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    DYNAMICS OF EMPLOYEE RELATIONS

    General Terms 

    Agreement v Settlement:

    • Agreement - An understanding between parties to follow a specific course of
    • Settlement - A state of being settled – a resolution of

    Industrial Disputes Act has not used the term agreement and it has used the term settlement. 

    Show Cause Notice v Charge Sheet: 

    • Show Cause Notice - Show Cause Notice is a statement which informs the delinquent employee of the acts alleged to have been committed by him and seeks his 
    • Charge Sheet - Charge Sheet is a statement of allegations and contains clearly spelt out charges quoting penal provisions of Standing

    Industrial Employment S O Act has used the term ‘Charge Sheet’ and not ‘Show Cause Notice’.

    However, a Show Cause Notice can be treated as ‘Charge Sheet’ when all the required components of ‘charge sheet’ are available in the Show Cause Notice. 

    In the matter of Ashok Kumar Monga Vs UCO Bank (2000 LIC 563) Delhi High Court held that if the Show Cause Notice itself contains specific details and complete particulars of charges and delinquent employee could understand the charges, even Show Cause Notice can be treated as Charge Sheet. 

    Trade Union Act 1926 

    • Trade Union Act amended in the year 2001
    • Trade Union shall not be registered unless 10% or 100 workmen, subject to a minimum of 7 engaged or employed in the establishment should subscribe for formation of a union 
    • The application should contain
    1. Name
    2. Occupation
    3. address of place of work of the member 

    The authority has to verify the correctness of the information submitted by the members seeking registration of a union. 

    • The Trade Union should not be registered if the application is made by workmen of different establishments.
    • The Trade Union should not be registered unless at least 10% or one hundred of the workmen, whichever is less, engaged or employed in the establishment with which it is connected are member on the date of making application for registration.
    • After making an application and before the registration if 50% or more workmen withdrawn from the membership, the union should not be registered.
    • The registered trade union shall at all times continue to have membership of 10% or 100 as the case may be. 
    • That is to say, if any union in the election secure less than 10% votes, the Registrar should cancel the registration. 
    • No member of the Council of Minister or a person holding an office of profit in the union or a state, shall be member of the executive or other office-bearer of a registered Trade Union.
    • An office of profit means a position that brings to the person holding it some financial gain, or advantage, or It may be an office or place of profit if it carries some remuneration, financial advantage, benefit etc. The amount of such profit is immaterial. 
    • Any member of the executive or office bearer is disqualified for a period of 5 years if he is convicted of any offence involving moral turpitude and sentenced imprisonment. 
    • Conviction and sentence imposed under section 138 of Negotiable Instruments Act can be considered as involving moral turpitude and thereby not entitled to the post the post of General M Lakshmanan Vs ICICI Bank Employees Union Madras High Court 2010 

     Trade union leaders have no immunity if they commit any acts of misconduct: 

    • All workmen guilty of wrongfully restraining any person belonging to the management or wrongfully confining him during a gherao are guilty under section 339 & 340 of IPC and hence they are liable to be arrested and punishable under section 120A of IPC and they are not saved by Section 17 of the Trade Union Act Indian Bank Vs Federation of Indian Bank Employees (Madras High Court) 
    • The Supreme Court held that union leader has no immunity from misconduct since he is bound to be Usha Breco Mazdoor Sangh Vs Usha Breco Ltd [AIR 2009 – 994] 
    • President of the union cannot avoid transfer and he is required to report to duty at new place of Mohan Meakins Ltd Vs President Mohan Meakins Staff Union [2012 LLR 1040 HP HC] 
    • The Trade Union activities are to be conducted outside the working hours and not during the working hours Singareni Collieries Vs Industrial Tribunal [2012 LLR 1162 AP HC] 
    • Trade Union has no right to hoist flag in the property of the management - Kerafibertex International P Ltd Vs Kerafibertex Employees Association [2009 LLR 985 Ker HC] 
    • No right to work relief can be claimed on the ground the workmen have become office bearers of trade unions. Workmen are employed to perform work and not absent themselves and claim benefits. Working for the Union is not the same as work in the industry to contribute to the production - TN Civil Supplies Corp Anna Staff Union Vs TN Civil Supplies Corp [1998 (2) LLJ 26 Mad HC 
    • Trade Union Act deals only with registration of a There is no provision for declaring a union as a sole bargaining agent or recognized union. 
    • However some States such as Maharashtra, Madhya Pradesh, West Bengal made provisions for recognition of a union.

    Industries & Commerce (INF) Dept G O Ms No. 151 dated 9.4.2002: 

    • Non Workmen & Outsiders cannot become office bearers of a Trade Union
    • To register a trade union 30% of the workmen employed in the industrial establishment should 

    Criteria for recognition was adopted by the Indian Labour Conference in May 1958 – code of discipline:

    • Union claiming recognition should have been functioning at least for one
    • Membership should cover at least 15% of the
    • The union with largest membership should be recognized and there should be no change for a period of two
    • Only unions which observe code of discipline would be entitled to 

    Industrial Disputes Act, 1947

    Introduction: 

    The Contract Act Vs Industrial Disputes Act 

    I D Act is applicable only to employees who falls within the definition of ‘workman’

     

    Industrial Disputes Act - Workman 

    • ‘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, ………

    ………, but does not include any such person-

    …......

    who is employed mainly in managerial or administrative capacity or

    who, being employed in a supervisory capacity, draws wages exceeding ten thousand per mensem or exercises, either by the nature of the duties attached to the office by reason of the powers vested in him functions, mainly of a managerial nature.

     

    I D Act - Workman 

    Hussain Mithu Mhasvadkar V Bombay Iron & Steel Labour Board. 2001 (II) LLJ 1520 

    • In deciding about the status of an employee, his designation alone cannot be decisive but the nature of his duties and powers conferred upon as well as the functions assigned to him have to be 

    M C Joseph Vs. State of Kerala 1996(2) LLJ 18 (ker) 

    • Employee though designated as an officer, not discharging any supervisory or managerial functions – cannot be taken out of the scope of definition of workman and he is a 

    Anand Regional Coop Oil Seed Growers Union Ltd Vs Shaileshkumar H Shah 2006 6 SCC 548 

    • Nature of duties, terms of appointment are relevant considerations to determine whether the employee worked in a supervisory capacity and was not a
    • Supervision contemplates direction and control and existence of subordinates whose work is required to be

    Daily Wager – Employed by Industrial Establishment Directly 

    • Even a daily wages will be a ‘workman’ under the Industrial Disputes Bhopal V PO Labour Court 2007 LLR 686 Del HC 

    I D Act – Not a Workman

    Mgt of Sonepat Co-op Sugar Mills Ltd Vs. Ajit Singh 2005 (I) LLJ 1122 (SC)

    • Legal Assistant whose job involved creativity but not performing of any stereotype job, who not only rendered legal opinion but also used to draft pleadings and represent the employer before various courts / authorities, and discharging quasi-judicial junctions as Enquiry Officer in departmental enquiries against workmen, cannot be termed as a 

    Muir Mills Unit of NTC (UP) Ltd Vs. Swayam Prakash Srivastava, 2007 (I) LLJ 801 

    • Legal Assistant is not a ‘workman’ since he is a professional and never can a professional be termed ‘workman’ under any 

    Mgt of Heavy Engineering Corporation Ltd Vs. The Presiding Officer Labour Court 1997 (I) LLJ 569 (SC) 

    • General Duty Doctor, in-charge of First Aid, having control and giving directions to male nurses, nursing attendant, sweeper and ambulance driver – cannot be said to be a workman since he is working in a supervisory

    Trainee 

    • Trainee is not a Vijayalaxmi Insecticides & Pesticides Ltd Hyd Vs. Industrial Tribunal 2004(II) LLJ 62 AP DB 

    Associate 

    • The Indian law has not defined an

    Apprentice 

    • Apprentice is not a ‘workman’. Section 18 of the Apprentices Act, 1961, carves out an exception to the applicability of labour laws in the event the concerned person is an apprentice as contra- distinguished from the expressions ‘worker’, ‘employee’, and ‘workman’ used in different Mukesh Tripathi V Sr. Div. Manager LIC, 2004 (III) LLJ 740 SC 

    Note : if you recruit an apprentice who is not registered under the Act will become a workman 

    Internship 

    • Law has not defined an
    • A student who is required to work / learn in an organization as part-fulfillment of his curriculum will be called as
    • A person who has completed his course and joined an organization is not an intern but he is a learner / trainee / 

    Industrial Disputes Act, 1947 

    Industrial Disputes

    means any dispute or difference between ……. Employers and workmen….. Which is connected with the employment or non employment or the terms of employment or with the conditions of labour, of any person; 

    Individual Dispute

    Individual grievance such as inter se seniority was purely an individual dispute and cannot be brought within the meaning of industrial dispute in which community of interest must exist.

    Somasundaram Vs Liyakat Ali 1998(2) LLJ 719 (Mad HC ) 

    A workman, in an individual capacity, cannot raise an industrial dispute pertaining to general grievances. Mangalam Publications (India) Pvt Ltd V Thampy 2006 LLR 598 Ker HC 

    Individual Dispute 

    An Individual dispute will not be an industrial dispute unless a body of considerable section of workers make common cause or the union is supporting. Also espousal means a dispute adopted by the union or a large number of workers supporting the cause of the workman. Management of Hotel Samrat V Govt of NCT, 2007 LLR 386 Del HC

    Individual Dispute€Industrial Dispute

    A dispute to be considered as an industrial dispute should not be an individual dispute and it should be related to the workmen. Even with reference to an individual dispute, if it is espoused by the concerned trade union or at least by a substantial number of workers, then it can be treated as an industrial dispute within the meaning of the Act - Indo National Ltd V Labour Court Guntur, 2003(3) ALD 691 AP HC 

    Espousal of cause of workman by Union does not necessarily mean only by the majority union but it can be sponsored by a minority union or even an outside union belonging to the same industry provided it is sufficiently representative of those workmen - Jadhav J H V Forbes Gokak Ltd 2005 (I) LLJ 1089 SC. 

    Can a Contractor’s Workman raise an industrial dispute on the Principal Employer under ID Act ? 

    • No
    • In the matter of Delhi Cloth and General Mills Co Vs State of Rajasthan and others [1993 III LLJ 933] High Court of Rajasthan held that the disputes which have been referred to the Industrial Tribunal by the State Government are such disputes which are covered under the provisions of Contract Labour R & A Act, 1970 and can be dealt with only under the provisions of the CLRA Act, 1970, which is special Act and reference under I D Act is not maintainable and is without 
    • Only who are covered under the definition of ‘workman’ under ID Act can raise an ‘Industrial Dispute’.

    Individual Dispute becomes an Industrial Dispute Section 2A 

    Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and the employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. 

    Industrial Dispute

    ‘Any person’

    Though a retired employee could not raise an industrial dispute, the trade union can raise the dispute under reference taking into consideration the meaning of expression ‘any person’ as defined in sub- sec(k) of Section 2 of the Act that dispute having a direct bearing on the substantial interest of the work of the employer - Eastern Coalfields Ltd V Niranjan Chatterjee 2008 (III)LLJ 439 Cal HC 

    Industrial Dispute €Resolution

    • Bilateral Meeting €Not reached a settlement
    • Joint Meeting by Labour Department €Not reached a settlement
    • Conciliation Meeting/s €Not reached a settlement
    • Conciliation Officer €Failure Report €To Labour Commissioner
    • Evaluation of failure report by Labour Commissioner
    • Labour Commissioner intervention to bring settlement between the parties
    • Upon Failure €forwarding the failure report to Government
    • Government referring it to €Labour Court / Industrial Tribunal
    • Decision of the Labour Court / Industrial Tribunal €Award

    Publication of Award €will become enforceable after 30 days

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