MODULE 1: REGULATION OF TRADE

UNION & UNFAIR LABOUR PRACTICES

Unfair Labour Practices and

Victimization
 Unfair Labour Practices

• A new schedule V has been added by the Industrial Disputes

(Amendment)Act,1982. In this Schedule unfair labour practices have been
defined. It contains a list of such practices as are treated unfair on part of the
employers or their Trade Unions ,or on the part of workmen and their Trade
Unions
 On the part of employers and trade unions of employers

1. To interfere with, restrain from, or coerce, workmen in the exercise of their right to organise, form,
join or assist a trade union or to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, that is to say:—
(a) threatening workmen with discharge or dismissal, if they join a trade union;

(b) threatening a lock-out or closure^ if a trade union is organised;

(c) granting wage increase to workmen at crucial periods of trade union organisation, with a view
to undermining the efforts of the trade union organisation.
2. To dominate, interfere with or contribute support, financial or otherwise, to any trade union,
that is to say:—

(a) an employer taking an active interest in organising a trade union of his workmen; and
(b) an employer showing partiality or granting favour to one of several trade unions attempting
to organise his workmen or to its members, where such a trade union is not a recognised trade union.

3. To establish employer sponsored trade unions of workmen.

Contd.

• 4. To encourage or discourage membership in any trade union by discriminating against any

workman, that is to say:—
• (a) discharging or punishing a workman, because he urged other workmen to join or
organise a trade union;
• (b) discharging or dismissing a workman for taking part in any strike (not being a strike
which is deemed to be an illegal strike under this Act);
• (c) changing seniority rating of workmen because of trade union activities;
• (d) refusing to promote workmen to higher posts on account of their trade union activities;
• (e) giving unmerited promotions to certain workmen with a view to creating discord
amongst other workmen, or to undermine the strength of their trade union;
• (f) discharging office-bearers or active members of the trade union on account of their trade
union activities.
Contd.

5. To discharge or dismiss workmen—

(a) by way of victimisation;

(b) not in good faith, but in the colorable exercise of the employer’s rights;

(c) by falsely implicating a workman in a criminal case on false evidence or on concocted

evidence;

(d) for patently false reasons;

(e) on untrue or trumped up allegations of absence without leave;

([) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or

with undue haste; '

(g) for misconduct of a minor or technical character, without having any regard to the nature of

the particular misconduct or the past record or service of the workman, thereby leading to a

disproportionate punishment.
Contd..

6. To abolish the work of a regular nature being done by workmen, and to give such work to
contractors as a measure of breaking a strike.

7. To transfer a workman mala fide from one place to another, under the guise of following
management policy.

8. To insist upon individual workmen, who are on a legal strike to sign good conduct bond, as a
pre-condition to allowing them to resume work.
9. To show favouritism or partiality to one set of workers regardless of merit.

10. To employ workmen as “badlis”, casuals or temporaries and to continue them as such for
years, with the object of depriving them of the status and privileges of permanent workmen.

11. To discharge or discriminate against any workman for filing charges or testifying against an
employer in any enquiry or proceeding relating to any industrial dispute.
Contd.

12. To recruit workmen during a strike which is not an illegal strike.

13. Failure to implement award, settlement or agreement,

14. To indulge in acts of force or violence.

15. To refuse to bargain collectively, in good faith with the recognised trade unions.

16. Proposing or continuing a lock-out deemed to be illegal under this Act.

 II. On the part of workmen and trade unions of workmen.

1. To advise or actively support or instigate any strike deemed to be illegal under this Act,

2. To coerce workmen in the exercise of their right to self-organisation or to join a trade union
or refrain from joining any trade union, that is to say—

(a) for a trade union or its members to picketing in such a manner that non-striking workmen
are physically debarred from entering the work places;

(b) to indulge in acts of force or violence or to hold out threats of intimidation in connection
with a strike against non-striking workmen or against managerial staff.

3. For a recognised union to refuse to bargain collectively in good faith with the employer.

4. To indulge in coercive activities against certification of a bargaining representative.

Contd.

5. To stage, encourage or instigate such forms of coercive actions as wilful “go slow”,
squatting on the work premises after working hours or “gherao” of any of the members of
the managerial or other staff.

6. To stage demonstrations at the residences of the employers or the managerial staff

members.

7. To incite or indulge in wilful damage to employer’s property connected with the industry.

8. To indulge in acts of force or violence or to hold out threats of intimidation against any
workman with a view to prevent him from attending work.
• Prohibition of unfair labour practice – Section 25T
Section 25T provides that no employer or workmen or a trade union whether
registered under the trade Union Act, 1926 or not, shall commit any unfair
labour practice.
• Penalty for committing unfair labour practices – Section 25U
Section 25U provides that any person who commits any unfair labour practice shall be
punishable with imprisonment for a term which may extend to six months or with fine
which may extend to one thousand rupees or with both.
 Judicial Interpretation(Case laws)

• EVEREADYFLASH LIGHT COMPANY v. LABOUR COURT, BAREILLY Allahabad

High Court, (1961) 2 L LJ 204

The company appointed Shamia as a workman on a temporary daily rated basis, on 8th
January 1958, after trying him for four days. On 12th April, it issued a letter of appointment
putting Sharma on probation for a period of six months. The probation could be extended
from time to time in the company’s discretion. On 9th September, Sharma was elected a
member of the union’s working committee. On 10th September, he was given a written
warning that in spite of several oral warnings he had shown no improvement in his work. On
11th October, the warning was repeated. On 21st November, his services were terminated.
The union raised an industrial dispute over this issue.
Contd.
• The labour court held that there was no justification for putting him on probation after he
had been tried, that the condition in the alleged letter of appointment of 12th April putting
him on indefinite probation was unjustified,and “was done just to avoid or delay making
him a permanent hand”, and, hence, it amounted to an unfair labour practice. The company
filed a writ petition in the Allahabad High Court Excerpts from the judgment delivered by
Dhavan. J. follow:
• The most important question raised by counsel for the petitioner centres round the finding
of the labour court that the employer was guilty of unfair labour practice. Shri Khare
[counsel for the company] contended that this phrase should be given a restricted meaning.
He referred to the definition of “unfair practice” contained in the Indian Trade Unions
(Amendment) Act, 1947 (XLV of 1947). There is a special chapter in this Act dealing with
unfair practice. Section 28 J defines unfair practice by recognised trade unions and S 28k
deals with unfair practice by employers.......
• I am not inclined for several reasons to agree with the learned counsel’s contention that
the meaning of this phrase must be restricted to the definition contained in the Indian Trade
Unions (Amendment) Act, 1947. First, that Act has never come into effect.
Contd.

• Even assuming that this definition to some extent reflected the mind of the legislature at
the time of the passing of that Act, it was intended to apply only for the purposes of that
Act and no further. The purpose was to regulate the relations between the employer and the
trade union, and it was provided that in his relations with the trade union the employer
must not do anything which was calculated to weaken the trade union.
• Furthermore, the weight of authority is against the argument that unfair labour practice
should be limited to any act discouraging trade union activities. It has been held in several
cases that the employer who lays off .workers with the object of depriving them of their
legitimate dues, or makes his workmen sign on temporary contracts and compels them to
work for years on permanent jobs with the object of depriving them of the status and the
privileges of permanent workers, is guilty of unfair labour practice. If the argument of the
petitioner-company is accepted, the labour courts would have no power to condemn this
type of practice as unfair, for it has nothing to do with restriction of trade union activity.
• In L.H. Sugar Mills v. Its Workmen, (1961 I LLJ 686)
• I held that it was not possible to give an exhaustive definition of the phrase “unfair labour
practice” and that each question must be considered according to its own circumstances.
It is not possible to lay down any exhaustive test of unfair labour practice, but as a
working principle, I would hold that any practice which violates the principles of Art.
43of the Constitution and other articles declaring decent wages and living conditions for
workmen and which if allowed to become normal would tend to lead to industrial strife,
should be condemned as unfair labour practice..
• Learned counsel for the petitioner then argued that an employer cannot be held guilty of
unfair labour practice simply on the basis of one contract of employment
Contd.
• the argument that an employer must have committed a series of a unfair transactions before
he could be held guilty of unfair labour practice will lead to peculiar results. It would mean
that he must be permitted to victimize several workmen before he can be stopped. In my
view unfair labour practice may arise even out of a single transaction and the labour court
has power to give a finding even on the basis of one act of the employer .
• Their function is to prevent unfair labour practice and not merely to punish it after it has
been practiced. It is in the public interest, in my opinion, that even a single act of an
employer should be condemned if it amounts to an unfair labour practice, for the policy of
the legislature is to weed out any such practice before it has spread and become a danger to
the industrial peace.
Contd.
• Learned counsel for the petitioner also argued that the labour court had no power to change the case of the
workman who has pleaded that he had been victimized but not alleged that he was subjected to unfair labour
practice. I am not impressed by this argument. The dividing line between victimization and unfair labour
practice is very thin and what is unfair labour practice may also be a victimization and vice versa.....
• Counsel for the petitioner finally submitted that the labour court was wrong in holding that the workman was
entitled to the privileges of a permanent, worker on the date when his services were terminated. He relied on
several decisions in support of his contention that a workman can never acquire the status of a permanent
employee without a formal order of confirmation. This argument cannot be accepted in such broad terms. If a
workman cannot become permanent unless and until the employer issues a formal order to this effect, the
result would be that an employer could, by the simple device of not issuing formal orders, keep every
employee as temporary. The labour courts have been given the power to interfere with any such unfair
practice by the employer. In this case the finding is that the employer used this device to deprive the workmen
of his permanent status. On the material before it, was entitled to reach that conclusion. Its award is very fair
for though it has directed the reinstatement of the workman it has not allowed him any wages for the interim
period when he did not work for the company.
• In the result the petition fails and is dismissed with costs....
 REGIONAL MANAGER, S.B.l. v. RARESH KUMAR TEWARI Supreme Court, 2006 LLR 209

• The conclusion of the Tribunal in both appeals that the circulars

endorsed an unfair labour practice being followed by the appellant or
that the appellant had indulged in unfair labour practice was ...
incorrect. Unfair labour practice has been defined in Clause (ra) of
section 2 of the Act as a meaning any of the practices specified in the
Fifth Schedule.
• The Fifth Schedule to the Act contains several items of unfair labour
practices on the part of the employer on the one hand and on the part of
workmen on the other.
• The relevant item is item 10, which reads as follows;
• “To employ workman as ‘badlis’, casuals or temporaries and to
continue them as such for years, with the object of depriving them of
the status and privileges of permanent workmen.”
Contd.

• We have already dealt with this issue in ... Regional Manager, State Bank of India v. Raja Ram, (2004)

8 SCC 164

• where we had said:“before an action can be termed as an unfair labour practice it would be necessary for

the Labour Court to come to a conclusion that the badlis, casuals and temporary workmen had been

continued for years, as badli casuals or temporaiy workmen, with the object of depriving them of the'status

and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks‘ of-

the service of such workman would not allow the employer to avoid a charge of unfair labour practice.

However, it is the continuity of service of workmen over a period of years which is frowned upon.

Besides, it needs to be emphasized that for the practice to amount to unfair labour practice it must be

found that the workman had been retained on a casual or temporary basis with the object of depriving the

workman of the status and privileges of a permanent workman. There is no such finding in this case.

Therefore, item 10 in List 1 of the Fifth Sched,ule to the Act cannot be said to apply at all to the

respondent’s case and the Labour Court erred in coming to the conclusion that the respondent was in the

circumstances likely to acquire the status of a permanent employee.”

 Victimization

• Victimization means one of two things.

• One is when the workmen concerned is innocent and yet he is punished
because he has in some way displeased the employer. For example, by
being an active member of Union of workmen who were acting
prejudicially to the interests of the employer.
• The second instance is where an employee has committed an offence but
is given a punishment quite out of proportion to the gravity o the offence,
simply because he has incurred the displeasure of the employer, or where
the punishment is shockingly disproportion to the misconduct or is such
as no reasonable employer would impose under the circumstances. If an
employer punishes an employee for a wrong which someone else has
committed, it would be right to infer that the employee is victimized by
being made a scape-goat to him.
• WORKMEN OF M/s. WILLIAMSON MAGOR& Co. LTD.V . M/s. WILLIAMSON
MAGOR& CO. LTD.SC, (1982) IL LJ 33
• The word ‘’victimization” has not been defined in the statute. The term was considered by this
Court in the case of Bharat Bank Limited v. Employees of Bharat Bank Limited, reported in
[1950 LLJ 921], This Court observed. “It (victimization) is an ordinary English word which
means that a certain person has become a victim, in other words, that he has been unjustly dealt
with.
• “A submission was made on behalf of the management that case that “victimization” had
acquired a special meaning in industrial disputes and connoted a person who became, the victim
of the employer’s wrath by reason of his trade union activities and that the word could not relate
to a person who was merely unjustly dismissed.” This submission, however, was not considered
by the Court.
• When, however, the word “victimization” can be interpreted in two different ways, the
interpretation which is in favour of the labour should be accepted as they are the poorer section
of the people compared to the management.
Contd.

• This Court in the case of KCP Employees ’ Association, Madras v. Management of KCP Limited, Madras and
others, reported in [19771 LLJ, 322], observed:

• “In Industrial Law interpreted and applied in the perspective of part IV of the Constitution, the benefit
of reasonable doubt, on law and facts, if there be such doubt must go to the weaker section, labour.
The Tribunal will dispose of the case making this compassionate approach but without overstepping
the proved facts”.
• We would, therefore, accept the interpretation of the word “victimization” in the normal meaning of
being the victim of unfair and arbitrary action, and hold that there was victimization of the superseded
workmen.
• Even if promotion may not be a condition of service in a,private company and promotion may be the
function of the management, it may be recognized that there may be occasions where the Tribunal may
have to cancel the promotions made by the management where it is felt that persons superseded have
been so superseded on account of legal mala fide or victimization . Although in spite of the allegations
of mala fide, the union has not been able to prove factual mala fide, in this case malice in law and
effectual victimization are obvious due to the fact that unjustified promotions of some junior persons
were made superseding, without any reason or necessity, the case of a large number of senior persons.
Contd.

• As a result of the foregoing considerations, we allow the appeals and accepting the
findings of the Tribunal, give the following directions :
• 1. The management, in consultation with the workmen or their representatives and
under the direction, supervision and control of the Labour Commissioner of the region
shall frame norms/rules fixing quota for the grades and for promotion/upgradation of
its workmen, in the light of the observations made above, within two months from the
date of the receipt of a copy of thi^judgment by the Labour Commissioner.

• 2. The upgradation and/or promotion shall be made by the management in terms of the

norms/rules so framed.