LABOUR LAW NO.

1 - The Apprentices Act,1961

Question 1.
Apprentices Act- What is the Object of the Apprentices Act

Answer 1.
A. The object of the Act is to regulate the training of apprentices and also to control the
training of apprentices. Preamble.

Question 2.
Q.Who is called an Apprentice

Answer 2.
A. A person who is engaged to undergo a course of apprenticeship training under an
employer in pursuance of a contract of apprenticeship is called an apprentice. S.2(aa)
.

Question 3.
Q. What is the difference between an apprentice and a worker

Answer 3.
A. Though the word "apprentice" was defined the word "worker" was not defined in the
Act. "Apprentice" means a person who is undergoing apprenticeship training.....". The
word "worker" is now defined as "any person who is employed for wages in any kind of
work and who gets his wages directly from the employer....". Briefly stated the
difference between an apprentice and a worker is that an apprentice is a person who is
`engaged' for learning a trade and is paid a `stipend' while a worker is a person
`employed' for doing any kind of work and is paid `wages'. S.2(aa) & (r)

Question 4.
Q. What are the obligations of an employer under Apprentices Act?

Answer 4.
A. The object of the Act is to `prepare' craftsmen through the joint efforts of employers
and apprentices. The Act has, therefore, taken care to define the obligations of
employers and apprentices in two successive sections 11 and 12. The obligations of an
employer are:- (a) to provide the apprentice with the training in his trade in accordance
with the provisions of the Act, and the rules made thereunder, (b) if the employer is not
himself qualified in the trade, to ensure that a person who possesses the prescribed
qualifications is placed in charge of the apprentice, (c) to provide adequate instructional
staff, possessing such qualifications as may be prescribed, for imparting practical and
theoretical training and facilities for trade test of apprentices; and (d) to carry out his
obligations under the contract of apprenticeship

Question 5.
Q. What are the obligations of an apprentice?

Answer 5.
A. The obligations of an apprentice are :- (a) to attend classes regularly; (b) to carry out
all lawful orders of his employer and superiors; (c) to carry out his obligations under the
contract of apprenticeship; and (d) to learn his trade conscientiously and deligently and
endeavour to become a skilled craftsman. S.12.

Question 6.
Q. Is the apprentice governed by any rules of conduct and discipline during the period
of his training?

Answer 6.
A. In all matters of conduct and discipline the apprentice has to abide by the rules
applicable to the regular employees of the corresponding category in the establishment
in which he is undergoing training. S.17.

Question 7.
Q. Is the employer required to make any payment to an apprentice undergoing
apprenticeship training under him?

Answer 7.
A. The employer is required to pay a stipend to every apprentice during the period of
apprenticeship training. S.13.

Question 8.
Q. Is registration of the contract of apprenticeship an essential requirement for a person
answering the description of the word "apprentice"?

Answer 8.
A. Registration of the contract of apprenticeship under section 4(4) of the Act is not
necessary for a person answering the description of the word "apprentice" under
section 2(aa) of the Act. Note:- Held in Bhaskaran v. Kerala State Electricity Board,
1986 I C.L.R. 292.

Question 9.
Q. Is there any restriction of age for engaging a person as an apprentice?

Answer 9.
A. A person shall not be qualified for being engaged as an apprentice unless he is not
less than 14 years of age. S.3(a).

Question 10.
Q. Is it permissible for the employer or the apprentice to terminate the contract of
apprenticeship before the expiry of the period of apprenticeship training?

Answer 10.
A. It is permissible for both the employer and the apprentice to terminate the contract of
apprenticeship before the expiry of the period of apprenticeship training, but this has
got to be done through the Apprenticeship Adviser. Moreover, on such termination, the
party responsible for termination will have to pay to the other party such com-
pensation as is prescribed by the rules made under the Act, or is determined by the
Apprenticeship Adviser. S.7.

Question 11.
Q. How can we resolve the conflict between the provisions of Section 2(s) of the
Industrial Disputes Act which says that an apprentice is a workman and section 18 of
the Apprentices Act which says that an apprentice is not a worker?

Answer 11.
A. The conflict can be resolved by applying the principle of harmonious construction so
that each provision may operate without encroaching on the field of the other. Thus, a
person who is appointed as an apprentice under the provisions of the Apprentices Act
would not be a workman under section 2(s) of the Industrial Disputes Act, but a person
who is designated as an apprentice but is not governed by the Apprentices Act would
be a workman under the said section. Note:- Held in Karuna Shankar Tripathi & Ors. v.
State of U.P. & Ors. 1992 II C.L.R. 484.

Question 12.
Q. Is the Act applicable to every scheme for training of persons?

Answer 12.
A. The provisions of the Act apply only to training in a designated trade as defined in
Section 2(e) of the Act. Note:- Held in Petroleum Employees Union v. Indian Oil
Corporation Ltd. & Ors. 2001 I CLR 765.
Question 13.
Q. Are any provisions of the Factories Act, 1948, applicable to apprentices?

Answer 13.
A. If the apprentices are undergoing training in a factory, the provisions of Chapters III,
IV and V of the Factories Act, 1948, shall be applicable to them in relation to their
health, safety and welfare. S.14.

Question 14.
Whether provisions ofFactories Act applies to apprentices ?

Answer 14.
A. If the apprentices are undergoing training in a factory, the provisions of Chapters III,
IV and V of the Factories Act, 1948, shall be applicable to them in relation to their
health, safety and welfare. S.14.

Question 15.
Q. Is an apprentice entitled to any leave and holidays?

Answer 15.
A. An apprentice is entitled to casual leave, medical leave and extraordinary leave as
per the rules made under the Act. He is also entitled to all holidays which are observed
in the establishment in which he is undergoing training. S.15.

Question 16.
Q. Is the employer liable to pay any compensation for injury caused to an apprentice
undergoing apprenticeship training under him?

Answer 16.
A. If personal injury is caused to any apprentice by accident arising out of and in the
course of his training as an apprentice, his employer is liable to pay compensation in
accordance with the provisions of the Workmen's Compensation Act, 1923. S.16.

Question 17.
Q. What is the remedy provided under the Act for resolving a dispute about the
interpretation of the contract of apprenticeship?

Answer 17.
A. If any dispute arises between an employer and an apprentice about the
interpretation of the contract of apprenticeship, it can be referred to the Apprenticeship
Adviser for decision. S.20(1).

Question 18.
Q. Can an apprentice straightaway invoke the provisions of Article 226 of the
Constitution of India for regularisation?

Answer 18.
A. Section 20 of the Act provides that any disagreement or dispute between an
employer and an apprentice ought to be referred to the Apprenticeship Advisor for
decision. It would, therefore, not be appropriate to straightaway challenge any such
disagreement or dispute by invoking the provisions of Article 226 of the Constitution of
Ind Note: Held in Hitesh N. Vyas & Ors. v. Gujarat Electricity Board, 1997 II C.L.R. 253
(Gujarat).

Question 19.
Q. Where a letter of appointment given to an apprentice contains an assurance that on
successful completion of his training he will be absorbed in the service of the employer,
can the employer say that he is under no obligation to offer employment to him?

Answer 19.
A. Where a letter of appointment given to an apprentice contains such assurance, it
binds the employer to offer employment to the apprentice and, equally, it binds the
apprentice to accept the offer. Note:- Held in Narebdra Kumar v. State of Punjab, 1985 I
C.L.R. 121.

Question 20.
Q. Is the employer obliged to offer any employment to an apprentice undergoing
apprenticeship training under him?

Answer 20.
A. It is not obligatory on the part of the employer to offer any employment to any
apprentice who has completed apprenticeship training in his establishment nor it is
obligatory on the part of the apprentice to accept any employment under the employer.
S22 Note:- If, however, the contract of apprenticeship contains a condition that the
apprentice shall, after completion of the apprenticeship-training, serve the employer,
the employer shall, on such completion, be bound to offer employment to the
apprentice and the apprentice shall be bound to serve the employer as per the terms of
the contract. S22(2)

Question 21.
Q. Is it just and proper for any employer to employ non-trained direct recruits where
trained apprentices and available?
Answer 21.
A. The Supreme Court has stated that the employer, while dealing with the claim of
trainees to get employment after successful completion of their training, shall keep in
mind that:- (1)Other things being equal, a trained apprentice should be given
preference over direct recruits. (2) For this, a trainee would not be required to get his
name sponsored by any employment exchange. (3) The concerned training institute
would maintain a list of the persons trained year wise. The persons trained earlier
would be treated as senior to the persons trained later. In between the trained
apprentices, preference shall be given to those who are senior. Note:- Held in U.P. State
Road Transport Corporation & Anr. v. U.P. Parivahan Nigam Shishukhs Berozgar
Sangh & Ors. 1995 L.I.C. 1361.

Question 22.
Q. Is an employee appointed as an apprentice in the newspaper industry an apprentice
under the Apprentices Act?

Answer 22.
A. The provisions of the Apprentices Act have not been extended to the newspaper
industry and therefore, the appointment of an employee as an apprentice in the
newspaper industry cannot be treated as one under the provisions of the Apprentices
Act. Note:- Held in M. Raghuram v. Labour Court, Hyderabad & Ors., 1994 I C.L.R.
189.

Question 23.
Q. Is it open to an employer who is not covered by the Apprentices Act to engage
persons as apprentices?

Answer 23.
A. A contract of apprenticeship pure and simple is not prohibited by the Act.
Consequently, any employer can engage persons as apprentices if the contract is
otherwise bona fide and not a camouflage or subterfuge. Note:- Held in Patel Pravin
Kumar Somnath & Ors. v. Gujarat State Land Development Corporation Ltd. & Ors.
1992 II C.L.R. 429.

Question 24.
Q. Is an apprentice a worker?

Answer 24.
A. An apprentice undergoing apprenticeship training is a trainee and not a worker. The
provisions of labour laws are, therefore, not applicable to or in relation to such
apprentice. S.18. Note-1:- For exception to this provision see sections 14 and 16. Note-
2:- An apprentice is included in workman's definition in the Industrial Disputes Act,
1947. An apprentice is excluded from employee's definition in the Payment of Bonus
Act, 1965, and the Payment of Gratuity Act, 1972.

LABOUR LAW NO.2 - The Contract Labour (R&A)Act,1970

Question 1.
What is the Object of the Contract Labour Act?

Answer 1.
A. The object of the Act is to do away with the abuses of the system of
employment of contract labour. With the said object the Act regulates the
employment of contract labour in certain establishment and provides for its
abolition in certain circumstances. Preamble

Question 2.
Introduction about the Act

Answer 2.
Contract labour remained ignored for a long time. Neither the contractor nor
the principal employer cared for contract labour. The Parliament, therefore,
passed the Contract Labour (Regulation and Abolition) Act in 1970 to prevent
the exploitation of contract labour. The policy of the Act is to prohibit the
employment of contract labour and wherever this is not possible, to improve
the conditions of work of contract labour. Apart from providing for prohibition of
employment of contract labour, the Act, therefore, provides for health and
welfare of the contract labour.

Question 3.
Q. Are there any establishments to which the Act is not applicable?

Answer 3.
A. The Act is not applicable to establishments performing work only of an
intermittent or casual nature. S.1(5)

Question 4.
Q. Why the Act has not done away with contract labour altogether?

Answer 4.
A. There are several fields of employment where it is not otherwise possible to
 have continuous employment and as such, regard being had to the necessities
of the situation, the Act has provided for continuation of contract labour. Note:-
See Secretary, Haryana State Electricity Board v. Suresh & Ors., 1999 I CLR
959 (S.C.)

Question 5.
Q. Which establishments or contractors are covered by the Act?

Answer 5.
A. The Act is applicable- (a) to every establishment employing twenty or more
workmen as contract labour; (b) to every contractor employing twenty or more
workmen. The Act empowers the Central Government and the State
Government to apply its provisions to any establishment or contractor
employing less than twenty workmen. S.1(4)

Question 6.
Q. What is the primary duty of a principal employer or a contractor covered by
the Act?

Answer 6.
A. Every principal employer of an establishment to which the Act applies must
get his establishment registered under the Act for the purpose of employing
contract labour and every contractor to whom the Act applies must obtain a
licence under the Act for the purpose of undertaking or executing any work
through contract labour.

Question 7.
Q. Does the Act confer any right on the contract labourers to be absorbed by
the principal employer?

Answer 7.
A. No right flows from the provisions of the Act for the contract labourers to be
absorbed by or to become the employees of the principal employer. Note:-
Held in R.K. Panda & Ors. v. Steel Authority of India & Ors., 1994 II C.L.R. 402.

Question 8.
Q. Is a notification issued by a State Government under Section 10(1) of the
Act prohibiting the employment of contract labour in certain processes in
certain establishments applicable to an establishment in respect of which the
Central Government is the appropriate Government?
Answer 8.
A . A State Government has no jurisdiction or authority to issue a notification
under Section 10(1) of the Act with respect to an establishment in respect of
which the Central Government is the appropriate Government. A State
Government notification under Section 10(1) of the Act will have no application
to an establishment in respect of which the Central Government is the
appropriate Government. Note:- Held in BHEL T.T. Sangam v. Mgt. of BHEL,
2000 I CLR 856 (Mad.H.C.)

Question 9.
Q. Can a notification issued by the Government under Section 10(1) of the Act
be quashed on the ground that the Government had not complied with the
provisions of Section 10(2) of the Act?

Answer 9.
A. High Courts have quashed notifications issued under Section 10(1) of the
Act on the ground that before issuing them the provisions of Section 10(2)
were not complied with. Note: See Tractors and Farm Equipment Ltd.,
Karnataka v. State of Karnataka, 2003 (3) L.L.N. 1110 (Karn.H.C.); Indian Iron
& Steel Co. Ltd. v. Union of India, 2002 III L.L.J. 603 (Jhar.H.C.).

Question 10.
Q. What is meant by work of an intermittent nature?

Answer 10.
A. Work is deemed to be of an intermittent nature- (i) if it is of a seasonal
character and is performed for not more than 60 days in a year, or (ii) in other
cases if it was performed for not more than 120 days in the preceding 12
months. S.1(5)

Question 11.
Q. What are the circumstances in which the registration of an establishment
can be revoked?

Answer 11.
A. The Registering Officer can revoke the registration of any establishment if
he is satisfied- (i) that the registration has been obtained by misrepresentation
or suppression of any material fact, or (ii) that the registration has become
useless or ineffective for any other reason. S.8.
Question 12.
Q. Can an Industrial Tribunal decide any dispute regarding abolition of contract
labour after the passing of the Contract Labour Act?

Answer 12.
A. The Contract Labour Act is an exclusive legislation for the purpose of
regulation or abolition of contract labour. Having regard to the powers given to
the Government under section 10 of the Act an Industrial Tribunal has no
jurisdiction to decide any dispute regarding abolition of contract labour after
passing of the Act. Note: Held in Vegoils Pvt. Ltd. v. Workmen, 1971 II LLJ 567.

Question 13.
Q. Can any establishment be prohibited from employing contract labour?

Answer 13.
A. The Central Government or a State Government can prohibit any
establishment from employing contract labour for performing any work after
considering- (a) whether the conditions of work and benefits provided for the
contract labour in the establishment are satisfactory; (b) whether work is
incidental to or necessary for the business of the establishment; (c) whether it
is of perennial nature, that is to say, it is of sufficient duration; (d) whether it is
done ordinarily through regular workmen; (e) whether it is sufficient to employ
considerable number of whole-time workmen. S.10.

Question 14.
Q. What are the in-built safeguards provided in section 10 to prevent the
appropriate Government from misusing or abusing its power or exercising its
power arbitrarily?

Answer 14.
A. The power vested under section 10 in the appropriate Government to
prohibit employment of contract labour in any process, operation or other work
in any establishment has to be exercised in the manner indicated in the
provisions of sub- sections (1) and (2) of that section; i.e., after prior
consultation with the Advisory Board and after taking into consideration all the
relevant factors enumerated under clauses (a) to (d) of sub-section (2) of that
section. Note: Held in Zenith Industrial Services v. Union of India, 1989 II CLR.
402.

Question 15.
 Q. What is the procedure for getting an establishment registered under the
Act?

Answer 15.
A. The procedure for registration of establishment is as follows:- (a) If the Act is
applicable to an establishment the principal employer of the establishment has
to make an application in the prescribed form accompanied by prescribed fees
to the Registering Officer for registration of the establishment under the Act. (b)
If the application is complete in all respects the Registering Officer will register
the establishment and issue a certificate of registration in the prescribed form
to the principal employer.

Question 16.
Q. What is the effect of not obtaining registration under section 7 or of
revocation of registration under section 8?

Answer 16.
A. The principal employer of an establishment who has not obtained the
required registration under section 7 or whose registration has been revoked
under section 8 is prohibited from employing any contract labour in his
establishment. S.9.

Question 17.
Q. While issuing any notification under section 10 is it necessary for the
Government to specify any particular establishment?

Answer 17.
A. A notification issued under section 10 is in respect of a process, operation or
other work and, therefore, it need not be in respect of any particular
establishment. Note: Held in United Labour Union v. Union of India, 1990 I
C.L.R. 363.

Question 18.
Q. Is it permissible for the appropriate Government having once issued a
notification under Section 10(1) of the Act prohibiting employment of contract
labour in any establishment, to suspend the operation of the notification on the
establishment making a representation against the notification?

Answer 18.
A. Once a notification prohibiting employment of contract labour in any
establishment is issued under Section 10(1) of the Act by the appropriate
 Government, it denudes itself of its power under section 10(1) of the Act and,
therefore, it is not permissible for the appropriate Government to suspend the
operation of the notification. Note:- Held in Steel Authority of India & Anr. v.
State of West Bengal, 1998 II C.L.R. 707 (Calcutta).

Question 19.
Q. Can the Supreme Court or a High Court direct the Central Government or a
State Government, as the case may be, to prohibit employment of contract
labour in any work in any establishment?

Answer 19.
A. The Supreme Court or a High Court is entitled to issue a mandate upon the
Central Government or a State Government, as the case may be, to discharge
its statutory obligation in the matter of prohibition of employment of contract
labour in any work in any establishment as required under section 10 of the
Act. Note: Held in Catering Cleaners of Southern Rly. v. Union of India, 1987 I
C.L.R 369 and Adhir Kumar Chowdhury v. State of West Bengal, 1987 I C.L.R
418.

Question 20.
Q. What is the procedure for obtaining a licence under the Act?

Answer 20.
A. The procedure for obtaining a licence is as follows: (a) A contractor to whom
the Act is applicable has to make an application in the prescribed form
accompanied by the necessary fees and security deposit to the Licensing
Officer for grant of a licence under the Act. (b) The Licensing Officer after
making the necessary investigation may issue a licence in the prescribed form
containing the conditions subject to which the same is granted. (c) The licence
will be valid for the period specified therein and will have to be renewed from
time to time. S.13

Question 21.
Q. What is the task which the appropriate Government has to perform while
abolishing contract labour or making a reference for abolition of contract
labour?

Answer 21.
A: No doubt the appropriate Government exercises administrative power both
in relation to prohibition of employment of contract labour in terms of Section
10 of Contract Labour Act as also in relation to making a reference for
 adjudication under Section 10 of Industrial Disputes Act. While issuing a
notification under Section 10 of Contract Labour Act the appropriate
Government would have to proceed on the basis that the principal employer
had appointed contractors and such appointments are valid in law. Then it has
to take a decision to prohibit employment of contract labour after satisfying
itself that all the relevant factors enumerated under Clauses (a) to (d) of
Section 10(2) of Contract Labour Act did exist. While making a reference for
adjudication under Section 10 of Industrial Disputes Act, the validity of
appointment of the contractor would itself be an issue as the appropriate
Government must prima facie satisfy itself that there exists a dispute as to
whether the workmen are in fact not employed by the contractor but by the
management. Note:- See Steel Authority of India Ltd. v. Union of India & Ors.
2006 III CLR 659 (S.C.).

Question 22.
Q. What is the provision about renewal of a licence?

Answer 22.
A. A licence will remain in force upto 31st December of the year for which the
licence is granted. It should be renewed every year. The application for
renewal should be made not less than 60 days before the date on which the
licence expires. Rules 27 & 29

Question 23.
Q. What should be done if a certificate of registration or a licence is lost?

Answer 23.
A. If a certificate of registration or a licence has been lost, defaced or
accidentally destroyed, a duplicate should be obtained from the registering
officer or the licensing officer as the case may be, on payment of the
prescribed fee. Rule 30

Question 24.
Q. What is the effect of not having a licence under the Act?

Answer 24.
A. If a contractor to whom the Act is applicable does not have a licence under
the Act, he is prohibited from undertaking or executing any work through
contract labour. S.12
Question 25.
Q. What is the liability of the principal employer for the provision of the
amenities or payment of wages to contract labour?

Answer 25.
A. If a contractor fails to provide the amenities or to make payment of wages,
the principal employer will be liable to provide the amenities or to make
payment of wages to the contract labour. The principal employer can recover
such expenses from the contractor. Ss.20-21

Question 26.
Q. What is meant by security deposit?

Answer 26.
A. Security deposit is the amount to be deposited by a contractor for due
performance of the conditions of the licence and compliance with the
provisions of the Act and the rules made thereunder. Security deposit is
refundable.

Question 27.
Q. What are the circumstances in which a licence can be revoked or
suspended?

Answer 27.
A. The Licensing Officer can revoke or suspend a licence or forfeit the security
deposit if he is satisfied- (i) that the licence has been obtained by
misrepresentation or suppression of any material fact, or (ii) that the holder of
the licence has failed to comply with the conditions specified therein, or (iii) that
the holder of the licence has contravened any provision of the Act or the rules
made thereunder. S.14

Question 28.
Q. What is the effect of a principal employer employing contract labour without
holding a certificate of registration and a contractor also not holding a licence?

Answer 28.
A. Every worker who works for a principal employer to whom the provisions of
the Contract Labour Act are attracted is to be treated as the worker of the
principal employer unless it is satisfied that the establishment has secured a
certificate of registration for the relevant period under section 7 and it had
employed contract labour through a licensed contractor under section 12.
 Note: Held in Food Corporation of India v. Central Government Industrial
Tribunal, 1988 I C.L.R. 144 and Food Corporation of India Workers' Union v.
Food Corpn. of India & Ors., 1990 I C.L.R. 829.

Question 29.
Q. What is the effect of a principal employer holding a certificate of registration
and employing contract labour, but a contractor not holding a licence?

Answer 29.
A. There is no provision in the Contract Labour Act whereby it can be
construed that the failure of the contractor to register his contract under section
12 of the Act, the employees employed by the contractor would become the
direct employees of the principal employer. Note: Held in General Labour Union
v. K.M. Desai & Ors., 1990 I C.L.R 22.

Question 30.
Q. Are the orders of the Registering Officer and the Licensing Officer
appealable?

Answer 30.
A. Any person aggrieved by the order of the Registering Officer or the
Licensing Officer can prefer an appeal to the Appellate Officer. Such appeal
must be filed within 30 days from the date of communication of the order. S.15.

Question 31.
Q. What are the amenities to be provided by a contractor for the maintenance
of health and welfare of contract labour?

Answer 31.
A. A contractor is required to provide canteens, rest-rooms, latrines, urinals,
drinking water, washing facilities and first aid boxes for the use of contract
labour. He is also required to make prompt and proper payment of wages to
contract labour. The contractor has to do all these things in conformity with the
relevant provisions of the Act or the rules made thereunder. Ss.16-21

Question 32.
Q. Is it an offence on the part of a contractor to supply security guards to a
principal employer without taking a licence under section 12 of the Act?

Answer 32.
 A. It is not an offence to do so because the security guards are not employed
in or in connection with any work of the principal employer. Held:- Held in
Basanta Kumar Mohanty v. State of Orissa, 1992 II C.L.R. 712.

Question 33.
Q. What are the powers of the Inspectors appointed under the Act?

Answer 33.
A. An Inspector appointed under the Act has power- (a) to enter any premises
or place where contract labour is employed, for the purpose of examining any
register, record or notices; (b) to examine any workman employed in such
premises or place; (c) to require any person or workman to give information
regarding work or payment for work; (d) to seize or take copies of any register,
record of wages or noti ces. S.28

Question 34.
Q. What are the offences under the Contract Labour Act and what is the
punishment for them?

Answer 34.
A. (1) If any person obstructs an inspector or wilfully refuses to produce any
document demanded by him, he would be punished with imprisonment upto 3
months, or fine upto Rs.500/-. (2) If any person contravenes any provision of
the Act or of any rules made thereunder prohibiting, restricting or regulating the
employment of contract labour or contravenes any condition of a licence
granted under the Act, he would be punished with imprisonment upto 3
months, or fine upto Rs.1,000/- , or with both. if such contravention is
continued after conviction the fine would be upto Rs.100/- per day. (3) If any
person contravenes any other provision of the Act or of the rules made
thereunder, he would be punished with imprisonment upto 3 months, or with
fine upto Rs.1,000/- or with both. Ss.22-24

Question 35.
Q. What are the provisions regarding payment of wages of contract labour?

Answer 35.
A. A contractor is responsible for payment of wages of contract labour. In an
employment to which the Payment of Wages Act or the Minimum Wages Act,
as the case may be, apply, wages of contract labour shall be paid in
accordance with the provisions of the Payment of Wages Act or the Minimum
Wages Act, as the case may be. In any other case they shall be paid in
 accordance with the provisions of Rules 45 to 51 of Contract Labour Rules.
S.21

Question 36.
Q. What type of record is required to be maintained under the Act by a
principal employer or contractor?

Answer 36.
A. It is the duty of every principal employer and every contractor to maintain
records giving particulars of contract labour employed, the nature of work
performed by the contract labour, the rates of wages paid to the contract
labour, etc. as per rules framed under the Act. It is also their duty to exhibit in
the premises of the establishment notices containing particulars about the
hours of work, nature of duty, etc. as per rules framed under the Act. .29

Question 37.
Q. Is a principal employer required to submit any return to the Registering
Officer?

Answer 37.
A. Every principal employer of a registered establishment is required to send to
the Registering Officer concerned an annual return in the prescribed form. The
return should reach the Registering Officer not later than the 15th February
following the end of the year to which it relate. Rule 63(2)

Question 38.
Q. Is it permissible under the Act to exempt any establishment from its
provisions?

Answer 38.
A. The Act permits the Government in the case of an emergency to exempt
any class of establishments or any class of contractors from the application of
all or some of the provisions of the Act or the rules made thereunder for a
specified period and subject to specified conditions and restrictions. S.31

Question 39.
Q. How to identify "the appropriate Government" in relation to any
establishment?

Answer 39.
 A. In relation to an establishment in respect of which the appropriate
Government under the Industrial Disputes Act, 1947 is the Central
Government, the same Government is the appropriate Government
under this Act. In relation to any other establishment, the Government of
the State in which that other establishment is situate is the appropriate
Government. S.2(1)(a)

LABOUR LAW NO.3 – The Employees Compensation

Act

Question 1.
Q. What is the amount of compensation an employee is entitled to receive
when his injury results in his permanent total disablement?

Answer 1.
A. When the injury of an employee results in his permanent total
disablement, the amount of compensation he is entitled to receive is an
amount equal to 60% of the monthly wages of the injured employee
multiplied by a figure ranging from 228.54 to 99.37 (depending upon the
age of the injured person) or an amount of Rs.1,40,000 whichever is more.
S.4(1)(b) Note: By Amendment Act of 2009 the minimum amount of
compensation for permanent total disablement is enhanced from
Rs.90,000/- to Rs.1,40,000. The above amendment has come into force
from 18.1.2010.

Question 2.
Q. What is the amount of compensation an employee is entitled to receive
when his injury results in his permanent total disablement?

Answer 2.
A. When the injury of an employee results in his permanent total
disablement, the amount of compensation he is entitled to receive is an
amount equal to 60% of the monthly wages of the injured employee
multiplied by a figure ranging from 228.54 to 99.37 (depending upon the
age of the injured person) or an amount of Rs.1,40,000 whichever is more.
S.4(1)(b) Note: By Amendment Act of 2009 the minimum amount of
compensation for permanent total disablement is enhanced from
Rs.90,000/- to Rs.1,40,000. The above amendment has come into force
from 18.1.2010.

Question 3.
 Q. Who is entitled to receive compensation under the Act?

Answer 3.
A. As per the Workmen’s Compensation (Amendment) Act, 2009 (Act
No.45 of 2009) which has come into force from 18.1.2010 the following
persons are liable to receive compensation under the Act:- (i) a railway
servant not permanently employed in any administrative, district or sub-
divisional office of a railway and not employed in any such capacity as is
specified in Schedule II; or (ii) (a) a master, seaman or other members of
the crew of a ship, (b) a captain or other member of the crew of an aircraft,
(c) a person recruited as driver, helper, mechanic, cleaner or in any other
capacity in connection with a motor vehicle, (d) a person recruited for work
abroad by a company, and who is employed outside India in any such
capacity as is specified in Schedule II and the ship, aircraft or motor
vehicle, or company, as the case may be, is registered in India; or (iii)
employed in any such capacity as is specified in Schedule II, whether the
contract of employment was made before or after the passing of this Act
and whether such contract is expressed or implied, oral or in writing; but
does not include any person working in the capacity of a member of the
Armed Forces of the Union; and any reference to any employee who has
been injured shall, where the employee is dead, include a reference to his
dependants or any of them]; Ss.2(1)(dd)

Question 4.
Q. What is the amount of compensation payable in respect of a workman
whose injury has resulted in his death?

Answer 4.
A. When the injury to an employee results in his death, the amount of
compensation payable to his dependents is an amount equal to 50% of the
monthly wages of the deceased employee multiplied by a figure ranging
from 228.54 to 99.37 (depending upon the age of the deceased employee)
or an amount of Rs.1,20,000, whichever is more. S.4(1)(a) Note- By
Amendment Act of 2009 the minimum amount of compensation is
enhanced from Rs.80,000 to Rs.1,20,000. This amendment is in force from
18.1.2010 Note:- The Central Government has declared Rs.8000/- (rupees
eight thousand) as monthly wages for calculation of compensation. This
amendment is in force from 31.5.2010.

Question 5.
Applicability of the Act

Answer 5.
 A. Every employer- (i) employing persons listed in Schedule II to the Act; or
(ii) carrying on an occupation listed in Schedule III to the Act; is liable to
pay compensation under the Act. Ss.2(1)(n) & 3

Question 6.
Q. Is a person engaged for one day to drive a vehicle of the owner, a
workman under the Act?

Answer 6.
A. He was a workman under the Act. The owner had a definite control over
the person. The person was driving the vehicle on the direction of the
owner of the vehicle. His engagement for one day only will not throw him
out of the definition of workman under Section 2(n) of the Act. Note: Held
in New India Assurance Co. Ltd. v. Mohan Kumar Sahoo, 2004 II CLR 118
(Ori.H.C.)

Question 7.
Q. Is a driver in Government employment a workman under the Act?

Answer 7.
A. Schedule II to the Act gives a list of persons who are included in the
definition of workman. A person employed as a driver finds place in the
schedule. A person employed as a driver comes under the category of
workman irrespective of the position whether he is in non-Government
employment or Government employment. Note:- Held in Radhamony v.
Secretary, Department of Home Affairs, 1995 I C.L.R. 339.

Question 8.
Q. Can a person be excluded from the definition of the term workman on
the ground that he is a civil servant?

Answer 8.
A. There is nothing in the Act to show that a person holding a post in civil
services of a State would be excluded from the definition of the term
workman. Note: - Held in State of Gujarat v. R.K. Deshdia, 1991 I C.L.R.
582.

Question 9.
Q. If a workman was injured while he had gone to fetch water for drinking
for himself and others, did the injury arise out of and in the course of
 employment?

Answer 9.
A. If the workman was engaged to do miscellaneous work and had gone to
fetch water under the instruction of the employer, the injury was the result
of an accident which arose out of and in the course of employment. Note:-
Held in N.A. Chauhan v. N.K. Shah, 1991 (1) C.L.R. 361.

Question 10.
Q. If a workman died after drinking contaminated water provided by the
employer, did the death arise out of and in the course of employment?

Answer 10.
A. If a workman died as a result of drinking contaminated water, which was
provided by the employer for the workmen to drink, the death was the
result of an accident which arose out of and in the course of employment.
Note:- Held in Div. Personnel Officer, Southern Rly. v. Karthiayani, 1987 I
CLR 244.

Question 11.
Q. If a person, a contractor, who had undertaken the work of painting a
house, fell down and died while he was doing this work, are his legal
representatives entitled to compensation?

Answer 11.
A. Engaging a person in this manner does not make him an employee or a
workman. The case did not fall within the four corners of the Act. Note:
Held in Lakshminarayana Shetty v. Shantha & Anr., 2002 III CLR 240
(S.C.)

Question 12.
Q. If a workman died of heart attack while he was on his way home after
completing night duty, did the death arise out of and during the course of
employment?

Answer 12.
A. It is to be seen that once the theory of notional extension of
employment is properly applied to the factual situation pertaining to the
case on hand, it has got to be held that the accident has occurred within
the area falling within the notional extension theory. The deceased was on
his way home after completion of his duty. Note: Held in United India
 Insurance Company Ltd., Bangalore v. Susheela (Smt.) & Ors. 2004 I CLR
1025 (Karn.H.C.)

Question 13.
Q. To whom is the compensation payable when injury caused by accident
to a workman results in his death?

Answer 13.
A. Where injury is caused by accident to a workman results in his death,
compensation is payable to the dependents of the workman. Dependents
means those relatives of the deceased workman who are specified in
section 2(1)(d) of the Act. S.8

Question 14.
Q. What are the conditions for receiving compensation for personal injury
caused by accident?

Answer 14.
A. A workman to whom personal injury is caused by accident is entitled to
receive compensation under the Act if the accident arose out of and in the
course of his employment. That means the accident must occur while the
workman is in employment and it must also be connected with his
employment.

Question 15.
Q. Is a Government servant, who is employed as a `mahout', a workman
under the Act?

Answer 15.
A. A Government servant, who is employed as a `mahout' in the Forest
Department, is a "workman" under the Act even if he is covered by family
pension, general provident fund and family benefit schemes of the
Government. Note: - Held in State of Kerala v. Khadeeja Beevi, 1988 II
CLR 333.

Question 16.
Q. If a truck driver was way-laid and killed by miscreants to loot the
consignment, did the death arise out of and in the course of his
employment?
Answer 16.
A. If the truck driver became a victim of the offence at a time he was
engaged in discharging the duties assigned to him, the death was the
result of an accident which arose out of and in the course of his
employment. Note:- Held in National Insurance Co. Ltd. v. Nalini Dehuri &
Ors., 2000 II CLR 744.

Question 17.
Introduction

Answer 17.
The Workmen's Compensation Act, 1923, is an old but an important
enactment, as it introduced a kind of social security scheme for the
workers of this country. It enables a workman, and in case of death of a
workman, his dependents, to get, at the cost of his employer compensation
for employment injury. Much later, in 1948, the Employees' State Insurance
Act, introduced a social insurance scheme for the workers of this country.
Unlike the earlier scheme this scheme rests on joint contribution by
Government, employers and workers. The two enactments together
constituted what may be called a Code of social security benefits for the
workers of this country.

Question 18.
Q. What kinds of injuries are compensated for under the Act?

Answer 18.
A. Under the Act injuries are broadly classified into four groups as those
resulting in (i) death, (ii) permanent total disablement, (iii) permanent
partial disablement and (iv) temporary disablement whether total or partial.
The Act provides for different scales of compensation for different kinds of
injuries. S.4

Question 19.
Q. What exactly is the meaning of the expression "arising out of and in the
course of employment"?

Answer 19.
A. The words "arising out of duty or employment" are understood to mean
"during the course of the employment or service". The words "in the
course of employment" mean "in the course of work which the workman is
employed to do and which is incidental to it. The words suggest that there
 must be a causal relationship between the accident and the employment.
Note:- See N.A. Chauhan v. N.K. Shah, 1991 I C.L.R. 361.

Question 20.
Q. What is the object of the Workmen's Compensation Act, 1923?

Answer 20.
A. The object of the Act is to provide for the payment of compensation by
certain employers to their workmen for injury caused to them by accident
while in employment. If a workman contracts an occupational disease
while in employment, it is also treated under the Act as injury caused by
accident. Preamble and S.3

Question 21.
Q. If a workman died after drinking contaminated water provided by the
employer, did the death arise out of and in the course of employment?

Answer 21.
A. If a workman died as a result of drinking contaminated water, which was
provided by the employer for the workmen to drink, the death was the
result of an accident which arose out of and in the course of employment.
Note:- Held in Div. Personnel Officer, Southern Rly. v. Karthiayani, 1987 I
CLR 244.

Question 22.
Q. If a workman died after drinking contaminated water provided by the
employer, did the death arise out of and in the course of employment?

Answer 22.
A. If a workman died as a result of drinking contaminated water, which was
provided by the employer for the workmen to drink, the death was the
result of an accident which arose out of and in the course of employment.
Note:- Held in Div. Personnel Officer, Southern Rly. v. Karthiayani, 1987 I
CLR 244.

Question 23.
Q. Is an apprentice entitled to claim compensation under the Workmen
Compensation Act if personal injury is caused to him by accident arising
out of and in the course of his training as an apprentice?
Answer 23.
A. Section 16 of the Apprentices Act, 1961 entitles an apprentice to claim
compensation under the Workmen Compensation Act for such injury.
Note:- Held in Divisional Controller, G.S.R.T.C. v. Ashok Kumar Keshavlal
Parekh, 1999 I CLR 586 (Guj. H.C.)

Question 24.
Q. If a workman was injured while he had gone to fetch water for drinking
for himself and others, did the injury arise out of and in the course of
employment?

Answer 24.
A. If the workman was engaged to do miscellaneous work and had gone to
fetch water under the instruction of the employer, the injury was the result
of an accident which arose out of and in the course of employment. Note:-
Held in N.A. Chauhan v. N.K. Shah, 1991 (1) C.L.R. 361.

Question 25.
Q. If there was a private quarrel between two drivers of the same employer
when they were on duty and as a result of the quarrel one driver died, did
the death arise out of and in the course of employment?

Answer 25.
A. The incident or the resultant death must have some nexus with the duty
which the drivers were expected to discharge and if there was absolutely
no nexus at all, it cannot be said that the ingredient "arising out of
employment" is satisfied. Note: Held in United India Insurance Co. Ltd. v.
Sudini Indra, 2003(3) L.L.N. 969 (A.P.H.C.)

Question 26.
Q. If a bus driver died while changing the designation board of the bus, did
the death arise out of and in the course of employment?

Answer 26.
A. If a bus driver of the Maharashtra State Road Transport Corporation
died of heart attack while attempting to change the designation board of
the bus, the death was the result of an accident which arose out of and in
the course of employment. Note: - Held in Zubeda Bano v. M.S.R.T.C.,
1990 I CLR 465.
Question 27.
Q. A workman, while proceeding to his work spot, jumped from a running
train and sustained injury. Is it a case of an injury caused by an accident
within the meaning of Section 3(1) of the Act?

Answer 27.
A. Accident means some unforeseen event. When a person jumps from a
running train, the injury sustained is not an unforeseen result and is not an
injury caused by an accident. Note:- Held in The Director, Combat Vehicles
and Research Establishment, Avadi v. The Deputy Commissioner of
Labour II, Madras & Anr. 1995 I M.L.J. 182.

Question 28.
Q. If a person, a contractor, who had undertaken the work of painting a
house, fell down and died while he was doing this work, are his legal
representatives entitled to compensation?

Answer 28.
A. Engaging a person in this manner does not make him an employee or a
workman. The case did not fall within the four corners of the Act. Note:
Held in Lakshminarayana Shetty v. Shantha & Anr., 2002 III CLR 240
(S.C.)

Question 29.
Q. Can the employer deduct from the compensation payable in case of
death of a workman, any amount paid to the deceased workman as ex-
gratia payment?

Answer 29.
A. There is a total bar against any deduction to be made by the employer
for any payment made by the employer out of Court so as to reduce the
corpus of the compensation payable in case of death of a workman. Note:-
Held in Divl. Engineer, M.P. Electricity Board v. Mantobai Wd/o. Lalkisan,
1989 I CLR 486.

Question 30.
Q. Is the death of a workman due to heart attack at the work spot, by itself,
enough to make an award of compensation?

Answer 30.
A. It cannot be said that whenever a person dies at the work spot, he died
 due to the stress and strain of the working conditions. If the workman did
not die on account of any injury sustained by him "in any accident arising
out of and in the course of his employment", no award of compensation
can be made. It has to be established that there was some casual
connection between the death of the workman and his employment. If the
employment is a contributory cause or has accelerated the death, then
only the employer would be liable to pay compensation. Note: Held in
Jyothi Ademma v. Plant Engineer, Nellore & Anr. 2006 III CLR 438 (S.C.)

Question 31.
Q. An employer came to the house of his servant on his scooter, took the
servant on his scooter, and proceeded to a place for immediate completion
of his work. While so proceeding for the said purpose, the scooter met with
an accident and the servant died on the next day due to serious head
injuries. The question is whether the deceased servant died in an accident
while on duty?

Answer 31.
A. The duty of the deceased servant started as soon as his master came
to take him on scooter for completion of the work. The nature of the
employment of the deceased servant made it necessary for him to be
there on the scooter for immediate completion of the work. The claim for
compensation was rightly allowed by the Commissioner. Note: Held in
Branch Manager, New India Assurance Co. Ltd. v. Jivram Jetha,
(Deceased by LRs.) & Ors. 2006 I CLR 265 (Guj.H.C.).

Question 32.
Q. What are the circumstances in which the employer is not liable to pay
compensation for injury to a workman?

Answer 32.
A. The employer is not liable to pay compensation for injury to a workman
in the following circumstances: (1) If the injury does not result in total or
partial disablement of the workman for a period exceeding three days; (2)
If the injury does not result in death of the workman and is caused by an
accident which is directly attributable to:- (i) the workman having been at
the time thereof under the influence of drink or drugs, or (ii) the
disobedience of the workman to an order expressly given, or to a rule
expressly framed, for the purpose of securing the safety of workman, or
(iii) the wilful removal or disregard by the workman of any safety guard or
other device which he knew to have been provided for the purpose of
securing the safety of workman. S.3(1)
Question 33.
Q. What is the doctrine of notional extension of employment?

Answer 33.
A. According to the doctrine of notional extension of employment an
employer is liable to pay compensation for personal injury caused to a
workman by accident occurring beyond his working hours and beyond his
work place if there is nexus between the time and place of the accident
and the employment of the workman. Note:- For case law on the point see
Chairman, Cochin Dock Labour Board v. P.J. George 1976 II LLJ 65.

Question 34.
Q. An employer came to the house of his servant on his scooter, took the
servant on his scooter, and proceeded to a place for immediate completion
of his work. While so proceeding for the said purpose, the scooter met with
an accident and the servant died on the next day due to serious head
injuries. The question is whether the deceased servant died in an accident
while on duty?

Answer 34.
A. The duty of the deceased servant started as soon as his master came
to take him on scooter for completion of the work. The nature of the
employment of the deceased servant made it necessary for him to be
there on the scooter for immediate completion of the work. The claim for
compensation was rightly allowed by the Commissioner. Note: Held in
Branch Manager, New India Assurance Co. Ltd. v. Jivram Jetha,
(Deceased by LRs.) & Ors. 2006 I CLR 265 (Guj.H.C.).

Question 35.
Q. Is a person employed in a place which is not a "factory" but wherein a
"manufacturing process" is being carried on a workman under the Act?

Answer 35.
A. For the Workmen's Compensation Act to apply it is not necessary that a
person should be working in a "factory". In terms of Schedule II, Item (ii) a
person employed in a premises wherein a "manufacturing process" is
being carried on is a workman under the Act. Note:- Held in Sunil Industries
v. Ram Chander Pradhan & Anr. 2001 I CLR 180 (S.C.)

Question 36.
 Q. If there was a private quarrel between two drivers of the same employer
when they were on duty and as a result of the quarrel one driver died, did
the death arise out of and in the course of employment?

Answer 36.
A. The incident or the resultant death must have some nexus with the duty
which the drivers were expected to discharge and if there was absolutely
no nexus at all, it cannot be said that the ingredient "arising out of
employment" is satisfied. Note: Held in United India Insurance Co. Ltd. v.
Sudini Indra, 2003(3) L.L.N. 969 (A.P.H.C.)

Question 37.
Q. If a bus driver died while changing the designation board of the bus, did
the death arise out of and in the course of employment?

Answer 37.
A. If a bus driver of the Maharashtra State Road Transport Corporation
died of heart attack while attempting to change the designation board of
the bus, the death was the result of an accident which arose out of and in
the course of employment. Note: - Held in Zubeda Bano v. M.S.R.T.C.,
1990 I CLR 465.

LABOUR LAW NO.4 - The The Employees’ Provident

Funds & Miscellaneous Provisions Act, 1952

Question 1.
Q. What is meant by "excluded employee"?

Answer 1.
A. "Excluded employee" means- (i) an employee who, having been a
member of the Fund, has withdrawn the full amount of his contribution in
the Fund (a) on retirement from service after attaining the age of 55 years
or (b) before migration from India for permanent settlement abroad; or for
taking employment abroad; (ii) an employee whose pay at the time he is
otherwise entitled to become a member of the Fund, exceeds Rs.6,500/-
per month; (iii) a person who, according to the Certified Standing Orders, is
an apprentice, or who is declared to be an apprentice by the authority
specified in this behalf by the appropriate Government. Para 2(f)

Question 2.
 Q. Can a member opt to commute a portion of his pension?

Answer 2.
A. A member can opt to commute upto one-third of his pension. As per the
option exercised he will receive one hundred times the monthly pension so
commuted as commuted value of pension. (Para 12-A)

Question 3.
Q. Is it permissible to exempt any establishment from the operation of the
Scheme?

Answer 3.
A. The Scheme permits the appropriate Government to grant exemption to
any establishment from its operation if the employees of the establishment
are members of any other pension scheme wherein the pensionary
benefits are at par or more favourable than the benefits provided under the
Scheme. Para 39

Question 4.
Q. What is the manner of claiming the insurance-benefit payable under the
scheme?

Answer 4.
A. The insurance benefit can be claimed by the nominee or the other
claimant by making a written application in Form 5(1F) to the Regional
Provident Fund Commissioner through the employer under whom the
deceased was last employed. Para 24

Question 5.
Q. Is it permissible to exempt any establishment from the operation of the
scheme?

Answer 5.
A. The Employees' Provident Funds and Miscellaneous Provisions Act,
1952, permits the Central *Government, subject to specified conditions, to
exempt any establishment from the operation of all or any of the provisions
of the scheme if the employees of such establishments are, without
making any separate contribution or payment of premium, in enjoyment of
life insurance benefits which are more favourable than the benefits
admissible under the scheme. S.17(2A)
Question 6.
Q. Since when the scheme has come into force?

Answer 6.
A. The scheme has come into force from 1.8.1976. P.1

Question 7.
Q. What is the contribution payable by the employee and the employer
under the scheme?

Answer 7.
A. Under the scheme the employee is not required to pay any contribution.
The employer is, however, required to pay every month contribution at the
rate of 0.5 per cent of the total wages of the employees covered by the
scheme. In addition to the contribution the employer has to pay
administrative charges at the rate of 0.1 per cent of the total wages of the
employees covered by the scheme. S.6(C) & Para 7

Question 8.
Q. Has the employer to pay contribution on the entire pay of an employee?

Answer 8.
A. Where the monthly pay of an employee is more than Rs.6,500 the
contribution payable in respect of him by the employer (and the Central
Government) is limited to the amounts payable on a monthly pay of
Rs.6,500 only. Para 7

Question 9.
Q. What is the meaning of (1) Actual Service, (2) Past Service, (3)
Pensionable Service, (4) Eligible Service, and (5) Pensionable Salary?

Answer 9.
A. (1) Actual Service means the service rendered from 16.11.1995 or from
the date of joining, whichever is later, to the date of exit. (2) Past Service
means the service rendered from the date of joining the Family Pension
Fund till 15.11.1995. (3) Pensionable Service means the service for which
contributions have been received or are receivable. (4) Eligible Service
means the actual service plus past service. (5) Pensionable Salary means
the average monthly pay drawn in the span of 12 months preceding the
date of exit from the membership of Employees' Pension Fund.
Question 10.
Q. Who is entitled to get permanent total disablement pension?

Answer 10.
A. An employee who meets with an accident during employment and as a
result thereof is permanently and totally disabled to do all work which he
was capable of performing at the time of the accident is entitled to get
permanent total disablement pension for his life time. To be so entitled the
employee need not have rendered any pensionable service but he must
have made atleast one month's contribution to the Pension Fund. (Para
15)

Question 11.
Q. What are the modes of disbursement of pension?

Answer 11.
A. When the Pension Scheme was made in 1995 the disbursement of
pension was allowed through Post Offices, Nationalised Banks and
Treasuries. From 2001 Scheduled Commercial Banks, Regional Rural
Banks and Co-operative Banks also are added as disbursing agencies.
(Para 33)

Question 12.
Q. Can a beneficiary of the Employees' Family Pension Scheme, 1971,
i.e., the wife of a member of the 1971 scheme getting family pension on
the death of the member, claim to be a member of the Employees'
Pension Scheme, 1995 for the purpose of getting children pension under
the 1995 scheme?

Answer 12.
A. According to the Employees' Pension Scheme, 1995 only an employee
who has been a member of the 1971 scheme and not a beneficiary of that
scheme shall be a member of the 1995 scheme. The claim of the wife that
the 1995 scheme is applicable to her and therefore she is entitled to
payment of children pension to her children under the 1995 scheme is
unsustainable. Her husband was a member of the 1971 scheme and on
his death she became a beneficiary under that scheme as a family
member of the employee. Note: Held in Zubedabegum wd/o. Abdul Hai v.
Union of India 2005 I CLR 223 (Bom.H.C.)
Question 13.
Q. What is the purpose of the Employees' Deposit-Linked Insurance
Scheme, 1976 and to whom is it applicable?

Answer 13.
A. The purpose of the scheme is to provide life insurance benefits to the
employees of the establishments covered by the E.P.F. & M.P. Act, 1952.
As such, the scheme is applicable to the employees of all factories and
other establishments covered by the said Act. S.6C& Para 1

Question 14.
Q. Can the employer recover the employer's contribution from the wages
of the employees?

Answer 14.
A. The employer is prohibited from recovering the employer's contribution
payable by him under the scheme by deducting the same from the wages
of the employees or in any other manner. Para 9

Question 15.
Q. What is the benefit provided under the scheme?

Answer 15.
A. The benefit provided under the scheme in the nature of life insurance is
as follows. On the death of an employee while in service a lumpsum
insurance amount is payable to his nominee or family members. The
insurance amount is equal to the average balance in the account of the
deceased employee in the Provident Fund during a period of 12 months
immediately preceding his death. In case the average balance exceeds
Rs. 35,000/- the insurance amount payable is Rs.35,000/- plus 25% of the
amount in excess of Rs.35,000/- subject to a ceiling of Rs.60,000/-. Para
22

Question 16.
Q. Is it compulsory for the employer to employ only those persons who
have been sponsored by the Employment Exchanges?

Answer 16.
A. The Act does not oblige any employer to employ those persons only
who have been sponsored by the Employment Exchanges. Note:- Held in
 Union of India v. N. Hargopal, 1987 I C.L.R. 385.

Question 17.
Q. Are the family members of a member entitled to any benefit on the
death of the member?

Answer 17.
A. Benefits to the Family - On the death of the member- (a) Widow
Pension: (i) If the member dies while in service and has paid at least one
month's contribution to the Pension Fund; (ii) After leaving the service but
before attaining the age of 58 years having rendered eligible service to be
entitled for receiving pension and till his death he has not claimed reduced
pension after the age of 50 years; (iii) After commencement of pension on
Superannuation/retirement etc.; (iv) in (i) and (ii) the widow of the member
would get the pension equivalent to the member's pension as if he retired
on the date of death or exit or Rs.450/- or as per table `C' attached to
Employees Pension Scheme, 1995 whichever is more and in the case of
(iii) above it will be 50% of the member's pension or Rs.450/- whichever is
more. (b) In addition to the Widow's pension mentioned at (a), two children
of the member will get 25% of the Widow pension, each, till the child
attains the age of 25 years. (c) If the wife of the deceased member has
predeceased; the two Orphan children will get 75% of the Widow pension,
as their parents do not exist. Para 16

Question 18.
Q. If an employee has a "family", can he make nomination in favour of
brother?

Answer 18.
A. No nomination can be made under the E.F.P. Scheme in favour of a
person who is not a member of the "family". The word "family" is defined in
Para 2(g) of the Scheme and according to the definition brother is not a
member of the "family". The nomination made in favour of brother is
invalid. Note:- Held in Nozer Gustad Commissariat v. Central Bank of India
& Ors., 1993 II C.L.R. 373.

Question 19.
Q. What is the provision of the Scheme in the matter of nomination by a
member?

Answer 19.
 A. Each member has to make a nomination to receive the amount standing
to his credit in the Fund in the event of his death. If he has a family, he has
to nominate one or more persons belonging to his family and none other. If
he has no family he can nominate any person or persons of his choice but
if he subsequently acquires a family, such nomination becomes invalid and
he will have to make a fresh nomination of one or more persons belonging
to his family. A nomination can be modified by the member at any time.
Para 61

Question 20.
Q. If a member is unmarried at the time of making a nomination, is he
required to make a fresh nomination on his marriage?

Answer 20.
A. By amending Para 61 in the year 1995 it is provided that on his
marriage a member shall make a fresh nomination and any nomination
made before such marriage shall be deemed to be invalid.

Question 21.
Q. If a member dies before the amount of accumulation standing to his
credit in the Fund has become payable, to whom the amount shall be
paid?

Answer 21.
A. On the death of a member before the amount of accumulation standing
to his credit in the Fund has become payable, if a nomination made by him
under Paragraph 61 subsists, the amount shall be paid to his nominee or
nominees in accordance with the particulars given by him in the
Nomination Form. In case no nomination subsists, the amount shall be
paid to the person legally entitled to it. (Paras 61 and 70).

Question 22.
Q. What are the benefits provided under the Scheme?

Answer 22.
A. The following three kinds of benefits are provided under the scheme:-
(1) Withdrawal benefit, (2) Benefit of non-refundable advances, (3) Benefit
of financing of Life Insurance Policies. (1) Withdrawal Benefit: (a) A
member can withdraw the full amount standing to his credit in the Fund in
the following circumstances immediately. (a) Retirement after attaining the
age of 55 years, (b) retirement due to incapacity for work, (c) migration for
 permanent settlement abroad, (d) mass retrenchment, (e) voluntary
retirement, (f) closure of establishment, (g) transfer to an establishment not
covered under the Act. (h) discharge with payment of retrenchment
compensation, etc. (Para 69) (b) In all the other cases of leaving services
he can withdraw the full amount if he remains unemployed after the
waiting period of two months unemployment. (2) Benefit of Non-refundable
Advances: Non-refundable advances from the amount standing to the
credit of a member in the Fund can be sanctioned for the following
purposes: (a) purchase of a house, P.68B (b) repayment of a loan, for
housing P.68BB (c) Purcahse of a house/flat/site under the housing
scheme notified by the Central Provident Fund Commissioner P. 68BC (d)
unemployment due to lock-out or temporary closure. P.68H (e)
unemployment due to illness, P.68J (f) marriage of a self or of daughter,
son, sister or brother, P.68K (g) education of son or daughter, P.68K (h)
exceptional calamity, etc. P.68L (i) Cut in supply of electricity to a factory or
establishment, P.68-M (j) Purchase of equipment required on account of
physical handicap, P.68-N (k) Investment in Varishtha Pension Bima
Yojana. P-68-NNN (3) Benefit of financing of Life Insurance Policies:- This
benefit can be available as specified in Paragraphs 62 to 67. Pp.62-67

Question 23.
Q. Is there any limit prescribed for getting the benefits?

Answer 23.
A. The scheme provides for payment of benefit by the Commissioner
within 30 days from the date of receipt of claim application. Para 72(7)

Question 24.
Q. Who is entitled to receive the accumulations in the Provident Fund
account of a deceased member?

Answer 24.
A. On the death of a member the amount standing to his credit in the Fund
is payable to his nominee or nominees. If there is no nominee, such
amount is payable to his family members in the manner specified in
Paragraph 70 of the Scheme or in their absence to the legal heir. P.70

Question 25.
Q. How does a member know the position of his Provident Fund account?

Answer 25.
 A. Every year the Commissioner for Employees' Provident Fund sends to
each member, through the employer, a statement of his account in the
Fund showing the opening balance, the amount contributed during the
year, withdrawal during the year, the amount of interest and the closing
balance. If the member finds any error in the statement, he has to bring it
to the notice of the Commissioner within 6 months from the receipt of the
statement. Para 73

Question 26.
Q. Is the employer required to pay administrative charges under the
scheme?

Answer 26.
A. The employer is required to pay administrative charges at the rate of
1.10 per cent of the pay payable to the employees in respect of which
provident fund contributions are payable. P.38 & 39

Question 27.
Q. What is the purpose of the Employees' Pension Scheme?

Answer 27.
A. The purpose of the Scheme is to provide for (1) superannuation
pension, retiring pension or permanent total disablement pension to
employees covered by the Employees' Provident Funds and Miscellaneous
Provisions Act, and (2) widow or widower's pension, children pension or
orphan pension payable to the beneficiaries of such employees. S. 6-A(1)

Question 28.
Q. Is failure to submit return continuing offence?

Answer 28.
A. The offence of failure to pay contributions amounts to continuing
offence. In all other cases the offence is one committed once and for all.
Failure to submit return is not continuing offence. Note: Held in C.B.
Bhandari v. P.F. Inspector 1988 I CLR 296.

Question 29.
Q. Is any interest payable on the Provident Fund accumulations of a
member?
Answer 29.
A. Compound interest, at a rate determined by the Central Government
from time to time, is paid on the amount standing to the credit of a member
as on 1st day of April every year. Para 60 *. From 1st April 1993, the yearly
interest to be computed on monthly running balance.

Question 30.
Q. What are the offences under the Scheme and what is the punishment
for them?

Answer 30.
A. If any person- (a) deducts from the wages of a member the whole or any
part of the employer's contribution; (b) fails to submit any return, statement
or other document required by the Scheme or submits a false return,
statement or other document or makes a false declaration; (c) obstructs
any inspector appointed under the Act or the Scheme in the discharge of
his duties or fails to produce any record for his inspection; (d) is guilty of
contravention of or non-compliance with any other requirement of the
Scheme; he would be punished with imprisonment upto 1 year, or fine upto
Rs.4,000 or with both. S.14(2) & P.76

Question 31.
Q. What is the provision of the Scheme in the matter of transfer of
members?

Answer 31.
A. If a member of the Fund goes from one establishment to another or
from one region to another, the balance of his Provident Fund is
transferred from the old account to a new account in the new
establishment. S.17 & Para 57

Question 32.
Q. To whom the Scheme will apply?

Answer 32.
A. The Scheme will apply to: (1) Employees who have been members of
the Employees' Family Pension Scheme, 1971; (2) Employees who on or
after 16-11-1995 become members of the Employees' Provident Fund
Scheme, 1952; (3) Employees who have been members of the Employees
Provident Fund but not being members of the Employees' Family Pension
Scheme opt to join the Employees' Pension Scheme within six months
 from 16-11-1995. Para 6

Question 33.
Q. How are the benefits of the Scheme going to be met?

Answer 33.
A. To meet the expenses for administering the Scheme a fund called the
Employees' Pension Fund will be set up and from and out of the
contribution payable by the employer under section 6 of the Act a part of
contribution representing 8.33 per cent will be credited to the Fund. The
Central Government will also contribute to the Fund at the rate of 1.16 per
cent of the pay of the members of the Scheme. It is to be noted that where
the pay of the member exceeds Rs. 6,500/- per month, the contribution
payable by the employer and the Central Government will be limited to the
amount payable on his pay of Rs. 6,500/- only. S.6-A and Para 3. It is also
to be noted that if at the option of the employer and employee, contribution
paid on salary exceeding Rs.6,500/- per month from the date of
commencement of this Scheme or from the date salary exceeds
Rs.6,500/- whichever is later, and 8.33 per cent share of the employers
thereof is remitted into the Pension Fund, pensionable salary shall be
based on such higher salary. (Para 11)

Question 34.
Q. Since when the Scheme has come into force?

Answer 34.
A. By an ordinance No.13 dated 11-10-1995 the President has substituted
the "Employees' Pension Scheme 1995" for the "Employees' Family
Pension Scheme, 1971." The Employees' Pension Scheme is brought into
force from 16-11-1995.

Question 35.
Q. Is it necessary to deduct provident fund contributions from arrears of
wages paid to an employee as a result of an award revising his scale of
pay?

Answer 35.
A. Arrears are emoluments earned by the employee while on duty and
provident fund contributions have to be deducted from such wages. Note:-
Held in Prantiya Vidyut Mandal Mazdoor Federation v. Rajasthan State
Electricity Board, 1992 I CLR 926.
Question 36.
Q. Who is eligible to become a member of the Fund?

Answer 36.
A. Every employee employed in or in connection with the work of a factory
or other establishment covered by the scheme other than an excluded
employee is entitled and required to become a member of the Fund from
the date of joining the factory or establishment. An excluded employee
shall, on ceasing to be such an employee, be entitled and required to
become a member of the Fund from the date he ceased to be such
employee. Para 26

Question 37.
Q. Can an employer, who had earlier agreed to contribute in excess of the
minimum prescribed under the statutory limits, later unilaterally discontinue
to contribute such excess share?

Answer 37.
A. The decision of the employer to contribute in excess of the minimum
prescribed under the statutory limits should be considered as a concession
emanating from the gratuitous act of the employer. The employees have
no right to the benefit granted to them by the employer. The employer can
unilaterally withdraw the benefit at any time. Note: Held in N. Vijayan &
Ors. etc. v. Secretary to Government, Agricultural (Dairy) Department &
Ors. 2006 III CLR 400 (Ker.H.C.)

Question 38.
Q. Could the employer be punished under section 14-B in case the
remittance of contribution by him is delayed in a bank or post office?

Answer 38.
A. If the remittance of contribution to Provident Fund is delayed on account
of the delay in a Bank or post office, the employer cannot be penalised for
it under section 14-B. Note:- Held Indian Process Chemical Laboratory (P)
Ltd. Bangalore v. The Regional Provident Fund Commissioner, Bangalore,
1979 LIC 84.

Question 39.
Q. Is there any offence under the Act which is cognizable?
Answer 39.
A. The offence relating to default in payment of any contribution especially
the employees' share deduct from the wages of the employees by the
employer is cognizable. That means a person committing such offence can
be arrested by the police without warrant. S.14-AB

Question 40.
Q. Since when the scheme is made applicable to the said factories and
other establishments?

Answer 40.
A. The scheme is made applicable to different factories and different
establishments from different dates as specified in paragraph 1 of the
scheme. Para 1

Question 41.
Q. Whether `basic wages' include certain allowances?

Answer 41.
A. Except `house rent allowance' other allowances are included in the
definition of basic wages. Held in Gujarat Cypromet Ltd. v. Assistant
Provident Fund Commissioner, 2004 III CLR 485. Ss.2(b), 6

Question 42.
Q. Does production incentive form part of "basic wages" as defined under
Section 2(b) of the Act?

Answer 42.
A. In the absence of any specific exclusion in Section 2(b) (ii) production
incentive paid to employees has to be counted as "basic wages". Note:
Held in Poompuliar Shipping Corporation Ltd. v. R.P.F. Commissioner,
2003 (4) L.L.N. 1119 (Mad. H.C.)

Question 43.
Q. What is meant by "excluded employee"?

Answer 43.
A. "Excluded employee" means- (i) an employee who, having been a
member of the Fund, has withdrawn the full amount of his contribution in
 the Fund (a) on retirement from service after attaining the age of 55 years
or (b) before migration from India for permanent settlement abroad; or for
taking employment abroad; (ii) an employee whose pay at the time he is
otherwise entitled to become a member of the Fund, exceeds Rs.6,500/-
per month; (iii) a person who, according to the Certified Standing Orders,
is an apprentice, or who is declared to be an apprentice by the authority
specified in this behalf by the appropriate Government. Para 2(f)

Question 44.
Q. What is the contribution payable by the employer and the employee
under the Act?

Answer 44.
A. The contribution payable by the employer is 10 per cent of the wages of
an employee. The Central Government may increase it to 12 per cent in
respect of any establishment or class of establishment. However in the
case of:- (i) establishment in which less than 20 persons are employed; (ii)
sick industrial company; (iii) establishment which has at the end of any
financial year accumulated losses equal to or exceeding its entire net
worth; establishment in the - (A) Jute Industry (B) Beedi Industry (C) Brick
Industry (D) Coir industry other than the spinning sector (E) Gaur Gum
Factories. the contribution payable by the employer is 10 per cent of the
wages of an employee. The contribution payable by the employee is equal
to the contribution payable by the employer in respect of such employee.

Question 45.
Q. Is the employer liable to pay the contribution when he is not in a
position to pay wages to the employees?

Answer 45.
A. The employer is liable to pay the employer's contribution as well as the
employee's contribution irrespective of the fact that wages have been paid
to the employees or not. Note: - Held Organic Chemical Industries v. Union
of India 1979 I LLJ 416.

Question 46.
Q. Is it permissible under the Act to exempt any establishment from the
operation of any Scheme?

Answer 46.
A. The Act permits the Central Government or the State Government,
 subject to specified conditions, to exempt any establishment from the
operation of all or any of the provisions of any Scheme if the Government
thinks it fit to do so having regard to the adequacy of the benefits similar to
those of the Schemes available to the employees of such establishment.
S.17(1)

Question 47.
Q. Are exempted establishments exempted from the provisions of the Act?

Answer 47.
A. The provisions of sections 6,7-A, 8 and 14-B shall, so far as may be,
apply to the employer of the exempted establishment and where such
employer contravenes, or makes default in complying with any of the said
provisions or any other provision of the Act, he shall be punishable under
section 14 as if the said establishment had not been exempted. S.17(1A)

Question 48.
Q. Are any employers allowed to maintain a Provident Fund account in
relation to their establishments?

Answer 48.
A. The Central Government is empowered to authorise any employer of an
establishment employing one hundred or more persons to maintain a
Provident Fund account in relation to the establishment so as to ensure
prompt service to the members of the Fund. S.16(A)

Question 49.
Q. What is the purpose of the Employees' Provident Funds Scheme, 1952,
and to whom is it applicable?

Answer 49.
A. The purpose of the scheme is to establish provident funds for the
employees covered by the Employees' Provident Funds and Miscellaneous
Provisions Act, 1952. As such, the scheme is applicable to the employees
of all factories and other establishments covered by the said Act except
those exempted under section 17 thereof and tea factories in the State of
Assam S.5 & P.1

Question 50.
Q. Are the persons employed by or through a contractor covered under the
 Scheme?

Answer 50.
A. The persons employed by or through a contractor are included in the
definition of "employee" under the Employees' Provident Funds and
Miscellaneous Provisions Act, 1952, and as such, they are covered under
the Scheme. Para 30

Question 51.
Q. Have the employee and the employer to pay contribution on the entire
pay of the employee?

Answer 51.
A. Where the monthly pay of an employee exceeds six thousand five
hundred rupees the contribution payable by him, and in respect of him by
the employer, shall be limited to the amounts payable on a monthly pay of
six thousand five hundred rupees. Para 26-A.

Question 52.
Q. On what pay/allowances the P.F. Contributions is to be deducted?

Answer 52.
A. The P.F. Contributions is to be deducted 1 - On basic wages 2 -
dearness allowance and the retaining allowance if any. S.6

Question 53.
Q. Does encashment of earned leave form part of "basic wages" as
defined under Section 2(b) of the Act?

Answer 53.
A. The only construction that could be placed on Section 2(b) is to include
encashment of earned leave by the employees as part of basic wages.
Note: Held in Manipal Academy of Higher Education v. Provident Fund
Commissioner, 2004 I C.L.R. 425 (Karn.H.C.)

Question 54.
Q. Is it permissible for any member to contribute at a rate higher than the
rate of 12 per cent?

Answer 54.
 A. A member, if he so desires, may contribute an amount ex- ceeding 12
per cent as the case may be but the employer shall not be under an
obligation to pay contribution over and above his contribution payable
under the Act. Para 29

Question 55.
Q. Can the Provident Fund Commissioner recover from a company known
as Universal Pollution Control (I) P. Ltd. an amount due and payable in
respect of liabilities of Provident Fund by another company known as
Universal Fans Ltd. contending that the two companies are sister
concerns?

Answer 55.
A. The two companies are separate legal entities under the provisions of
the Companies Act and there is no provision under the Provident Funds
Act that a liability of one company can be fastened on the other company
even by lifting the corporate veil. Note: Held in Universal Pollution Control
(I) P. Ltd. v. Regional Provident Fund Commissioner and Anr. 2006 II CLR
314 (Bom.H.C.)

Question 56.
Q. If any establishment has departments or branches, are these
departments or branches, to be treated as separate establishments or
parts of the same establishments?

Answer 56.
A. Where an establishment consists of different departments or has
branches, whether situate in the same place or in different places, all such
departments or branches shall be treated as parts of the same
establishment. S.2-A

Question 57.
Q. Are there any establishments to which the Act is not applicable at all?

Answer 57.
A . The Act is not applicable- (a) to any factory or other establishment
registered under any Central or State law relating to co-operative
societies, employing less than 50 persons and working without the aid of
power; (b) to any establishment belonging to the Central Government or a
State Government and having a scheme of contributory provident fund or
old age pension; (c) to any establishment set up under any Central or State
 Act and having a scheme of contributory provident fund or old age
pension; S.16(1) and (c)

Question 58.
Q. Is a trainee an "employee" under the Act?

Answer 58.
A. The provisions of Section 2(f)(ii) of the Act and Para 2(f)(iv) of the
Scheme framed under the Act are to be kept in mind while considering if a
trainee is an employee or not. These provisions show that a trainee who is
an apprentice engaged under the Apprentices Act, 1961 or who is an
apprentice according to the certified standing orders applicable to the
establishment is excluded from the definition of an employee under the
Act. Note: See Sundaram Industries Ltd. v. R.P.F. Commissioner, 1996
(72) FLR 461 (Karnataka).

Question 59.
Q. Are there any guidelines for quantifying damages leviable under section
14-B of the Act for making default in payment of contribution?

Answer 59.
A. In 1991, the Central Government, by inserting Para 32-A in the
Employees' Provident Funds Scheme, has laid down different rates of
damages depending upon the period of default. Courts have held that it is
not just and fair to levy damages at a flat rate for different periods of
default. Note:- Held in Vegetable Vitamins Foods Co. Ltd. v. Regional
Provident Fund Commissioner, 1994 II C.L.R. 1062.

Question 60.
Q. What does it mean when section 10(2) of the Act says that the amount
standing to the credit of a member in the Fund at the time of his death and
payable to his nominee shall vest in the nominee?

Answer 60.
A. Vesting of the amount in the nominee is for limited purpose of receiving
the amount from the employer and handing over the same to the heirs
entitled thereto. The nominee is merely authorised to receive the amount
for the benefit of heirs of the deceased. Note:- Held in Nozer Gustad
Commissariat v. Central Bank of India & Ors., 1993 II C.L.R. 373.
Question 61.
Q. Can an Employees' Provident Funds Appellate Tribunal entertain an
appeal preferred after a period of 165 days after the date of the notification
or order which is challenged in the appeal?

Answer 61.
A. Rule 7(2) of the Tribunal's Procedure Rules, 1997 provides a specific
period of 60 days from the date of issue of the notification or order to
prefer an appeal to the Tribunal. The proviso to Section 7(2) then provides
a further period of 60 days for condoning delay if the Tribunal is satisfied
that the appellant was prevented by sufficient cause from preferring the
appeal within the said extended period of 60 days. Only that much period
could be condoned. The Tribunal has no power to entertain the appeal
preferred after 165 days after the date of the notification or order. Note:-
Held in Assistant R.P.F. Commissioner v. Employees' Provident Funds
Appellate Tribunal, 2006 II LLJ 388 (Del.H.C.).

Question 62.
Q. Initially, the Act provided infancy protection to certain newly set up
establishments. The Act did not apply to such establishments for a period
of some years. Subsequently the protection was abolished by amendment
of the Act. The question arose as to whether the protection enjoyed by the
establishments would be discontinued from the date of the amendment or
the same would continue for the full period?

Answer 62.
A. Though the provision for infancy protection has been abolished by
amending the Act, unless there are words in the statute sufficient to show
the intention of the legislature to affect existing rights, it is deemed to be
prospective only. Note:- S.I. Shrinivasa Jute Twine Mills (P) Ltd. v. Union of
India, 2006 II LLJ 1132 (S.C.).

Question 63.
Q. Is any damage leviable on the employer delaying any payment due
from him under the Act or the Schemes?

Answer 63.
A. If any employer makes default- (i) in the payment of any contribution to
any Fund; (ii) in the transfer of accumulations as required under Section
15(2) or Section 17(5); (iii) in the payment of any charges payable under
the Act or Schemes the Central/Regional Provident Fund Commissioner
can levy and recover from the employer by way of penalty such damages
 not exceeding the amount of arrears, as may be specified in the scheme.
The Central Board may reduce or waive the damages levied by the
Commissioner in certain case. S.14(B)

Question 64.
Q. Can a nominee of a deceased employee claim an absolute right in
respect of the amount of provident fund of the deceased employee?

Answer 64.
A. The nominee cannot claim an absolute right to the amount excluding
the right of the heirs. An heir of the deceased employee can always initiate
legal proceedings against the nominee for claiming his share in
accordance with the law of succession. Note:- Held in Brij Lal Singh v.
Regional Provident Fund Commissioner, 1992 I C.L.R. 471.

Question 65.
Introduction

Answer 65.
The Employees' Provident Funds and Miscellaneous Provisions Act, 1952
is enacted to provide a kind of social security to the industrial workers. The
security, however, differs from the security provided to them under the
Workmen's Compensation Act or the Employees' State Insurance Act. The
Employees' Provident Funds and Miscellaneous Provisions Act mainly
provides retirement or old age benefits, such as Provident Fund,
Superannuation Pension, Invalidation Pension, Family Pension and
Deposit Linked Insurance. Provision for terminal benefit of restricted nature
was made in the Industrial Disputes Act, 1947, in the form of payment of
retrenchment compensation. But this benefit is not available to a worker on
retirement, on reaching the age of superannuation or voluntary retirement.
The Employees' Provident Funds and Miscellaneous Provisions Act is
intended to provide wider terminal benefits to the industrial workers. For
example, the Act provides for payment of terminal benefits in various
contingencies such as retrenchment, closure, retirement on reaching the
age of superannuation, voluntary retirement and retirement due to
incapacity to work.

Question 66.
Q. Which establishments are covered by the Act?

Answer 66.
 A. The Act is applicable. (a) to every factory engaged in any industry
specified in Schedule I to the Act and employing 20 or more persons; (b) to
every other establishment employing 20 or more persons specified by the
Central Government in this behalf. Any establishment to which the Act
applies shall continue to be governed by the Act even if the number of
persons employed therein at any time falls below 20. S.1(3) & (5)

Question 67.
Q. Is the Act applicable to a factory which is closed down but is employing
a few employees to look after the assets of the establishment?

Answer 67.
A. Where a factory is closed down for good and only four security men are
retained for keeping a watch over the assets and properties of the
establishment, the Act would not continue to be applicable to the factory.
Note: Held in Jai Krishna Agarwal v. Regional Provident Fund
Commissioner, 1987 I CLR 339.

Question 68.
Q. Is the Act applicable to charitable institutions?

Answer 68.
A. The plea that an establishment is a charitable institution is not relevant
to the determination of the question of the applicability of the Act. Note:
Held in Venkataramana Dispensary v. Union of India, 1986 II LLJ 411.

Question 69.
Q. Are "home workers" in the beedi industry entitled to the benefit of the
Act?

Answer 69.
A. The workers employed at their homes in the manufacture of beedis are
also entitled to the benefit of the Act and the Schemes framed thereunder.
Note:- Held in P.M. Patel & Sons v. Union of India 1985 II CLR 322.

Question 70.
Q. Can the Act be extended to other factories or establishments?

Answer 70.
A. The Central Government has been given wide powers to extend the
 application of the Act. It can apply the provisions of the Act- (a) to any
factory or establishment even if such factory or establishment is employing
less than 20 persons; S.1(3)(b) Proviso (b) to any factory or establishment
whatsoever if the employer and the majority of the employees of such
factory or establishment have agreed that the provision of the Act should
be made applicable to it on and from the date of such agreement or from
any subsequent date specified in such agreement; S.1(4) (c) to any factory
employing 20 or more persons but not engaged in any industry specified in
Schedule I to the Act, by including the industry, in which such factory is
engaged, in Schedule I to the Act. S.4 (d) where, immediately before the
Act becomes applicable to any establishment, there is a provident fund
which is common to the employees in that establishment and employees
in any other establishment, to such other establishment. S.3

Question 71.
Q. Are the orders issued by the Central Government or the orders passed
by the Central Provident Fund Commissioner appealable?

Answer 71.
A. An appeal lies to the Provident Funds Appellate Tribunal- (1) against any
order passed under the proviso to sub- section (3) of section 1, applying
the provisions of the Act to any establishment employing less than twenty
persons; (2) against any orders passed under sub-section (4) of section 1,
applying the provisions of the Act to any establishment on the application
of the employer and the employees; (3) against any notification of the
Central Government under section 3, applying the provisions of the Act to
any establishment having a common provident fund with another
establishment to which the Act is applicable; (4) against any order passed
under sub-section (1) of section 7-A, deciding any dispute regarding the
applicability of the Act to any establishment and determining the amount
due from any employer under the Act or any Scheme framed under the
Act; (5) against any order passed under section 7-B reviewing his own
order; (6) against any order passed under section 7-C, re-opening any
case and redetermining the amount due from any employer; (7) against
any order under section 14-B, levying for de- fault any damages upon any
employer by way of penalty.

Question 72.
Q. Is a Priest attached to St. Pius College, a religious seminary, an
"employee" under the Act?

Answer 72.
A. The Priests render their services in providing religious instruction to the
 students being trained at the seminary. The essential requirements of the
Priests are met by the seminary. They are paid subsistence allowance to
enable them to meet the bare necessities of life. There is no relationship of
an employer and employee between the seminary and the Priests. They
would not fall within the scope and purview of the provisions of the Act.
Note: Held in Reverend Father Agnelo Gracias v. Regional Provident Fund
Commissioner, 2005 I CLR 674 (Bom.H.C.)

Question 73.
Q. Is a partner of a firm an employee under the Act?

Answer 73.
A. For the purpose of the Employees Provident Funds and Miscellaneous
Provisions Act a partner of a partnership firm cannot be said to be an
employee of the firm having regard to the provisions of the Indian
Partnership Act. A person cannot be both an employer and employee.
Note:- Held in S.G. Tin Printers Private Ltd. v. R.P.F. Commissioner & Ors.
2001 I CLR 477.

Question 74.
Q. Are the drivers in the service of the Managers of an establishment the
employees of the establishment under Section 2(f) of the Act?

Answer 74.
A. If the drivers are paid wages directly or indirectly by the establishment
for the work carried out by them in or in connection with the establishment,
they are the employees of the establishment as defined under Section 2(f)
of the Act. Note: Held in BASF India Ltd. & Anr. v. M. Gurusamy, 2004 I
C.L.R. 995 (Bom.H.C.)

Question 75.
Q. Does the Act apply to a poly clinic?

Answer 75.
A. A poly clinic is covered by the entry in respect of "establishments of
hospital" as well as the entry in respect of "establishments of Medical
Practitioners and Specialists" and therefore the Act applies to a poly clinic.
The object (of the two entries) is to bring all medical establishments
employing 20 or more persons under the purview of the Act. Note:- Held in
E.P.F. Inspector v. The Poly Clinic (P) Ltd. 1988 II CLR 212.
Question 76.
Q. Is it permissible to exempt any establishment from the operation of the
Act because of their financial position?

Answer 76.
A. The Act permits the Central Government, subject to specified
conditions, to exempt any class of establishments from the operation of
the Act, if having regard to their financial position or other circumstances of
the case, it is necessary or expedient to do so. S.16(2)

Question 77.
Q. Is a Writ Petition against an order under Section 7-A of the Act
maintainable?

Answer 77.
A. Under Section 7-I of the Act an appeal against such order lies to E.P.F.
Appellate Tribunal and as such a Writ Petition against such order is not
maintainable. Note:- Held in Farukhi Glass Industries v. R.P.F.
Commissioner, 1998 (80) F.L.R. 720 (All.H.C.)

Question 78.
Q. Can an employer saddled with damages under Section 14-B of the Act
file a writ petition in the High Court?

Answer 78.
A. An appeal from an order levying damages to the E.P.F. Appellate
Tribunal is available under Section 7-1. The employer has to resort to that
remedy and as such a writ petition is not maintainable. Note: Held in Indian
Eyelets Industries v. R.P.F. Commissioner, 2002 III C.L.R. 227 (Cal.H.C.)

Question 79.
Q. Who is the authority to decide disputes regarding the applicability of the
Act to an establishment or as to the quantum of the moneys due from any
employer?

Answer 79.
A. If any dispute arises regarding the applicability of the Act to an
establishment or as to the amount of moneys due from any employer
under the Act or any Scheme, the Central Provident Fund Commissioner,
any Additional Central Provident Fund Commissioner, any Deputy
 Provident Fund Commissioner, any Regional Provident Fund
Commissioner, or any Assistant Provident Fund Commissioner may decide
the same by holding an enquiry. S.7(A)

Question 80.
Q. In what manner can the employer recover the moneys paid by him for
or on behalf of a contractor?

Answer 80.
A. If the employer pays any contribution or administrative charges for or on
behalf of a contractor, he can recover the same from the contractor either
by deduction from any amount payable to the contractor under any
contract or as a debt payable by the contractor. The contractor can, then
recover the employee's contribution from the wages of the employee.
S.8(A)

Question 81.
Q. What are the various modes in which the Central/ Regional Provident
Fund Commissioner can recover arrears of any amount due from any
employer under section 8 of the Act?

Answer 81.
A. The Central/Regional Provident Fund Commissioner can recover such
arrears- (1) by issuing a certificate to the Recovery Officer to recover the
arrears from the employer by one or more of the modes mentioned in
section 8-B; (2) by requiring any person from whom any money is due to
the employer to deduct the amount of arrears from such money and pay
the same to him, i.e., the Central/ Regional Provident Fund Commissioner;
(3) by issuing a notice to any person from whom any money is due to the
employer, requiring to pay the amount of arears to him, i.e., the Central
Regional Provident Fund Commissioner; (4) by applying to the Court, in
whose custody there is any money belonging to the employer, for payment
of the amount of arrears from such money to him, i.e., the
Central/Regional Provident Fund Commissioner; (5) by distraint and sale
of the moveable property of the employer in the manner laid down in the
Third Schedule to the Income Tax Act, 1961. Ss.8(B) to 8(G)

Question 82.
Q. Can a Recovery Officer impose interest on the amount mentioned in
the Recovery Certificate?
Answer 82.
A. The position of a Recovery Officer is exactly that of an executing court.
He can recover only the amount specified in the certificate. If the certificate
does not include any interest, it is beyond the competence of the Recovery
Officer to demand such amount. Note:- Held in Indian Drilling and Mining
(P) Ltd. v. R.P.F. Commissioner, 2001 (2) LLN 306.

Question 83.
Q. Can the amount standing to the credit of any member in the Fund be
assigned, charged or attached?

Answer 83.
A. The amount standing to the credit of a member in the Fund cannot be
assigned, charged or attached under any decree or order of any Court.
Similarly, the amount standing to the credit of a member in the Fund at the
time of his death is free from any debt or other liability incurred by the
member before his death and cannot be attached under any decree or
order of any Court. S.10

Question 84.
Q. What are the powers of the Inspectors appointed under the Act?

Answer 84.
A. An Inspector appointed under the Act has power- (1) to require any
employer or contractor to furnish any information required by him; (2) to
enter and search any establishment or premises and require any one
found in charge thereof to produce any accounts, books, registers and
other documents relating to employment or wages for his examination; (3)
examine any employer or his agent, servant or employee found in such
establishment or premises; (4) make copies of any book, register or other
document or seize such books, register or other document. S.13

Question 85.
Q. What happens to a private provident fund of an establishment when
that establishment is covered under the statutory Provident Fund Scheme?

Answer 85.
A. On the application of the statutory Provident Fund Scheme to an
establishment, the accumulations in the private provident fund in that
establishment standing to the credit of the employees who become
members of the statutory Provident Fund must be transferred to the
 statutory Provident Fund. The accumulations will be credited to the
accounts of the employees entitled thereto in the statutory Provident Fund.
S.15

Question 86.
Q. Is there any period of limitation for exercising the powers of levying
damages under section 14-B of the Act?

Answer 86.
A. No period of limitation is prescribed in the Act for exercising the power
of levying damages under section 14-B of the Act.

Question 87.
Q. What are the offences under the Act? what is the punishment for them?

Answer 87.
A. (a) If any person, for the purpose of avoiding any payment to be made
under the Act or the Schemes, knowingly makes any false statement or
false representation, he would be punished with imprisonment upto one
year, or with fine upto Rs.5,000, or with both. (b) If any employer makes
default in payment of the employer's contribution or the employee's
contribution payable under the Employees' Provident Funds Scheme or
paragraph 38 of the said scheme relating to the payment of administrative
charges, or under section 17(3)(a) of the Act relating to the payment of
inspection charges, he would be punished with imprisonment upto three
years but it shall not be less than one year and a fine of Rs.10,000 in case
of default in payment of the employee's contribution which has been
deducted by the employer from the employees' wages and six months and
a fine of Rs.5,000/- in any other case. (c) If any employer makes default in
payment of the employer's contribution or the administrative charges
payable under the Deposit Linked Insurance Scheme under section 6-C or
contravenes the provisions of section 17(3)(a) relating to the payment of
inspection charges, he would be punished with imprisonment upto 1 year,
but which shall not be less than 6 months, plus fine upto Rs.5,000. (d) If
any person contravenes or makes default in complying with any other
provision of the Act or any condition for exemption from any scheme, he
would be punished with imprisonment upto six months but which shall not
be less than 1 month and with fine upto Rs.5,000, or with both. (e) If any
person convicted of an offence under the Act or the Schemes commits it
again, he would be punished with imprisonment upto five years but which
shall not be less than two years, plus fine upto Rs.25,000.S.14 and 14(AA)
Question 88.
Q. Would the Act continue to apply to an establishment which has closed
its manufacturing activities and does not employ a single employee?

Answer 88.
A. Where there is neither an establishment nor an employer nor an
employee, there is no point in saying that the Act would continue to apply.
In such circumstances any continued application of the Act would be in
vacuum. Note: Held in Purex Laboratories (India) Pvt. Ltd. Bangalore v.
The Regional Provident Fund Commissioner, Bangalore & Anr. 1998 I
C.L.R. 295 (Karnataka).

LABOUR LAW NO.5 - The Employees’ State Insurance

Act,1948
Question 1.
Q. What is meant by "standard benefit rate"?

Answer 1.
A. The daily rate at which sickness benefit is payable to an insured
employee during the period of his sickness is called "standard benefit rate".
“Standard benefit rate” means average daily wages obtained by dividing
the total wages paid during the contribution period by the number of days
for which these wages were paid. 2(7-A)

Question 2.
Q. Which family members of an insured employee are entitled to medical
treatment where medical benefit is extended to families of insured
employees

Answer 2.
A. Where medical benefit is extended to families of insured employees,
medical treatment is available to (a) the husband or wife of the insured
employee, (b) the minor legitimate or adopted children of the insured
employee dependent upon him, and (c) the dependent parents of the
insured employee. Provided the dependent parent’s income does not
exceed Rs.5000/- from all sources as per amendment dated 1.4.2011.
Ss.2(11) & 58

Question 3.
 Q. Who are required to be insured under the Act?

Answer 3.
A. Every employee employed in or in connection with the work of a factory
or establishment covered by the Act and drawing wages upto Rs. 15,000
per month from 1.6.2010 is required to be insured under the Act.

Question 4.
Q. Is there any other enactment which makes provision for payment of
funeral expenses?

Answer 4.
A. On the lines of the provision for payment of funeral expenses contained
in the Employees' State Insurance Act, Section 4(4) of the Employees’
Compensation Act also now makes a similar provision as follows. If the
injury of the workman results in his death, the employer shall, in addition to
the amount of compensation for death, deposit with the Commissioner for
Employees' Compensation a sum of Rs.10,000/- on or after 1.4.2011 for
payment of the same to the eldest surviving dependent of the workman
towards the expenditure of the funeral of such workman or where the
workman did not have a dependent or was not living with his dependent at
the time of his death to the person who actually incurred such expenditure.

Question 5.
Q. What is meant by "Funeral Expenses"?

Answer 5.
A. In case of death of an insured employee, the eldest surviving member of
his family, and if the employee had no family or was not living with his
family at the time of his death, then the person who actually incurs the
expenditure on the funeral of the employee, is entitled to receive a payment
called "funeral expenses". This payment is given to the person concerned
to meet the expenditure actually incurred by him on the funeral of the
employee and the maximum permissible amount of such payment is
Rs.10,000/-. S.46 and R.59

Question 6.
Q. Is an employee who ceases to be in an insurable employment on
account of permanent disablement eligible to receive any benefits under
the Act?
Answer 6.
A. An employee who ceases to be in an insurable employment on account
of permanent disablement caused due to an employment injury shall be
eligible to receive only medical benefits for himself and his spouse, till the
date on which he would have vacated the employment on attaining the
age of superannuation had he not sustained such permanent disablement,
if he pays contribution of Rs.120/- every year in advance. S.56 & R.60

Question 7.
Q. What is the meaning of "factory" under the Act?

Answer 7.
A. Prior to 2010 amendment of the Act a factory was defined as: (i) any
premises whereon 10 or more persons are employed and in any part of
which a manufacturing process is carried on with the aid of "power"; or (ii)
any premises whereon 20 or more persons are employed and in any part of
which a manufacturing process is carried on without the aid of power. By
2010 amendment of the Act a factory is now defined as: “factory” meas any
premises including the precincts thereof whereon ten or more persons are
employed or were employed on any day of the preceding twelve months,
and in any part of which a manufacturing process is being carried on or is
ordinariy so carried on, but does not include a mine subject to the operation
of the Mines Act, 1952 (35 of 1952) or a railway running shed. S.2(12)

Question 8.
Q. What is meant by "Disablement Benefit"?

Answer 8.
A. When an insured employee is suffering from temporary disablement as
a result of an employment injury, he is entitled to receive for the period of
such disablement periodical payment called "disablement benefit". When
an insured employee is suffering from permanent disablement, whether
total or partial, as a result of an employment injury, he is entitled to receive
disablement benefit for the whole of his life. The rate of disablement
benefit is determined in accordance with the provisions of Rule 57. There
is no condition of payment of any contribution for receiving disablement
benefit. Rule 57 Note:- Employment injury means a personal injury caused
by accident arising out of and in the course of employment.

Question 9.
Q. Are there any circumstances in which an employee is not entitled to
 receive any benefit under the Act?

Answer 9.
A. An employee cannot claim sickness benefit or disablement benefit for
temporary disablement in respect of any day on which he works or
remains on strike. S.63

Question 10.
Q. Does a conviction of an insured person under the Act disentitle him to
any benefits admissible under the Act?

Answer 10.
A. A conviction of an insured person under Section 84 of the Act (for false
statement) disentitles him only to cash benefits admissible under the Act
for a period of three months for first conviction and six months for each
subsequent conviction from the date of receipt of judgment of the Court in
the office of the Corporation. S.84, R.62

Question 11.
Q. Is it permissible for any person to transfer or assign the various benefits
under the Act?

Answer 11.
A. The transfer or assignment of the right to receive the payment of any
benefit under the Act is prohibited. S.60.

Question 12.
Q. Is it permissible for any employee to receive two benefits at the same
time?

Answer 12.
A. An employee is not entitled to receive two benefits at the same time.
That means he cannot receive for the same period. (a) both sickness
benefit and maternity benefit; or (b) both sickness benefit and disablement
benefit for temporary disablement; or (c) both maternity benefit and
disablement benefit for temporary disablement. Where an employee is
entitled to more than one benefit, he has to choose which one of them he
shall receive. S.65

Question 13.
 Q. Does the prohibition contained in section 73 apply to automatic
termination of service?

Answer 13.
A. The prohibition contained in section 73 does not apply to termination
which follows automatically either from a contract of service or from
Standing Orders as such termination does not amount to a punitive act or
order on the part of the employer. Note:- Held in Buckingham & Carnatic
Co. Ltd. v. Venkatiah, 1963 II LLJ 638.

Question 14.
Q. Is there any restriction on the employer in the matter of termination of
services of any employee during the period the employee is in receipt of
any benefit under the Act?

Answer 14.
A. The employer is prohibited from dismissing or discharging an employee
during the period the employee is in receipt of any benefit under the Act.
Any notice of dismissal or discharge given to an employee in contravention
of this provision will be invalid and inoperative. Besides, the employer
dismissing or discharging an employee in contravention of this provision
would be punished with imprisonment upto 1 year, or with fine upto Rs.
4000 or with both. Ss.73 & 85

Question 15.
Q. Is a principal employer, intending to challenge any claim of the ESI
Corporation for recovery of contribution by filing an application before the
Employees' Insurance Court, required to comply with any condition before
doing so?

Answer 15.
A. Before filing the application the principal employer has to deposit with
the Employees' Insurance Court fifty per cent of the amount due from him
as claimed by the Corporation. S.75(2)(B)

Question 16.
Q. What are the offences under the Act and what is the punishment for
them?

Answer 16.
A. (I) If any person- (a) fails to pay any contribution payable by him under
 the Act; or (a)deducts from the wages of an employee the employer's
contribution; or (c) reduces the wages or any privileges or benefits
admissible to an employee in contravention of section 72; or (d) dismisses
or discharges an employee in contravention of section 73; or (e) fails to
submit any return required by the Regulations, or makes a false return; or
(f) obstructs any Inspector or Official of the Corporation in the discharge of
his duties; or (g) is guilty of contravention of any other requirements of the
Act or the Rules or the Regulations; he would be punished with
imprisonment upto 1 year or with fine upto Rs. 4000/- or with both. Ss.85,
85-A (2) If any person convicted of an offence under the Act commits it
again, he would be punished with imprisonment upto 2 years or with fine
upto Rs. 5000/-, or with both. Note:- For the offence under clause 1(a) the
fine could be upto Rs. 5000/- and for the repeated offence under clause
1(a) the fine could be upto Rs. 25,000/-.

Question 17.
Q. Can a principal employer file a petition under Arts. 226 or 227 of the
Constitution of India merely because the remedy of an application before
the Employees' Insurance Court envisages the deposit of fifty per cent of
the amount claimed by the E.S.I. Corporation?

Answer 17.
A. The remedy of an application before the Employees' Insurance Court is
not being availed of as fifty per cent of the amount determined is liable to
be deposited. This by itself is no ground to entertain a petition under Arts.
226 or 227 of the Constitution of India. Note:- Held in DLF Power Ltd. v.
Deputy Director (Revenue), E.S.I. Corporation & Anr., 2007 II CLR 16
(P.&H.H.C.).

Question 18.
Q. Can an employer terminate the services of an employee by invoking the
provisions of Regulation 98 but without complying with the conditions
specified in the said Regulation?

Answer 18.
A. The first requirement of Regulation 98 is that the conditions of service
governing the employee should allow termination of service on the ground
of continuous ill-health. The second requirement of the Regulation is that
the employee must be given due notice before his services are terminated.
Principles of natural justice require that the injured employee should be
heard before his services are terminated. The third requirement of the
Regulation is that there must exist the conditions specified in Clauses (i),
(ii) and (iii) of the Regulation. Where these statutory requirements are not
 complied with, the termination will be illegal. Note:- Held in J. Benjamin v.
Management of Bharat Earth Movers, 2006 I CLR 143 (Karn.H.C.).

Question 19.
Q. Can an employer challenge the correctness of his dismissal in a
proceeding under Section 75 of the Act on the allegation of violation of
Section 73 of the Act?

Answer 19.
A. The proceeding under section 75 of the Act is not maintainable
questioning the correctness of the dismissal even if there is violation of
Section 73 of the Act. On the plain meaning of Section 75 of the Act such
dispute will not come under Section 75 of the Act. Note: Held in Kerala
State Co-operative Coir Marketing Federation v. Sreekumar, 2002 III
C.L.R. 91 (Ker.H.C.)

Question 20.
Q. Once a certificate for recovery of any contribution is issued to the
Recovery Officer under Section 45-C of the Act, is recourse to other
modes of recovery barred under the Act?

Answer 20.
A. Section 45-G of the Act provides that notwithstanding the issue of a
certificate to the Recovery Officer under Section 45-C the amount of
contribution may be recovered by any one or more of the modes
enumerated in Section 45-G. @IN = Note: See Ranchi Refractories v.
Regional Director, ESI Corporation, Patna 2005 II LLJ 916 (Jhark.H.C.)

Question 21.
Q. Does the period of limitation of five years prescribed under the proviso
of Clause (b) of Section 77(1-A) applies to orders passed by the
Corporation under Section 45-A determining the amount of contribution
payable by an employer?

Answer 21.
A. The Supreme Court has interpreted the law as follows. A reading of
Chapter IV (in which Section 45-A is contained) as a whole makes it clear
that there is no limitation prescribed for orders passed by the Corporation
under Section 45-A. The provision of 5 year limitation made under Section
77(1-A)(b) [which is contained in Chapter VI] has no relevance so far as
orders passed by the Corporation under Section 45-A are concerned.
 There cannot be any doubt that the area and the scope of Section 45-A
and 77 are quite different. The apparent purpose of the provisions of
Chapter IV is to curb default by the employers and also to provide for an
efficient method of recovery without any delay. It is noteworthy that at the
end of their judgment the Honourable Judges have not forgotten to
`preach' that "the approach of the ESI Court and the authorities should be
that of a watchdog and not of a bloodhound, even though the legislation is
a beneficial one". Note:- Held in Employees State Insurance Corporation v.
C.C. Santha Kumar 2007 III CLR 267 (S.C.)

Question 22.
Q. What are the benefits provided under the Act?

Answer 22.
A. The following six kinds of benefits are provided under the Act; (1)
Sickness benefit, (2) Maternity benefit, (3) Disablement benefit, (4)
Dependents' benefit, (5) Medical benefit and (6) Funeral expenses. S.46

Question 23.
Q. Who is an "exempted employee"?

Answer 23.
A. Exempted employee means an employee who is not liable to pay the
employee's contribution by reason of the fact that his average daily wages
are upto Rs. 70/- but who at the same time is entitled to the benefits under
the Act. S.2(10) & R.52

Question 24.
Q. Is a managing director of a company or a managing partner of a firm an
employee within the meaning of Section 2(9) of the Act?

Answer 24.
A. In case a managing director or any other director of a company or a
managing partner of a firm is being paid a fixed amount of monthly
remuneration (not exceeding the limit for coverage of an employee
prescribed under Rule 50 of the E.S.I. (Central) Rules, 1950), to carry out
extra duties, he is liable to be treated as an employee within the meaning
of Section 2(9) of the Act. They can be counted as employees to bring the
establishment under the purview of the Act. Note:- Held in Employees'
State Insurance Corporation v. Apex Engineering Private Ltd., 1997 II CLR
1219 (S.C.).
Question 25.
Q. Does the Act apply to a person employed through a contractor?

Answer 25.
A. The Act does apply to a person employed through a contractor if the
person is otherwise covered by the Act. S.2(9)

Question 26.
Q. Does the Act apply to employees working in the Head Office or Branch
Office of factories covered by the Act?

Answer 26.
A. The Act does apply to employees working in the Head Office or the
Branch Offices of factories covered by the Act if such employees are doing
work connected with the administration of the factories. Note:- Held in
Associated Cement Cos. Ltd. v. The Regional Director, Employees' State
Insurance Corporation Bombay, 1981 L.I.C. 1409.

Question 27.
Q. What is meant by "Maternity Benefit"?

Answer 27.
A. In case of (i) confinement, miscarriage or medical termination of
pregnancy; or (ii) in case of sickness arising out of pregnancy,
confinement, premature birth of child or miscarriage or medical termination
of pregnancy, an insured workman is entitled to receive periodical
payments called "maternity benefit". This benefit is available to the insured
woman, at such rate and for such period as is specified in Rule 56, for
confinement occurring or expected to occur in a benefit period if she has
paid contributions for not less than 80 days in the immediately preceding
two consecutive contribution periods. Ss. 46, 50 and Rule 56

Question 28.
Q. What is the meaning of "employment injury"?

Answer 28.
A. "Employment injury" is defined under Section 2(8) of the E.S.I. Act as a
personal injury to an employee caused by accident or an occupational
disease arising out of and in the course of his employment. The expression
 "arising out of employment" means caused by employment or had its
origin in the employment. The expression "arising in the course of
employment" means occurring during working hours, actual or notional.
Note: 1. See Regional Director, E.S.I. Corporation & Anr. v. Francis De
Costa & Anr. 1996 II C.L.R. 812. 2. For the meaning of "notional extension
of employment" see the Chapter on the Workmen's Compensation Act,
1923.

Question 29.
Q. What is meant by "Dependants' benefit"?

Answer 29.
A. When an insured employee dies as a result of an employment injury, his
widow and children and in case the employee does not leave behind him a
widow or children, his other dependants, are entitled to receive periodical
payments called "dependants' benefit" at such rates and for such periods
as are specified in Rule 58. S.52 and R.58

Question 30.
Q. Can an insured person sustaining an employment injury as an employee
under the Act recover compensation under the Workmen's Compensation
Act?

Answer 30.
A. An insured person or his dependants are prohibited from receiving or
recovering any compensation or damages under the Workmen's
Compensation Act in respect of an employment injury sustained by the
injured person as an employee under the Act. S.53 Note:- Under the Act
contracting of an occupational disease is deemed to be an employment
injury.

Question 31.
Q. Does the prohibition contained in section 73 apply to automatic
termination of service?

Answer 31.
A. The prohibition contained in section 73 does not apply to termination
which follows automatically either from a contract of service or from
Standing Orders as such termination does not amount to a punitive act or
order on the part of the employer. Note:- Held in Buckingham & Carnatic
Co. Ltd. v. Venkatiah, 1963 II LLJ 638.
Question 32.
Q. Is it permissible under the Act to exempt any establishment or any
person from the operation of the Act?

Answer 32.
A. (1) The Act permits the Government to exempt from its operation. (a)
any factory or establishment in any specified area; (b) any person
employed in any factory or establishment; (c) any factory or establishment
belonging to any local authority. (2) The Act also permits the Government to
exempt any employee in any factory or establishment from any provision
relating to the benefits provided under the Act. Ss.87, 88, 90 & 91 Note 1:
Exemption under (1)(a) can be granted for one year and can be renewed
for one year at a time. Note 2 : Exemption under (1)(c) can be granted if
the employees in any such factory or establishment are otherwise in
receipt of benefits substantially similar or superior to the benefits provided
under the Act.

Question 33.
Q. Can the Government reject an application for exemption of employees
of an establishment from the operation of the Act without hearing the
applicant and without assigning any reason?

Answer 33.
A. An order rejecting such application without performing even an empty
ritual of hearing the applicant and completely omitting the reasons cannot
be sustained. Note:- Held in Lohiya Machines (L.M.L.) Karmachari Sangh
v. State of U.P. & Ors., 1999 II CLR 705.

Question 34.
Q. Does the Act apply to an apprentice?

Answer 34.
A. The definition of "employee" as amended by Act 29 of 1989 now
includes "any person engaged as an apprentice not being an apprentice
engaged under the Apprentices Act or under the Standing Orders of the
establishment". Thus, even after the amendment the E. S. I. Act would not
apply to a person engaged as an apprentice under the Apprentices Act or
the Standing Orders.
Question 35.
Q. What is meant by "Medical Benefit"?

Answer 35.
A. When an insured employee or (where medical benefit is extended to his
family) a member of his family is sick, he is entitled to medical treatment
and attendance of such kind and on such scale as may be provided by the
State Government or by the Employees' State Insurance Corporation. This
benefit is called "medical benefit" and is available to the employee during
any period for which contributions are paid in respect of him or in which he
can claim sickness benefit. Ss. 56 & 57

Question 36.
Q. Can a person, who was not an insured person at the time of his
superannuation but who remained an insured person at some stage of his
employment, claim medical benefits?

Answer 36.
A. For the purpose of entitlement to medical benefits, a person must be an
insured person immediately preceding his superannuation. He cannot
claim medical benefits on the strength of remaining an insured person at
some stage of his employment. Note: Held in Common Cause v. Union of
India & Anr. 1998 II C.L.R. 350 (Delhi).

Question 37.
Q. What is meant by "contribution period" and "benefit period"?

Answer 37.
A. "Contribution period" and "benefit period" are periods fixed for the
purpose of paying contributions and deriving benefits under the Act. In
respect of the contribution period from 1st April to 30th September, the
corresponding benefit period shall be from 1st January of the year
following, to 30th June; and in respect of the contribution period from 1st
October to 31st March of the year following, the corresponding benefit
period shall be from 1st July to 31st December of the year following. In the
case of a newly employed person, the first contribution period shall
commence from the date of his employment, and the corresponding first
benefit period shall commence on the expiry of 9 months from the said
date. Rule 2 and Reg.4 Q. What is meant by "standard benefit rate"?

Question 38.
 Q. Are the various benefits under the Act liable to attachment?

Answer 38.
A. The cash benefits payable under the Act are not liable to attachment or
sale in execution of any decree or order of any Court. S.60

Question 39.
Q. What can the E.S.I. Corporation do if an employer fails to pay any
contribution?

Answer 39.
A. If any employer fails to pay the amount due in respect of any
contribution or any other amount payable under the Act, the Corporation
can recover from the employer damages upto cent per cent of the arrears.
The Corporation is empowered to recover the contribution and the
damages as an arrear of land revenue. Ss.45-B & 85-B

Question 40.
Q. Does the period of limitation of five years prescribed under the proviso
of Clause (b) of Section 77(1-A) applies to orders passed by the
Corporation under Section 45-A determining the amount of contribution
payable by an employer?

Answer 40.
A. The Supreme Court has interpreted the law as follows. A reading of
Chapter IV (in which Section 45-A is contained) as a whole makes it clear
that there is no limitation prescribed for orders passed by the Corporation
under Section 45-A. The provision of 5 year limitation made under Section
77(1-A)(b) [which is contained in Chapter VI] has no relevance so far as
orders passed by the Corporation under Section 45-A are concerned.
There cannot be any doubt that the area and the scope of Section 45-A
and 77 are quite different. The apparent purpose of the provisions of
Chapter IV is to curb default by the employers and also to provide for an
efficient method of recovery without any delay. It is noteworthy that at the
end of their judgment the Honourable Judges have not forgotten to
`preach' that "the approach of the ESI Court and the authorities should be
that of a watchdog and not of a bloodhound, even though the legislation is
a beneficial one". Note:- Held in Employees State Insurance Corporation v.
C.C. Santha Kumar 2007 III CLR 267 (S.C.)

Question 41.
 Q. What is the machinery provided under the Act for resolving disputes
arising out of the working of the Act?

Answer 41.
A. (1) Disputes arising out of the working of the Act can be referred to the
Employees' Insurance Court constituted by the State Government. A list of
matters to be decided by such Court is given in section 75. (2) A person
desirous of approaching the Court should do so by making an application
to the Court in the prescribed form accompanied by prescribed fees. (3)
The application should be made within a period of 3 years from the date
on which the cause of action arose. (4) An appeal against the order of the
Court lies to the High Court if it involves substantial question of law. The
appeal should be filed within a period of 60 days.Ss.74, 75, 77, 82

Question 42.
Q. Can an employer file a petition under Arts. 226 and 227 of the
Constitution of India to challenge an order of an Employees' Insurance
Court instead of filing an appeal under Section 82 of the ESI Act
contending that he has not raised any `substantial question of law' against
the order of the Employees' Insurance Court?

Answer 42.
A. Under Section 82 of the ESI Act an appeal lies to the High Court from
an order of an Employees' Insurance Court if it involves a substantial
question of law. When such an appeal is presented before the High Court,
the issue of substantial question of law would be considered by the High
Court. The contention of the employer that a petition under Arts. 226 and
227 of the Constitution of India should be straightway entertained cannot
be entertained when a statutory remedy of an appeal is available against
the order of the Employees' Insurance Court. Note:- Held in Kariya Builders
v. Employees State Insurance Corporation, 2007 II CLR 274 (Bom.H.C.)

Question 43.
Q. What is meant by "Sickness Benefit"?

Answer 43.
A. When an insured employee is sick, he is entitled to receive for the
period of his sickness, benefit at the daily "standard benefit rate" specified
in Rule 54. This benefit is available to the insured employee for sickness
occurring during any benefit period if he has paid contributions for not less
than seventy eight days of the corresponding contribution period. Sickness
benefit is not available for the first 2 days of sickness. The maximum
period for which sickness benefit is available is 91 days in one year. S.46
 and Rule 55

Question 44.
Q. Is an employee, who was assaulted at the bus stop while he was
waiting for the bus to his house, entitled to disablement benefit?

Answer 44.
A. It cannot be stated that the injury sustained by the employee due to
assault of some person will come under the purview of employment injury
as defined in Section 2(8) of the Act. Unless an employee can establish
that the injury was caused or had its origin in the employment, he cannot
succeed in a claim based on Section 2(8) read with Section 46(1) (c) of the
Act. Note: Held in E.S.I. Corporation v. Sasi, 2002 II L.L.J. 273 (Ker.H.C.)

Question 45.
Q. Is a retired insured person eligible to receive any benefits under the
Act?

Answer 45.
A. An insured person who retires on attaining the age of superannuation
shall be eligible to receive only medical benefits for himself and his spouse
if (i) he had been in the insurable employment for not less than 5 years
and (ii) if he pays contribution of Rs. 120/- every year in advance. S.56 &
R.61

Question 46.
Q. Is it permissible to pay benefits under the Act by account payee
cheques instead of cash?

Answer 46.
A. As provided under Regulation 52(4), it is not permissible to pay benefits
under the Act by cheques. Such a practice causes hardship to concerned
employee. It will be too much to expect low paid employees to keep a
Bank account. Note: Held in Kalihar Mazdoor Sangh v. State of Bihar, 1996
III L.L.N. 355 (Patna).

Question 47.
Q. Is it permissible for any person to draw a benefit of the same kind under
the Employees' State Insurance Act and also under any other Act?
Answer 47.
A. When a person is entitled to any of the various benefits provided under
the Employees' State Insurance Act, he will not be entitled to receive any
similar benefit admissible under any other enactment. An insured person
or his dependent is also not entitled to receive any compensation or
damages under the Workmen's Compensation Act in respect of any
employment injury sustained by the insured person. Ss.53 & 61

Question 48.
Q. Can a High Court postpone the date of the operation of the Notification
issued by the Central Government enhancing the wage ceiling for coverage
under the Act?

Answer 48.
A. The Notification is issued in exercise of the powers conferred by section
95 of the Act to make rules for the purpose of giving effect to the
provisions of the Act. The Notification amended the Employees' State
Insurance (Central) Rules, 1950 made under the said section and was a
legislative Act. The amendment of the rules being a delegated legislation,
a High Court cannot postpone the date of the operation of the Notification.
Note:- Held in Employees' State Insurance Corporation v. Kerala State
Handloom Development Corporation Employees Union, 1994 II C.L.R. 8.

Question 49.
Q. Is a cinema theatre, having less than 20 employees excluding security
guards engaged through outside agency, covered by the Act?

Answer 49.
A. The security guards came within the definition of employees under
Section 2(9) of the Act. The theatre was the principal employer of the
security guards and therefore the theatre is a covered establishment.
Note: Held in Saraswat Films (M/s) v. Regional Director, ESI Corporation,
Trichur, 2002 (94) F.L.R. 386 (S.C.)

Question 50.
Q. Is the Act applicable to Cricket Club of India?

Answer 50.
A. There is a kitchen in the club which caters to the members of the club.
The kitchen is no doubt a factory as defined under section 2(12) of the Act.
The activities in the kitchen has a direct connection with the activities
 carried on in the rest of the club. As such, the Act, which is made
applicable to all factories, is applicable to the Club. Note:- Held in Cricket
Club of India v. E.S.I. Corporation, 1994 I C.L.R. 526.

Question 51.
Q. Does the Act continue to apply to an establishment even after the
establishment goes out of the municipal limits due to the alteration of
boundaries?

Answer 51.
A. Once the establishment goes out of the municipal limits, it ceases to be
governed by the Act. Note:- Held in Regional Director, K.R.B. Nigam v. M.P.
Steel Fabricators, 1988 I C.L.R. 295.

Question 52.
Q. Are casual workers employed for the maintenance of an establishment
employee under Section 2(9) of the Act?

Answer 52.
A. Once the establishment is covered by the Act, the employer is liable to
pay contribution in respect of the employees in respect of repair and
maintenance of the establishment. The casual workers are employees
under Section 2(9) of the Act. Note: Held in Regional Director, ESI
Corporation v. Standard Pottery Works, 2002 (94) F.L.R. 265 (Ker.H.C.)

Question 53.
Q. Whether consultants are employees?

Answer 53.
A. Consultants do not work in the premises of the Company. Their work is
carried out in their own places. They are engaged as consultants in the
matter of carrying on the business of the respondent first as retaining tax
consultants such engagement cannot create employer-employee
relationship.

Question 54.
Q. Is a petrol pump a factory?

Answer 54.
A. A petrol pump employing more than 10 employees is a factory. The
 activity of pumping petroleum product with the aid of power is sufficient to
bring it within the definition of 'manufacturing process' under the Factories
Act. Note: Held in Quazi Noorul Hasan Hamid Hussain Petrol Pump v.
Deputy Director, E. S. I. Corporation, 2003 II L.L.J. 341 (All.H.C.)

Question 55.
Introduction

Answer 55.
Long Back in 1923, the Government, by enacting the Workmen's
Compensation Act, provided some social security to the industrial workers.
The benefit provided by this Act was, however, limited to compensation for
injury caused by accident. Besides, the cost of compensation was to be
borne entirely by the employer. By enacting the Employees' State
Insurance Act, 1948, the Government introduced a scheme of social
insurance for the industrial workers. Under the scheme the workers also
are required to contribute to a social insurance fund which is to be utilised
for conferring benefits on them. The Employees' State Insurance Act,
1948, provides to the workers not only accident benefit but also other
benefits such as sickness benefit, maternity benefit and medical benefit.

Question 56.
Q. Is an automobile workshop a factory?

Answer 56.
A. If twenty or more persons are employed in an automobile workshop to
repair vehicles to put them to use, it should be construed that
manufacturing process is carried on in the workshop and therefore it is a
factory. Note:- Held in E.S.I. Corporation v. Southern Motors, 1998 (2) LLN
944 ( Mad.H.C.)

Question 57.
Q. Which establishments are covered by the Act?

Answer 57.
A. (1) The Act is applicable, in the first instance, to all factories other than
seasonal factories. (2) The appropriate Government may extend the
provisions of the Act or any of them to any other industrial, commercial or
agricultural establishment. S.1 Note:- With effect from 12-11-1978 the
Government of Maharashtra has extended the provisions of the Act to
establishments of hotels, restaurants, shops, cinemas and newspapers
 employing 20 or more employees situated in Greater Bombay and certain
talukas of Thane District.

Question 58.
Q. What is the meaning of "factory" under the Act?

Answer 58.
A. Prior to 1989 amendment of the Act, a factory was defined as any
premises whereon 20 or more persons are employed and in any part of
which a manufacturing process is carried on with the aid of "power". By
1989 amendment of the Act a factory is now defined as: (i) any premises
whereon 10 or more persons are employed and in any part of which a
manufacturing process is carried on with the aid of "power"; or (ii) any
premises whereon 20 or more persons are employed and in any part of
which a manufacturing process is carried on without the aid of power.
S.2(12).

Question 59.
Q. Is the Act applicable to a Diagnostic Centre engaged in examination of
blood, urine etc.?

Answer 59.
A. Drawing of blood sample for diagnosis did not mean "treating or
adapting it with a view it its use, sale, transport, delivery or disposal". The
process resorted to by the Centre would not amount to any manufacturing
process as defined in Section 2(k) of the Factories Act, 1948 so as to
cover the Centre under the Act. Note:- Held in Vijaya Diagnostic Centre v.
E.S.I. Corporation, 2006 II LLJ 443 (A.P.H.C.).

Question 60.
Q. Would the Act cease to apply to a factory or an establishment if the
number of persons employed therein falls below the limit specified by or
under the Act or the manufacturing process therein ceases to be carried
on with the aid of power?

Answer 60.
A. The factory or the establishment shall continue to be governed by the
Act notwithstanding the fall in the number of persons employed or
discontinuance of the use of power. S.1(6)
Question 61.
Q. What is the object of the Employees' State Insurance Act, 1948?

Answer 61.
A. The object of the Act is to secure sickness, maternity, disablement and
medical benefits to employees of factories and establishments and
dependents' benefits to the dependents of such employees.

Question 62.
Q. Does conveyance allowance form part of wages within the ambit of
Section 2(22) of the Act?

Answer 62.
A. Since the employer is paying a certain fixed amount as conveyance
allowance to every employee working in his concern, in terms of contract
of employment, there is no impediment to hold that the definition of
Section 2(22) of the Act. Note: Held in Regional Director, ESI Corporation v.
IT Solutions (India) Pvt. Ltd. 2002 III C.L.R. 367 (Karn.H.C.)

Question 63.
Q. What is the contribution payable by the employee and the employer
under the Act?

Answer 63.
A. Every insured employee and his employer have to pay to the ESI.
Corpn. contribution (a sum rounded to the next higher rupee) at the rate of
1.75% and 4.75% respectively of the wages of the employee. S.39 & R.51

Question 64.
Q. What is the time and method for payment of contribution payable under
the Act?

Answer 64.
A. Both the employer's and the employees' contribution are required to be
paid, in cash or by cheque, into the State Bank of India or any other Bank
authorised by the E.S.I. Corporation, by filling in a prescri-bed Challan in
quadruplicate within 21 days following the end of the calendar month in
which the contribution falls due. The Bank will retain two copies of the
challan and return other two to the employer, one for submitting to the
Regional Office of the Corporation and the other for the record of the
employer. Regs. 29 and 31
Question 65.
Q. What is the procedure for registration of a factory or an establishment
under the Act?

Answer 65.
A. The employer of a factory or an establishment desirous of registering it
under the Act has to send to the Regional Office within 15 days from the
Act becomes applicable to it a Declaration of Registration in the prescribed
form. Upon receipt of the Declaration of Registration the Regional Office
shall if satisfied that factory or the establishment is covered by the Act,
allot to it a Code Number and thereupon the factory or the establishment
shall stand registered under the Act. S.2(A) & Reg. 10(B)

LABOUR LAW NO.6 - The Employment Exchange

(CNV)Act,1959
Question 1.
Q. Are the factories belonging to the Government governed by the Act?

Answer 1.
A. The Act does apply to factories belonging to the Government. S.1(A)

Question 2.
Q. What obligation is cast by the Act on the employer in a public sector
establishment?

Answer 2.
A. The Act compels the employer in every establishment in public sector in
a State to notify the vacancies occurring in any employment in that
establishment to the specified employment exchanges. S.4(1).

Question 3.
Q. What is the time-limit for notifying vacancies to the Central Employment
Exchange?

Answer 3.
A. Vacancies, required to be notified to the Central Employment
 Exchange, shall be notified giving at least 60 days' time to the Central
Employment Exchange from the date of receipt of the notification to the
date of dispatch of particulars of applications of the prospective candidates
for purpose of appointment or taking interview or test against the
vacancies notified. R.5(2).

Question 4.
Q. What obligation is cast by the Act on the employer in a private sector
establishment?

Answer 4.
A. The Central Government or a State Government can compel the
employer in a private sector establishment to notify the vacancies
occurring in that establishment to the specified Employment Exchanges
and the employer shall thereupon comply with such requisition. S. 4(2).

Question 5.
Introduction

Answer 5.
The Employment Exchanges Act compels the employer to notify vacancies
occurring in his establishment to employment exchanges. The Act is
intended to benefit both the employer and the worker. It enables the
employer to choose the best. It gives to the worker an opportunity to have
his claim for appointment considered without the worker having to wander
here and there. It should be noted that what is compulsory under the Act is
notification of vacancies. The Act does not compel the employer to employ
those persons only who have been sponsored by the employment
exchanges. The employer is free to choose from other sources also.

Question 6.
Q. What is the object of the Employment Exchanges Act?

Answer 6.
A. The Employment Exchanges Act is intended to benefit both the
employer and the worker. It enables the employer to choose the best and
the most efficient and provides an opportunity to the worker to have his
claim for appointment considered without the worker having to knock at
every door for employment. Note:- Held in Union of India v. N. Hargopal,
1987 I C.L.R. 385.
Question 7.
Q. Does the Act apply in relation to each and every vacancy?

Answer 7.
A. The Act does not apply in relation to vacancies; (a) in any employment in
agriculture, in any establishment in private sector other than employment
as agricultural or farm machinery operatives; (b) in any employment in
domestic service; (c) in any employment the total duration of which is less
than three months; (d) in any employment to do unskilled office work, i.e.,
the work of a daftari, peon, watchman, sweeper, etc.; (e) in any
employment connected with the staff of Parliament. Ss. 3(1) & 2(i)

Question 8.
Q. What is the manner of notifying vacancies?

Answer 8.
A. The vacancies shall be notified to the appropriate Employment
Exchange in writing on the prescribed format, giving as many details as
practicable, separately in respect of each type of vacancy. S.4 & R.4.

Question 9.
Q. To which Employment Exchange vacancies are to be notified?

Answer 9.
A. (1) The following vacancies, namely (a) vacancies in posts of a
technical and scientific nature carrying a basic pay of Rs. 1,400/- or more
per month occurring in establishment in respect of which the Central
Government is the appropriate Government and (b) vacancies which an
employer may desire to be circulated to the Employment Exchanges
outside the State or Union Territory in which the establishment is situated,
shall be notified to the Central Employment Exchange specified by the
Central Government in this behalf. (2) Vacancies other than those specified
above shall be notified to the Local Employment Exchange concerned.
(R.3).

Question 10.
Q. If an establishment to which the Act does not apply decides to notify
vacancies to the Employment Exchange and consider only those
candidates who are sponsored by the Employment Exchange, can a writ
or direction be issued against the establishment not to do so?
Answer 10.
A. If the establishment decides to regulate the process of recruitment and
reduce the scope of arbitrariness in the matter of appointment, there is
nothing illegal or invalid in it and a writ or direction to the contrary cannot
be issued against the establishment. Note:- Held in S. Ramu v. Executive
Officer, T.T. Devasthanam & Anr., 1993 I C.L.R. 474.

Question 11.
Q. What is the time-limit for notifying vacancies to the Local Employment
Exchange?

Answer 11.
A. Vacancies, required to be notified to the Local Employment Exchange,
shall be notified at least 15 days before the date on which applicants will
be interviewed or tested where interviews or tests are held, or the date on
which vacancies are intended to be filled, if no interviews or tests are held.
R.5(1).

Question 12.
Q. What is the time-limit for furnishing the results of selection?

Answer 12.
A. An employer shall furnish to the concerned Employment Exchange the
results of selection with 15 days from the date of selection. R.5(3).

Question 13.
Q. Is an employer required to submit any returns to the Employment
Exchange?

Answer 13.
A. An employer shall furnish to the Local Employment Exchange quarterly
returns and biennial returns in such form and at such intervals of time as
prescribed by Rules made under the Act. S. 5 & R. 6.

Question 14.
Q. Is it compulsory for the employer to employ only those persons who
have been sponsored by the Employment Exchanges?

Answer 14.
 A. The Act does not oblige any employer to employ those persons only
who have been sponsored by the Employment Exchanges. Note:- Held in
Union of India v. N. Hargopal, 1987 I C.L.R. 385.

Question 15.
Q. Does the Act apply in relation to each and every vacancy?

Answer 15.
A. The Act does not apply in relation to vacancies; (a) in any employment in
agriculture, in any establishment in private sector other than employment
as agricultural or farm machinery operatives; (b) in any employment in
domestic service; (c) in any employment the total duration of which is less
than three months; (d) in any employment to do unskilled office work, i.e.,
the work of a daftari, peon, watchman, sweeper, etc.; (e) in any
employment connected with the staff of Parliament. Ss. 3(1) & 2(i)

Question 16.
Q. What is the object of the Employment Exchanges Act?

Answer 16.
A. The Employment Exchanges Act is intended to benefit both the
employer and the worker. It enables the employer to choose the best and
the most efficient and provides an opportunity to the worker to have his
claim for appointment considered without the worker having to knock at
every door for employment. Note:- Held in Union of India v. N. Hargopal,
1987 I C.L.R. 385.

Question 17.
Q. What obligation is cast by the Act on the employer in a private sector
establishment?

Answer 17.
A. The Central Government or a State Government can compel the
employer in a private sector establishment to notify the vacancies
occurring in that establishment to the specified Employment Exchanges
and the employer shall thereupon comply with such requisition. S. 4(2).

Question 18.
Q. What is the manner of notifying vacancies?
Answer 18.
A. The vacancies shall be notified to the appropriate Employment
Exchange in writing on the prescribed format, giving as many details as
practicable, separately in respect of each type of vacancy. S.4 & R.4.

Question 19.
Q. To which Employment Exchange vacancies are to be notified?

Answer 19.
A. (1) The following vacancies, namely (a) vacancies in posts of a
technical and scientific nature carrying a basic pay of Rs. 1,400/- or more
per month occurring in establishment in respect of which the Central
Government is the appropriate Government and (b) vacancies which an
employer may desire to be circulated to the Employment Exchanges
outside the State or Union Territory in which the establishment is situated,
shall be notified to the Central Employment Exchange specified by the
Central Government in this behalf. (2) Vacancies other than those specified
above shall be notified to the Local Employment Exchange concerned.
(R.3).

Question 20.
Q. What obligation is cast by the Act on the employer in a public sector
establishment?

Answer 20.
A. The Act compels the employer in every establishment in public sector in
a State to notify the vacancies occurring in any employment in that
establishment to the specified employment exchanges. S.4(1).

Question 21.
Q. What is the time-limit for notifying vacancies to the Local Employment
Exchange?

Answer 21.
A. Vacancies, required to be notified to the Local Employment Exchange,
shall be notified at least 15 days before the date on which applicants will
be interviewed or tested where interviews or tests are held, or the date on
which vacancies are intended to be filled, if no interviews or tests are held.
R.5(1).
Question 22.
Q. What is the time-limit for notifying vacancies to the Central Employment
Exchange?

Answer 22.
A. Vacancies, required to be notified to the Central Employment
Exchange, shall be notified giving at least 60 days' time to the Central
Employment Exchange from the date of receipt of the notification to the
date of dispatch of particulars of applications of the prospective candidates
for purpose of appointment or taking interview or test against the
vacancies notified R.5(2).

Question 23.
Q. What is the time-limit for furnishing the results of selection?

Answer 23.
A. An employer shall furnish to the concerned Employment Exchange the
results of selection with 15 days from the date of selection. R.5(3).

Question 24.
Q. If an establishment to which the Act does not apply decides to notify
vacancies to the Employment Exchange and consider only those
candidates who are sponsored by the Employment Exchange, can a writ
or direction be issued against the establishment not to do so?

Answer 24.
A. If the establishment decides to regulate the process of recruitment and
reduce the scope of arbitrariness in the matter of appointment, there is
nothing illegal or invalid in it and a writ or direction to the contrary cannot
be issued against the establishment. Note:- Held in S. Ramu v. Executive
Officer, T.T. Devasthanam & Anr., 1993 I C.L.R. 474.

Question 25.
Q. Is an employer required to submit any returns to the Employment
Exchange?

Answer 25.
A. An employer shall furnish to the Local Employment Exchange quarterly
returns and biennial returns in such form and at such intervals of time as
prescribed by Rules made under the Act. S. 5 & R. 6
LABOUR LAW NO.7 - The Equal Remuneration Act,1976
Question 1.
Maintenance of register

Answer 1.
8. Every employer shall maintain in the prescribed form a register in
relation to the workers employed by him.

Question 2.
Introduction

Answer 2.
The Equal Remuneration Act is a gift of "the International Women's Year'
to women workers. It is enacted to give effect to the provision of Article 39
of the Constitution of India which contains a directive principle of equal pay
for equal work for both men and women. The Act provides for the payment
of equal remuneration to men and women workers for the same work or
work of a similar nature and for the prevention of discrimination on the
ground of sex against women in the matter of employment. The main
provisions of the Act are as follows. Equal pay for equal work 1. No
employer shall pay to any worker employed by him remuneration at rates
less favourable than those at which remuneration is paid by him to the
workers of the opposite sex for performing the same work or work of a
similar nature. S.4(1)

Question 3.
No discrimination to be made while recruiting men and women

Answer 3.
2. No employer shall make any discrimination against women while making
recruitment for the same work or work of a similar nature. S.5

Question 4.
Exceptions

Answer 4.
3. The provisions of the Act shall be inapplicable when special treatment is
given to women under any law or when special treatment is accorded to
 women in connection with the birth of a child. S.15

Question 5.
Case Laws

Answer 5.
9. (a) In Mackinnon Mackenzie & Co. Ltd. v. Audry D'Souza, the Supreme
Court has held that male stenographers and female stenographers are
entitled to get equal pay. 1987 I C.L.R. 356 (b) In West Bengal Factories
Service Association v. State of West Bengal, the Calcutta High Court has
held that Inspectors of Boilers, Electrical Inspectors and Inspectors of
Factories are entitled to get equal pay 1988 I C.L.R. 387 (c) In State of
West Bengal v. West Bengal State Government Homeopathy Officers, the
Calcutta High Court has held that Regularised Homeopathic Medical
Officersand ad hoc Homeopathic Medical Officers are entitled to get equal
pay. 1988 II C.L.R. 576 (d) In P.S. Murthy (Dr.) v. District Medical and
Health Officer, the Andhra Pradesh High Court has held that Civil Assistant
Surgeons and Doctors appointed on an honorarium basis are entitled to
get equal pay. 1988 II L.L.J. 397 (e) In M.S. Pandya v. State of Gujarat, the
Gujarat High Court has held that Librarians in Government Departments
and Librarians in Government Colleges are entitled to get equal pay. 1977
II L.L.J. 89 (f) In Union of India v. Debasis Kar, the Supreme Court has
held that Draughtsmen in ordnance factories and Draughtsmen in Central
Public Works Department are entitled to get equal pay. 1996 L.I.C. 604 (g)
In State of Haryana v. Rajpal Sharma, the Supreme Court has held that
teachers in private aided schools and teachers in Government schools are
entitled to get equal pay. 1996 II C.L.R. 933 (h) In M.S. Sareswathi v. State
of Tamil Nadu, the Madras High Court has held that Selection Grade
Typists in High Court and Senior Typists in Secretariat are entitled to get
equal pay. 1996 I L.L.J. 1060 (i) In K. Krishnamacharyulu v. Sri
Venkateswara, the Supreme Court has held that Laboratory Assistants in
private colleges are entitled to get the same pay as that of Government
employees. 1997 I C.L.R. 1133 (j) In Malan Karale & Ors. v. Aloo Chibber &
Ors., the Bombay High Court has held that the employees of Bal Kalyan
Nagari, which is one of the several institutions run by the Children's Aid
Society, are doing similar duties and work as being done by their
counterparts in other institutions of the Society and they are entitled to
salary and service conditions enjoyed by the employees working in the
other institutions of the Society. 2005 II CLR 419

Question 6.
Declarations
Answer 6.
4. The Central Government or a State Government may make a
declaration that in a particular establishment or employment the difference
in regard to the remuneration of men and women is based on a factor
other than sex and on such declaration being made any act of the
employer attributable to such difference shall not be deemed to be a
contravention of any provision of the Act. S.16

Question 7.
Claims and complaints

Answer 7.
5. Complaints with regard to the contravention of any provision of the Act
and claims arising out of non-payment of wages at equal rates to men and
women workers for the same work or work of a similar nature shall be
heard and decided by an authority appointed by the appropriate
Government. An appeal shall lie against any order of the authority to an
appellate authority appointed by the appropriate Government. S.7

Question 8.
Claims and Complaints

Answer 8.
6. Monies due from an employer arising of the decision of the authority or
the appellate authority can be recovered by making an application under
Section 33-C(1) of the Industrial Disputes Act, 1947. S.7(8)

Question 9.
Penalties

Answer 9.
7. If any employer (a) makes any recruitment in contravention of the
provisions of the Act, or (b) makes any pay- ment of remuneration at
unequal rates to men and women workers, for the same work or work of a
similar nature, or (c) makes any discrimination between men and women
workers in contravention of the provisions of the Act, he would be
punished with fine upto Rs. 10,000/-. S.10

Question 10.
Q. What is meant by equality of work?
Answer 10.
A. The equality of work is not based on the designation or the nature of
work alone. There are several other factors, which are equally relevant.
They are qualifications, responsibilities, reliabilities, experience,
confidentiality, functional need and requirements commensurate with the
position in the hierarchy. Note: Held in Union of India v. Tarit Ranjan Das,
2004 I CLR 12 (S.C.)

LABOUR LAW NO.8 - The Factories Act,1948

Question 1.
Q. Is there any monthly return to be filed before the Authortiies?

Answer 1.
A. All factories are required to submit monthly return in Form 27A before
10th of each month in respect of the preceeding month. However if the
factory is having less than 10 employees and covered under Secion 85,
monthly return are to be filed at the end of every quarter. Rule 119(2)

Question 2.
Q. What is the object of the Factories Act, 1948?

Answer 2.
A. The object of the Act is to secure to the workers employed in the
factories health, safety, welfare, proper working hours, leave and other
benefits. The Act aims at protecting workers employed in factories from
unfair exploitation by the employer.

Question 3.
Q. Is the laundry division of a hotel run with the help of its own machinery
and employees a factory?

Answer 3.
A. According to the definition of a factory a hotel, restaurant or eating place
is exempt from the operation of the Factories Act, and, therefore, the
laundry division run by a hotel as a part and parcel of the hotel with its own
machinery and employees, exclusively meant for washing uniform and
clothes of guests staying in the hotel is not a factory. Note:- See
Welcomegroup Windsor Manor Sheraton and Towers v. State of
 Karnataka, 2004 III CLR 29 (Karn.H.C.)

Question 4.
Q. Is an employer guilty if leave wages are not paid by him to a worker on
the second day of the termination of his service due to the factory
remaining closed?

Answer 4.
A. An employer is not guilty of breach of section 79(11) where leave wages
are not paid by him to a worker on the second day of the termination of his
services due to the factory remaining closed on that day. Note:- Held in
State of Gujarat v. Jashubhai Prabhudas, 1980 L.I.C. 569.

Question 5.
Q. What are the measures required to be taken by a factory in respect of
the welfare of the workers?

Answer 5.
A. Every factory must take appropriate measures as per the provisions of
the Act to provide- (a) facilities for washing; (b) facilities for sitting of
workers while they are on work; (c) facilities for storing clothing not worn
during working hours and the drying of wet clothing (in the case of bigger
factories only); (d) first aid boxes and cupboards; (e) canteens (in the case
of bigger factories only); (f) rest rooms and lunch rooms (in the case of
bigger factories only); (g) creches (in the case of factories employing more
than 30 women workers only). Ss.42 to 50

Question 6.
Q. What are the provisions of the Act about the grant of annual leave to
the workers?

Answer 6.
A. The main provisions of the Act about the grant of annual leave with
wages are as follows:- (a) A worker must be allowed in every calendar year
annual leave with wages at the rate of 1 day for every 20 days of work
performed by him during the previous calendar year provided that he has
worked for 240 days or more in the previous calendar year. (b) In the case
for a child worker the annual leave with wages is to be allowed on the
same basis as above but at the rate of 1 day for every 15 days of work
performed. (c) Leave can be accumulated upto 30 days in the case of an
adult and 40 days in the case of a child. (d) The leave admissible will be
 exclusive of holidays occurring during or at either end of the leave period.
(e) Wages for leave allowed must be paid before the leave period begins.
(f) In the case of a worker who is discharged or dismissed from service or
quits his employment or is superannuated or dies while in service, he or
his heir or nominee must be paid wages in lieu of annual leave. In such
cases the annual leave is to be calculated at the same rates as above but
irrespective of the fact that the worker has worked for 240 days or not.
Ss.78 to 81

Question 7.
Q. What are the offences under the Act and the punishment therefore?

Answer 7.
A. (a) If in any factory there is any contravention of any of the provisions of
the Act or of any rule or order made thereunder, the occupier and the
manager of the factory could each be punished with imprisonment upto 2
years, or with fine upto Rs. one lakh or with both. S.92 - (A) WIL = (b) If
any occupier or manager convicted of an offence under (a) above
continues the contravention of the offence, he could be punished with a
further fine upto Rs. 1,000 for each day on which the contravention is so
continued. S.92 (c) If an occupier or manager convicted of an offence
under (a) above commits the offences again, he could be punished with
imprisonment upto 3 years, or with fine upto Rs. two lakhs,or with both.
S.94 (d) If any person wilfully obstructs an Inspector appointed under the
Act or fails to produce any document demanded by an Inspector or
prevents any worker from appearing before an Inspector, he could be
punished with imprisonment upto 6 months, or with fine upto Rs. 10,000,
or with both. S.95 (e) As per the Factories Amendment Act, 1987 penalty
for the contravention of the provisions of Sections 41-B, 41-C and 41-H
are the imprisonment for a term which may extent to seven years and fine
which may extend to two lakh rupees, for the continuing contravention and
additional fine of Rs. 5,000 for every day. S. 96(A) (f) If any worker
contravenes any provision of the Act or any rules or orders made
thereunder, he could be punished with fine upto Rs. 500. S.97

Question 8.
Q. What are the rights of the workers?

Answer 8.
A. (1) A worker in a factory has a right to obtain from the occupier,
information relating to workers' health and safety at work; (2) He has a right
to get himself sponsored by the occupier for getting trained at a training
centre or institute, duly approved by the Chief Inspector of Factories,
 where training is imparted for workers' health and safety at work; (3) He
has a right to represent to the Inspector directly or through his
representative in the matter of inadequate provision for protection of his
health or safety in the factory. S.111(A)

Question 9.
Q. Does Section 46 of the Act, which requires the employer to provide and
maintain a canteen for the use of the workers, create any obligation on the
part of the employer to treat the canteen as a part of the establishment
and the workers employed in the canteen as the employees of the
management?

Answer 9.
A. The Supreme Court has observed that where, as under the provisions
of the Factories Act, it is statutorily obligatory on the employer to provide
and maintain a canteen, the canteen becomes a part of the establishment
and, therefore, the workers employed in such canteen are the employees
of the management. Note-1: -See Parimal Chandra Raha & Ors. v. Life
Insurance Corporation India & Ors. 1995 II C.L.R. 194 (S.C.). Note 2: In
Hari Shankar Sharma & Ors. v. M/s. Artificial Limbs Manufacturing
Corporation & Ors., 2002 I C.L.R. 13, the Supreme Court has observed as
follows. It cannot be said as an absolute proposition of law that whenever
in discharge of a statutory mandate, a canteen is set up or other facility
provided by an establishment, the employees of the canteen or such other
facility become the employees of that establishment. It would depend on
how the obligation is discharged by the establishment. It may be carried
out wholly or substantially by the establishment itself or the burden may be
delegated to an independent contractor. Where it is left to the discretion of
the concerned establishment to discharge its obligation of setting up of a
canteen either by way of direct recruitment or by employment of a
contractor, it cannot be postulated that in the latter event, the persons
working in the canteen would be the employees of the establishment.

Question 10.
Q. Is it permissible to exclude house rent allowance payable to a worker
while computing wages in respect of his overtime work?

Answer 10.
A. Section 59(2) clearly lays down the manner in which "ordinary rate of
wages" is to be computed for payment of overtime under Section 59(1)
and therefore house rent allowance has to be taken into consideration
while computing overtime wages. Note: - Held in Chief General Manager,
Telecom Factory v. H.R. Thakur & Ors. 1998 I C.L.R. 1260 (Bombay).
Question 11.
Q. What are the restrictions on the employment of children in factory?

Answer 11.
A. The main restrictive provisions of the Act about the employment of
children are as follows:- (a) The employment of a child below the age of 14
years is totally prohibited. S.67 (b) A child who has completed the age of
14 years but has not completed the age of 15 years can be employed for a
maximum period of 4 1/2 hours in a day. (c) Such child cannot be
employed during the night time i.e., from 10 p.m. to 6 a.m. S.71 (d) Such
child must have a certificate of fitness granted by the Certifying Surgeon.
S.68 (e) The Manager must maintain a register of child workers in the
prescribed form. S.73 (f) A child who has completed the age of 15 years but
has not completed the age of 18 years can be employed as an adult if he
has a certificate of fitness for a full day's work. Ss. 68-69

Question 12.
Q. Are the workers required to observe any discipline in connection with
the use of the appliances provided by a factory for their health, safety and
welfare?

Answer 12.
A. (1) A worker should not wilfully interfere with or misuse any appliance,
convenience or other things provided for the purpose of securing the
health, safety or welfare of the workers. (2) He should not wilfully and
without reasonable cause do anything likely to endanger himself or others.
(3) He should not wilfully neglect to make use of any appliance or other
things provided for the purpose of securing the health or safety of the
workers. (4) If any worker contravenes the above provisions, he could be
punished with imprisonment upto 3 months, or with fine upto Rs. 100, or
with both. S.111

Question 13.
Q. Is a brick field a factory?

Answer 13.
A. The definition of "factory" does not include a mine. When big mines are
excluded from the definition of "factory", a small brick field has to be
excluded from it. Brick fields are controlled by the West Bengal Minor
Minerals Rules, 1973. According to the said Rules the operation of a brick
 field is of the nature of minor minerals. A brick field is not a factory. Note:-
Held in Gurudas Roy Chowdhary v. State of West Bengal, 2004 II CLR 125
(Cal.H.C.)

Question 14.
Q. Are there any kind of premises which are excluded from the definition of
a factory?

Answer 14.
A. The following kinds of premises are excluded from the definition of a
factory:- (1) a mine, (2) a mobile unit belonging to the armed forces of the
Union, (3) a railway running shed, or (4) a hotel, restaurant or eating place.
S.2(m).

Question 15.
Introduction of the Act

Answer 15.
Factory legislation became essential when the factory owners began to
exploit men, women and children by taking work from them in complete
disregard of their health and strength. The first Factories Act was passed
in India a hundred years ago in 1881. Though this legislation was initiated
to promote the interests of the producers in Lancashire and Manchester, it
has since then steadily developed into a welfare measure of wide contents
and coverage through innumerable amendments and re- enactments. As
observed by the Supreme Court of India in the case of Nagpur Electric
Light and Power Company the scope of the factory legislation has been
now very much enlarged in order to secure health, safety, welfare, proper
working hours and leave and other benefits for the workers employed in
factories. Is it not a remarkable achievement of the factory legislation that
the works day of the factory employee which in the olden days used to be
not less than 15 hours has been now halved to not more than 8 hours?

Question 16.
Q. Is transportation of goods a "manufacturing process"?

Answer 16.
A. Transportation of goods on contract basis cannot be considered to be
"manufacturing process" just because the definition of "manufacturing
process" contains the word "transport". Note:- Held in Regional Director,
E.S.I. Corporation, Bangalore v. Jai Hind Roadways, Bangalore & Ors.
 2001 II CLR 438.

Question 17.
Q. What is the meaning of "power"?

Answer 17.
A. Power means not only electrical energy but also any other form of
energy which is mechanically transmitted but is not generated by human
or animal energy. S.2(g)

Question 18.
Q. Is it permissible to exempt any factory from the provisions of the Act?

Answer 18.
A. A State Government, in a case of grave emergency, can exempt any
factory from all or any of the provisions of the Act for such period (not
exceeding 3 months at a time) and subject to such conditions as it thinks
fit. S.5

Question 19.
Q. What is the procedure for getting the plans of a factory approved?

Answer 19.
A. (1) An application for approval of the plans of a factory has to be made
to the Chief Inspector of Factories; (2) The application should be
accompanied by necessary documents. (3) The Chief Inspector of
Factories, if he is satisfied that the plans are in accordance with the
requirements of the Act, will approve them. S. 6 & Rule 3

Question 20.
Q. Which Act will apply to a shop situate within the precincts of a factory,
Factories Act or Shops and Establishments Act?

Answer 20.
A. Of course Factories Act will apply to a shop situate within the precincts
of a factory, but if the shop is not connected with the manufacturing
process of the factory the provisions of Shops and Establishments Act will
apply to it. S.70 of the Bombay Shops and Establishments Act.
Question 21.
Q. Is a Government company which owns a factory also required to
nominate one of its directors as the occupier of the factory?

Answer 21.
A. Such a factory being a factory owned or controlled by the Central
Government or a State Government falls within the purview of clause (iii)
of the first proviso to Section 2(n) and therefore it can nominate any
person other than a director to manage the affairs of the factory. Note:-
Held in Indian Oil Corporation Ltd. v. Chief Inspector of Factories & Ors.,
1998 II CLR 506.

Question 22.
Q. What are the measures to be taken by a factory in respect of the health
of the workers?

Answer 22.
A. Every factory must take appropriate measures as per the provisions of
the Act- (a) to keep its premises in a clean state; (b) to dispose of wastes
and effluents; (c) to maintain adequate ventilation and reasonable
temperature; (d) to prevent accumulation of dust and fume; (e) to avoid
over-crowding; (f) to provide sufficient lighting, drinking water, latrines and
urinals, and spittoons. Ss. 11 to 20

Question 23.
Q. Has the State Government power to fix pay scale of Welfare Officers?

Answer 23.
A. The State Government has power to fix pay scale of Welfare Officers
working in the factories under Section 49(2) read with section 50 and
Section 112 of the Act. Note: Held in I.T.C. Ltd., v. State of U. P., 2002 (95)
F.L.R. 904.

Question 24.
Q. Is it permissible for any employer to collect from a worker any fee or
charge for the various facilities provided under the Act?

Answer 24.
A. No fee or charge can be realised from a worker in respect of the various
facilities and conveniences provided under the Act. A worker can, however,
be charged for the foodstuffs served in the factory canteens. S.114
Question 25.
Q. Can a worker claim any overtime wages while he is on tour?

Answer 25.
A. A worker is not entitled to any extra wages under section 59 when he
goes out on tour beyond his sphere of duty at the headquarters. Note: -
Held in Director of Stores, Gujarat S.R.T. Corporation v. P.S. Dube, 1978
L.I.C. 390.

Question 26.
Q. What are the restrictions on the working hours of adults employed in a
factory?

Answer 26.
A. The main restrictive provisions of the Act about the working hours of
adults are as follows:- (a) A worker cannot be employed for more than 48
hours in a week. S.51 (b) He cannot be employed for more than 9 hours in
a day. S.54 (c) He must be given an interval of rest of at least 1/2 hour
after 5 hours' work. S.55 (d) His total periods of work inclusive of rest
interval must not spread over more than 101/2 hours in a day. S.56 (e) He
must be given a holiday for a whole day in every week. S. 52 (f) If he works
for more than 9 hours in a day or for more than 48 hours in a week, he
must be paid for the overtime work at double the rate of his wages. S.59
(g) A woman worker cannot be employed beyond the hours of 6 a.m. and 7
p.m. S.66 Note:- The above restrictions, except restrictions (a) and (f), can
be relaxed in certain circumstances.

Question 27.
Q. Are all persons employed in a factory entitled to extra wages in respect
of overtime work under Section 59 of the Act?

Answer 27.
A. The general Rule is that (1) persons defined by the State Government
as holding position of supervision or management, provided they are not
required to perform manual labour or clerical work as a regular part of their
duty and (2) persons defined by the State Government as employed in a
confidential position are not entitled to extra wages for overtime work. The
exception to the general rule is that if the rate of wages of such person
does not exceed Rs.6,500/- per month, he shall be entitled to extra wages
for overtime work. S.64, R.100
Question 28.
Q. Does section 79(1) of the Act provide for standardisation of annual
leave with wages i.e., the maximum permissible annual leave with wages?

Answer 28.
A. Section 79(1) does not provide for standardisation of annual leave with
wages. It provides for the minimum rather than the maximum leave which
may be allowed to the worker. Note:- Held in Alembic Chemical Works Co.
Ltd. v. The Workmen, 1961 I L.L.J. 328.

Question 29.
Q. Does the Act apply to the factories belonging to Central Government
and the State Governments?

Answer 29.
A. The Act does apply to the factories belonging to the Central
Government and the State Governments.

Question 30.
Q. What is the meaning of "factory"?

Answer 30.
A. Factory means - (a) any premises in which 10 or more workers are
working and a manufacturing process is carried on with the aid of power;
(b) any premises in which 20 or more workers are working and a
manufacturing process is carried on without the aid of power. S.2(m)

Question 31.
Q. What is the procedure for getting a factory registered under the Act?

Answer 31.
A. (1) The occupier or manager of a factory coming within the scope of the
Act has to apply to the Chief Inspector of Factories for getting the factory
registered and obtaining a licence for it. (2) The application should be
accompanied by the fees prescribed for the purpose. (3) The Chief
Inspector of Factories, if he is satisfied that there is no objection to the
grant of licence, will register the factory and grant a licence for it. (3-A) If
an application for grant of licence is duly made to the Chief Inspector of
Factories and if no licence has been issued by him within a period of four
 months, the factory concerned shall be deemed to be duly licenced. (This
provision is made by the Government of Maharashtra by amending Rule 9
w.e.f. 4-8-1998) (4) The licence so granted can be amended, renewed,
revoked or suspended as per the Rules. S. 6 & Rules 5 to 13

Question 32.
Q. What are the powers of the Inspectors appointed under the Act?

Answer 32.
A. An Inspector appointed under the Act has power- (1) to enter any place
which is used as a factory; (2) (a) to make examination of the premises,
plant and machinery, (b) to require the production of any register and any
other document relating to the factory, and (c) to take statement of any
person, for carrying out the purposes of the Act. S.9

Question 33.
Q. What are the provisions of the Act regarding appointment of Welfare
Officers and Safety Officers?

Answer 33.
A. Big factories are required to appoint Welfare Officers and Safety
Officers. If a factory is employing five hundred workers, the occupier has to
appoint one or more Welfare Officers. A factory employing one thousand or
more workers is required to appoint one or more Safety Officers only if the
State Government directs the occupier to do so. Ss.40(B) & 49

Question 34.
Q. Is it necessary to display the abstract of the Act in a factory?

Answer 34.
A. A notice containing abstracts of the Act and of the rules made
thereunder, in English and in a language understood by the majority of the
workers, must be displayed in every factory at some conspicuous or
convenient place at or near its main entrance. A notice containing the
name and address of the Inspector and the Certifying Surgeon must also
be displayed in every factory in the same manner. S.108

Question 35.
Q. Is it permissible for a company which owns a factory to notify any
person as the occupier of the factory?
Answer 35.
A. As per Section 2(n) as amended in 1987, in the case of a company,
which owns a factory, it is only one of the directors of the company who
can be notified as the occupier of the factory for the purposes of the Act
and the company cannot nominate any other employee to be the occupier
of the factory. Note:- Held in J.K. Industries Ltd. v. Chief Inspector of
Factories and Boilers & Ors. 1996 II CLR 832 (S.C.).

Question 36.
Q. What are the measures to be taken by a factory in respect of the safety
of the workers?

Answer 36.
A. Every factory must take appropriate measures as per the provisions of
the Act - (a) to fence certain machinery; (b) to protect workers repairing
machinery in motion; (c) to protect young persons working on dangerous
machines; (d) to maintain hoists and lifts in good condition; (e) to protect
workers from injury to their eyes; (f) to protect workers from dangerous
dust, gas, fumes and vapours; (g) to protect workers from fire; etc. Ss.21 to
41

LABOUR LAW NO.9 - The Industrial Disputes Act,1947

Question 1.
Q. Which persons are covered by the Act?

Answer 1.
A. Every person employed in an industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory work is covered by the
Act. But if such a person (i) is employed mainly in a managerial or
administrative capacity, or (ii) is employed in a supervisory capacity and
draws more than Rs.10,000/- per month as his wages effective from
15.9.2010; or (iii) exercises functions mainly of a managerial nature, he is
not covered by the Act. S.2(S)

Question 2.
Q. What does it connote when it is alleged that an employee is dismissed
or discharged by way of victimisation?
Answer 2.
A. In the Industrial Law, the allegation connotes that the real reason for the
dismissal or discharge of the employee is that he became a victim of the
employer's wrath by reason of his trade union activities. Note: See
Bagalkot Cement Company Workers' Union v. Management of Kanoria
Industries, 2006 III CLR 170 (Karn.H.C.)

Question 3.
Q. Can a workman challenge a mala fide transfer by filing a civil suit now
that the commission of the unfair labour practice of mala fide transfer is
prohibited under section 25-T of the Act?

Answer 3.
A. Since the introduction of section 25-T in the Act a workman has a
remedy in the forum created under the Act and the jurisdiction of a civil
Court to entertain a suit filed by a workman to challenge a mala fide
transfer is impliedly barred. Note:- Held in Kerala Rubber and Reclaims
Ltd. v. P.A. Sunny, 1989 I L.L.N. 676 followed in Mookan (V) v. Southern
Roadways Ltd. 1989 I L.L.N. 909.

Question 4.
Q. Does the approval of dismissal of a workman granted under Section
33(2)(b) bar him from raising a dispute about his dismissal and seeking a
reference of the same for adjudication under Section 10?

Answer 4.
A. There is a basic difference between "approval" and "reference". The
jurisdiction of the authority in deciding an application for approval is very
limited. The authority has to see whether the employer had made out a
prima facie case for granting the application. The jurisdiction of the
authority in deciding a reference is very wide. The authority has to see
whether the dismissal is legal and proper from all relevant aspects. Grant
of approval does not bar the workman from raising a dispute and seeking
a reference of the same for adjudication.

Question 5.
Q. What is the procedure for discharging or dismissing a workman who is
recognised as a protected workman and who is concerned in a pending
dispute?

Answer 5.
 A. If an employer wants to discharge a protected workman for a
misconduct or even otherwise or to dismiss a protected workman during
the pendency of any conciliation, arbitration or adjudication proceeding in
respect of a dispute in which the workman is concerned, the employer
must make an application to the authority before which the proceeding is
pending and obtain its previous written permission to do so. Otherwise the
discharge or dismissal will be invalid and inoperative in law. S.33(3)(b)

Question 6.
Q. Is approval necessary in the case of termination simpliciter or automatic
termination?

Answer 6.
A. No approval under section 33(2)(b) is necessary in the case of
termination simpliciter under a contract of service or a automatic
termination under the Standing Orders, as neither of them amounts to a
punishment.

Question 7.
Q. Is there any time limit for filing a complaint under section 33-A of the
Act?

Answer 7.
A. No period of limitation is prescribed for filing a complaint under section
33-A of the Act. Note:- Held in T.L. Swamy v. Andhra Pradesh State Road
Transport Corporation, 1990 (77) F.J.R. 355.

Question 8.
Q. What is the remedy of a workman who is dismissed in contravention of
section 33?

Answer 8.
A. If a workman is discharged or dismissed in contravention of the
provisions of section 33, he can make a written complaint about the
contravention to the authority before which the dispute is pending. On the
receipt of such complaint the authority will adjudicate upon the complaint
as if it were a dispute referred to it and submit its award to the
Government. The authority has not only to decide whether there has been
contravention of section 33 but also to go into the merits of the complaint
and grant an appropriate relief to the complainant. S.33(A) Note: - If the
authority before which the dispute is pending happens to be a conciliation
 officer, he has to take such complaint into account in mediating in and
promoting the settlement of such dispute (as he has no power to
adjudicate upon the complaint). S.33(A)(a)

Question 9.
Q. What is the scope of the jurisdiction of the Labour Court under section
33-C(2)?

Answer 9.
A. Under section 33-C(2) the Labour Court can decide a claim based on
an existing right; it cannot create a new right.

Question 10.
Q. Can a workman apply for recovery of minimum wages under section
33-C(2) of the Industrial Disputes Act?

Answer 10.
A. A workman can make an application under section 33-C(2) of the
Industrial Disputes Act for recovery of minimum wages even though he
can recover the same by making an application under section 20 of the
Minimum Wages Act. Note: - Held in Municipal Council Achalpur v. Shaik
Rahim, 1985 I C.L.R. 62 and R.L. Kalathia & Co. v. State of Gujarat, 1990
I CLR 705.

Question 11.
Q. Where a workman dismissed from service in contravention of the
provisions of section 33 of the Act files a complaint under section 33-A of
the Act, is he straightaway entitled to reinstatement in service?

Answer 11.
A. Merely because the workman is dismissed in contravention of the
provisions of section 33 of the Act, it does not mean that his reinstatement
has to be ordered. The complaint has to be adjudicated upon as if it were
a dispute referred in accordance with the provisions of the Act and if it is
found that the dismissal was not justified on merits, the workman would be
entitled to reinstatement. The only consequence of the contravention of
the provisions of section 33 of the Act is that the employer is liable to be
punished under section 31 of the Act. Note:- See Kimti Lal, Workman,
Panipat Co-op. Sugar Mills Ltd. v. State of Haryana, 1994 II L.L.J. 1062.
Question 12.
Q. Can a claim based on "equal pay for equal work" be entertained under
Section 33-C(2) of the Act?

Answer 12.
A. The proceedings under Section 33-C(2) are in the nature of execution
proceedings. A claim based on "equal pay for equal work" cannot be said
to be pre-existing right amenable to execution in the proceedings under
Section 33-C(2) of the Act. Note: - Held in Sudha Keshav Divekar v. Oil and
Natural Gas Commission, 1998 I CLR 106 (Bombay).

Question 13.
Q. Can the Labour Court award interest under Section 33-C(2) of the Act
on the money determined to be due to a workman under the said section?

Answer 13.
A. If there is undue delay on the part of the employer in making payment of
the money, the Labour Court would be justified in awarding interest
thereon.

Question 14.
Q. Can a complaint made under section 33-A to be disposed of as having
become infructuous on the ground that the original dispute has ended in a
no dispute award?

Answer 14.
A. Once a complaint under section 33-A is made, it has to be decided as to
whether there has been in fact a contravention of section 33 of the Act. On
reaching a conclusion that there has been such contravention, the
complaint has to be treated as a dispute referred in accordance with the
provisions of the Act and proceeded with. That being the position, the
complaint cannot be disposed of as having become infructuous on the said
ground. Note:- Held in Gangpur Labour Union v. Industrial Tribunal, Orissa
& Anr. 1993 I CLR 72.

Question 15.
Q. Who is competent to appear for an employer before the various
authorities functioning under the Act?

Answer 15.
A. An employer who is a party to adispute has a choice of appointing any
 one of the following persons to appear for him in any proceeding under the
Act. (1) If he is a member of an association of employers, by an officer of
such association; (2) If his association is affiliated to a federation of
associations of employers, by an officer of such federation; (3) If he is not
a member of any association of employers, by an officer of any association
of employers connected with, or by any other employer engaged in the
industry in which he is engaged.

Question 16.
Q. Are there any restrictions on the freedom of the employer to alter the
service conditions of a workman who is concerned in a pending dispute?

Answer 16.
A. The following restrictions are placed on the freedom of the employer to
alter the service conditions of a workman who is concerned in a pending
dispute: (1) If an employer wants to alter the service conditions of a
workman during the pendency of any conciliation, arbitration or
adjudication proceeding in respect of a dispute in which the workman is
concerned and if the subject matter of the alteration is connected with the
dispute, the employer must make an application to the authority before
which proceeding is pending and obtain its previous written permission to
do so. If in such a case the subject matter of the alteration is not
connected with the dispute, the employer is free to effect the alteration
without any permission. Ss.33(1)(a) & 33(2)(a) (2) If an employer wants to
alter the service conditions of a protected workman during the pendency of
any conciliation, arbitration or adjudication proceeding in respect of a
dispute in which the workman is concerned, the employer must make an
application to the authority before which the proceeding is pending and
obtain its previous written permission to do so. S.33(3)(a)

Question 17.
Q. Can a Labour Court, exercising jurisdiction under Section 33-C(2) of the
Act, grant back wages to a workman who got an award in his favour
directing only reinstatement but not containing any direction for payment of
back wages?

Answer 17.
A. The answer to the question is in the negative. The Supreme Court has
held that a reference is usually made to adjudicate a question as to
whether the termination of the services of a workman is justified or not and
also as to the appropriate relief to be granted to the workman. When the
relief granted by any award is confined only to reinstatement without
stating anything more as to the back wages, that relief must be deemed to
 have been denied. To state that merely upon reinstatement a workman will
be entitled to all his arrears of pay and allowances would be incorrect
because several factors will have to be considered to find out whether the
workman is entitled to back wages at all and to what extent. Note: See
A.P.S.R.T.C. & Anr. v. B.S. David Paul, 2006 I CLR 775 (S.C.).

Question 18.
Q. Who is competent to appear for a workman before the various
authorities functioning under the Act?

Answer 18.
A. A workman who is a party to a dispute has a choice of appointing any
one of the following persons to appear for him in any proceeding under the
Act. (1) If he is a member of a registered trade union, by any member of
the executive or other office bearer of such union; (2) If his union is
affiliated to a federation of trade unions, by any member of the executive
or other office bearer of such federation; (3) If he is not a member of any
trade union, by any member of the executive or other office bearer of any
trade union connected with, or by any other workman employed in the
industry in which he is employed. S.36(1)

Question 19.
Q. Is Section 36 of the Act an exhaustive provision? Is it open for a Labour
Court or Industrial Tribunal to permit a party to be represented by any
person other than those specified in Section 36 of the Act?

Answer 19.
A. Section 36 of the Act is not exhaustive and it is open for a Labour Court
or Industrial Tribunal to permit a person to get himself represented by any
other person that he may choose since the right of a person to get himself
represented before any Court or Tribunal itself is a fundamental right.
Thus, it is open for a Labour Court or Industrial Tribunal to permit a person
to get himself represented by any other person of his choice eventhough
such person may not strictly fall in any of the categories specified in
Section 36 of the Act. Note: Held in Philips India Ltd. v. Kishor S. Lad &
Ors. 2006 III CLR 387 (Bom.H.C.)

Question 20.
Q. Can a workman, having not objected to the employer being represented
by a legal practitioner at an earlier stage, object to such representation at
a later stage?
Answer 20.
A. The mere fact that a workman did not object at an earlier stage to the
engagement of a legal practitioner by the employer does not deprive him
of the benefit of Section 36 of the Act to object at a later stage. Note: Held
in Hindustan Motors Ltd., v. Presiding Officer & Ors., 2004 I CLR 163
(Del.H.C.)

Question 21.
Q. Can the interpretation of an award or settlement be sought by filing a
writ petition in the High Court?

Answer 21.
A. If there is any question regarding the interpretation of any provision of
an award or settlement, the remedy is to get a reference under the
provisions of section 36-A of the Act. The High Court in extra-ordinary
jurisdiction will not examine such question. Note:- Held in Ramesh Chandar
v. Union of India, 1992 LIC 1161.

Question 22.
Q. Is it permissible for a Tribunal to correct any error appearing in any
award passed by it?

Answer 22.
A. Under (Bombay) Rule 31 a Tribunal can, suo motu or on application
made by a concerned party, correct any clerical mistake or error arising
from an accidental slip or omission in any award passed by it. But if there
is any mistake or error in any award which calls for such correction as
would involve modification of the conscious adjudication on the issues
involved in it, that mistake cannot be corrected under the said rule. Note:-
Held in Tata Consulting Engineers v. Workmen 1981 I LLJ 147.

Question 23.
Q. Is it permissible under the Act to exempt any establishment or
undertaking from the provisions of the Act?

Answer 23.
A. If any establishment or undertaking carried on by a department of any
Government is having adequate provisions for the investigation and
settlement of industrial disputes in respect of workman employed in it, that
Government can exempt such establishment or undertaking from all or any
 of the provisions of the Act. S.36-B

Question 24.
Q. What is the procedure for dismissing a workman for a misconduct
connected with the pending dispute?

Answer 24.
A. If an employer wants to discharge or dismiss a workman for a
misconduct during the pendency of any conciliation, arbitration or
adjudication proceeding in respect of a dispute in which the workman is
concerned and if the misconduct is connected with the dispute, the
employer must make an application to the authority before which
proceeding is pending and obtain its previous written permission to do so.
Otherwise the discharge or dismissal will be invalid and in-operative in law.
S.33(1)(b)

Question 25.
Q. What is the meaning of "unfair labour practice"?

Answer 25.
A. The various practices listed in the 5th Schedule of the Act are called
unfair labour practices. These practices are nothing but unfair acts or
omissions on the part of em- ployers, workmen or trade unions. The Act
prohibits the commission of any unfair labour practice. Ss.2(ra) & 25(T)

Question 26.
Q. Is it permissible for a workman or an employer to appoint a lawyer to
represent him in any proceeding under the Act?

Answer 26.
A. (1) A party to a dispute is totally prohibited from appointing a lawyer to
represent it in any conciliation proceedings. (2) A party to a dispute is
allowed to appoint a lawyer to represent it before a Labour Court, an
Industrial Tribunal or a National Industrial Tribunal if the other parties give
consent and the Labour Court, Industrial Tribunal or National Industrial
Tribunal gives permission to do so. S.36(3) and (4) Note: - If a lawyer
happens to be an officer of an association of employers or a office bearer
of a trade union, he can appear in any proceeding under the Act
notwithstanding the restrictions placed on the appearance of a lawyer
under section 36(4).
Question 27.
Q. Does section 22 of the Payment of Wages Act bar the jurisdiction of a
Labour Court to entertain an application for recovery of wages under
section 33-C(2) of the Industrial Disputes Act?

Answer 27.
A. An application for recovery of wages lies under section 33- C(2) of the
Industrial Disputes Act. Section 22 of the Payment of Wages Act bars the
jurisdiction of a Civil Court, but not of a Labour Court. A Labour Court is
not a Civil Court and an application under section 33-C(2) cannot be
equated with a suit. Note: - Held in Jaipur Development Authority v. Labour
Court, 1990 (60) F.L.R. 81.

Question 28.
Q. What is the procedure for resolving a dispute about the interpretation of
an award or settlement?

Answer 28.
A. If any difficulty or doubt arises as to the interpretation of any provision of
an award or settlement, the Government can be moved to make a
reference of the question to a Labour Court, Tribunal or National Tribunal.
The Labour Court, Tribunal or National Tribunal will hear the parties and
decide the question. Such decision will be final and binding on the parties.
S.36-A

Question 29.
Q. Can a Labour Court entertain an application under Section 33-C(2) of
the Industrial Disputes Act for recovery of gratuity payable under Section
39 of the Goa, Daman and Diu Shops and Commercial Establishments
Act?

Answer 29.
A. The Goa, Daman & Diu Shops and Commercial Establishments Act
provides a complete machinery to determine questions relating to payment
of gratuity. It is a complete code in itself and, as such, an application filed
under Section 33-C(2) of the Industrial Disputes Act for recovery of gratuity
payable to an employee under Section 39 of the Goa, Daman & Diu Shops
and Commercial Establishments Act would not be maintainable. Note:-
Held in Menino Jose Rodrigues v. Labour Court, Government of Goa &
Ors., 1999 II CLR 423 (Bom.H.C.)
Question 30.
Q. Can a Labour Court, which had earlier passed an award directing
reinstatement of a workman without back wages, subsequently modify the
award and direct payment of back wages in exercise of the power of
correction of a mistake or error?

Answer 30.
A. The exercise of the said power contemplates the correction of mistakes
of ministerial actions and does not contemplate of passing effective judicial
orders. The Labour Court was not justified in modifying the award as was
orginally made. Note: Held in Uttar Pradesh State Road Transport
Corporation v. Imtiaz Hussain 2006 I CLR 256 (S.C.)

Question 31.
Q. What does it connote when it is alleged that an employee is dismissed
or discharged by way of victimisation?

Answer 31.
A. In the Industrial Law, the allegation connotes that the real reason for the
dismissal or discharge of the employee is that he became a victim of the
employer's wrath by reason of his trade union activities. Note: See
Bagalkot Cement Company Workers' Union v. Management of Kanoria
Industries, 2006 III CLR 170 (Karn.H.C.) Q. Can a workman challenge a
mala fide transfer by filing a civil suit now that the commission of the unfair
labour practice of mala fide transfer is prohibited under section 25-T of the
Act?

Question 32.
Q. What is the punishment for committing an unfair labour practice?

Answer 32.
A. If any person commits an unfair labour practice, he would be punished
with imprisonment upto 6 months, or with fine upto Rs. 1,000, or with both.
S.25(U)

Question 33.
Q. Are there any restrictions on the freedom of the employer to dismiss a
workman who is concerned in a pending dispute?

Answer 33.
 A. An employer cannot dismiss a workman concerned in a pending dispute
without following a certain procedure. A different procedure is laid down (i)
for dismissing such workman for a misconduct connected with the pending
dispute; (ii) for dismissing such workman for a misconduct not connected
with the pending dispute; and (iii) for discharging or dismissing such
workman if he is recognised as a protected workman. S.33

Question 34.
Q. Is the employee for whose dismissal the employer seeks permission
under Section 33(1) of the Act and who is suspended pending the
permission entitled to subsistence allowance during the period of such
suspension?

Answer 34.
A. In such a situation the employer has right to place the employee under
suspension and the employee has right to receive subsistence allowance
during the period of such suspension. Note:- Held in Ram Lakhan v.
Presiding Officer & Ors., 2000 II CLR 563 (S.C.)

Question 35.
Q. Does an application for permission lapse with the disposal of the main
dispute?

Answer 35.
A. An application for permission made under section 33(3)(b) automatically
comes to an end with the disposal of the main dispute. No permission
under the said section is required if no dispute between the employer and
the workman is pending. Note: - Held in P.D. Sharma v. State Bank of India,
1969 I L.L.J. 513.

Question 36.
Q. Is there any time limit for making an application under section 33-C(2)?

Answer 36.
A. There is no time limit for making an application to the Labour Court
under section 33-C(2).

Question 37.
Q. In an application under Section 33-C(2) can the Labour Court decide
the issue raised by the employer as to whether the applicant is or is not a
 workman or the employer is or is not an industry?

Answer 37.
A. These are incidental questions and can be decided by the Labour
Court. Note: Held in Dilip Singh Parocha & Ors. v. Mahalaxmi Co- op.
Housing Society Ltd. & Anr. 2002 III CLR 778.

Question 38.
Q. Can a dismissed workman recover his dues by making an application
under section 33-C(2)?

Answer 38.
A. Not only an employed workman but a dismissed, discharged or retired
workman also can recover his dues by making an application under section
33-C(2).

Question 39.
Q. Can a workman recover lay-off compensation by filing an application
under Section 33-C(2)?

Answer 39.
A. The claim to lay-off compensation of a workman who is laid-off is one
which arises under the statute itself and such a claim is maintainable
under Section 33-C(2). Note:- Held in Jasbir Kaur Dhaliwal v. NEPC
Airlines, Madras & Ors. 2002 I CLR 1076.

Question 40.
Q. Does the claim for computation under section 33-C(2) die with the
death of the workman?

Answer 40.
A. The cause of action created in favour of the workman under section 33-
C(2) should in normal circumstances survive to the heirs. Note:- Held in
Rameshwar Manjhi (Deceased) through his son Lakhiram Manjhi v.
Management of Sangramgarh Colliery & Ors., 1994 I CLR 9.

Question 41.
Q. Can consent given or permission granted for appearance of a legal
practitioner be withdrawn ?
Answer 41.
A. Once a party gives consent for appearance of a legal practitioner, it
cannot be subsequently withdrawn. Similarly once a Tribunal grants
permission for appearance of a legal practitioner, it cannot be subsequently
withdrawn. Note: - Held in Engineering Mazdoor Sabha v. Meher M.R.,
1966 I LLJ 580.

Question 42.
Q. What are the grounds on which the grant of approval sought under
section 33(2)(b) of the Act for discharging or dismissing a workman can be
refused?

Answer 42.
A. Some of the grounds on which the grant of approval sought under
section 33(2)(b) of the Act can be refused are as follows: (1) The order of
discharge or dismissal is perverse, not rationally possible or entirely
unreasonable; (2) There is no evidence in support of the finding; (3) The
finding is inconsistent with the evidence; (4) It rests on conjectures,
surmises and suspicion; (5) No person properly instructed as to the
relevant law acting judicially could have come to the conclusion that the
concerned workman deserves the punishment of discharge or dismissal.
Note:- Held in G.K. Sengupta v. Hindustan Construction Co. Ltd., 1994 I
CLR 735.

Question 43.
Q. Does an application for approval lapse with the disposal of the main
dispute?

Answer 43.
A. An application for approval made under section 33(2)(b) does not
automatically come to an end with the disposal of the main dispute. Note:-
Held in Tata Iron & Steel Co. Ltd. v. S.N. Modak, 1965 II L.L.J. 128.

Question 44.
Q. What is the remedy of a workman whose service conditions are altered
in contravention of section 33?

Answer 44.
A. If the service conditions of a workman are altered in contravention of
the provisions of section 33, the workman can make a written complaint
about the contravention to the authority before which the dispute is
 pending. On receipt of such complaint the authority will adjudicate upon
the complaint as if it were a dispute referred to it and submit its award to
the Government. S.33(A)

Question 45.
Q. What is the procedure for recovering money due to a workman from his
employer?

Answer 45.
A. (1) If any money is due to a workman from his employer under a
settlement or an award or under the provisions of Chapter V-A or Chapter
V-B, the workman can make an application to the Government for the
recovery of the money due to him. If the Government is satisfied that any
money is so due, it will issue a certificate for that amount to the Collector.
The Collector can then recover the amount as an arrear of land revenue.
(2) An application to the Government can be made by the workman
himself, or any other person authorised by him, or, in the case of the death
of the workman, his assignee or heir. Such application has to be made
within one year from the date of which the money became due to the
workman from the employer. (3) If any workman is entitled to receive from
his employer any money or any benefit which is capable of being
computed in terms of money and if any dispute arises as to the amount of
money due or as to the amount at which such benefit should be computed,
then the workman can make an application to the Labour Court for
determination of the amount due or for the computation of the benefit. Any
amount found due by the Labour Court can be recovered in the same
manner as provided for in para (1) above. S.33(C)

Question 46.
Q. Does section 22 of the Payment of Wages Act bar the jurisdiction of a
Labour Court to entertain an application for recovery of wages under
section 33-C(2) of the Industrial Disputes Act?

Answer 46.
A. An application for recovery of wages lies under section 33- C(2) of the
Industrial Disputes Act. Section 22 of the Payment of Wages Act bars the
jurisdiction of a Civil Court, but not of a Labour Court. A Labour Court is
not a Civil Court and an application under section 33-C(2) cannot be
equated with a suit.

Question 47.
 Q. Is it permissible under the Act to exempt any establishment or
undertaking from the provisions of the Act?

Answer 47.
A. If any establishment or undertaking carried on by a department of any
Government is having adequate provisions for the investigation and
settlement of industrial disputes in respect of workman employed in it, that
Government can exempt such establishment or undertaking from all or any
of the provisions of the Act. S.36-B

Question 48.
Q. What is the procedure for dismissing a workman for a misconduct not
connected with the pending dispute?

Answer 48.
A. If an employer wants to discharge or dismiss a workman for a
misconduct during the pendency of any conciliation, arbitration or
adjudication proceeding in respect of a dispute in which the workman is
concerned and if the misconduct is not connected with the dispute, the
employer must, at the time of discharge or dismissal, pay to the workman
wages for one month and make an application to the authority before
which the proceeding is pending and obtain its approval for the discharge
or dismissal. Otherwise the discharge or dismissal will be invalid and
inoperative in law. S.33(2)(b)

Question 49.
Q. In the proceedings under Section 33-C (2) what can the workman do in
the event of the death of the employer?

Answer 49.
A. In the event of the death of the employer it is open to the workman to
request the Court to continue the proceedings as against the legal heirs of
the employer. Note: Held in Annie Varghese v. Labour Court, 2003 (4)
L.L.N. 776 (Ker. H.C.)

Question 50.
Q. Can a workman move an application under section 33-C(2) of the Act
on the strength of a decree of a Civil Court holding his dismissal illegal?

Answer 50.
A. A workman can move an application under section 33-C(2) of the Act to
 realise the arrears of his wages on the strength of a decree of a Civil Court
holding his dismissal illegal but denying the relief of reinstatement. Note:
-Held in Municipal Committee, Amritsar v. Labour Court, Amritsar, 1990 I
CLR 689.

Question 51.
Q. Does simple termination of Service amount to retrenchment?

Answer 51.
A. Even simple termination of the services of a workman is retrenchment
unless the same comes within any of the exceptions mentioned in Section
2(oo) of the Act. Note: Held in Oberoi Palm Beach Hotel, Gopalpur v. P. O.,
Labour Court, Jeypore, 2003 (99) F.L.R. 141 (Ori.H.C.)

Question 52.
Q. Does termination of service of drivers of a State Transport Corporation
on the ground that they have developed a defective or subnormal vision or
eye-sight amount to retrenchment?

Answer 52.
A. Such termination being covered by sub-clause (c) of section 2(oo),
which speaks of termination on the ground of continued ill-health, it would
not amount to retrenchment. Note: - Held in Anand Bihari v. R.S.R.T.
Corporation, Jaipur, 1991 I C.L.R. 525.

Question 53.
A. The failure to comply with the provisions of Section 25-FFA does not
make the closure illegal. The object of giving notice to the Government is
to prevent sudden closure. The statute requires notice to the Government
so that the Government may take any measure in respect of the intended
closure. Note:- Held in The Management of Town Bidi Factory v. Presiding
Officer, Labour Court, 1990 II CLR 358.

Answer 53.
A. The failure to comply with the provisions of Section 25-FFA does not
make the closure illegal. The object of giving notice to the Government is
to prevent sudden closure. The statute requires notice to the Government
so that the Government may take any measure in respect of the intended
closure. Note:- Held in The Management of Town Bidi Factory v. Presiding
Officer, Labour Court, 1990 II CLR 358.
Question 54.
Q. Does striking off the name of a workman from the rolls amount to
retrenchment?

Answer 54.
A. Striking off the name of a workman from the rolls by the employer
amounts to `termination of service' as such termination is retrenchment
within the meaning of section 2(oo) of the Act. Note:- Held in H.D. Singh v.
Reserve Bank of India, 1985 II C.L.R. 246.

Question 55.
Q. Is any notice required to be given for closing down an undertaking?

Answer 55.
A. If any employer intends to close down his undertaking, he has to serve
on the Government, at least 60 days before the date of the intended
closure, a notice giving the reasons for the closure. This provision is
intended for giving intimation of the closure and not for obtaining
permission for the closure. The object of the provision is to prevent the
sudden closure of any undertaking. S.25(FFA) Note 1: The provision is not
applicable to an undertaking employing less than 50 workmen or an
undertaking set up for construction work or project. Note 2: See also
Walford Transport Ltd. v. State of West Bengal, 1979 L.I.C. 70.

Question 56.
Q. Can the party aggrieved by the order of the appropriate Government
granting or refusing to grant permission to close down an undertaking,
instead of filing a review application under Section 25-O(5), opt to file a
writ petition in the High Court?

Answer 56.
A. Courts have observed that review provided under Section 25-O(5) is not
an absolute bar to a writ petition, but, ordinarily if there is an alternative
remedy, the discretion under Art.226 should not be exercised and the party
should be relegated to avail the alternative remedy.

Question 57.
Q. If the employer shifts the manufacture of one of its products from one
place to another, does it amount to closure?
Answer 57.
A. Shifting the manufacture of one of several products from one unit to
another does not amount to closure of part of a place of employment.
Note:- Held in Hindustan Lever Employees' Union v. State of Maharashtra,
1989 II CLR 420.

Question 58.
Q. On 13th February, 2007 an employer made an application to the
Commissioner of Labour under Section 25(O)(1) for permission to close
down an undertaking. On 11th April, 2007 the employer sought permission
to withdraw the said application and the Commissioner of Labour, by his
order dated 12th April, 2007, allowed the employer to withdraw the said
application. On 11th May, 2007 the employer made another application
under Section 25(O)(1) for the same purpose. Is the second application
made within a year of withdrawal of the first application maintainable in
law?

Answer 58.
A. It is true that according to Section 25(O)(4) an order granting or refusing
to grant permission shall remain in force for one year from the date on
such order. But for application of the said section there should be an order
granting or refusing to grant permission. In the present case no order
granting or refusing to grant permission has been made on the application
of the employer dated 13th February, 2007. Neither the withdrawal of the
application dated 13th February amounts to cessation of the cause of
action, nor the order of the Commissioner of Labour allowing the employer
to withdraw the application dated 13th February, 2007 amounts to an order
refusing to grant the permission. In the facts peculiar to this case the
deeming fiction contemplated under Section 25(O)(3) has also not come
into play. After the employer sought permission to withdraw the application
dated 13th February, 2007 and the Commissioner of Labour also allowed
the employer to withdraw the said application by his order dated 12th
April, 2007, there was no application of the employer pending on the file of
the appropriate Government. There was, therefore, no impediment for the
employer in making another application for the same purpose. It is also to
be noted that no adjudication has taken place on the application of the
employer dated 13th February, 2007. There was, therefore, no prohibition
in law for making the second application for the same purpose. The
second application is, thus, maintainable in law. Note: See Sarva Shramik
Sanghatana v. State of Maharashtra, 2007 III CLR 359 (Bom.H.C.).

Question 59.
Q. Is any permission necessary for laying-off or retrenching workmen or
 closing down an undertaking?

Answer 59.
A. If any employer of an industrial establishment in which one hundred or
more workmen are employed wants to lay-off or retrench any workman or
close down an undertaking, he is required to obtain prior permission of the
appropriate Government.Ss.25(M), 25(N) & 25(O)

Question 60.
Q. What was the intention of the Parliament in requiring large undertakings
to seek prior permission of the Government to lay- off or retrench workmen
or to close down an undertaking?

Answer 60.
A. The Parliament wanted to prevent large scale lay-offs, retrenchments
and closures by large companies and undertakings. Such lay-offs,
retrenchments and closures resulted in all round demoralising effect on
workmen. Note:- See observation in Workmen of Meenakshi Mills Ltd. v.
Meenakshi Mills Ltd., 1992 I CLR 1010.

Question 61.
Q. What are the crucial words used in Section 25-O of the Act which the
appropriate Government has to bear in mind while granting or refusing to
grant permission sought by an employer to close down an undertaking of
an industrial establishment?

Answer 61.
A. The crucial words are "the genuineness and adequacy of the reasons".
The other important words are "the interests of the general public and all
other relevant factors". No doubt, the import of the said words will depend
upon facts of each case. The appropriate Government has also to
remember that the said section contemplates (1) making an enquiry, (2)
giving an opportunity of being heard to all concerned, and (3) recording
reasons in writing.

Question 62.
Q. Does the wording of Section 25-O(5) imply that where the appropriate
Government had rejected the application of the employer made under
Section 25-O(2) seeking permission to close down an undertaking, but
thereafter had allowed his review application made under Section 25-O(5)
and had granted the permission sought by him, the appropriate
 Government is precluded from making a reference for adjudication?

Answer 62.
A. The wording used in Sections 25-O(4) and (5) is identical to the words
used in Section 25-N(5) and (6). The point is completely covered by the
ratio of the judgment in the Cable Corporation of India v. Additional
Commissioner of Labour, 2005 II CLR 1033. The appropriate Government
is not precluded from making a reference for adjudication. Note: Held in
Bon Ltd. v. Hindustan Lever Employees Union & Ors. 2007 II CLR 225
(Bom.H.C.)

Question 63.
Q. What is the difference between a lock-out and a closure?

Answer 63.
A. Lock-out means the temporary closing of a place of employment;
closure means the permanent closing down of a place of employment. In
the case of a lock-out the employer closes the place of business; in the
case of a closure the employer closes the business itself. In the case of a
lock-out there is suspension of work; in the case of a closure there is
discontinuation of the business.

Question 64.
Q. Is it open to the employer to first declare a lay-off and then apply to the
Government under section 25-M for approval of the lay-off already
declared?

Answer 64.
A. Section 25-M requires the employer to obtain prior permission of the
Government for the lay-off to be declared. It is not open to the employer to
first declare a lay-off and then apply to the Government and seek its
approval to the lay-off already declared. Note: Held in D.B.R. Mills Ltd. v.
Commissioner of Labour, 1990 I CLR 722.

Question 65.
Q. What is the punishment for closing down an undertaking without
permission?

Answer 65.
A. (1) If any employer closes down an undertaking without permission he
would be punished with imprisonment upto six months, or with fine upto
 Rs. 5,000, or with both. (2) If any employer contravenes an order refusing
to grant permission, he would be punished with imprisonment upto one
year, or with fine upto Rs. 5,000, or with both. (3) Where the contravention
of the order is a continuing one, the employer would be punished with
further fine upto Rs. 2,000 per day during which the contravention
continues after the conviction. S.25(R)

Question 66.
Q. Is an order made under Section 25-O refusing to grant permission to
close down an undertaking without giving reasons valid?

Answer 66.
A. An order giving no reasons for refusing to grant permission to close
down an undertaking is not valid and is liable to be struck down. Note:-
Held in Jay Engineering Works v. State of West Bengal, 1992 I CLR 752.

Question 67.
Q. Does the wording of Section 25-N(6) imply that once a review
application is rejected, the appropriate Government/specified authority is
precluded from making a reference for adjudication?

Answer 67.
A. The rejection of a review application would not preclude the appropriate
Government /specified authority from making a reference for adjudication.
If the appropriate Government/specified authority is not inclined to review
its order, it is expected to refer the matter for adjudication. The intention of
the Parliament in making the provision contained in Section 25-N(6) is to
provide adjudication forum to the party who is aggrieved by the refusal or
grant of permission for retrenchment. Note: Held in Cable Corporation of
India v. Additional Commissioner & Ors. 2005 II CLR 1033 (Bom.H.C.)

Question 68.
Q. What is the punishment for laying-off or retrenching workmen without
permission?

Answer 68.
A. If any employer lays-off or retrenches workmen without permission or in
contravention of an order refusing permission, he would be punished with
imprisonment upto one month, or with fine upto Rs. 1,000, or with both.
S.25(Q)
Question 69.
Q. Does termination of service of drivers of a State Transport Corporation
on the ground that they have developed a defective or subnormal vision or
eye-sight amount to retrenchment?

Answer 69.
A. Such termination being covered by sub-clause (c) of section 2(oo),
which speaks of termination on the ground of continued ill-health, it would
not amount to retrenchment. Note: - Held in Anand Bihari v. R.S.R.T.
Corporation, Jaipur, 1991 I C.L.R. 525.

Question 70.
Q. What is the procedure for obtaining permission for laying-off or
retrenching workmen or closing down an undertaking?

Answer 70.
A. (1) If any employer of an industrial establishment in which one hundred
or more workmen are employed intends to take any of the three actions,
he has to make an application to the appropriate Government for
permission, giving reasons for the intended action. (2) The employer can
take the intended action if permission is granted or no communication is
received granting or refusing to grant permission within 60 days from the
date of the application. (3) The appropriate Government can, either on its
own motion or on the application made by the employer or any workman,
review its order or refer the matter to a Tribunal for adjudication. (4)
Subject to the above provision the order of the appropriate Government is
final and binding. (5) An action taken in contravention of these provisions
will be deemed to be illegal. Ss. 25(M), 25(N) & 25(O) Note 1: When the
employer retrenches workmen under these provisions he has to give the
workmen three months' notice or pay three months' wages in lieu of notice.
Note 2: When permission is granted or is deemed to be granted for the
intended action, every workmen will be entitled to receive lay-off
compensation, retrenchment compensation, or closure compensation, as
the case may be, as per the provisions of the Act.

Question 71.
Q. Is the rule "last come first go" inflexible?

Answer 71.
A. The rule "last come first go" is not inflexible and may be departed from
in an extraordinary situation after recording reasons. Obviously the burden
 of proving the existence of an extraordinary situation lies on the employer.
Note:- Held in Municipal Corporation of Delhi v. Shri Khacheru, through
Municipal Employees Union, 1993 I C.L.R. 357.

Question 72.
Q. What is meant by the expression `continued ill-health' used in sub-
clause (c) of Section 2(oo)?

Answer 72.
A. The expression `continued ill-health' does not mean uninterrupted
continued ill-health but what it means ill-health for considerable period and
long duration affecting normal discharge of duties. It must have a bearing
on the normal discharge of duties. What is to be seen is whether the
workman does not possess good health for a considerable long period and
that has affected him from active duties. Note: Held in Ramaswamy
Murugesh v. S.G. Bhonsale 2005 III CLR 120 (Bom.H.C.)

Question 73.
Q. Where a workman was engaged for a specific work and his services
were terminated when the work was over, does the termination of his
services amount to retrenchment?

Answer 73.
A. Such termination is covered by the provisions of S. 2(oo)(bb) of the Act
and does not amount to retrenchment. Note: - Held in K.G. Reddy v.
Assistant Engineer, 1990 I C.L.R. 56.

Question 74.
Q. Where an employer repeatedly engaged a workman on 89 days basis,
terminated his services on the expiry of 89 days, re-engaged him after a
gap of one or two days, and continued this practice for nearly two years;
can the employer contend that the termination of the services of the
workman was covered by Section 2(oo)(bb) of the Act and therefore it did
not amount to retrenchment?

Answer 74.
A. Such a course of action was adopted by the employer with a view to
defeating the object of the Act and Section 2(oo)(bb) of the Act is therefore
not attracted in the instant case. Note: Held in Haryana State Electronics
Development Corporation Ltd. v. Mamni 2006 II CLR 1047 (S.C.)
Question 75.
Q. What is the effect of non-compliance of section 25-F on retrenchment?

Answer 75.
A. Retrenchment effected without complying with the provisions of section
25-F is illegal, invalid and void. In such a case the retrenched workman
continues in employment and is entitled to reinstatement. Note: - Held in
Ramani Mohan Industries Ltd. v. Second Industrial Tribunal, 1981 I LLJ
363.

Question 76.
Q. Is it always necessary to direct reinstatement in case of violation of
Section 25-F of the Act?

Answer 76.
A. It is not always mandatory to order reinstatement in cases where there
has been violation of Section 25-F of the Act. For good reasons
reinstatement can be substituted by awarding compensation. Note: Held in
Employers, Management of Central P.&D. Institute Ltd. v. Union of India &
Anr. 2005 I CLR 494 (S.C.)

Question 77.
Q. Are there any contingencies other than retrenchment in which the
workmen are entitled to compensation?

Answer 77.
A. When an undertaking is transferred from one employer to another or
when it is closed down for any reason, the workmen of that undertaking
who have been in continuous service for one year or more are entitled to
receive notice or notice wages and compensation as if they had been
retrenched. Ss. 25(FF) & 25(FFF) Note: - If the closure is effected on
account of unavoidable circumstances, compensation payable is restricted
to the maximum of 3 months' pay.

Question 78.
Q. Does the termination of service of a probationer amount to
retrenchment?

Answer 78.
A. As retrenchment as defined in section 2(oo) of the Act covers every
 case of termination of service except those which have been embodied in
the definition, the termination of service of a probationer amounts to
retrenchment. Note:- Held in Karnataka State Road Transport Corporation
Bangalore v. M. Baraiah, 1984 I L.L.J. 110.

Question 79.
Q. Does a strike break the continuity of service?

Answer 79.
A. A strike does not break the continuity of service. It does not bring about
termination of the relation between the employer and his workmen.

Question 80.
Q. Can workers going on illegal strike be required to compensate the
losses inflicted on the employer?

Answer 80.
A. The only remedy for an illegal strike is the prosecution of the workmen
under section 26 of the Act. No other relief outside the Act can be claimed
by the employer. Note: - Held in Rohtas Industries Ltd. v. Rohtas Industries
Staff Union 1976 I LLJ 274 S.C.

Question 81.
Q. Is it proper to give a uniform punishment to all the workmen who had
gone on illegal strike?

Answer 81.
A. While giving punishment for going on illegal strike distinction has to be
made between those who had merely participated in it and those who had
fomented it.

Question 82.
Q. Is it an offence under the Act to commit a breach of settlement or
award?

Answer 82.
A. To commit a breach of any term of any settlement or award is an
offence under the Act and it is punishable with imprisonment upto 6
months, or with fine, or with both. Of course the obligation to implement
any award arises when the award becomes enforceable on the expiry of
 30 days from the date of its publication. Ss.17(A) & 29

Question 83.
Q. If any employer files a writ petition in a High Court against an order of
an Industrial Tribunal refusing approval to an order of dismissal of a
workman, is he required to pay any wages to the workman during the
pendency of the writ petition?

Answer 83.
A. When the Industrial Tribunal disapproves the order of dismissal under
section 33(2)(b) of the Act, the real effect of such order amounts to
reinstatement in service although the Tribunal does not actually direct
reinstatement in service. If the employer challenges such order of
disapproval by filing a writ petition in the High Court, he is liable to pay
wages of the workman concerned during the pendency of the writ petition.
Note:- Held in Bata India Ltd. v. Seventh Industrial Tribunal, W.B. & Ors.,
1994 II C.L.R. 326.

Question 84.
Q. Is it necessary to give any notice for commencing a strike in an
establishment other than a public utility establishment?

Answer 84.
A. No notice is required to be given for commencing a strike in an
establishment other than a public utility establishment. Notice of strike is
compulsory for commencing a strike only in a public utility establishment.
Ss.22 & 23

Question 85.
Q. Does the Government possess power to prohibit the continuance of a
strike or lock-out?

Answer 85.
A. Where an industrial dispute has been referred for adjudication under
section 10 or to arbitration under section 10-A, the Government can
prohibit the continuance of any strike or lock-out in connection with such
dispute which may be in existence on the date of the reference. Ss.10(3) &
10(A), (4A)

Question 86.
 Q. In what circumstances can workmen who had gone on strike claim
wages for the period of the strike?

Answer 86.
A. Workmen who had gone on strike can claim wages for the period of
their strike if the strike was legal, justified and peaceful. A strike is legal if it
is not in breach of any law. It is justified if the reasons for it are not
perverse. It is peaceful if not force or violence or sabotage is resorted to.
Note: - Held in Crompton Greaves Ltd. v. Workmen, 1978 II LLJ 80 S.C.

Question 87.
Q. Who has the primary jurisdiction to decide the legality and justifiability
of a strike?

Answer 87.
A. Whether a strike is legal and justified is a question to be decided by
taking the necessary evidence on the subject. It is the industrial
adjudicator who has the primary jurisdiction to give its findings on the said
question. It is not primarily for the High Court to give its findings on the
said issues. Note:- Held in Syndicate Bank & Anr. v. K. Umesh Nayak &
Ors. 1994 II CLR 753.

Question 88.
Q. What factors are to be taken into consideration while deciding the
justifiability of a strike?

Answer 88.
A. Whether a strike is justified or unjustified has to be examined by taking
into consideration various factors such as the service conditions of the
workmen, the nature of demands of the workmen, the cause which led to
the strike, the urgency of the cause or the demands of the workmen, the
reason for not resorting to the dispute resolving machinery provided by the
Act or the contract of employment or the service rules and regulations etc.
It has to be examined also on the anvil of the interests of the society which
the strike tends to affect. Note:- Held in Syndicate Bank & Anr. v. K. Umesh
Nayak & Ors. 1994 II CLR 753.

Question 89.
What is the punishment for the offence of going on an illegal strike?

Answer 89.
 A. If a workman goes on illegal strike he would be punished with
imprisonment upto 1 month, or with a fine upto Rs. 50, or with both. S.26

Question 90.
Q. What is the punishment for the offence of instigating an illegal strike or
giving financial aid to an illegal strike?

Answer 90.
A. If a person instigates or incites others to take part in an illegal strike or
gives financial aid to an illegal strike he would be punished with
imprisonment upto six months, or with fine upto Rs. 1,000, or with both.
Ss. 27 & 28

Question 91.
Q. What is the meaning of "lock-out"?

Answer 91.
A. When an employer temporarily refuses to continue to employ a body of
persons (i.e., without effecting a termination of their service) (to coerce
them to his point of view and to accept some demand) he is said to have
effected a lock-out. S. 2(1) Note: - The Act treates strike and lock-outs on
the same footing. The provisions of the Act relating to strikes and lock-
outs are, therefore, almost the same. The same circumstances, as those
which make a strike illegal, make a lock-out illegal.

Question 92.
Q. If an employer refused to give work to his employees, who were on
illegal strike, on the ground that they were not prepared to sign a "good
conduct bond", would such refusal amount to a lock-out?

Answer 92.
A. If the bond was insisted in a situation de hors of and unconnected with
the strike and therefore justified, such refusal would not amount to a lock-
out. Note: - Held in Industrial Tubes Manufacturing Co. Ltd. v. S.R.
Samant, 1980 II LLJ 444.

Question 93.
Q. Can workmen who had been locked-out claim wages for the period of
the lock-out?
Answer 93.
A. Workmen who had been locked-out can claim wages for the period of
the lock-out if the lock-out was illegal.

Question 94.
Q. What is the punishment for the offence of instigating an illegal lock-out
or giving financial aid to an illegal lock-out?

Answer 94.
A. If a person instigates or incites others to take part in an illegal lock-out
or gives financial aid to an illegal lock-out he would be punished with
imprisonment upto 6 months, or with fine upto Rs. 1,000, or with both.

Question 95.
Q. What is "lay-off" and what is "lay-off compensation"?

Answer 95.
A. When a workman is not given work on account of shortage of coal,
power or raw materials or the accumulation of stocks or the breakdown of
machinery or natural calamity, he is said to be laid- off. When a workman
who is in service for one year or more, is laid-off he is entitled to be paid
for the days on which he is laid-off, lay-off compensation at the rate of 50%
of his basic wages and dearness allowance. Ss. 2(kkk) and 25(C) Note 1:
The provision is not applicable to establishments employing less than 50
workmen. Note 2: A laid-off workman is not entitled to compensation in
certain cases mentioned in sections 25-C and 25-E.

Question 96.
Q. Does section 25-C give the employer any right to lay-off a workman?

Answer 96.
A. The employer gets the power to lay-off a workman either from the
contract of service or the Standing Orders and not from the provisions of
section 25-C. Section 25-C however, does give to a laid-off workman a
right to claim lay-off compensation. Note:- Held in workmen of Firestone
Tyre & Rubber Co. of India (P) Ltd. v. F.T.R. Co., 1976 I LLJ 493.

Question 97.
Q. Does the compensation for lay-off amount to "wages"?
Answer 97.
A. During the period of lay-off the contract of service is suspended and
therefore lay-off compensation is held to be not "wages". Note: - Held in
Anusuyabai Vithal v. Mehta (J.H.), 1959 II LLJ 742.

Question 98.
Q. In what circumstances a workman who has been laid-off is not entitled
to any compensation?

Answer 98.
A. A workman who has been laid-off is not entitled to any compensation- (i)
if he refuses to accept any alternative employment in the same
establishment or in any other neighbouring establishment belonging to the
same employer; (ii) If he does not present himself for work at the appointed
time at least once a day; (iii) if he is laid-off due to a strike or slowing down
of production resorted to by any workmen in another part of the
establishment. S.25(E)

Question 99.
Q. What is the meaning of the words "alternative employment" as used in
section 25-E and section 25-M of the Act?

Answer 99.
A. "Alternative employment" cannot mean any employment which the
employer offers. The employment offered to the employee concerned must
be a suitable employment which in other words would mean the
employment which is commensurate with his status and the nature of
duties performed by him. Note:- Held in Firth (I) Steel Co. Ltd. v. Industrial
Court, 1990 I C.L.R. 97.

Question 100.
Q. Can a workman be denied the benefit of the provisions of Section 25-F
of the Industrial Disputes Act on the ground that he is covered by the
Bombay Industrial Relations Act?

Answer 100.
A. There are no provisions in the Bombay Industrial Relations Act relating
to retrenchment, lay-off, payment of closure compensation, etc. covered
under Chapter V-A of the Industrial Disputes Act. It is therefore necessary
for an undertaking covered by the Bombay Industrial Relations Act to
comply with the provisions of Sections 25-F, 25-G, 25-J and 25-H and
 other provisions of Chapter V-A of the Industrial Disputes Act. An
employee working in an establishment governed by the Bombay Industrial
Relations Act can assert his right to the amounts and pre-conditions
stipulated in Chapter V-A of the Industrial Disputes Act through the
provisions of the Bombay Industrial Relations Act. Note: Held in Pramod
Prabhakar Kulkarni v. Balasaheb Desai S.S.K. Ltd. & Anr. 2005 III CLR
482 (Bom.H.C.)

Question 101.
Q. Is it illegal for the employer to deduct the loan amount given to a
workman from the legal dues payable to him at the time of his
retrenchment?

Answer 101.
A. There is no illegality or impropriety in recovering the loan amount from
the legal dues payable to the workman at the time of his retrenchment. It
cannot be said that after severance of the employer employee relationship
the employer should be required to chase the workman to recover the loan
amount by filing civil litigation. Note : Held in Engineering and Ancillary
Manufacturers v. Salim Khan, 2004 II C.L.R. 309 (Bom.H.C.)

Question 102.
Q. What is the procedure for retrenchment of workmen and re-employment
of retrenched workmen?

Answer 102.
A. The procedure for retrenchment of workmen and re-employment of
retrenched workmen, in short, is as follows: (1) Ordinarily the workman who
was employed last should be retenched first. (2) If the employer who had
effected retrenchment purposes to employ any persons, he should first re-
employ retrenched workmen. Ss. 25(G) & 25(H)

Question 103.
Q. Is it necessary that a workman should have been in continuous service
for not less than one year in order to avail the benefit of Section 25-G and
Section 25-H?

Answer 103.
A. There are certain rights such as those under Sections 25-G and 25-H of
the Act which are available to workmen although they have not completed
continuous service for not less than one year. Note: Held in Gopal v.
 M.C.D. & Anr., 2003 III C.L.R. 1016 (Del.H.C.)

Question 104.
Q. When does a strike become illegal?

Answer 104.
A. The Industrial Disputes Act, 1947, puts certain general restrictions on
the freedom of the workmen employed in any establishment to go on
strike. In addition to these general restrictions the Act also puts certain
special restrictions on the freedom of the workmen employed in any public
utility establishment to go on strike. Strikes in public utility establishments
are considered to be more serious than those in other establishments and
they are, therefore, subjected to additional restrictions. The following are
the instances of an illegal strike on the part of workmen employed in any
establishment:- (1) A dispute might have been referred to a Board of
Conciliation in order that it is amicably settled between the parties. A strike
resorted to during the pendency of proceedings before a Board of
Conciliation is, therefore, treated as an illegal strike. (2) A dispute might
have been referred to a Labour Court, Industrial Tribunal or National
Industrial Tribunal for adjudication. In such circumstances the parties are
expected to await an award. A strike resorted to during the pendency of
proceedings before any of these authorities is, therefore, treated as an
illegal strike. (3) A dispute might have been referred to the arbitration of a
person. In such circumstance the parties are expected to await an award.
A strike resorted to during the pendency of proceedings before an
arbitrator, is therefore, treated as an illegal strike. (4) Settlements and
awards are binding on the workmen and the workmen are not supposed to
make any demand inconsistent with a settlement or award while it is in
operation. A strike resorted to during any period in which a settlement or
award is in operation, if it is in respect of any matter covered by the
settlement or award, is therefore, treated as an illegal strike. S.23 Note:- A
strike resorted to during 7 days after the conclusion of proceedings before
a Board of Conciliation; or during 2 months after the conclusion of
proceedings before a Labour Court, Industrial Tribunal or National
Industrial Tribunal; or during 2 months after the conclusion of proceedings
before an arbitrator; is also treated as an illegal strike. A strike resorted to
by workmen employed in a public utility establishment is illegal:- (1) If they
do not give to the employer notice of the strike within 6 weeks before
commencing the strike; or (2) If they go on strike within 14 days of giving
such notice; or (3) If they go on strike before the expiry of the date
specified in such notice for commencing the strike; or (4) If they go on
strike during the pendency of any conciliation proceedings before a
conciliator and during 7 days after the conclusion of such proceedings.
S.22 Note: - A strike resorted to by workmen employed in a public utility
 establishment during the pendency of any conciliation proceedings before
a conciliator is illegal while such strike on the part of workmen employed in
other establishments is not illegal.

Question 105.
Q. Can workmen go on strike on the ground that their employer has
effected an illegal lock-out?

Answer 105.

Question 106.
Q. Have the Government employees a statutory right to strike?

Answer 106.
A. No statutory, fundamental, equitable or moral right exists with the
Government employees. Note: Held in T. K. Rangarajan v. Government of
Tamil Nadu & Ors., 2003 III C.L.R. 505 (S.C.)

Question 107.
Q. What is the liability of the employer who is employing less than 50
workmen and possesses no power to lay-off?

Answer 107.
A. Where the employer is employing less than 50 workmen and possesses
no power to lay-off, a workman laid-off by him would be entitled to full
wages i.e., 100% of his basic wages an dearness allowance. Note:- Held in
workmen of Firestone Tyre & Rubber Co. v. F.T.R. Co., 1976 I LLJ 493.

Question 108.
Q. What is the meaning of "retrenchment"?

Answer 108.
A. The termination of the service of a workman for any reason whatsoever
is called retrenchment? Retrenchment however does not include: (1)
termination as a punishment, or (2) voluntary retirement, or (3) retirement
on reaching the age of superannuation, or of employment (4) termination
as a result of non-renewal of contract, or (5) termination on the ground of
continued ill-health. S. 2(oo) Note: - See also Santosh Gupta v. State Bank
of India, 1980 II LLJ 72.
Question 109.
Q. When does a stoppage of work amount to a strike?

Answer 109.
A. When a body of persons employed in any industry stop their work
acting in combination (to coerce the employer to accede to some demand)
they are said to be on a strike. S.2(q)

Question 110.
Q. Can an employer declare a lock-out on the ground that his workmen
have gone on illegal strike?

Answer 110.
A. If an employer declares a lock-out in consequence of an illegal strike
resorted to by his workmen, such lock-out is not deemed to be illegal.
S.24(3)

Question 111.
Q. Can any strike be described as illegal but justified?

Answer 111.
A. A strike is either legal or illegal and no strike can be described as illegal
but justified. Note:- Held in India General Navigation and Railway Co. Ltd.
v. Their Workmen 1960 I LLJ 13.

Question 112.
Q. What is the meaning of the dictum `no work no pay'?

Answer 112.
A. The dictum `no work no pay', in the context of wages for the period of
strike, means that whether the strike is legal or illegal, the workers are
liable to lose wages for the period of strike on the principle that whoever
voluntarily refrains from doing work when it is offered to him, is not entitled
for payment for work he has not done. Even if the strike is legal, it does not
save the workers from losing the wages for the period of strike. It only
saves them from disciplinary action, since the right to strike is recognised
as a legitimate weapon in the hands of the workers. Note:- See Syndicate
Bank & Anr. v. K. Umesh Nayak & Ors., 1994 II CLR 753 (S.C.)
Question 113.
Q. What are the conditions for effecting the retrenchment of a workman?

Answer 113.
A. If an employer wants to retrench any workman who is in his service for
one year or more: (1) he must give to the workmen one month's notice in
writing showing the reasons for retrenchment or in the alternative pay to
the workman one month's wages in lieu of such notice; (2) he must also
pay to the workman at the time of effecting the retrenchment
compensation at the rate of 15 days' average pay for every year of
service; and (3) he must serve on the Government notice in the prescribed
manner. S.25(F)

Question 114.
Q. Does the relationship of employer and employee come to an end during
the period of a lock-out?

Answer 114.
A. The relationship of the employer and the employee continues to exist
during the period of a lock-out.

Question 115.
Q. Can workmen go on strike on the ground that their employer has
effected an illegal lock-out?

Answer 115.
A. If workmen go on strike in consequence of an illegal lock-out effected
by their employer, such strike is not deemed to be illegal. S.24(23)

Question 116.
Q. Is notice of retrenchment served on the Government through a peon
book invalid?

Answer 116.
A. The requirement that notice of retrenchment shall be served on the
Government by registered post has to be treated as directory and not
mandatory. Notice of retrenchment service on the Government through a
peon book is not vitiated. Note: - Held in Gurmail Singh & Ors. v. State of
Punjab, 1991 I C.L.R. 637.
Question 117.
Q. Are workmen entitled to the payment of wages for the period of a lock-
out which is declared in consequence of an illegal strike of the workmen?

Answer 117.
A. The workmen are not entitled to the payment of wages for the period
during which such lock-out continued. Note: -Held in HAL Employees Union
v. The Presiding Officer & Anr. 1996 II CLR 11 (S.C.).

Question 118.
Q. What is the scope of the discretion vested in the Labour Court or
Tribunal under Section 11-A?

Answer 118.
A. In Mahindra and Mahindra Ltd. v. N.B. Narawade a three Judge Bench
of the Supreme Court has observed as follows. It is no doubt true that after
introduction of Section 11-A certain amount of discretion is vested in the
Labour Court/Industrial Tribunal is interfering with the quantum of
punishment awarded by the Management. The area of the discretion is
certainly not unlimited. The discretion is available only on the existence of
certain factors like punishment being disproportionate to the gravity of
misconduct so as to disturb the conscience of the Court, or the existence
of any mitigating circumstances which requires the reduction of the
sentence, or the past conduct of the workman which may persuade the
Labour Court to reduce the punishment. In the absence of any such factor
existing, Labour Court cannot by way of sympathy alone exercise the
power under S.11-A and reduce the punishment. Note: See Mahindra and
Mahindra Ltd. v. N.B. Narawade 2005 I CLR 803 (S.C.)

Question 119.
Q. Can the Government refuse to refer a dispute relating to transfer on the
ground that transfer is a managerial prerogative?

Answer 119.
A. In this case, the Government had refused to make reference on the
ground that the transfer is managerial prerogative and there was no
allegation of victimisation or discrimination. The aforesaid reasons cannot
be said to be in any way irrelevant or extraneous. Note: Held in Sekhar
Rudra v. Oil India Ltd., 2003 (4) L.L.N. 689 (Gau.H.C.)
Question 120.
Q. Can a Tribunal decide any matter which is not referred to it?

Answer 120.
A. A Tribunal has to confine its adjudication only to the points which are
specified in the order of reference and it has no jurisdiction to decide any
matter which is not referred to it . S.10(4)

Question 121.
Q. Does a Conciliation Officer possess the power to verify the membership
of a union to find out whether the union is a majority union?

Answer 121.
A. The power under section 12(2) of the Act to do "all such things as he
thinks fit" can be used only for the purpose of inducing the parties to come
to a fair and amicable settlement of the dispute and not for verifying the
membership of a union to find out whether the union is a majority union.
Note:- Held in Tamil Nadu National Engineering Employees Union v.
Management of T.I. Cycles of India Ltd., 1992 I CLR 732.

Question 122.
Q. In what circumstances the Government may refuse to make a
reference?

Answer 122.
A. The Courts have observed that the Government may refuse to make a
reference where the claim is: (a) perverse or frivolous; (b) put forth for
extraneous and irrelevant reasons; (c) such that its impact on the general
relations between the employer and the employees in the region is likely to
be adverse; (d) belated; (e) trivial

Question 123.
Q. When an award of a Labour Court directing reinstatement of a workman
is challenged by the employer in a High Court and thereupon the workman
files an application to the High Court under Section 17-B, can the High
Court at that stage reject the application of the workman on the ground
that prima facie there is no merit in the award of the Labour Court?

Answer 123.
A. While considering the application of the workman filed under Section
17-B the Court is not called upon to examine the merits of the award.
 Section 17-B nowhere contemplates that at this stage the Court is to
consider the merits of the case and where it is satisfied that the award is
not sustainable the application of the workman filed under Section 17-B
can be rejected. If that is taken to be the requirement of Section 17-B what
the Court is do, to add words in the Section which was not contemplated
by the Parliament. Note: Held in Ram Dhan v. Judge, Labour Court 2003 II
CLR 803 (Raj.H.C.)

Question 124.
Q. Is it necessary to give any notice of change under section 9-A for
altering a weekly off day owing to a Bandh?

Answer 124.
A. If such change is meant for only one occasion and not meant as
permanent one, it is not necessary to give any notice of change under
section 9-A. Note: - Held in Mistry Lallubhoy and Co. v. Engineering and
Metal Workers Union, 1979 L.I.C. 196 (Bom.).

Question 125.
Q. If an employer insists upon a workman to execute an undertaking that "I
undertake that during my shift I will not go on strike, I will ensure normal
output by performing my assigned duties and I will maintain discipline",
does this amount to any change in conditions of service under Section 9-A
of the Act?

Answer 125.
A. Requiring a workman to execute such undertaking cannot be described
as change in conditions of service within the meaning of Section 9-A of the
Act. Note: - Held in Glaxo Laboratories Employees Union v. Glaxo India
Ltd. 1996 II CLR 270 (Gujarat).

Question 126.
Q. Is it incumbent on the Government to refer every dispute to a Labour
Court, Tribunal or National Tribunal for adjudication?

Answer 126.
A. The Government has a discretion to refer or not to refer a dispute to a
Labour Court, Tribunal or National Tribunal for adjudication. The
Government can use the power of making a reference on consideration of
the failure report received from the Conciliation Officer or on its own
motion. If the Government decides not to make a reference, then it is
 bound to record reasons for doing so and communicate them to the
parties. S.10

Question 127.
Q. Is it necessary for an employer to give a notice under Section 9-A of the
Act for changing period of work of a workman?

Answer 127.
A. If any change is proposed to be made in "Hours of work" or "rest
intervals", such a change would fall under Item 4 of Schedule IV and
Section 9-A would be attracted. But a distinction is to be drawn between
"Hours of work" and "Period of work". "Hours of work" means the period for
which the workman is required to work. "Period of work" means the period
during which the workman is required to remain present on the premises.
Any change in period of work would not fall under Item 4 of Schedule IV
and Section 9-A would not be attracted for that purpose. Note: Held in
Transport & Dock Workers Union v. Chougule Steamships Ltd., 1997 L.I.C.
928 (Bombay).

Question 128.
Q. Can the Government in exercise of its power under sections 10(1) and
12(5) of the Act, refuse to make reference on the ground that the person
raising the dispute is not a "workman"?

Answer 128.
A. If it is apparent from the record without any detailed investigation that
the person raising the dispute is not a "workman" as defined under section
2(s) of the Act, then the Government is entitled not to make reference by
assigning reasons for doing so as required by section 12(5) of the Act.
Note:- See N.D.D.B. Employees' Union v. State of Gujarat, 1991 (1) CLR
410.

Question 129.
Q. Can a workman raise a demand through another person?

Answer 129.
A. A workman can request any other individual to make a demand on his
behalf. A letter of demand written by a person authorised to do so has to
be regarded as a demand raised by the workman himself. Note: - Held in
Ariana Afghan Airlines Ltd. v. K.S. Sidhu & Ors. 1988 I L.L.N. 202.
Question 130.
Q. Can a reference of a dispute regarding illegal dismissal of a workman
be questioned on the ground of delay alone?

Answer 130.
A. Looking to the purpose, aim and object of the Act, no reference can be
generally questioned on the ground of delay alone. Even in a case the
delay is shown to be existing, the Labour Court dealing with the case can
appropriately mould the relief by declining to grant back wages to the
workman till date he raised the demand regarding his illegal dismissal. The
Labour Court may also in appropriate cases direct the payment of part of
the back wages instead of full back wages. Note:- Held in Ajaib Singh v.
Sirhind Co-op. Marketing- cum-Processing Service Society Ltd. & Anr.,
1999 I CLR 1068 (S.C.)

Question 131.
Q. Can a decision of the Government to refer or to refuse to refer a dispute
be challenged?

Answer 131.
A. A decision of the Government to refer or to refuse to refer a dispute to
any authority is an administrative act and ordinarily it cannot be challenged
in a Court of law.

Question 132.
Q. Is it competent for the Government to make a reference of a dispute
when the Government had earlier refused to refer it for adjudication?

Answer 132.
A. A refusal of the Government to make a reference of a dispute does not
amount to an exercise of power under section 10(1) of the Act. The
Government is, therefore, competent to make a reference of a dispute
even if it had on an earlier occasion refused to refer it for adjudication.
Note:- Held in Avon Services (Production Agencies) Pvt. Ltd. v. Industrial
Tribunal, Haryana 1979 I L.L.J. 1.

Question 133.
Q. Does the order of an Industrial Tribunal disposing of a reference of a
dispute relating to general demands as "not pressed" at the request of the
union which had earlier espoused the cause of the workmen concerned
 but subsequently lost its membership in the establishment of the employer,
amount to an "award"? Can the Industrial Tribunal restore the reference if
another union comes forward to espouse the cause of the workmen and
requests the Industrial Tribunal to do so?

Answer 133.
A. As per Section 2(b) of the Act an award means (i) an interim or a final
determination of an industrial dispute specified in the order of reference, or
(ii) an interim or a final determination of a question relating to the industrial
dispute specified in the order of reference. Before a decision of a Tribunal
can be regarded as an award, there has to be determination of the
industrial dispute. A determination involves an act of adjudication, i.e., a
decision on merits. In the present case the order of the Tribunal does not
constitute an award and therefore it is open to the Tribunal to restore the
reference if another union comes forward to espouse the cause of the
workmen and requests the Tribunal to do so. Note: Held in Airworks (I)
Engineering Pvt. Ltd. v. Maharashtra General Kamgar Mahasangh 2006 III
CLR 845 (Bom.H.C.)

Question 134.
Q. Is it necessary for the Government to give notice to the affected party
before making a reference of a dispute, which the Government had earlier
declined to refer?

Answer 134.
A. It is a settled law that if a reference is rejected and thereafter at the
behest of one of the parties a fresh reference is made, the party which is
affected ought to be given notice of the fresh reference being made. Note:
Held in Central Bank of India v. O. P. Singla & Ors., 2003 III CLR 686
(Del.H.C.)

Question 135.
Q. Does a Labour Court or Tribunal have power to reinstate discharged or
dismissed workman?

Answer 135.
A. Labour Courts and Tribunals are now expressly empowered to set aside
any order of discharge or dismissal and direct reinstatement of the
discharged or dismissed workman if they are satisfied that the order of
discharge or dismissal was not justified. S.11(A)
Question 136.
Q. Does a Labour Court or Tribunal have power to reduce the punishment
of discharge or dismissal?

Answer 136.
A. If a Labour Court or Tribunal, while deciding a dispute about discharge
or dismissal, finds, either because the misconduct was not proved or
because the misconduct did not warrant punishment by way of discharge
or dismissal, that the discharge or dismissal was not justified, it can
substitute any lesser punishment for the discharge or dismissal. In such
cases the jurisdiction of Labour Courts and Tribunals is thus no more of a
supervisory nature and these authorities are now exercising jurisdiction
which has characteristics of appellate power. S.11(A) Note:- See also
District Magistrate, A.P.S.R.T.C. v. Labour Court, 1978 L.I.C. 359.

Question 137.
Q. Can a dismissed workman, having failed to obtain relief under the
Industrial Disputes Act, seek relief again under the common law?

Answer 137.
A. Once a dismissed workman elects to proceed and does proceed under
the Industrial Disputes Act, he cannot again approach a Civil Court for
relief. Note:- Held in Biswanath Das v. Ramesh Chandra Patnaik, 1979 I
L.L.J. 129.

Question 138.
Q. Is it incumbent on a Conciliation Officer to initiate conciliation
proceedings when a dispute arises or is apprehended?

Answer 138.
A. When an industrial dispute arises or is apprehended in a public utility
service and a notice of strike has been given under section 22 in respect
thereof, it is incumbent on a Conciliation Officer to hold conciliations
proceedings in respect of that dispute. In other cases it is not incumbent
on him to do so and he may not at his discretion hold conciliations
proceedings. S.12

Question 139.
Q. Does a Conciliation Officer possess power to decide a dispute?

Answer 139.
 A. A Conciliation Officer has no power to decide a dispute. He is entrusted
with the duty of inducing the parties to come to a fair and amicable
settlement of the dispute. If he succeeds in his efforts and brings about a
settlement, he has to make a report of the settlement to the Government.
S.12

Question 140.
Q. On receipt of a demand from workmen is it permissible for a Conciliation
Officer to postpone holding of conciliation proceedings and refer the
demand to the management?

Answer 140.
A. On receipt of a demand from workmen a Conciliation Officer may first
forward it to the management to obtain its reaction and afterwards hold
conciliation proceedings if the reaction is negative. Note:- Held in C.
Manuel v. Management of Needle Industries (India) Ltd. Keeti, Nilgiris,
1981 II LLJ 102.

Question 141.
Q. What is the requirement of the law about the publication of awards
passed under the provisions of the Act?

Answer 141.
A. Every award passed under the provisions of the Act must be published
by the Government but it may not be published within a period of 30 days
from the date of its receipt by the Government. It may be published even
beyond the said period and it will not be invalid on that ground. S.17(1)
Note:- Also see Remington Rand of India v. Workmen, 1967 II LLJ 866.

Question 142.
Q. Are awards passed under the provisions of the Act appealable?

Answer 142.
A. An award passed under the provisions of the Act, on its publication by
the Government, becomes final and cannot be called in question by any
Court in any manner whatsoever. No suit can be filed for declaring any
award as void. S.17(2) Note 1: There can be a writ petition to a High Court
or an appeal by special leave to the Supreme Court against the award.

Question 143.
 Q. What is the provision of the Act about the enforceability of awards
passed under its provisions and their coming into operation?

Answer 143.
A. (1) An award passed under the provisions of the Act will become
enforceable on the expiry of 30 days from the date of its publication by the
Government. (2) It will come into operation with effect from the date fixed
therein for that purpose and if no date is so fixed, it will come into
operation on the expiry of 30 days from the date of its publication by the
Government. S.17(A)(4) Note: - In certain circumstances the Central
Government or a State Government has power to declare that an award
shall not become enforceable.

Question 144.
Q. What is the effect of the termination of a settlement or an award?

Answer 144.
A. The effect of the termination of a settlement or an award is that,
thereafter, the parties will be at liberty to raise a fresh dispute. But the
settlement or the award would continue to govern the terms and conditions
of employment of the concerned workmen so long as it is not substituted
by another award or settlement. Note: - Held in Sathys Studios v. Labour
Court, Madras 1978 I LLJ 227 and Life Insurance Corporation of India v.
D.J. Bahadur, 1981 I LLJ 1.

Question 145.
Q. Can a Tribunal reject the application of an employer to make an award
in terms of the settlement arrived at between the employer and a union in
the course of conciliation proceedings on the ground that the reference
had been made at the behest of another union?

Answer 145.
A. As the Supreme Court observed in General Manager, Security Paper
Mill Hoshangabad v. R.S. Sharma, there is a presumption that the
settlement which is arrived at in the course of conciliation proceedings is
just and fair and that is the foundation upon which the Industrial Disputes
Act makes such a settlement on all parties as well as other workmen of the
establishment to which such a settlement relates. The Tribunal cannot
reject the application of the employer and has to consider the same on
merits. Note: Held in Novartis India Ltd. v. Association of Chemical
Workers Union, 2005 I CLR 903 (Bom.H.C.)
Question 146.
Q. If any employer, ordered by a Labour Court or Tribunal to reinstate a
workman, prefers any proceedings against the order in a Higher Court, is
he required to pay any wages to that workman during the pendency of
such proceedings?

Answer 146.
A. Where in any case, a Labour Court or Tribunal by its award directs
reinstatement of any workman and the employer prefers any proceedings
against such award in a High Court or Supreme Court, the employer is
liable to pay such workman, during the period of pendency of such
proceedings, full wages last drawn by him, inclusive of any maintenance
allowance admissible to him under any rule. S.17(B)

Question 147.
Q. Is a workman entitled to claim the benefit of Section 17-B from the date
of the award?

Answer 147.
A. The benefit of Section 17-B is available to a workman not from the date
on which the award is passed but from the date on which the employer
prefers proceedings against the award to a higher Court. Consequently,
the benefit of Section 17-B can be claimed by the workman at any time by
making an application to the higher Court alongwith an affidavit of his not
being in gainful employment in compliance with Section 17-B. Note: See
Kodungalloor Town Co-operative Bank Ltd. v. Surendra Babu, 2007 II CLR
757 (Ker.H.C.).

Question 148.
Q. If an employer, ordered by a Labour Court or Tribunal to reinstate a
workman, prefers any proceedings against the order in a Higher Court,
and the workman dies during the pendency of such proceedings, are the
legal heirs of the workman entitled to get the benefit of Section 17-B of the
Act?

Answer 148.
A. The legal heirs of the workman are entitled to get the payment which
was due to the workman in terms of Section 17-B of the Act from the date
of initiation of the proceedings till the date of death of the workman. Note:-
Held in Nandita Dutta v. Third Industrial Tribunal & Ors., 1998 (2) Cal.L.T.
157 (Calcutta).
Question 149.
Q. Can the benefit of Section 17-B of the Act be denied to a workman on
the ground that he had been self-employed during the period of pendency
of the proceedings in the High Court or the Supreme Court?

Answer 149.
A. The question of self-employment would not be material for the purpose
of Section 17-B of the Act. The benefit can be denied if the workman had
been employed and had been receiving adequate remuneration during the
period of pendency of the proceedings. What the workman earns to
maintain his body, soul or family by doing miscellaneous work would not
be coming within the sweep of "employment with an establishment." Note:
Held in Birdhi Chand Naunag Ram Jain v. P.O. Labour Court, 2004 I CLR
953 (Del.H.C.) and Cyanides & Chemicals Co. v. Mansingh M. Verma
2005 III CLR 954 (Guj.H.C.)

Question 150.
Q. What is the meaning of the words "full wages last drawn" used in
Section 17-B of the Act?

Answer 150.
A. The words "full wages last drawn" must be given their plain and material
meaning. When so construed they mean the wages which were drawn by
the workman when he was in service and when his services were
terminated. Note 1: - Held in Dena Bank v. Kiritikumar T. Patel, 1998 I CLR
191 (S.C.).

Question 151.
Q. Can a notice put up on the Notice Board be treated as notice of change
under section 9-A of the Act?

Answer 151.
A. If law requires that a thing shall be done in a particular manner, it has
got to be done in that particular manner and in no other manner. Notice of
change under section 9-A is required to be given in "the prescribed
manner". A notice put up on the notice board cannot be treated as notice
of change under section 9-A of the Act. Note:- Held in Canara Bank v.
G.M.V. Nayak & Ors. 1990 II CLR 376

Question 152.
 Q. Can the Government refuse to make reference merely taking note of
the designation of the post held by a person?

Answer 152.
A. Such a matter should be decided by the Industrial Tribunal or Labour
Court on the basis of the materials to be placed before it by the parties.
Note:- Held in Sharad Kumar v. Govt. of NCT of Delhi & Ors. 2002 II CLR
235 (S.C.)

Question 153.
Q. Does a reference of an industrial dispute under section 2-A abate in the
event of death of the workman during the pendency of the proceedings?

Answer 153.
A. The death of the workman during the pendency of the proceedings
cannot deprive the heirs or the legal representatives of their right to
continue the proceedings and claim the benefits as successors to the
deceased workman. Note:- Held in Rameshwar Manjhi (Deceased) through
his son Lakhiram Manjhi v. Management of Sangramgarh Colliery & Ors.
1994 I CLR 9.

Question 154.
Q. What is meant by "voluntary arbitration"?

Answer 154.
A. When any employer and his workmen voluntarily refer any existing or
apprehended industrial dispute between them to arbitration of any person
of their choice, it is called a voluntary reference, to arbitration. Like a
Labour Court or Tribunal the Arbitrator has to investigate the dispute and
submit his award to the Government. S.10(A)

Question 155.
Q. Can the Government decline reference for the reason that the
differences between the employer and the employee can be sorted out
under the Model Standing Orders?

Answer 155.
A. The said reason cannot form a ground for declining reference and the
declining to refer is refusal to exercise jurisdiction. Note:- Held in Pradip
Dey v. State of W.B. & Ors. 2002 II CLR 17.
Question 156.
Q. Does a Labour Court or Tribunal have power to reduce the punishment
in cases in which there is neither discharge nor dismissal?

Answer 156.
A. In cases in which a punishment other than discharge or dismissal is
imposed, the law as it existed prior to the insertion of section 11-A is
applicable. In such cases the Labour Court or Tribunal can reduce the
punishment on one or more of the following grounds:- (i) want of good
faith, (ii) victimisation, (iii) unfair labour practice, (iv) violation of principles
of natural justice, and (v) perverse finding. Note:- Held in Rajasthan State
Road Transport Corporation & Anr. v. Judge, Industrial Tribunal, Bikaner &
Ors. 1995 I L.L.J. 357.

Question 157.
Q. Is the amount to be paid by the employer to the workman during the
period of pendency of the proceedings in the High Court or the Supreme
Court refundable or recoverable in the event of the award of the Labour
Court or Tribunal being set aside?

Answer 157.
A. The payment which is required to be made by the employer to the
workman during the pendency of the proceedings in the High Court or the
Supreme Court is in the nature of subsistence allowance which would not
be refundable or recoverable from the workman even if the award of the
Labour Court or Tribunal is set aside by the High Court or the Supreme
Court. Note:- See Dena Bank v. Kiritikumar T. Patel, 1998 I CLR 191
(S.C.).

Question 158.
Q. Can an Industrial Tribunal adjudicate upon a demand for gratuity in
cases where the Payment of Gratuity Act is not applicable to an
establishment by reason of the establishment employing less than ten
employees?

Answer 158.
A. An Industrial Tribunal has no jurisdiction to entertain a demand for
gratuity and award the same in a reference made in respect of an
establishment which employs less than ten persons and therefore is
excluded from the applicability of the Payment of Gratuity Act. @F2 =
Conciliation proceedings Note: - Held in Rashtriya Hair Cutting Saloon v.
 Maharashtra Kamgar Sabha 1991 I CLR 408.

Question 159.
Q. Where a change is introduced first and a notice of the change is issued
afterwards, is the notice valid?

Answer 159.
A. The very wording of Section 9-A shows that the notice under the said
section must precede the introduction of the change. The notice issued
after the introduction of the change is violative of the provisions of Section
9-A. Note:- Held in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad, 1999
II CLR 433 (S.C.)

Question 160.
Q. Can a notice given to the union be treated as sufficient compliance with
Section 9-A?

Answer 160.
A. The notice of the proposed change in the conditions of service must be
given to the individual workman who is likely to be affected by such
change. Therefore, sending of notice to the union cannot be treated as
sufficient compliance with the mandatory requirement of Section 9-A.
Note: Held in Punjab State Co-op. Supply and Marketing Federation Ltd. v.
P.O. Industrial Tribunal, Punjab, 2003 I C.L.R. 925 (P.&H. H.C.)

Question 161.
Q. Is it necessary for an employer to give a notice under Section 9-A of the
Act for changing rules regarding employees' participation in municipal
elections?

Answer 161.
A. No notice under Section 9-A of the Act is required to be given for
changing such rules because taking part in municipal election is not a
customary privilege connected with conditions of service. Note:- Held in
General Manager (Operations), State Bank of India & Ors. v. State Bank of
India & Anr. 1998 I CLR 897 (S.C.).

Question 162.
Q. Can the Government cancel an order of reference made by it earlier?
Answer 162.
A. There is no express provision made in the Act which gives authority or
power to the Government to cancel its earlier order of reference. Note:
Held in Indian Rayon and Industries Ltd. v. State of Gujarat & Ors., 2003 III
C.L.R. 217 (Guj.H.C.)

Question 163.
Q. Is there any time limit for referring a dispute for adjudication?

Answer 163.
A. There is no time-limit prescribed in the Act for referring a dispute for
adjudication and it is competent for the Government to refer a dispute for
adjudication at any time. The words "at any time" should be, however,
interpreted to mean with a reasonable time. S.10

Question 164.
Q. Are there any contingencies in which the Government must refer a
dispute for adjudication?

Answer 164.
A. There are two contingencies in which the Government must refer a
dispute for adjudication: (1) If a dispute relates to a public utility service and
a notice of strike under section 22 has been given in respect thereof, the
Government must refer the dispute for adjudication. (2) If the parties to a
dispute jointly or separately apply to the Government for making a
reference the Government must refer the dispute for adjudication. S.10(1)

Question 165.
Q. Can a Labour Court or Industrial Tribunal, in exercise of the powers
conferred on them under Section 11-A of the Act, interfere with the
punishment inflicted upon a workman where the rules or regulations
applicable to him provide for one single punishment of termination of
services for the misconduct committed by him?

Answer 165.
A. The answer to the question is in the negative. The Gujarat High Court
has held that the Labour Court or Industrial Tribunal can interfere with the
punishment only in the cases where there is provision for two limits. There
must be something minimum and something maximum. Note: See Gujarat
State Road Transport Corporation v. Chaudhary Popatbhai Revabhai,
2006 II CLR 144 (Guj.H.C.)
Question 166.
Q. Does a proceeding pending before a Labour Court or Tribunal in
relation to an industrial dispute lapse on the death of the workman?

Answer 166.
A. The Courts had held that when a workman dies his claim for
reinstatement dies with him and the reference proceeding becomes
incompetent. By amending section 10 in 1982 it is now provided that no
proceeding pending before a Labour Court or Tribunal in relation to an
industrial dispute shall lapse merely by reason of the death of any of the
parties to the dispute being a workman and such Labour Court or Tribunal
shall complete such proceeding and submit its award to the Government.
S.10(8)

Question 167.
Q. Is a "Bhavan" maintained by a State Government an industry?

Answer 167.
A. Maintaining a "Bhavan" was not a sovereign function. A "Bhavan" fell
within the ambit of industry as defined in Section 2(j) of the Act. Note: Held
in Madhya Pradesh Bhavan v. Shiv Kumar Tiwari, 2006 I LLJ 932
(Del.H.C.).

Question 168.
Q. Is an apprentice a "workman"?

Answer 168.
A. The Industrial Disputes Act, 1947, has specifically included an
apprentice in the definition of "workman" although some other labour laws
have omitted to include an apprentice in the definition of "employee".
S.2(s)

Question 169.
Q. Are Labour Courts, Industrial Tribunals and National Industrial Tribunals
required to follow any strict procedure in the proceedings before them?

Answer 169.
A. Labour Courts, Industrial Tribunals and National Industrial Tribunals
have discretion to follow any procedure they may think fit, of course
 subject to the rules made under the Act. The provisions of the Evidence
Act, in their strict sense, are also not applicable to the proceedings before
them. S.11(1)

Question 170.
Q. Can a dispute falling under Schedule III be referred to a Labour Court?

Answer 170.
A. Normally a dispute relating to a matter specified in Schedule III is
required to be referred to an Industrial Tribunal but such dispute can be
referred to a Labour Court if the workmen concerned who are likely to be
affected are not more than 100/-. Provision to S.10(1) Note: - Also see
Concerned Workmen of Sahai Industries v. B.D. Gupta & Anr. 1984 I LLJ
165.

Question 171.
Q. Are there any restrictions on the employer in the matter of changing the
service conditions of his workmen?

Answer 171.
A. If the employer proposes to effect any change in the conditions of
service applicable to the workmen employed by him in respect of any
matter specified in Schedule IV which contains important service matters
like wages, hours of work, etc.- (a) he must give to the workmen a notice of
the proposed change; (b) after giving such notice he must wait for 21 days
for effecting the proposed change. The object of the notice is to afford to
the workmen an opportunity to consider the effect of the proposed change
and to represent their point of view on the proposal. S.9(A)

Question 172.
Q. Can the employer effect a change in the wages and allowances of his
workmen without giving a notice under Section 9-A of the Act?

Answer 172.
A. "Wages" is a matter specified in the Fourth Schedule of the Act. As such
no change can be effected in respect of wages and allowances without
giving a notice under section 9-A of the Act. Note:- Held in Bombay
Mothers' and Childrens' Society v. General Labour Union (Red Flag), 1992
I CLR 656.
Question 173.
Q. Is "Doordarshan" an industry?

Answer 173.
A. Doordarshan, which carries on activity for profit by getting commercial
advertisements telecast through its various Kendras by charging fees, is
an industry. Note: - Held in All India Radio v. Santosh Kumar, 1998 I CLR
684 (S.C.).

Question 174.
Q. Is a tourism department of a Government an Industry?

Answer 174.
A. A tourism department of a Government, whose activities have
commercial and economic features quite apart from what a Government
does or is expected to do in the discharge of its sovereign functions, is an
industry. Note:- Held in Mohanan v. State of Kerala, 1994 I CLR 419.

Question 175.
Q. Is a teacher a workman?

Answer 175.
A. Imparting of education which is the main function of a teacher cannot be
considered as skilled or unskilled manual work or supervisory work or
technical work or clerical work. A teacher is not a workman. Note: - Held in
Miss A. Sundarambal v. Government of Goa, Daman & Diu, 1988 II CLR
316.

Question 176.
Q. Is a medical representative a workman?

Answer 176.
A. In view of the law laid down by the Punjab and Haryana High Court in
Ripu Daman Bhanot v. Presiding Officer, Labour Court, 1997 I LLJ 557,
and by the Rajasthan High Court in Dolphin Laboratories Ltd. v. Judge,
Labour Court, 2001 II LLJ 559, as based on the judgment passed by the
Supreme Court in H.R. Adyanthaya v. Sandoz (India) Ltd. 1994 II CLR
552, a medical representative shall be a workman within the meaning of
Section 2(s) of the Act. Note: Held in German Remedies Ltd. v. Presiding
Officer, Labour Court, 2006 II CLR 701 (M.P.H.C.)
Question 177.
Q. In what way the Industrial Tribunals are different from the Civil Courts?

Answer 177.
A. The Civil Courts have power to enforce existing contracts. The Industrial
Tribunals have power to modify existing contracts or to impose new
contracts.

Question 178.
Q. Is All India Radio an industry?

Answer 178.
A. All India Radio is an industry. The mere fact that there is a Service Code
dealing with some of the aspects of the employer- employee relationship
between the Government and its employees does not amount by
necessary implication to the exclusion of the provisions of the Industrial
Disputes Act to Government servants. Note:- Held in All India Radio v.
Presiding Officer, Industrial Tribunal-cum-Labour Court, 1987 I CLR 246.

Question 179.
Q. Is Tata Sports Club an industry?

Answer 179.
A. Tata Sports Club, which is engaged in systematic activity and is
organised by co-operation between the Club and its employees; and
provides services calculated to satisfy human wants and wishes, is an
industry. Note:- Held in Ratilal B. Ravji v. Tata Sports Club & Anr., 1997 II
CLR 902 (Bombay).

Question 180.
Q. When does an individual dispute become an industrial dispute?

Answer 180.
A. Ordinarily an individual dispute, i.e., a dispute relating to an individual
workman, is not treated as an industrial dispute. Such dispute is treated as
an industrial dispute only when it is supported either by the union to which
the workman belongs or by a group of workmen. An exception has been,
however, made in the case of an individual dispute connected with or
arising out of the dismissal, discharge, retrenchment or termination of
service of any workman. Such dispute is treated as an industrial dispute by
 reason of the deeming provision of Section 2-A of the Act notwithstanding
that no other workman nor any union of workman is supporting the
dispute.

Question 181.
Q. Is the application of Section 2-A of the Act limited to the instances of
discharge, dismissal, retrenchment or termination alone?

Answer 181.
A. The application of Section 2-A of the Act is not limited to the instances
of discharge, dismissal, retrenchment or termination alone. The Section
takes in its fold "any difference or dispute" which is "connected with, or
arising out of" such discharge, dismissal, retrenchment or termination. A
dispute such as the denial of benefit of past service and wages for
intervening period would be covered by Section 2-A of the Act. Note: Held
in K. Karunakar v. A.P.S.R.T. Corporation, 2006 (2) LLN 470 (S.C.).

Question 182.
A. Tata Sports Club, which is engaged in systematic activity and is
organised by co-operation between the Club and its employees; and
provides services calculated to satisfy human wants and wishes, is an
industry. Note:- Held in Ratilal B. Ravji v. Tata Sports Club & Anr., 1997 II
CLR 902 (Bombay).

Answer 182.
A. A dispute or difference between workmen and the employer which is
connected with the employment or non-employment or the terms of
employment or with the conditions of labour of any person is called an
industrial dispute. An industrial dispute comes into existence when a
demand is made by the workmen on the employer about any matter
connected with the employment or non-employment or the terms of
employment or with the conditions of labour of any person, and the
employer refuses to concede the demand. The demand need not
necessarily be made in writing. It need not necessarily be made directly on
the employer.

Question 183.
Q. Is a dismissed workman covered by the Act?

Answer 183.
A. A workman who has been dismissed, discharged or retrenched or
 whose services have been otherwise terminated is not only covered by the
Act but any dispute connected with or arising out of such dismissal,
discharge, retrenchment or termination is also deemed to be an industrial
dispute irrespective of the fact that no other workman nor any union of
workmen is not a party to the dispute. Ss.2(s) and 2(A)

Question 184.
Q. Does the designation of a person decide his status as a "workman"?

Answer 184.
A. It is the nature of work performed by a person and not his designation
that decides whether he is a "workman" or not. Note: Held in Engineering
Construction Corporation Ltd. Madras v. Additional Labour Court, Madras,
1980 II L.L.J. 16.

Question 185.
Q. Is a part-time employee a workman?

Answer 185.
A. The definition of `workman' as given in section 2(s) of the Act is
comprehensive and wide enough to include even a part-time employee.
Note:- Held in Yashwant Singh Yadav v. State of Rajasthan, 1989 (5 9)
F.L.R. 607.

Question 186.
Q. Is a trade union an industry?

Answer 186.
A. A trade union which carries on systematic activities by co- operation of
its employees for the distribution of services calculated to satisfy material
wants of workmen is an industry. Note:- Held in Dattatraya Gopal Paranjpe
v. Rashtriya Mill Mazdoor Sangh & Ors., 1995 I CLR 1024.

Question 187.
Q. Is the nursery division of the Forest Department of the Government of
Gujarat an Industry?

Answer 187.
A. The nursery division is not performing any sovereign function. The
activities of the division relate to production or distribution of goods and
 services for satisfying human wants and desires of consumption. The
division is growing plants and selling them including the wood received
therefrom in public on commercial basis. It is preparing wooden furniture
from the said wood and selling it in public in open market. It can be said to
be an industry. Note: Held in State of Gujarat v. Aher Jaga Ramshi, 2006
III CLR 377 (Guj.H.C.)

Question 188.
Q. Can a dismissed workman challenge his dismissal by making an
application direct to a Labour Court?

Answer 188.
A. The States of Andhra Pradesh, Karnataka and Tamil Nadu, by amending
the Industrial Disputes Act in its application to the said States, have
enabled a dismissed workman to challenge his dismissal by making an
application direct to a Labour Court.

Question 189.
Q. Does the designation of a person decide his status as a "workman"?

Answer 189.
A. A workman is not barred from raising an industrial dispute about the
termination of his services on account of his failure to pursue the remedy
of an appeal to the management. To raise an industrial dispute is a
legitimate mode of redress recognised under the Industrial Disputes Act,
1947, and it should not be denied to him because another remedy of an
appeal to the management is available to him. Note: -Held in Jai Bhagwan
v. Ambala Central Co-op. Bank Ltd. & Anr. 1984 I L.L.J. 52.

Question 190.
Q. Is a workman barred from raising an industrial dispute on account of his
failure to pursue the remedy of an appeal to the management?

Answer 190.
A. A workman is not barred from raising an industrial dispute about the
termination of his services on account of his failure to pursue the remedy
of an appeal to the management. To raise an industrial dispute is a
legitimate mode of redress recognised under the Industrial Disputes Act,
1947, and it should not be denied to him because another remedy of an
appeal to the management is available to him. Note: -Held in Jai Bhagwan
v. Ambala Central Co-op. Bank Ltd. & Anr. 1984 I L.L.J. 52.
Question 191.
Q. Can the employer effect retrenchment without giving a notice under
section 9-A of the Act?

Answer 191.
A. By itself "retrenchment" does not involve rationalisation or reduction in
the "number" of persons employed in any occupation or process or
department as contemplated by Item 10 or Item 11 of the Fourth Schedule
of the Act. As such retrenchment of workmen by itself does not attract
section 9-A of the Act. Note:- See Dinkar Ramchandra Ambonkar v.
Photophone Ltd., 1992 II CLR 529.

Question 192.
Q. Is a casual labour a workman?

Answer 192.
A. A casual lobourer also comes within the definition of workman in
Section 2(s) of the Act. Note: Held in Management of TCPB v. Presiding
Officer, Lobour Court, 2003 II C.L.R. 205 (Ori.H.C.)

Question 193.
Q. Is a poojari or a priest a workman?

Answer 193.
A. The services of a poojari or a priest in a temple cannot be treated as
manual or clerical. He cannot be treated as a workman. Note: - Held in
Keshav Bhat v. Ram Ambalam Trust, 1989 II CLR 286.

Question 194.
Q. Is a labour law adviser a workman?

Answer 194.
A. A practising advocate, who is engaged by a Company as a labour law
adviser on a retainer basis to look after its interests before the Labour
Court, is not a workman. Note:- Held in Indian Sulphacid Industries v.
Labour Court, Rohtak, 1992 II CLR 1039.

Question 195.
 Q. Is a lady social worker a workman?

Answer 195.
A. A lady social worker whose duty is to do canvassing and promoting the
prospects of the family planning schemes is not a workman. Note:- Held in
Family Planning Association of India v. Presiding Officer, Labour Court, (3)
U.P., 1994 I CLR 465.

Question 196.
Q. What are the authorities under the Act and the duties entrusted to
them?

Answer 196.
A. The following are the principal authorities under the Act and their duties
in brief:- (1) Conciliation Officers - for holding conciliation proceedings and
promoting the settlement of disputes; (2) Labour Courts - for deciding
individual disputes relating to matters specified in Schedule II to the Act;
(3) Industrial Tribunals - for deciding mainly the collective disputes relating
to matters specified in Schedule III to the Act; (4) National Industrial
Tribunals - for deciding disputes involving questions of national importance
or affecting establishments situated in more than one state. Ss.4, 7, 7(A) &
7(B)

Question 197.
Q. What is meant by "appropriate Government"?

Answer 197.
A. Section 2(a) of the Act divides disputes into two categories. The
authority to deal with disputes specified in sub-clause (i) of section 2(a) is
vested in the Central Government and therefore the Central Government
is the appropriate or competent Government in relation to such disputes.
The authority to deal with disputes specified in sub-clause (ii) of Section
2(a) is vested in the State Governments and therefore a State Government
is the appropriate or competent Government in relation to such disputes.
S.2(a)

Question 198.
Introduction

Answer 198.
A. The equality of work is not based on the designation or the nature of
 work alone. There are several other factors, which are equally relevant.
They are qualifications, responsibilities, reliabilities, experience,
confidentiality, functional need and requirements commensurate with the
position in the hierarchy. Note: Held in Union of India v. Tarit Ranjan Das,
2004 I CLR 12 (S.C.)

Question 199.
Q. What is the object of the Industrial Disputes Act, 1947?

Answer 199.
A. The object of the Act is two fold: (1) to improve the service conditions of
industrial workers and (2) by means of that to bring about industrial peace
which would in its turn accelerate productive activity of the country
resulting in its prosperity. Note:- Observation in Hindustan Antibiotics v.
Workmen, 1967 I L.L.J. 114.

Question 200.
Q. Which establishments are covered by the Act?

Answer 200.
A. The application of the Act is so comprehensive that it covers every kind
of organised activity undertaken with the co-operation of the employees for
the production and/or distribution of goods and services calculated to
satisfy human wants and wishes, irrespective of who undertakes it, with
what motive it is undertaken or what is the number of workmen with the
help of whom it is undertaken. Note:- As held in Bangalore Water Supply
and Sewerage Board v. A. Rajappa, 1978 II L.L.J. 73 (S.C.).

Question 201.
A. The word industry has a wide import and it includes any business,
trade, undertaking, manufacture or calling of employers or any calling,
service, employment, handicraft, or industrial occupation or a vocation of a
workman. S.2(j)

Answer 201.
A. According to the "dominant nature test" for deciding whether a
department is an industry or not, sovereign functions alone qualify for
exemption, not the welfare activities or economic adventures undertaken
by the Government. Therefore, where the functions performed by the
Public Works Department (Building and Roads) of Government are not
purely sovereign, the department would have to be held as an industry.
 Note: -Held in State of Punjab v. Hari Dass & Anr., 1999 II CLR 876.

Question 202.
Q. Is the Bombay Iron and Steel Labour Board an industry?

Answer 202.
A. The Bombay Iron and Steel Labour Board is entrusted with regal
functions of the State i.e., functions of administration of law, and therefore
it is not an industry. Note:- Held in Husain Mithu Mhasvadkar v. Bombay
Iron & Steel Labour Board, 1990 II CLR 860.

Question 203.
Q. Is an educational institution an industry?

Answer 203.
A. An educational institution has to be treated as an industry but a teacher
in an educational institution cannot be considered as a workman. Note:
-Held in Miss A. Sundarambal v. Government of Goa, Daman & Diu, 1988
II CLR 316.

Question 204.
Q. Is the Central Railway Library an industry?

Answer 204.
A. The object of the Central Railway Library not being the satisfaction of
materialistic human needs, it is not an industry. Note:- Held in Suhas
Baskar Gadre v. V.V. Savjee, 1990 II CLR 102.

Question 205.
Q. Is the Judicial Department of Government an industry?

Answer 205.
A. Administration of justice being clearly the exercise of the inalienable
sovereign function of the State, the Judicial Department of Government is
not an industry. Note: - Held in Govindbhai Kanabhai Maru v. N.K. Desai,
1988 I CLR 597.

Question 206.
 Q. Is the Act applicable to a closed Industry?

Answer 206.
A. The Act is not applicable to a dispute arising after an industry has been
closed and the closure is real and bona fide. Note:- Held in Pipraich Sugar
Mills Ltd. v. P.S.M.M. Union, 1957 I L.L.J. 235.

Question 207.
Q. What is meant by "industry"?

Answer 207.
A. The word industry has a wide import and it includes any business,
trade, undertaking, manufacture or calling of employers or any calling,
service, employment, handicraft, or industrial occupation or a vocation of a
workman. S.2(j)

Question 208.
Q. Is there any time limit for making an application for modification of
standing orders?

Answer 208.
A. Subject to the provisions of Section 10(1) of the Act, an application for
modification of standing orders can be made at any time. Section 10(2) of
the Act does not contain any time limit to make a modification application.

LABOUR LAW NO.10 –The Industrial Employment

(Standing Orders)Act,1946

Question 1.
Q. Is a workman who is out of employment entitled to get a service
certificate?

Answer 1.
A. A workman who is out of employment due to his leaving service,
resignation, retirement, dismissal or discharge is entitled to get a service
certificate if he asks for one. The service certificate must be issued without
avoidable delay.

Question 2.
 Q. What is the liability of the employer in case no action is taken against a
workman suspended pending inquiry?

Answer 2.
A. If on the conclusion of the enquiry no action is taken against a workman
he shall be deemed to have been on duty during the entire period of
suspension and shall be paid full wages for the same after deducting the
subsistence allowance paid to him.

Question 3.
Q. Is it permissible under the Act to add new items to matters initially
included in the Schedule appended to the Act?

Answer 3.
A. The Act empowers the appropriate Government to add new items to
matters initially included in the Schedule. The Government can do this by
framing a rule to that effect. It is needless to say that new items must
relate to conditions of employment and that after the addition of new items
standing orders must cover matters initially included in the Schedule as
well as matters added to the Schedule. S.15(2)(a) Note:- See also Rohtak
and Hissar District Electric Supply Co. v. State of U.P. 1966 II LLJ 330.

Question 4.
Q. Can a workman recover the monetary benefits conferred on him by a
Government Resolution by filing an application under Section 33-C(2)?

Answer 4.
A. As per the settled legal position Section 33-C(2) is more comprehensive
than Section 33-C(1). Section 33-C(2) applies not only to cases of
settlement or award or cases under Chapter V-A of the Act, but to other
cases as well. By a process of computation or calculation to be applied by
it, the Labour Court has to determine the amount due. The recovery
application filed by the workman is maintainable under Section 33-C(2).
Note: Held in Lallubhai Bapujibhai Parmar v. Panchmahal District
Panchayat & Anr. 2005 III CLR 692 (Guj.H.C.)

Question 5.
Q. Can the employer have two sets of standing orders, one for the old
workmen and another for the new workmen?

Answer 5.
 Q. Can the employer have two sets of standing orders, one for the old
workmen and another for the new workmen?

Question 6.
Q. Who can be appointed as an inquiry officer?

Answer 6.
A. The employer can appoint (a) an officer employed in his industrial
establishment, (b) an officer from outside, or (c) an advocate, as an
enquiry officer. Note: M/s. Dalmia Dadri Cement Ltd. v. Shri Murari Lal
Bikaneria, 1970 II LLJ 416.

Question 7.
Q. What is the procedure for holding a domestic inquiry?

Answer 7.
A. A workman against whom an inquiry is to be held shall be given a
charge-sheet clearly stating the charge levelled against him and asking
him to submit his explanation. He may be suspended pending the inquiry.
He shall be permitted to appear himself for defending him or shall be
permitted to be defended by a workman working in the same department
as himself or by an office bearer of a trade union of which he is a member.
He shall be permitted to produce witness in his defence and cross-
examine the witness of the management. The inquiry officer shall record a
concise summary of the evidence led on either side and the plea of the
workman i.e., what he has to say about the charge. The proceedings of
the inquiry shall be conducted in English, Hindi or in the language of the
State where the industrial establishment is located according to the choice
of the workman and the person defending him. The inquiry should be
completed within a period of three months. The enquiry officer should
record his findings giving brief reasons.

Question 8.
Q. What are the various punishment that can be awarded to a workman?

Answer 8.
A. A workman who is found guilty of misconduct can be punished with any
one of the following four punishments: (1) dismissal without notice, (2)
suspension for a period of not more than four days, (3) fine, and (4)
warning or censure.
Question 9.
Q. Can an officer of a Bank covered by the Bombay Shops and
Establishments Act and drawing Rs. 4,500/- per month claim subsistence
allowance under section 10-A of the Standing Orders Act.

Answer 9.
A. The officer not being a workman within the meaning of the Standing
Orders Act cannot claim subsistence allowance at the rates prescribed
under section 10-A of the Standing Orders Act read with Rule 25 (5-A) of
the Bombay Industrial Employment (Standing Orders) Rules.

Question 10.
Q. What are the things the employer has to take into account while
awarding punishment to a workman?

Answer 10.
A. In awarding punishment the employer has to take into account: (1) the
gravity of the misconduct, (2) the previous record, if any, of the workman,
and (3) any other extenuating or aggravating circumstances that may
exist. The gravity of the misconduct means whether the misconduct is
minor or major. As regards the previous record, the punishment could be
more severe if it is bad and should be less severe if it is good. Lastly,. any
meritorious or condemnatory deeds done by the workman should also be
taken into account.

Question 11.
Q. When can any act of misconduct be treated as "habitual"?

Answer 11.
A. In order that an act of misconduct can be treated as habitual on the part
of a workman he should have committed it at least on three occasions
within a space of one year. Otherwise he cannot be charged with habitual
commission of that act of misconduct. Note 1: This definition is contained in
the explanation to Model Standing Order No. 24 contained in the Bombay
Industrial Employment (Standing Orders) Rules, 1959. Note 2: Before a
person can be said to be guilty of habitual negligence it has to be shown
that he has been guilty of negligence on several occasions so as to show
that this is his habit. The fact that the negligence continued over several
months does not make it habitual negligence. Andhra Scientific Company
Ltd. v. Seshagiri Rao, AIR 1967 SC 408.
Question 12.
Q. What is the rate of subsistence allowance payable to a workman who is
placed under suspension pending inquiry?

Answer 12.
A. The rate of subsistence allowance payable to a workman suspended
pending investigation or inquiry into complaints or charges of misconduct
against him is: (a) for the first 90 days of the suspension period 50% of
basic wages and dearness allowance (b) for the remaining days of the
suspension period 75% of basic wages and dearness allowance
Subsistence allowance No subsistence allowance is payable to a
suspended workman if he takes up any employment during the period of
suspension. Note:- In the State of Maharashtra the rate of subsistence
allowance for the period of suspension beyond 180 days is 100% of basic
wages plus dearness allowance. S.10(A)

Question 13.
Q. What is the machinery provided under the Act for resolving a dispute
between the employer and the workmen about the application or
interpretation of a standing order?

Answer 13.
A. If any dispute arises between the employer and the workman about the
application or interpretation of a standing order, either of them can
approach a Labour Court specified for the purpose for deciding the
dispute. The decision of the Labour Court will be final and binding on the
employer and the workman.S.13(A)

Question 14.
Q. Are Industrial establishments of the Government exempted from the
provisions of the Act?

Answer 14.
A. Once the Central Government or a State Government notifies that
Service Rules framed by it will apply to any of its industrial establishment,
the provisions to the Act will not apply to that establishment . S.13(B)

Question 15.
Q. What are the obligations of the Disciplinary Authority in case he differs
with the finding of the Enquiry Officer exonerating a delinquent employee
 and proposes to hold him guilty and punish him?

Answer 15.
A. The Supreme Court has succinctly summarised the obligations as
follows. In case the Disciplinary Authority differs with the view taken by the
Enquiry Officer, he is bound to give a notice setting out his tentative
conclusions to the delinquent employee. The report of the Enquiry Officer
containing its finding will have to be conveyed and the delinquent
employee will have an opportunity to persuade the Disciplinary Authority to
accept the favourable conclusion of the Enquiry Officer. It is only after
hearing the delinquent employee that the Disciplinary Authority would at all
arrive at a final finding of guilt. Thereafter, the delinquent employee would
again have to be served with a notice relating to the punishment proposed.
Note: See Lav Nigam v. Chairman and M.D., ITI Ltd. & Anr., 2007 I CLR
1078 (S.C.).

Question 16.
Q. Is it necessary to stay the departmental proceedings if a criminal case
based on the same set of facts and allegations as those involved in the
departmental proceedings is pending against the delinquent?

Answer 16.
A. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. 1999 I CLR 1094,
the Supreme Court has held as follows. There is no bar in conducting
departmental proceedings and proceedings in a criminal case
simultaneously. If the departmental proceedings and the criminal case are
based on identical and similar set of facts and the charge in the criminal
case against the delinquent employee is of a grave nature which involves
complicated questions of law and fact, it would be desirable to stay the
departmental proceedings till the conclusion of the criminal case. If the
criminal case does not proceed or its disposal is being unduly delayed, the
departmental proceedings, even if they were stayed on account of the
pendency of the criminal case, can be resumed and proceeded with so as
to conclude them at an early date.

Question 17.
Q. What exactly is the meaning and ambit of section 13-A of the Act?

Answer 17.
A. Section 13-A does not create a forum for adjudication of industrial
disputes involving the application and/or interpretation of standing orders.
The limited purpose of section 13-A is to provide a forum for determination
of any question arising "as to the application or interpretation" of the
 certified Standing Orders as such, in case either the employer or the
employee(s) entertain a doubt as to their meaning or their applicability.
Note:- Held in Rajasthan State Road Transport Corporation & Anr. Etc.
Etc. v. Krishna Kant Etc. Etc., 1995 II CLR 180.

Question 18.
Q. Can the employer reduce subsistence allowance on the ground that the
employee has obtained stay of the domestic enquiry?

Answer 18.
A. When an employee approaches a competent court bona fide to protect
himself from prejudice likely to be caused by continuing proceedings
simultaneously in domestic enquiry as also in a criminal case grounded on
the same set of facts and succeeds in getting an order of stay of the
domestic enquiry till disposal of the criminal case, it cannot be said that
delay on that account in completion of the disciplinary proceedings is
directly attributable to the conduct of such employee. The order reducing
75% subsistence allowance to 50% cannot be sustained. Note: Held in
B.D. Shetty v. CEAT Ltd., 2002 I C.L.R. 69 (S.C.)

Question 19.
Q. What is the procedure for grant of leave to a workman?

Answer 19.
A. A workman who desires to obtain leave should make a written
application to the Manager. If possible he should make the application at
least seven days in advance. The Manager should inform the workman
about the grant or refusal of leave within three days. If leave is granted a
leave pass should be issued to the workman. If leave is refused reasons
for the refusal should be recorded. If workman wants extension of leave he
should make a written application to the Manager. The Manager should
send a written reply to the workman about the grant or refusal of
extension. If the workman does not resume duty within eight days of the
expiry of leave, he would lose his lien on his appointment. Thereafter if he
reports for duty within 15 days of the expiry of leave, he should be offered
a badli post if available, otherwise he should be kept on the waiting list of
vacancies. Note: - This procedure is laid down in Model Standing Order
No.13 contained in the Bombay Industrial Employment (Standing Orders)
Rules, 1949. The procedure is more or less the same elsewhere.

Question 20.
 Q. Is the Labour Court competent to accord any interim relief while
considering the question as to the application or interpretation of a
standing order under section 13-A of the Act?

Answer 20.
A. Looking into the language of section 13-A, it is not possible to spell out
any power of the Labour Court to accord any interim relief while
considering the question as to the application or interpretation of a
standing order under the said section. Note:- Held in Amini Jonh c/o. Rajya
General Kamgar Mandal v. Barofarn Chemicals Ltd., 1992 II CLR 555.

Question 21.
What are the offences and punishment for them under the Act?

Answer 21.
A. The offences under the Act and the punishment for them are as under:-
(a) If any employer does not submit draft Standing Orders as required or
makes any change in the Standing Orders without following the proper
procedure, he would be punished with fine upto Rs. 5,000. If he continues
the offence the fine would be Rs. 200 per day. (b) If any employer does any
act in contravention of the certified Standing Orders, he would be punished
with fine upto Rs. 100. If he continues the offence, the fine would be Rs.
25 per day. S.13 Note: In the State of Maharashtra the following additional
provisions are there. (1) If any employer contravenes the provision of the
Act or of the rules made thereunder, he would be punished with fine upto
Rs. 100. If he continues the offence, the fine would be Rs. 25 per day. (2)
If any employer is already punished for any offence under the Act and if he
again contravenes the provision of the Act or of the rules made thereunder,
he would be punished with fine upto Rs. 200.

Question 22.
Q. Are the terms of Standing Orders binding on the employer and the
workmen?

Answer 22.
A. Certified Standing Orders framed in accordance with the Industrial
Employment (Standing Orders) Act have the force of law like any other
statutory instrument and hence they are binding on the employer and the
workmen. Note: - Held in Biswanath Das v. Ramesh Chandra Patnaik,
1980 I LLJ 35.
Question 23.
Q. What exactly is the nature and character of the certified Standing
Orders?

Answer 23.
A. The certified Standing Orders framed under and in accordance with the
Act are statutorily imposed conditions of service and are binding both upon
the employers and employees, though they do not amount to "statutory
provisions". Note:- Held in Rajasthan State Road Transport Corporation &
Anr. Etc. Etc. v. Krishna Kant Etc. Etc. 1995 II CLR 180.

Question 24.
Q. Can any employer frame a standing order which is not corresponding to
any standing order in the Model Standing Orders?

Answer 24.
A. If a standing order falls within the Schedule to the Act it would not be
invalid just because there is no corresponding standing order in the Model
Standing Orders. A standing order of a Company making money-lending
within the Company's premises a misconduct is, therefore, valid though
there is no corresponding standing order in the Model Standing Orders.
Note:- Held in S.K. Seshadri v. H.A.L. & Ors. 1983 II LLJ 410

Question 25.
Q. Can a Standing Order providing for representation of a workman in the
Departmental Enquiry only by his co-workman, despite the fact that the
Model Standing Orders provided for such representation by an office
bearer of a Trade Union of which the workman is a member, be said to be
not in consonance with Model Standing Orders?

Answer 25.
A. The Supreme Court has held that such a Standing Order cannot be said
either to be not in consonance with Model Standing Orders or
unreasonable or unfair. Note:- Held in Bharat Petroleum Corporation Ltd. v.
Maharashtra General Kamgar Union & Ors., 1999 I CLR 518.

Question 26.
Q. Where the Standing Orders of a Company provide for probation period
of 3 months, can a Company appoint any workmen on probation for 6
months?
Answer 26.
A. The provisions of Standing Orders prevail over the terms of contract of
service. Hence a workman appointed by the Company on probation of 6
months would be deemed to be permanent on completion of 3 months'
service. Note:- Held in U.P.Co-operative Spinning Mills Ltd. v. State of U.P.
1978 L.I.C. 1137.

Question 27.
Q. Can a workman be penalised for a misconduct no where to be found in
the Standing Orders?

Answer 27.
A. No penalty can be imposed on a workman for a misconduct no where
found enumerated in the relevant Standing Orders. Note:- Held in Glaxo
Laboratories (I) Ltd. v. Labour Court, Meerut & Ors. 1984 I LLJ 16.

Question 28.
Q. Is the doctrine of "proof beyond doubt" applicable to domestic
enquiries?

Answer 28.
A. The domestic enquiries are not a criminal trial. The doctrine of "proof
beyond doubt" has no application. Preponderance of probabilities and
some material on record would be necessary to reach a conclusion
whether or not the delinquent has committed misconduct. Note:- Held in
High Court of Judicature of Bombay v. Udaysing Ganpatrao, 1997 I CLR
1122 S.C.

Question 29.
Q. Can a workman, who is kept under suspension, be compelled to be
present at the factory to sign the attendance register every day for the
purpose of payment of subsistence allowance?

Answer 29.
A. Insisting on the workman being present and signing the attendance
register every day appears to be unreasonable. The condition requiring
daily attendance is set aside. Note: Held in K.S. Periyaswamy v. Bharath
Earth Movers Ltd. 2006 I CLR 490 (Karn.H.C.)
Question 31.
Q. Can a workman be removed from service for contracting bigamous
marriage (i.e., contracting second marriage while his first wife was alive)
when bigamy is not enumerated as misconduct in the Standing Orders
applicable to him?

Answer 31.
A. No disciplinary action can be taken for contracting bigamous marriage
when bigamy is not enumerated as misconduct under the Standing Orders
applicable to him. Removal of the workman from service for such act is
illegal. Note: Held in Manager, Public and Industrial Relations, Nuclear
Power Corporation v. P. Chinnasamy & Anr. 2006 III CLR 387 (Mad.H.C.)

Question 32.
Q. Can any employer frame a standing order in respect of a subject matter
which is not mentioned in the Scheduled appended to the Act.

Answer 32.
A. The employer has no right to frame a standing order in respect of any
subject matter which is not mentioned in the Schedule appended to the
Act. Note:- When a matter relating to transfer of employment is not
mentioned in the Schedule to the Act, the employer has no right to frame a
standing order enabling him to transfer his employees and the Certifying
Officer has no jurisdiction to certify the same. The certified standing order
concerning transfer will be invalid. The consent of the employees to such
standing order would not make any difference. Air Gases Mazdoor Sangh,
Varanasi v. Indian Air Gases Ltd., 1977 II LLJ 503.

Question 33.
Q. Is the employer required to display the standing orders in the
establishment?

Answer 33.
A. The employer must prominently display the text of the standing orders
in English as well as in the language understood by the majority of his
workmen, on special board, at or near the main entrance of the
 establishment and also in all departments of the establishment. S.9

Question 34.
Q. What is meant by "amendments" to standing orders?

Answer 34.
A. In the State of Maharashtra, model standing orders are made applicable
to every industrial establishment to which the Act applies. It is, therefore,
optional for an employer (or a workman) to remain content with the model
standing orders or, if he desires any changes in the model standing orders,
to submit to the Certifying Officer draft amendments to them for adoption
in his establishment. It is to be noted that by the draft amendments the
employer (or the work-man) can seek any alterations, variations or
additions to the model standing orders; but he cannot seek any deletion or
omission of any rule in the model standing orders. Ss.2(1-a), 2-A and 3 in
the State of Maharashtra.

Question 35.
Q. What is the object of the Industrial Employment (Standing Orders) Act,
1946?

Answer 35.
A. The object of the Act is to lay down with sufficient precision uniform
conditions of service in industrial establishments so that the employees
and the employers know in a clear and unambiguous language their
respective rights and obligations.

Question 36.
Q. Which establishments are covered by the Act?

Answer 36.
A. The Act is applicable to every industrial establishment in which one
hundred or more workmen are employed. The Government can, however,
apply the provisions of the Act to any industrial establishment employing
less than one hundred persons. S.1(3) Note: - In the State of Maharashtra
the Act applies to every industrial establishment in which fifty or more
workmen are employed and also every establishment covered by the
Bombay Shops and Establishments Act, 1948.

Question 37.
 Introduction of the S.O. .Act

Answer 37.
The purpose of the Industrial Employment (Standing Orders) Act, 1946, is
to standardise the service conditions of workmen employed in industrial
establishments. Prior to the enactment of the Act the employer was free to
fix the service conditions of his workmen according to his own will. As a
result of this there existed different sets of service conditions in different
industrial establishments. The Act has taken away the freedom of the
employer to unilaterally fix the service conditions of his workmen. It has
replaced contractual terms of service by statutory terms of service. As
observed by the Supreme Court of India in Glaxo Laboratories' case (1984
I LLJ 16), the Act is enacted "to compel by statute the employer to
prescribe minimum conditions of service subject to which employment is
given". It is to be noted that the Act requires the employers not only to
prescribe the conditions of employment under them but also to make the
said conditions known to workmen employed by them.

Question 38.
Q. What is meant by "Standing Orders"?

Answer 38.
A. "Standing Orders" means the rules of conduct for workmen employed in
industrial establishment relating to matters like attendance, leave,
misconduct, etc., enumerated in the Schedule appended to the Act. S.2(g)

Question 39.
Q. What is the date from which standing orders come into operation?

Answer 39.
A. Standing orders come into operation on the expiry of thirty days from
the date on which authenticated copies there of are sent by the Certifying
Officer to the employer. S.7

Question 40.
Q. In what circumstances the Model Standing Orders are applicable to an
industrial establishment?

Answer 40.
A. The Model Standing Orders are temporarily applicable to an industrial
establishment for the period commencing on the date on which the Act
 becomes applicable to the industrial establishment and ending with the
date on which standing orders certified under the Act come into operation
in the industrial establishment. S.12(A) Note:- In industrial establishments
in respect of which the appropriate Government is the Government of
Maharashtra, the Model Standing Orders are applicable from the date
appointed by the Government in this behalf.

Question 41.
Q. What is the procedure for modification of standing orders?

Answer 41.
A. Standing orders finally certified are not allowed to be modified for six
months from the date on which the standing orders or the last
modifications thereof came into operation. An application for modification
of the standing orders can be made thereafter by an employer or workmen
to the Certifying Officer. While dealing with such application the Certifying
Officer will follow the same procedure as that prescribed for certification of
standing orders. S.10

Question 42.
Q. Is it correct to say that modification of a standing order means only a
minor change in such order?

Answer 42.
A. Modification includes in relation to a standing order, any alteration,
variations, addition or deletion in, or to, such order. It is not correct to say
that modification means only a minor change. S.2(ef)

Question 43.
Q. What will be the conditions of service of workmen in an industrial
establishment to which the Act is not applicable?

Answer 43.
A. The terms of service in such establishment will be governed according
to agreement direct or implied or by practice prevailing in similar
establishment. Note:- Held in Melabati Tea Estate v. Bhakta Munda, AIR
1959 Tripura 8.

Question 44.
Q. What is the procedure which the employer has to follow for certification
 of standing orders?

Answer 44.
A. The procedure for certification of Standing Orders is as follows:- (a) The
employer has to prepare a draft of the standing orders which he proposes
to adopt for his industrial establishment. The draft must make provision for
every applicable matter specified in the Schedule appended to the Act. It
must be in conformity with the provisions of the Act and, as far as is
practicable, also in conformity with the prescribed Model Standing Orders
if any. (b) The employer has then to submit the draft Standing Orders
prepared by him to the Certifying Officer for adoption in his industrial
establishment, which he has to do within six months from the date on
which the Act becomes applicable to his industrial establishment. (c) After
receiving the draft Standing Orders the Certifying Officer has to call and
hear the employer and the workmen concerned and decide whether or not
any change is necessary in the draft to make it Certifiable under the Act.
The Certifying Officer has then to certify the draft standing orders after
passing a necessary order. (d) If the employer is aggrieved by the order of
the Certifying Officer, he has to prefer an appeal to the Appellate Authority,
for the necessary relief. The order of the Appellate Authority will be final.
Ss.3 to 6 Note:- In the State of Maharashtra there is a slight difference in
the procedure.

Question 45.
Q. Can an appeal under section 6 of the Act be preferred by registered
post?

Answer 45.
A. There is no prohibition under the Act for preferring appeals under
section 6 of the Act by registered post. A person desiring to prefer an
appeal under the said section can, therefore, take the benefit of section 27
of the General Clauses Act and forward the memorandum of appeal by
registered post. Note:- See B.H.E.L. Employees' Association v. Chief
Labour Commissioner, 1986 I CLR 451.

Question 46.
Q. Does a circular restraining the employees from contesting municipal
elections amounts to amendment of Standing Orders?

Answer 46.
A. The right of workman to contest local body election is not a service
condition which can be enumerated in Standing Orders. Therefore
imposing restriction from participating in the election in the circular will not
 amount to amending Standing Orders. Note: Held in Barigala Sailu v.
Singareni Collieries Co. Ltd., 2002 LIC 2848 (A.P.H.C.).

Question 47.
Q. If a Government establishment itself notifies its Service Rules, would it
be sufficient for the purpose of section 13-B?

Answer 47.
A. One of the important requirements of section 13-B is that the notification
must be issued by the appropriate Government. A notification issued by a
Government establishment itself cannot be regarded as having been
issued under section 13-B. Note: Held in Air India v. Union of India, 1991
(78) F.J.R. 137.

Question 48.
Q. What is meant by "Model Standing Orders"?

Answer 48.
A. "Model Standing Orders" means the standing orders prescribed by the
Central Government or a State Government for the purposes of the Act to
serve as a model. They provide a pattern of the rules of conduct relating to
the various matters specified in the Schedule appended to the Act.
Ss.2(ee) & 15

Question 49.
Q. What is the scope of the power of the Certifying Officer under Section 5
of the Act?

Answer 49.
A. Under Section 5 of the Act the Certifying Officer has jurisdiction to
adjudicate upon and decide the question relating to fairness and
reasonableness of any provision of the draft Standing Orders. Note:- Held
in Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar
Union & Ors., 1999 I CLR 518.

Question 50.
Q. Can the Appellate Authority remand a matter to the certifying Officer for
a fresh decision?

Answer 50.
 A. Under Section 6(1) of the Act the Appellate Authority has power to
confirm the amendments either in the form certified by the Certifying
Officer or after further modifying the same as the Appellate Authority thinks
necessary. Power of remand is not available to the Appellate Authority.
Note: Held in Management of Manipal Power Press v. Sadananda
Devadiga & Ors., 2004 II C.L.R. 920 (Karn.H.C.)

Question 51.
Q. Can a workman file an appeal against the order of the certifying officer?

Answer 51.
A. If any workman or trade union is aggrieved by the order of the Certifying
Officer, he or it also can file an appeal to the appellate authority. S.6

LABOUR LAW NO.11 –The Inter-State Migrant

Workmen(Regulation of Employment & Conditions of
Service)Act,1979

Question 1.
Q. What are the special duties imposed by the Act on a contractor?

Answer 1.
A. A contractor is required- (a) to furnish the prescribed particulars
regarding the recruitment and employment of an inter-State migrant
workman to the specified authority in the State from which he is recruited
and in the State in which he is employed; (b) to issue to every inter-State
migrant workman a pass book containing the specified particulars of his
employment; and (c) to furnish in respect of every inter-state migrant
workman who ceases to be employed, a return in the prescribed form to
the specified authority in the State from which he is recruited and in the
State in which he is employed, which shall include a declaration that all the
wages and other dues payable to the workman and the fare for the return
journey back to his State have been paid. S.12

Question 2.
Q. What is the effect of not obtaining registration under section 4 or of
revocation of registration under section 5?

Answer 2.
 A. No principal employer of an establishment to which the Act applies can
employ inter-State Migrant workmen in the establishment unless a
certificate of registration in respect of such establishment issued under the
Act is in force. S.6

Question 3.
Q. What is the procedure for obtaining a licence under the Act?

Answer 3.
A. The procedure for obtaining a licence is as follows: (a) a contractor to
whom the Act applies has to make an application in the prescribed form
accompanied by prescribed fees and security deposit to the Licensing
Officer for the grant of a licence under the Act; (b) the Licensing Officer
after making the necessary investigation will issue a licence in the
prescribed form containing the conditions subject to which the licence is
granted, (c) the licence will be valid for the period specified therein and will
have to be renewed from time to time. S.9

Question 4.
Q. Is it permissible under the Act to exempt any establishment or
contractor or inter-State migrant workmen from its provisions?

Answer 4.
A. The Act permits the Government, in special cases, to exempt any
establishment or any contractor or any inter-State migrant workmen in
such establishment from the application of all or any of the provisions of
the Act or the rules made thereunder for a specified period and subject to
specified conditions and restrictions.

Question 5.
Q. What are the powers of the Inspectors appointed under the Act?

Answer 5.
A. An Inspector appointed under the Act has power:- (a) to enter any
premises or place where any inter-State migrant workmen are employed,
for the purpose of examining any register, record or notices; (b) to examine
any person found in any such premises or place; (c) to require any person
to give information regarding the names and address of the persons to, for
and from whom the work is given out or received and regarding the
payments to be made for the work; to seize or take copies of any register,
record of wages or notices. S.20
Question 6.
Q. What are the circumstances in which a licence can be revoked or
suspended?

Answer 6.
A. The Licensing Officer can revoke or suspend a licence or forfeit the
security deposit if he is satisfied:- (i) that the licence has been obtained by
misrepresentation or suppression of any material fact, or (ii) that the holder
of the licence has failed to comply with the conditions specified therein, or
(iii) that the holder of the licence has contravened any provision of the Act
or the rules made thereunder. S.10

Question 7.
Introduction

Answer 7.
Inter-State Migrant Labour is a kind of contract labour. But the Contract
Labour Act, 1970 could not afford adequate protection to it. The peculiar
problems of these workmen needed a special solution. The harder
conditions under which these workmen were made to work needed more
stringent measures than those available under the Contract Labour Act,
1970. The Parliament, therefore, enacted a special statute called the Inter-
State Migrant Workmen Act, 1979 to properly regulate the employment of
these workmen and to provide for appropriate conditions of service for
them.

Question 8.
Q. Which establishments or contractors are covered by the Act?

Answer 8.
A. The Act is applicable- (i) to every establishment in which five or more
Inter- State migrant workmen are employed; (ii) to every contractor who
employs five or more Inter- State workmen. S.1(4)

Question 9.
Q. What is the procedure for getting an establishment registered under the
Act?

Answer 9.
 A. The procedure for the registration of an establishment is as follows: (a)
every principal employer of an establishment to which the Act applies has
to make an application in the prescribed form accompanied by prescribed
fees to the Registering Officer for the registration of the establishment
under the Act; (b) if the application is complete in all respects the
Registering Officer will register the establishment and issue a certificate of
registration in the prescribed form to the principal employer. S.4

Question 10.
Q. What are the circumstances in which the registration of an
establishment can be revoked?

Answer 10.
A. The Registering Officer can revoke the registration of any establishment
if he is satisfied- (i) that the registration has been obtained by mis-
representation or suppression of any material fact, or (ii) that the
registration has become useless or ineffective for any other reason. S.5

Question 11.
Q. What is the effect of not having a licence under the Act?

Answer 11.
A. No contractor to whom the Act applies shall (i) recruit any person in a
State for employing him in another State, or (ii) employs workmen in any
State persons from another State, except under and in accordance with a
licence issued by the Licensing Officer appointed by the appropriate
Government. S.8

Question 12.
Q. What is the special provision of the Act regarding the date of
commencement of employment of the inter-State Migrant Workman?

Answer 12.
A. For the purposes of the six enactments specified in the Schedule
appended to the Act an inter-State migrant workman shall be deemed to
be employed and actually worked in the establishment in connection with
the work of which he is employed, from the very date of his retirement.
S.21

Question 13.
 Q. Is a contractor required to pay any special allowances to an inter-State
migrant workman?

Answer 13.
A. A contractor is required to pay to an inter-State migrant workman- (i) at
the time of recruitment, a displacement allowance equal to 50 per cent of
his monthly wages or Rs.75, whichever is higher; and (ii) a journey
allowance of a sum not less than the fare from the place of his residence
in his State to the place of his work in the other State, both for the outward
and returned journeys. A contractor is also required to pay to such
workman wages for the period of such journeys as if the workman were on
duty. Ss.14 & 15

Question 14.
Q. What are the facilities to be provided by a contractor for the
maintenance of health and welfare of migrant workmen?

Answer 14.
A. A contractor is required to provide to the migrant workmen (a) drinking
water, latrines, urinals, washing facilities, restrooms, canteens and
creches; (b) suitable residential accommodation; (c) free medical facilities;
and (d) protective clothing. The contractor has to do all these things in
conformity with the relevant provisions of the rules made under the Act.
S.16

Question 15.
Q. What is the liability of the principal employer for the provision of the
facilities or payment of wages or displacement allowance or journey
allowance to migrant workmen?

Answer 15.
A. If the contractor fails to provide the facilities or to make payment of
wages or displacement allowance or journey allowance, the principal
employer will be liable to provide the facilities or to make payment of
wages or displacement allowance or journey allowance to the migrant
workmen. The principal employer can recover such expenses from the
contractor. Ss.17 & 18

Question 16.
Q. What will be the effect of other Acts or agreements which are
inconsistent with this Act?
Answer 16.
A. If the provisions of any law, agreement, contract of service or standing
orders are less favourable than those of the Inter- State Migrant Workmen
Act, they will be superseded by the provisions of the Inter-State Migrant
Workmen Act. But if such provisions are more favourable than those of the
Inter-State Migrant Workmen Act, the former will prevail over the latter.

Question 17.
Q. What type of record is required to be maintained under the Act by a
principal employer or contractor?

Answer 17.
A. It is a duty of every principal employer and every contractor to maintain
records giving the particulars of the inter-State migrant workmen
employed, the nature of work performed by such workmen, the rates of
wages paid to the workmen, etc. as per the rules framed under the Act. It
is also their duty to exhibit in the premises of the establishment notices
containing the particulars about the hours of work, nature of duty, etc. as
per the rules framed under the Act. S.23

Question 18.
Q. Is it permissible under the Act to exempt any establishment or
contractor or inter-State migrant workmen from its provisions?

Answer 18.
A. The Act permits the Government, in special cases, to exempt any
establishment or any contractor or any inter-State migrant workmen in
such establishment from the application of all or any of the provisions of
the Act or the rules made thereunder for a specified period and subject to
specified conditions and restrictions. S.31

LABOUR LAW NO.12 –The Labour Laws(Exemption

from Furnishing Returns & Maintaining Registers by
certain Establishment)Act,1988
Question 1.
Q. What is the meaning of "very small establishment"?

Answer 1.
 A. A very small establishment has been defined as an establishment
employing not more than 9 persons. S.2(f)

Question 2.
Q. Is the Act applicable to daily rated employees?

Answer 2.
A. The Act is expected to fix the minimum wages in respect of employees
whether they are casual, daily rated, temporary or permanent. The Act is
applicable to daily rates employees also. Note:- Held in Sri Champawati
Yantramag Audyogick Sahkari Sanstha Maryadit, Beed, v. State of
Maharashtra, 1993 II L.L.N. 843.

Question 3.
Q.3. What is the meaning of "small establishments"?

Answer 3.
A. A small establishment has been defined as an establishment employing
not less than 10 and not more than 19 persons. S.2(e)

Question 4.
Q. What will be the effect of the exemption on the penal liability of the
employer under the said nine enactments for not furnishing returns or not
maintaining registers thereunder?

Answer 4.
A. Where an employer in relation to a small establishment or very small
establishment furnishes returns or maintains the registers as provided
under this Act, he shall not be rendered liable to any penalty for his failure
to furnish any return or to maintain any register under any of the said nine
enactments. S.4(3)

Question 5.
Q.2. Which establishments have been given the exemption?

Answer 5.
A. The exemption has been given to "small establishments" and "very
small establishments". (S.4(1))
Question 6.
Q.1. Which enactments have been selected for giving the exemption
contemplated under the Act?

Answer 6.
A. Exemption from furnishing returns and maintaining registers has been
been given in relation to the following nine enactments;- 1. The Payment of
Wages Act, 1936. 2. The Weekly Holidays Act, 1942. 3. The Minimum
Wages Act, 1948. 4. The Factories Act, 1948. 5. The Plantations Labour
Act, 1951. 6. The Working Journalists and other Newspaper Employees
(Conditions of Service) and Miscellaneous Provisions Act, 1955. 7. The
Contract Labour (Regulation and Abolition) Act, 1970. 8. The Sales
Promotion Employees (Conditions of Service) Act, 1976, and 9. The Equal
Remuneration Act, 1976. (S.2(d))

Question 7.
Introduction

Answer 7.
Various Labour Laws require the employer to furnish many returns and
maintain many registers. The formats of these returns and registers are
neither small nor simple. An employer having a small establishment is
over-worked and perplexed while filling up these formats. There had been
a persistent demand for the simplication of the form and reduction in the
number of these returns and registers. This Act exempts `small
establishments' and `very small establishments' from furnishing returns
and maintaining registers under certain enactments on the conditions that
such establishments shall furnish one Core Return and maintain two or
three simple registers in lieu of various regular returns and registers.

Question 8.
Q. What is the nature of the exemption?

Answer 8.
A. On and from the commencement of the Act, an employer in relation to
any small establishment or very small establishment need not furnish the
returns or maintain the registers required to be furnished or maintained
under the said nine enactments. But such employer will have to- (a)
furnish, in lieu of such returns, a Core Return in Form A annexed to the
Act; (b) maintain, in lieu of such registers, (i) registers in Form B, Form C
and Form D annexed to the Act, in the case of small establishments; and
(ii) registers in Form D and Form E annexed to the Act, in the case of very
 small establishments. S.4(1)

LABOUR LAW NO.12 –The Maharashtra Mathadi,Hamal

and Other Manual Workers(Regulation of Employment
and Welfare)Act,1969
Question 1.
Q. What is the provision of the Act for trying the offences under the Act?

Answer 1.
A. An offence under the Act shall be tried by the Labour Court constituted
under the Bombay Industrial Relations Act, 1946 within the local limits of
whose jurisdiction the offence was committed; and an appeal against the
judgment of the Labour Court shall be decided by the Industrial Court
constituted under the said Act. Every appeal shall be made within thirty
days from the date of the judgment. Ss.17 and 17-C

Question 2.
Q. Is it permissible to amend the schedule of employments appended to
the Act?

Answer 2.
A. Section 26 of the Act empowers the State Government to modify any
item of the schedule or add to the schedule any employment in respect of
which it is of opinion that the provisions of the Act should apply.

Question 3.
Q. Is the Payment of Wages Act, 1936, applicable to workers covered by
the Mathadi Act?

Answer 3.
A. In the case of Payment of Wages Act, the State Government is
empowered to direct that all or any of the provisions of the said Act shall
apply to all or any class of registered unprotected workers employed in any
scheduled employment to which the Mathadi Act applies. S.19

Question 4.
Q. Is it permissible under the Act to exempt workers employed in any
scheduled employment from the provisions of the Act?
Answer 4.
A. The State Government is empowered to exempt from the operation of all
or any of the provisions of the Act or any scheme made thereunder, all or
any class of unprotected workers employed in any scheduled employment
if in the opinion of the State Government all such unprotected workers are
in the enjoyment of benefits which are not less favourable to such
unprotected workers than the benefits provided by or under the Act or any
scheme framed thereunder. S.22

Question 5.
Q. Is the Employees’ Compensation Act, 1923, applicable to workers
covered by the Mathadi Act?

Answer 5.
A. According to Section 18 of the Mathadi Act, the provisions of the
Employees’ Compensation Act shall apply to registered unprotected
workers employed in any scheduled employment to which the Mathadi Act
applies.

Question 6.
Q. Is there any restriction on the working of children in the scheduled
employment?

Answer 6.
A. No person who has not completed fourteen years of age shall be
required or allowed to work in any scheduled employment. S.16

Question 7.
Q. Can a registered unprotected worker relinquish any right conferred by
the Act?

Answer 7.
A. Any contract or agreement whereby a registered unprotected worker
relinquishes any right conferred by the Act shall be void and of no effect.
S.25

Question 8.
Q. What is the object of the Mathadi Act?
Answer 8.
Unprotected manual workers such as Mathadi, Hamal etc., are not the
regular employees of any factory or establishment. They work under a
contractor, an agent, a mukadam or a toliwalla who supplies them to the
needy employers on contract basis. They often work in groups or tollis but
are unorganised. In these circuumstances the terms and conditions of their
work are bound to be unsatisfactory. It is to make better provision for the
terms and conditions of employment of such workes that this Act is
enacted. A. The main object of the Act is to regulate the employment of
unprotected manual workers such as, Mathadi, Hamal etc. employed in
certain employments. The Act seeks to make provision for ensuring an
adequate supply to and full and proper utilisation of, such workers in such
employments to prevent avoidable unemployment.

Question 9.
Q. Is the Maternity Benefit Act, 1961, applicable to women workers covered
by the Mathadi Act?

Answer 9.
A. In the case of Maternity Benefit Act also, the State Government is
empowered to direct that all or any of the provisions of the said Act shall
apply to registered unprotected women workers employed in any
scheduled employment to which the Mathadi Act applies. S.20

Question 10.
Q. What is the machinery provided under the Act for achieving the object of
the Act?

Answer 10.
A. The State Government has to establish a Board, a body corporate, for a
scheduled employment in an area. The Board shall consist of members
nominated by the State Government representing the employers, the
unprotected workers, and the State Government. The State Government
has also to make a scheme for the purpose of ensuring an adequate and
full and proper utilisation of unprotected workers in scheduled
employments, and generally for making better provision for the terms and
conditions of employment of such workers. The scheme shall also provide
for the registration of employers and unprotected workers in a scheduled
employment and provide for the terms and conditions of work of registered
unprotected workers. Section 3(2) of the Act enumerates in detail matters
to be provided for in a scheme. The scheme shall be administered by the
Board and the Board shall exercise such powers and perform such
functions as may be conferred on it by the scheme. Ss.3 & 6
Question 11.
Q. Are the rights of registered protected workers under other laws affected
by the enactment of the Mathadi Act?

Answer 11.
A. Section 21 provides that nothing contained in the Mathadi Act shall
affect any rights or privileges, which any registered unprotected worker
employed in any scheduled employment is entitled to under any other law,
contract, custom or usage applicable to such workers, if such rights or
privileges are more favourable to him than those to which he would be
entitled under the Mathadi Act and the scheme.

Question 12.
Q. To which employments the Act Applies?

Answer 12.
A. The Act applies to the employments specified in the Schedule appended
to the Act. Section 2(9) makes it clear that it applies to any process or
branch of work forming part of such employment. S.1 & 2(9)

Question 13.
Q. If a dispute arises as to whether an employer is liable to get registered
under the Act, what is the provision for resolving such dispute?

Answer 13.
A. According to Section 5 of the Act, if any question arises whether any
scheme applies to any class of unprotected workers or employers, the
matter shall be referred to the State Government. Accordingly, in Precious
Gas Service & Anr. v. Chairman, Goods Transport Labour Board,2003 I
CLR 785, the Bombay High Court has decided that such question shall be
referred to the State Government for decision.

Question 14.
Q. Are the orders of the Registering Officer and the Licensing Officer
appealable?

Answer 14.
A. Any person aggrieved by the order of the Registering Officer or the
Licensing Officer can prefer an appeal to the Appellate Officer. Such
 appeal must be filed within 30 days from the date of communication of the
order. S.11

LABOUR LAW NO.13 –The Maharashtra Industrial

Relations Act,1946
Question 1.
Q. What is the punishment for declaring an illegal lock out?

Answer 1.
A. If any employer effects an illegal lock-out he would be punished with fine
upto Rs.2,500. If he continues the illegal lock-out the fine would be
Rs.5,000 per day. S.102.

Question 2.
Q. What acts constitute the offence of contempt of the Industrial Court?

Answer 2.
A. If any person commits any act or publishes any writing which is
intended.- (a) to improperly influence the Industrial Court, or (b) to bring
that Court or a Judge thereof into disrepute or contempt, or (c) to interfere
with the lawful process of that Court, (d) he is deemed to be guilty of
contempt of that Court. S.119-B Note: The High Court is the punishing
authority in respect of the offence of such contempt.

Question 3.
Q. What acts constitute the offence of victimization and what is the
punishment for the offence?

Answer 3.
A. Section 101 of the Act enumerates certain acts on the part of an
employer which are treated as acts of victimization. The section also
makes the commission of these acts punishable with fine which may
extend to Rs.5,000. S.101.

Question 4.
Q. What is the binding effect of an agreement, settlement or award?

Answer 4.
 A. An agreement, settlement or award is binding on: (a) all persons who
are parties thereto; (b) the successors in interest, heirs or assigns of the
employer, in respect of his undertaking; (c) when a registered union is a
party thereto, all employees in the industry whose representative the union
is. S.114.

Question 5.
Q. For how long an agreement, settlement or award remains in force?

Answer 5.
A. (a) An agreement, settlement or award remains in force till the date
specified therein. (b) If no such date is specified, then it remains in force for
a period of 3 months from the date on which it comes into operation. (c) An
agreement, settlement or award can be terminated after certain period by a
party by giving notice to the other party. S.116

Question 6.
Q. What is the significance of the Schedules appended to the Act?

Answer 6.
A. The three schedules appended to the Act form an important part of the
Act. All conceivable industrial matters have been included in these three
schedules. The division of these industrial matters into three schedules is
done broadly on the following basis. The first schedule contains items
relating to the day-to-day discipline of the employees. The second
schedule contains items which form the subject-matter of collective
disputes. The third schedule contains items which form the subject-matter
of individual disputes. The employer is free to change service conditions of
the employees in respect of matters contained in schedule I and III without
consulting the employees. This freedom of the employer to unilaterally
effect any change in the service conditions of the employees in respect of
matters contained in schedules I or III is, however, kept in check by
enabling the employees to challenge such changes in the Labour Court.
The employer cannot change the service conditions of the employees in
respect of matters contained in the second schedule without consulting the
employees through the representative of the employees. Strike relating to
the matters mentioned in the first and third schedules are prohibited and,
therefore, treated as illegal. Strikes relating to the matters mentioned in the
second schedule are permitted only under certain circumstances. The
Government is empowered to make any additions to or alterations in the
various matters mentioned in the schedules. The Government is also
empowered to delete any matter from the schedules. The Government can,
by utilising this power, enlarge or restrict the employers' freedom to make
 and the employees' freedom to demand changes in conditions of service.

Question 7.
Q. What is the punishment for instigating an illegal lock-out?

Answer 7.
A. If any person instigates others to take part in an illegal lock-out or
contributes, collects or invites funds for the purpose of an illegal lock-out,
he would be punished with imprisonment upto three months or with fine or
with both. S.104. Note: The Act treats strikes and lock-outs on the same
footing. The provisions of the Act relating to strikes and lock-outs are,
therefore, almost the same. The same circumstances, as those which
make a strike illegal, make a lock-out illegal. The procedure for getting a
strike or lock-out declared illegal is the same.

Question 8.
Q. Is it an offence not to carry out the terms of any agreement, settlement
or award?

Answer 8.
A. Failure to carry out the terms of any agreement, settlement or award
amounts to making an illegal change which is an offence punishable with
fine which may extend to Rs.5,000. Ss.46(5) & 106

Question 9.
Q. Are the decisions of the Industrial Court appealable?

Answer 9.
A. The decisions of the Industrial Court are not appealable and they cannot
be called in question in any civil or criminal court. S.95 Note:- There can be
a writ petition to a High Court or an appeal by special leave to the Supreme
Court against a decision of the Industrial Court.

Question 10.
Q. What is the meaning of "Strike"?

Answer 10.
A. The employees are said to be on strike when (1) they stop their work (2)
acting in combination (3) to compel the employer to accept some demand.
To constitute strike there must be the co-existence of these three
 ingredients. S.3(36)

Question 11.
Q. What is the difference between strike and stoppage?

Answer 11.
A. Under the Bombay Industrial Relations Act, in the case of a strike, the
cessation of work is in consequence of an industrial dispute; while in the
case of a stoppage, the cessation of work may or may not be in
consequence of an industrial dispute. S.3(36) & (35-A)

Question 12.
Q. If the employees partially stop their work does it amount to a strike?

Answer 12.
A. If a large number of workers refuse to do the full work as assigned to
them and perform work only to half the extent, it amounts to a strike. Note:-
Held in Ballu Govind v. Appollo Mills Ltd., 1957 II LLJ 55.

Question 13.
Q. If the employees slow-down their work, does it amount to a strike?

Answer 13.
A. If the employees have not stopped their work but have only slowed
down their work, it does not amount to a strike. Note:- Held in Bai Santok
Beni v. Fine Knitting Co. Ltd., 1957 I LLJ 409.

Question 14.
Q. Does a legal strike make the employer liable to pay to the workers
wages for the period of strike?

Answer 14.
Q. Does a legal strike make the employer liable to pay to the workers
wages for the period of strike?

Question 15.
Q. Does a legal strike make the employer liable to pay to the workers
wages for the period of strike?
Answer 15.
A. Whether the strike is legal or illegal, the workers are liable to lose wages
for the period of strike. During the period of strike the contract of
employment continues but the workers withhold their labour. Consequently,
they cannot expect to be paid. Note: Observation of Supreme Court in
Bank of India v. T.S. Kelawala, 1990 I C.L.R. 748.

Question 16.
Q. Does the relationship of employer and employee come to an end during
the period of a strike?

Answer 16.
A. The relationship of employer and employee does not come to an end but
subsists during the period of a strike.

Question 17.
Q. What is the punishment for failure to appoint members of a Joint
Committee?

Answer 17.
A. If any employer fails to appoint members of a Joint Committee, he would
be punished with fine upto Rs.50/-. If the employer continues the offence,
he would be punished with fine upto Rs.50/- per day. S.106-A

Question 18.
Q. What is a "Joint Committee"?

Answer 18.
A. A Joint Committee is constituted in an undertaking with the consent of
the employer and the registered union or by the direction of the
Government. It is a joint body consisting of half the number of members
nominated by the union and the other half appointed by the employer.
There is a Chairman of a Joint Committee. Any member of a Joint
Committee can move a proposal regarding any change or matters affecting
the relations between the employer and the employees for the decision of
the Joint Committee. If an agreement is arrived at between the employer
and the union regarding the proposed change, the employer shall send a
memorandum of such agreement to the Registrar of Unions. The Registrar
shall enter the agreement in a register maintained for the purpose. The
registered agreement shall come into operation on the date specified
 therein or if no date is so specified on its being recorded by the Registrar.
Ss.48,49,51,52.

Question 19.
Q. If the change proposed in a notice is objected to by the employer or the
employee, as the case may be, what is the next step the parties have to
take?

Answer 19.
A. If the change proposed in the notice is objected to by the employer or
the employee, as the case may be, the party who gave such notice has to
send a full report of the case to the Conciliator. On receipt of such report
the Conciliator has to hold conciliation proceedings. The parties may settle
the dispute during the proceedings with the help of the Conciliator. If a
settlement is arrived at during the conciliation proceedings, the Conciliator
has to draw a memorandum of the settlement and send a copy thereof to
the Registrar of Unions. The Registrar has to record the settlement in the
register of agreements and also publish the same. The change agreed to
by the settlement shall come into operation from the date agreed upon in
the settlement and if no such date is agreed upon from the date on which it
is recorded in the register. Ss.54,56,58.

Question 20.
Q. In an application by a dismissed employee challenging his dismissal
before the Labour Court, can the employee raise any ground or contention
other than those mentioned in his letter of approach?

Answer 20.
A. Neither the Act nor the Rules contemplate a detailed and exhaustive
pleadings in the letter of approach. It is open to the employee to raise all
such grounds or contentions in his application before the Labour Court,
which he may not have taken or written in his letter of approach. Note:-
Held in Umashankar D. Shukla v. New Shakti Dye Works P. Ltd 2002 II
CLR 430.

Question 21.
Q. Do the Labour Courts have power to condone delay in filing applications
under section 79 of the Act?

Answer 21.
A. By amending section 79 of the Act, the Labour Courts are given power
 to condone, for sufficient reasons, delay in filing applications under that
section.

Question 22.
Q. Who can refer a dispute for arbitration?

Answer 22.
A. 1. Any employee and a Representative Union or any other registered
union which is a representative of employees can jointly refer any present
or future dispute to the arbitration of any person. 2. The Government can
refer any dispute between employees and employees to the arbitration of a
Labour Court or the Industrial Court. S.72. 3. The Government can refer
any dispute to the arbitration of the Industrial Court if it is satisfied: (1) that
the continuance of the dispute is likely to cause (a) a serious outbreak of
disorder or breach of the public peace, (b) serious or prolonged hardship to
a large section of the community, or (c) an adverse effect on the industry or
curtailment of employment therein; (2) that the dispute is not likely to be
settled by the other means; or (3) that it is necessary in the public interest
to do so. S.73. 4. Any employer alone can refer any dispute for arbitration
to the Industrial Court. S.73-A. 5. Any registered union which is a
representative of employees and which is also an approved union alone
can refer any dispute for arbitration to the Industrial Court. S.73-A.

Question 23.
Q. What is the time limit for making different applications to the Labour
Courts?

Answer 23.
A. (1) An application (a) for challenging any order passed by the employer
under the standing orders or (b) for challenging any action of the employer
arising out of the application or interpretation of standing orders must be
filed within three months from the date of arising of the dispute. In such
cases a dispute is deemed to have arisen if the employer does not agree to
withdraw the order or action in question on an application made by the
employee to him in this behalf. S.79. (2) An application for challenging any
change effected by the employer or for getting any change effected by the
employer in respect of matters specified in Schedule III to the Act must be
filed within three months of the writing of the last letter of request to the
employer in that behalf. (3) An application for a declaration that strike or
lock-out is illegal must be filed within three months of the commencement
of the strike or lock-out. (4) An application for a declaration that any change
made by the employer in respect of industrial matters specified in Schedule
II to the Act is illegal must be made within three months of the making of
 the change.

Question 24.
Q. What types of disputes can be referred to a Wage Board?

Answer 24.
A. Any dispute regarding (1) reduction in posts, (2) increase in posts, (3)
rationalisation, (4) wages or (5) working hours can be referred to a Wage
Board for its decision. A reference to a Wage Board can be made by the
Government, an employer or a certain class of unions. S.86C.

Question 25.
Q. If an agreement is arrived at between an employer and Representative
Union who are parties to an industrial dispute pending before the Industrial
Court and they request the Court to pass an award in terms of such
agreement, can the Court refuse to do so?

Answer 25.
A. The Court can refuse to pass an award in terms of such agreement if it
is satisfied that the agreement was in contravention of any of the provisions
of the Act or the consent of either party to it was caused by mistake,
misrepresentation, fraud, undue influence, coercion or threat. Otherwise,
the mandate of Section 115-A is that the Court "shall" pass an award in
terms of such agreement. Q. Is it open to the Industrial Court to re-
appreciate evidence while exercising its power of superintendence over
Labour Courts under section 85 of the Act? A. It is not open to the Industrial
Court while exercising its power of superintendence under section 85 of the
Act to re-weigh or re-appreciate evidence and/or to prefer another view if
another view is preferable or plausible. Note:- Held in Saurashtra Majoor
Mahajan Sangh v. Una Taluka Khedut Sahakari Khand Udyog Ltd. 1994 I
C.L.R. 499.

Question 26.
Q. Are the decisions of the Industrial Court binding on the authorities under
the Act?

Answer 26.
A. The decisions of the Full Bench of the Industrial Court are binding on the
other authorities under the Act. S.95A.
Question 27.
Q. Where employees stopped work in consequence of a call given by
political parties for Bharat Bandh, does the stoppage of work amount to a
strike?

Answer 27.
A. Where the cessation of work was not in pursuance of any demands or in
respect of any industrial dispute, it merely amounts to "stoppage" under
section 3(35-A) of the Act. Note:- Held in General Secretary, Best Workers'
Union v. N.A. Kadam & Ors. 1994 II C.L.R. 420.

Question 28.
Q. If the employees slow-down their work, does it amount to a strike?

Answer 28.
A. If the employees have not stopped their work but have only slowed
down their work, it does not amount to a strike. Note:- Held in Bai Santok
Beni v. Fine Knitting Co. Ltd., 1957 I LLJ 409.

Question 29.
Q. What is the meaning of "Illegal Strike"?

Answer 29.
A. The following are the important instances of an illegal strike:- (a)
Disputes regarding matters specified in the first and third schedules to the
Act can be taken to a Labour Court. Strike relating to such matters are
therefore treated as illegal. S.97(1)(a) (b) Disputes regarding matters
specified in the second schedule to the Act are to be raised by giving notice
of change to the employer. Strikes relating to such matters are, therefore,
illegal if resorted to without giving notice of change. S.97(1)(b) (c) Disputes
regarding illegal changes made by the employer and disputes regarding
the failure of the employer to carry out the provisions of any standing order
can be taken to a Labour Court. Strikes resorted to in consequence of such
disputes are, therefore, treated as illegal. S.97(1)(c) (d) Conciliation
proceedings are intended for settlement of disputes. Strikes resorted to
during the conciliation proceedings are, therefore, treated as illegal. S.97(1)
(e) (e) Arbitration proceedings initiated by the parties or the Government
are intended for resolving disputes. Strikes resorted to during such
arbitration proceedings are, therefore, treated as illegal. S.97(1)(h) (f)
Agreements, settlements and awards are binding on the employees and
the employees are not supposed to make any demands inconsistent
therewith. Strikes in contravention of the terms of agreements, settlements
 and awards are, therefore, treated as illegal. S.97(1)(i) (g) Disputes are
sometimes referred to a Wage Board for its decision. Strikes resorted to
during the pendency of such reference are treated as illegal. S.97(1)(j)

Question 30.
Q. How to get a strike declared illegal?

Answer 30.
A. (a) If any employer wants a declaration that a strike commenced by his
employees is illegal, he has to make an application to a Labour Court.
S.79(4) (b) The application must be made within three months of the
commencement of the strike. S.79(4) (c) The Labour Court will decide
whether the strike is illegal or not and give a declaration accordingly.
S.78(1)A(C) (d) The decision of the Labour Court will be final. No appeal
lies to the Industrial Court as to whether the strike is illegal or not. S.84(1)
(a)

Question 31.
Q. How to get a strike declared illegal?

Answer 31.
A. (a) If any employer wants a declaration that a strike commenced by his
employees is illegal, he has to make an application to a Labour Court.
S.79(4) (b) The application must be made within three months of the
commencement of the strike. S.79(4) (c) The Labour Court will decide
whether the strike is illegal or not and give a declaration accordingly.
S.78(1)A(C) (d) The decision of the Labour Court will be final. No appeal
lies to the Industrial Court as to whether the strike is illegal or not. S.84(1)
(a)

Question 32.
Q. What are the special powers of the Labour Courts?

Answer 32.
A. Labour Court has the special powers to compel the employer:- (1) to
withdraw, temporarily or permanently, any unauthorised alterations in the
service conditions of the employees in respect of the matters specified in
Schedule II to the Act; (2) to carry out any alterations in the service
conditions of the employees; (3) to reinstate any employee with payment of
full back wages; (4) to pay to any employee, if he is not reinstated
compensation upto Rs.4000 in addition to the payment of full back wages.
 S.78. Q. Can a dismissed employee make an application to the Labour
Court for relief under Section 78(1)D without first approaching the employer
under Section 42(4)? A. As the scheme of the Act is that the dispute should
be settled as far as possible and primarily through conciliation and
agreement, it does not stand to reason that an employee should be able to
side-step all this by a direct reference to the Labour Court. A Labour Court
is a creature of statute and it can only exercise such jurisdiction as the
statute confers on it. If there are certain preconditions to be satisfied it must
refuse to entertain any such application unless the precondition is satisfied.
Note: Held in M/s. Chottabhai Jathabhai Patel & Co. v. Industrial Court,
1972 I LLJ 657 (S.C.).

Question 33.
Q. Can the provisions of Section 11-A of the Industrial Disputes Act relating
to the award of a lesser punishment in lieu of discharge or dismissal be
applied in respect of proceedings before a Labour Court under Sections 78
and 79 of the Bombay Industrial Relations Act?

Answer 33.
A. The provisions of Section 11-A of the Industrial Disputes Act are not
applicable in respect of proceedings before a Labour Court under Sections
78 and 79 of the Bombay Industrial Relations Act. Note: Held in Municipal
Corporation of Greater Bombay v. S.E. Phadtare & Ors. 1994 I C.L.R. 301
(Bombay).

Question 34.
Q. Are the decisions of a Labour Court appealable?

Answer 34.
A. Not all but some decisions of a Labour Court are appealable. An appeal
against them lies to the Industrial Court. S.84.

Question 35.
Q. Can a dispute regarding retrenchment or illegal change be referred to a
Wage Board?

Answer 35.
A. A Wage Board has no jurisdiction to decide a dispute relating to
retrenchment or illegal change. Note:- Held in Dhanraj Mills Ltd., Bombay v.
Rashtriya Mill Mazdoor Sangh, Bombay 1951 I LLJ 14 (L.A.T.) (Bom.) and
Jasmine Mills Ltd., Bombay v. Mill Mazdoor Sabha, Bombay 1956 I CR
 368.

Question 36.
Q. What are the functions of the Industrial Court?

Answer 36.
A. The functions of the Industrial Court are fourfold as follows:- (1) Its
functions as an Original Court:- As an Original Court it holds arbitration
proceedings in respect of disputes referred to it by the Government or the
parties. S.87 (2) Its functions as an Appellate Court::- As an Appellate Court
it hears appeals against the orders of the Registrar of Unions,
Commissioner of Labour, Wage Boards and Labour Courts. S.87 (3) Its
advisory functions:- Its advisory functions consist of deciding questions of
law referred to it by the Government, Board of Conciliation, Commissioner
of Labour, Labour Court, Wage Board, Civil Court or Criminal Court. (4) Its
supervisory functions:-Its supervisory functions consist of exercising
superintendence over Labour Courts and Wage Boards and issuing
general rules of practice and procedure for Labour Courts and Wage
Boards. Ss.85 and 86J

Question 37.
Q. Consequent to the 1982 textile strike mills were closed and an
employee was not taken on duty despite reporting at the gate every day. By
his letter dated 20th January, 1993 he approached the employer under the
proviso to section 42(4) with a request to reinstate him in service with back
wages. As there was no response from the employer, he made an
application to the Labour Court on 28th March, 1993 under Section 42(4)
for the relief of reinstatement with back wages. Is the application barred by
limitation?

Answer 37.
A. Section 79 deals with the limitation for making an application to the
Labour Court. The limitation depends upon the subject matter of the
dispute. As no order of any kind is passed by the employer to terminate the
services of the employee, the subject matter of the dispute is
"Employment". "Employment" is specified as an industrial matter in
Schedule III appended to the Act. According to Section 79(3)(b) an
application for "any change desired by an employee in respect of an
industrial matter specified in Schedule III" shall be made within three
months the employee having last approached the employer under the
proviso to Section 42(4). In this case the employee having first and last
approached the employer on 20th January,1993, his application to the
Labour Court made on 28th March, 1993 is in time and not barred by
 limitation. Note: See P.M. Fernandes v. National Textile Corporation, 2006 I
LLN 361 (Bom.H.C.)

Question 38.
Q. If an application made by an employee to a Labour Court under section
42(4) is premature, is it liable to be rejected by the Labour Court?

Answer 38.
A. If such application is premature in as much as it was filed before expiry
of 15 days of the receipt of the approach letter by the employer, it cannot
be rejected by the Labour Court. The Labour Court should proceed with it
after expiry of the period of 15 days. Note:- Held in Amarsinh Swaroopsinh
& Ors. v. Jagdish Processors, 1993 II C.L.R. 1016.

Question 39.
Q. How to get a strike declared illegal?

Answer 39.
A. (a) If any employer wants a declaration that a strike commenced by his
employees is illegal, he has to make an application to a Labour Court.
S.79(4) (b) The application must be made within three months of the
commencement of the strike. S.79(4)

Question 40.
Q. What are the duties of the Conciliator?

Answer 40.
A. On receipt of a report from a party about the existence of a dispute the
Conciliator has to hold conciliation proceedings. He must strive to bring
about the settlement of the dispute. For this purpose he can enquire into
the dispute and all matters affecting the merits thereof and can do all such
things as he thinks fit for the purpose of inducing the parties to come to a
fair and amicable settlement of the dispute. He has to hold the conciliation
proceedings in camera. Whether a settlement is arrived at or not, in either
case, he has to send a report of the conciliation proceedings to the Chief
Conciliator. Ss.56 and 60.

Question 41.
Q. In what circumstances an employer or a registered union which is a
representative of employees and which is also an approved union can refer
 a dispute for arbitration to the Industrial Court?

Answer 41.
A. An employer or a registered union which is a representative of
employees and which is also an approved union can refer any dispute for
arbitration to the Industrial Court where: (a) the dispute relates to matters
not contained in Schedule I or III, and (b) the dispute is not resolved by
private agreement or by conciliation, and (c) there is no agreement
between the parties to submit the dispute to the arbitration of any private
person. Note:- Held in Ahmedabad Mills Owners' Association v. I.G.
Thakore, A.I.R. 1967 SC 1091.

Question 42.
Q. What types of disputes are decided by Labour Courts?

Answer 42.
A. (A) Labour Courts have power to decide disputes regarding:- (1) the
propriety or legality of any order passed by the employer under the
standing orders; (2) The application or interpretation of standing orders; (3)
changes made by the employer or changes demanded by the employees in
respect of industrial matters specified in Schedule III to the Act; (4) the
legality or otherwise of a strike; (5) the legality or otherwise of a lock-out;
(6) the legality or otherwise of any change made by the employer in respect
of industrial matters specified in Schedule II to the Act. (B) Labour Courts
are also empowered to act (1) as Criminal Courts in respect of offences
punishable under the Act and (2) as Courts of Arbitration in certain
circumstances. S.78.

Question 43.
Q. Is it necessary for an employee to write an approach letter to the
employer if he wants to file an application in relation to an illegal change
made by the employer?

Answer 43.
A. No approach letter as provided under section 42(4) of the Act is required
to be written if an employee wants to file an application in relation to an
illegal change as defined under section 46 of the Act. Note:- Held in
Saurashtra Majoor Mahajan Sangh v. Una Taluka Khedut Sahakari Khand
Udyog Ltd. 1994 I C.L.R. 499.

Question 44.
 Q. What is the machinery provided under the Act for resolving a dispute
between the employer and his employee about the application or
interpretation of Standing Orders?

Answer 44.
A. If there is any dispute between the employer and his employee
regarding (a) the application or interpretation of any standing order or (b)
the propriety or legality of any order passed by the employer under the
Standing Orders, the employee or the Representative Union can apply to a
Labour Court for deciding such dispute. Ss.40 and 78.

Question 45.
Q. What is the procedure for making any alterations in the Standing
Orders?

Answer 45.
A. If any employer wants to make any change in any standing order, he has
to make an application to the Commissioner of Labour for that purpose.
After receiving the application the Commissioner of Labour has to hear the
other party and pass the necessary order.The altered standing order
comes into operation from the date on which the Registrar of Unions
records it in the register kept for the purpose. Ss.38,39.

Question 46.
Q. Is it necessary for an employer to give a notice of change under Section
42(1) when the intended change is not going to affect any employees
adversely?

Answer 46.
A. The notice of change under section 42(1) is required to be given to the
"representative of employees" and not to the "employees affected" by the
intended change. Therefore, the employer is obliged to give such a notice
even though the proposed change is not likely to adversely affect any
employees in his service. Note:- Held in Co-op. Bank Employees Union v.
Yeshwant Sahakari Bank Ltd. & Ors. 1992 II C.L.R. 840.

Question 47.
Q. Is it necessary for employees to give notice of change under section
42(2) when the change desired is something which the employer is legally
bound to do?
Answer 47.
A. No notice of change is required to be given by employees under section
42(2) when the change which is being demanded by them is something
which the employer is bound to do under the law. Note:-Held in Empress
Mills Co-operative Society v. Presiding Officer, 1988 I C.L.R. 192.

Question 48.
Q. Is it necessary for the employer to give notice of change before reducing
or increasing posts excluded from "employee" category?

Answer 48.
A. The Act is intended to protect the interests of the employees specifically.
It is not necessary for the employer to give notice of change before
reducing or increasing the number of posts or persons excluded from the
definition of "employee". Note:- Held in Tata Hydro Companies Employees
Union v. Tata Power Co. Ltd. & Ors 2001 I CLR 381.

Question 49.
Q. What is the object of the Maharashtra Industrial Relations Act,?

Answer 49.
A. The object of the Act is to regulate the entire range of relations of
employers and employees with particular insistence on promotion of
collective bargaining and prevention of strikes and lockouts.

Question 50.
Q. Is there any striking difference between the scheme of the Maharashtra
Industrial Relations Act and the scheme of the Industrial Disputes Act?

Answer 50.
A. The Maharashtra Industrial Relations Act is preventive, the Industrial
Disputes Act is curative. While the former makes elaborate provisions for
regulating industrial relations, greater emphasis is laid on dispute resolution
under the scheme of the Industrial Disputes Act. Note:- Held in Co-op.
Bank Employees Union v. Yeshwant Sahakari Bank Ltd. & Ors. 1992 II
C.L.R. 840.

Question 51.
Q. Which industries are covered by the M.I.R. Act, 1946?
Answer 51.
A. M.I.R. Act, 1946, is applicable only to those industries which were
covered by the Bombay Industrial Disputes Act, 1938, in the mumbai area
of the State and by the Central Provinces and Berar Industrial Disputes
Settlement Act, 1947, in the Vidarbha area of the State. S.2(3) and (4).
Note:- In the Mumbai area of the State the B.I.R. Act, 1938, was applicable
to certain organised industries such as Cotton Textile, Silk Textile, Sugar
etc.

Question 52.
Q. Is it permissible for the Government to direct that the provisions of the
Act shall cease to apply to any industry?

Answer 52.
A. By amending section 2 of the Act the Government is empowered to
direct that the provisions of the Act shall cease to apply to any industry.
S.2(5).

Question 53.
Q. What are the authorities under the Act and what are the duties entrusted
to them?

Answer 53.
A. The following are the authorities under the Act and the duties entrusted
to them in brief: (1) Commissioner of Labour for the general administration
of the Act; (2) Registrar of Unions for registering and controlling the unions;
(3) Conciliators and Boards of Conciliation for holding conciliation
proceedings and promoting the settlement of disputes; (4) Government
Labour Officers for promoting harmonious relations between employers
and employees; (5) Labour Courts for deciding individuals disputes; (6)
Wage Boards for deciding certain collective disputes, and (7) Industrial
Court for (a) deciding collective disputes and (b) hearing certain appeals.
Ss.4 to 10 and 86A.

Question 54.
Q. If a company carries on several undertakings are they required to be
recognised as separate undertakings or one undertaking?

Answer 54.
A. If one concern on company carries on several businesses or undertakes
different types of industrial works, these businesses or work would amount
 to separate, enterprises or undertaking and would have to be recognised
as such. It all depends on whether the undertakings are separate, distinct
and independent of each other or are functionally integral or
interdependent. In the former cases, the Registrar would be justified in
treating the several undertakings separately while in the latter case, he
may recognise all of them as one undertaking. Note : Held in Fine Knitting
Co. Ltd. v. Industrial Court 1962 I LLJ 223 (S.C.).

Question 55.
Q. What is the meaning of "Representative Union", "Qualified Union" and
"Primary Union"?

Answer 55.
A. The Act recognises three types of unions: Representative, Qualified and
Primary. A union having a minimum membership of 25% of the employees
in any industry is called Representative Union, 5% of the employees in any
industry is called Qualified Union, and 15% of the employees in any
undertaking is called Primary Union. S.13.

Question 56.
Q. Can an individual employee prevent the Representative Union from
appearing in a proceeding initiated by him alleging that it is acting mala
fide?

Answer 56.
A. In case the individual employee feels that the Representative Union is
acting mala fide, he can move the Registrar to have the registration of the
Union cancelled but he cannot prevent the Union from appearing in the
proceeding if the Union so desires. Note:- Held in the same case as
mentioned below the preceding question.

Question 57.
Q. Does a person continue to be a member of a union in spite of his
subscription remaining in arrears for 3 months?

Answer 57.
A. In view of the proviso to section 3(25) a member continues to hold his
membership of a union even if he commits default in payment of his
subscription for a particular month provided the default is not for a period of
more than 3 calendar months during the preceding 6 months. Note:- Held
in Maharashtra Girni Kamgar Union v. S. Bhattacharji & Ors, 1984 II LLJ
 111.

Question 58.
Q.What is the meaning of "approved union"?

Answer 58.
A. An approved union means a union which has made rules providing for
the following things and which is entered by the Registrar of Unions in the
approved list. (1) Its membership subscription shall be not less than 50
paise per month. (2) Its executive committee shall meet at intervals of not
more than 3 months. (3) All resolutions passed, whether by the executive
committee or the general body of the union, shall be recorded in a minute
book. (4) An auditor appointed by Government may audit its accounts at
least once in each year. (5) Every industrial dispute in which a settlement is
not reached by conciliation shall be offered to be submitted to arbitration,
and arbitration shall not be refused by it in any dispute. (6) No strike shall
be sanctioned, resorted to, or supported by it unless all the methods
provided under the Act for the settlement or an industrial dispute have been
ex- hausted and the majority of its members vote by ballot in favour of such
strike. (7) No `go slow' shall be sanctioned, resorted to, or supported by it.
S.23.

Question 59.
Q. What are the rights of the officers of an approved union?

Answer 59.
A. The officers of an approved union authorised in this behalf have a right:
(1) to collect subscription from members on the premises of the
undertaking; (2) to put a notice board on the premises of the undertaking
and affix notices thereon; (3) to hold discussions with members on the
premises of the undertaking; (4) to discuss with an employer the
grievances of members; (5) to inspect any place in any undertaking. S.25.

Question 60.
Q. What are the circumstances in which a union can be removed from the
approved list?

Answer 60.
A. The Registrar of Unions can remove a union from the approved list if: (a)
its registration under the Trade Unions Act is cancelled, or (b) it was
entered in the list under mistake, misrepresentation or fraud, or (c) it failed
 to observe the conditions for its approval. S.24.

Question 61.
Q. In what circumstances the Model Standing Orders are applicable to an
undertaking?

Answer 61.
A. If there are no Standing Orders in operation in any undertaking, the
Model Standing Orders framed by the Government for the concerned
industry shall apply to that undertaking until settled standing orders in
respect of that undertaking come into operation. S.35(5).

Question 62.
Q. Is the Industrial Employment (Standing Orders) Act, 1946, also
applicable to the industries covered by the Maharashtra Industrial Relations
Act ?

Answer 62.
A. The provisions of the Industrial Employment (Standing Orders) Act,
1946, are not applicable to the industries covered by the Bombay Industrial
Relations Act, 1946. S.41.

Question 63.
Q. What is the punishment for making any unauthorised change in any
settled standing order?

Answer 63.
A. If any employer makes any change in any settled standing order without
following the proper procedure, it amounts to an illegal change and is
punishable with fine upto Rs.5,000. Ss.46(1)(4) and 106(1).

Question 64.
Q. What is the meaning of "Change"?

Answer 64.
A. A change means an alteration in an industrial matter. Reduction in rates
of wages, increase in hours of work, dismissal of an employee, etc., are
called changes.
Question 65.
Q. What is the procedure to be followed by employers or employees for
bringing about changes in the employees' principal service conditions such
as rates of wages or hours of work?

Answer 65.
A. (a) If an employer intends to effect a change in any principal service
condition of his employee, i.e. a change in respect of any industrial matter
mentioned in Schedule II to the Act, he has to give notice of the proposed
change to the representative of the employees and also send a copy of
such notice to the Conciliator. (b) If an employee desires a change in any of
his principal service conditions, i.e. a change in respect of any industrial
matter which is not mentioned either in Schedule I or in Schedule III to the
Act, he has also to give notice of such demand to his employer through his
representative and also send a copy of such notice to the Conciliator. (c) A
dispute arises between the employer and the employee when such notice
is given by the employer to the employee or by the employee to the
employer. The parties may then settle the dispute by arriving at an
amicable agreement after direct voluntary negotiations between them. (d) If
an agreement is arrived at in regard to the proposed change as a result of
negotiations between the parties, a memorandum of such agreement has
to be sent to the Registrar of Unions and the Registrar of Unions has to
enter the same in a register maintained for the purpose. Such agreement
comes into operation on the date mentioned therein or if no date is so
mentioned, on its being recorded by the Registrar. Ss.42,44 and 45.

Question 66.
Q. What is an illegal change?

Answer 66.
A. (1) If an employer makes a change in respect of any industrial matter
mentioned in Schedule II to the Act (a) either before giving notice of the
change to the representative of the employees, or (b) if no agreement is
arrived at after such notice is given, during the conciliation proceedings, or
(c) if no settlement is arrived at during the conciliation proceedings, before
the award of the Industrial Court comes into operation; such change is
illegal. (2) Any change made by the employer in contravention of the terms
of any settlement, award or agreement is also an illegal change. S.46.

Question 67.
Q. Can a union simpliciter registered under the Trade Unions Act claim to
have any locus standi to challenge an agreement entered into under
Section 42(1) read with Section 44(1)(2) of the M.I.R. Act?
Answer 67.
A. Taking into consideration the scheme of the Act and especially the
provisions of Section 42(1) and 44(1)(2), a trade union simpliciter which is
registered under the Trade Unions Act but which is not a Representative
Union and/or an Approved Union in the Textile Industry, cannot claim to
have any locus standi to chalelnge any agreement between an employer
and a registered Representative Union arrived at and registered in
accordance with the provisions of Sections 42(1) and 44(1)(2) of the Act.
Note: See Sarva Shramik Sanghatana & Ors. v. Bombay Dyeing & Mfg.
Co. Ltd. & Ors. 2008 III CLR 564 (Bom.H.C.)

Question 68.
Q. What are the special rights of a Representative Union?

Answer 68.
A. When there is a representative union for an industry such union has a
right: (a) to represent all employees in such industry; (b) to appear or act
on behalf of any employee in such industry to the exclusion of all other
agencies; (c) to make all employees in such industry award to which it is a
party. S.27A and 114.

Question 69.
What is the importance of M.I.R.Act.

Answer 69.
The importance of the Bombay Industrial Relations Act, 1946, lies in the
fact that it is a complete code for regulating the relations of employers and
employees. The principal features of the Act are as follows:- (a) Treating
trade unions with a status- the Act makes provision for recognising unions
as Representative Unions and Approved Unions and giving them special
rights to strengthen their bargaining power. (b) Prohibiting employers from
effecting certain changes and declaring such changes as illegal - the
employers are prohibited from effecting changes in the principal service
conditions of their employees without giving prior notice of the proposed
change. (c) Establishment of an Industrial Court for deciding collective
disputes and for exercising superintendence over the other authorities
under the Act. (d) Establishment of Labour Courts for speedy determination
of individual disputes. (e) Making victimization an offence - the fear of
victimization is a great obstruction in the way of the growth of trade unions.
The Act, therefore, makes victimization illegal and punishable. The other
important features of the Act are compulsory conciliation, compulsion to
frame Standing Orders, compulsory arbitration in certain exceptional
 circumstances, and prohibition of certain strikes. Object of the Act

Question 70.
Q. Which persons are covered by the M.I.R. Act, ?

Answer 70.
A. The Act is applicable to every skilled or unskilled person employed in
any industry to which the Act is applicable including a person employed by
a contractor but excluding a person employed primarily in a managerial,
administrative, supervisory or technical capacity drawing basic pay
exceeding Rs.6,500 per month. S.3(13).

Question 71.
Q. Are the provisions of the Act applicable to a retail cloth shop of a textile
mill?

Answer 71.
A. If the retail cloth shop can be considered as reasonably connected with
the textile mill and if there is a functional integration between the two in the
practical sense of the term for purpose of achieving better business results,
the employees engaged in such integral and connected activity cannot be
deprived of the benefits of Labour Welfare Legislation. Note: Held in Ashok
S. Athavale v. Ratansi Muljee, 1991 I C.L.R. 492.

Question 72.
Q. What exactly the Registrar of Unions does when he recognises any
concern in an industry to be an undertaking?

Answer 72.
A. When the Registrar of Unions recognises any concern to be an
undertaking, he does not make the Act applicable to the undertaking but he
ascertains whether the undertaking is governed by the Act or not. Note:-
Held in Messers. Wintex Mills, Surat v. The Surat Silk Textile Labour Union,
BGG-IL dated 27-8-1959, p.3849.

Question 73.
Q. Where there is a settlement between a representative union and an
employer under Section 58 read with Section 114 of the Maharashtra
Industrial Relations Act, can the representative union contend that if the
benefits of the settlement are to be encashed in favour of non-members,
 then the liabilities are also to be shared by the non-members?

Answer 73.
A. To get the benefits of the settlement an employee is not required to be a
member of the representative union nor is required to pay any subscription
to the representative union. Note: Held in Gujarat Textile & General Labour
Organisation v. Commissioner of Labour & Ors. 2005 III CLR 722
(Guj.H.C.)

Question 74.
Q. What are the duties and powers of the Govt. Labour Officer?

Answer 74.
A. The duties of the Govt. Labour Officer are as follows: (a) to watch the
interests of employees and promote harmonious relations between
employers and employees; (b) to investigate the grievances of employees
and represent to employers such grievances and make recommendations
to them; (c) to report to the Government the existence of any industrial
dispute together with the names of the parties thereto. To enable him to
perform these duties, the Labour Officer has been given powers (a) to
inspect the place of any business or the office of any union or the
residence of any employee, (b) to call and inspect documents, (c) to hold
meetings of the employees and (d) to appear in any proceeding under the
Act. S.34.

Question 80.
Q. Can the Registrar refuse to register an agreement under section 44(2) of the
Act on the ground that it was not arrived at within seven days from the date of
service of notice under section 42?

Answer 80.
A. Section 44(1) does not fix an inflexible period of seven days for entering into
the agreement by the parties after the notice of change has been given. If the
parties sign the agreement beyond the period of seven days mentioned in
section 44(1), there is implicit in this act an acknowledgement on the part of the
parties that they had agreed to continue the negotiations for a period beyond
the period of seven days mentioned in section 44(1) of the Act. The Registrar
could not have refused the Registration of the agreement. Note: Held in
M.T.R.S. Kamgar Sangh v. Saswad Mali Sugar Factory Ltd., 1989 II C.L.R. 427.

Question 81.
Q. Is it necessary for an employer to give a notice to the representative of
employees under section 42 of the Act before issuing an advertisement inviting
tenders for sale of land and buildings to improve the working of his mills?

Answer 81.
A. Issuing such advertisement, per se, does not require any notice under
section 42 of the Act. Note:- Held in Mumbai Girni Kamgar Union v. General
Manager, M/s. Mumbai Textile Mills (NTC) & Ors. 1992 II CLR 314.

Question 82.
Q. What is the procedure to be followed by the employers or the employees for
bringing about a change in other service conditions?

Answer 82.
A. If an employee desires a change in respect of (i) any order passed by the
employer under standing orders or (ii) any industrial matter arising out of the
application or interpretation of standing orders, or (iii) an industrial matter
mentioned in Schedule III to the Act, and if the employer is not agreeable to
make the change demanded by the employee, the employee has to make an
application to a Labour Court. An employer can effect a change in respect of
the above mentioned matters without following any procedure. S.42(4).

Question 83.
Q. What are the circumstances in which the registration of a union can be
cancelled?

Answer 83.
A. The Registrar of Unions can cancel the registration of a union if: (a) it was
registered under mistake, misrepresentation or fraud; (b) the membership of the
union has fallen below the minimum required for its registration; (c) the union is
not being conducted bona fide in the interest of employees but in the interest of
employers to the prejudice of the interest of employees; (d) it has instigated,
aided or assisted the commencement or continuation of an illegal strike; (e) its
registration under the Trade Unions Act is cancelled. S.15.

Question 84.
Q. Can a Representative Union appear in a proceeding initiated by an
individual employee and if it can do so, what will be the consequence of such
appearance?

Answer 84.
A. A representative Union represents every employee in the industry concerned
and it can enter appearance in any proceeding initiated by an individual
employee. When the Representative Union chooses to do so in its capacity as
representative of employees, the individual employee will have no right to
appear or act in the proceeding. Note:- Held in Santuram Khudai v. Kimatrai
Printers Processors, 1978 I LLJ 174.

Question 85.
Q. Can the appearance of a representative union as the representative of
employees in a proceeding initiated by an individual employee be objected to
on the ground that the union was acting malafide?

Answer 85.
A. The mala fides or bona fides of a representative union has no relevance
while considering the provisions of section 27-A and sections 32 and 33 which
taken together impose an absolute ban on the appearance of any individual
employee in any proceeding under the Act where a representative union
chooses to appear or act as the representative of employees. Note: Held in
Santuram Khudai v. Kimatrai Printers Processors, 1978 I LLJ 174.

Question 86.
Q. If an employer wants to retrench certain employees, is he required to give
notice of change?

Answer 86.
A. When an employer desires to retrench certain employees holding certain
posts and does not desire to reduce those posts, he need not give a notice of
change. Note:- Held in Chaganlal Textile Mills (Private) Ltd. v. Chalisgaon Girni
Kamgar Union, 1959 II LLJ 1 (S.C.).

Question 87.
Q. Does a transfer of an employee from one department to another within the
establishment without giving notice of change amounts to an illegal change in
view of the provisions of Section 42(1) of the Act read with items 1 and 2 of
Schedule II thereof?

Answer 87.
A. Such a transfer is covered by the provisions of Section 42(4) of the Act read
with item 2 of Schedule III thereof, and, therefore, it does not amount to an
illegal change. Note: Held in Jilajit Ramnandan Chaudhari & Ors. v. Dawn Mills
Ltd. & Ors., 2003 III C.L.R. 185 (Bom. H.C.)

Question 88.
Q. Can it be contended that transfer of persons from one department to another
would necessarily result into reduction of persons in one department and
increase of persons in another department and the matter of transfer would
necessarily fall under Item 1 and 2 of Schedule II and the provisions of Section
42(1) would be attracted?

Answer 88.
A. The contention cannot be accepted because item 1 and 2 of Schedule II are
not intended to cover the cases like the one we are dealing with. Such transfer
cannot be artificially brought under item 1 and 2 of Schedule II. Such transfer
will be covered under item (2) of Schedule III which speaks of "assignment of
work and transfer of workers within the establishment." No notice of change is,
therefore, required to be given in the case of such transfer. Note: See Garden
Silk Mills Ltd. v. Ashok K. Jha and 3 Ors.2008 II CLR 1048 (Guj.H.C.)

Question 89.
Q. Can a notice of change be given by an individual employee?

Answer 89.
A. The right to give a notice of change is not conferred upon the individual
employee and it is conferred only upon the representative union. It is for the
employee to place before such union what the grievances are and ultimately it
is for the union, if it is satisfied that the grievances are justified, to give the
necessary notice of change. Note:- Held in Usman Habib v. State of Bombay &
Ors. 1955 II LLJ 494 (Bom.).

Question 90.
Q. What is the punishment for making an illegal change?

Answer 90.
A. If any employer makes an illegal change, he would be punished with fine
upto Rs.5,000. S.106
LABOUR LAW NO.13 – The Maternity Benefit Act, 1961

Question 1.
Q. What is the object of the Maternity Benefit Act, 1961?

Answer 1.
A. The object of the Act is: (1) to provide for maternity benefit to women
workers in certain establishments; (2) to regulate the employment of
women workers in such establishments for certain period before and after
child birth. (Preamble)

Question 2.
 Q. Can an Assistant Teacher, who is granted maternity leave, be denied
the benefit of leave pay on the ground that at the relevant time she was
working on probation?

Answer 2.
A. Applying the ratio of the decision of the Supreme Court in the case of
Municipal Corporation of Delhi (2000 I CLR 879) to the facts of this case,
the Assistant Teacher is entitled to the benefit of maternity leave with pay.
Note: Held in Bhartiben Babulal Joshi v. Administrative Officer 2004 I CLR
408 (Guj.H.C.)

Question 3.
Q. To whom maternity benefit is payable in case of death of a woman?

Answer 3.
A. If a woman entitled to maternity benefit dies before receiving such
benefit, the employer shall pay such benefit to the person nominated by
the woman and in case there is no such nominee, to her legal
representative. S.7

Question 4.
Q. Is a woman entitled to any leave with wages for illness in addition to the
period of absence allowed to her under the provisions of the Act?

Answer 4.
A. A woman suffering from illness arising out of pregnancy delivery,
premature birth of child or miscarriage shall be entitled, in addition to the
period of absence allowed to her under the provisions of the Act, to leave
with wages at the rate of maternity benefit for a maximum period of one
month. S.10

Question 5.
Q. What are the other obligations of the employer under the Act?

Answer 5.
A. Under the Act the employer is required: (a) to exhibit the abstract of the
provisions of the Act and the rules made thereunder in a conspicuous
place in every part of the establishment in which women are employed;
S.19 and R.5 (b) to maintain a muster roll in the prescribed form; (R.3) (c)
to submit annual returns in the four prescribed forms. (R.16)
Question 6.
Q. Which establishments are covered by the Act?

Answer 6.
A. The Act applies to: (1) every establishment being a factory, mine,
plantation or circus; (2) every shop in which 10 or more persons are
employed; (3) any other establishment to which the Act is applied by the
State Government under the proviso to S.2(1). Note:- The Act applies to a
factory, mine or plantation belonging to Government. Note:- The Act does
not apply to any factory or other establishment to which the provisions of
the Employees' State Insurance Act apply. (S.2)

Question 7.
Q. What is the restriction placed by the Act on the termination of
employment of a woman?

Answer 7.
A. When a woman absents herself from work in accordance with the
provisions of the Act, it shall be unlawful for her employer to discharge or
dismiss her during or on account of such absence. S.12

Question 8.
Q. Is a woman entitled to any benefits in case of medical termination of
pregnancy or tubectomy operation also?

Answer 8.
A. By amendment of Sections 4, 9 and 10 and by insertion of new Section
9-A vide Act No. 29 of 1995, certain benefits are conferred on women in
case of medical termination of pregnancy and tubectomy operation.

Question 9.
Q. Can a woman claim the maternity benefit from her employer if she
works elsewhere during the period for which she has been permitted to
absent herself under the provisions of the Act?

Answer 9.
A. If a woman works in any establishment after she has been permitted by
her employer to absent herself under the provisions of the Act for any
period during such authorised absence, she shall forfeit her claim to the
maternity benefit for such period. S.18
Question 10.
Q. What is the period for which a woman is entitled to maternity benefit
and what is the rate of the benefit?

Answer 10.
A. (1) the maximum period for which any woman shall be entitled to
maternity benefit shall be 12 weeks of which not more than 6 weeks shall
precede the date of her expected delivery. If a woman dies during this
period, the maternity benefit shall be payable only for the days up to and
including the day of her death. If a woman, having been delivered of a
child, dies during her delivery or during the period immediately following
the date of her delivery for which she is entitled for the maternity benefit,
leaving behind in either case the child, the employer shall be liable for the
maternity benefit for the entire period but if the child also dies during the
said period, then, for the days up to and including the date of the death of
the child. But no woman shall be entitled to maternity benefit unless she
has actually worked in an establishment of the employer from whom she
claims maternity benefit, for a period of not less than 80 days in the 12
months immediately proceeding the date of her expected delivery. For the
purpose of calculating the days on which a woman has actually worked in
the establishment, the days for which she has been laid off or was on
holidays declared under any law to be holidays with wages during the
period of 12 months immediately preceding the date of her expected
delivery shall be taken into account. (2) A woman shall be entitled to the
payment of maternity benefit at the rate of the average daily wage for the
period of her actual absence, that is to say, the period immediately
preceding the day of her delivery, the actual day of her delivery and any
period immediately following that day. For the purpose of this provision,
`the average daily wage' means the average of the woman's wages
payable to her for the days on which she has worked during the period of 3
calendar months immediately preceding the date from which she absents
herself on account of maternity, or the minimum rate of wage fixed or
revised or under the Minimum Wages Act, 1948 or 10 rupees, whichever is
the highest. S.5

Question 11.
Q. Is a woman entitled to maternity benefit, also entitled to any medical
bonus?

Answer 11.
A. A woman entitled to maternity benefit under the Act shall also be entitled
to receive from her employer a medical bonus of 250 rupees, if no pre-
 natal confinement and postnatal care is provided for by the employer free
of charge. The medical bonus shall be paid along with the second
instalment of the maternity benefit. S.8 & R.5

Question 12.
Q. Is it permissible under the Act to exempt any establishment from the
provisions of the Act?

Answer 12.
A. The appropriate Government can exempt any establishment from the
operation of all or any of the provisions of the Act or of any rule made
under the Act if the benefits provided by the establishment are not less
favourable than those provided in the Act. S.26

Question 13.
Q. Is there any justification for denying the benefits of the Maternity Benefit
Act to women workers on the ground that they are not regular employees
but they are on the muster roll?

Answer 13.
A. The Supreme Court, in Municipal Corporation of Delhi v. Female
Workers (Muster Roll) & Anr. (2000 I C.L.R. 879) has said; "We have
scanned the different provisions of the Act, but we do not find anything
contained in the Act which entitles only regular women employees to the
benefit of maternity leave and not those who are engaged on casual basis
or on muster roll on daily wage basis."

Question 14.
Q. What is the time for payment of maternity benefit?

Answer 14.
A. The amount of maternity benefit for the period preceding the date of her
expected delivery shall be paid in advance to the woman on production of
proof that the woman is pregnant and the amount due for the subsequent
period shall be paid to the woman within 48 hours of production of proof
that the woman has been delivered of a child. S.6

Question 15.
Q. Is a woman entitled to any leave with wages for miscarriage?
Answer 15.
A. In case of miscarriage, a woman shall be entitled to leave with wages at
the rate of maternity benefit, for a period of 6 weeks immediately following
the day of her miscarriage. S.9

Question 16.
Q. Is it necessary for a woman claiming leave with wages for miscarriage
to satisfy the condition that she had worked for a period of not less than 80
days in the 12 months immediately preceding the date of miscarriage?

Answer 16.
A. Such condition has to be satisfied for claiming Maternity Benefit under
Section 5 of the Act. There is no condition of any sort to be satisfied for
claiming leave wages for miscarriage under Section 9 of the Act.

Question 17.
Introduction

Answer 17.
Prior to the enactment of the Maternity Benefit Act of 1961 there were in
force several central and State Maternity Benefit Acts in the country. But
there was no uniformity in their provisions. It was desirable to have uniform
maternity benefit provisions for all women workers in the country. It is true
that its object was achieved by the enactment of the Employees' State
Insurance Act of 1948, which superseded the provisions of several
Maternity Benefit Acts. But the Employees' State Insurance Act did not
cover all women workers in the country. The Maternity Benefit Act of 1961
was therefore passed to provide uniform maternity benefit for women
workers in certain industries not covered by the Employees' State
Insurance Act. Note:- The Act is amended by the Amendment Act No. 29 of
1995. The Amendment Act has come into force with effect from 1.2.1996.
The text of the Amendment Act is given at the end of this chapter.

Question 18.
Q. What is the procedure the Government has to follow for fixing and
revising minimum wages?

Answer 18.
A. The Government has to fix and revise minimum wages either- (a) by
appointing one or more committees and sub-committees consisting of
representatives of employers and employees and also of independent
 persons to hold necessary enquiries and by taking into consideration the
advice tendered by the committee or committees; or (b) by formulating and
publishing its proposals and taking into consideration the representations
received in response to the proposals. S.5
Question 19.
Q. What is the punishment for the contravention of the provisions of the
Act?

Answer 19.
A. (1) If any employer fails to pay any amount of maternity benefit to a
woman entitled under the Act or discharges or dismisses such woman
during or on account of her absence from work in accordance with the
provisions of the Act, he shall be punishable with imprisonment which shall
not be less than three months but which may extend to one year and with
fine which shall not be less than two thousand rupees but which may
extend to five thousand rupees. The Court may, however, for sufficient
reasons to be recorded in writing, impose a sentence of imprisonment for
a lesser term or fine only in lieu of imprisonment. (2) If any employer
contravenes the provisions of the Act or the rules made thereunder, he
shall, if no other penalty is elsewhere provided by or under the Act for such
contravention, be punishable with imprisonment which may extend to one
year, or with fine which may extend to five thousand rupees, or with both.
Where the contravention is of any provision regarding maternity benefit or
regarding payment of any other amount and such maternity benefit or
amount has not already been recovered, the Court shall, in addition,
recover such maternity benefit or amount as if it were a fine and pay the
same to the person entitled thereto. S.21

LABOUR LAW NO.13 – The Minimum Wages Act, 1948

Question 2.
Q. Which employments are intended to be benefited by fixation of
minimum rates of wages?

Answer 2.
A. The Government is required to fix minimum rates of wages payable to
employees employed in the employments specified in Part I or Part II of the
Schedule appended to the Act. S.3

Question 3.
Q. Are the employees of a Students' Hostel entitled to minimum rates of
wages fixed for hotels and restaurants?
Answer 3.
A. The intention of the Legislature was to include employment on hotels
and restaurants under the purview of the Minimum Wages Act. When the
Legislature specifically omitted the term "Students' Hostels" in the
Schedule, it thereby excludes it from the purview of the Minimum Wages
Act. Note: Held in Warden-cum-Principal, Students' Hostel, Government
Engineering College v. Dy. Commissioner of Labour, 2002 I L.L.J. 1011
(Mad.H.C.)

Question 4.
Q. What are the offences under the Act and what is the punishment for
them?

Answer 4.
A. If any employer- (a) pays to any employee less than the minimum rates
of wages fixed for that employee's class of work; or (b) contravenes any
rule or order made by the appropriate Government under Section 13
regarding hours of work; he would be punished with imprisonment upto five
years or with fine upto Rs. 10,000/- or with both. The offences under S.22
of this Act shall be cognisable and non-bailable. S.22, S.22-B

Question 5.
Q. What is the number of hours which constitutes a normal working day for
the employees covered by the Act?

Answer 5.
A. A normal working day prescribed for the employees covered by the Act
is of 9 hours. S.13 & Mah. Rule 24

Question 6.
Q. Can an employee getting wages higher than the minimum wages fixed
under the Act claim overtime wages under Section 20(2) of the Act?

Answer 6.
A. Where an employee gets wages higher than the minimum wages fixed
under the Act, he cannot claim any benefit under the Act. Note: Held in the
State of Rajasthan v. Mohan Singh, 2002 II L.L.J. 158 (Raj.H.C.)

Question 7.
 Q. Can an Industrial Tribunal adjudicate upon a dispute relating to the
fixation of wages of employees covered under the Act?

Answer 7.
A. Section 24 of the Act does not bar the jurisdiction of an Industrial
Tribunal to adjudicate upon a dispute relating to the fixation of wages of
employees covered under the Act. Note:- Held in Municipal Committee,
Tarn Taran v. State of Punjab, 1967 I LLJ 568.

Question 8.
Q. What is the position of the employer who is unable to pay minimum
wages fixed under the Act?

Answer 8.
A. The employer is bound to pay minimum wages fixed under the Act and
it is irrelevant whether he has the capacity to pay them or not. Note:- Held
in U. Unichoyi v. State of Kerala 1961 I LLJ 631.

Question 9.
Q. What is the procedure the employee has to follow for making a claim
under the Act?

Answer 9.
A. The procedure for making a claim is as follows:- (a) An employee having
any claim under the Act has to make an application to the Authority
appointed under the Act. (b) Such application can be made by the
employee himself, or any legal practitioner or any official of a registered
trade union. (c) Such application has to be made within six months from the
date on which the claim amount became payable. (d) In appropriate cases
the Authority can, over and above directing the payment of the difference
between minimum wages payable and wages actually paid, award
compensation upto ten times the amount of the difference. (e) The amount
directed to be paid by the Authority can be recovered as if it were a fine
imposed by a Magistrate. (f) Every direction of the Authority will be final.
S.20

Question 10.
Q. Is an employer required to maintain any register and record?

Answer 10.
A. Every employer must maintain a muster-roll-cum-wage register and
 also a bound inspection book. Rules 27 & 28

Question 11.
Q. Is it permissible for an employee to recover minimum wages payable
under the Act by filing a suit in a Civil Court?

Answer 11.
A. The Act prohibits Civil Courts from entertaining any suit for recovery of
minimum wages payable under the Act. S.24

Question 12.
Q. Is it permissible for an employee to relinquish his rights under the Act?

Answer 12.
A. An employee is prohibited from contracting out of the Act, i.e. from
giving up any of his rights under the Act and any contract or agreement
made by him relinquishing or reducing his right to a minimum rate of
wages or any privilege or concession accruing to him under the Act is null
and void. S.25

Question 13.
Q. Is the list of employments specified in the Schedule to the Act
exhaustive?

Answer 13.
A. The list is not an exhaustive one. The appropriate Government can add
any employment to either part of the Schedule. S.27

Question 14.
Q. Is it competent for a government to bring a teacher within the purview of
the Act by amending the Schedule to the Act?

Answer 14.
A. A teacher would not come within the definition of "employee" given
under Section 2(i) of the Act. It is beyond the competence of a
Government to bring the teachers of an educational institution under the
purview of the Act. Note:- Held in Haryana Unrecognised Schools
Association v. State of Haryana, 1996 I CLR 1000.
Question 15.
Q. Is the task of the Government over once it fixes minimum rates of
wages payable to employees employed in a scheduled employment?

Answer 15.
A. The task of the Government is not over once it fixes minimum rates of
wages payable to employees employed in a scheduled employment. The
minimum rates of wages so fixed are required to be reviewed and, if
necessary, revised by the Government at intervals not exceeding five
years. S.3(1)(b)

Question 16.
Q. Is it permissible for the employer to pay minimum wages in kind?

Answer 16.
A. As a rule minimum wages payable under the Act must be paid in cash.
The employer, however, can pay them in kind with the permission of the
appropriate Government. S.11

Question 17.
Q. Can attendance bonus be treated as part of the minimum wage fixed
under the Act?

Answer 17.
A. Attendance bonus is in the nature of an incentive. It is an additional
payment made to the workmen as a means of increasing production. It
cannot be treated as part of the minimum wage fixed under the Act. Note: -
Held in Manganese Ore (India) Ltd. v. Chandi Lal Sadu & Ors., 1991 I CLR
357.

Question 18.
Q. Can the supply of essential commodities at concessional rates form
part of the minimum wage?

Answer 18.
A. Such supply cannot form part of the minimum wage unless it is
authorised by the appropriate Government by a notification in the Official
Gazette under section 11(3) of the Act. Note: - Held in Manganese Ore
(India) Ltd. v. Chandi Lal Sadu & Ors. 1991 I CLR 357.
Question 19.
Q. Are the employees covered by the Act entitled to overtime wages?

Answer 19.
A. If an employee covered by the Act works for more than 9 hours on any
day or 48 hours in any week, he is in respect of overtime work entitled to
wages at double the ordinary rate of wages. S.14 & Mah. R.26

Question 20.
Q. Can an Industrial Tribunal fix wages at rates higher than the rates of
minimum wages fixed under the Minimum Wages Act?

Answer 20.
A. An Industrial Tribunal adjudicating a dispute relating to wages is not
bound by the minimum rates of wages fixed under the Minimum Wages
Act and it is open to it to fix wages at rates higher than the rates of
minimum wages fixed under the Act. Note: - Held in M/s. Jaydip Industries,
Thane v. The Workmen, 1972 L.I.C 339.

Question 21.
Q. Is an employer, who is not paying basic wages and cost of living
allowance separately as fixed under the Act but who is paying wages more
than prescribed minimum rates under the Act, committing any illegality?

Answer 21.
A. The minimum rate of wages fixed under the Act is remuneration payable
to the worker as one package of fixed amount. Neither the scheme of the
Act nor any provision of the Act provides that the rate of minimum wages is
to be split into basic wages and cost of living allowance and therefore
where an employer is paying total sum which is higher than the minimum
rate of wages fixed under the Act including cost of living allowance, the
employer is not committing any illegality. Note:- Held in Airfreight Ltd. v.
State of Karnataka & Ors., 1999 II CLR 537 (S.C.)

Question 22.
Q. What is the object of the Minimum Wages Act, 1948?

Answer 22.
A. The object of the Act is to provide for fixing and revising minimum
wages in certain employments in order to stop sweated labour and prevent
the exploitation of unorganised labour.
Question 23.
Q. What is the obligation of the employer in respect of payment of wages
under the Minimum Wages Act, 1948?

Answer 23.
A. Where minimum wages are fixed and enforced under section 5 of the
act in respect of any employment covered by the Act, the employer is
bound to pay to every employee engaged in that employment wages at a
rate not less than the minimum rate so fixed and enforced. S.12

Question 24.
Introduction

Answer 24.
The need for a country of having minimum wage-fixing machinery was
stressed by the International Labour Organisation long back in 1928.
Twenty years later our country passed the Minimum Wages Act in 1948.
The reason given by the Government for passing the Act was that workers'
organisations in the country were poorly developed and consequently their
bargaining power also was very poor. Like the Payment of Wages Act,
1936 this Act also is exhaustively amended by many States to widen its
scope and application. The Act is a boon to a large number of poorly paid
persons in this country.

Question 25.
Q. Can the Authority appointed under the Act to decide the claims of the
employees award compensation to the tune of ten times of the amount of
the difference between wages payable and wages actually paid, in every
case?

Answer 25.
Q. Has an employee to pay any court-fee for making an application to the
Authority? A. In the State of Maharashtra an employee is exempted from
paying any court-fee, other than the fee for service of process, for making
such application; but at the same time the Government is empowered to
recover the amount of such court-fee from the employer if the employee
succeeds in the application. S.21-A

Question 26.
 Q. Can a group of employees make a single application for claiming
minimum wages?

Answer 26.
A. A single application can be made on behalf or in respect of any number
of employees. S.21 & R.32

LABOUR LAW NO.13 – The Motor Transports Workers

Act, 1961

Question 1.
What is the purpose of Motor Transport Workers Acr

Answer 1.
Motor Transport workers constitute a special category of workers. They
have to work under certain peculiar conditions. For example, sometimes
they have to work on long distance motor transport routes; sometimes they
have to halt at odd inconvenient places at night; sometimes they are
caught in a breakdown or dislocation of motor transport service. The
existing labour legislation was not adequate to protect them from such
peculiar conditions of work. The Motor Transport Workers Act, 1961, a
special legislation, was therefore passed by the Central Government to
provide special protective measures for motor transport workers.

Question 2.
Q. What is the procedure for getting a motor transport undertaking
registered under the Act?

Answer 2.
A. (a) Every employer of a motor transport undertaking to which the Act
applies has to make an application in the prescribed form to the prescribed
authority for the registration of the undertaking under the Act. (b) After the
undertaking is registered under the Act a certificate of registration will be
issued to the employer. S.3

Question 3.
Q. Is the Payment of Wages Act made applicable to motor transport
workers?
Answer 3.
A. The Payment of Wages Act, 1936, as in force for the time being, is made
applicable to motor transport workers engaged in a motor transport
undertaking. S.25

Question 4.
Q. Is a motor transport worker precluded from seeking from his employer
more favourable rights and privileges?

Answer 4.
A. It is open for a motor transport worker to seek for and enter into an
agreement with his employer for granting him rights or privileges in respect
of any matter which are more favourable to him than those to which he
would be entitled under the Act. S.37

Question 5.
Q. What are the provisions of the Act about the grant of annual leave to
motor transport workers?

Answer 5.
A. The main provisions of the Act about the grant of annual leave with
wages are as follows: (a) a motor transport worker shall be allowed during
every calendar year annual leave with wages at the rate of 1 day for every
20 days of work performed by him during the previous calendar year
provided that he has worked for 240 days or more in the previous calendar
year; (b) leave can be accumulated by him upto 30 days; (c) leave
admissible to him will be exclusive of weekly holidays or holidays for
festival or other similar occasions whether occurring during or at either end
of the leave period; (d) wages for leave allowed to him shall be paid before
his leave begins if leave allowed is not less than 4 days; (e) in the case of a
motor transport worker who is discharged or dismissed from service, during
the course of the calendar year he shall be entitled to leave with wages at
the rate of 1 day for every 20 days of work performed by him during the
year irrespective of the fact that he has worked for 240 days or not. Ss.27
& 28

Question 6.
Q. What are the amenities to be provided by an employer for welfare and
health of motor transport workers?

Answer 6.
 A. An employer of a motor transport undertaking is required to provide- (a)
canteens for the use of motor transport workers in every place wherein 100
motor transport workers or more ordinarily call on duty during every day;
(b) rest-rooms or other suitable alternative accommodation for the use of
motor transport workers in every place wherein they are required to halt at
night; (c) uniforms, raincoats or other like amenities for drivers, conductors
and line checking staff; (d) readily available medical facilities at operating
centres and halting stations; and (e) a first-aid box readily available during
all working hours with the driver or conductor of the transport vehicle. The
employer is required to do all these things in conformity with the relevant
provisions of the Act or the rules made thereunder. Ss.8 to 12

Question 7.
Q. What are the restrictions on the working hours of motor transport
workers?

Answer 7.
A. The main restrictive provisions of the Act about the working hours of a
motor transport worker are as follows:- (a) a motor transport worker cannot
be required to work for more than 8 hours in a day and 48 hours in a week;
S.13 (b) he must be given an interval of rest of at least half an hour after 5
hours of work; S.15 (c) his hours of work inclusive of interval of rest cannot
be spread over more than 12 hours in a day; S.16 (d) his hours of work
cannot be split into more than 2 spells in a day; S.17 (e) his hours of work
on each day shall be so fixed that he is allowed a period of rest of at least 9
consecutive hours between the termination of duty on any one day and the
commencement of duty on the next following day; S.15 (f) he must be
given a day of rest in every period of 7 days. S.19 Note: The above
restrictions can be relaxed in the case of a motor transport worker engaged
in the running of any motor transport service on long distance routes or on
festive occasions.

Question 8.
Q. Is it permissible to employ a child, i.e., a person who has not completed
his 14th year, in a motor transport undertaking?

Answer 8.
A. The Act totally prohibits the employment of children in motor transport
undertakings. It says that no child shall be required or allowed to work in
any capacity in any motor transport undertaking. S.21

Question 9.
 Q. Can a motor transport worker resort to the remedy of an application
under Section 33-C(2) of the Industrial Disputes Act to recover his wages
from the employer?

Answer 9.
A. The Motor Transport Workers Act is a special enactment for the benefit
of motor transport workers. By Section 25 of the Act the provisions of the
Payment of Wages Act are made applicable to them. Thus there is a
special remedy available to them for the dispute with regard to payment of
wages. When there is a special remedy to approach the authority under the
Payment of Wages Act, exercise of jurisdiction under the Industrial
Disputes Act is not warranted. An application by the workman of motor
transport for wages under Section 33-C(2) of the Industrial Disputes Act is
not maintainable. Note: Held in Manager, Gati Cargo Management
Services v. Pandey Narendrakumar Rajitram 2005 III CLR 199 (Guj.H.C.)

Question 10.
Q. What is the provision of the Act regarding wages for overtime work?

Answer 10.
A. When a motor transport worker is required to work for more than 8 hours
in any day or when he is required to work on any day of weekly rest, he
shall be entitled to wages at double the rate of his ordinary rate of wages in
respect of the overtime work or the work done on the day of weekly rest, as
the case may be. S.26

Question 11.
Q. When a motor transport worker is already allowed under section 20 of
the Act a compensatory day of rest for being required to work on a regular
day of rest, is he also entitled to extra wages under section 26 of the Act for
being so required to work?

Answer 11.
A. The worker, apart from being entitled to a compensatory day of rest
under section 20 of the Act, is also entitled to extra wages under section 26
of the Act for the work done on a day of rest. Note:- Held in Thrivalluvar
Transport Corporation v. K.P. Rangaswami, 1994 I L.L.N. 821.

Question 12.
Q. Is the Bombay Shops & Establishments Act, 1948 applicable to a motor
Transport worker?
Answer 12.
A. The Supreme Court of India has held that the Bombay Shops and
Establishments Act as a whole cannot be held to have been abrogated by
the Motor Transport Workers Act and that the best of the both would be
available to the worker concerned. Note: See Kishorebhai Khamanchand
Goyal v. State of Gujarat, 2004 I C.L.R. 516 (S.C.).

Question 13.
Q. Is it permissible under the Act to exempt any worker or employer from
the application of the Act?

Answer 13.
A. The Act permits a State Government to direct, by notification in the
Official Gazette, that the provisions of the Act or the rules made thereunder
shall not apply to- (i) any motor transport workers who hold positions of
supervision or management in any motor transport undertaking; (ii) any
part time motor transport worker; and (iii) any class of employers. S.38

Question 14.
Q. Is it necessary to give any hearing to the employees likely to be affected
before the Government can exercise its power to exempt any
establishment from all or any of the provisions of the Act?

Answer 14.
A. The employees must be given at least an opportunity to put forward their
rebuttal evidence on material against the material furnished by the claimant
establishment. Note: Held in State of Tamil Nadu v. K. Subanayagam & Anr.
1998 I C.L.R. 132 (S.C.).

LABOUR LAW NO.15 – The Payment of Bonus Act,

1965
Question 1.
Q. What is the principle of set on and set off of allocable surplus?

Answer 1.
A. The principle of set on and set off of allocable surplus is as follows:
Where for any year the allocable surplus exceeds the amount of maximum
 bonus payable to the employees, then, the excess shall, subject to a limit
of twenty per cent of the total salary or wages of the employees, be carried
forward for being set on in the succeeding year and so on to be utilised for
the purpose of payment of bonus. Where for any year there is no available
surplus, or the allocable surplus in respect of that year falls short of the
amount of minimum bonus payable to the employees, and there is no
amount or sufficient amount carried forward and set on which could be
utilised for the purpose of payment of the minimum bonus, then, such
minimum amount or the deficiency, as the case may be, shall be carried
forward for being set off in the succeeding year and so on. S.15

Question 2.
Q. What is the time limit for making payment of bonus to the employees?

Answer 2.
A. If there is no dispute about payment of bonus, bonus must be paid
within a period of 8 months from the close of the accounting year. If there
is a dispute about the payment of bonus pending before any authority,
bonus must be paid within one month from the date on which the award in
respect of such dispute becomes enforceable or the settlement in respect
of such dispute comes into operation. In all cases bonus must be paid in
cash. S.19

Question 3.
Q. Is it open to employees and employers to agree for grant of bonus
under a formula different from that under the Act?

Answer 3.
A. Employees can enter into an agreement or a settlement with their
employer for granting them bonus under a formula different from that
under the Act, i.e. bonus linked with production or productivity; but subject
to the provisions of the Act in respect of payment of minimum and
maximum bonus. Ss.31A and 34

Question 4.
Q. Can an establishment be deemed to be newly set up by reason of a
change in the ownership of the establishment?

Answer 4.
A. When the ownership of an establishment is transferred from one person
to another, the establishment remains the same and it cannot be said to be
 a new establishment in the hands of the transferee. Note 1: Held in Central
Inland Water Transport Corporation Ltd. v. Their Workmen, 1975 I LLJ 117.
Note 2: An establishment will not be deemed to be newly set up by reason
of change in its same, location or management. S.16, Explanation I

Question 5.
Q. Is an employee entitled to be paid bonus for the period during which he
is laid off and is paid lay off compensation?

Answer 5.
A. According to section 14 of the Act an employee shall be deemed to
have worked on the days on which he has been laid off. During the period
of lay-off he is paid lay-off compensation which is not excluded from the
purview of the definition of wages under the Act. He is therefore entitled to
be paid bonus for the period. Note:- Held in Mohankumar v. Deputy Labour
Commissioner, 1996 II CLR 154 (Kerala H.C.).

Question 6.
Q. Is an employee, who is illegally dismissed from service and whose
dismissal is set aside by the Labour Court, entitled to get bonus for the
years during which he was out of service due to the dismissal, despite the
provision of Section 8 of the Act that an employee is entitled to be paid in
an accounting year, bonus, provided he has worked in the establishment
for not less than thirty working days in that year?

Answer 6.
A. Section 8 of the Act speaks of an employee working in the establishment
for not less than thirty working days in an year to make him eligible for
bonus for that year. But, when an employee, for no fault of his and
involuntary, is prevented from working in the establishment for the
prescribed number of days, it does not axiomatically follow that he is
ineligible for bonus. Note: - Held in Ahamed Hussain v. Management of
Swadeshi Cotton Mills, 1999 II CLR 59 (Mad.H.C.)

Question 7.
Q. Who are entitled to be paid bonus?

Answer 7.
A. Every employee who is drawing a salary or wage upto Rs. 10,000 per
month and who has worked for minimum period of 30 days in a year is
entitled to be paid bonus.
Question 8.
Q. Can an employee be held ineligible for payment of Bonus under the Act
on the ground that he is a managerial employee?

Answer 8.
A. An employee, irrespective of whether he is managerial or not, so long
as he came within the definition of employee by virtue of drawing salary
falling within the maximum prescribed under Section 2(13) of the Act, he
would be eligible for payment of bonus under the Act. Note: Held in T.N.
Water Supply & Drainage Board Workers' Federation, Madras v. T.N.
Water Supply & Drainage Board, 2002(1) L.L.N. 550 (Mad.H.C.)

Question 9.
Q. Is it permissible under the Act to exempt any establishment from the
provisions of the Act?

Answer 9.
A. The Act permits the Government to exempt any establishment from all
or some of the provisions of the Act for a specified period and subject to
specified conditions if, having regard to the financial position and other
relevant circumstances of the establishment, it is of opinion that it will be in
public interest to do so. S.36

Question 10.
Q. Are the newly set up establishments exempted from paying bonus to
their employees?

Answer 10.
A. The newly set up establishment is exempted from paying bonus to its
employees in the first five years following the year in which the employer
sells the goods produced or manufactured by him. If, however, the
employer derives profit in any of the first five years, he has to pay bonus
for that year. The provisions of set on and set off are not applicable in such
cases. S.16

Question 11.
Q. What is the object of the Payment of Bonus Act, 1965?

Answer 11.
 A. The object of the Act is to maintain peace and harmony between labour
and capital by allowing the employees to share the prosperity of the
establishment reflected by the profits earned by the contributions made by
capital, management and labour. Note: - Observation of the Supreme Court
of India in M/s. Jalan Trading Co. v. Mill Mazdoor Sabha, 1966 I LLJ 546.

Question 12.
Q. What is to be included in and excluded from a salary or wage for the
purpose of calculating bonus?

Answer 12.
A. For the purpose of calculation of bonus a salary or wage includes a
basic salary or wage and dearness allowance but does not include other
allowances, overtime salary or wage, house rent allowance, travelling
concessions, bonus, employer's contribution to provident fund,
retrenchment compensation, gratuity or commission. S.2(21)

Question 13.
Q. What is the principle behind fixing a minimum and maximum limit for
payment of bonus?

Answer 13.
A. The principle behind fixing a minimum and maximum limit for payment
of bonus is that the rate of bonus should not fluctuate widely from year to
year. Note:- Held in M/s. Jalan Trading Co. v. Mill Mazdoor Sabha, 1966 II
LLJ 546 (S.C.).

Question 14.
Q. What is the meaning of "available surplus" and "allocable surplus"?
What is the connection between allocable surplus and bonus?

Answer 14.
A. Bonus payable under the Act is linked with profits. The employer has to
calculate "gross profits" of his establishment in the manner specified in
section 4. Then, from "gross profits" so calculated he has to deduct the
sums referred to in section 6 as prior charges. The balance is called
"available surplus". A percentage of the available surplus calculated in
accordance with the provisions of sub-section (4) of section 2 is called
"allocable surplus." Where, in respect of any year the allocable surplus
exceeds the amount of minimum bonus payable to the employees, the
employer must pay to every employee in respect of that year bonus in
 proportion to the salary or wage earned by the employee during the year
subject to a maximum of twenty per cent of such salary or wage. Ss.2(4),
4, 5, 6 & 11

Question 15.
Q. Is an employee entitled to be paid bonus for the period during which he
is suspended from employment and is paid subsistence allowance?

Answer 15.
A. An employee must be taken to have not worked during the period of his
suspension. During the period of his suspension he is paid subsistence
allowance which is not salary or wages for work done and which is not an
amount paid by way of remuneration. He is therefore not entitled to be
paid bonus for the period. Note: - Held in Motor Industries Co. Ltd. v. Popat
Murlidhar Patil & Ors. 1997 I CLR 169 (Bombay).

Question 16.
Q. Is the employer required to maintain any registers under the Act?

Answer 16.
A. Every employer is required to maintain, in the prescribed form, the
following three registers: (1) a register showing the computation of the
allocable surplus; (2) a register showing the set-on and set-off of the
allocable surplus; (3) a register showing the details of the amount of bonus
payable to each of the employees, the amount of deductions if any, and
the amount actually paid. The employer is also required to send, in the
prescribed form, an annual return to the Inspector appointed under the Act.
The time limit for sending the annual return is thirty days from the expiry of
the time limit specified in section 19 for payment of bonus. S.26 & R.4 & 5

Question 17.
Q. Are the establishments in public sector covered by the Act?

Answer 17.
A. According to sub-section (2) of Section 20, save as otherwise provided
in sub-section (1), nothing in the Act shall apply to the employees
employed by any establishment in public sector. By the said sub-section
(1) the provisions of the Act are made applicable in relation to an
establishment in public sector which sells any goods produced or
manufactured by it or renders any services in competition with an
establishment in private sector and earns income from such sale or
 services or both an quantified in the said sub-section. S.20

Question 18.
Q. Is an employee entitled to get bonus on the basis of his entire salary or
wage?

Answer 18.
A. If an employee is drawing a salary or wage not exceeding Rs. 3,500 per
month, he is entitled to get bonus on his entire salary or wage. If an
employee is getting a salary or wage exceeding Rs. 3,500 per month, but
not exceeding 10,000 per month, the bonus payable to him is to be
calculated as if his salary or wage were Rs. 3,500 per month. An employee
getting a salary or wage exceeding Rs. 10,000 per month is not entitled to
get bonus. S.12

Question 19.
Q. What is the amount of minimum bonus payable by the employer to his
employees every year?

Answer 19.
A. The employer is bound to pay to his employees every year a minimum
bonus of 8.33% of the salary or wage or Rs.100, whichever is higher,
whether he has any allocable surplus or not. S.10

Question 20.
Q. What is the amount of maximum bonus payable by the employer to his
employees in any year?

Answer 20.
A. When in any year the allocable surplus exceeds the amount of
minimum bonus payable to the employees, the maximum bonus payable
by the employer to his employees in that year is 20% of the salary or
wage. S.11

Question 21.
Q. What is the remedy provided under the Act for recovering bonus due
but not paid?

Answer 21.
A. If any bonus is due to an employee under a settlement, award or
 agreement, he can make an application for its recovery to the Government
and the Government may issue a certificate to the Collector to recover the
same as an arrear of land revenue. Such application should be made
within one year from the date on which bonus became due to the
employee from the employer. S.21

Question 22.
Q. What are the offences under the Act and what is the punishment for
them?

Answer 22.
A. If any person contravenes any provision of the Act or any rule made
thereunder; or fails to comply with any direction given to him; he would be
punished with imprisonment upto 6 months, or with fine upto Rs.1,000, or
with both. S.28

Question 23.
Q. Is it open to the employer to pay bonus based on production or
productivity?

Answer 23.
A. It is open to any employer to pay bonus linked with production or
productivity instead of bonus based on profits, if there is an agreement to
that effect between him and his employees, but subject to the provisions of
the Act in respect of payment of minimum and maximum basis. S.31A

Question 24.
Q. Is the Government competent to exempt any establishment from the
mandatory provision of the Act regarding payment of minimum bonus?

Answer 24.
A. Both sections 10 and 36 are contemporaneous provisions in the Act. It
is patent from the phraseology of section 36 that the Government has the
competence to exempt any establishment even from section 10
notwithstanding that section 10 is mandatory. Note:- Held in Associated
Publishers (Madras) Ltd. v. Government of Tamil Nadu & Ors. 1985 I CLR
73.

Question 25.
Q. Can an establishment whose application under Section 36 of the act for
 exemption for a particular period is rejected by the Government, make a
second application for the same period?

Answer 25.
A. The Government has no power to entertain the second application for
the same period. Note: Held in Sarva Udyog Kamgar Sangh v. Jawahar
Engineers (P) Ltd., 2002 (3) L.L.N. 692 (Bom.D.B.)

Question 26.
Q. If a management has a number of departments, undertakings or
branches, should they be treated as separate establishments or as one
composite establishment?

Answer 26.
A. If an establishment consists of different departments or undertakings or
has branches, whether situated in the same place or in different places,
unless a separate balance-sheet and profit and loss account are prepared
and maintained in respect of them, all such departments or undertakings
or branches should be treated as parts of the same establishment for the
purpose of computation of bonus, and once they are treated as parts of
the same establishment, they should be continued to be treated as such.
S.3

Question 27.
Q. What is the meaning of customary bonus?

Answer 27.
A . Customary bonus is bonus which is being paid by way of tradition or
custom at a uniform rate over a number of years and which has no link
with profit. Note:- Held in Workmen of Kettlewell Bullen & Co. Ltd. v.
Kettlewell Bullen & Co. Ltd. 1994 I CLR 511.

Question 28.
Q. Is the ceiling limit of a salary or wage of an employee fixed under
Section 2(13) of the Act illegal and invalid?

Answer 28.
A. The provision imposing the ceiling is constitutionally valid. Note: Held in
UCO Bank Employees Association v. Union of India, 2002 III C.L.R. 954
(Mad.H.C.)
Question 29.
Introduction

Answer 29.
The Payment of Bonus Act, 1965, gives to the employees a statutory right
to a share in the profits of his employer. Prior to the enactment of the Act
some employees used to get bonus but that was so if their employers
were pleased to pay the same. @F3 = The Payment of Bonus Act, 1965
The Act enables the employees to get a minimum bonus equivalent to one
month's salary or wage (8.33% of annual earnings) whether the employer
makes any profit or not. But the Act also puts a ceiling on the bonus and
the maximum bonus payable under the Act is equivalent to about 2 1/2
months' salary or wage (20% of annual earnings). It is to be noted that
employees drawing salary or wage exceeding Rs. 10,000 per month are
not entitled to get any bonus under the Act.

Question 30.
Q. To which establishments is the Act applicable?

Answer 30.
A. The Act is applicable to: (a) every factory (b) every other establishment
employing 20 or more persons. The Government can, however, apply the
Act to any establishment employing less than 20 but not less than 10
persons. An establishment to which the Act applies shall continue to be
governed by the Act irrespective of any fall in the number of persons
employed therein. S.1 Note:- The Government of Maharashtra, by a
Notification dated 11.4.1984, has applied the Act to factories and other
establishments employing 10 or more but less than 20 persons, with effect
from the accounting year 1983.

Question 31.
Q. Is a seasonal worker entitled to get bonus?

Answer 31.
A. Section 8 relates to the eligibility for bonus. The only requirement of that
section is that the employee should have worked in an establishment for
not less than thirty working days in an accounting year. Therefore, if a
seasonal worker has worked in an establishment for more than thirty
working days, he shall be entitled to get bonus. Note: Held in J.K Ginning &
Pressing Factory v. The Presiding Officer, Second Labour Court, Akola &
Ors., 1990 II CLR 868.
Question 32.
Q. Can any amount be deducted from the bonus?

Answer 32.
A. (1) If in any year the employer has paid any amount to an employee as
customary bonus, then he can deduct such amount from bonus payable to
the employee for that year. (2) If an employee is found guilty of misconduct
causing financial loss to the employer, then the employer can deduct the
amount of loss from the amount of bonus payable to the employee for the
year in which he was found guilty of misconduct. Ss.17 and 18

Question 33.
Q. How to raise a dispute about bonus payable under the Act?

Answer 33.
A. A dispute about bonus payable under the Act will have to be raised by
the employees concerned in accordance with the provisions of the
Industrial Disputes Act, 1947, or any corresponding State law, as is
applicable to them, as such a dispute is deemed to be an industrial dispute
within the meaning of such laws. Ss.22 and 39

Question 34.
Q. Are there any categories of employees who are excluded from the
application of the Act?

Answer 34.
A. The employees of Life Insurance Corporation of India, Reserve Bank of
India, Unit Trust of India, Central Government and State Government
industrial establishments and Universities and other educational institutions
are some of the excluded categories. S.32

Question 35.
Q. Are employees employed through contractors on building operation
entitled to get bonus?

Answer 35.
A. Section 32 provides that the Act shall not apply to certain classes of
employees. Clause (vi) of the said section refers to "employees employed
through contractors on building operation". This clause is deleted by the
 Payment of Bonus Amendment Ordinance, 2007 with retrospective effect
from 1st April, 2006. The said class of employees is, therefore, entitled to
get bonus with retrospective effect from 1st April, 2006.

Question 36.
Q. Can an employer be required to pay bonus in excess of 20 per cent on
the ground that bonus payable by him is linked with production or
productivity in lieu of bonus based on profits?

Answer 36.
A. An employer is disabled from paying bonus in excess of 20 per cent
even if bonus is linked with production or productivity. Note: Held in
E.S.P.R. Employees Association v. Additional Labour Commissioner 2004
III CLR 691 (Ker.H.C.)

Question 37.
Q. Can workmen of an establishment claim the bonus payable under the
Payment of Bonus Act, 1965, over and above attendance bonus?

Answer 37.
A. As attendance bonus which was being paid by the establishment was
outside the purview of the Payment of Bonus Act, 1965, workmen of the
establishment can claim the bonus payable under the Act over and above
the attendance bonus. Note: - Held in B.A.B.M. Union, Patna v.
Management of S.B.A.B. Pvt. Ltd. & Ors. 1984 I LLJ 116.

Question 38.
Q. In what circumstances an employee is disqualified from receiving
bonus?

Answer 38.
A. If an employee is dismissed from service for (a) fraud; (b) riotous or
violent behaviour while on the premises of the establishment; (c) theft,
misappropriation, or sabotage of any property of the establishment; he is
disqualified from receiving bonus. S.9

Question 39.
Q. Is an establishment employing employees to whom the Payment of
Bonus Act is not applicable because of Section 32 of the Act required to
seek any specific exemption under Section 36 of the Act?
Answer 39.
A. An exemption under Section 36 of the Act from all or any of the
provisions of the Act may be sought by an establishment to which the Act
is applicable and whose employees are otherwise entitled to bonus. In the
case of establishment employing employees to whom the Act is not
applicable because of Section 32, the question of seeking any specific
exemption under Section 36 of the Act does not arise. Note:- Held in Sita
Bhateja v. Presiding Officer, Second Additional Labour Court, 1999 II CLR
725 (Karn.H.C.)

LABOUR LAW NO.16 – The Payment of Gratuity Act,

1972
Question 1.
Q. What is the maximum amount of gratuity payable to the employee?

Answer 1.
A. The maximum amount of gratuity the employee can get is rupees Ten
Lakhs from 24.5.2010. S.4(3)

Question 2.
Q. Can the provisions of the Act be invoked to claim gratuity payable in
terms of the provisions other than the Act?

Answer 2.
A. The provisions of the Act can be invoked only by "a person who is
eligible for payment of gratuity under the Act". They cannot be invoked if
the gratuity claimed is not under the Act. Note:- Held in Ayyappan v. Joint
Labour Commissioner, 1998 (2) KLT 399 (Kerala).

Question 3.
Q. If an employer wants to file an appeal against any order of the
Controlling Authority directing payment of gratuity, is he required to comply
with any condition at the time of filing the appeal?

Answer 3.
A. The second proviso to Section 7(7) of the Act provides that no such
appeal shall be admitted unless the employer has deposited the gratuity
 amount either with the Controlling Authority or with the Appellate Authority.

Question 4.
Q. Since what date has the Act come into force?

Answer 4.
A. The Act has come into force from 16th September, 1972.

Question 5.
Q. Can a Government servant make an application to the Controlling
Authority for payment of gratuity under the Act?

Answer 5.
A. A person who holds a civil post under the Central Government or a
State Government and is governed by any other Act or by any rules
providing for payment of gratuity is excluded from the definition of an
"employee" given under Section 2(e) of the Act. The provisions of the Act
shall not apply to him. He cannot make an application to the Controlling
Authority for payment of gratuity under the Act nor can the Controlling
Authority entertain such application. Note: See Junagadh District
Panchayat v. Surendrasinh Dayabhai Rathod & Ors. 2007 I CLR 718
(Guj.H.C.)

Question 6.
Q. Did the Legislature intend standardisation of the gratuity scheme
contemplated by the Payment of Gratuity Act?

Answer 6.
A. No standardisation of the gratuity scheme contemplated by the
Payment of Gratuity Act was intended by the Legislature. An employee
could obtain better terms of gratuity by an award, agreement or contract
with the employer. Note:- Held in Workmen of Metro Theatre Ltd., Bombay
v. Metro Theatre Ltd., Bombay, 1981 II LLJ 348.

Question 7.
Q. In what contingency the employer has to pay gratuity to his employees?

Answer 7.
A. The employer has to pay gratuity to his employees:- (a) when the
service of the employee is terminated on superannuation; or (b) when the
 employee retires or resigns from service; or (c) when the employee dies
while in service; or (d) when the service of the employee is terminated on
his disablement due to accident or disease. S.4(1)

Question 8.
Q. Is a person holding a post under the Central Government or a State
Government "employee" under the Act?

Answer 8.
A. A person who holds a post under the Central Government or a State
Government and is governed by any other Act or by any rules providing for
payment of gratuity is excluded from the definition of "employee" under the
Act. S.2(e) Note:- See also Municipal Committee, Tohana v. The Appellate
Authority under the Payment of Gratuity Act, 1972 & Ors. 1994 I CLR
1000.

Question 9.
Q. Is a trained or untrained teacher covered by the definition of `employee'
under Section 2(e) of the Act?

Answer 9.
A. In Ahmedabad (P.) Primary Teachers' Association v. Administrative
Officer, 2004 I C. L. R. 495, the Supreme Court of India has held as
follows. Trained or untrained teachers are not `skilled', `semi-skilled',
`unskilled', `manual', `supervisory', `technical' or `clerical' employees. They
are also not employed in `managerial' or `administrative' capacity.
Occasionally, even if they do some administrative work as part of their duty
with teaching, since their main job is imparting education, they cannot be
held employed in `managerial' or 'administrative' capacity. Teachers are
clearly not intended to be covered by the definition of `employee'.

Question 10.
Q. Is every employee employed in a factory, mine, etc., who has rendered
minimum 5 years' service eligible for payment of gratuity irrespective of the
rate of the wages drawn by him?

Answer 10.
A. By Act No. 34 of 1994 the higher amount of wages for definition of
"emplyees" is removed. Now from 24.5.1994 all the employees irrespective
of their wages are eligible for Payment of Gratuity.
Question 11.
Q. What is the meaning of the expression "moral turpitude"?

Answer 11.
A. "Moral turpitude" is an expression which is used to describe conduct
which is inherently base, vile, depraved or having any connection showing
depravity. It means anything done contrary to justice, honesty, modesty or
good morals.

Question 12.
Q. Does an application for recovery of dues under the Payment of Gratuity
Act lie under section 33-C(2) of the Industrial Disputes Act?

Answer 12.
A. The Payment of Gratuity Act constitutes a complete code covering all
the essential features of a scheme for payment of gratuity. Parliament
intended that proceedings for payment of gratuity due under the Payment
of Gratuity Act must be taken under that Act and not under any other Act.
Therefore an application for recovery of dues under the Payment of
Gratuity Act does not lie under section 33-C(2) of the Industrial Disputes
Act. Note: - Held in State of Punjab v. Labour Court, 1981 I LLJ 354.

Question 13.
Q. Is the employer required to display an abstract of the Act in the
establishment?

Answer 13.
A. Every employer must display an abstract of the Act and the Rules made
thereunder in English and in the language understood by the majority of
the employees at a conspicuous place at or near the main entrance of the
establishment. Rule 20

Question 14.
Q. Is a person employed in a managerial or administrative capacity eligible
for payment of gratuity?

Answer 14.
A. According to the definition of employee, as it stood before its
amendment by Act No.25 of 1984, a person employed in a managerial or
administrative capacity was not eligible for payment of gratuity. By the said
 Amending Act No.25 of 1984, which came into effect from 1.7.1984, the
definition of employee was modified to include a person employed in a
managerial or administrative capacity and therefore he is eligible for
payment of gratuity.

Question 15.
Q. Can the appellate authority condone the delay in preferring an appeal?

Answer 15.
A. The appellate authority can condone the delay (1) if there was sufficient
cause for not preferring the appeal within the prescribed period of
limitation of sixty days, and further (2) if the delay was not more than sixty
days. Note:- See Special Officer, Salem Co-operative Primary Land
Development Bank v. Deputy Commissioner of Labour, 1997 LIC 136
(Mad.H.C.).

Question 16.
Q. Is gratuity payable on the basis of basic wages only?

Answer 16.
A. Gratuity is payable on the basis of all emoluments earned by the
employee, i.e. basic wages plus dearness allowance. S.2(s)

Question 17.
Q. What is the rate of gratuity payable to the employee?

Answer 17.
A. Gratuity is payable to the employee at the rate of 15 days' wages for
every completed year of service or part thereof in excess of six months;
based on the rate of his last drawn wages. In the case of monthly rated
employee, the rate of one day's wages is to be computed by dividing the
monthly wages by 26 working days. S.4(2)

Question 18.
Q. Is there any contingency in which the employer has to pay gratuity at
higher rate or of higher than the maximum amount?

Answer 18.
A. The employer will have to pay gratuity at higher rate or of higher than
the maximum amount as compared to that prescribed by the Act, if there is
 any award, agreement or contract between him and the employee to that
effect. In other words, if the terms of the award, agreement or contract are
better than the provisions of the Act, the former will prevail over the latter.
S.4(5)

Question 19.
Q. In what circumstances the employee loses his gratuity?

Answer 19.
A. (a) The employee may wholly or partially forfeit the gratuity payable to
him if his services are terminated (1) for his riotous or disorderly conduct
or any other act of violence on his part or (2) for any act which constitutes
an offence involving moral turpitude. (b) The employee partly forfeits the
gratuity payable to him if his services are terminated for any act, wilful
omission or negligence, causing any damage or loss to, or destruction of,
property belonging to the employer, to the extent of damage or loss
caused. S.4(6)

Question 20.
Q. What is the duty of an employer while exercising his right under Section
4(6) to forfeit the gratuity of an employee for the damage or loss caused by
him to the property belonging to the employer?

Answer 20.
A. The words "to the extent of the damage or loss" used in Section 4(6)
are very important. The determination of the amount of damage or loss
caused by the employee should be just and proper. It is a well settled
principle that one cannot be a Judge of his own cause. The employer
should assess the amount of damage or loss with the help of a competent
authority and establish the liability of the employee. Note: See Baroda
Traders Co-op. Bank Ltd. v. Mahendrabhai B. Shah, 2006 I CLR 764
(Guj.H.C.).

Question 21.
Q. If the services of an employee had been terminated for committing theft
in the course of his employment, does he forfeit the whole of his gratuity?

Answer 21.
A. Theft is an offence involving moral turpitude and consequently if the
services of an employee had been terminated for committing theft in the
course of his employment, the gratuity payable to him under the provisions
 of the Act stands wholly forfeited in view of the provisions of section 4(6)(b)
(ii) of the Act. Note:- Held in Bharath Gold Mills Ltd. v. Regional Labour
Commissioner, 1987 I CLR 189.

Question 22.
Q. To which establishments is the Act applicable?

Answer 22.
A. The Act is applicable to:- (a) every factory, mine, oilfield, plantation, port
and railway company; (b) every shop or establishment in which ten or
more persons are employed; and (c) such other establishments in which
ten or more employees are employed as the Central Government may
specify in this behalf. S.1(3)

Question 23.
Q. Is a person entitled to any interest if the payment of gratuity due to him
is delayed?

Answer 23.
A. Due to the amendment of the Act in 1987, if the amount of gratuity due
to any person is not paid by the employer within thirty days from the date it
becomes payable, the employer is required to pay, from the date on which
the gratuity becomes payable to the date on which it is paid, simple
interest on the amount due. The Central Government has fixed the rate of
simple interest at ten per cent per annum for the time being. S.7(3-A)

Question 24.
Q. What are the obligations of the employer in respect of the employee's
claim for payment of gratuity?

Answer 24.
A. (a) As soon as gratuity becomes payable to the employee, the employer
has to determine the amount of gratuity and inform the employee as well
as the Controlling Authority about it in writing. He shall pay the amount of
gratuity within thirty days. (b) If the employer receives an application from
the employee and accepts his claim, the employer has to inform the
employee in Form L about the amount of gratuity and the proposed date of
payment thereof, within 15 days of the receipt of the application. (c) If the
employer does not accept the claim of the employee, he has to inform the
employee in Form M about the reason why the claim is not accepted by
him, within 15 days of the receipt of the application. (d) The employer has
 to pay the amount of gratuity in cash or, if so desired by the employee, by
Demand Draft or Bank Cheque. If the employee so desires and the
amount is less than Rs.1,000, payment may be made by postal money
order after deducting the postal money order commission thereof from the
amount. S.7and Rr.7 and 9

Question 25.
Q. What is the procedure the employee has to follow for claiming gratuity
from the employer?

Answer 25.
A. (a) The employee who is eligible for payment of gratuity has to send a
written application to the employer in Form I within 30 days from the date
gratuity becomes payable. (b) If the employer does not take any action on
the application, the employee has to apply to the Controlling Authority in
Form N within 90 days of the occurrence of the cause for the application
for issuing necessary direction to the employer for making payment of
gratuity. (c) If the employee is aggrieved by the order of the Controlling
Authority, he can prefer an appeal to the Appellate Authority within 60 days
from the date of the receipt of the order. (d) If the amount of gratuity is not
paid by the employer, in spite of the order of the Controlling Authority or
the Appellate Authority as the case may be, the employee has to apply to
the Controlling Authority in Form T for recovery thereof through the
Collector as arrears of land revenue. Rl. 7 and 10 and Ss.7(7) and 8

Question 26.
Q. Can an employee file a writ petition to claim a higher amount of gratuity
than what is fixed by the Controlling Authority?

Answer 26.
A. If an employee is aggrieved by any order passed by the Controlling
Authority, he should file an appeal before the Appellate Authority. Note:
Held in Jayantibhai Nathalal Darji v. Panchmahal Dist. Co-op. Bank Ltd. &
Anr. 2005 III CLR 758 (Guj.H.C.)

Question 27.
Q. Can the Appellate Authority remand a matter to the controlling Authority
for a fresh decision?

Answer 27.
A. Under section 7(8) of the Act the Appellate Authority has power to
 confirm, modify or reverse the decision of the Controlling Authority. The
said section does not confer any specific power on the Appellate Authority
to remand a matter to the Controlling Authority for a fresh decision. Note:
Held in Tiruchangode Agricultural Producers Co-op. Marketing Society Ltd.
V. Appellate Authority under Payment of Gratuity Act, 2002 I L.L.J. 1105
(Mad.H.C.)

Question 28.
Q. The Payment of Gratuity Rule No. 7 provides that an employee who is
eligible for payment of gratuity under the Act, shall make an application to
the employer within thirty days from the date the gratuity became payable.
Does it mean that the claim of the employee shall become extinguished in
case he fails to make the application within the said period?

Answer 28.
A. The Rule is intended only to give to the employee an opportunity to
seek expeditious payment of gratuity by the employer, who in any case is
bound to pay gratuity to the employee. It is not possible to read in the Rule
any such limitation that in case no application is made by the employee
within thirty days, the claim shall become extinguished. Note: - Held in P.
Rama Rao v. Controlling Authority under Payment of Gratuity Act, 1996
L.I.C. 2765 (A.P.).

Question 29.
Q. If an employee is prevented from making an application for payment of
gratuity to the Controlling Authority within the prescribed period of
limitation of ninety days, can the Controlling Authority accept his
application after the expiry of the said period?

Answer 29.
A. Under the first proviso to Rule 10(1) the Controlling Authority is given
power to condone the delay in making the application within the said
period if sufficient cause is shown by the applicant for not making the
application within the said period. S.7, R.10

Question 30.
Q. Can the Government or the Collector stay an order passed in recovery
proceedings under Section 8 of the Act or grant instalment facilities to the
employer?

Answer 30.
Question 31.
Q. Can the Government or the Collector stay an order passed in recovery
proceedings under Section 8 of the Act or grant instalment facilities to the
employer?

Answer 31.
A. Once an order is passed under Section 8 of the Act, no authority can
touch the order so passed. If the Government interferes with the order, that
will be negation of rule of law which we cannot think of in our democratic
polity. The Government is expected to aid and help the implementation of
such order. Note: -Held in Muraleedharan v. District Collector, 1996 II CLR
157 (Kerala).

Question 32.
Q. When an employee files an application for recovery of gratuity under
Rule 10(1) more than 90 days after the occurrence of the cause for the
application, is it necessary to file a separate application for condonation of
delay?

Answer 32.
A. The wording of the proviso to Rule 10(1) goes to show that no such
separate application is necessary. The proviso says that the Controlling
Authority may accept any application under Rule 10(1) after the expiry of
the specified period if sufficient cause is shown by the employee for not
filing the application within the specified period. Note:- Held in Natrajan
Pillai v. Regional Joint Labour Commissioner, 1993 I CLR 927.

Question 33.
Q. Does an appeal lie against an order of a Controlling Authority
condoning the delay in filing an application for payment of gratuity?

Answer 33.
A. An order of a Controlling Authority condoning the delay in filing an
application for payment of gratuity is not a final order and, therefore, no
appeal lies against such order under . S.7(7)

Question 34.
Q. Can gratuity payable under the Act be attached by any Court?
Answer 34.
A. Gratuity payable under the Act cannot be attached in execution of any
decree or order of any civil, revenue or criminal Court. S.13 Note:- If the
employee is dead then the gratuity becomes payable to the heirs of the
employee and the same becomes attachable in the hands of the employer
as the employer is legally bound to pay the said gratuity to the legal heirs
of the employee. Ramvati v. Krishnagopal & Ors 1988 I CLR 253
(Del.H.C.)

Question 35.
Q. What is the effect of other schemes of gratuity which are inconsistent
with i.e. inferior to the provisions of the Payment of Gratuity Act, 1972?

Answer 35.
A. If there is any inferior scheme of gratuity under any other Act, or in any
instrument or contract made under any other Act, the same will be
superseded by the provisions of the Payment of Gratuity Act, 1972, and
will have no effect whatsoever. S.14

Question 36.
Q. What are the offences under the Act and what is the punishment for
them?

Answer 36.
A. (1) If any person, for the purpose of avoiding any payment to be made
under the Act, knowingly makes or causes to be made any false statement
or false representation he would be punished with imprisonment upto 6
months, or with fine upto Rs.10,000 or,with both. (2) If any employer
contravenes, or makes default in complying with any provisions of the Act
or any rule or order made thereunder, he would be punished with
imprisonment upto 1 year, or with fine upto Rs.20,000, or with both. S.9

Question 37.
Introduction

Answer 37.
An employee expects and deserves, as a matter of right, some reward
when he retires after a long meritorious service. The enactment of the
Payment of Gratuity Act, 1972, has fulfilled this expectation of an
employee. Under the Act an employee becomes entitled to earn gratuity
 after putting in service of minimum five years. When an employee dies
while in service his nominee or heirs are entitled to get gratuity even if the
employee had put in less than 5 years' service. The rate of gratuity is 15
days' salary for every year of service but the total amount of gratuity
cannot exceed rupees Three Lakhs and fifty thousand.

Question 38.
Q. What is the object of the Payment of Gratuity Act, 1972?

Answer 38.
A. The payment of Gratuity Act, 1972, has been passed with the object of
providing a uniform scheme for payment of gratuity to industrial workers
throughout the country.

Question 39.
Q. Has the Central Government applied the Act to any other
establishments?

Answer 39.
A. The Act has been made applicable to (1) Motor Transport Undertakings,
(2) Clubs (3) Inland Water Transport Establishments (4) Local Bodies and
(5) Solicitors Offices.

Question 40.
Q. Is the Act applicable to the establishments of the Poona Cantonment
Board?

Answer 40.
A. The Poona Cantonment Board is a local authority. A local authority is an
establishment within the meaning of that word as defined under section
2(1)(e)(i) of the Contract Labour (Regulation and Abolition) Act, 1970. The
said Act is a law in force in the State of Maharashtra in relation to shops
and establishments in that State. The Payment of Gratuity Act is therefore
applicable to the Poona Cantonment Board by virtue of the provision
contained in section 1(3)(b) of the said Act. Note 1:- Held in Poona
Cantonment Board v. S.K. Das & Ors. 1993 II CLR 731.

Question 41.
Q. Is a shop or establishment covered by the Payment of Gratuity Act even
if the relevant Shops Act is not applied specifically to the area in which the
 shop or establishment is situated?

Answer 41.
A. What is material is that any law in relation to Shops and Establishments
should be in force in a State in which a shop or establishment is situated. It
is needless for the purpose of the applicability of the Payment of Gratuity
Act that the Shops Act must be applied specifically to the area in which the
shop or establishment is situated. Note: - Held in Rula Krishi Kendra v.
Controlling Authority under Payment of Gratuity Act, 1990 II CLR 323.

Question 42.
Q. As the Act came into force from 16th September, 1972, is gratuity
payable to the employees for service rendered from that date only?

Answer 42.
A. Gratuity is payable to the employees for services rendered even prior to
16th September, 1972, although the Act has come into force from the said
date. Note:- Held in Duncan Agro Industries Limited v. Subbanna B. 1984 I
LLJ 96.

Question 43.
Q. Is a retrenched employee entitled to gratuity?

Answer 43.
A. Retrenchment means termination of service and termination of service
is covered by the definition of retirement under the Act. Retrenchment of
an employee falls within the scope of section 4(1)(b) of the act under
which gratuity is payable to an employee on his retirement. Retrenched
employee is therefore entitled to gratuity. Note:- Held in State of Punjab v.
Labour Court, Jullunder 1981 I LLJ 354.

Question 44.
Q. What is the minimum length of service required for earning gratuity?

Answer 44.
A. In order to earn gratuity the employee has to render minimum five
years' service. S.4(1)

Question 45.
Q. Is the condition of five years' minimum service applicable in the case of
 death or disablement of the employee?

Answer 45.
A. In the case of death or disablement of the employee gratuity becomes
payable to his nominee or heirs even if he has rendered less than five
years' service. S.4(1)

Question 46.
Q. What is the maximum amount of gratuity payable to the employee?

Answer 46.
A. The maximum amount of gratuity the employee can get is rupees Three
Lakhs and Fifty Thousand. S.4(3)

Question 47.
Q. Whom can the employee nominate for the purpose of receiving the
payment of gratuity in the event of his death?

Answer 47.
A. If the employee has a family, he must nominate one or more members
of the family and none other. If the employee has no family, he can
nominate any person or persons of his choice. However, if the employee
acquires a family after nominating any person or persons of his choice,
such nomination becomes invalid and the employee has to make a fresh
nomination of one or more members of his family. S.6 & R.6

Question 48.
Q. Can a gratuity claim be denied on the ground that it is not made in the
prescribed form?

Answer 48.
A. Formats are being prescribed for convenience so that requisite
information is furnished. The claimant has the right to prefer the claim on
his own application furnishing all the required information. Note:- Held in
General Secretary, Vakkaligara Sangha, Bangalore & Anr. v. R.
Chandramouli & Ors. 2002 II CLR 1070 (Karn.H.C).

Question 49.
Q. Can the Collector direct payment of any interest on the amount of
gratuity recovered under section 8 of the Act?
Answer 49.
A. When the Collector issues a certificate for recovery of the amount of
gratuity as a public demand under section 8 of the Act, he can direct
payment of compound interest thereon at the rate of 15 per cent per
annum. S.8 Note:- See also Charan Singh v. Birla Textiles & Anr. 1988 II
CLR 477.

Question 50.
Q. Can an Industrial Tribunal award gratuity in a reference made in respect
of an establishment which employs less than ten persons and therefore is
excluded from the applicability of the Payment of Gratuity Act?

Answer 50.
A. An Industrial Tribunal has no jurisdiction to entertain a demand for
gratuity and award the same in a reference made in respect of an
establishment which employs less than ten persons and therefore is
excluded from the applicability of the Payment of Gratuity Act. Note: - Held
in Rashtriya Hair Cutting Salloon v. Maharashtra Kamgar Sabha, 1991 I
CLR 408.

Question 51.
Q. Can a Civil Court adjudicate upon any matter covered by the Act?

Answer 51.
A. By reason of the provisions of section 14 of the Act, the procedure
contained in the Act has an overriding effect and therefore no civil court
has justification to adjudicate upon any matter covered by the Act. Note:-
Held in Surendra Vikram Singh v. Kanhaya Lal Agarwalla, 1996 LIC 797
(Calcutta).

LABOUR LAW NO.17 – The Weekly Holidays Act, 1942

Question 1.
Q. If a cleaner of a parked lorry, while proceeding to a nearby hotel to
bring tiffin to the driver of the lorry, was dashed by another lorry and died
due to the grievous injuries sustained by him, did the accident occur out of
and in the course of his employment?
Answer 1.
A. The job which the cleaner had undertaken is nothing but notional
extension of his duty. It was ancillary and incidental to his employment.
Only on account of his employment as a cleaner on the lorry, he had to be
in that particular spot at that particular moment. Otherwise he could not
have been there at all. The accident has to be construed as `arising out of
and in the course of employment'. Note: Held in New India Assurance
Company Ltd. v. P. Padmavathi (Smt.) & Ors. 2005 II CLR 1048 (A.P.H.C.)

Question 2.
Weekly Holidays

Answer 2.
1. All shops shall remain entirely closed on one day of the week. (S.3)

Question 3.
Persons not covered under the Act

Answer 3.
6. The person employed in a confidential capacity or in a position of
management shall not be covered by the provisions of the Act.

Question 4.
Introduction

Answer 4.
The Weekly Holidays Act was enacted by the Central Government in 1942
when there was no shops legislation in many States and persons
employed in shops were reqired to work on all the seven days of the week.
The Act provides for the grant of weekly holiday to persons employed in
shops, restaurants and theatres. Under the Act a State Government is
empowered to bring the Act in force in a specified area within the State by
issuing a notification in the Official Gazette. The main provisions of the Act
are as follows.

Question 5.
Additional Half day closing

Answer 5.
2. The State Government may require that all shops shall remain closed
 on a fixed day in each week for additional one half day in the afternoon.
(S.5)

Question 6.
Additional half day holiday

Answer 6.
4. The State Government may require that every person employed in all
theatres and restaurants shall be allowed on a fixed day in each week an
additional holiday of one half day in the afternoon.(S.5)

Question 7.
Power of exemption

Answer 7.
7. The Central Government or a State Government may exempt any shop,
restaurant or theatre from all or any specified provisions of the Act. (S.11)

Question 8.
Power of suspension

Answer 8.
8. The Central Government or a State Government may, on any special
occasion in connection with a fair or festival or a succession of public
holidays, suspend for a specified period the operation of the Act. (S.11)