UNFAIR LABOUR PRACTICES AND VICTIMIZATION

By: Manshika Mittal

BBA LLB (hons.) Specialization in Corporate Law

INTRODUCTION
An unfair Labour practice involves various acts on the part of the employer or the organization of the
labour that leads to the violation of a right or protection which is under the labour laws applicable.
These include numerous activities such as refusal to process a grievance as an employee is not a
member of the trade union, threatening an employee for filing a ULP charge, refusing to negotiate in
good faith. There are numerous activities which are being categorized as unfair labour practices on the
part of the employer, employee and the trade union under the Industrial Disputes (Amendment) Act,
1982. The one who is indulging in such kind of unfair labour practices is also liable for a punishment
under the aforesaid act. Under the act there is no exhaustive definition or test laid down to determine
whether an activity is unfair practice or not. Thus, it depends on the facts and the circumstances of the
case and the court of law to determine whether the act in question amounts to an unfair labour practice
or not. The term “victimization” is also not being defined under the code. It simply means in legal
parlance that a when a person is being subjected to or threatened by some other person to any detriment
he is being victimized. Thus, for example if a person is being dismissed from the job after a complaint
of sexual violence has been filed by the employee against the employer amount to victimization.
Industrial Disputes (Amendment) Act, 1982 explicitly means victimization as an unfair labour practice.

EVOLUTION OF CONCEPT OF UNFAIR LABOUR PRACTICES UNDER

INDUSTRIAL DISPUTE ACT, 1982
Before the independence that is prior to the year 1947 there was not any legislation to prevent or to
have control over the unfair labour practices. But in 1947, the Trade Unions (Amendment) Act, 1947
came up and started recognizing the following activities as unfair labour practices on the part of
recognized trade union:1

1. The act of taking part in an irregular strike by majority of the members of the trade union.

2. The act on the behalf of the executive of the trade union to support actively or to advice or
instigate any kind of irregular strike.

3. The act on the behalf of the officer of the trade union to submit required by or under

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The Trade Unions (Amendment) Act, 1947
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 this Trade Unions (Amendment) Act, 1947 containing false statements. The following activities
were deemed to be unfair labour practices on the part of the employer-

- The act of restraining or coercing or interfering with the workmen when they are exercising
their right to organize, form, join or assist a trade union, or to engage in concerted activities for
the purpose of mutual aid or protection.

- The act of interfering with the formation or contributing any financial support or otherwise to
the trade union.

- The act of discriminating against any officer of a recognized trade union merely because of his
post.

- The act of discharging or discriminating otherwise against a workman merely based on the fact
that he has made allegations or given evidence in an inquiry or proceeding relating to any
matter referred in Section 28-F(1) of Trade Unions (Amendment) Act, 1947 .

- The failure to comply with the provision of Section 28 F.

This Trade Unions (Amendment) Act, 1947 never came to force and become lapsed. Thus, as there
was no legislation pertaining to the unfair practices, people were bound to rely merely on the
pronouncements made by the court of law. The Code of Discipline, 1958 was there and mentioned
numerous activities and practices as unfair on the behalf of trade union, employer and for both. But this
code was never enforced and it only acted like a gentlemen agreement.

Therefore, later in 1969, it was recommended by National Commission on Labour that there is a need
of a legislation which specifies the activities to be unfair labour practices on the behalf of the trade
union and the employers. This recommendation enumerates the urgent need to amend the Industrial
Disputes Act, 1947. As there was not any central legislation, The State of Maharashtra enacted the
Maharashtra Recognition of Trade unions and Prevention of Unfair Labour Practices Act, 1971. This
act is considered as a landmark in the development of legislation with regard to unfair labour practices.
Under this act, the meaning of unfair labour practices and the activities which amount to unfair one are
mentioned under Schedules II, III and IV. Also, under Chapter VI, VII and VIII of this act, the
Industrial and Labour Courts have been empowered to deal with unfair practices.

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Unfair labour practice is defined under Section 2(ra) of the Industrial Disputes (Amendment) Act,
1982 as “any practice which is mentioned or specified under the Fifth Schedule” of the said act.

The unfair labour practices as enumerated under the Fifth Schedule are-
Unfair Labour Practices- On the part of employers and the trade union of the employers2:

1. The act of interfering , restraining, or coercing the workmen while they are exercising their
right to organize, form, join or assist a trade union. The act of engaging in concerted activities
for the purposes o f collective bargaining or other mutual aid or protection. Such activities for
example are-
- To threat workmen with respect to any discharge or dismissal on their joining of any trade
union.
- To threaten a lockout or closure in case a trade union is organized
- To grant an increase in wages to the workmen at crucial and important period of the trade
union with an intention to undermine the efforts being done by the organization of the trade
union

2. The act of dominating, interfering or contributing any financial support or otherwise to the trade
union. Such activities for example are-
- The act of the employer to take an active interest in the organization of a trade union of the
workmen
- The partiality or favour on the part of the employers granted to a particular trade union
which is not recognized one, with an intention and purpose to organize the members of such
trade union.

3. The act of establishing a trade union of the workmen which is sponsored by the employer.

4. The act of encouraging or discouraging the workmen with regard to the membership of the
trade union by way of discrimination being done against workmen. Such activities for example
include-
- To punish or to discharge a workman merely on the ground because he encouraged other
workmen to join or organize a trade union.
- To discharge or dismiss the workman on the ground that he took part in a strike which is
also not an illegal one.
- To change the rating of the seniority based on the activities of the trade union
- The act to refuse the promotion of a workman merely because of his activities in the trade
union.

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Fifth Schedule of the Industrial Disputes (Amendment) Act, 1982
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 - To give unfair and unmerited promotions to some workmen with an intention to create
discord between the workmen and to degrade and undermine the strength of the trade union
to which they belong.
- To discharge or to dismiss the active members or the office bearers a trade union merely
based on their activities in a trade union.

5. The act of discharging or dismissal of the workmen on the following grounds/ways-

- By the way of victimization
- By the way of the exercise of the colourable rights of the employers not in a good way
- By the way of penalizing and falsely implicating a workman in a criminal case based on the
false or on concocted evidences.
- By the way of any patently false reasons.
- By the way of imposing untrue and false allegation on the ground of absence without leave
- By the way of conducting domestic enquiry by disregarding the principles of natural justice
or with undue haste
- On the ground of any minor or technical misconduct , leading to disproportionate
punishment, without having any past record or without having any regard with respect to the
nature of that particular misconduct.

6. The act of abolishing the work of a regular nature that is being done by the workmen and
assigning such work to the contractors in order to break the strike.

7. The act of transferring a workman from one place to another with a malafide intention under the
guise of following the management policy

8. The act of insisting an individual workman to sign a good conduct bond with a promise that he
would be allowed to resume the work, who is currently on a legal strike.

9. The act favouring or partiality without any ground of merit with respect to a particular set of
workmen.

10. The act of employing workmen as casual or temporary workers or as badlis for years with an
intention of depriving them of the status and privilege of being a permanent workman.

11. The act of discharging any workman or discrimination done to a workman with respect to filing
of charges or testifying in an enquiry or proceeding against any employer concerned with an
industrial dispute.

12. The act of recruitment of workmen during a strike which is not illegal.

13. The failure on the behalf of the employer to implement an award, settlement or an agreement.
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 14. The act of indulging in any kind of violence or force.

15. The refusal to do collective bargaining with the recognized trade unions in good faith.

16. The act of proposing or continuing any lock out which is deemed to be illegal under the
provisions of the Industrial Disputes (Amendment) Act, 1982

Unfair Labour Practices- On the part of workmen and trade union of the workmen3:

1. The act of advising , supporting actively, or instigating any strike which is deemed to be illegal
under the provisions of the Industrial Disputes (Amendment) Act, 1982

2. The act of coercing the workmen while they are exercising their right of self organization or to
coerce or refrain them from joining any trade union. Such acts for example include
- Picketing by a trade union or its members in such matters that result in physically debarring
non-striking workers from entering the workplaces.
- Indulging in the acts of violence or force, holding threats of intimidation with respect to a
strike against the managerial staff or the workers which are not a part of such strike.

3. The act of a recognized trade union to refuse doing collective bargaining with the employer in
good faith.

4. The act of indulging in the activities against the certification of a bargaining representative
which are coercive in nature.

5. The of stating, encouraging, or instigating coercive actions as to wilfully ‘go slow’, squatting on
the workplace after the working hours, gherao of any managerial members or any person of
other staff.

6. The act of stating demonstrations at the residence of the members of the managerial staff or the
employers.

7. The act of inciting or indulging in causing wilful damage to the property of the employer
connected with the industry.

8. The act of indulging in the acts involving the use of force or violence or to hold out threats of
intimidation against any workman with a view to prevent him from attending work.
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Fifth Schedule of the Industrial Disputes (Amendment) Act, 1982
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Punishment for Unfair Labour Practices
As per Section 25 T of the Industrial Disputes (Amendment) Act, 1982: No employer or workman or a
trade union, whether registered under the Trade Unions Act, 1926, or not, shall commit any unfair
labour practice4. Thus, Section 25 T prohibits unfair practices.

As per Section 25 U of the Industrial Disputes (Amendment) Act, 1982 :Any person who commits any
unfair labour practice shall be punishable with imprisonment for a term which may extend to 6 months
or with fine which may extend to Rs.1000/- or with both5.

Thus, Section 25 T provides for prohibition of unfair trade practices and Section 25 U provides for
penalty for conducting unfair labour practices.

Case Laws:
1. L.H. Sugar Mills v. Its Workmen, (1961 I LLJ 686)

In this case the court held that the phrase “unfair labour practices” cannot be given an exhaustive
definition as its meaning can only be interpreted depending upon the circumstances of the case. Also,
not even an exhaustive test can be formulated in order to determine whether a practice is unfair labour
practice or not. The only basic principle that would be applicable is that if an act is violating the Article
436 of the Constitution it would surely amount to an unfair labour practice.

2. EVEREADYFLASH LIGHT COMPANY v. LABOUR COURT, BAREILLY (Allahabad

High Court, (1961) 2 L LJ 204)

Facts: In this case Mr Sharma was appointed as a temporary daily rated workman and was sent to
probation of six months after four days of appointed after being tried. This duration of probation could
be extended by the company on its discretion. Later, Mr Sharma was elected as a member of the trade
union. After some months, Mr Sharma was terminated from the service on the ground that he has
shown no improvement in his work despite after giving repeated warnings. An industrial dispute was
raised by the union with this regard.

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Section 25 T of the Industrial Disputes (Amendment) Act, 1982
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Section 25 U of the Industrial Disputes (Amendment) Act, 1982
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Article 43 of The Constitution of India: The State shall endeavor to secure, by suitable legislation or economic
organization or in any other way, to all workers, industrial or otherwise, work, a living wage, conditions of work ensuring a
decent standard of life and full enjoyment of leisure and social and cultural opportunities.

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Issue: Whether the act of the employer is considered to be an unfair labour practice as under Section
28K7 of the Indian Trade Unions (Amendment) Act, 1947.

Judgement: It was held by the labour court that the act of the company on putting Mr Sharma on
probation even after being tried amounts to an unfair labour practice as the intend behind this is only to
avoid or delay making him a permanent workman. A writ petition was filed by the company in High
Court. Such petition was dismissed on the grounds that the act of the company to deprive the workman
of his permanent status amounted to an unfair labour practice on the part of the employer. Thus, the
award by the labour court is apt and fair.

3. REGIONAL MANAGER, S.B.l. v. RARESH KUMAR TEWARI (Supreme Court, 2006

LLR 209)

Facts: In this case the respondent was appointed as a daily wage worker by the branch of the appellant
bank. Even after 87 days of working in that capacity, the respondent was not issued any appointment
letter and a demand was raised by him under section 33 C (2)8 of the Industrial Disputes Act, 1947.
Such demand was duly accepted and paid by the appellant. Later, an industrial dispute was raised by
the respondent stating that his services were wrongfully terminated by the appellant. It was claimed by
the respondent such termination is violative of section 25 H of the Industrial Disputes Act, 1947 9. The
Labour Court in this case decided that that the termination was violative of the Section 25 G 10 and 25 H
of the Industrial Dispute Act, 1947 as two employees Pawan Kumar and Rakesh Kumar Tewari had
been appointed as temporary workmen by the appellate. It was held that therefore the service of Pawan
Kumar should have been dispensed with and not the respondent's. This decision of Labour Court was
challenged by the appellant under Article 226 of the Constitution before the High Court. The High
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Section 28 K. Unfair practices by employers—^The following shall be deemed to be unfair
practices on the part of an employer, namely.—
(a) to interfere with, restrain or coerce his workmen in the exercise of their rights to
organize, form, join or assist a Trade Union and to engage in concerted activities for
the purpose of mutual aid or protection;
(b) to interfere with the formation or administration of any Trade Union or to contribute
financial aid or other support to it;
(c) to discharge, or otherwise discriminate against any officer of a recognized Trade Union
because of this being such officer.
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Where any workman is entitled to receive from the employer any money or any benefit which is capable of being
computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such
benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by
such Labour Court as may be specified in this behalf by the appropriate Government; 1 within a period not exceeding three
months:
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Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such
manner as may be prescribed, give an opportunity 2 to the retrenched workmen who are citizens of India to offer themselves
for re- employment and such retrenched workman] who offer themselves for re- employment shall have preference over
other persons.
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Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a
particular category of workmen in that establishment, in the absence of any agreement between the employer and the
workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that
category, unless for reasons to be recorded the employer retrenches any other workman.
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Court held that the Labour Court was right and that the appellant's appointment amounted to unfair
labour practice and was violative Section 25H of the Act. This decision was challenged by the
appellant by Special Leave Petition under Article 136 of the Constitution.

Issue: Whether the Labour Court is right in stating the termination of the respondent's service was
violative of Section 25G of the Industrial Disputes Act, 1947 or not?

Judgement: The decision of the High court was overruled by the Supreme Court stating that numerous
workmen had been appointed even before appointment of respondent on a temporary basis. On the
basis of Sections 25G or 25H those have prior rights to reemployment over the respondent. Thus, this
does not amount to unfair labour practice as the consideration allegedly by the respondent been
reinstated equitably.

4. WORKMEN OF M/s. WILLIAMSON MAGOR& Co. LTD. V. M/s. WILLIAMSON

MAGOR& CO. LTD (Supreme Court, (1982) IL LJ 33)

In this case the court stated that the term “victimization” is not defined in the act. The court here cited
the case Bharat Bank Limited v. Employees of Bharat Bank Limited [1950 LLJ 921] in which it
was held that victimization only means that a person is a victim as some injustice is done to him. In
order to get a more clear meaning the court cited the case KCP Employees Association, Madras v.
Management o f KCP Limited, Madras and others [19771 LLJ, 322] in which it was observed that
in industrial law case should be decided in favour of the weaker section i.e. labour based upon the facts
and law considering part IV of the Constitution. Thus, in this case appeal was allowed and it was held
that even if promotion may not be a condition of service in a private company promotion shall be made
by the management in terms of the norms/rules so framed as directed to be made in consultation with
the workmen and under the supervision and control of the Labour Commissioner of the region.

CONCLUSION
The phrase “unfair labour practices” cannot be given an exhaustive definition as its meaning can only
be interpreted depending upon the circumstances of the case. Also, not even an exhaustive test can be

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formulated in order to determine whether a practice is unfair labour practice or not. The only basic
principle that would be applicable is that if an act is violating the Article 43 of the Constitution and is
against the principles of the delegated legislation would surely amount to an unfair labour practice.
Also, the term “victimization” is not defined in the act. Victimization only means that a person is a
victim as some injustice is done to him. Industrial law case should be decided in favour of the weaker
section i.e. labour based upon the facts and law considering part IV of the Constitution.

BIBILIOGRAPHY
1. The Industrial Disputes (Amendment) Act, 1982
2. The Industrial Disputes Act, 1947
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value-sc
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