.

Obstacles in India, and the reform. Section 14 of the Industrial Relations Code, 2020 answers the bargaining-agent problem nationally: a sole negotiating union where only 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. Section 6 also raises the registration requirement to ten per cent of the workers or one hundred, whichever is less, subject to a minimum of seven.

1. Classification of workmen, that is, whether permanent, temporary, apprentices, probationers or badlis. This is the foundation of everything else, because notice, leave and disciplinary rights differ by class. A "badli" is a substitute appointed in the place of a permanent workman or probationer who is temporarily absent.
2. Manner of intimating to workmen periods and hours of work, holidays, pay days and wage rates. Note the words: the Act does not fix the hours or the wages, which are matters for other statutes and for bargaining; it requires the employer to state how these will be communicated.
3. Shift working. The number of shifts, their timings, and the rules for rotation between them.
4. Attendance and late coming. How attendance is recorded and what the consequences of late attendance are.
5. Conditions of, procedure in applying for, and the authority which may grant, leave and holidays. Who sanctions leave, in what form the application is made, and how much notice is required.
6. Requirement to enter premises by certain gates, and liability to search. A provision of importance in establishments handling valuable or portable material, and one whose reasonableness the Certifying Officer must consider.

1. Model standing orders. Section 2(f) and Section 3(2): the draft must be, so far as practicable, in conformity with the model standing orders prescribed by the appropriate Government, which are themselves framed on the Schedule. Section 12A makes the model standing orders deemed to be adopted from the date the Act applies until certification.
2. Fairness. Section 4, as amended in 1956: it is the function of the Certifying Officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions. So it is not enough for the draft to cover every Schedule matter; the way it covers them must be fair.
3. Additional statutory content. Section 10A requires certified standing orders to provide for the payment of subsistence allowance during suspension, at fifty per cent of wages for the first ninety days and seventy-five per cent thereafter where the delay is not attributable to the workman.