UNIT 1

Laws Related to Industrial Relations and Industrial Disputes

1.1 Industrial Disputes Act, 1947

1. INTRODUCTION

The Industrial Dispute Act, 1947 is an important social legislation to provide for investigation and settlement of industrial disputes and for maintaining industrial functioning. It is enacted to ensure justice to both employers and workmen and to bring the progress of the industry by bringing cordial relationship between the parties. The act also enumerates the contingencies as to when a strike or lock-out can be lawfully resorted to, when they can be declared illegal. Conditions for laying-off retrenchment, discharging for dismissing a workman; circumstances under which an Industrial Establishment can be closed down and several other matters related to industrial employees and employers.

2.     IMPORTANT DEFINITION

Appropriate government [Section 2 (a)]: the central government and also the state government are given powers and duties. In relation to some industrial disputes, the Central Government is the appropriate government and in relation to some other disputes, the State Government is the appropriate government.

The appropriate government is the Central Government in relation to any industrial dispute carried on-

(a) By or under authority of the Central Government or

(b) By a Railway Company or

(c) Concerning controlled industry as may be specified by the Central Government; or

(d) Dock Labour Board or

(e) Industrial Finance Corporation of India Limited or

(f) Employees' State Insurance Corporation or

(g) The Board constituted under the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 or

(h) The Employees' Provident Fund and Miscellaneous Provisions Act, 1952 or

(i) The "Indian Airlines" and "Air India" Corporations established under the Air Corporations Act, 1953, or

(j) The Life Insurance Corporation of India or

(k) The Oil and Natural Gas Corporation or

(l) The Deposit Insurance and Credit Guarantee Corporation, or

(m) The Central Warehousing Corporation or

(n) The Unit Trust of India established or

(o) The Food Corporation of India or

(p)The International Airports Authority of India or

(q) A Regional Rural Bank or

(r) The Export Credit and Guarantee Corporation Limited or

(s) The Industrial Reconstruction Bank of India

(t) The National Housing Bank

(u) An air transport service

(v) A banking or an insurance company

(w) A mine, an oil field

(x) A Cantonment Board or a major port

In relation to any other industrial dispute, the State Government is the appropriate body.

(aa) Arbitrator: Arbitrator includes an umpire.

(aaa) Average Pay: "Average Pay" means the average of the wages payable to a workman, Average pay in the case of workmen means:

(i) In the Case of monthly paid workman -The average of monthly wages payable in three complete calendar months.

(ii) In the case of weekly paid workman -The average of the weekly wages payable in four complete weeks.

(iii) In the case of daily paid workman - The average of the wages for twelve full working days.

Award: 'Award' means an interim or final determination of any industrial dispute or of any question relating thereto. The determination must be made by any Labour Court, Industrial Tribunal or National Tribunal.

(bb) Banking Company: Banking Company means a banking company as defined in Sec. 5 of the Banking Companies Act, 1949.

(c) Board: Board' means a Board of Conciliation constituted under this Act.

(cc) Closure: Closure means the permanent closing down of a place of employment or part thereof.

      Penalty for Closure (Sec. 25R)

1. Any employer who closes down an undertaking without complying with the provisions of the Sub-Sec. () of Sec. 25O shall be punishable with imprisonment up to 6months, or with fine up to 5,000 or with both.

2. Any employer, who contravenes a direction given under Sub-Sec. (2) of Sec. 250 or Sec. 25-P, shall be punishable with imprisonment up to one year, or with fine up to2000 for every day during which the contravention continues after the conviction.

3. Any employer who contravenes the provisions of Sub-Sec. 25-O shall be punishable with imprisonment up to one month, or with tine up to 1000 or with both.

(d) Conciliation Officer 'Conciliation Officer' means a conciliation officer appointed under the Act.

(e) Conciliation proceeding: 'Conciliation Proceeding means any proceeding held by a Conciliation Officer or Board under the Act.

(ee) Controlled Industry: "Controlled Industry means any industry the control of which, by the Union has been declared by any Central Act to the expedient in the public interest That is, an industry which is controlled by the Central Government But it must also be declared by the Central Act to be controlled by the Union

(f) Court: "Court" means a Court of Inquiry constituted under this Act.

(g) Employer: "Employer" means, in relation to industries carried on by or under the authority of (i) Central Government, (ii) State Government, or (iii) Local Authorities.

(h)Executive: "Executive", in relation to a Trade Union means the body by whatever name called, to which by management of the affairs of the Trade Union is entrusted.

(j) Independent: Independent means, for the purpose of a person as Chairman or other member of a Board, Tribunal. In order that a person may be eligible for his appoint to these bodies, he must possess the following qualifications:

(i) He must be unconnected with industrial dispute in question, or

(ii) He must be unconnected with any industry directly affected by such dispute.

(j) Industry: Industry means any business, trade, undertaking manufacture or any service, employment, handicraft or industrial occupation or vocation of workmen.

(k) Industrial Disputes: Industrial Dispute is:

(i) a dispute or difference between (a) employers and employers, or (b) employers and workmen, (c) workmen and workmen;

(ii) the dispute or difference should be connected with (a) employment or non-employment, or (b) terms of employment, or (c) conditions of labour of any person;

(iii) the dispute maybe in relation to any workman or workmen or any other person in whom they are interested as a body.

(Ka) Industrial Establishment or Undertaking: it means an establishment or undertaking in which any industry is carried on; provided that, where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries.

(kk) Insurance Company: According to this sub-section, an insurance is one which company is defined in section 2 of the Insurance Act, 1938, having branches for other establishments in more than one state.

(kka) Khadi: "Khadi" has the meaning assigned to it in clause (d) of section 2 of the Khadi and Village Industries Commission Act, 1956.

(kkb) Labour Court: It means a Labour Court constituted under section 7 of the Industrial Dispute Act, 1947.

(kkk) Lay Off: means putting a side workman temporarily. The duration of lay off should not be for a period longer than the period of emergency. The employer-employee relationship does not come to an end during the period of layoff but is merely suspended during the period of emergency.

3.     AUTHORITIES

Introduction:

This act has provided different grievance redressal machineries or authorities. The various modes of settlement of industrial disputes provided oy the Act may be classified under three heads: (1) Conciliation (2) Adjudication and (3) Arbitration

The authorities that make use of conciliation on the sole method of settlement of disputes are:

1) Works Committee (2) Conciliation Officer (3) Board of Conciliation

The adjudicating authorities that decide any dispute under the Act are: (1) Court of Inquiry

(2) The Labour Court (3) Industrial Tribunal; (4) National Tribunal, and

Sec. 10A of the Act makes provision for voluntary reference of disputes to arbitration. Apart from the above, provision has also been made for constitution of Court of Inquiry, whose main function is inquire into any matter appearing to be connected with or relevant to an industrial dispute.

• Work Committee (Sec. 3)

(a) The works committee is considered to be powerful social institution only to secure cooperation between workers and employers, but to make the will of the employees effective on the management. In the case of an industrial establishment in which 100 or more workmen are employed or have been employed on any day in the preceding 12 months, the appropriate Government may, by general or special order require the employer to constitute a Works committee consisting of representatives of employers and workmen engaged in the establishment.

(b) The number of representatives of workmen on Works Committee shall be not being less than that of the representatives of the employers.

(c)The representatives of the workmen shall be chosen from among the workmen in consultation with their trade union, if any registered under the Indian Trade Union Act, 1926.

(d) The duties of the Works Committee are to promote measures for securing and preserving amity and good relations between th employers and workmen and to comment upon matters of their interest or concern and to endeavour to compose any material difference of opinion in respect of matters of common intents 0 concern of employers and workmen.

• Conciliation Officers (Sec. 4)

The appropriate Government may by notification in the official gazette appoint conciliation officers for any specified area or for one or more specified industries, either permanently or for a limited period of time Conciliation officers are charged with the duty of holding conciliatory proceedings for the purpose of bringing about a fair and amicable settlement of any industrial dispute.

• Powers of Conciliation Officer:

(a) According to Sec. 11 of the Act, conciliation officer may, for the purposd of inquiry into any existing or apprehended industrial dispute, afte giving reasonable notice, enter the premises occupied by any establishment which the dispute relates.

(b) He may call for and inspect any document which he has ground for considering being relevant to the industrial dispute or being necessary for the purpose of verifying the implementation of any award ot carrying out any duty imposed on him under the Act.

(c) He will have the same powers as one vested in a Civil Court in respect of compelling the production of documents.

(d) Under Sec. 11 (6), Conciliation Officers are members of Board or Court and the Presiding Officer of Labour Court Iribunal or National Tribunal shall be deemed to be public servants within the meaning ol Sec. 21 of IPC.

(e) Conciliation Officer has all powers of a Civil Court when trying a suil in respect Duties of Conciliation Officer (Sec. 13).

• Duties of Conciliation Officers (Sec. 12):

For the purpose of bringing about fair and amicable settlement of an industrial dispute, the Conciliation Officer is required to discharge th following duties:

(1) Where any industrial dispute exists or is apprehended, the Conciliation Officer, shall hold conciliation proceedings. He will interview both the workmen concerned with the dispute and endeavour to bring about a settlement.

(2) The conciliation Officer shall, for the purpose of bringing about a settlement of the dispute, investigate the dispute and all matters affecting the merits and the right settlement thereof and may 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.

(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the Conciliation Officer shall send a report thereof to the settlement singed by the parties to dispute.

(4) If no such settlement is arrived at, the Conciliation Officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.

(5) The report must be submitted within 14 days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government provided that, subject to the approval of the Conciliation Officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.

(6) After considering the report of the conciliation officer if the appropriate government is satisfied that there is a case for making the reference of the dispute, it may refer it to a Board, Labour Court, Tribunal or National Tribunal, as it may think proper.

(7) If the appropriate government does not make a reference, it shall record the reasons and communicate it to the parties concerned.

• Board of Conciliation (Sec. 5)

(a) The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute.

(b) The Board shall consist of a Chairman and two or four other members, as the appropriate Government thinks fit. The Chairman shall be an independent person and shall be appointed on the recommendation of the party they represent.

(c) The quorum for a meeting is two where the total number is three and three where the number is five. A Board, having a quorum, may act notwithstanding the absence of the chairman or any of its members, or any vacancy in its number.

(d) But, if the Government informs the board that the services of their Chairman or any other member have ceased to be available, the board

must not act until a new Chairman or member has been appointed.

(e) The powers, functions and duties of the Board of Conciliation are the same as those of the conciliation officer.

(f) The inquiry by the Board is more formal than the inquiry of their

conciliation officer. But like conciliation officer the Board also does not have the power to give a binding judgment.

• Courts of Inquiry (Sec. 6, 10, 11 and 14)

(a) The appropriate Government may, as occasion arises, by notification in the official Gazette, constitute a Court of Inquiry for inquiring into any matter appearing to be connected with or relevant to an industrial dispute.

(b) The Court may consist of one or more independent persons, as the Government may appoint.

(c) Where it consists of more than one member, one of them shall be appointed as Chairman.

(d) The Court having the prescribed quorum may act even if the Chairman or a member is absent; but not if the services of the Chairman have ceased to be available, and on other Chairman has been appointed.

(e) The Court shall inquire into the matters referred to it and report thereon to the appropriate Government within 6 months from the date of commencement of the inquiry.

(f) Members of Court of Inquiry shall deem to be public servants within the meaning of Sec. 21 of IPC. The Court of Inquiry, if it so thinks fit, appoints one or more persons having special knowledge of the matter under consideration as assessor or assessors to advise it in the proceeding before it.

(g) On a perusal of the relevant Sections 22, 23 and 33 of the Act relating to the Court during the pendency of a proceeding before a Court of Inquiry, the following right remain unaffected, such as:

(i) The right of a workman to go on strike

(ii) The right of an employer to lookout his business

(iii) The right of the employer to dismiss or otherwise to punish the workman in certain cases under Sec. 33

(h) The practical experience is that there has been very few occasions in which a court of Inquiry was appointed.

• Duties of Courts of Inquiry (Sec. 14)

(1) The Court of Inquiry of shall inquire into the matters referred to it and the report of Inquiry thereon be presented before the appropriate Government; ordinarily within a period of 6 months from the commencement of inquiry.

(2) The report of the Court of Inquiry shall be in writing and be signed by all the members of the Court, provided that a member may record a minutes of dissent also.

• Labour Court (Sec. 7, 11, 15)

The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any of the following matters or for performing such other function as may be assigned to them. The functions of the Labour Court as provided in the Act are:

(i) Adjudication of industrial disputes relating to any matter specified in the second schedule

(ii) Performing of such other functions as may be assigned to them under this Act. The following matters are specified in the Second Schedule:

(a) The propriety or legality of an order passed by an employer under Standing Orders;

(b) The application and interpretation of Standing Orders;

(c) Discharge or dismissal of workman including re-instatement of, or grant of relief to; workmen wrongfully dismissed;

(d) Withdrawal of any customary concession or privilege;

(e) Illegality or otherwise of a strike or lockout; and (f) All matters other than those specified in the third schedule.

(iii) A Labour Court shall consist of one person only.

(iv) Qualifications:

(a) He is, or has been a judge of a High Court; or (b) He has for a period not less than 3 years been a District Judge; or

(c) He has held the office of the Chairman of any other member of any tribunal, for a period of not less than seven years; or

(d) He has been the presiding Officer of a Labour Court constituted under any provincial Act for not less than five years.

• Powers of the Labour Court (Sec. 11)

Powers of the Labour Court to give appropriate relief in case of discharge or dismissal of workman are as under.

(1) The labour Court may follow such procedure that it may think fit.

(2) The Presiding Officer of the Court may, for the purpose of inquiry into any existing or apprehended dispute, enter into the premises occupied by any establishment to which the dispute relates.

(3) The Labour Court shall have all the powers as are vested to a Civil Court such as:

(a) Enforcing the attendance of any person and examining him on oath;

(b) Compelling the production of documents and material objects;

(c) Issuing commissions for the examination of witnesses;

(d) Powers in respect of other matters as may be prescribed. Every inquiry or investigation shall be a judicial proceeding

(4) Labour Court or National Tribunal may appoint one or more persons, having special knowledge, as an assessor to advise it.

• Duties of Labour Court (Sec. 15)

(1) Where an industrial dispute has been referred to Labour-Court, for adjudication, it shall hold its adjudication expeditiously and shall, submit its award to the appropriate Government. The award of Labour Court shall be in writing and be signed by its Presiding Officer (Sec. 16).

(2) every award of Labour Court shall within a period of 30 days from the date of its receipt by the appropriate government, be published by it in official Gazette. The award published by the appropriate Government shall be final and binding on the parties to dispute.

• Industrial Tribunals

(a) Industrial Tribunal is a judicial body or at any rate, a quasi-judicial body.

(b) The appropriate Government may by notification in the Official Gazette, constitute one or more industrial tribunals for the adjudication of industrial disputes relating to any matters specified above as in the case of Labour Court.

(c) Industrial Tribunals shall have the same power vested in a Civil Court when trying a suit, such as:

(i) Enforcing the attendance of any person and examining him on oath,

(ii) Compelling the production of document and material object,

(iii) Issuing commissions for the examination of witness and any such matters as may be prescribed.

• National Tribunals (Sec. 7B)

(a) The Central Government may, by notification in the Official Gazette, i constitute one or more National Tribunals for the adjudication of industrial disputes which, in the opinion of the Central Government involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes.

(b) A National Tribunal shall consist of one person only to be appointed by the Central Government.

(c) Qualifications: In order to be qualified as a Presiding Officer of a National 'Tribunal, a person must be or must have been a judge of a High Court, or must have held the office of the Chairman or any other member of the Labour Appellate Tribunal for at least 2 years.

(d) The Central Government may appoint two assessors to advise the National Tribunal, in proceeding before it.

(e) No person shall be appointed to, or continue in the office of the Presiding Officer of a Labour Court, Tribunal or National Tribunal if a) he is not an independent person or (b) he has attained the age of sixty-five years.

AWARD

Sec. 2(b) states 'Award' means an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court Industrial Tribunal or National Tribunal and includes an arbitration award made under Sec. 10A. The provisions relating to an award as follows:

1. The decision of an authority in an industrial dispute is known as award.

2. 'Award' means an interim or final determination of any industrial dispute or of any question relating to the dispute

3. The award becomes enforceable on the expiry of 30 days from the date of its publication.

4. The award is to be published by the appropriate government within 30 days from its receipt by the appropriate government.

5. An award is binding on all parties to the industrial dispute and all other parties summoned to appear in the proceedings as the parties to the dispute.

6. The award remains in operation for a period of 1 year from the date on which the award becomes enforceable. Such period may be reduced by the appropriate government if it thinks fit to do so.

7. The appropriate government has power to extend the period of operation of the award by any period not more than I year at a time. However, the total period of operation of any award shall not be more than 3 years from the date on which it comes into operation.

8. After the expiry of the period of 1 year or the years as the case may be, the award continues to be binding on the parties until it' s validity terminated by the any of the parties by giving statutory notice of 2 months.

9. Even after this notice the terms of award continue to remain in force until they are replaced by fresh award or settlement.

10. The award of a Labour Court, Industrial Tribunal or National Tribunal shall be in writing and shall be signed by its presiding officer.

11. The award which is published shall be final and shall not be called in question by any court in any manner whatsoever.

12. Where the appropriate government is of the opinion that it will be inexpedient on public grounds affecting national economy or social justice to give to the whole or any part of the award then it may by a notification declare that the award shall not become enforceable on

The expiry of the above mentioned period of 30 days.

13. Proceedings before the authorities shall be deemed to have commenced on the date of the reference and such proceedings shall be deemed to ave concluded on the date on which the award becomes enforceable.

14. Confidential matters given in Sec. 21 shall not be included in the award.

SETTLEMENT

Sec.2 (p) states 'settlement' means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workman arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties there to in such manner as may be prescribed and a copy thereof has been sent to an officer authorized in this behalf by the appropriate government and the conciliation officer.

The provisions relating to a settlement are summarized as following:

1. The parties to an industrial dispute may settle their disputes between themselves without intervention of any third party or

2. They may settle the dispute before the conciliation officer or before the Labour court or the Tribunal

3. Under this act a Settlement means a settlement made in the course of conciliation proceeding and includes a written agreement between the employer and workman arrived at directly without conciliation proceedings. This agreement should be signed by the parties in a prescribed manner and a copy of this agreement should be sent to the conciliation officer and other officer authorized by the appropriate government.

4. Settlement before Conciliation Officer: During the conciliation proceedings the parties may settle the industrial dispute. The settlement is also binding on the heirs, successors or assigns of the employer and all persons employed in the establishment on the date of the dispute and all other persons who subsequently become employed in that establishment.

5. Settlement outside the Conciliation: The settlement arrived at between the employer and workmen without the conciliation are binding only on the parties to the settlement. This settlement is considered to be arrived at under Sec. 18(1) read with Sec. 2 (p). In order to make the settlement valid from the procedural point of view, provisions of rule 62 of the Industrial Disputes (Bombay) Rules are to be followed they are:

(i) It should be in the prescribed form.

(ii) It is to be signed by the Secretary or the President of the Union or where there is no Union in the establishment then by5 representatives of the workmen duly authorized in this behalf at the meeting of the workmen held for the purpose.

(iii) Parties to the settlement have to send jointly the copies of the settlement to the Secretary to the Industrial and Labour Department, Commissioner of Labour, Deputy Commissioner of Labour and Conciliation Officer of the area.

6. Period of Operation of Settlement:

(i) The settlement comes into operation on the date agreed by the parties. If no date is agreed, then on the date on which the memorandum of the settlement is signed.

(ii) The settlement is binding for such period as is agreed upon by the parties. If no date is agreed upon, then for the period of 6 months from the date of settlement. The settlement continues to be binding after the expiry of the settlement period until terminated by the statutory period notice of 2 months in writing of the intention to terminate the settlement.

Even after the termination, the terms and conditions of the settlement continue to be in operation until they are replaced by fresh settlement or award.

7. Settlement before the Labour Court or the Industrial Tribunal: When an industrial dispute is pending before the Labour Court, the Tribunal or an Arbitrator, the parties to the dispute may settle the dispute between them and request the authorities to make an award in terms of settlement.

STRIKE

Sec. 2(q) defines Strike means cessation of work by a body of persons in any industry acting in combination, or a concerned refusal, or a refusal under a common undertaking, of any number of persons who are or have been so employed to continue to work or accept employment.

There are different types of strikes like - Pen down, tool down, stay in, sit down, go-slow, hunger strike etc.

• Legal and Illegal Strike

Under Sec. 22 strikes and lock-outs are prohibited. The conditions in this section are mandatory. The provisions related to strikes and lock-out are required to be understood with reference to the nature of the industry in which such strike has started or lock-out is declared.

Under this Act the Industries are classified into 2 groups:

(a) Public Utility Services

(b) Such industries which are not included within the meaning of public utility services.

• Prohibition of strikes and lockouts (Sec. 22 and 23)

Sec. 22 of the Industrial Disputes Act provides that:

(1) No person employed in a public utility service go on strike in breach of contract:

(a) Without giving notice of strike to the employer within six weeks before striking, or

(b) Within 14 days of giving notice, or

(c) Before the expiry of the date of strike specified in any such notice as aforesaid, or

(d) During the pendency of any conciliation proceedings and 7days after the conclusion of such proceedings.

• General Provisions of Strikes and Lockouts:

Sec. 23 of the Act provides that, "no workmen who are employed in any industrial establishment shall go on strike in breach of contract and on employer of any such workmen shall declare a lockout:

(i) During the pendency of conciliation proceeding before a Board, and 7 days after its conclusion.

(ii) During the pendency of proceeding before Labour Court, Tribunal or National Tribunal, and 2 months after its conclusion.

(iii) During pendency of arbitration proceedings before an arbitrator and two months after completion of such proceedings, where a notification has been issued under Sub Sec. (3A) of Sec. 10A; or

(iv) During the period of which a settlement or award is in operation in respect of the matters covered by such settlement or award.

LOCK-OUT

Introduction:

Lock-out is always from employer's side. Employer shut down the workplace as a punishment for employees or to threaten the employees. Lock out is a term defined in this act under sec.2

"Lock-out" under Sec. 2(1) means the temporary closing of a place of employment or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him.

• Prohibition of Lock-out in Public Utility Service [Sec. 22]

No employer carrying on any public utility service shall lock-out any of his workmen-

(i) Without giving them notice of lock-out in the prescribed manner, within o weeks before locking out; or

(ii) Within 14 days of giving such notice, or

(iii) Before expiry of the date of lock-out mentioned in the notice; or

(iv) During the pendency of conciliation proceedings before conciliation officer and 7 days after the conclusion of such proceedings.

The notice of lock-out shall not be necessary where there is already in existence lock-out in public utility service. However, the employer shall send intimation of lock-out to the authority specified by appropriate Government, on the day of declaration of lock-out itself.

(v) The notice of lock-out shall be given in the prescribed manner.

(vi) If on any day an employer gives notice of lock-out to any person employed by him. He shall within 5 days of that date report to the appropriate Government or authority of appropriate Government the number of notice given on that day.

• General Prohibition of Lock-outs [Sec. 23]

No employer of any workman shall declare lock-out:

(a) During the pendency of any conciliation proceedings before a Board and 7 days after the completion of the proceedings; or

(b) During pendency of proceedings before a Labour Court, Tribunal or National Tribunal and 2 months after the completion of these proceedings; or

(c) During the pendency of arbitration proceedings before an arbitrator and 2 months after completion of these proceedings, where a notification is issued under [Sec. 10A(3A)]; or

(d) During any period in which a settlement or award is in operation in respect of  any of the matters covered by the settlement or award.

• Illegal Lock-out [Sec. 24): A lock-out shall be illegal if-

(i)it is declared in contravention of Sec. 22 or Sec. 23

(ii) it is continued in contravention of an order made under [Sec. 10(3) or Sec. 10A(4A)]

Where a lock-out in pursuance of an industrial dispute has already commenced and is inexistence at the time of reference to a Board, an arbitrator, a Labour court, Tribunal or National Tribunal, the continuance of such lock-out shall not be illegal. However, such lock out should not be in contravention of this Act or prohibited under [Sec. 10A]

(iii) A lock-out declared in consequence of an illegal strike shall not be deemed to be illegal.

• Prohibition of financial aid [Sec. 25]: No person shall knowingly expend or apply any money in direct furtherance or support of any illegal lock. out.
• Penalty for illegal lock-out [Sec. 26]: Any employer who commences, continues, or otherwise acts in furtherance of a lock-out which is illegal under this Act, shall be punishable with imprisonment maximum 1 month or with fine maximum 1000, or with both.

4.     LAY-OFF

• Lay-off [Sec. 2 (kkk)]: Lay-off means (i) the failure, (ii) refusal or (ii) in ability of an employer on account of shortage of-(a) coal, (b) power or raw materials or (c) the accumulation of stocks or (d) the break-down of machinery or (e) natural calamity or (f) for any other connected reason to give employment to a workman whose name is borne on the muster-rolls of his industrial establishment and who has not been retrenched.

• Lay-off for full day: Every workman whose name is on the muster-rolls and who presents himself for work at the appointed time for the purpose during normal working hours on any day and is not given employment by the employer within 2 hours shall be deemed to have been laid off for that day. Lay-off for half day - if the workman, instead of being given employment at the beginning of any shift is asked to present himself during the second half of the shift, and is given work, he shall be deemed to have been laid-off only for half of that day. If the workman is not given work even in the second half after remaining present. He shall be entitled to full basic wages and dearness for that part of the day.

The following are the ingredients of Lay-off:

(a) An employer, in spite of being willing to employ, fails or refuses or is unable to provide employment for reasons beyond his control.

(b) This failure or refusal to employ a workman may be due to -

(i) Shortage of coal, power, or raw materials, or

(ii) The accumulation of stock, or

(iii) The breakdown of machinery, or

(iv) Natural calamity, or

(v) Any other connected reason

(c) workman's name at that time should be on the muster-roll

(d) Workman must not have been retrenched.

• Requirements of a valid lay-off are as follows:

(a) There must be failure or refusal or inability of the employer to continue workman in his employment.

(b) The workman laid-off must be on the musters-rolls of the establishment on the date of lay-off.

(c) The reasons for not giving work must be shortage of coal, raw material, power or accumulation of stock or breakdown of machinery or some such reasons.

• Rules relating to Lay-off:

The payment of compensation for a Lay-off is dependent upon:

(a) Status of a workman i.e. badli, casual or permanent

(b) Type of service i.e. continuous service or not

(c) Number of workmen in an Industrial Establishment.

3groups of workmen employed:

(i) Where the number of workmen is less than 50 (ii) where the number of workmen is 50 or more but less than 100

(iii) Where the number of workmen is 100 or more.

For the purpose of Lay-off the term "Industrial Establishment" has a special meaning. It means-

      A factory as defined under Factories Act, 1948

      A mine as defined under the Mines' Act, 1952 or

      A plantation as defined under the Plantation Labour Act, 1951.

These rules may be explained as follows:

(1) Explanation to [Sec. 25C] says "Badli workman" means a workman who is employed in an industrial establishment the place of another workman whose name is borne on the muster-rolls of their establishment, but shall cease to be regarded as such, if he has completed one year of continuous service in the establishment.

(2) Continuous Service [Sec. 25B]: It means:

(a) Uninterrupted service including

(b) Service interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman;

(c) Where a workman is not in continuous service as above, he is deemed to be in continuous service under an employer -

(i) for one year -when he actually works for at least 190 days in 12 calendar months below ground in a mine 240 days in all other cases.

(ii) for six months-when he actually works for at least 95 days in 6 calendar months below ground in a mine and 120 days in all other cases.

The number of working days should also include - (a) days of lay-off.

(b) days of leave with full wages earned in the previous year.

(c) absent due to temporary disablement caused by accident.

(d) period of maternity leaves up to 12 weeks, in the case of a female workman.

(3) Number of workmen less than 50: The provisions about lay-off compensation do not apply to industrial establishment in which less than 50 workmen on an average per working day have been employed in the preceding calendar month.

Secondly, to industrial establishments which are of a seasonal character or in which work is performed only intermittently.

In both these cases no compensation for lay-off can be claimed. [Sec 25A)].

The two expressions "Seasonal Character" and "intermittent" are not defined in this Act. However, Seasonal means dependence on nature over which neither the employer nor the workman in the establishment has any control. Intermittent' means not continuous but falling after gaps or intervals.

[Sec. 25A(2)] says if the question arises whether an industrial establishment is of seasonal character or whether work is performed there in only intermittently the decision of the appropriate Government shall be final.

(4) Number of workmen 50or more but less than 100 [Sec. 25C)]: Incase the employer gives lay-off to his workmen he is liable to pay to the workmen who are laid-off, compensation at the rate of 50% of the total of the basic pay and dearness allowance that would be payable to the workmen.

This compensation is not payable for the intervening weekly holidays. In order to be entitled to the lay-off compensation a workman has to satisfy following conditions:

(i) His name should be borne on the muster-rolls of the Industrial Establishment.

(ii) He should not be a Badli or a casual workman. (A Badli workman ceases to be a Badli workman for the purpose of payment of Lay-off if he completes one year of continuous service).

(iii) He should have completed not less than one year of continuous service under his employer before the day of lay-off.

RETRENCHMENT

Sec. 2(OO)] says "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -

(a) Voluntary retirement of the workman, or

(b) Retirement of the workman on reaching the age of superannuation if the contract of employment between the employer, and the workman

concerned contains a stipulation in that behalf; or (c) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(d) Termination of the service of a workman on the ground of continued ill health.

This definition of retrenchment gives us the following features:

(i) Retrenchment means the termination by the employer of the service of a workman;

(ii) The termination may be for any reason whatsoever;

(iii) The termination should not be as a punishment or disciplinary action;

The following are not retrenchment:

(a) Voluntary retirement of a workman; or

(b) Retirement on reaching the age of superannuation:

(c) Termination of service as a result of non-renewal of the contract of employment on its expiry or termination of the contract under a stipulation in it.

(d) Termination of service as a punishment inflicted by way of disciplinary action for example: inefficiency, suspension, dishonesty etc.

(e) Termination of the service of a workman on the ground of continued ill health.

Retrenchment means discharge of surplus labour. It is not necessary that removal must be only when the establishment is in a loss.

For example: cataract, physical unfitness, infirmity due to old age, incapacity to work, leprosy etc. where a worker suffers an accident during the course of employment making him unfit for job, termination on this ground is illegal. Termination of service under Standing Orders without a domestic inquiry or without giving the workman an opportunity to set out his case will be illegal.

• Leave Vacancy: When a workman is appointed on leave vacancy, termination of his service after the return of permanent workman is not retrenchment unless he has completed 240 days in 12 months.

• Project: Likely to be finished after sometime, giving postings, is not covered under [Sec. 2(OO)]

• Closure: Discharge on account of closure is not a retrenchment.

• Casual Workman: A casual worker employed for a long period does not become permanent. Even for lay-off also he is excluded. Under standing orders also, they are a separate category. In case of casual workman there is the possibility of a break in employment and non-provision of work. However, in [S. 2(OO)] there is nothing to show that temporary workers are excluded.

• Rules relating to Retrenchment

The provisions regarding retrenchment should also be understood with reference to -

(a) Type of service i.e. continuous service or not

(b) Number of workmen employed in any industry-2 groups of workmen employed:

(i) Number of workmen employed is less than 100

(ii) Number of workmen employed is 100 or more

(A) Number of workmen employed is less than 100

The employer should strictly observe the procedure and conditions laid down in [Sec. 25F] and [Sec. 25G] of this Act. These conditions are as under:

[Sec. 25F] says No workman employed in any industry who is in continuous service for not less than 1 year under an employer shall be retrenched until -

(a) The workman is given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired; or

(b) In case one month's notice is not given workman is paid wages for the period of notice, in lieu of the notice period.

(c) The workman is paid at the time of retrenchment, compensation which shall be equal to 15 days’ average pay for every completed year of continuous service or any part thereof in excess of 6 months; and

(d) Notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government.

• Meaning of Average Pay [Sec. 2 (aaa)]: "Average pay" means the average of the wages payable to a workman -

(i) In the case of a monthly paid workman, in the 3 complete calendar months.

(ii) In the case of weekly paid workman, in the 4 complete weeks,

(iii) In the case of daily paid workman, in the 12 full working days, preceding the date on which the average pay becomes payable if the workman had worked for 3 complete calendar months or 4 complete weeks or 12 full working days, as the case may be, and where such calculation cannot be made • the average pay shall be calculated as the average of the wages payable to a workman during the period he actually worked.

• Wages [Sec. 2(rr)] means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment, and includes -

(i) Such allowances (including dearness allowance) as the workman is for the time being entitled to;

(ii) The value of any house accommodation, or of supply of any service or of any concessional supply of food grains or other articles;

(iii) Any travelling concession;

(iv) Any commission payable on the promotion of sales or business or both;

But does not include

(a) Any bonus;

(b) Any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;

(c) Any gratuity payable on the termination of his service.

(d) LIFO [Sec. 25G]: The normal rule is to retrench first of all the junior most workmen. If the employer, has sufficient reasons to depart from this rule, only then he can do that and the reasons for the same should be recorded. This principle of "Last in first out" is provided in [Sec. 25G] which says - a workman who is the last person to be employed in the category in which he is employed shall be retrenched first, that is to say, the principle of 'Last come first go' shall be observed. In case the employer desires to retrench any other workman than the junior one, he shall record the reasons for the departure from observing this rule. Secondly, there should not be an agreement between the employer and workman to the contrary.

(e) Re-employment [Sec. 25H]: This section gives a statutory right of re-employment to retrenched workmen: If the employer wants to take workmen in future, the retrenched workman has a right of preference over others. This right is given to citizens of India only. This section says in case in future an opportunity arises to re-employ any person in the category from which the workman was retrenched, the employer shall in such manner as may be prescribed give an opportunity to the retrenched workman and such retrenched workman shall have preference over other persons. These workmen should be citizens of India.

• This section provides for preferential re-employment of retrenched workmen.
• This section applies when there is a proposal to employ any person after retrenchment.
• The employer has to give an opportunity in the prescribed manner to such of retrenched workmen who are citizens of India.
• This is done in order to enable the workmen to offer themselves for reemployment.
• Those workmen who offer should be taken in preference to other persons.

CLOSURE

Every employer who has started his business, he can also take decision to wind up (closure) his business without violating any of the legal provision.

In this act closure is defined as follows-

Closure [Sec. 2(cc)] means the permanent closing down of the place of employment or part thereof.

• Rules relating to closure: Like provisions about lay-off and retrenchment the provisions regarding closure should also be understood with reference to -

(a) Type of service: i.e. continuous service or not (b) Number of workmen employed:

(i) Number of workmen employed is less than 50

(ii) Number of workmen employed is 50 or more but less than 100

(iii) Number of workmen employed is 100 or more.

(A) Number of workmen less than 50 [Sec. 25 FFA & Sec. 25 FFF]

In case an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than I year in that undertaking immediately before such closure shall be entitled to notice and compensation as if the workman has been retrenched.

In case the undertaking is closed down on account of unavoidable Circumstances beyond the control of the employer the compensation payable to the workman shall not exceed his average pay for 3 months.

If an undertaking is closed down by reason merely of:

(a) financial difficulties including financial losses; or

(b) accumulation of undisposed stocks; or

(c) the expiry of the period of the lease or license granted to it, or

(d) in case of mining operation - exhaustion of minerals in the area in which mining operation are carried on; shall not be considered as a circumstance beyond the control of the employer.

In case of mines if after the exhaustion of minerals, the mining operations are closed down and the employer further provides to the workman:

(i) an alternate employment with effect from the date of closure on the same remuneration and terms and conditions of service;

(ii) the service of the workman has not been interrupted by such alternate employment; and

(iii) the employer has undertaken to pay to the workman in the event of retrenchment, compensation on the basis of continuity of service; then the workman is not entitled to any compensation towards the closure of an undertaking.

Construction of buildings, bridges, roads, canals, dams or other construction work [Sec. 25 FFF (2)]: If an undertaking is set up for their construction of buildings, bridges, roads, canals, dams or other construction work and it is closed down on account of completion of the work within 2 years from the date on which the undertaking is set up then-no workmen employed by the undertaking shall be entitled to any compensation.

In case the construction work takes more than 2 years for its completion after it is set up then - the workman will be entitled to both notice and compensation for every completed year of continuous service or any part thereof in excess of 6 months.

(B) Number of workmen 50 or more but less than 100 [Sec. 25 FFA]:

(a) 60 days’ notice: An employer who employs 50 or more but less than 100 workmen and who intends to close down his undertaking shall have to serve at least 60 days before the date on which the intended closure is to become effective a notice in the prescribed manner on the appropriate Government. This notice has to state clearly the reasons for the intended closure of the undertaking

(b) No notice is required when:

(i) the number of workmen employed is less than 50 or

(ii) an undertaking is set up for the construction of buildings, bridges, canals, roads, dams or for other construction work or project.

(iii) the appropriate Government is satisfied that, owing to exceptional circumstances like accident in the undertaking, death of the employer or similar reason, no notice is required, this can

be done by the appropriate government by an order.

(c) The compensation payable is "the same as if applicable to an undertaking employing less than 50 workmen.'

(d) The notice to be given is only information to the appropriate Government. This notice does not mean that any previous sanction of the appropriate Government is required for the closure of an undertaking.

(C) Number of workmen 100 or more [Sec. 25-0] may be summarized as follows:

(i) An employer who intends to close down his undertaking shall apply to the appropriate Government for prior permission, 90 days before the intended date of closure.

(ii) Copy of this application should also be served on the representatives of the workmen in the prescribed manner.

(iii) This application should be in the prescribed manner and should state clearly reason for the intended closure.

(iv) After making the enquiry it the appropriate Government is satisfied that the reasons for the intended closure are not adequate or sufficient or such closure is prejudicial to the public interests then it may by an order direct the employer not to close down the undertaking.

(v) In case the appropriate Government does not communicate its decision about either granting or refusing the permission within a period of 60 days from the date on which the application is made the permission applied for shall be deemed to have been granted.

(vi) If the undertaking is closed down without obtaining the permission or where the permission to close is refused the closure shall be deemed to be illegal and the workmen shall be entitled to all the benefits under the laws that were applicable to them.

(vii) If the appropriate Government is satisfied that there are exceptional circumstances such as accident in the undertaking or the death of an employer or some similar reason, it may direct in writing that in relation to such an undertaking, no application shall be required.

(viii) No application for closure to the appropriate Government is required if the undertaking is set up for the construction of buildings, bridges, roads, canals, dams or other construction work or project.

(ix) In case the permission to close is granted the workmen shall be entitled to notice and compensation as if such workmen are retrenched from an undertaking employing 100 or more workmen, that is to say, 3 months’ notice and compensation at the rate of 15 days wages for every completed year of continuous service.

(x) Penalty for closure [Sec. 25 R]: Any employer who closes down an undertaking without complying with the provisions of Sec. 25-0] shall be punishable with imprisonment-maximum 6 months, or with fine maximum up to 5,000, or with both.

(xi) Penalty for closure without notice [Sec. 30A]: An employer who closes down any undertaking without complying with the provisions of [Sec. 25 FFA] shall be punishable with imprisonment- maximum6 months, or with fine-maximum 5,000, or with both.

• [Sec. 25R (2)]: Any employer who contravenes an order refusing to grant permission to close down an undertaking under [Sec. 25-0(2)] shall be punishable with imprisonment -maximum 1 year, or with fine-maximum 5,000 or with both. Where the contravention is continuing one then, with a further fine-maximum 2,000 for every day during which the contravention continues after conviction.

• Offences by Companies etc. [Sec. 32]: Where a person committing an offence under this Act is a company, or other body corporate, or an association of persons (whether incorporated or not), every directors, manager, secretary, agent, or other officer or person concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.

• Employment Relationship in strike, lockout, lay-off, retrenchment and closure:

1. In retrenchment no employment relationship remains.

2. In strikes and Lock-outs the employment relationship continues.

3. In lay-off employment relationship is not terminated but it is suspended for some time.

4. In closure there is no business and employment relationship exists.

1.2 The Trade Union Act, 1926

INTRODUCTION

Trade Unionism has made its headway due to growth of industrialization and capitalism. The formation of Trade Union asserts collectively the rights of the workers. In industrially advanced countries trade unionism has made a great impact on the social, political and economic life. The Trade Union Act makes provisions about the registration of Trade Unions.

As there was no collective action, workers were at the mercy of emplovers and ad to be contended with the wages which each one of them was getting separately, depending upon the negotiation with the employer. Workers therefore joined and formed a union to improve their bargaining power against the employer. The registration of Trade Union is not compulsory under the Trade Unions Act, however, only a registered Trade Union can have the protections granted under the Act.

Trade Union is an organization formed by workers. It is a permanent body formed to protect and promote economic, political and social interests of its members. The principal interest of Trade Union is economic. It includes federations of trade unions also. it achieves its objectives through collective action and group effort.

The law relating to the registration of trade union is contained in Trade Unions Act, 1926. This act covers the following:

(a) Conditions governing the registration of trade unions.

(b) Obligations imposed upon a registered trade union.

(c) Rights and liabilities of registered Trade Unions.

DEFINITIONS

Trade Union under Sec. 2 (h) means any combination whether temporary or permanent formed primarily for the purpose of regulating the relations between workmen and employers, or between workmen and workmen, or between employees and employers for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more trade unions.

The Act does not affect -

1. Any agreement between partners as to their own business;

2. Any agreement between an employer and those employed by him as to such employment; or

3. Any agreement in consideration of the sale of the goodwill of a business or of instruction in any profession, trade or handicraft.

The Societies Registration Act 1860, The Co-operative Societies Act 1912 and The Companies Act 1956/2013 are not applicable to registered trade union. Registration of any trade union under these acts is void.

"Trade dispute under Sec. 2(g) means any dispute between employers and workmen or between workmen and workmen, or between employers and employers which is connected with the employment, or non-employment, or the terms of employment or the conditions of labour, of any person, and "workmen" means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises.

For a trade dispute it is necessary that there must be some difference between the parties stated in the definition i.e. a demand from one party and refusal to accept those demands by the other party.

In this act the Appropriate Government means in relation to Trade Unions whose objects are not confined to one State, the Central Government, and in relation to other Trade Unions State Government, and unless there is anything repugnant in the subject or context,

(a) "Executive" means the body, by whatever name called to which the management of the affairs of a Trade Union is entrusted:

(b) [Subs. By Trade Unions (Amendment) Act 38 of 1964] In the case of a Trade Union, includes any member of the executive thereof, but does not include an auditor;

(c) "Prescribed" means prescribed by regulations made under this Act.

(d) "Registered office" means that office of a Trade Union which is registered under this Act as the Head office thereof.

(e) "Registered Trade Union" means a Trade Union registered under this Act;

(f) "Registrar" means, a Registrar of Trade Unions appointed by the appropriate Government under section 3, and includes an additional or Deputy Registrar of Trade Unions; and

In relation to any Trade Union, the Registrar appointed for the State in which the head or registered office, as he case may be of the Trade Union is situated.

• Benefits of Registration [Sec. 13, 17, 18, 19]

Under the present law, registration of a Trade Union is not compulsory. There are several unions in existence without registration. However, it is desirable to register a Trade Union because the law confers certain benefits to registered Trade Unions they are as follows:

(a) Registered Trade Union is a legal entity distinct from the members who compose it.

(b) It can acquire and hold both movable and immovable property.

(c) It can contract in its own name.

(d) It can sue and be sued in its own name.

(e) The office bearers and members of a registered Trade Union are given protection against criminal proceedings for conspiracy under subsection (2) of section 120-B of the Indian Penal Code, 1860 relating to any agreement made between the members for the purpose of furthering any such object of the Trade Union on which its general funds may be spent.

Trade unions help thousands of people at work with a wide range of different problems.

Examples of some common issues in the workplace today include accidents at work, unfair discrimination in the workplace, pension schemes closing and manufacturing / service sector jobs being transferred to Trade unions are crucial in defending worker’s jobs, pay and conditions, acting to improve working conditions.  Unorganized workplaces are often safer places to be and their employees are often better paid. Workers in unorganized workplaces are also more likely to benefit from training and development programmes.

Many trade unions have developed into a number of forms, influenced by differing political objectives. Activities of trade unions vary, but may include:

-Provision of benefits to members: Early trade unions, like Friendly Societies, often provided a range of benefits to insure members against unemployment, ill health, old age and funeral expenses. In many developed countries, these functions have been assumed by the state; however, the provision of professional training legal advice and representation for members is still an important benefit of trade union membership.

-Collective Bargaining Where trade unions are able to operate openly and are recognized by employers, they may negotiate with employers over wages and working conditions.

-Industrial action: Trade unions may enforce strikes or resistance to lockouts in furtherance of particular goals.

-Political activity: Trade unions may promote legislation favourable to the interests of their members or workers as a whole. To this end they may pursue campaigns, undertake lobbying, or financially support individual candidates or parties for public office.

Finally, it may be noted that an unregistered Trade Union is not unlawful, but it has a risk of being held illegal, because it has no corporate existence. For this reason, it is always advisable to have a registered Trade Union. Workers employed in any trade or industry whether it is conducted by a government or a private agency is allowed to form a Trade Union under this act.

REGISTRATION, MEMBERSHIP AND FUNDS OF TRADE UNION

•Appointment of Registrars

•Rules of Trade Union

•Powers of Registrar

•Certificate of Registration

•Cancellation of Registration

•Membership of a Trade Union

•Disqualifications of Office Bearers of Trade Union

•Funds of a Trade Union

• REGISTRATION OF TRADE UNION

• Appointment of Registrars (Sec. 3)

(1) The appropriate Government shall appoint a person to be the Registrar of Trade Unions for each State.

(2) The appropriate Government may appoint as many Additional and Deputy Registrars of Trade Unions as it thinks fit for the purpose of exercising and discharging, under the superintendence and direction of the Registrar, such powers and functions of the Registrar under this Act as it may, be order, specify and define the local limits within which they will operate.

(3) Subject to the provisions of any order under sub-section (2), where an Additional or Deputy Registrar exercises and discharges the powers and function of a Registrar in an area within which the registered office of a Trade Union is situated, the Additional or Deputy Registrar shall be deemed to be registrar in relation to the Trade Union for their purposes of this Act.

• Mode of Registration (Sec. 4)

(1) Any seven or more members of a Trade Union may be subscribing their names to the rules of the Trade Union and by otherwise complying with the provisions of this Act with respect to registration apply for registration of the Trade Union under this Act.

(2) No Trade Union of workmen shall be registered unless at least ten per cent or one hundred of the workmen, whichever is less, engaged or employed in the establishment or industry with which it is connected are the members of such Trade Union on the date of making of application for registration.

(3) No Trade Union of workmen shall be registered unless at least seven persons are its members on the date of making the application. These workmen should be engaged or employed in the establishment or industry with which it is connected.

(4) An application shall not become invalid, because

(i) Before the registration but after the date of application for the registration of a Trade Union some of the applicants, not exceeding half of the total number of persons who made the application, have ceased to be members of the Trade Union or

      (ii) They have given notice in writing to the Registrar dissociating themselves from the applications.

• Application for Registration [Sec. 5]

(1) Every application for registration of a Trade Union shall be made to the Registrar and shall be accompanied by a copy of the rules of the Trade Union and a statement of the following particulars, namely:

(a) The names, occupations and address of the members making application;

(b) In the case of a Trade Union of workmen, the names, occupations and addresses of the place of work of the members of the Trade Union making the application;

(c) The name of the Trade Union and the address of its head office and

(d) The titles, names, ages, addresses and occupations of the office. bearers of the Trade Union.

(2) Where a Trade Union has been in existence for more than one year before the making of an application for its registration, the Trade Union has to submit, together with the application, a general statement of the assets and liabilities of the Trade Union prepared in such form and containing the prescribed particulars.

• Rules of a Trade Union [Sec. 6]

A Trade Union is entitled to registration under this Act, only if its executive is constituted in accordance with the provisions of this Act, and the rules thereof provide for the following matters, namely:

(a) The name of the Trade Union:

(b) The whole of the objects for which the Trade Union has been established;

(c) The whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes shall be purposes to which such funds are lawfully applicable under this Act;

(d) The maintenance of a list of the members of the Trade Union and adequate facilities for the inspection thereof by the office-bearers and members of Trade Union;

(e) The admission of ordinary members who are actually engaged or employed in an industry with which the Trade Union is connected;

(f) The admission of the number of honorary or temporary members as office-bearers required under section 22 to form the executive of the Trade Union.

(g) The payment of a minimum subscription by members of the Trade Union which shall not be less than -

(i) One rupee per annum for rural workers;

(ii) Three rupees per annum for workers in other unorganized sectors; and

(iii) Twelve rupees per annum for workers, in any other case

(h) The conditions under which any member shall be entitled to any benefit assured by the rules and under which any fine or forfeiture may be imposed on the members.

(i) The manner in which the rules shall be amended varied or rescinded.

(j) The manner in which the members of the executive and the other office-bearers of the Trade Union shall be elected and removed.

(k) The duration should not be more than three years, for which the members of the executive and other office-bearers of the Trade Union shall be elected.

(l) The safe custody of the funds of the Trade Union, an annual audit, in such manner as may be prescribed, of its accounts, and adequate facilities for the inspection of the account books by the office-bearers and members of the Trade Union.

(m) The manner in which the Trade Union may be dissolved.

• Powers of Registrar [Sec. 7]

Sec. 7 says the Registrar may ask for further information in order to ensure that the application complies with the provisions of this Act relating to registration of Trade Union. He may refuse registration until such information is supplied.

Secondly, if the proposed name of the Trade Union is identical with the name of any other Trade Union or is likely to deceive the public or the members of either Trade Union. The registrar shall require the Trade Union to alter the name. He shall refuse to register the union until such alteration has been made.

This information required by the Registrar has to come from the members and not from any other source.

• Certificate of Registration [Sec. 8 and 9]

The Registrar on being satisfied that the Trade Union has complied with all the requirements of this Act relating to Registration shall register their Trade Union by entering the name of the Trade Union in the register maintained by him and finally "issue a Certificate of Registration" which shall be the conclusive evidence that the Trade. Union has been duly registered.

It has been clarified in this Act under [Section 9A] that a registered trade union of workmen shall at all times continue to have not less than 10% or one hundred of the workmen, whichever is less as its members, subject to a minimum of 7, engaged or employed in an establishment or industry with which the Trade Union is connected.

• Cancellation of Registration [Sec. 101]

A Certificate of Registration of Trade Union may be withdrawn or cancelled by the Registrar in the following cases:

(1) On the application of the Trade Union to be verified in such manner as may be prescribed.

(2) If the Registrar is satisfied that -

(a) The certificate has been obtained by fraud.

(b) The certificate has been obtained by mistake. (c) The Trade Union has ceased to exist.

(d) The Trade Union has willfully and after notice from the Registrar contravened any provisions of this Act.

(e) Trade union has allowed any rule to continue in force which is inconsistent with provisions of this Act.

(f) Trade Union has rescinded any rule providing for any matter which is required in the rules of Trade Union.

(3) If the Registrar is satisfied that a registered Trade Union of workmen does not have the required number of members.

In the above cases the Registrar has to give at least 2 months’ notice in writing giving the reasons for withdrawal or cancellation of the certificate, except for withdrawal or cancellation on the application of the Trade Union.

MEMBERSHIP OF TRADE UNION

There is nothing in the Trade Unions Act, 1926 or rules made there under which confers absolute right upon a person to be admitted as a member of a particular Trade Union. However, Section 2l says any person who has attained the age of 15 years may be a member of a Registered Trade Union subject to any rules of the Trade Union to the contrary. Any such member subject to the rules of the Trade Union may enjoy all the rights of a member and execute all instruments and give all acquaintances necessary to be executed or given under the rules. Further, Section 21-A (i) says a member Cannot be an office bearer of the Trade Union unless he has attained the age of 18 years.

• Disqualifications of office bearers of Trade Unions [Sec. 21 (A) and 22(3)]

A person shall be disqualified from being chosen as a member and being a member of the executive or any other office bearer of a registered Trade Union if-

(a) He has not attained the age of 18 years.

(b) He has been convicted by a court in India of any offence involving moral turpitude and sentenced to imprisonment unless a period of5 years has elapsed since his release.

(c) No member of the council of ministers or a person holding an office of profit (not being an engagement or employment in an establishment or industry with which the Trade Union is connected), in the union or a state, shall be a member of the executive or other office bearer of al registered Trade Union.

• Proportion of office bearers to be connected with the industry [Sec. 22(a)]

(a) In the case of unorganized sector, at least 1/2 of the total number of the office bearers of the registered Trade Union shall be persons actually engaged or employed in an industry with which the Trade Union is connected. However, the appropriate government has powers to exempt any Trade Union or class of Trade Unions by a special or a general order from the provisions of this section. Further, unorganized sector means any sector which the appropriate government will specify in the official gazette by a notification.

(b) In all other cases not more than 1/3rd of the total number of office bearers or five whichever is less shall be persons actually engaged or employed in the establishment or Industry with which the Trade Union is connected.

FUNDS OF TRADE UNION [SEC. 15 AND 16]

This Act provides for two types of funds they are:

(1) General funds.

(2) Fund for political purposes.

• General Funds [Sec. 15]: The General funds of a registered Trade Union shall be spent only on the following objects -

(1) Payment of salaries, allowances and expenses to office bearers of the Trade Union.

(2) Payment of expenses for the administration of the Trade Union including audit of the accounts of these funds.

(3) Expenses in prosecution or defence of any legal proceeding to which 3 the Trade Union or its member is a party, for the purpose of securing or protecting any rights.

(4) Conduct of Trade Disputes on behalf of the Trade Union or its members.

(5) Compensation of members for loss arising out of Trade Disputes.

(6) Allowances to members or their dependents on account of -

• (a)Death
• (b) Old Age
• (c) Sickness
• (d) Accidents
• (e) Unemployment of members.

(7) The issue of, or the undertaking of liability under (a) Policies of assurance on the lives of members or

(b) Policies insuring members against sickness, accident or unemployment.

(8) Provision of -

• Educational
• (b) Social
• (c) Religious benefits for members or for their dependents.
• (d) Payment of expenses of funeral or religious ceremonies for deceased members.

(9) Upkeep of a periodical published mainly for the purpose of discussion questions affecting employers or workers.

(10) Payment of contributions to any cause intended to benefit workers in general. This expenditure shall not exceed 1/4th of the combined gross total income in that year plus balance at the credit of those funds at the commencement of that year.

(11) Any other objects notified by the Appropriate Government in the official gazette.

If the union funds are spent on any other objects, the expenditure will be unlawful and ultravires the Act. The union can be restrained by an injunction for applying its fund on any such object.

The trade unions general funds should not be spent on contributions for political purposes.

• Fund for political purposes [Sec. 16]: A registered Trade Union may constitute a separate fund for political purposes, from contribution separately levied for or made to that fund. The payment from this fund may be made for the promotion of the civic and political interest of its members. This fund can be used for the following objects -

(1) Payment of any expenses incurred by a candidate or prospective candidate for election as a member of any legislative body constituted under the constitution or of any local authority.

(2) Holding of any meeting or the distribution of any literature or documents in support of any candidate or prospective candidate.

(3) The maintenance of any person who is a member of any legislative body constituted under the constitution or of any local authority.

(4) The registration of electors or the selection of a candidate for any legislative body constituted under the constitution or of any local authority.

(5) Holding of political meetings of any kind or the distribution of political literature or political documents of any kind.

• Conditions for creation of political fund [Sec. 16 (1) and 16(3)]

(1) This fund can be created only from contributions. Separately levied for or made to that fund.

(2) Members must not be compelled to contribute to the fund.

(3) A member who does not contribute to the fund must not be exclude from any benefits of the Trade Union or placed under any disability or disadvantage as compared with other members of the trade Union except in relation to control or management of this fund.

(4) Contribution to the political fund must not be made a condition for admission to the Trade Union.

REFERENCE:

1. LABOUR.GOV.IN
2. INDIANKANOON.ORG
3. INDIACODE.NIC.IN
4. CLC,GOV.IN