(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4)The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
THE INDUSTRIAL DISPUTES ACT, 1947
CHAPTER I - PRELIMINARY
CHAPTER II - AUTHORITIES UNDER THIS ACT
CHAPTER IIA - NOTICE OF CHANGE
CHAPTER IIB - REFERENCE OF CERTAIN INDIVIDUAL DISPUTES TO GRIEVANCE SETTLEMENT AUTHORITIES
CHAPTER III - REFERENCE OF DISPUTES TO BOARDS, COURTS OR TRIBUNALS
CHAPTER IV - PROCEDURE, POWERS AND DUTIES OF AUTHORITIES
CHAPTER V - STRIKES AND LOCK-OUTS
CHAPTER VA - LAY-OFF AND RETRENCHMENT
CHAPTER VB - SPECIAL PROVISIONS RELATING TO LAY-OFF, RETRENCHMENT AND CLOSURE IN CERTAIN ESTABLISHMENTS
CHAPTER VI - PENALTIES
CHAPTER VII - MISCELLANEOUS
2
An Act to make provision for the investigation and settlement of industrial disputes, and for certain other purposes
Whereas it is expedient to make provision for the investigation and settlement of industrial disputes, and for certain other purposes hereinafter appearing;
It is hereby enacted as follows:
PRELIMINARY
(2) It extends to the whole of India:
(3) It shall come into force on the first day of April, 1947.
2. Definitions.- In this Act, unless there is anything repugnant in the subject or context, -
(a) "appropriate Government" means -
(i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute concerning a Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1940), or the Industrial Finance Corporation of India established under section 3 of the Industrial Finance Corporation Act, 1948 (15 of 1948), or the Employees' State Insurance Corporation established under section 3 of the Employees' State Insurance Act, 1948 (34 of 1948), or the Board of Trustees constituted under section 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948( 46 of 1948), or the Central Board of Trustees and the State Boards of Trustees constituted under section 5A and section 5B, respectively, of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the "Indian Airlines" and "Air India" Corporations established under section 3 of the Air Corporations Act, 1953 (27 of 1953), or the Life Insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956), or the Oil and Natural Gas Commission established under section 3 of the Oil and Natural Gas Commission Act, 1959 (43 of 1959), or the Deposit Insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established under section 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 (52 of 1963), or the Food Corporation of India established under section 3, or a Board of Management established for two or more contiguous States under section 16, of the Food Corporations Act, 1964 (37 of 1964), or the International Airports Authority of India constituted under section 3 of the International Airports Authority of India Act, 1971 (48 of 1971), or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India the National Housing Bank established under section 3 of the National Housing Bank Act, 1987 (53 of 1987) or a banking or an insurance company, a mine, an oil-field, a Cantonment Board, or a major port, the Central Government, and
(ii) in relation to any other industrial dispute, the State Government;
aa) "arbitrator" includes an umpire;
(aaa) "average pay" means the average of the wages payable to a workman -
(i) in the case of monthly paid workman, in the three complete calendar months,
(ii) in the case of weekly paid workman, in the four complete weeks,
(iii) in the case of daily paid workman, in the twelve full working days, preceding the date on which the average pay becomes payable if the workman had worked for three complete calendar months or four complete weeks or twelve 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;
(b) "award" means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under section 10A;
(bb) "banking company" means a banking company as defined in section 5 of the Banking Companies Act, 1949 (10 of 1949), having branches or other establishments in more than one State, and includes the Export-Import Bank of India, the Industrial Reconstruction Bank of India, the Industrial Development Bank of India, the Small Industries Development Bank of India established under section 3 of the Small Industries Development Bank of India Act, 1989 (39 of 1989), the Reserve Bank of India, the State Bank of India, a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980), and any subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);
(c) "Board" means a Board of Conciliation constituted under this Act;
(cc) "closure" means the permanent closing down of a place of employment or part thereof;
(d) "conciliation officer" means a conciliation officer appointed under this Act;
(e) "conciliation proceeding" means any proceeding held by a conciliation officer or Board under this Act;
(ee) "controlled industry" means any industry the control of which by the Union has been declared by any Central Act to be expedient in the public interest;
(f) "Court" means a Court of Inquiry constituted under this Act;
(g) "employer" means -
(i) in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department;
(ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority;
(gg) "executive", in relation to a trade union, means the body, by whatever name called, to which the management of the affairs of the trade union is entrusted;
(h) Repealed.
(i) a person shall be deemed to be "independent" for the purpose of his appointment as the chairman or other member of a Board, Court or Tribunal, if he is unconnected with the industrial dispute referred to such Board, Court or Tribunal or with any industry directly affected by such dispute:
Provided that no person shall cease to be independent by reason only of the fact that he is a shareholder of an incorporated company which is connected with, or likely to be affected by, such industrial dispute; but in such a case, he shall disclose to the appropriate Government the nature and extent of the shares held by him in such company;
(j) “industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen;
Reference: D. N. Banerje v. P. R. Mukherjee [1953] I LLJ 195 [SC] Baroda Municipality v. It’s Workmen [1957] II LLJ 720 [SC] State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 University of Delhi v. Ramnath [1963] II LLJ 335 [SC] Madras Gymkhana Club Employees’ Union v. Gymkhana Club [1967] II LLJ 720 [SC] Saftarjung Hospital v. Kuldip Singh Sethi [1970] II LLJ 266 [SC] Bangalore Water Supply and Sewerage Board v. A. Rajappa [1978] Lab. I. C.467 [SC]
1982 Amendment
(j) "industry" means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not, -
(i) any capital has been invested for the purpose of carrying on such activity; or
(ii)such activity is carried on with a motive to make any gain or profit, and includes -
(a) any activity of the Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);
(b) any activity relating to the promotion of sales or business or both carried on by an establishment.
but does not include -
(1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.
Explanation.- For the purposes of this sub-clause, "agricultural operation" does not include any activity carried on in a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951); or
(2) hospitals or dispensaries; or
(3) educational, scientific, research or training institutions; or
(4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or
(7) any domestic service; or
(8) any activity, being a profession practised by an individual or body or individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or
(9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten;
(k) "industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;
(ka) "industrial establishment or undertaking" 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, then, -
(a) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate industrial establishment or undertaking;
(b) if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking;
(kk) "insurance company" means an insurance company as defined in section 2 of the Insurance Act, 1938 (4 of 1938), having branches or other establishments in more than one State ;
(kka) "khadi" has the meaning assigned to it in clause (d) of section 2 of the Khadi and Village Industries Commission Act, 1956 (61 of 1956);
(kkb) "Labour Court" means a Labour Court constituted under section 7:
(kkk) "lay-off" (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity or 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.
Explanation.--Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause:
Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid-off only for one-half of that day:
Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day;
Reference:
Kairbetta Estaes v. Rajamanickam, AIR 1960 SC 893
(l) "lock-out" 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;
(la) "major port" means a major port as defined in clause (8) of section 3 of the Indian Ports Act, 1908 (15 of 1908);
(lb) "mine" means a mine as defined in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952);
(ll) "National Tribunal" means a National Industrial Tribunal constituted under section 7B;
(lll) "office bearer", in relation to a trade union, includes any member of the executive thereof, but does not include an auditor;
(m) "prescribed" means prescribed by rules made under this Act;
(n) "public utility service" means -
(i) any railway service or any transport service for the carriage of passengers or goods by air;
(ia) any service in, or in connection with the working of, any major port or dock;
(ii) any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends;
(iii) any postal, telegraph or telephone service;
(iv) any industry which supplies power, light or water to the public;
(v) any system of public conservancy or sanitation;
(vi) any industry specified in the First Schedule which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification:
Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months, at any one time if in the opinion of the appropriate Government public emergency or public interest requires such extension;
(o) "railway company" means a railway company as defined in section 3 of the Indian Railways Act, 1890 (9 of 1890);
(oo) "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
(bb) 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
(c) termination of the service of a workman on the ground of continued ill-health;
Reference: Barsi Light Railways Company v. K. N. Joglekar, AIR 1957 SC 121 Santosh Gupta v. State Bank of Patiala, AIR 1980 SC 1219
(p) "settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer;
(q) "strike" means a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment;
Reference: Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha [1980] I LLJ 137 [SC] Syndicate Bank v. K. Umesh Nayak, AIR 1995 SC 319.
T. K. Rangarajan v. Govt. of T.N. AIR 2003 SC 3032.
(qq) "trade union" means a trade union registered under the Trade Unions Act, 1926 (16 of 1926);
(r) "Tribunal" means an Industrial Tribunal constituted under section 7A and includes an Industrial Tribunal constituted before the 10th day of March, 1957, under this Act;
(ra) "unfair labour practice" means any of the practices specified in the Fifth Schedule;
(rb) "village industries" has the meaning assigned to it in clause (h) of section 2 of the Khadi and Village Industries Commission Act, 1956 (61 of 1956) ;
(rr) "wages" 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 light, water, medical attendance or other amenity or 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;
(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
(a) he is, or has been, a Judge of a High Court; or
(b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or
(c) Repealed.
(d) he has held any judicial office in India for not less than seven years; or
(e) he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years.
7A. Tribunals.- (1) 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 matter, whether specified in the Second Schedule or the Third Schedule and for performing such other functions as may be assigned to them under this Act. (2) A Tribunal shall consist of one person only to be appointed by the appropriate Government. (3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless -
(aa) he has, for a period of not less than three years, been a District Judge or an Additional District Judge;
(4) The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it. 7B. National Tribunals.- (1) The Central Government may, by notification in the Official Gazette, constitute one or more National Industrial 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. (2) A National Tribunal shall consist of one person only to be appointed by the Central Government. (3) A person shall not be qualified for appointment as the presiding officer of a National Tribunal unless he is, or has been, a Judge of a High Court. (4) The Central Government may, if it so thinks fit, appoint two persons as assessors to advise the National Tribunal in the proceeding before it. 7C. Disqualifications for the presiding officers of Labour Courts, Tribunals and National Tribunals.-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.
8. Filling of vacancies.- If, for any reason a vacancy (other than a temporary absence) occurs in the office of the presiding officer of a Labour Court, Tribunal or National Tribunal or in the office of the chairman or any other member of a Board or Court, then, in the case of a National Tribunal, the Central Government and in any other case, the appropriate Government, shall appoint another person in accordance with the provisions of this Act to fill the vacancy, and the proceeding may be continued before the Labour Court, Tribunal, National Tribunal, Board or Court, as the case may be, from the stage at which the vacancy is filled. 9. Finality of orders constituting Boards, etc.- (1) No order of the appropriate Government or of the Central Government appointing any person as the chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal shall be called in question in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court. (2) No settlement arrived at in the course of a conciliation proceeding shall be invalid by reason only of the fact that such settlement was arrived at after the expiry of the period referred to in sub-section (6) of section 12 or sub-section (5) of section 13, as the case may be. (3) Where the report of any settlement arrived at in the course of conciliation proceeding before a Board is signed by the chairman and all the other members of the Board, no such settlement shall be invalid by reason only of the casual or unforeseen absence of any of the members (including the chairman) of the Board during any stage of the proceeding.
(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice:
Provided that no notice shall be required for effecting any such change -
(a) where the change is effected in pursuance of any settlement or award; or
(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.
9B. Power of Government to exempt.- Where the appropriate Government is of opinion that the application of the provisions of section 9A to any class of industrial establishments or to any class of workmen employed in any industrial establishment affect the employers in relation thereto so prejudicially that such application may cause serious repercussion on the industry concerned and that public interest so requires, the appropriate Government may, by notification in the Official Gazette, direct that the provisions of the said section shall not apply or shall apply, subject to such conditions as may be specified in the notification, to that class of industrial establishments or to that class of workmen employed in any industrial establishment.
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified, in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):
Provided further that where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government. (1A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication. (2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court Labour Court, Tribunal or National Tribunal, the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. (2A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government: Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months: Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit: Provided also that in computing any period specified in this sub-section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded: Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed. (3) Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, the appropriate Government may by order prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference. (4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be shall confine its adjudication to those points and matters incidental thereto. (5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a Labour Court, Tribunal or National Tribunal under this section and the appropriate Government is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in, or affected by, such dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that reference such establishment, group or class of establishments, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class of establishments. (6) Where any reference has been made under sub-section (1A) to a National Tribunal, then notwithstanding anything contained in this Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal, and accordingly, -
(a) if the matter under adjudication before the National Tribunal is pending in a proceeding before a Labour Court or Tribunal, the proceeding before the Labour Court or the Tribunal, as the case may be, in so far as it relates to such matter, shall be deemed to have been quashed on such reference to the National Tribunal; and
(b) it shall not be lawful for the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency of the proceeding in relation to such matter before the National Tribunal.
Explanation. - In this sub-section, "Labour Court" or "Tribunal" includes any Court or Tribunal or other authority constituted under any law relating to investigation and settlement of industrial disputes in force in any State. (7) Where any industrial dispute, in relation to which the Central Government is not the appropriate Government, is referred to a National Tribunal, then notwithstanding anything contained in this Act, any reference in section 15, section 17, section 19, section 33A, section 33B and section 36A to the appropriate Government in relation to such dispute shall be construed as a reference to the Central Government but, save as aforesaid and as otherwise expressly provided in this Act, any reference in any other provision of this Act to the appropriate Government in relation to that dispute shall mean a reference to the State Government. (8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government. Reference: Nirmal Singh v. State of Punjab,[1984] II LLJ 396 [SC] V. Veerarajan v. Govt. of Tamil Nadu,[19870] I LLJ 209 [SC]. 10A. Voluntary reference of disputes to arbitration.- (1) Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred under section 10 to a Labour Court or Tribunal or National Tribunal, by a written agreement, refer the dispute to arbitration and the reference shall be to such person or persons (including the presiding officer of a Labour Court or Tribunal or National Tribunal) as an arbitrator or arbitrators as may be specified in the arbitration agreement. (1A) Where an arbitration agreement provides for a reference of the dispute to an even number of arbitrators, the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purposes of this Act. (2) An arbitration agreement referred to in sub-section (1) shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed. (3) A copy of the arbitration agreement shall be forwarded to the appropriate Government and the conciliation officer and the appropriate Government shall, within one month from the date of the receipt of such copy, publish the same in the Official Gazette. (3A) Where an industrial dispute has been referred to arbitration and the appropriate Government is satisfied that the persons making the reference represent the majority of each party, the appropriate Government may, within the time referred to in sub-section (3) issue a notification in such manner as may be prescribed; and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator or arbitrators. (4) The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be. (4A) Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3A), the appropriate Government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference. (5) Nothing in the Arbitration Act, 1940 (10 of 1940), shall apply to arbitrations under this section. Reference: Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha,[1980] I LLJ 137 [SC]
(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) in respect of such other matters as may be prescribed;
and every inquiry or investigation by a Board, Court, Labour Court, Tribunal or National Tribunal, shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860). (4) A conciliation officer may enforce the attendance of any person for the purpose of examination of such person or call for and inspect any document which he has ground for considering to be relevant to the industrial dispute or to be necessary for the purpose of verifying the implementation of any award or carrying out any other duty imposed on him under this Act, and for the aforesaid purposes, the conciliation officer shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of enforcing the attendance of any person and examining him or of compelling the production of documents. (5) A Court, Labour Court, Tribunal or National Tribunal may, if it so thinks fit, appoint one or more persons having special knowledge of the matter under consideration as assessor or assessors to advise it in the proceeding before it. (6) All conciliation officers, members of a Board or Court and the presiding officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860). (7) Subject to any rules made under this Act, the costs of, and incidental to, any proceeding before a Labour Court, Tribunal or National Tribunal shall be in the discretion of that Labour Court, Tribunal or National Tribunal and the Labour Court, Tribunal or National Tribunal, as the case may be, shall have full power to determine by and to whom and to what extent and subject to what conditions, if any, such costs are to be paid, and to give all necessary directions for the purposes aforesaid and such costs may, on application made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as an arrear of land revenue. (8) Every Labour Court, Tribunal or National Tribunal shall be deemed to be Civil Court for the purposes of sections 345, 346 and 348 of the Code of Criminal Procedure, 1973 (5 of 1898). 11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. Reference: Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha,[1980] I LLJ 137 [SC] Divisional Controller, KSRTC (NWKRTC) v. A. T. Mane, AIR 2004 SC 4761- Loss of confidence Mahindra and Mahindra Ltd. v. N.B.Narawade, Civil Appeal No. 1508 of 2003, delivered on 22 February, 2005 - Abusing 12. Duties of conciliation officers.- (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, 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 appropriate Government or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the 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) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. (6) A report under this section shall be submitted within fourteen 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. 13. Duties of Board.- (1) Where a dispute has been referred to a Board under this Act, it shall be the duty of the Board to endeavour to bring about a settlement of the same and for this purpose the Board shall, in such manner as it thinks fit and without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as it thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (2) 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 Board shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. (3) If no such settlement is arrived at, the Board shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the proceedings and steps taken by the Board 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, its findings thereon, the reasons on account of which, in its opinion, a settlement could not be arrived at and its recommendations for the determination of the dispute. (4) If, on the receipt of a report under sub-section (3) in respect of a dispute relating to a public utility service, the appropriate Government does not make a reference to a Labour Court, Tribunal or National Tribunal under section 10, it shall record and communicate to the parties concerned its reasons therefor. (5) The Board shall submit its report under this section within two months of the date, on which the dispute was referred to it or within such shorter period as may be fixed by the appropriate Government: Provided that the appropriate Government may from time to time extend the time for the submission of the report by such further periods not exceeding two months in the aggregate: Provided further that the time for the submission of the report may be extended by such period as may be agreed on in writing by all the parties to the dispute. 14. Duties of Courts.- A Court shall inquire into the matters referred to it and report thereon to the appropriate Government ordinarily within a period of six months from the commencement of its inquiry. 15. Duties of Labour Courts, Tribunals and National Tribunals.- Where an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2A) of section 10, submit its award to the appropriate Government. 16. Form of report or award.- (1) The report of a Board or Court shall be in writing and shall be signed by all the members of the Board or Court, as the case may be: Provided that nothing in this section shall be deemed to prevent any member of the Board or Court from recording any minute of dissent from a report or from any recommendation made therein. (2) The award of a Labour Court or Tribunal or National Tribunal shall be in writing and shall be signed by its presiding officer. 17. Publication of reports and awards.- (1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit. (2) Subject to the provisions of section 17A, the award published under sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever. 17A. Commencement of the award.- (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under section 17: Provided that -
(a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or
(b) if the Central Government is of opinion, in any case where the award has been given by a National Tribunal,
that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days. (2) Where any declaration has been made in relation to an award under the proviso to sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government. (3) Where any award as rejected or modified by an order made under sub-section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub-section (2) is made in pursuance of a declaration under the proviso to sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in sub-section (2). (4) Subject to the provisions of sub-section (1) and sub-section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under sub-section (1) or sub-section (3), as the case may be. Reference: Sirsilk v. State of A.P.,[1963] I LLJ 647 [SC] Remington v. The Workmen,[1967] II LLJ 866 [SC] 17B. Payment of full wages to workman pending proceedings in higher courts.-Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be. 18. Persons on whom settlements and awards are binding.- (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. (2) Subject to the provisions of sub-section (3), an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. (3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3A) of section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on -
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;
(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.
19. Period of operation of settlements and awards.- (1) A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. (2) Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months from the date on which the memorandum of settlement is signed by the parties to the dispute, and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement. (3) An award shall, subject to the provisions of this section, remain in operation for a period of one year from the date on which the award becomes enforceable under section 17A: Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit: Provided further that the appropriate Government may, before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit so, however, that the total period of operation of any award does not exceed three years from the date on which it came into operation. (4) Where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or a part of it to a Labour Court, if the award was that of a Labour Court or to a Tribunal, if the award was that of a Tribunal or of a National Tribunal for decision whether the period of operation should not, by reason of such change, be shortened and the decision of Labour Court or the Tribunal, as the case may be on such reference shall, be final. (5) Nothing contained in sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award. (6) Notwithstanding the expiry of the period of operation under sub-section (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award. (7) No notice given under sub-section (2) or sub-section (6) shall have effect, unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be. Reference: Life Insurance Corporation of India v. D. J. Bahadur, AIR 1980 SC 2181. 20. Commencement and conclusion of proceedings.- (1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lock-out under section 22 is received by the conciliation officer or on the date of the order referring the dispute to a Board, as the case may be. (2) A conciliation proceeding shall be deemed to have concluded -
(a) where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the dispute;
(b) where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate Government or when the report of the Board is published under section 17, as the case may be; or
(c) when a reference is made to a Court, Labour Court, Tribunal or National Tribunal under section 10 during the pendency of conciliation proceedings.
(3) Proceedings before an arbitrator under section 10A or before a Labour Court, Tribunal or National Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjudication, as the case may be and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under section 17A. 21. Certain matters to be kept confidential.- There shall not be included in any report or award under this Act any information obtained by a conciliation officer, Board, Court, Labour Court, Tribunal, National Tribunal or an arbitrator in the course of any investigation or inquiry as to a trade union or as to any individual business (whether carried on by a person, firm or company) which is not available otherwise than through the evidence given before such officer, Board, Court, Labour Court, Tribunal, National Tribunal or arbitrator, if the trade union, person, firm or company, in question has made a request in writing to the conciliation officer, Board, Court, Labour Court, Tribunal, National Tribunal or arbitrator, as the case may be, that such information shall be treated as confidential; nor shall such conciliation officer or any individual member of the Board, or Court or the presiding officer of the Labour Court, Tribunal or National Tribunal or the arbitrator or any person present at or concerned in the proceedings disclose any such information without the consent in writing of the secretary of the trade union or the person, firm or company in question, as the case may be: Provided that nothing contained in this section shall apply to a disclosure of any such information for the purposes of a prosecution under section 193 of the Indian Penal Code (45 of 1860).
(a) without giving to the employer notice of strike, as herein-after provided, within six weeks before striking; or
(b) within fourteen days of giving such 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 before a conciliation officer and seven days after the conclusion of such proceedings.
(2) No employer carrying on any public utility service shall lock-out any of his workmen -
(a) without giving them notice of lock-out as hereinafter provided, within six weeks before locking out; or
(c) before the expiry of the date of lock-out specified in any such notice as aforesaid; or
(3) The notice of lock-out or strike under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out in the public utility service, but the employer shall send intimation of such lock-out or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services. (4) The notice of strike referred to in sub-section (1) shall be given by such number of persons to such person or persons and in such manner as may be prescribed. (5) The notice of lock-out referred to in sub-section (2) shall be given in such manner as may be prescribed. (6) If on any day an employer receives from any persons employed by him any such notices as are referred to in sub-section (1) or gives to any persons employed by him any such notices as are referred to in sub-section (2), he shall within five days thereof report to the appropriate Government or to such authority as that Government may prescribe the number of such notices received or given on that day. 23. General prohibition of strikes and lock-outs.- No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out -
(a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;
(b) during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;
(bb) during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under sub-section (3A) of section 10A; or
(c) 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.
24. Illegal strikes and lock-outs.- (1) A strike or a lock-out shall be illegal if -
(i) it is commenced or declared in contravention of section 22 or section 23; or
(ii) it is continued in contravention of an order made under sub-section (3) of section 10 or sub-section (4A) of section 10A.
(2) Where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of the reference of the dispute to a Board, an arbitrator, a Labour Court, Tribunal or National Tribunal, the continuance of such strike or lock-out shall not be deemed to be illegal, provided that such strike or lock-out was not at its commencement in contravention of the provisions of this Act or the continuance thereof was not prohibited under sub-section (3) of section 10 or sub-section (4A) of section 10A. (3) A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal. 25. Prohibition of financial aid to illegal strikes and lock-outs.- No person shall knowingly expend or apply any money in direct furtherance of support of any illegal strike or lock-out.
(a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calender month; or
(b) to industrial establishments which are of seasonal character or in which work is performed only intermittently.
(2) If a question arises wether an industrial establishment is of a seasonal character or wether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final. Explanation. - In this section and in Section 25C, 25D and 25E, "industrial establishment" means -
(i) a factory as defined in clause (m) of Section 2 of the Factories Act, 1948 (63 of 1948); or
(ii) a mine as defined in clause (j) of Section 2 of the Mines Act, 1952 (35 of 1952); or
(iii) a plantation as defined in clause (f) of Section 2 of the Plantations Labour Act, 1951 (69 of 1951).
25B. Definition of continuous service.- For the purposes of this Chapter, - (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be 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; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer -
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -
(i) ninety-five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case.
Explanation.- For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which -
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.
25C. Right of workmen laid-off for compensation.- Whenever a workman (other than a badli workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid-off, whether continuously or intermittently, he shall be paid by the employer for all days during which he is so laid-off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per cent of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid-off: Provided that if during any period of twelve months, a workman is so laid-off for more than forty-five days, no such compensation shall be payable in respect of any period of the lay-off after the expiry of the first forty-five days, if there is an agreement to that effect between the workman and the employer: Provided further that it shall be lawful for the employer in any case falling within the foregoing proviso to retrench the workman in accordance with the provisions contained in section 25F at any time after the expiry of the first forty-five days of the lay-off and when he does so, any compensation paid to the workman for having been laid-off during the preceding twelve months may be set off against the compensation payable for retrenchment. Explanation.--"Badli workman" means a workman who is employed in an industrial establishment in the place of another workman whose name is borne on the muster rolls of the establishment, but shall cease to be regarded as such for the purposes of this section, if he has completed one year of continuous service in the establishment. 25D. Duty of an employer to maintain muster rolls of workmen. - Notwithstanding that workmen in any industrial establishment have been laid-off, it shall be the duty of every employer to maintain for the purposes of this Chapter a muster roll and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours. 25E. Workmen not entitled to compensation in certain cases.- No compensation shall be paid to a workman who has been laid-off -
(i) if he refuses to accept any alternative employment in the same establishment from which he has been laid-off, or in any other establishment belonging to the same employer situate in the same town or village or situate within a radius of five miles from the establishment to which he belongs, if, in the opinion of the employer, such alternative employment does not call for any special kill or previous experience and can be done by the workman, provided that the wages which would normally have been paid to the workman are offered for the alternative employment also;
(ii) if he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day;
(iii) if such laying-off is due to a strike or slowing-down of production on the part of workmen in another part of the establishment.
25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until - (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette. 25FF. Compensation to workmen in case of transfer of undertakings.- Where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched: Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if -
(a) the service of the workman has not been interrupted by such transfer;
(b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and
(c) the new employer is, under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer.
25FFA. Sixty days' notice to be given of intention to close down any undertaking.- (1) An employer who intends to close down an undertaking shall serve, at least sixty days before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking: Provided that nothing in this section shall apply to -
(a) an undertaking in which -
(i) less than fifty workmen are employed, or
(ii) less than fifty workmen were employed on an average per working day in the preceding twelve months,
(b) an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work or project.
(2) Notwithstanding anything contained in sub-section (1), the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do, by order, direct that provisions of sub-section (1) shall not apply in relation to such undertaking for such period as may be specified in the order. 25FFF. Compensation to workmen in case of closing down of undertakings.- (1) Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched: Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not exceed his average pay for three months. Explanation.--An undertaking which is closed down by reason merely of -
(i) financial difficulties (including financial losses); or
(ii) accumulation of undisposed of stocks; or
(iii) the expiry of the period of the lease or licence granted to it; or
(iv) in a case where the undertaking is engaged in mining operations, exhaustion of the minerals in the area in which such operations are carried on;
shall not be deemed to be closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to this sub-section. (1A) Notwithstanding anything contained in sub-section (1), where an undertaking engaged in mining operations is closed down by reason merely of exhaustion of the minerals in the area in which such operations are carried on, no workman referred to in that sub-section shall be entitled to any notice or compensation in accordance with the provisions of section 25F, if -
(a) the employer provides the workman with alternative employment with effect from the date of closure at the same remuneration as he was entitled to receive, and on the same terms and conditions of service as were applicable to him, immediately before the closure;
(b) the service of the workman has not been interrupted by such alternative employment; and
(c) the employer is, under the terms of such alternative employment or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by such alternative employment.
(1B) For the purposes of sub-sections (1) and (1A), the expressions "minerals" and "mining operations" shall have the meanings respectively assigned to them in clauses (a) and (d) of section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 (67 of 1957). (2) Where any undertaking set-up for the construction of buildings, bridges, roads, canals, dams or other construction work is closed down on account of the completion of the work within two years from the date on which the undertaking had been set-up, no workman employed therein shall be entitled to any compensation under clause (b) of section 25F, but if the construction work is not so completed within two years, he shall be entitled to notice and compensation under that section for every completed year of continuous service or any part thereof in excess of six months. 25G. Procedure for retrenchment.- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. 25H. Re-employment of retrenched workmen.- Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment and such retrenched workman who offer themselves for re-employment shall have preference over other persons. 25I. Recovery of moneys due from employees under this chapter.- Rep. by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (36 of 1956), s. 19 (w.e.f. 10-3-1957). 25J. Effect of laws inconsistent with this Chapter.- (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946): Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act. (2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter.
(a) "industrial establishment" means -
(i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);
(ii) a mine as defined in clause (i) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952); or
(iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);
(b) notwithstanding anything contained in sub-clause (ii) of
clause (a) of section 2, -
(i) in relation to any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or
(ii) in relation to any corporation not being a corporation referred to in sub-clause (i) of clause (a) of section 2 established by or under any law made by Parliament,
the Central Government shall be appropriate Government. 25M. Prohibition of lay-off.- (1) No workman (other than a badli workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment to which this Chapter applies shall be laid-off by his employer except with the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereinafter in this section referred to as the specified authority), obtained on an application made in this behalf, unless such lay-off is due to shortage of power or to natural calamity, and in the case of a mine, such lay-off is due also to fire, flood, excess of inflammable gas or explosion. (2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended lay-off and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner. (3) Where the workman (other than badli workmen or casual workmen) of an industrial establishment, being a mine, have been laid-off under sub-section (1) for reasons of fire, flood or excess of inflammable gas or explosion, the employer, in relation to such establishment, shall, within a period of thirty days from the date of commencement of such lay-off, apply, in the prescribed manner, to the appropriate Government or the specified authority for permission to continue the lay-off. (4) Where an application for permission under sub-section (1) or sub-section (3) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such lay-off, may, having regard to the genuineness and adequacy of the reasons for such lay-off, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen. (5) Where an application for permission under sub-section (1) or sub-section (3) has been made and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days. (6) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of sub-section (7), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order. (7) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (4) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference. (8) Where no application for permission under sub-section (1) is made, or where no application for permission under sub-section (3) is made within the period specified therein, or where the permission for any lay-off has been refused, such lay-off shall be deemed to be illegal from the date on which the workmen had been laid-off and the workmen shall be entitled to all the benefits under any law for the time being in force as if they had not been laid-off. (9) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub-section (1), or, as the case may be, sub-section (3) shall not apply in relation to such establishment for such period as may be specified in the order. (10) The provisions of section 25C (other than the second proviso thereto) shall apply to cases of lay-off referred to in this section. Explanation. - For the purposes of this section, a workman shall not be deemed to be laid-off by an employer if such employer offers any alternative employment (which in the opinion of the employer does not call for any special skill or previous experience and can be done by the workman) in the same establishment from which he has been laid-off or in any other establishment belonging to the same employer, situate in the same town or village, or situate within such distance from the establishment to which he belongs that the transfer will not involve undue hardship to the workman having regard to the facts and circumstances of his case, provided that the wages which would normally have been paid to the workman are offered for the alternative appointment also. 25N. Conditions precedent to retrenchment of workmen.- (1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until, -
(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and
(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.
(2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended retrenchment and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner. (3) Where an application for permission under sub-section (1) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such retrenchment, may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen. (4) Where an application for permission has been made under sub-section (1) and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days. (5) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of sub-section (6), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order. (6) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (3) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference. (7) Where no application for permission under sub-section (1) is made, or where the permission for any retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him. (8) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply in relation to such establishment for such period as may be specified in the order. (9) Where permission for retrenchment has been granted under sub-section (3) or where permission for retrenchment is deemed to be granted under sub-section (4), every workman who is employed in that establishment immediately before the date of application for permission under this section shall be entitled to receive, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. 25-O. Procedure for closing down an undertaking.- (1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall, in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate Government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner: Provided that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work. (2) Where an application for permission has been made under sub-section (1), the appropriate Government, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and the persons interested in such closure may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the general public and all other relevant factors, by order and for reasons to be recorded in writing, grant or refused to grant such permission and a copy of such order shall be communicated to the employer and the workman. (3) Where an application has been made under sub-section (1) and the appropriate Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days. (4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding on all the parties and shall remain in force for one year from the date of such order. (5) The appropriate Government may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference. (6) Where no application for permission under sub-section (1) is made within the period specified therein, or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed down. (7) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply in relation to such undertaking for such period as may be specified in the order. (8) Where an undertaking is permitted to be closed down under sub-section (2) or where permission for closure is deemed to be granted under sub-section (3), every workman who is employed in that undertaking immediately before the date of application for permission under this section, shall be entitled to receive compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. 25P. Special provision as to restarting of undertakings closed down before commencement of the Industrial Disputes (Amendment) Act, 1976. - If the appropriate Government is of opinion in respect of any undertaking of an industrial establishment to which this Chapter applies and which closed down before the commencement of the Industrial Disputes (Amendment) Act, 1976 (32 of 1976),--
(a) that such undertaking was closed down otherwise than on account of unavoidable circumstances beyond the control of the employer;
(b) that there are possibilities of restarting the undertaking;
(c) that it is necessary for the rehabilitation of the workmen employed in such undertaking before its closure or for the maintenance of supplies and services essential to the life of the community to restart the undertaking or both; and
(d) that the restarting of the undertaking will not result in hardship to the employer in relation to the undertaking,
it may, after giving an opportunity to such employer and workmen, direct, by order published in the Official Gazette, that the undertaking shall be restarted within such time (not being less than one month from the date of the order) as may be specified in the order. 25Q. Penalty for lay-off and retrenchment without previous permission. - Any employer who contravenes the provisions of section 25M or of section 25N shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both. 25R. Penalty for closure. - (1) Any employer who closes down an undertaking without complying with the provisions of sub-section (1) of section 25-O shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both. (2) Any employer, who contravenes an order refusing to grant permission to close down an undertaking under sub-section (2) of section 25-O or a direction given under section 25P, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both, and where the contravention is a continuing one, with a further fine which may extend to two thousand rupees for every day during which the contravention continues after the conviction. 25S. Certain provisions of Chapter VA to apply to an industrial establishment to which this Chapter applies. - The provisions of sections 25B, 25D, 25FF, 25G, 25H, and 25J in Chapter VA shall, so far as may be, apply also in relation to an industrial establishment to which the provisions of this Chapter apply.
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute,
save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman, -
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute -
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman,
save with the express permission in writing of the authority before which the proceeding is pending. Explanation. - For the purposes of this sub-section, a "protected workman", in relation to an establishment, means a workman who, being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub-section (3) shall be one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board, an arbitrator, a labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, within a period of three months from the date of receipt of such application, such order in relation thereto as it deems fit: Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit: Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed. 33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings. - Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention may, make a complaint in writing, in the prescribed manner, - (a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and (b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly. 33B. Power to transfer certain proceedings. - (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred: Provided that where a proceeding under section 33 or section 33A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court. (2) Without prejudice to the provisions of sub-section (1), any Tribunal or National Tribunal, if so authorized by the appropriate Government, may transfer any proceeding under section 33 or section 33A pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette and the Labour Court to which the proceeding is so transferred shall dispose of the same. 33C. Recovery of money due from an employer. - (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government; within a period not exceeding three months: Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit. (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen. Explanation. - In this section "Labour Court" includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State. 34. Cognizance of offences.- (1) No Court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government. (2) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class, shall try any offence punishable under this Act. 35. Protection of persons.- (1) No person refusing to take part or to continue to take part in any strike or lock-out which is illegal under this Act shall, by reason of such refusal or by reason of any action taken by him under this section, be subject to expulsion from any trade union or society, or to any fine or penalty, or to deprivation of any right or benefit to which he or his legal representatives would otherwise be entitled, or be liable to be placed in any respect, either directly or indirectly, under any disability or at any disadvantage as compared with other members of the union or society, anything to the contrary in the rules of a trade union or society notwithstanding. (2) Nothing in the rules of a trade union or society requiring the settlement of disputes in any manner shall apply to any proceeding for enforcing any right or exemption secured by this section, and in any such proceeding the Civil Court may, in lieu of ordering a person who has been expelled from membership of a trade union or society to be restored to membership, order that he be paid out of the funds of the trade union or society such sum by way of compensation or damages as that Court thinks just. 36. Representation of parties.- (1) A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by -
(a) any member of the executive or office bearer of a registered trade union of which he is a member:
(b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;
(c) where the worker is not a member of any trade union, by any member of the executive or other office bearer of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed.
(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by -
(a) an officer of an association of employers of which he is a member;
(b) an officer of a federation of association of employers to which the association referred to in clause (a) is affiliated;
(c) where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorized in such manner as may be prescribed.
(3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court. (4) In any proceeding before a Labour Court, Tribunal or National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be. 36A. Power to remove difficulties.- (1) If, in the opinion of the appropriate Government any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit. (2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such parties. 36B. Power to exempt.- Where the appropriate Government is satisfied in relation to any industrial establishment or undertaking or any class of industrial establishments or undertakings carried on by a department of that Government that adequate provisions exist for the investigation and settlement of industrial disputes in respect of workmen employed in such establishment or undertaking or class of establishments or undertakings, it may, by notification in the Official Gazette, exempt, conditionally or unconditionally such establishment or undertaking or class of establishments or undertakings from all or any of the provisions of this Act. 37. Protection of action taken under the Act.- No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. 38. Power to make rules.- (1) The appropriate Government may, subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: -
(a) the powers and procedure of conciliation officers, Boards, Courts, Labour Courts, Tribunals and National Tribunals including rules as to the summoning of witnesses, the production of documents relevant to the subject-matter of an inquiry or investigation, the number of members necessary to form a quorum and the manner of submission of reports and awards;
(aa) the form of arbitration agreement, the manner in which it may be signed by the parties, the manner in which a notification may be issued under sub-section (3A) of section 10A, the powers of the arbitrator named in the arbitration agreement and the procedure to be followed by him;
(aaa) the appointment of assessors in proceedings under this Act;
(ab) the constitution of Grievance Settlement Authorities referred to in section 9C, the manner in which industrial disputes may be referred to such authorities for settlement, the procedure to be followed by such authorities in the proceedings in relation to disputes referred to them and the period within which such proceedings shall be completed;
(b) the constitution and functions of and the filling of vacancies in Works Committees, and the procedure to be followed by such Committees in the discharge of their duties;
(c) the allowances admissible to members of Courts and Boards and presiding officers of Labour Courts, Tribunals and National Tribunals and to assessors and witnesses;
(d) the ministerial establishment which may be allotted to a Court, Board, Labour Court, Tribunal or National Tribunal and the salaries and allowances payable to members of such establishments;
(e) the manner in which and the persons by and to whom notice of strike or lock-out may be given and the manner in which such notices shall be communicated;
(f) the conditions subject to which parties may be represented by legal practitioners in proceedings under this Act before a Court, Labour Court, Tribunal or National Tribunal;
(g) any other matter which is to be or may be prescribed.
(3) Rules made under this section may provide that a contravention thereof shall be punishable with fine not exceeding fifty rupees. (4) All rules made under this section shall, as soon as possible after they are made, be laid before the State Legislature or, where the appropriate Government is the Central Government, before both Houses of Parliament. (5) Every rule made by the Central Government under this section shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 39. Delegation of powers.- The appropriate Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also, -
(a) where the appropriate Government is the Central Government, by such officer or authority subordinate to the Central Government or by the State Government or by such officer or authority subordinate to the State Government, as may be specified in the notification; and
(b) where the appropriate Government is a State Government, by such officer or authority subordinate to the State Government as may be specified in the notification.
40. Power to amend Schedules. - (1) The appropriate Government may, if it is of opinion that it is expedient or necessary in the public interest so to do, by notification in the Official Gazette, add to the First Schedule any industry, and on any such notification being issued, the First Schedule shall be deemed to be amended accordingly. (2) The Central Government may, by notification in the Official Gazette, add to or alter or amend the Second Schedule or the Third Schedule and on any such notification being issued, the Second Schedule or the Third Schedule, as the case may be, shall be deemed to be amended accordingly. (3) Every such notification shall, as soon as possible after it is issued, be laid before the Legislature of the State, if the notification has been issued by a State Government, or before Parliament, if the notification has been issued by the Central Government.
THE FIRST SCHEDULE
INDUSTRIES WHICH MAY BE DECLARED TO BE PUBLIC UTILITY SERVICES UNDER SUB-CLAUSE (VI) OF CLAUSE (N) OF SECTION 2
[Section2(n)(vi)]
1. Transport (other than railways) for the carriage of passengers or goods, 163[by land or water].
2. Banking.
3. Cement.
4. Coal.
5. Cotton textiles
6. Foodstuffs
7. Iron and Steel.
8. Defence establishments.
9. Service in hospitals and dispensaries.
10.Fire Brigade Service.
11. India Government Mints.
12. India Security Press.
13. Copper Mining.
14. Lead Mining.
15 Zinc Mining
16. Iron Ore Mining.
17. Service in any oilfield.
[* ** ]
19. Service in the Uranium Industry.
20. Pyrites Mining Industry.
21. Security Paper Mill, Hoshangabad.]]
22. Service in the Bank Note Press, Dewas.
23.Phosphorite Mining.
24. Magnesite Mining.
25. Currency Note Press.
26. Manufacture or production of mineral oil (crude oil), motor and aviation spirit, diesel oil, kerosene oil, fuel oil, diverse hydrocarbon oils and their blends including synthetic fuels, lubricating oils and the like.
27. Service in the International Airports Authority of India.]
28. Industrial establishment, manufacturing or producing nuclear fuel and components, heavy water and allied chemicals, and atomic energy.]
THE SECOND SCHEDULE
MATTERS WITHIN THE JURISDICTION OF LABOUR COURTS
(Section 7)
1. The propriety or legality of an order passed by an employer under the standing orders; 2. The application and interpretation of standing orders;3. Discharge or dismissal of workmen including reinstatement of, or grant
3. of relief to, workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;
6. All matters other than those specified in the Third Schedule.
THE THIRD SCHEDULE
MATTERS WITHIN THE JURISDICTION OF INDUSTRIAL TRIBUNALS
(Section 7A)
1. Wages, including the period and mode of payment;
2. Compensatory and other allowances;
3. Hours of work and rest intervals;
4. Leave with wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity;
6. Shift working otherwise than in accordance with standing orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalisation;
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed.
THE FOURTH SCHEDULE
CONDITIONS OF SERVICE FOR CHANGE OF WHICH NOTICE IS TO BE GIVEN
(Section 9A)
1.Wages, including the period and mode of payment;
2. Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force;
3. Compensatory and other allowances;
4. Hours of work and rest intervals;
5. Leave with wages and holidays;
6. Starting, alteration or discontinuance of shift working otherwise than in accordance with standing orders;
8. Withdrawal of any customary concession or privilege or change in usage.
9. Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders;
11. Any increase or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, 167[not occasioned by circumstances over which the employer has no control].
[Section 2(ra)]
I. ON THE PART OF EMPLOYERS AND TRADE UNIONS OF EMPLOYERS
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;
(c) granting wage increase to workmen at crucial periods of trade union organisation, with a view to undermining the efforts of the trade union at 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.
(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 or workmen because of trade union activities;
(d) refusing to promote workmen of 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.
(5) To discharge or dismiss workmen-
(a) by way of victimisation;
(b) not in good faith, but in the colourable 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;
(f) 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 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.
(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 a good conduct bond, as a precondition 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.
(12) To recruit workman 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.
(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 residence 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.]
*******
CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970
[Act No. 37 of Year 1970, dated 5th. September, 1970]
An Act to regulate the employment of contract labour in certain establishments and to provide for its abolition in certain circumstances and for matters connected therewith
Be it enacted by Parliament in the Twenty-first Year of the Republic of India as follows: -
CHAPTER I: PRELIMINARY
1. Short title, extent, commencement and application
(1) This Act may be called the Contract Labour (Regulation and Abolition) Act, 1970
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act.
(4) It applies-
(a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour;
(b) to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen:
PROVIDED that the appropriate government may, after giving not less than two months' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment or contractor employing such number of workmen less than twenty as may be specified in the notification.
(5) (a) It shall not apply to establishments in which work only of an intermittent or casual nature is performed.
(b) If a question arises whether work performed in an establishment is of an intermittent or casual nature, the appropriate government shall decide the question after consultation with the Central Board or, as the case may be, as State Board, and its decision shall be final.
Explanation: For the purpose of this sub-section, work performed in an establishment shall not be deemed to be of an intermittent nature-
(i) if it was performed for more than one hundred and twenty days in the preceding twelve months, or
(ii) if it is of a seasonal character and is performed for more than sixty days in a year.
2. Definitions
(1) In this Act, unless the context otherwise requires,-
1[(a) "appropriate government" means-
(i) in relation to an establishment in respect of which the appropriate government under the Industrial Disputes Act, 1947 (14 of 1947), is the Central Government, the Central Government;
(ii) in relation to any other establishment, the Government of the State in which that other establishment is situate;]
(b) a workman shall be deemed to be employed as "contract labour" in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer;
(c) "contractor", in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor;
(d) "controlled industry" means any industry the control of which by the Union has been declared by any Central Act to be expedient in the public interest;
(e) "establishment" means-
(i) any office or department of the government or a local authority, or
(ii) any place where any industry, trade, business, manufacture or occupation is carried on;
(f) "prescribed" means prescribed by rules made under this Act;
(g) "principal employer" means-
(i) in relation to any office or department of the government or a local authority, the head of that office or department or such other officer as the government or the local authority; as the case may be, may specify in this behalf,
(ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named.
(iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named,
(iv) in any other establishment, any person responsible for the supervision and control of the establishment.
Explanation : For the purpose of sub-clause (iii) of this clause, the expressions "mine", "owner" and "agent" shall have the meanings respectively assigned to them in clause (j) clause (l) and clause (c) of sub-section (1) of section 2 of the Mine Act, 1952 (35 of 1952);
(h) "wages" shall have the meaning assigned to it in clause (vi) of section 2 of the Payment of Wages Act, 1936 (4 of 1936);
(i) "workman" means any person employed in or in connection with the work of any establishment to do any skilled, semi-skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, but does not include any such person-
(A) who is employed mainly in a managerial or administrative capacity; or
(B) who, being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature; or
(C) who is an out-worker, that is to say, a person to whom any article and materials are given out by or on behalf of the principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker or in some other premises, not being premises under the control and management of the principal employer.
(2) Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law, if any, in force in that State.
CHAPTER II: THE ADVISORY BOARDS
3. Central Advisory Board
(1) The Central Government shall, as soon as may be, constitute a Board to be called the Central Advisory Contract Labour Board (hereinafter referred to as the Central Board) to advise the Central Government on such matter arising out of the administration of this Act as may be referred to it and to carry out other functions assigned to it under this Act.
(2) The Central Board shall consist of-
(a) a Chairman to be appointed by the Central Government;
(b) the Chief Labour Commissioner (Central), ex officio;
(c) such number of members, not exceeding seventeen but not less than eleven, as the Central Government may nominate to represent that government, the Railways, the coal industry, the mining industry, the contractors, the workmen and any other interests which, in the opinion of the Central Government, ought to be represented on the Central Board.
(3) The number of persons to be appointed as members from each of the categories specified in sub-section (2), the term of office and other conditions of service of, the procedure to be followed in the discharge of their functions by, and the manner of filling vacancies among, the members of the Central Board shall be such as may be prescribed:
PROVIDED that the number of members nominated to represent the workmen shall not be less than the number of members nominated to represent the principal employers and the contractors.
4. State Advisory Board
(1) The State Government may constitute a Board to be called the State Advisory Contract Labour Board (hereinafter referred to as the State Board) to advise the State Government on such matters arising out of the administration of this Act as may be referred to it and to carry out other functions assigned to it under this Act.
(2) The State board shall consist of-
(a) a Chairman to be appointed by the State Government;
(b) the Labour Commissioner, ex officio, or in his absence any other officer nominated by the State Government in that behalf;
(c) such number of members, not exceeding eleven but not less than nine, as the State Government may nominate to represent that government, the industry, the contractors, the workmen and any other interests which, in the opinion of the State Government, ought to be represented on the State Board.
(3) The number of persons to be appointed as members from each of the categories specified in sub-section (2), the term of office and other conditions of service of, the procedure to be followed in the discharge of their functions by, and the manner of filling vacancies, among, the members of the State Board shall be such as may be prescribed:
5. Power to constitute committees
(1) The Central Board or the State Board, as the case may be, may constitute such committees and for such purpose or purposes as it may think fit.
(2) The committee constituted under sub-section (1) shall meet at such time and places and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed.
(3) The members of a committee shall be paid such fees and allowances for attending its meetings as may be prescribed:
PROVIDED that no fees shall be payable to a member who is an officer of government or of any corporation established by any law for the time being in force.
CHAPTER III: REGISTRATION OF ESTABLISHMENTS EMPLOYING CONTRACT LABOUR
6. Appointment of registering officers
The appropriate government may, by an order notified in the Official Gazette-
(a) appoint such persons, being Gazetted Officers of government, as it thinks fit to be registering officers for the purpose of this chapter; and
(b) define the limits, with in which a registering officer shall exercise the powers conferred on him by or under this Act.
7. Registration of certain establishments
(1) Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate government may, by notification in the Official Gazette, fix in this behalf with respect to establishment generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment:
PROVIDED that the registering officer may entertain any such application for registration after expiry of the period fixed in this behalf, if the registering officer is satisfied that the applicant was prevented by sufficient cause from making the application in time.
(2) If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the establishment a certificate of registration containing such particulars as may be prescribed.
8. Revocation of registration in certain cases
If the registering officer is satisfied, either on a reference made to him in this behalf or otherwise, that the registration of any establishment has been obtained by misrepresentation or suppression of any material fact, or that for any other reason the registration has become useless or ineffective and, therefore requires to be revoked, the registering officer may, after giving an opportunity to the principal employer of the establishment to be heard and with the previous approval of the appropriate government, revoke the registration.
9. Effect of non-registration
No principal employer of an establishment, to which this Act applies, shall-
(a) in the case of an establishment required to be registered under section 7, but which has not been registered within the time fixed for the purpose under that section;
(b) in the case of an establishment the registration in respect of which has been revoked under section 8,
employ contract labour in the establishment after the expiry of the period referred to in clause (a) or after the revocation of registration referred to in clause (b), as the case may be.
10. Prohibition of employment of contract labour
(1) Notwithstanding anything contained in this Act, the appropriate government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as-
(a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment;
(b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment;
(c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;
(d) whether it is sufficient to employ considerable number of whole-time workmen.
Explanation : If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate government thereon shall be final.
Gammon India Ltd. v. Union of India, AIR 1974 SC 960.
Peoples’ Union for Democratic Rights v. Union of India, AIR 1982 SC 1473. Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645. Steel Authority of India Ltd. v. National Union Water Front Workers, AIR 2001 SC 3527. National Thermal Power Corporation Ltd. v. Karri Pothuraju, AIR 2003 SC 3647. Mishra Dhatu Nigam Ltd. v. M. Venkataiah, AIR 2003 SC 3124. Petrochemicals Case-2005
CHAPTER IV: LICENSING OF CONTRACTORS
11. Appointment of licensing officers
(a) appoint such person, being Gazetted Officers of government, as it thinks fit to be licensing officers for the purposes of this chapter; and
(b) define the limits, within which a licensing officer shall exercise the powers conferred on licensing officers by or under this Act.
12. Licensing of contractors
(1) With effect from such date as the appropriate government may,by notification in the Official Gazette, appoint no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer.
(2) Subject to the provisions of this Act, a licence under sub-section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate government may deem fit to impose in accordance with the rules, if any, made under section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed.
13. Grant of licences
(1) Every application for the grant of licence under sub-section (1) of section 12 shall be made in the prescribed form and shall contain the particulars regarding the location of the establishment, the nature of process, operation or work for which contract labour is to be employed and such other particulars as may be prescribed.
(2) The licensing officer may make such investigation in respect of the application received under sub-section (1) and in making any such investigation the licensing officer shall follow such procedure as may be prescribed.
(3) A licence granted under this chapter shall be valid for the period specified therein and may be renewed from time to time for such period and on payment of such fees and on such conditions as may be prescribed.
14. Revocation, suspension and amendment of licences
(1) If the licensing officer is satisfied, either on a reference made to him in this behalf or otherwise, that-
(a) a licence granted under section 12 has been obtained by misrepresentation or suppression of any material fact, or
(b) the holder of a licence has, without reasonable cause, failed to comply with the conditions subject to which the licence has been granted or has contravened any of the provisions of this Act or the rules made thereunder,
then without prejudice to any other penalty to which the holder of the licence may be liable under this Act, the licensing officer may, after giving the holder of the licence an opportunity of showing cause, revoke or suspend the licence or forfeit the sum, if any, or any portion thereof deposited as security for the due performance of the conditions subject to which the licence has been granted.
(2) Subject to any rules that may be made in this behalf, the licensing officer may vary or amend a licence granted under section 12.
15. Appeal
(1) Any person aggrieved by an order made under section 7, section 8, section 12 or section 14 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to an appellate officer who shall be a person nominated in this behalf by the appropriate government:
PROVIDED that the appellate officer may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under sub-section (1), the appellate officer shall, after giving the appellant an opportunity of being heard dispose of the appeal as expeditiously as possible.
CHAPTER V: WELFARE AND HEALTH OF CONTRACT LABOUR
16. Canteens
(1) The appropriate government may make rules requiring that in every establishment-
(a) to which this Act applies,
(b) wherein work requiring employment of contract labour is likely to continue for such period as may be prescribed, and
(c) wherein contract labour numbering one hundred or more is ordinarily employed by a contractor,
one or more canteens shall be provided and maintained by the contractor for the use of such contract labour.
(2) Without prejudice to the generality of the foregoing power, such rules, may provide for-
(a) the date by which the canteens shall be provided;
(b) the number of canteens that shall be provided, and the standards in respect of construction, accommodation, furniture and other equipment of the canteens; and
(c) the foodstuffs which may be served therein and the charges which may be made therefor.
17. Rest-rooms
(1) In every place where in contract labour is required to halt at night in connection within the work of an establishment-
(a) to which this Act applies, and
(b) in which work requiring employment of contract labour is likely to continue for such period as may be prescribed,
there shall be provided and maintained by the contractor for the use of the contract labour such number of rest-rooms or such other suitable alternative accommodation with such time as may be prescribed.
(2) The rest-rooms or the alternative accommodation to be provided under subsection (1) shall be sufficiently lighted and ventilated and shall be maintained in clean and comfortable condition.
18. Other facilities
It shall be the duty of every contractor employing contract labour in connection with the work of an establishment to which this Act applies, to provide and maintain-
(a) a sufficient supply of wholesome drinking-water for the contract labour at convenient places;
(b) a sufficient number of latrines and urinals of the prescribed types so situated as to be convenient and accessible to the contract labour in the establishment; and
(c) washing facilities.
19. First-aid facilities
There shall be provided and maintained by the contractor so as to be readily accessible during all working hours a first-aid box equipped with the prescribed contents at every place where contract labour is employed by him.
20. Liability of principal employer in certain cases
(1) If any amenity required to be provided under section 16, section 17, section 18, or section 19 for the benefit of the contract labour employed in an establishment is not provided by the contractor within the time prescribed therefor, such amenity shall be provided by the principal employer within such time as may be prescribed.
(2) All expenses incurred by the principal employer in providing the amenity may be recovered by the principal employer from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.
21. Responsibility for payment of wages
(1) A contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.
(2) Every principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed.
(3) It shall be the duty of the contractor or ensure the disbursement of wages in the presence of the authorised representative of the principal employer.
(4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.
CHAPTER VI: PENALTIES AND PROCEDURE
22. Obstructions
(1) Whoever obstructs an inspector in the discharge of his duties under this Act or refuses or wilfully neglects to afford the inspector any reasonable facility for making any inspection, examination, inquiry or investigation authorised by or under this Act in relation to an establishment to which, or a contractor to whom, this Act applies, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
(2) Whoever wilfully refuses to produce on the demand of an inspector any register or other document kept in pursuance of this Act or prevents or attempts to prevent or does anything which he has reason to believe is likely to prevent any person from appearing before or being examined by an inspector acting in pursuance of his duties under this Act, shall be punishable with imprisonment for a term which may extend to three months, or with a fine which may extend to five hundred rupees, or with both.
23. Contravention of provisions regarding employment of contract labour
Whoever contravenes any provision of this Act or of any rules made thereunder prohibiting, restricting or regulating the employment of contract labour, or contravenes any condition of a licence granted under this Act, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both, and in the case of a continuing contravention with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
24. Other offences
If any person contravenes any of the provisions of this Act or of any rules made thereunder for which no other penalty is elsewhere provided, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
25. Offences by companies
(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
PROVIDED that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of any director, manager, managing agent or any other officer of the company, such director, manager, managing agent or such other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation : For the purpose of this section-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.
26. Cognizance of offences
No court shall take cognizance of any offence under this Act except on a complaint made by, or with the previous sanction in writing of, the inspector and no court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this Act.
27. Limitation of prosecutions
No court shall take cognizance of an offence punishable under this Act unless the complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of an inspector:
PROVIDED that where the offence consists of disobeying a written order made by an inspector, complaint, thereof may be made within six months of the date on which the offence is alleged to have been committed.
CHAPTER VII: MISCELLANEOUS
28. Inspecting staff
(1) The appropriate government may, by notification in the Official Gazette, appoint such persons as it thinks fit to be inspectors for the purposes of this Act, and define the local limits within which they shall exercise their powers under this Act.
(2) Subject to any rules made in this behalf, an inspector may, within the local limits for which he is appointed-
(a) enter, at all reasonable hours, with such assistance (if any), being persons in the service of the government or any local or other public authority as he thinks fit, any premises or place where contract labour is employed, for the purpose of examining any register or record or notice required to be kept or exhibited by or under this Act or rules made thereunder, and require the production thereof for inspection:
(b) examine any person whom he finds in any such premises or place and who, he has reasonable cause to believe, is a workman employed therein;
(c) require any person giving out work and any workman, to give any information, which is in his power to give with respect to the names and addresses of the person to, for and from whom the work is given out or received, and with respect to the payments to be made for the work;
(d) seize or take copies of such register, record of wages or notices or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed by the principal employer or contractor; and
(e) exercise such other powers as may be prescribed.
(3) Any information required to produce any document or thing or to give any information required by an inspector under sub-section (2) shall be deemed to be legally bound to do so within the meaning of section 175 and section 176 of the Indian Penal Code, 1860 (45 of 1860).
(4) The provisions of the Code of Criminal Procedure, 1898 (5 of 1898), shall, so far as may be, apply to any search or seizure under sub-section (2) as they apply to any search or seizure made under the authority of a warrant issued under section 98 of the said Code.2
29. Registers and other records to be maintained
(1) Every principal employer and every contractor shall maintain such register and records giving such particulars of contract labour employed, the nature of work performed by the contract labour, the rate of wages paid to the contract labour and such other particulars in such form as may be prescribed.
(2) Every principal employer and every contractor shall keep exhibited in such manner as may be prescribed within the premises of the establishment where the contract labour is employed, notices in the prescribed form containing particulars about the hours of work, nature of duty and such other information as may be prescribed.
30. Effect of laws and agreements inconsistent with this Act
(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any agreement or contract of service, or in any standing orders applicable to the establishment whether made before or after the commencement of the Act:
PROVIDED that where under any such agreement, contract of service or standing orders the contract labour employed, in the establishment are entitled to benefits in respect of any matter which are more favourable to them than those to which they would be entitled under this Act, the contract labour shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that they received benefits in respect of other matters under this Act.
(2) Nothing contained in this Act shall be construed as precluding any such contract labour from entering into an agreement with the principal employer or the contractor, as the case may be, for granting them rights or privileges in respect of any matter which are more favourable to them than those to which they would be entitled under this Act.
31. Power to exempt in special cases
The appropriate government may, in the case of an emergency, direct, by notification in the Official Gazette, that subject to such conditions and restrictions, if any, and for such period or periods, as may be specified in the notification, all or any of the provisions of this Act or the rules made thereunder shall not apply to any establishment or class of establishments or any class of contractors.
32. Protection of action taken under this Act
(1) No suit, prosecution or other legal proceedings shall lie against any registering officer, licensing officer or any other government servant or against any member of the Central Board or the State Board, as the case may be, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made thereunder.
(2) No suit or other legal proceeding shall lie against the government for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made thereunder.
33. Power to give directions
The Central Government may give directions to the Government of any State as to the carrying into execution in the State of the provisions contained in this Act.
34. Power to remove difficulties
If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient for removing the difficulty.
35. Power to make rules
(1) The appropriate government may, subject to the condition of previous publication, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely-
(a) the number of persons to be appointed members representing various interests on the Central Board and the State Board, the term of their office and other conditions of service, the procedure to be followed in the discharge of their functions and the manner of filling vacancies;
(b) the times and places of the meetings of any committee constituted under that Act, the procedure to be followed at such meeting including the quorum necessary for the transaction of business, and the fees and allowances that may be paid to the members of a committee;
(c) the manner in which establishments may be registered under section 7, the levy of a fee therefor and the form of certificate of registration;
(d) the form of application of the grant or renewal of a licence under section 13 and the particulars it may contains;
(e) the manner in which an investigation is to be made in respect of an application for the grant of a licence and the matters to be taken into account in granting or refusing a licence;
(f) the form of a licence which may be granted or renewed under section 12 and the conditions subject to which the licence may be granted or renewed, the fees to be levied for the grant or renewal of a licence and the deposit of any sum as security for the performance of such conditions:
(g) the circumstances under which licences may be varied or amended under section 14;
(h) the form and manner in which appeals may be filed under section 15 and the procedure to be followed by appellate officers in disposing of the appeals;
(i) the time within which facilities required by this Act to be provided and maintained may be so provided by the contractor and in case of default on the part of the contractor, by the principal employer;
(j) the number and types of canteens, rest-rooms, latrines and urinals that should be provided and maintained;
(k) the type of equipment that should be provided in the first-aid boxes;
(l) the period within which wages payable to contract labour should be paid by the contractor under sub-section (1) of section 21;
(m) the form of registers and records to be maintained by principal employers and contractors;
(n) the submission of returns, forms in which, and the authorities to which, such returns may be submitted;
(o) the collection of any information or statistics in relation to contract labour; and
(p) any other matter which has to be, or may be, prescribed under this Act.
(3) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Provided that the employer shall not be so liable –
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
(b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to –
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
(iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen,
(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III, for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment :
Provided that if it is proved, - (a) that a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment, and
(b) that the disease has arisen out of and in the course of the employment; the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section :
Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.
(2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.
(3) The Central Government or the State Government, after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III, and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub-section (2) shall apply In the case of a notification by the Central Government, within the territories to which this Act extends or, in case of a notification by the State Government, within the State as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.
(4) Save as provided by Sub-sections (2), (2A) and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.
(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury –
(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or
(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.
AMOUNT OF COMPENSATION. –
4.(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely
(a)where death results from an injury :
an amount equal to fifty percent of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of eighty thousand rupees, whichever is more; (b)where permanent total disablement results from an injury: an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor, or an amount of ninety thousand rupees, whichever is more. Explanation I : For the purposes of clause (a) and clause (b), "relevant factor", in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due; Explanation II : Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only; (c) where permanent partial disablement results from the injury : (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; Explanation I : Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; Explanation II : In Assessing the loss of earning capacity for the purposes of sub-clause (ii) the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I; (d) Where temporary disablement, whether total or partial, results from the injury : a half monthly payment of the sum equivalent to twenty-five per cent of monthly wages of the workman, to be paid in accordance with the provisions of sub-section (2). (1A) Notwithstanding anything contained in sub-section (1), while fixing the amount of compensation payable to a workman in respect of an accident occurred outside India, the Commissioner shall take into account the amount of compensation, if any, awarded to such workman in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the workman in accordance with the law of that country. (2) The half-monthly payment referred to in clause (d) of sub-section (1) shall be payable on the sixteenth day –
FACTORIES ACT, 1948.
PREAMBLE
[63 OF 1948]
An Act to consolidate and amend the law regulating labour in factories.
WHEREAS it is expedient to consolidate and amend the law regulating labour in factories; It is hereby enacted as follows :-
1. SHORT TITLE, EXTENT AND COMMENCEMENT. - (1) This Act may be called the Factories Act, 1948.
(3) It shall come into force on the 1st day of April, 1949.
2. INTERPRETATION. - In this Act, unless there is anything repugnant in the subject or context, - (a) "adult" means a person who has completed his eighteenth year of age;
(b) "adolescent" means a person who has completed his fifteen year of age but has not completed his eighteenth year;
(bb) "calendar year" means the period of twelve months beginning with the first day of January in any year;
(c) "child" means a person who has not completed his fifteenth year of age;
(ca) "competent person", in relation to any provision of this Act, means a person or an institution recognised as such by the Chief Inspector for the purposes of carrying out tests, examinations and inspections required to be done in a factory under the provisions of this Act having regard to - (i) the qualifications and experience of the person and facilities available at his disposal; or
(ii) the qualifications and experience of the persons employed in such institution and facilities available therein, with regard to the conduct of such test, examinations and inspections, and more than one person or institution can be recognised as a competent person in relation to a factory;
(cb) "hazardous process" means any process or activity in relation to an industry specified to the First Schedule where, unless special care is taken, raw materials used therein or the intermediate or finished products, bye-products, wastes or effluents thereof would - (i) cause material impairment to the health of the persons engaged in or connected therewith, or
(ii) result in the pollution of the general environment : Provided that the State Government may, by notification in the Official Gazette, amend the First Schedule by way of addition, omission or variation of any industry specified in the said Schedule;
(d) "young person" means a person who is either a child or an adolescent;
(e) "day" means a period of twenty-four hours beginning at midnight;
(f) "week" means a period of seven days beginning at midnight on Saturday night or such other night as may be approved in writing for a particular area by the Chief Inspector of factories;
(g) "power" means electrical energy, or any other form of energy which is mechanically transmitted and is not generated by human or animal agency;
(h) "prime mover" means any engine, motor or other appliance which generates or otherwise provides power;
(i) "transmission machinery" means any shaft, wheel drum, pulley, system of pulleys, coupling, clutch, driving belt or other appliance or device by which the motion of a prime mover is transmitted to or received by any machinery or appliance;
(j) "machinery" includes prime movers, transmission machinery and all other appliances whereby power is generated, transformed, transmitted or applied;
(k) "manufacturing process" means any process for - (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or
(ii) pumping oil, water, sewage or any other substance; or;
(iii) generating, transforming or transmitting power; or
(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding;
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; (Inserted by the Factories (Amendment) Act, 1976, w.e.f. 26-10-1976.)
(vi) preserving or storing any article in cold storage; (l) "worker" means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process but does not include any member of the armed forces of the union;
(m) "factory" means any premises including the precincts thereof - (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952), or a mobile unit belonging to the armed forces of the union, a railway running shed or a hotel, restaurant or eating place;
Explanation I : For computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account.
Explanation II : For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof;
(n) "occupier' of a factory means the person who has ultimate control over the affairs of the factory :
Provided that - (i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;
(ii) in the case of a company, any one of the directors shall be deemed to be the occupier;
(iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier :
Provided further that in the case of a ship which is being repaired, or on which maintenance work is being carried out, in a dry dock which is available for hire, - (1) the owner of the dock shall be deemed to be the occupier for the purposes of any matter provided for by or under - (a) section 6, section 7, section 7A, section 7B, section 11 or section 12;
(b) section 17, in so far as it relates to the providing and maintenance of sufficient and suitable lighting in or around the dock;
(c) section 18, section 19, section 42, section 46, section 47 or section 49, in relation to the workers employed on such repair or maintenance;
(2) the owner of the ship or his agent or master or other officer-in-charge of the ship or any person who contracts with such owner, agent or master or other officer-in-charge to carry out the repair or maintenance work shall be deemed to be the occupier for the purposes of any matter provided for by or under section 13, section 14, section 16 or section 17 (save as otherwise provided in this proviso) or Chapter IV (except section 27) or section 43, section 44 or section 45, Chapter VI, Chapter VII, Chapter VIII or Chapter IX or section 108, section 109 or section 110, in relation to - (a) the workers employed directly by him, or by or through any agency; and
(b) the machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other officer-in-charge or person;
(o) Omitted
(p) "prescribed" means prescribed by rules made by the State Government under this Act;
(q) Omitted
(r) where work of the same kind is carried out by two or more sets of workers working during different periods of the day, each of such sets is called a "group" or "relay" and each of such periods is called a "shift".
52. WEEKLY HOLIDAYS. - (1) No adult worker shall be required or allowed to work in a factory on the first day of the week (hereinafter referred to as the said day), unless - (a) he has or will have a holiday for a whole day on one of the three days immediately before or after the said day, and
(b) the manager of the factory has, before the said day or the substituted day under clause (a), whichever is earlier, - (i) delivered a notice at the office of the Inspector of his intention to require the worker to work on the said day and of the day which is to be substituted, and
(ii) displayed a notice to that effect in the factory : Provided that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.
(2) Notices given under sub-section (1) may be cancelled by a notice delivered at the office of the Inspector and a notice displayed in the factory not later than the day before the said day or the holiday to be cancelled, whichever is earlier.
(3) Where, in accordance with the provisions of sub-section (1), any worker works on the said day and has had a holiday on one of the three days immediately before it, that said day shall, for the purpose of calculating his weekly hours of work, be included in the preceding week.
53. COMPENSATORY HOLIDAYS. - (1) Where, as a result of the passing of an order or the making of a rule under the provisions of this Act exempting a factory or the workers therein from the provisions of section 52, a worker is deprived of any of the weekly holidays for which provision is made in sub-section (1) of that section, he shall be allowed, within the month in which the holidays were due to him or within the two months immediately following that month, compensatory holidays of equal number to the holidays so lost.
(2) The State Government may prescribe the manner in which the holidays for which provision is made in sub-section (1) shall be allowed.
54. DAILY HOURS. - Subject to the provisions of section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day :
Provided that, subject to the previous approval of the Chief inspector, the daily maximum hours specified in this section may be exceeded in order to facilitate the change of shifts.
55. INTERVALS FOR REST. - (1) The periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour.
(2) The State Government or, subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt any factory from the provisions of sub-section (1) so however that the total number of hours worked by a worker without an interval does not exceed six.
56. SPREADOVER. - The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under section 55, they shall not spread over more than ten and a half hours in any day : Provided that the Chief Inspector may, for reasons to be specified in in writing, increase the spreadover up to twelve hours.
57. NIGHT SHIFTS. - Where a worker in a factory works on a shift which extends beyond midnight, - (a) for the purposes of sections 52 and 53, a holiday for a whole day shall mean in his case a period of twenty-four consecutive hours beginning when his shift ends;
(b) the following day for him shall be deemed to be the period of twenty-four hours beginning when such shift ends, and the hours he has worked after midnight shall be counted in the previous day.
58. PROHIBITION OF OVERLAPPING SHIFTS. - (1) Work shall not be carried on in any factory by means of a system of shifts so arranged that more than one relay of workers is engaged, in work of the same kind at the same time.
(2) The State Government or subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt on such conditions as may be deemed expedient, any factory or class or description of factories or any department or section of a factory or any category or description of workers therein from the provisions of sub-section (1).
59. EXTRA WAGES FOR OVERTIME. - (1) Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.
(2) For the purposes of sub-section (1), "ordinary rate of wages" means the basic wages plus such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of foodgrains and other articles, as the worker is for the time being entitled to, but does not include a bonus and wages for overtime work.
(3) Where any workers in a factory are paid on a piece-rate basis, the time rate shall be deemed to be equivalent to the daily average of their full-time earnings for the days on which they actually worked on the same or identical job during the month immediately preceding the calendar month during which the overtime work was done, and such time rates shall be deemed to be the ordinary rates of wages of those workers :
Provided that in the case of a worker who has not worked in the immediately preceding calendar month on the same or identical job, the time rate shall be deemed to be equivalent to the daily average of the earnings of the worker for the days on which he actually worked in the week in which the overtime work was done.
Explanation : For the purposes of this sub-section, in computing the earnings for the days on which the worker actually worked such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of food grains and other articles, as the worker is for the time being entitled to, shall be included but any bonus or wages for overtime work payable in relation to the period with reference to which the earnings are being computed shall be excluded.
(4) The cash equivalent of the advantage accruing through the concessional sale to a worker of food grains and other articles shall be computed as often as may be prescribed on the basis of the maximum quantity of food grains and other articles admissible to a standard family.
Explanation 1 : Standard family means a family consisting of the worker, his or her spouse and two children below the age of fourteen years requiring in all three adult consumption units.
Explanation 2 : Adult consumption unit means the consumption unit of a male above the age of fourteen years; and the consumption unit of a female above the age of fourteen years and that of a child below the age of fourteen years shall be calculated at the rates of 0.8 and 0.6 respectively of one adult consumption unit.
(5) The State Government may make rules prescribing - (a) the manner in which the cash equivalent of the advantage accruing through the concessional sale to a worker of food grains and other articles shall be computed; and
(b) the registers that shall be maintained in a factory for the purpose of securing compliance with the provisions of this section.
60. RESTRICTION ON DOUBLE EMPLOYMENT. - No adult worker shall be required or allowed to work in any factory on any day on which he has already been working in any other factory, save in such circumstances as may be prescribed.
61. NOTICE OF PERIODS OF WORK FOR ADULTS. - (1) There shall be displayed and correctly maintained in every factory in accordance with the provisions of sub-section (2) of section 108, a notice of periods of work for adults, showing clearly for every day the periods during which adult workers may be required to work.
(2) The periods shown in the notice required by sub-section (1) shall be fixed beforehand in accordance with the following provisions of this section, and shall be such that workers working for those periods would not be working in contravention of any of the provisions of sections 51, 52, 53, 54, 55, 56 and 58.
(3) Where all the adult workers in a factory are required to work during the same periods, the manager of the factory shall fix those periods for such workers generally.
(4) Where all the adult workers in a factory are not required to work during the same periods, the manager of the factory shall classify them into groups according to the nature of their work indicating the number of workers in each group.
(5) For each group which is not required to work on a system of shifts, the manager of the factory shall fix the periods during which the group may be required to work.
(6) Where any group is required to work on a system of shifts and the relays are not to be subject to predetermined periodical changes of shifts, the manager of the factory shall fix the periods during which each relay of the group may be required to work.
(7) Where any group is to work on a system of shifts and the relays are to be subject to predetermined periodical changes of shifts, the manager of the factory shall draw up a scheme of shifts where under the periods during which any relay of the group may be required to work and the relay which will be working at any time of the day shall be known for any day.
(8) The State Government may prescribe forms of the notice required by sub-section (1) and the manner in which it shall be maintained.
(9) In the case of a factory beginning work after the commencement of this Act, a copy of the notice referred to in sub-section (1) shall be sent in duplicate to the Inspector before the day on which work is begun in the factory.
(10) Any proposed change in the system of work in any factory which will necessitate a change in the notice referred to in sub-section (1) shall be notified to the Inspector in duplicate before the change is made, and except with the previous sanction of the Inspector, no such change shall be made until one week has elapsed since the last change.
62. REGISTER OF ADULT WORKERS. - (1) The manager of every factory shall maintain a register of adult workers, to be available to the Inspector at all times during working hours, or when any work is being carried on in the factory, showing - (a) the name of each adult worker in the factory;
(b) the nature of his work;
(c) the group, if any, in which he is included;
(d) where his group works on shifts, the relay to which he is allotted; and
(e) such other particulars as may be prescribed :
Provided that if the Inspector is of opinion that any muster roll or register maintained as a part of the routine of a factory gives in respect of any or all the workers in the factory the particulars required under this section, he may, by order in writing, direct that such muster roll or register shall to the corresponding extent be maintained in place of, and be treated as, the register of adult workers in that factory.
(1A) No adult worker shall be required or allowed to work in any factory unless his name and other particulars have been entered in the register of adult workers.
(2) The State Government may prescribe the form of the register of adult workers, the manner in which it shall be maintained and the period for which it shall be preserved.
63. HOURS OF WORK TO CORRESPOND WITH NOTICE UNDER SECTION 61 AND REGISTER UNDER SECTION 62. - No adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory and the entries made beforehand against his name in the register of adult workers of the factory.
64. POWER TO MAKE EXEMPTING RULES. - (1) The State Government may make rules defining the persons who hold positions of supervisions or management or are employed in a confidential position in a factory or empowering the Chief inspector to declare any person, other than a person defined by such rules, as a person holding position of supervision or management or employed in a confidential position in a factory if, in the opinion of the Chief Inspector, such person holds such position or is so employed and the provisions of this chapter, other than the provisions of clause (b) of sub-section (1) of section 66 and of the proviso to that sub-section, shall not apply to any person so defined or declared :
Provided that any person so defined or declared shall, where the ordinary rate of wages of such person does not exceed the wage limit specified in sub-section (6) of section 1 of the Payment of Wages Act, 1936 (4 of 1936), as amended from time to time, be entitled to extra wages in respect of over time work under section 59.
(2) The State Government may make rules in respect of adult workers in factories providing for the exemption, to such extent and subject to such conditions as may be prescribed. - (a) of workers engaged on urgent repairs, from the provisions of sections 51, 52, 54, 55 and 56;
(b) of workers engaged in work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of the factory, from the provisions of sections 51, 54, 55 and 56;
(c) of workers engaged in work which is necessarily so intermittent that the intervals during which they do not work while on duty ordinarily amount to more than the intervals for rest required by or under section 55, from the provisions of sections 51, 54, 55 and 56;
(d) of workers engaged, in ally work which for technical reasons must be carried on continuously from the provisions of sections 51, 52, 54, 55 and 56;
(e) of workers engaged in making or supplying articles of prime necessity which must be made or supplied every day, from the provisions of section 51, section 52;
(f) of workers engaged in a manufacturing process which cannot be carried on except during fixed seasons, from the provisions of section 51, section 52 and section 54;
(g) of workers engaged in a manufacturing process which cannot be carried on except at times dependent on the irregular action of natural forces, from the provisions of sections 52 and 55;
(h) of workers engaged in engine-rooms or boiler-houses or in attending to power-plant or transmission machinery, from the provisions of section 51 and section 52;
(i) of workers engaged in the printing of newspapers, who are held up on account of the breakdown of machinery, from the provisions of sections 51, 54 and 56.
Explanation : In this clause the expression newspapers has the meaning assigned to it in the Press and Registration of Books Act, 1867 (25 of 1867);
(j) of workers engaged in the loading or unloading of railway wagons, or lorries or trucks lra-106 ]from the provisions of sections 51, 52, 54, 55 and 56;
(k) of workers engaged in any work, which is notified by the State Government in the Official Gazette as a work of national importance, from the provisions of section 51, section 52, section 54, section 55 and section 56.
(3) Rules made under sub-section (2) providing for any exemption may also provide for any consequential exemption from the provisions of section 61 which the State Government may deem to be expedient, subject to such conditions as it may prescribe.
(4) In making rules under this section, the State Government shall not exceed, except in respect of exemption under clause (a) of sub-section (2), the following limits of work inclusive of overtime :- (i) the total number of hours of work in any day shall not exceed ten;
(ii) the spread over, inclusive of intervals for rest, shall not exceed twelve hours in any one day :
Provided that the State Government may, in respect of any or all of the categories of workers referred to in clause (d) of sub-section (2), make rules prescribing the circumstances in which, and the conditions subject to which, the restrictions imposed by clause (i) and clause (ii) shall not apply in order to enable a shift worker to work the whole or part of a subsequent shift in the absence of a worker who has failed to report for duty;
(iii) the total number of hours of work in a week, including overtime shall not exceed sixty;
(iv) the total number of hours of overtime shall not exceed fifty for any one quarter.
Explanation : "Quarter" means a period of three consecutive months beginning on the 1st of January, the 1st of April, the 1st of July or the 1st of October.
(5) Rules made under this section shall remain in force for not more than five years.
65. Power to make exempting orders.
(1) Where the State Government is satisfied that, owing to the nature of the work carried on or to other circumstances, it is unreasonable to require that the periods of work of any adult workers in any factory or class or description of factories should be fixed beforehand, it may, by written order, relax or modify the provisions of section 61 in respect of such workers therein, to such extent and in such manner as it may think fit, and subject to such conditions as it may-,deem expedient to ensure control over periods of work.
(2) The State Government or, subject to the control of the State Government, the Chief Inspector, may by written order exempt, on such conditions as it or he may deem expedient, any or all of the adult workers in any factory or group or class or description of factories from any or all of the provisions of sections, 5 1, 52, 54 and 56 on the ground that the exemption is required to enable the factory or factories to deal with an exceptional press of work.
(3) Any exemption granted under sub-section (2) shall be subject to the following conditions, namely:-
(i) the total number of hours of work in any day shall not exceed twelve;
(it) the spread over, inclusive of intervals for rest, shall not exceed thirteen
hours in any one day;
(iv) no worker shall be allowed to work overtime, for more than seven days at a stretch and the total number of hours of overtime work in any quarter shall not exceed seventy-five.
Explanation: In this sub-section 'quarter' has the same meaning as in sub-section (4) of section 64
(4) [Omitted by the Factories (Amendment) Act, 1976, w.e.f. 26-10-1976.]
66.Further restrictions on employment of women.
(1) The provisions of this Chapter shall, in their application to-women in factories, be supplemented by the following further restrictions, namely:-
(a) no exemption from the provisions of section 54 may be granted in respect of any women;
(b) no women shall be [required or allowed to work in any factory] except between the hours of 6 A.M. and 7 P.M.:
(c) there shall be no change of shifts except after a weekly holiday or any
(2) The State Government may make rules providing for the exemption from the restrictions set out in sub-section (1), to such extent and subject to such conditions as it may prescribe, of women working in fish curing or fish-canning factories, where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to or deterioration in, any raw material.
(3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.
No child who has not completed his fourteenth year shall be required or allowed to work in any factory.
68. Non-adult workers to carry tokens.
69. Certificates of fitness.
(1) A certifying surgeon shall , on the application of any young person or his parent or guardian accompanied by a document signed by the manager of a factory that such person will be employed therein if certified to be fit for work in a factory, or on the application of the manager of the factory in which any young person wishes to work, examine such person and ascertain his fitness for work in a factory.
(2) The certifying surgeon, after examination, may grant to such young person, in the prescribed form, or may renew
(a) a certificate of fitness to work in a factory as a child, if he is satisfied that the young person has completed his fourteenth yew, that he has attained the prescribed physical standards and that he is fit for such work;
(b) a certificate of fitness to work in a factory as an adult, if he is satisfied that the young person has completed his fifteenth year, ad is fit for a full day's work in a factory:
Provided that unless the certifying surgeon has personal knowledge of the place where the young person proposes to work and of the manufacturing process in which he will be employed, he shall not grant or renew a certificate under this sub-section until he has examined such place.
(3) A certificate of fitness granted or renewed under sub-section (2)- (a) shall be valid only for a period of twelve months from the date thereof; (b) may be made subject to condition .in regard to the nature of the work in which the young person may be employed, or requiring re-examination of the young person before the expiry of the period of twelve months.
(4) A certifying surgeon shall revoke any certificate granted or renewed under sub-section (2) if in his opinion the holder of it is no longer fit to work in the capacity stated therein in a factory.
(5) Where a certifying surgeon refuses to grant or renew a certificate or a certificate of the kind requested or revokes a certificate, he shall, if so requested by any person who could have applied for the certificate or the renewal thereof, state his reasons in writing for so doing.
(6) Where a certificate under this section with reference to any young person is granted or renewed subject to such conditions as are referred to in clause (b) of sub--section (3), the young person shall not be required or allowed to work in any factory except in accordance with those conditions.
(7) Any fee payable for a certificate under this section shall be paid by the occupier and shall not be recoverable from the young person, his parents or guardian.
70. Effect of certificate of fitness granted to adolescent.
(I)An adolescent who has been granted a certificate of fitness to work in a factory as an adult under clause (b) of sub-section (2) of section 69, and Who while at work in a factory carries a token giving reference to the certificate, shall be deemed to be an adult for all the purposes of Chapters VI and VIII.
(IA) No female adolescent or a male adolescent who has not attained the age of seventeen years but who has been granted a certificate of fitness to work in a factory as an adult, shall he required or allowed to work in any factory except between 6 A.M. and 7 P.M.
Provided that the State Government may, by notification in the Official Gazette, in respect of any factory or group or class or description of factories—
(i) vary the limits laid down in this sub-section so, however, that no such section shall authorize the employment of any female adolescent between 10 P.M. and 5 A.M.;
(ii) grant exemption from the provisions of this sub-section in case of serious emergency where national interest is involved.]
(2) An adolescent who has not been granted a certificate of fitness to work in a factory as an adult under the aforesaid clause (b) shall, notwithstanding his age, be deemed to be a child for all the purposes of this Act.
71. Working hours for children.
(I)No child shall be employed or permitted to work, in any factory-
(a) for more than four and a half hours in any day;
(b)during the night.
Explanation: For the purposes of this sub-section 'night' shall mean a period of at least twelve consecutive hours which shall include the interval between 10 P.M. and 6A.M.
(2) The period of work of all children employed in a factory shall be limited to two shifts which shall not overlap or spread over more than five hours each,. and each child shall be employed in only one of the relays which shall not, except with the previous permission in writing of the Chief Inspector, be changed more frequently than once in a period of thirty days.
(3) The provisions of section 52 shall apply also to child workers and no exemption from the provisions of that section may be granted in respect of any child.
(4) No child shall be required or allowed to work in any factory on any day on which he has already been working in another factory.
(5) No female child shall be required or allowed to work in any factory except between.8 A.M. and 7 P.M.
72. Notice of periods of work for children.
(1) There shall be displayed and correctly maintained in every factory in which children are employed, in accordance with the provisions of sub-section (2) of section 108 a notice of period of work for children, showing clearly for every day the periods during which children may be required or allowed to work.
(2) The periods shown in the notice required by sub-section (1) shall be fixed beforehand in accordance with the method laid down for adult workers in section 6 1, and shall be such that children working for those periods would not be working in contravention of any of the provisions of section 71.
(3) The provisions of sub-sections (8), (9) and (10) of section 61 shall apply also
to the notice required by sub-section (1) of this section.
73. Register of child workers.
73. (1) The manager of every factory in which children are employed shall maintain a register of child workers, to be available to the Inspector at all times during working hours or when any work is being carried on in a factory, showing-
(a) the name of each child worker in the factory,
(b) the nature of his work,
(c) the group, if any, in which he is included,
(d) where his group works in shifts, the relay to which he is allotted, and
(e) the number of his certificate of fitness granted under section 69.
( IA) No child worker shall be required or allowed to work in any factory unless his name and other particulars have been entered in the register of child workers.
(2) The State Government may prescribe the form of the register of child workers, the manner in which it shall be maintained and the period for which it shall be preserved.
74. Hours of work to correspond with notice under section 72 and register under section 73.
Where an Inspector is of opinion-
(a) that any person working in a factory without a certificate of fitness is a young person, or
(b) that a young person working in a factory with a certificate of fitness is no longer fit to work in the capacity stated therein,-
he may serve on the manager of the factory a notice requiring that such person or young person, as the case may be, shall be examined by a certifying surgeon, and such person or young person shall not, if the Inspector so directs, be employed, or permitted to work, in any factory until he has been so examined and has been granted a certificate of fitness or a fresh certificate of fitness, as the case may be, under section 69, or has been certified by the certifying surgeon examining him not to be a young person.
76. Power to make rules.
The State Government may make rules-
(c) regulating the procedure of certifying surgeons under this Chapter:
(d) specifying other duties which certifying surgeons may be required to perform in connection with the employment of young persons in factories, and fixing the fees which may be charged for such duties and the persons by whom they shall be payable.
77. Certain other provisions of law not barred.
The provisions of this Chapter shall be in addition to, and not in derogation of, the provisions of the Employment of Children Act, 1938 (26 of 1939).
78. Application of Chapter.
(I)The provisions of this Chapter shall not operate to the prejudice of any right to which a worker may be entitled under any other law or under the terms of any award, ''[agreement (including settlement)] or contract of service:
Provided that if such award, agreement (including settlement) or contract of service provides for a longer annual leave with wages than provided in this Chapter, the quantum of leave, which the worker shall be entitled to, shall be in accordance with such award, agreement or contract of service, but in relation to matters not provided for in such award, agreement or contract of service or matters which are provided for less favourably therein, the provisions of sections 79 to 82, so far as may be, shall apply.]
(1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of-
(i) if an adult, one day for every twenty days of work performed by him during the previous calendar year;
(it) if a child, one day for every fifteen days of work performed by him during the previous calendar year.
Explanation 1 : For the purpose of this sub-section- (a) any days of lay off, by agreement or contract or as permissible under the standing orders;
(b) in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and
(c) the leave earned in the year prior to that in which the leave is enjoyed;
shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but he shall not cam leave for these days.
Explanation 2: The leave admissible under this sub-section shall be exclusive of all holidays whether occurring during or at either end of the period of leave. (2) A worker whose service commences otherwise than on the first day of
January shall be entitled to leave with wages at the rate laid down. in clause (1) or, as the case may be, clause (it) of sub-section (1) if he has worked for two- thirds of the total number of days in the remainder of the calendar year.
(3) If a worker is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, during the course of the calendar year, he or his heir or nominee, as the case may be, shall be entitled to wages in lieu of the quantum of leave to which he was entitled immediately before his discharge, dismissal, quitting of employment, superannuation or death calculated at the rates specified in sub-section (1), even if he had not worked for the entire period specified in sub-section (1) or sub-section (2) making him eligible to avail of such leave, and such payment shall be made-
(5) If a worker does not in any one calendar year take the whole of the leave allowed to him under sub-section (1) or sub-section (2), as the case may be any leave not taken by him shall be added to the leave to be allowed to him in the succeeding calendar year :
Provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed thirty in the case of an adult or forty in, the case of a child:
Provided further that a worker, who has applied for leave with wages but has not been given such leave in accordance with any scheme laid down in sub- sections (8) and (9) or in contravention of sub-section (10) l shall be entitled to carry forward the [leave refused] without any limit.
(6) A worker may at any time apply in writing to the manager of a factory not less than fifteen days before the date on which he wishes his leave to begin, to take all the leave or any portion thereof allowable to him during the calendar year:
Provided that the application shall be made not less than thirty days before the date on which the worker wishes his leave to begin ,if he is employed in a public utility service as defined in clause (n) of section 2 of the Industrial Dispute Act, 1947 (14 of 1947):
Provided further that the number of times in which leave may be taken during any year shall not exceed three.
(7) If a worker wants to avail himself of the leave with wages due to him to cover a period of illness he shall be granted such leave even if the application for leave is not made within the time specified in sub-section (6); and in such a case wages as admissible under section 81 shall be paid not later than fifteen days, or in the case of a public utility service not later than thirty days from the date of the application for leave.
(8) For the purpose of ensuring the continuity of work, the occupier or manager of the factory, in agreement with the Works Committee of The factory constituted under section 3 of the Industrial Disputes Act, 1940'(14 of 1947 or a similar Committee constituted under any other Act or if there is no such Works Committee or a similar Committee in the factory, in agreement with the representatives of the workers therein chosen in the prescribed manner, may, lodge with the Chief Inspector a scheme in writing whereby the grant of leave allowable under this section may be regulated.
(9) A scheme lodged under sub-section (8) shall be displayed at some conspicuous and convenient places in the factory and shall be in force for a period of twelve months from the date on which it comes into force, and may thereafter be renewed with or without modification for a further period of twelve months at a time, by the manager in agreement with the Works Committee or a similar Committee, or as the case may be, in agreement with the representatives of the workers as specified in sub-section (8), and a notice of renewal shall be sent to the Chief Inspector before it is renewed.
(10) An application for leave which does not contravene the provisions of sub- section (6) shall not be refused, unless refusal is in accordance with the scheme for the time being in operation under sub-sections (8) and (9).
(11) If the employment of a worker who is entitled to leave under sub-section (1) or sub-section (2), as the case may be, is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and having not been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory shall pay him the amount payable under section 80 in respect of the leave not taken, and such payment shall be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker who quits his employment, on or before the next pay day. (12) The unavailed leave of a worker shall not be taken into consideration in
computing the period of any notice required to be given before discharge or dismissal.
80. Wages during leave period.
(1) For the leave allowed to him under section 78 or section 79, as the case may be] a worker shall be entitled to wages at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the month immediately preceding his leave, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the worker of food grains and other articles:
Provided that in the case of a worker who has not worked on any day during the calendar month immediately preceding his leave, he shall be paid at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the last calendar month preceding his leave, in which he actually worked, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sate to the workers of food grains and other articles.
(2) The cash equivalent of the advantage accruing through the concessional sale to the worker of food grains and other articles shall be computed as often as may be prescribed, on the basis of the maximum quantity of food grains and other articles admissible to a standard family.
Explanation 1: 'Standard family' means a family consisting of a worker, his or her spouse and two children below the age of fourteen years requiring in all three adult consumption units.
Explanation 2: Adult consumption unit means the consumption unit of a male above the age of fourteen years; and the consumption unit of a female above the age of fourteen years and that of a child below the age of fourteen years shall be calculated at the rates of 0.8 and 0.6 respectively of one adult consumption unit.
(3) The State Government may make rules prescribing-
(a) the manner in which the cash equivalent of the advantage accruing through the concessional sale to a worker of food grains and other articles shall be computed; and
81. Payment In advance In certain cases.
A worker who has been allowed leave for not less than four days, in the case of an adult, and five days, in the case of a child, shall, before his leave begins, he paid the wages due for the period of the leave allowed.
82. Mode of recovery of unpaid wages.
Any sum required to be paid by an employer, under this chapter but not paid by him shall be recoverable as delayed wages under the provisions of the Payment of Wages Act, 1936 (4 of 1936).
83. Power to make rules.
The State Government may make rules directing managers of factories to keep registers containing such particulars as may be prescribed and requiring the registers to be made available for examination by Inspectors.
84. Powers to exempt factories.
Where the State Government is satisfied that the leave rules applicable to workers in a factory provide benefits which in its opinion are not less favourable than those for which this Chapter makes provision it may, by written order, exempt the factory from all or any of the provisions of this Chapter subject to such conditions as may be specified in the order.
Explanation: For the purposes of this section, in deciding whether the benefits which are provided for by any leave rules are less favourable than those for which this Chapter makes provision, or not, the totality of the benefits shall be taken into account.
***************
MINIINIMUM WAGES ACT, 1948
[Act No. 11 of Year 1948, dated 15th. March, 1948]
An Act to provide for fixing minimum rates of wages in certain employments Whereas it is expedient to provide for fixing minimum rates of wages in certain employments;
It is hereby enacted as follows: -
1. Short title and extent
2. Interpretation
In this Act, unless there is anything repugnant in the subject or context,-
2[(a) "adolescent" means a person who has completed his fourteenth years of age but has not completed his eighteenth year; (aa) "adult" means a person who has completed his eighteenth years of age;]
(b) "appropriate government" means-
(i) in relation to any scheduled employment carried on by or under the authority of the 3[Central Government or a railway administration], or in relation to a mine, oilfield or major port, or any corporation established by 4[a Central Act], the Central Government, and
(ii) in relation to any other scheduled employment, the State Government; 5(bb) "child" means a person who has not completed his fourteenth year of age;]
(c) "competent authority" means the authority appointed by the appropriate government by notification in its Official Gazette to ascertain from time to time the cost of living index number applicable to the employees employed in the scheduled employments specified in such notification;
(d) "cost of living index number" in relation to employees in any scheduled employment in respect of which minimum rates of wages have been fixed, means the index number ascertained and declared by the competent authority by notification in the Official Gazette to be the cost of living index number applicable to employees in such employment;
(e) "employer" means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, and includes, except in sub-section (3) of section 26,-
(i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person named under 6[clause (f) of sub-section (1) of section 7 of the Factories Act, 1948 (63 of 1948)], as manager of the factory;
(ii) in any scheduled employment under the control of any government in India in respect of which minimum rates of wages have been fixed under this Act, the person or authority appointed by such government for the supervision and control of employees or where no person or authority is so appointed the head of the department;
(iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under this Act, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;
(iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person responsible to the owner for the supervision and control of the employees or for the payment of wages;
(g) "scheduled employment" means an employment specified in the Schedule, or any process or branch of work forming part of such employment;
(h) "wages" means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment 7[and includes house rent allowance], but does not include-
(i) the value of- (a) any house, accommodation, supply of light, water, medical attendance, or (b) any other amenity or any service excluded by general or special order of the appropriate government;
(ii) any contribution paid by the employer to any pension fund or provident fund or under any scheme of social insurance;
(iii) any traveling allowance or the value of any traveling concession;
(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(v) any gratuity payable on discharge;
(i) "employee" means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate government; but does not include any member of the Armed Forces of the,8[Union].
3. Fixing of minimum rates of wages
9[(1) The appropriate government shall, in the manner hereinafter provided,-
PROVIDED that the appropriate Government may, in respect of employees employed in an employment specified in Part II of the Schedule, instead of fixing minimum rates of wages under this clause for the whole State, fix such rates for a part of the State or for any specified class or classes of such employment in the whole State or part thereof;]
(b) review at such intervals as it may think fit, such intervals not exceeding five years, the minimum rates of wages so fixed and revise the minimum rates, if necessary:
7[PROVIDED that where for any reason the appropriate government has not reviewed the minimum rates of wages fixed by it in respect of any scheduled employment within any interval of five years, nothing contained in this clause shall be deemed to prevent it from reviewing the minimum rates after the expiry of the said period of five years and revising them, if necessary, and until they are so revised the minimum rates in force immediately before the expiry of the said period of five years shall continue in force.]
(1A) Notwithstanding anything contained in sub-section (1), the appropriate government may refrain from fixing minimum rates of wages in respect of any scheduled employment in which there are in the whole State less than one thousand employees engaged in such employment, but if at any time, 11[***] the appropriate government comes to a finding after such inquiry as it may make or cause to be made in this behalf that the number of employees in any scheduled employment in respect of which it has refrained from fixing minimum rates of wages has risen to one thousand or more, it shall fix minimum rates of wages payable to employees in such employment 12[as soon as may be after such finding.]
(2) The appropriate government may fix-
(a) a minimum rate of wages for time work (hereinafter referred to as "a minimum time rate");
(b) a minimum rate of wages for piece work (hereinafter referred to as "a minimum piece rate");
(c) a minimum rate of remuneration to apply in the case of employees employed on piece work for the purpose of securing to such employees a minimum rate of wages on a time work basis (hereinafter referred to as "a guaranteed time rate");
(d) a minimum rate (whether a time rate or a piece rate) to apply in substitution for the minimum rate which would otherwise be applicable, in respect of overtime work done by employees (hereinafter referred to as "overtime rate").
13[(2A) Where in respect of an industrial dispute relating to the rates of wages payable to any of the employees employed in a scheduled employment, any proceeding is pending before a Tribunal or National Tribunal under the Industrial Disputes Act, 1947 (14 of 1947) or before any like authority under any other law for the time being in force, or an award made by any Tribunal, National Tribunal or such authority is in operation, and a notification fixing or revising the minimum rates of wages in respect of the scheduled employment is issued during the pendency of such proceeding or the operation of the award, then, notwithstanding anything contained in this Act, the minimum rates of wages so fixed or so revised shall not apply to those employees during the period in which the proceeding is pending and the award made therein is in operation or, as the case may be, where the notification is issued during the period of operation of an award, during that period; and where such proceeding or award relates to the rates of wages payable to all the employees in the scheduled employment, no minimum rates of wages shall be fixed or revised in respect of that employment during the said period.]
(3) In fixing or revising minimum rates of wages under this section,-
(a) different minimum rates of wages may be fixed for-
(i) different scheduled employments;
(ii) different classes of work in the same scheduled employment;
(iii) adults, adolescents, children and apprentices;
(iv) different localities;
14[(b) minimum rates of wages may be fixed by any one or more of the following wage periods, namely:
(i) by the hour,
(ii) by the day,
(iii) by the month, or
(iv) by such other larger wage-period as may be prescribed;
and where such rates are fixed by the day or by the month, the manner of calculating wages for a month or for a day, as the case may be, may be indicated:]
PROVIDED that where any wage-periods have been fixed under section 4 of the Payment of Wages Act, 1936 (4 of 1936), minimum wages shall be fixed in accordance therewith.
4. Minimum rate of wages
(1) Any minimum rate of wages fixed or revised by the appropriate government in respect of scheduled employments under section 3 may consist of-
(i) a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the "cost of living allowance"); or
(ii) a basic rate of wages with or without the cost of living allowance, and the cash value of the concessions in respect of supplies of essential commodities at concessional rates, where so authorised; or
(iii) an all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any.
(2) The cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concessional rate shall be computed by the competent authority at such intervals and in accordance with such directions as may be specified or given by the appropriate government.
14[5. Procedure for fixing and revising minimum wages
(1) In fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed, the appropriate government shall either-
(a) appoint as many committees and sub-committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or
(b) by notification in the Official Gazette, publish its proposals for the information of persons likely to be affected thereby and specify a date, not less than two months from the date of the notification, on which the proposals will be taken into consideration.
(2) After considering the advice of the committee or committees appointed under clause (a) of sub-section (1), or as the case may be, all representations received by it before the date specified in the notification under clause (b) of that sub-section, the appropriate government shall, by notification in the Official Gazette fix, or, as the case may be, revise the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provides, it shall come into force on the expiry of three months from the date of its issue:
PROVIDED that where the appropriate government proposes to revise the minimum rates of wages by the mode specified in clause (b) of sub-section (1), the appropriate government shall consult the Advisory Board also.]
6. Advisory committees and sub-committees
[Repealed by the Minimum Wages (Amendment) Act, 1957 (30 of 1957)]
7. Advisory Board
For the purpose of coordinating work of 15[committees and sub-committees appointed under section 5] and advising the appropriate government generally in the matter of fixing and revising minimum rates of wages, the appropriate government shall appoint an Advisory Board.
8. Central Advisory Board
(1) For the purpose of advising the Central and State Governments in the matters of the fixation and revision of minimum rates of wages and other matters under this Act and for co-ordinating the work of the Advisory Boards, the Central Government shall appoint a Central Advisory Board.
(2) The Central Advisory Board shall consist of persons to be nominated by the Central Government representing employers and employees in the scheduled employments, who shall be equal in number, and independent persons not exceeding one-third of its total number of members; one of such independent persons shall be appointed the Chairman of the Board by the Central Government.
9. Composition of committees, etc.
Each of the committees, sub-committees 16[***] and the Advisory Board shall consist of persons to be nominated by the appropriate government representing employers and employees in the scheduled employments, who shall be equal in number, and independent persons not exceeding one-third of its total number of members; one of such independent persons shall be appointed the Chairman by the appropriate government.
14[10.Correction of errors
(1) The appropriate government may, at any time, by notification in the Official Gazette, correct clerical or arithmetical mistakes in any order fixing or revising minimum rates of wages under this Act, or errors arising therein from any accidental slip or omission.
(2) Every such notification shall, as soon as may be after it is issued, be placed before the Advisory Board for information,]
11. Wages in kind
(1) Minimum wages payable under this Act shall be paid in cash.
(2) Where it has been the custom to pay wages wholly or partly in kind, the appropriate government being of the opinion that it is necessary in the circumstances of the case may, by notification in the Official Gazette, authorise the payment of minimum wages either wholly or partly in kind.
(3) If appropriate government is of the opinion that provision should be made for the supply of essential commodities at concessional rates, the appropriate government may, by notification in the Official Gazette, authorise the provision of such supplies at concessional rates.
(4) The cash value of wages in kind and of concessions in respect of supplies of essential commodities at concessional rates authorised under sub-sections (2) and (3) shall be estimated in the prescribed manner.
12. Payment of minimum rates of wages
(1) Where in respect of any scheduled employment a notification under section 5 17[***] is in force, the employer shall pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages fixed by such notification for that class of employees in that employment without any deductions except as may be authorised within such time and subject to such conditions as may be prescribed.
(2) Nothing contained in this section shall affect the provisions of the Payment of Wages Act, 1936 (4 of 1936).
13. Fixing hours for a normal working day, etc.
18[(1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate government may-
(a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals;
(b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest;
(c) provide for payment for work on a day of rest at a rate not less than the overtime rate.]
19[(2) The provisions of sub-section (1) shall, in relation to the following classes of employees, apply only to such extent and subject to such conditions as may be prescribed:-
(a) employees engaged on urgent work, or in any emergency which could not have been foreseen or prevented;
(b) employees engaged in work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working in the employment concerned;
(c) employees whose employment is essentially intermittent;
(d) employees engaged in any work which for technical reasons has to be completed before the duty is over;
(e) employees engaged in a work which could not be carried on except at times dependent on the irregular action of natural forces.
(3) For the purposes of clause (c) of sub-section (2), employment of an employee is essentially intermittent when it is declared to be so by the appropriate government on the ground that the daily hours of duty of the employee, or if there be no daily hours of duty as such for the employee, the hours of duty, normally include periods of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention.]
14.Overtime
(1) Where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage-period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate government for the time being in force, whichever is higher.
(2) Nothing in this Act shall prejudice the operation of the provisions of 20[section 59 of the Factories Act, 1948 (63 of 1948)] in any case where those provisions are applicable.
15. Wages of worker who works for less than normal working day
If an employee whose minimum rate of wages has been fixed under this Act by the day works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day, he shall, save as otherwise hereinafter provided, be entitled to receive wages in respect of work done by him on that day as if he had worked for a full normal working day:
PROVIDED, however, that he shall not be entitled to receive wages for a full normal working day-
(i) in any case where his failure to work is caused by his unwillingness to work and not by the omission of the employer to provide him with work, and
(ii) in such other cases and circumstances as may be prescribed.
16. Wages for two or more classes of work
Where an employee does two or more classes of work to each of which a different minimum rate of wages is applicable, the employer shall pay to such employee in respect of the time respectively occupied in each such class of work, wages at not less than the minimum rate in force in respect of each such class.
17. Minimum time rate Wages for piecework
Where an employee is employed on piecework for which minimum time rate and not a minimum piece rate has been fixed under this Act, the employer shall pay to such employee wages at not less than the minimum time rate.
18. Maintenance of registers and records
(1) Every employer shall maintain such registers and records giving such particulars of employees employed by him, the work performed by them, the wages paid to them, the receipts given by them and such other particulars and in such form as may be prescribed.
(2) Every employer shall keep exhibited, in such manner as may be prescribed, in the factory, workshop or place where the employees in the scheduled employment may be employed, or in the case of out-workers, in such factory, workshop or place as may be used for giving out work to them, notices in the prescribed form containing prescribed particulars.
(3) The appropriate government may, by rules made under this Act, provide for the issue of wage books or wage slips to employees employed in any scheduled employment in respect of which minimum rates of wages have been fixed and prescribed in the manner in which entries shall be made and authenticated in such wage books or wage slips by the employer or his agent.
19. Inspectors
(1) The appropriate government may, by notification in the Official Gazette, appoint such persons as it thinks fit to be Inspectors for the purposes of this Act and define the local limits within which they shall exercise their functions.
(2) Subject to any rules made in this behalf, an Inspector may, within the local limits for which he is appointed-
(a) enter, at all reasonable hours, with such assistants (if any), being persons in the service of the government or any local or other public authority, as he thinks fit, any premises or place where employees are employed or work is given out to out-workers in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act for the purpose of examining any register, record of wages or notices required to be kept or exhibited by or under this Act or rules made there under, and require the production thereof for inspection;
(b) examine any person whom he finds in any such premises or place and who, he has reasonable cause to believe, is an employee employed therein or an employee to whom work is given out therein;
(c) require any person giving out-work and any out-workers, to give any information, which is in his power to give, with respect to the names and addresses of the persons to, for and from whom the work is given out or received, and with respect to the payments to be made for the work;
14[(d) seize or take copies of such register, record or wages or notices or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed by an employer]; and
(3) Every Inspector shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).
7[(4) Any person required to produce any document or thing or to give any information by an Inspector under sub-section (2) shall be deemed to be legally bound to do so within the meaning of section 175 and section 176 of the Indian Penal Code (45 of 1860).
20. Claim
(1) The appropriate government may, by notification in the Official Gazette, appoint 21[any Commissioner for Workmen's Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any] other officer with experience as a judge of a civil court or as a Stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages 7[or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub-section (1) of section 13 or of wages at the overtime rate under section 14], to employees employed or paid in that area.
(2) 14[Where an employee has any claim of the nature referred to in sub-section (1)], the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the permission of the authority appointed under sub-section (1) may apply to such authority for a direction under sub-section (3):
PROVIDED that every such application shall be presented within six months from the date on which the minimum wages 7[or other amount] became payable:
PROVIDED FURTHER that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
14[(3) When any application under sub-section (2) is entertained, the authority shall hear the applicant and the employer, or give them an opportunity of being heard, and after such further inquiry, if any, as it may consider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct-
(i) in the case of a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount of such excess;
(ii) in any other case, the payment of the amount due to the employee, together with the payment of such compensation as the authority may think fit, not exceeding ten rupees;
and the authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.
(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered-
(a) if the authority is a Magistrate, by the authority as if it were a fine imposed by the authority as a Magistrate, or
(b) if the authority is not a Magistrate, by any Magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such Magistrate.
(6) Every direction of the authority under this section shall be final.
(7) Every authority appointed under sub-section (1) shall have all the powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898).
21. Single application in respect of a number of employees
(1) 22[Subject to such rules as may be prescribed, a single application] may be presented under section 20 on behalf or in respect of any number of employees employed in the scheduled employment in respect of which minimum rates of wages have been fixed and in such cases the maximum compensation which may be awarded under sub-section (3) of section 20 shall not exceed ten times the aggregate amount of such excess 7[or ten rupees per head, as the case may be].
(2) The authority may deal with any number of separate pending applications presented, under section 20 in respect of employees in the scheduled employments in respect of which minimum rates of wages have been fixed, as a single application presented under sub-section (1) of this section and the provisions of that sub-section shall apply accordingly.
14[22. Penalties for certain offences
Any employer who
(a) pays to any employee less than the minimum rates of wages fixed for that employee's class of work, or less than the amount due to him under the provisions of this Act, or
(b) contravenes any rule or order made under section 13;
shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both:
PROVIDED that in imposing any fine for an offence under this section, the court shall take into consideration the amount of any compensation already awarded against the accused in any proceedings taken under section 20.
22A. General provision for punishment of other offences
Any employer who contravenes any provision of this Act or of any rule or order made thereunder shall, if no other penalty is provided for such contravention by this Act be punishable with fine which may extend to five hundred rupees.
22B. Cognizance of offences
(1) No court shall take cognizance of a complaint against any person for an offence-
(a) under clause (a) of section 22 unless an application in respect of the facts constituting such offence has been presented under section 20 and has been granted wholly or in part, and the appropriate government or an officer authorised by it in this behalf has sanctioned the making of the complaint;
(b) under clause (b) of section 22 or under section 22A, except on a complaint made by, or with the section of, an Inspector.
(2) No court shall take cognizance of an offence-
(a) under clause (a) or clause (b) of section 22, unless complaint thereof is made within one month of the grant of sanction under this section;
(b) under section 22A, unless complaint thereof is made within six months of the date on which the offence is alleged to have been committed.
22C. Offences by companies
(1) If the person committing any offence under this Act is a company, every person who at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
PROVIDED that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary, or other officer of the company, such director, manager, secretary or other officer of the company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation : For the purposes of this section-
(a) "company" means any body corporate and includes a firm or other association of individuals, and
(b) "director" in relation to a firm means a partner in the firm.
22D. Payment of undisbursed amounts due to employees
All amounts payable by an employer to an employee as the amount of minimum wages of the employee under this Act or otherwise due to the employee under this Act or any rule or order made there under shall, if such amounts could not or cannot be paid to the employee on account of his death before payment or on account of his whereabouts not being known, be deposited with the prescribed authority who shall deal with the money so deposited in such manner as may be prescribed.
22E. Protection against attachment of assets of employer with government
Any amount deposited with the appropriate government by an employer to secure the due performance of a contract with that government and any other amount due to such employer from that government in respect of such contract shall not be liable to attachment under any decree or order of any court in respect of any debt or liability incurred by the employer other than any debt or liability incurred by the employer towards any employee employed in connection with the contract aforesaid.
22F. Application of Payment of Wages Act, 1936 to scheduled employments
(1) Notwithstanding anything contained in the Payment of Wages Act, 1936 (4 of 1936), the appropriate government may, by notification in the Official Gazette, direct that, subject to the provisions of sub-section (2), all or any of the provisions of the said Act shall, with such modifications, if any, as may be specified in the notification, apply to wages payable to employees in such scheduled employments as may be specified in the notification.
(2) Where all or any of the provisions of the said Act are applied to wages payable to employees in any scheduled employment under sub-section (1), the Inspector appointed under this Act shall be deemed to be the Inspector for the purpose of enforcement of the provisions so applied within the local limits of his jurisdiction.
23. Exemption of employer from liability in certain cases
Where an employer is charged with an offence against this Act, he shall be entitled, upon complaint duly made by him, to have any other person whom he charges as the actual offender, brought before the court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved the employer proves to the satisfaction of the court-
(a) that he has used due diligence to enforce the execution of this Act, and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance, that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be discharged:
PROVIDED that in seeking to prove, as aforesaid, the employer may be examined on oath, and the evidence of the employer or his witness, if any, shall be subject to cross-examination by or on behalf of the person whom the employer charges as the actual offender and by the prosecution.
24. Bar of suits
No court shall entertain any suit for the recovery of wages in so far as the sum so claimed-
(a) forms the subject of an application under section 20 which has been presented by or on behalf of the plaintiff, or
(b) has formed the subject of a direction under that section in favour of the plaintiff,
or
(c) has been adjudged in any proceeding under that section not to be due to the plaintiff, or
(d) could have been recovered by an application under that section.
25. Contracting out
Any contract or agreement, whether made before or after the commencement of this Act, whereby an employee either relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under this Act shall be null and void in so far as it purports to reduce the minimum rate of wages fixed under this Act.
26. Exemptions and exceptions
(1) The appropriate government may, subject to such conditions, if any as it may think fit to impose, direct that the provisions of this Act shall not apply in relation to the wages payable to disabled employees.
(2) The appropriate government, if for special reasons it think so fit, by notification in the Official Gazette, direct that subject to such conditions and for such period as it may specify the provisions of this Act or any of them shall not apply to all or any class of employees employed in any scheduled employment or to any locality where there is carried on a scheduled employment.
23[(2A) The appropriate government may, if it is of opinion that having regard to the terms and conditions of service applicable to any class of employees in a scheduled employment generally or in a scheduled employment in a local area, 7[or to any establishment or a part of any establishment in a scheduled employment], it is not necessary to fix minimum wages in respect of such employees of that class 7[or in respect of employees in such establishment or such part of any establishment] as are in receipt of wages exceeding such limit as may be prescribed in this behalf, direct, by notification in the Official Gazette, and subject to such conditions, if any as it may think fit to impose, that the provisions of this Act or any of them shall not apply in relation to such employees.
(3) Nothing in this Act shall apply to the wages payable by an employer to a member of his family who is living with him and is dependent on him.
Explanation: In this sub-section, a member of the employer's family shall be deemed to include his or her spouse or child or parent or brother or sister.
27. Power of State Government to add to Schedule
The appropriate government, after giving by notification in the Official Gazette not less than three months' notice of its intention so to do, may, by like notification, add to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act, and thereupon the Schedule shall in its application to the State be deemed to be amended accordingly.
28. Power of Central Government to give directions
The Central Government may give directions to State Government as to the carrying into execution of this Act in the State.
29. Power of Central Government to make rules
The Central Government may, subject to the condition of previous publication, by notification in the Official Gazette, make rules prescribing the term of office of the members, the procedure to be followed in the conduct of business, the method of voting, the manner of filling up casual vacancies in membership and the quorum necessary for the transaction of business of the Central Advisory Board.
30. Power of appropriate government to make rules
(1) The appropriate government may, subject to the condition of previous publication, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may-
(a) prescribe the term of office of the members, the procedure to be followed in the conduct of business, the method of voting, the manner of filling up casual vacancies in membership and the quorum necessary for the transaction of business of the committees, sub-committees, and the Advisory Board;
(b) prescribe the method of summoning witnesses, production of documents relevant to the subject-matter of the enquiry before the committees, sub-committees, 16[***] and the Advisory Board;
(c) prescribe the mode of computation of the cash value of wages in kind and of concessions in respect of supplies of essential commodities at concession rates;
(d) prescribe the time and conditions of payment of, and the deductions permissible from, wages;
(e) provide for giving adequate publicity to the minimum rates of wages fixed under this Act;
(f) provide for a day of rest in every period of seven days and for the payment of remuneration in respect of such day;
(g) prescribe the number of hours of work which shall constitute a normal working day;
(h) prescribe the cases and circumstance in which an employee employed for a period of less than the requisite number of hours constituting a normal working day shall not be entitled to receive wages for a full normal working day;
(i) prescribe the form of registers and records to be maintained and the particulars to be entered in such registers and records ;
(j) provide for the issue of wage book and wage slips and prescribe the manner of making and authenticating entries in wage books and wage slips;
(k) prescribe the powers of Inspectors for purposes of this Act;
(l) regulate the scale of costs that may be allowed in proceedings under section 20;
and
(m) prescribe the amount of court-fees payable in respect of proceedings under section 20; and
(n) provide for any other matter which is to be or may be prescribed.
30A. Rules made by Central Government to be laid before Parliament
Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]
10[31. Validation of fixation of certain minimum rates of wages-Where during the period-
(a) commencing on the lst day of April, 1952, and ending with the date of the commencement of the Minimum Wages (Amendment) Act, 1954 (26 of 1954); or
(b) commencing on the 31st day of December, 1954, and ending with the date of the commencement of the Minimum Wages (Amendment) Act, 1957 (30 of 1957); or
(c) commencing on the 31st day of December, 1959, and ending with the date of the commencement of the minimum Wages (Amendment) Act , 1961 (31 of 1961), minimum rates of wages have been fixed by an appropriate government as being payable to employees employed in any employment specified in the Schedule in the belief or purported belief that such rates were being fixed under clause (a) of sub-section (1) of section 3, as in force immediately before the commencement of the Minimum Wages (Amendment) Act, 1954 (26 of 1954), or the Minimum Wages (Amendment) Act, 1957 (30 of 1957), or the Minimum Wages (Amendment) Act, 1961 (31 of 1961), as the case may be, such rates shall be deemed to have been fixed in accordance with law and shall not be called in question in any court on the ground merely that the relevant date specified for the purpose in that clause had expired at the time the rates were fixed :
PROVIDED that nothing contained in this section shall extend, or be construed to extend, to affect any person with any punishment or penalty whatsoever by reason of the payment by him by way of wages to any of his employees during any period specified in this section of an amount which is less than the minimum rates of wages referred to in this section or by reason of non-compliance during the period aforesaid with any order or the rule issued under section 13.
The Payment of Gratuity Act, 1972
[39 OF 1972]
An Act to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments and for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Twenty-third Year of Republic of India as follows :-
1. SHORT TITLE, EXTENT, APPLICATION AND COMMENCEMENT. - (1) This Act may be called the Payment of Gratuity Act, 1972.
(2) It extends to the whole of India : Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.
(3) It shall apply to - (a) every factory, mine, oilfield, plantation, port and railway company;
(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;
(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.
(3A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten.
(4) It shall come into force on such date as the Central Government may, by notification, appoint.
2. DEFINITIONS. - In this Act, unless the context otherwise requires, - (a) "appropriate Government" means, - (i) in relation to an establishment - (a) belonging to, or under the control of, the Central Government,
(b) having branches in more than one State,
(c) of a factory belonging to, or under the control of, the Central Government,
(d) of a major port, mine, oilfield or railway company, the Central Government, (ii) in any other case, the State Government;
(b) "completed year of service" means continuous service for one year;
(c) "continuous service" means continuous service as defined in section 2A;
(d) "controlling authority" means an authority appointed by the appropriate Government under section 3;
(e) "employee" means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.
Explanation : (f) "employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop - (i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned,
(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive office of the local authority,
(iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person;
(g) "factory" has the meaning assigned to it in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);
(h) "family", in relation to an employee, shall be deemed to consist of - (i) in the case of a male employee, himself, his wife, his children, whether married or unmarried, his dependent parents and the dependent parents of his wife and the widow and children of his predeceased son, if any,
(ii) in the case of a female employee, herself, her husband, her children, whether married or unmarried, her dependent parents and the dependent parents of her husband and the widow and children of her predeceased son, if any :
Explanation : Where the personal law of an employee permits the adoption by him of a child, any child lawfully adopted by him shall be deemed to be included in his family, and where a child of an employee has been adopted by another person and such adoption is, under the personal law of the person making such adoption, lawful, such child shall be deemed to be excluded from the family of the employee;
(i) "major port" has the meaning assigned to it in clause (8) of section 3 of the Indian Ports Act, 1908 (15 of 1908);
(j) "mine" has the meaning assigned to it in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952);
(k) "notification" means a notification published in the Official Gazette;
(l) "oilfield" has the meaning assigned to it in clause (e) of section 3 of the Oilfields (Regulation and Development) Act, 1948 (53 of 1948);
(m) "plantation" has the meaning assigned to it in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);
(n) "port" has the meaning assigned to it in clause (4) of section 3 of the Indian Ports Act, 1908 (15 of 1908);
(o) "prescribed" means prescribed by rules made under this Act;
(p) "railway company" has the meaning assigned to it in clause (5) of section 3 of the Indian Railways Act, 1890 (9 of 1890);
(q) "retirement" means termination of the service of an employee otherwise than on superannuation;
(r) "superannuation", in relation to an employee, means the attainment by the employee of such age as is fixed in the contract or conditions of service at the age on the attainment of which the employee shall vacate the employment;
(s) "wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.
2A. CONTINUOUS SERVICE. - For the purposes of this Act, - (1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing order, rules or regulations governing the employees of the establishment), lay off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act.
(2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer - (a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than - (i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and (ii) two hundred and forty days, in any other case;
(b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than - (i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) one hundred and twenty days, in any other case;
Explanation : For the purpose of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which - (i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Order's) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;
(ii) he has been on leave with full wages, earned in the previous year;
(3) where an employee employed in a seasonal establishment, is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy-five per cent of the number of days on which the establishment was in operation during such period.
3. CONTROLLING AUTHORITY. - The appropriate Government may, by notification, appoint any officer to be a controlling authority, who shall be responsible for the administration of this Act and different controlling authorities may be appointed for different areas.
4. PAYMENT OF GRATUITY.- (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, - (a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease : Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement :
Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.
Explanation : For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.
(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned : Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account :
Provided further that in the case of an employee who is employed in a seasonal establishment and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of seven days' wages for each season.
Explanation : In the case of a monthly rated employee, the fifteen days' wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.
(3) The amount of gratuity payable to an employee shall not exceed three lakhs and fifty thousand rupees.
(4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced.
(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.
(6) Notwithstanding anything contained in sub-section (1), - (a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused.
(b) the gratuity payable to an employee may be wholly or partially forfeited - (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.
4A. COMPULSORY INSURANCE. - (1) With effect from such date as may be notified by the appropriate Government in this behalf, every employer, other than an employer or an establishment belonging to, or under the control of, the Central Government or a State Government, shall, subject to the provisions of sub-section (2), obtain an insurance in the manner prescribed, for his liability for payment towards the gratuity under this Act, from the Life Insurance Corporation of India established under the Life Insurance Corporation of India Act, 1956 (31 of 1956) or any other prescribed insurer : Provided that different dates may be appointed for different establishments or class of establishments or for different areas.
(2) The appropriate Government may, subject to such conditions as may be prescribed, exempt every employer who had already established an approved gratuity fund in respect of his employees and who desires to continue such arrangement, and every employer employing five hundred or more persons who establishes an approved gratuity fund in the manner prescribed from the provisions of sub-section (1).
(3) For the purpose of effectively implementing the provisions of this section, every employer shall within such time as may be prescribed get his establishment registered with the controlling authority in the prescribed manner and no employer shall be registered under the provisions of this section unless he has taken an insurance referred to in sub-section (1) or has established an approved gratuity fund referred to in sub-section (2).
(4) The appropriate Government may, by notification, make rules to give effect to the provisions of this section and such rules may provide for the composition of the Board of Trustees of the approved gratuity fund and for the recovery by the controlling authority of the amount of the gratuity payable to an employee from the Life Insurance Corporation of India or any other insurer with whom an insurance has been taken under sub-section (1), or as the case may be, the Board of Trustees of the approved gratuity fund.
(5) Where an employer fails to make any payment by way of premium to the insurance referred to in sub-section (1) or by way of contribution to an approved gratuity fund referred to in sub-section (2), he shall be liable to pay the amount of gratuity due under this Act (including interest, if any, for delayed payments) forthwith to the controlling authority.
(6) Whoever contravenes the provisions of sub-section (5) shall be punishable with fine which may extend to ten thousand rupees and in the case of a continuing offence with a further fine which may extend to one thousand rupees for each day during which the offence continues.
Explanation : In this section "approved gratuity fund" shall have the same meaning as in clause (5) of section 2 of the Income-tax Act, 1961 (43 of 1961).
5. POWER TO EXEMPT. - (1) The appropriate Government may, by notification, and subject to such conditions as may be specified in the notification, exempt any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act if, in the opinion of the appropriate Government, the employees in such establishment, factory, mine, oilfield, plantation, port, railway company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.
(2) The appropriate Government may, by notification and subject to such conditions as may be specified in the notification, exempt any employee or class of employees employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, such employee or class of employees are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.
(3) A notification issued under sub-section (1) or sub-section (2) may be issued retrospectively a date not earlier than the date of commencement of this Act, but no such notification shall be issued so as to prejudicially affect the interests of any person.
6. NOMINATION. - (1) Each employee, who has completed one year of service, shall make, within such time, in such form and in such manner, as may be prescribed, nomination for the purpose of the second proviso to sub-section (1) of section 4.
(2) An employee may in his nomination, distribute the amount of gratuity payable to him, under this Act amongst more than one nominee.
(3) If an employee has a family at the time of making a nomination, the nomination shall be made in favour of one or more members of his family, and any nomination made by such employee in favour of a person who is not a member of his family, shall be void.
(4) If at the time of making a nomination the employee has no family, the nomination may be made in favour of any person or persons but if the employee subsequently acquires a family, such nomination shall forthwith become invalid and the employee shall make, within such time as may be prescribed, a fresh nomination in favour of one or more members of his family.
(5) A nomination may, subject to the provisions of sub-sections (3) and (4), be modified by an employee at any time, after giving to his employer a written notice in such form and in such manner as may be prescribed, of his intention to do so.
(6) If a nominee predeceases the employee, the interest of the nominee shall revert to the employee who shall make a fresh nomination, in the prescribed form, in respect of such interest.
(7) Every nomination, fresh nomination or alteration of nomination, as the case may be, shall be sent by the employee to his employer, who shall keep the same in his safe custody.
7. DETERMINATION OF THE AMOUNT OF GRATUITY. - (1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.
(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.
(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.
(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify : Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.
(4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.
(b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.
(c) The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.
(d) The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto.
(e) As soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit - (i) to the applicant where he is the employee; or
(ii) where the applicant is not the employee, to the nominee or, as the case may be, the guardian of such nominee or heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity.
(5) For the purpose of conducting an inquiry under sub-section (4), the controlling authority shall have the same powers as are vested in a court, while trying a suit, under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely :- (a) enforcing the attendance of any person or examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses.
(6) Any inquiry under this section shall be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code, 1860 (45 of 1860).
(7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf : Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days.
Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount.
(8) The appropriate Government or the appellate authority, as the case may be, may, after giving the parties to the appeal a reasonable opportunity of being heard, confirm, modify or reverse the decision of the controlling authority.
7A. INSPECTORS. - (1) The appropriate Government may, by notification, appoint as many Inspectors, as it deems fit, for the purposes of this Act.
(2) The appropriate Government may, by general or special order, define the area to which the authority of an Inspector so appointed shall extend and where two or more Inspectors are appointed for the same area, also provide, by such order, for the distribution or allocation of work to be performed by them under this Act.
(3) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).
7B. POWERS OF INSPECTORS. - (1) Subject to any rules made by the appropriate Government in this behalf, an Inspector may, for the purpose of ascertaining whether any of the provisions of this Act or the conditions, if any, of any exemption granted thereunder, have been complied with, exercise all or any of the following powers, namely :- (a) require an employer to furnish such information as he may consider necessary;
(b) enter and inspect, at all reasonable hours, with such assistants (if any), being persons in the service of the Government or local or any public authority, as he thinks fit, any premises of or place in any factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, for the purpose of examining any register, record or notice or other document required to be kept or exhibited under this Act or the rules made thereunder, or otherwise kept or exhibited in relation to the employment of any person or the payment of gratuity to the employees, and require the production thereof for inspection;
(c) examine with respect to any matter relevant to any of the purposes aforesaid, the employer or any person whom he finds in such premises or place and who, he has reasonable cause to believe, is an employee employed therein;
(d) make copies of, or take extracts from, any register, record, notice or other document, as he may consider relevant, and where he has reason to believe that any offence under this Act has been committed by an employer, search and seize with such assistance as he may think fit, such register, record, notice or other document as he may consider relevant in respect of that offence;
(2) Any person required to produce any register, record, notice or other document or to give any information by an Inspector under sub-section (1) shall be deemed to be legally bound to do so within the meaning of sections 175 and 176 of the Indian Penal Code 1860 (45 of 1860).
(3) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall so far as may be, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under section 94 of that Code.
8. RECOVERY OF GRATUITY. - If the amount of gratuity payable under this Act is not paid by the employer, within the prescribed time, to the person entitled thereto, the controlling authority shall, on an application made to it in this behalf by the aggrieved person, issue a certificate for that amount to the Collector, who shall recover the same, together with compound interest thereon at such rate as the Central Government may, by notification, specify, from the date of expiry of the prescribed time, as arrears of land revenue and pay the same to the person entitled thereto :
Provided that the controlling authority shall, before issuing a certificate under this section, give the employer a reasonable opportunity of showing cause against the issue of such certificate :
Provided further that the amount of interest payable under this section shall, in no case exceed the amount of gratuity payable under this Act.
9. PENALTIES. - (1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.
(2) An employer who contravenes, or makes default in complying with, any of the provisions of this Act or any rule or order made thereunder shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year, or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both :
Provided that where the offence relates to non-payment of any gratuity payable under this Act, the employer shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years unless the court trying the offence, for reasons to be recorded by it in writing, is of opinion that a lesser term of imprisonment or the imposition of a fine would meet the ends of justice.
10. EXEMPTION OF EMPLOYER FROM LIABILITY IN CERTAIN CASES. - Where an employer is charged with an offence punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the complainant not less than three clear days' notice in writing of his intention to do so, to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the employer proves to the satisfaction of the court - (a) that he has used due diligence to enforce the execution of this Act, and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance, that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be discharged from any liability under this Act in respect of such offence :
Provided that in seeking to prove as aforesaid, the employer may be examined on oath and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutor :
Provided further that, if the person charged as the actual offender by the employer cannot be brought before the court at the time appointed for hearing the charge, the court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the court, the court shall proceed to hear the charge against the employer and shall, if the offence be proved, convict the employer.
11. COGNIZANCE OF OFFENCES. - (1) No court shall take cognizance of any offence punishable under this Act save on a complaint made by or under the authority of the appropriate Government : Provided that where the amount of gratuity has not been paid, or recovered, within six months from the expiry of the prescribed time, the appropriate Government shall authorise the controlling authority to make a complaint against the employer, whereupon the controlling authority shall, within fifteen days from the date of such authorisation, make such complaint to a Magistrate having jurisdiction to try the offence.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
12. PROTECTION OF ACTION TAKEN IN GOOD FAITH. - No suit or other legal proceeding shall lie against the controlling authority or any other person in respect of anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder. 13. PROTECTION OF GRATUITY. - No gratuity payable under this Act and no gratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop exempted under section 5 shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court. 14. ACT TO OVERRIDE OTHER ENACTMENTS, ETC. - The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act. 15. POWER TO MAKE RULES. (1) The appropriate Government may, by notification make rules for the purpose of carrying out the provisions of this Act. (2) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall, thereafter, have effect only in such modified form or be of no effect as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Important Cases
Vishaka v. State of Rajasthan , AIR 1997 SC 3011
J.S. VERMA, C.J.I., Mrs. SUJATA V. MANOHAR AND B.N. KIRPAL, JJ.
Writ Petn. (Criminal) Nos. 666-70 of 1992, D/- 13-8-1997.
Vishaka and others, Petitioners v. State of Rajasthan and others, Respondents.
(A) Constitution of India, Art.14, Art.19, Art.21, Art.32 - Sexual harassment of working woman - Amounts to violation of rights of gender equality and right to life and liberty - Also as a logical consequence amounts to violation of right to practice any profession, occupation or trade - Victim is, therefore, entitled to remedy of Art. 32. (Para 3)
(B) Constitution of India, Art.14, Art.21, Art.10 - Guarantee of gender equality and right to work with human dignity - Nature and ambit - Construction - International conventions and norms can be relied upon.
It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Arts. 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantees. This is implicit from Art. 51(c) and the enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Art. 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. (Paras 7, 14, 15)
(C) Constitution of India, Art.32, Art.141, Art.14, Art.21 - Gender equality and guarantee against sexual harassment and abuse more particularly of working woman at work places - Law for effective enforcement absent - Supreme Court in exercise of powers under Art. 32 laid down guidelines and norms - Guidelines and norms to be treated as law declared under Art. 141 - Applicable to both public and private sector. (Para 16)
Cases Referred : Chronological Paras
1993 AIR SCW 2366 : (1993) 2 SCC 746 : 1993 Cri LJ 2899 : AIR 1993 SC 1960 15
128 Aus LR 353, Minister for Immigration and Ethnic Affairs v. Teoh 14
Mr. F. S. Nariman, Sr. Advocate, Ms. Meenakshi Arora and Ms. Niti Dixit, Advocates with him, for Petitioners; Mr. T. R. Andhyarujina, Solicitor General, Mr. Mukul Mudgal, Ms. Suvira Lal, Mr. C. V. S. Rao, Mr. K. S. Bhati and Mr. M. K. Singh, Advocates with him, for Respondents.
Judgement
VERMA, C.J.I.:- This writ petition has been filed for the enforcement of the fundamental rights of working women under Arts. 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard against such violations; and the resentment towards incidents of sexual harassment is also increasing. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focusing attention towards this societal aberration, and assisting in finding suitable methods for realization of the true concept of 'gender equality'; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation.
2. The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. That incident is the subject matter of a separate criminal action and no further mention of it, by us, is necessary. The incident reveals the hazards to which a workingwoman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfil this felt and urgent social need.
3. Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right to Life and Liberty'. It is a clear violation of the rights under Arts. 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Art. 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'. Such violations, therefore, attract the remedy under Art. 32 for the enforcement of these fundamental rights of women. This class action under Art. 32 of the Constitution is for this reason. A writ of mandamus in such a situation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a "safe" working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable @page-SC3013 legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Arts. 14, 19 and 21 are brought before us for redress under Art. 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.
4. The notice of the petition was given to the State of Rajasthan and the Union of India. The learned Solicitor General appeared for the Union of India and rendered valuable assistance in the true spirit of a Law Officer to help us find a proper solution to this social problem of considerable magnitude. In addition to Ms. Meenakshi Arora and Ms. Naina Kapur who assisted the Court with full commitment, Shri Fali S. Nariman appeared as Amicus Curiae and rendered great assistance. We place on record our great appreciation for every counsel who appeared in the case and rendered the needed assistance to the Court which has enabled us to deal with this unusual matter in the manner considered appropriate for a cause of this nature.
5. Apart from Art. 32 of the Constitution of India, we may refer to some other provisions which envisage judicial intervention for eradication of this social evil. Some provisions in the Constitution in addition to Arts. 14, 19(1)(g) and 21, which have relevance are:
Article 15 :
"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
(1) The State shall not discriminate against any citizen on only of religion, race, caste, sex, place of birth or any of them.
(2) xxx xxx xxx
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) xxx xxx xxx
Article 42 :
"42. Provision for just and humane conditions of work and maternity relief - The State shall make provision for securing just and humane conditions of work and for maternity relief."
Article 51A :
"51A. Fundamental duties.- It shall be the duty of every citizen of India;-
(a) to abide by the Constitution and respect its ideals and institutions, . . .
xxx xxx xxx
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
xxx xxx xxx"
6. Before we refer to the international conventions and norms having relevance in this field and the manner in which they assume significance in application and judicial interpretation, we may advert to some other provisions in the Constitution which permit such use. These provisions are :
Article 51 :
"51. Promotion of international peace and security.- The State shall endeavour to-
(c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and
Article 253 :
"253. Legislation for giving effect to international agreements.- Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."
Seventh Schedule :
"List I - Union List :
14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.
7. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International @page-SC3014 Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Arts. 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Art. 51(c) and the enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Art. 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the Parliament enacts legislation to expressly provide measures needed to curb the evil.
8. Thus, the power of this Court under Art. 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest.
9. The progress made at each hearing culminated in the formulation of guidelines to which the Union of India gave its consent through the learned Solicitor General, indicating that these should be the guidelines and norms declared by this Court to govern the behaviour of the employers and all others at the work places to curb this social evil.
10. Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The International Conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.
11. The obligation of this Court under Art. 32 of the Constitution for the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are :
"Objectives of the Judiciary :
10. The objectives and functions of the judiciary include the following:
(a) to ensure that all persons are able to live securely under the Rule of Law;
(b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between persons and the State."
12. Some provisions in the 'Convention on the Elimination of All Forms of Discrimination against Women', of significance in the present context are:
Article 11 :
"1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular :
(a) The right to work as an inalienable right of all human beings;
(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
Article 24 :
"States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognised in the present Convention." @page-SC3015
13. The general recommendations of CEDAW in this context in respect of Art. 11 are:
"Violence and equality in employment :
22. Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the work place.
23. Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided.
24. States should include in their reports information about sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the work place."
The Government of India has ratified the above resolution on June 25, 1993 with some reservations which are not material in the present context. At the Fourth World Conference on Women in Beijing, the Government of India has also made an official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women's to act as a public defender of women's human rights; to institutionalise a national level mechanism to monitor the implementation of the Platform for Action. We have, therefore, no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our Constitution.
14. The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. Independence of judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court of Australia in Minister for Immigration and Ethnic Affairs v. Teoh, 128 ALR 353, has recognised the concept of legitimate expectation of its observance in the absence of a contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia.
15. In Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 : (1993 AIR SCW 2366), a provision in the ICCPR was referred to support the view taken that 'an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right', as a public law remedy under Art. 32, distinct from the private law remedy in torts. There is no reason why these international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.
16. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Art. 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Art. 141 of the Constitution.
The guidelines and norms pre-scribed herein are as under:-
Having regard to the definition of 'human rights' in S. 2(d) of the Protection of Human Rights Act, 1993,
Taking note of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time.
It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition :
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as :
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Steps :
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings :
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action :
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism :
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. @page-SC3017
7. Complaints Committee :
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers' Initiative :
Employees should be allowed to raise issues of sexual harassment at workers' meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
10. Third party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the workingwomen. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.
Order accordingly.
SUPREME COURT OF INDIA
Before :- S. Rajendra Babu and Doraiswamy Raju, JJ.
Civil Appeal No. 5990 of 1997. D/d. 13.8.2003
National Thermal Power Corporation Ltd. - Appellant
Versus
Karri Pothuraju and Ors. - Respondents
For the Appellant :- V.R. Reddy, N.B. Shetye, Sr.Advs., Rajendra Dhawan, Ms. Meera Mathur, A.T.M. Sampath, Advocates.
For the Respondent :- Hardev Singh, L. Nageswara Rao, Sr.Advs., Ms. Madhu Moolchandani, R. Santhanakrishnan, G. Ramakirshna Prasad, K.C. Sudarshan, Jayanth M. Raj, P.P. Singh, and S. Udaya Kumar Sagar, T.G. Narayanan Nair, Advocates.
Constitution of India, Articles 14 & 16 - Canteen Employees - Contract labour - Regularisation - Equal pay for equal work - Relationship of employee and employer - Where the maintaining of a canteen is a statutory obligation of the establishment under the Factories Act and Rules the workers of such canteen are to be considered in the employment of the principal employer - As they are workmen under the Industrial Disputes Act entitled to the protection of the provisions thereof.</< SEARCH_SUBJECT>B> [Paras 5, 6]
Cases referred :
1. Indian Petrochemicals Corporation Ltd. & Another v. Shramik Sena & Others, 1999(3) SCT 815 (SC).
2. Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union & Another, 2000(2) SCT 682 (SC).
3. Steel Authority of India Ltd. & Others v. National Union Waterfront Workers & Others, 2001(4) SCT 1 (SC).
4. VST Industries Ltd. v. VST Industries Workers' Union & Another, 2001(1) SCT 306 (SC).
5. The Saraspur Mills Co.Ltd. v. Ramanlal Chimanlal & Others, 1974(3) SCC 66.
JUDGMENT S. Rajendra Babu, J. - The above appeal has been filed against the order dated 27.11.96 of a Division Bench of the Andhra Pradesh High Court in Writ Appeal No. 385 of 1996, whereunder the Division Bench, while setting aside the order of the learned Single Judge in Writ Petition No. 3793 of 1992, allowed the claims in the writ petition to the extent and subject to the conditions specified in the order. The appellant, National Thermal Power Corporation Ltd., Ramagundam Super Thermal Power Station, is a Public Sector Undertaking of the Government of India. In started a canteen in the year 1983 for the benefit of the employees of their unit, through a contractor and from that time onwards it was being run through contractors engaged from time to time. The total number of employees, at the relevant point of time, were said to be 2300 and about 54 persons were said to have been working in the canteen in various capacities - cooks, servers, cleaners etc. It is not in controversy that the appellant is a factory governed by the provisions of the Factories Act and Section 46 of the said Act, 1948 casts a mandatory duty and obligation on the appellant to provide and maintain a canteen for the benefit of all those serving in the unit. Concededly, the appellant grants substantial subsidy and at one point of the time, as found noticed in the order, it was to the tune of Rs. 1,95,000/-. The respondents, at least many of them, were said to be working from the year 1983, though engaged by contractors. The Deputy Manager - Administration and his subordinates were said to supervise the working of the canteen in respect of preparation, service and maintenance, to ensure quality of service as well as that it was carried on beneficially to the workers. It is also claimed that the said authority issued identity cards also to the workers for entering the factory premises. Apparently, taking advantage of certain decisions of courts, including this Court, the respondent-workers moved the High Court by means of the Writ Petition filed under Article 226 of the Constitution of India seeking for a direction to the appellant to regularize their services with attendant benefits.
2. Appellants disputed the claim, contending that the canteen was run as a beneficial measure, to cater to the needs of workers in the unit, that contractors used to be engaged periodically - at time different contractors for different period, depending upon the successful offer made pursuant to invitation of tenders,that they have nothing to do with the total strength of workers engaged by such contractors, that they are neither workers relating to the manufacturing activities of the appellant-Undertaking or they perform any work incidental thereto or by any means could claim to be workers of the appellant within the meaning of the Industrial Disputes Act, 1947. The control, if at all, was said to be to ensure that there is no industrial unrest on account of the manner of running the canteen and proper food articles are made available hygienically and at the rates stipulated without sacrificing the quality of the food stuffs, eatables and beverages and such supervision cannot make them workers under the control of the appellant and that the relationship of Master and Servant and disciplinary control over them was also with their employer-contractor, at all times.
3. The learned Single Judge was not prepared to accept the claim of the workers and was of the view that the workers in the canteens run by Railways and LIC stand on a different footing and there can be no comparison of the workers in the canteen under consideration with those in the other institutions. The writ petition, therefore, came to be dismissed and the workers were constrained to file an appeal. The Division Bench, while allowing the appeal, made the same subject to the following directions :
"Learned counsel for the first respondent has, however, urged before us that while affirming the judgment of the Bombay High Court as above, the Supreme Court has given some directions and in the instant case for the obvious reasons of the existence of the canteen in the hands of the contractors ever since the establishment of the canteen, the Court should issue similar directions as issued by the Supreme Court in the said case. While we do not have much information as to the type of the employees the canteen is having and whether there are any employees in the canteen who do not qualify within the minimum and the maximum age limits prescribed under the policy of the first respondent or that they do not fit in the minimum medical standards of minimum service period, it is not possible, therefore, to specify, in the same terms and the Supreme Court has done, in the instant case, but to observe generally that a person who has crossed the age limit or a person who is below the age of employment can obviously be not regularized or treated as employee of first respondent. Similarly, a person who is not medically fit cannot claim employment and if has so worked all right, but cannot by virtue of such employment claim the benefits of the employees of the first respondent. It would be advisable in such circumstances that the first respondent corrects its mistakes and allows the cases of all the employees and treats all those who are not unfit to continue in the employment of first respondent as its employees."
4. The learned Senior Counsel appearing on behalf of the appellant placed strong reliance upon the decisions reported in Indian Petrochemicals Corporation Ltd. & Another v. Shramik Sena & Others [(1996) 6 SCC 439] : 1999(3) SCT 815 (SC) and other related decisions to contend that the Division Bench went wrong in reversing the decision of the learned Single Judge and that the respondent-workers, who are indisputably the workers in the canteen engaged by the contractor, cannot claim to be part of the appellants establishment and claim for regularisation in the service of the appellant-Undertaking and consequently the order under challenge is liable to be set aside. Per contra, learned Senior Counsel appearing for the respondent-workers placed reliance upon the decisions reported in Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union & Another [(2000) 4 SCC 245] : 2000(2) SCT 682 (SC) as well as Steel Authority of India Ltd. & Others v. National Union Waterfront Workers & Others [(2001) 7 SCC 1] : 2001(4) SCT 1 (SC) and in VST Industries Ltd. v. VST Industries Workers' Union & Another [(2001) 1 SCC 298] : 2001(1) SCT 306 (SC) to contend that the decision of the Division Bench does not require any interference in this appeal. Reliance was also placed on an earlier decision of this Court in The Saraspur Mills Co.Ltd. v. Ramanlal Chimanlal & Others [(1974) 3 SCC 66] for sustaining the decision of the High Court under challenge.
5. We have carefully considered the submissions of the learned counsel appearing on either side. In (1974) 3 SCC 66 (supra), this Court held that where there is a statutory liability on the company concerned to run a canteen in the factory, then even though the canteen was run by a Co-operative Society, the employees working in the canteen would be covered by the definition of the word "employed" envisaged in Section 3(13) of the Bombay Industrial Relations Act. In (2001) 1 SCC 298 (supra) dealing with the claim of workers of a canteen run through a private contractor in pursuance of the obligation of the industrial establishment under Section 46 of the Factories Act, 1948, this Court upheld the claim of workers for being treated as the workers of the company itself. In (2001) 7 SCC 1 (supra), a Constitution Bench of this Court considered the claims of contract labourers engaged by a contractor for absorption in the establishment of the principal employer on issuance of the abolition notification under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the rules made thereunder. This Court, while adverting to the position of law in force, has observed as follows :
"106. We have gone through the decisions of this Court in VST Industries case, G.B. Pant University case and M. Aslam case. All of them relate to statutory liability to maintain the canteen by the principal employer in the factory/establishment. That is why in those cases, as in Saraspur Mills case the contract labour working in the canteen were treated as workers of the principal employer. These cases stand on a different footing and it is not possible to deduce from them the broad principle of law that on the contract labour system being abolished under sub-section (1) of Section 10 of the CLRA Act the contract labour working in the establishment of the principal employer have to be absorbed as regular employees of the establishment.
107. An analysis of the cases, discussed above, shows that they fall in three classes : (i) where contract labour in engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the industrial adjudicator/court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10(1) of the CLRA Act, no automatic absorption of the contract labour working in the establishment was ordered; (ii) where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract labour working in the establishment of the principal employer were held, in fact and in reality, the employees of the principle employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor the courts have held that the contract labour would indeed be the employees of the principal employer."
6. Consequently, we consider it to be too late in the day for the appellant, which had an obligation under the Factories Act, 1948, to run the canteen to contend to the contrary. So far as the case on hand is concerned, the Division Bench has chosen to leave liberty to the appellant to consider the claims of the workers as to whether they satisfy the requirements and whether they are otherwise unfit for confirmations. In the light of all these, we are unable to countenance the challenge to the decision of the High Court, as either legitimate or valid one. The appeal, therefore, fails and shall stand dismissed. No costs.
Appeal dismissed.
Civil Appeal No. 5992 of 1997. D/d. 13.8.2003
Mishra Dhatu Nigam Ltd., etc. etc. - Appellants
Constitution of India, Articles 14 & 16 - Canteen Employees - Contract labour - Regularisation - Equal pay for equal work - Relationship of employee and employer - Where the maintaining of a canteen is a statutory obligation of the establishment under the Factories Act and Rules the employees of such canteen are to be considered in the employment of the principal employer - They are entitled to claim regularisation and equal pay for equal work and to be absorbed in the permanent strength of the staff of the establishment in regular pay scale.</< SEARCH_SUBJECT>B> [Paras 5, 6, 7]
1. VST Industries Ltd. v. VST Industries Workers' Union & Another, 1996(1) A.L.D. 97.
2. Steel Authority of India Ltd. & Others v. National Union Waterfront Workers & Others, 2001(4) SCT 1 (SC).
3. Indian Petrochemicals Corporation Ltd. & Another v. Shramik Sena & others, 1999(3) SCT 815 (SC).
4. Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union & Another, 2000(2) SCT 682 (SC).
5. VST Industries Ltd. v. VST Industries Workers' Union & Another, 2001(1) SCT 306 (SC).
6. M.M.R. Khan & Others v. Union of India & Others, 1990 (Supp.) SCC 191.
7. National Thermal Power Corporation Ltd. v. Karri Pothuraju & Ors., C.A. No. 5990 of 1997.
JUDGMENT
S. Rajendra Babu, J. - Civil Appeal No. 5992 of 1997 :
The above appeal has been filed by the 1st respondent in W.P. No. 18722 of 1996 before the High Court of Andhra Pradesh, which, in turn, came to be filed by a group of workers seeking for a Writ of Mandamus declaring the action of the appellant in not absorbing them as its regular employees and not paying the pay and other benefits on par with the regular employees of the appellant-company is illegal and arbitrary, and to direct the appellant-company : (a) to absorb the workers as its regular employees; (b) to prescribe the appropriate scale of pay and other service conditions for them from the date of their initial appointment together with arrears of salary. A Division Bench of the High Court by a common order dated 24.1.97 in this and two other writ petitions passed the following order :
"The above cases, it is stated, are covered by the judgment in writ appeal No. 385 of 1996 dated 27.11.96. Let the petitions accordingly be disposed of and directions issued."
Hence, this appeal.
Civil Appeal No. 3159 of 1997 :
2. The above appeal has been filed by the 1st respondent in W.P. No. 10967 of 1988, who was the appellant in W.A. No. 1493 of 1996 before the High Court of Andhra Pradesh. In the Writ Petition, the Canteen Employees Union of B.H.P.V., and a worker in the canteen, who was also the General Secretary of the Union at that time, prayed for an appropriate direction to declare the action of the appellant in not regularizing the services of the workers in the canteen and paying them wages on par with other permanent workers of the appellant and withdrawing B.H.P.V. dispensary facilities to them, is arbitrary, unreasonable and violative of Articles 14 and 21 of the Constitution of India, and direct the appellant to accord those reliefs. A learned Single Judge allowed the Writ Petition by following an earlier decision of the same court dated 30.10.95 rendered in W.P. No. 6582 of 1992 : VST Industries Ltd. v. VST Industries Workers' Union & Another [1996(1) A.L.D. 97]. A review filed thereon in W.M.P. No. 19114 of 1996 having also been rejected on 1.10.1996, W.A. 1493 of 1996 came to be filed before a Division Bench. The Division Bench of the High Court, adverted to the earlier decisions of the Division Bench rendered in W.A. Nos. 430 and 385 of 1996 and in the light of the principles laid down therein, not only confirmed the view taken by the learned Single Judge but also held that in the teeth of Rules 65 to 71 of the Andhra Pradesh Factories Rules, 1950, it requires to be affirmed that the appellant has a statutory duty to provide a canteen for the workmen and consequently dismissed the appeal, resulting in the filing of the above appeal.
Civil Appeal No. 5991 of 1997 :
3. The above appeal has been filed by the respondents in W.P. No. 8015 of 1992 before the High Court of Andhra Pradesh, which, in turn, came to be filed by the respondent canteen workers seeking for a Writ of Mandamus directing the appellants herein (respondents before the High Court) to regularize their services from the date of appointment with all consequential benefits. By an order dated 27.11.1996, the Division Bench adverted to the decision rendered in Writ Appeal No. 385 of 1996 and allowed the claims by passing the following order :
"This writ petition has to succeed vide judgment in writ appeal No. 385 of 1996 delivered by us today as facts are similar to the facts in the said case, except that the petitioners are the employees of the instrumentality of the Government of India, i.e. Bharath Dynamic Limited. The instant petition is ordered on the same terms as in writ appeal No. 385 of 1996."
Civil Appeal No. 6532 of 1997 :
4. The above appeal has been filed by the respondents No. 1 & 2 in W.P. No. 8113 of 1993 before the High Court of Andhra Pradesh, which, in turn, came to be filed by the canteen workers seeking for a declaration : (a) that the appointment of contractor for running the Industrial canteen (night shift) at H.P.C. Visakhapatnam Refinery as illegal and arbitrary; (b) declaring the action of the appellants in not treating the said workers as the employees of the H.P.C. Ltd., as illegal and arbitrary and (c) consequently, direct the appellants to treat the canteen workers as the employees of the H.P.C. Ltd., and grant appropriate scales of pay to them on par with the regular employees of the Corporation from the date of their respective appointment with all consequential benefits. The Division Bench by an order dated 24.1.1997 held as follows :
"The above cases, it is stated, are covered by the judgment in writ appeal No. 385 of 96 dated 27.11.96. Let the petitions accordingly be disposed of and directions issued."
5. Heard the learned senior counsel for the appellants and the respondents. On behalf of the appellant in C.A. No. 5991 of 1997, our attention was invited to Paras 125(3) to (6) and 117 in the decision reported in Steel Authority of India Ltd. & Others v. National Union Waterfront Workers & Others, 2001(4) SCT 1 (SC) : [(2001) 7 SCC 1] in support of the plea against regularization of the canteen workers. For the appellant in C.A. No. 6532 of 1992, our attention was invited to certain observations in the decision in Indian Petrochemicals Corporation Ltd. & Another v. Shramik Sena & others [1999(3) SCT 815 (SC) : [(1999) 6 SCC 439]; Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union & Another [2000(2) SCT 682 (SC) : (2000) 4 SCC 245] and VST Industries Ltd. v. VST Industries Workers' Union & Another [2001(1) SCT 306 (SC) : (2000) 1 SCC 298] to support the claim against regularisation. The other learned counsel adopted the above submissions. On behalf of the respondents, relevant portions of the very judgments which are claimed to support the stand of the workers were brought to our notice, to contend that no interference is called for in these appeals.
6. The submissions on behalf of the appellants relying upon certain observations in the Steel Authority of India case (supra) proceed upon an erroneous assumption that the regularization of canteen workers were being allowed and ordered on the basis of the provisions contained in the Contract Labour (Regulation and Abolition) Act, 1970 [for short "the CLRA Act"]. The series of decisions commencing from M.M.R. Khan & Others v. Union of India & Others, [1990 (Supp.) SCC 191] do not lend any sustenance or credit to such a claim and, therefore, we are not persuaded to countenance the same. The relevant observations made in Paragraphs 106 and 107 by the Constitution Bench in Steel Authority of India case (supra), after specifically noticing the decision reported in VST Industries case (supra) also go against any such claims.
7. Further, the decision of the Division Bench of the Andhra Pradesh High Court dated 27.11.96 in W.A. No. 430 of 1996 was the subject matter of appeal in the decision reported in VST Industries Ltd. case (supra), which, as pointed out supra, was noticed by the Constitution Bench which rendered the decision in Steel Authority of India Ltd. case (supra) and considered such line of cases not only to stand on a different footing than the one which was the subject matter before the Constitution Bench, but also observed that where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor, the Courts have held that the contract labour would indeed be the employees of the principal employer and that such cases do not relate to or depend upon abolition of contract labour. So far as the decision dated 27.11.1996 of the same Division Bench rendered in Writ Appeal No. 385 of 96 is concerned, the appeal filed against the same in C.A. No. 5990 of 1997 [National Thermal Power Corporation Ltd. v. Karri Pothuraju & Ors.] was considered separately and by our judgment separately delivered today has been affirmed and the appeal by the Management has been dismissed. This decision also would squarely govern all these cases in favour of the workers. Consequently, we see no merit whatsoever in the submissions made to the contra by way of challenge in all these appeals, wherein the appellants concerned, indisputably are obliged to run the respective canteen in their establishments on account of the obligation cast upon them under the mandatory provisions of the Factories Act, 1948, and the Rules made thereunder.
8. For all the reasons stated above, these appeals fail and shall stand dismissed. No costs.
Appeals dismissed.
"Syndicate Bank v. K. Umesh Nayak" AIR 1995 SUPREME COURT 319 (From : Madras)* KULDIP SINGH, P.B. SAWANT, S. MOHAN, G.N. RAY AND N.P. SINGH, JJ. (A) Industrial Disputes Act (14 of 1947), S.2(q), S.12, S.22, S.23, S.24, S.25, Sch.2, Item 5 - Wages for strike period - Workers are not entitled to, unless strike is both legal and justified - Legality and justifiability is to be primarily determined by adjudicator under the Act - It is primarily for High Court to give its findings on those issues. W.A. No. 26 of 1981, D/-26-9-1988 (Mad), Reversed. Strike - Whether legal and justified - Determination - Proper forum. Wages - Strike period -Entitlement. Constitution of India, Art.226. The workers are not entitled to wages for the strike period even if the strike is legal. To be entitled to the wages for the strike period, the strike has to be both legal and justified. Whether the strike is legal and justified are questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the industrial adjudicator, it being an industrial dispute within the meaning of the Act. Whether the strike is legal or illegal and justified or unjustified, are issues which fell for decision within the exclusive domain of the industrial adjudicator under the Act and it is not primarily for the High Court to give its findings on the said issues. The said issues had to be decided by taking the necessary evidence on the subject. (Held that there is no conflict between AIR 1969 SC 998, AIR 1978 SC 1489 on the one hand and (1990) 4 SCC 744 on the other). (1990) 4 SCC 744, Approved. W.A. No. 26 of 1981, D/-26-9-1988 (Mad), Reversed. (Paras 7, 8, 10) A strike may be illegal if it contravenes the provisions of Ss.22, 23 or 24 of the Act or of any other law or of the terms of employment depending upon the facts of each case. Similarly, a strike may be justified or unjustified depending upon several factors such as the service conditions of the workmen, the nature of demands of the workmen, the cause which led to strike, the urgency of the cause or the demands of the workmen, the reason for not resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules and regulations etc. An enquiry into these issues is essentially an enquiry into the facts which in some cases may require taking of oral and documentary evidence. Hence such an enquiry has to be conducted by the machinery which is primarily invested with the jurisdiction and duty to investigate and resolve the dispute. The machinery has to come to its findings on the said issue by examining all the pros and cons of the dispute as any other dispute between the employer and the employee. (Para 8) (B) Industrial Disputes Act (14 of 1947), S.2(q), S.22, S.23, S.24, S.25, Sch.2, Item 5 - Strike - Forms of - Resort to strike or lock-out as direct action - Prima facie unjustified. The strike as a weapon was evolved by the workers as a form of direct action during their long struggle with the employers. It is essentially a weapon of last resort being an abnormal aspect of the employer-employee relationship and involves withdrawal of labour disrupting production, services and the running of the enterprise. It is a use by the labour of their economic power to bring the employer to see and meet their view-point over the dispute between them. In addition to the total cessation of work, it takes various forms such as working to rule, go slow, refusal to work over time when it is compulsory and a part of the contract of employment, "irritation strike" or staying at work but deliberately doing everything wrong, "running-sore strike", i.e., disobeying the lawful orders, sit-down, stay-in and lie-down strike etc. etc. The cessation or stoppage of work whether by the employees or by the employer is detrimental to the production and economy and to the well-being of the society as a whole. It is for this reason that the industrial legislation while not denying the right of workmen to strike has tried to regulate it along with the right of the employer to lock-out and has also provided a machinery for peaceful investigation, settlement, arbitration and adjudication of the disputes between them. Where such industrial legislation is not applicable, the contract of employment and the service rules and regulations many times, provide for a suitable machinery for resolution of the disputes. When the law or the contract of employment or the service rules provide for a machinery to resolve the dispute, resort to strike or lock-out as a direct action is prima facie unjustified. This, is particularly so when the provisions of the law or of the contract or of the service rules in that behalf are breached. For then, the action is also illegal. (Para 9) (C) Industrial Disputes Act (14 of 1947), S.2(q), S.22, S.23, S.24, S.25, Sch.2, Item 5 - Strike or lock-out - Whether legal - Determination of - Factors to be considered. Strike - Whether legal and justified - Determination. Lock-out - Whether legal and justified - Determination. The question whether a strike or lock-out is legal or illegal does not present much difficulty for resolution since all that is required to be examined to answer the question is whether there has been a breach of the relevant provisions. However, whether the action is justified or unjustified has to be examined by taking into consideration various factors. In almost all such cases, the prominent question that arises is whether the dispute was of such a nature that its solution could not brook delay and await resolution by the mechanism provided under the law or the contract or the service rules. The strike or lock-out is not to be resorted to because the concerned party has a superior bargaining power or the requisite economic muscle to compel the other party to accept its demand. Such indiscriminate use of power is nothing but assertion of the rule of "might is right". Its consequences are lawlessness, anarchy and chaos in the economic activities which are most vital and fundamental to the survival of the society. Such action, when the legal machinery is available to resolve the dispute, may be hard to justify. This will be particularly so when it is resorted to by the section of the society which can well await the resolution of the dispute by the machinery provided for the same. The strike or lock-out as a weapon has to be used sparingly for redressal of urgent and pressing grievances when no means are available or when available means have failed, to resolve it. It has to be resorted to, to compel the other party to the dispute to see the justness of the demand. It is not to be utilised to work hardship to the society at large so as to strengthen the bargaining power. It is for this reason that industrial legislation such as the Act places additional restrictions on strikes and lock-outs in public utility services. (Para 9) (D) Industrial Disputes Act (14 of 1947), S.2(q), S.22, S.23, S.24, S.25, Sch.2, Item 5 - Strike in public sector undertakings or public utility services - Special features like interests of society, investment of public funds and promotion of public interests by both employer and employees - Consideration of. Public sector undertakings - Strike in - Special features. Public utility services - Strike in - Special features. With the emergence of the organised labour, particularly in public undertakings and public utility services, the old balance of economic power between the management and the workmen has undergone a qualitative change in such undertaking . Today, the organised labour in these institutions has acquired even the power of holding the society at large to ransom, by withholding labour and thereby compelling the managements to give in on their demands whether reasonable or unreasonable. What is forgotten many times, is that as against the employment and the service conditions available to the organised labour in these undertakings, there are millions who are either unemployed, underemployed or employed on less than statutorily minimum remuneration. The employment that workmen get and the profits that the employers earn are both generated by the utilisation of the resources of the society in one form or the other whether it is land, water, electricity or money which flows either as share capital, loans from financial institutions or subsidies and exemptions from the Governments. The resources are to be used for the well-being of all by generating more employment and production and ensuring equitable distribution. They are not meant to be used for providing employment, better service conditions and profits only for some. In this task, both the capital and the labour are to act as the trustees of the said resources on behalf of the society and use them as such. They are not to be wasted or frittered away by strikes and lock-outs. Every dispute between the employer and the employee has, therefore, to take into consideration the third dimension, viz., the interests of the society as a whole, particularly the interest of those who are deprived of their legitimate basic economic rights and are more unfortunate than those in employment and management. The justness or otherwise of the action of the employer or the employee has, therefore, to be examined also on the anvil of the interests of the society which such action tends to affect. This is true of the action in both public and private sector. But more impressively so in the public sector. The management in the public sector is not a capitalist and the labour an exploited lot, Both are paid employees and owe their existence to the direct investment of public funds. Both are expected to represent public interests directly and have to promote them. (Para 9) (E) Industrial Disputes Act (14 of 1947), S.2(q), S.22, S.23, S.24, S.25, Sch.2, Item 5 - Wages for strike period - Deduction - Work struck for only some period of the day - Question whether strike was justified, not raised - Wages for whole day are liable to be deducted. (1990) 4 SCC 744, Rel. on. Wages - Deduction for strike period. (Para 12) Cases Referred : Chronological Paras (1990) 4 SCC 744 : (1990) 2 JT (SC) 339 (Approved) 1, 4, 5, 6, 7, 12 AIR 1978 SC 1489 : (1978) 3 SCC 155 : 1978 Lab IC 1379 1, 4, 5, 6, 8 AIR 1969 SC 998 : (1969) 1 SCR 931 : 1969 Lab IC 1396 1, 4, 5, 6, 8 AIR 1960 SC 219 : (1960) 2 SCR 1 5, 6 AIR 1960 SC 893 : (1960) 3 SCR 371 5 AIR 1960 SC 902 : (1960) 1 SCR 451 4, 5 Mr. Madhu Moolchandani, Advocate, for Appellants; Mr, Vijay Kumar Verma, Mr. Harinder Mohan Singh, Mr. S. R. Bhat, Mr. A.V. Rangam and Mr. Ambrish Kumar Advocates, for Respondents. * W.A. No. 26 of 1981, D/- 26-9-1968 (Mad). Judgement SAWANT, J. :- These appeals have been referred to the Constitution Bench in view of the apparent conflict of opinions expressed in three decisions of this Court - a three-Judge Bench decision in Management of Churakulam Tea Estate (P) Ltd. v. The Workmen, (1969) 1 SCR 931 : (AIR 1969 SC 998) and a two-Judge Bench decision in Crompton Greaves Ltd. v. Its Workmen, (1978) 3 SCC 155 : (AIR 1978 SC 1489) on the one hand, and a two-Judge Bench decision in Bank of India v. T. S. Kelawala, (1990) 4 SCC 744 on the other. The question is whether workmen who proceed on strike, whether legal or illegal, are entitled to wages for the period of strike? In the first two caess, viz., Churakulam Tea Estate and Crompton Greaves (supra), the view taken is that the strike must be both legal and justified to entitle the workmen to the wages for the period of strike whereas the latter decision in T.S.Kelawala (supra) has taken the view that whether the strike is legal or illegal, the employees are not entitled to wages for the period of strike. To keep the record straight, it must be mentioned at the very outset that in the latter case, viz., T.S. Kelawala (supra) the question whether the strike was justified or not, was not raised and, therefore, the further question whether is justified, was neither discussed nor answered. Secondly, the first two decisions, viz., Churakulam Tea Estate (AIR 1969 SC 998) and Cromption Greaves (AIR 1978 SC 1489) (supra) were not cited at the Bar while deciding the said case and hence there was no occasion to consider the said decisions there. The decisions were not cited probably because the question of the justifiability or otherwise of the strike did not fall for consideration. It is, however, apparent from the earlier two decisions, viz., Churakulam Tea Estate and Crompton Greaves (supra) that the view taken there is not that the employees are entitled to wages for the strike-period merely because the strike is legal. The view is that for such entitlement the strike has both to be legal and justified. In other words, if the strike is illegal but justified or if the strike is legal but unjustified, the employees would not be entitled to the wages for the strike-period. Since the question whether the employees are entitled to wages, if the strike is justified, did not fall for consideration in the latter case, viz., in T.S.Kelawala (1990) (4) SCC 744), there is, as stated in the beginning, only an apparent conflict in the decisions. 2. Before we deal with the question, it is necessary to refer to the facts in the individual appeals. C.A.No. 2710 of 1991 On 10th April, 1989, a memorandum of settlement was signed by the Indian Banks Association and the All India Bank Employees' Unions including the National Confederation of Bank Employees as the fifth bipartite settlement. The appellant-Bank and the respondent-State Bank Staff Union through their respective Federations were bound by the said settlement. In terms of clauses 8(d) and 25 of the memorandum of the said settlement, the appellant-Bank and the respondent-Staff Union had to discuss and settle certain service conditions. Pursuant to these discussions, three settlements were entered into between the parties on 9th June, 1989. These settlements were under S.2 (p) read with S.18(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act.") Under these settlements, the employees of the appellant-Bank were entitled to certain advantages over and above those provided under the All India Bipartite Settlement of 10th April, 1989. The said benefits were to be given to the employees retrospectively with effect from 1st November, 1989. It appears that the appellant-Bank did not immediately implement the said settlement. Hence, the employees, Federation sent telex message to the appellant-Bank on 22nd June, 1989 calling upon it to implement the same without further loss of time. The message also stated that the employees would be compelled to launch agitation for implementation of the settlement as a consequence of which the working of the Bank and the service to the customers would be affected. In response to this, the Bank in its reply dated 27th June, 1989 stated that it was required to obtain the Government's approval for granting the said extra benefits and that it was making efforts to obtain the Government's approval as soon as possible. Hence the employees' Federation should, in the meanwhile, bear it with. On 24th July, 1989, the employees 'Federation' again requested the Bank by telex of even date to implement the said settlement forthwith, this time, warning the Bank that in case of its failure to do so, the employee would observe a day's token strike after 8th August, 1989. The Bank's response to this message was the same as on the earlier occasion. On 18th August, 1989, the employees' Federation wrote to the Bank that the settlements signed were without any pre-condition that they were to be cleared by the Government and hence the Bank should implement the settlement without awaiting the Government's permission. The Federation also, on the same day, wrote to the Bank calling its attention to the provisions of Rule 58.4 of the Industrial Disputes (Central) Rules, 1957 (the 'Rules') and requesting it to forthwith forward copies of the settlements to the functionaries mentioned in the said Rule. By its reply of 23rd August, 1989, the Bank once again repeated its earlier stand that the Bank is required to obtain Government's approval for granting the said extra benefits and it was vigorously pursuing the matter with the Government for the purpose. It also informed the Federation that the Government was actively considering the proposal and an amicable solution would soon be reached and made a request to the employees' Federation to exercise restraint and bear with it so that their efforts with the Government may not be adversely affected, By another letter of the same date, the Bank informed the Federation that they would forward copies of the agreements in question to the concerned authorities as soon as the Government's approval regarding implementation of the agreement was received. The Federation by the letter of 1st September, 1989 complained to the Bank that the Bank had been indifferent in complying with the requirements of the said Rule 58.4 and hence the Federation itself had sent copies of the settlements to the concerned authorities, as required by the said Rule. 3. On the same day, i.e., 1st September 1989 the Federation issued a notice of strike demanding immediate implementation of all agreements / understandings reached between the parties on 10th April, 1989 and 9th June, 1989 and the payment of arrears of pay and allowances pursuant to them. As per the notice, the strike was proposed to be held on three different days beginning from 18th September, 1989. At this stage, the Deputy Chief Labour Commissioner and Conciliation Officer (Central), Bombay wrote both to the Bank and the Federation stating that he had received information that the workmen in the Bank through the employees' Federation had given a strike call for 18th September 1989. No formal strike notice in terms of S.22 of the Act had, however, been received by him. He further informed that he would be holding conciliation proceedings under Sec. 12 of the Act in the office of the Regional Labour Commissioner, Bombay on 14th September, 1989 and requested both to make it convenient to attend the same along with a statement of the case in terms of Rule 41(a) of the Rules. The conciliation proceedings were held on 14th September, 1989 and thereafter on 23rd September, 1989. On the latter date, the employees' Federation categorically stated that no dispute as such existed. The question was only of implementation of the agreements / understandings reached between the parties on 10 th April, 1989 and 9th June, 1989. However, the Federation agreed to desist from direct action if the Bank would give in writing that within a fixed time they will implement the agreements/ understandings and pay the arrears of wages etc. under them. The Bank's representatives stated that the Bank had to obtain prior approval of the Government for implementation of the settlements and as they were the matters with the Government for obtaining its concurrence, the employees should not resort to strike in the larger interests of the community. He also pleaded for some more time to examine the feasibility of resolving the matter satisfactorily. The conciliation proceedings were there-after adjourned to 26th September, 1989. On this date, the Bank's representatives informed that the Governments's approval had not till then been obtained, and prayed for time till 15th October, 1989. The next meeting was held on 27th September,1989. The Conciliation Officer found that there was no meeting ground and no settlement could be arrived at. However, he kept the conciliation proceedings alive by stating that in order to explore the possibility of bringing about an understanding in the matter, he would further hold discussions on 6th October, 1989. 4. On 1st October, 1989, the employees' Federation gave another notice of strike stating that the employees would strike work on 16th October, 1989 to protest against the inaction of the Bank in implementing the said agreements / settlements validly arrived at between the parties. In the meeting held on 6th @page-SC324 October, 1989, the Conciliation Officer discussed the notice of strike. It appears that in the meanwhile on 3rd October, 1989 the employees' Federation had filed Writ Petition No. 13764 of 1989 in the High Court for a writ of mandamus to the Bank to implement the three settlements dated 9th June, 1989. In that petition, the Federation had obtained an order of interim injunction on 6th October, 1989 restraining the Bank from giving effect to the earlier settlement dated 10th April, 1989 and directing it first to implement the settlements dated 9th June, 1989. It appears, further that the employees had in the meanwhile, disrupted normal work in the Bank and had resorted to gherao. The Bank brought these facts, viz., filing of the writ petition and the interim order passed therein as well as the disruption of the normal work and resort to gheraos by the employees, to the notice of the Conciliation Officer. The meeting before the Conciliation Officer which was fixed on 13th October, 1989 was adjourned to 17th October, 1989 on which date, it was found that there was no progress in the situation. It was on this date that the employees' Federation gave a letter to the Conciliation Officer requesting him to treat the conciliation proceedings as closed. However, even thereafter, the Conciliation Officer decided to keep the conciliation proceedings open to explore the possibility of resolving the matter amicably. On 12th October, 1989, the Bank issued a circular stating therein that if the employees went ahead with the strike on 16th October, 1989, the Management of the Bank would take necessary steps to safeguard the interests of the Bank and would deduct the salary for the days the employees would be on strike, on the principle of "no work, no pay". Inspite of the circular, the employees went on strike on 16th October, 1989 and filed a writ petition on 7th November, 1989 to quash the circular of 12th October, 1989 and to direct the Bank not to make any deduction of salary for the day of the strike. The said writ petition was admitted on 8th November, 1989 and an interim injunction was given by the High Court restraining the Bank from deducting the salary of the employees for 16th October, 1989. Before the High Court, it was not disputed that the Bank was a public utility service and as such Section 22 of the Act applied. It was the contention of the Bank that since under the provisions of sub-section (1)(d) of the said Section 22, the employees were prohibited from resorting to strike during the pendency of the conciliation proceedings and for seven days after the conclusion of such proceedings, and since admittedly the conciliation proceedings were pending to resolve an industrial dispute between the parties, the strike in question was illegal. The industrial dispute had arisen because while the Bank was required to take the approval of the Central Government for the settlements in question, the contention of the employees was that no such approval was necessary and there was no such condition incorporated in the settlements. This being an industrial dispute within the meaning of the Act, the conciliation proceedings were validly pending on the date of the strike. As against this, the contention on behalf of the employees was that there could be no valid conciliation proceedings as there was no industrial dispute. The settlements were already arrived at between the parties solemnly and there could be no further industrial dispute with regard to their implementation. Hence, the conciliation proceedings were non est. The provisions of Section 22 (1) (d) did not, therefore, come into play. The learned single Judge upheld the contention of the Bank and held that the strike was illegal, and relying upon the decision of this Court in T.S.Kelawala's case (1990(4) SCC 744) (supra), dismissed the writ petition of the employees upholding the circular under which the deduction of wages for the day of the strike was ordered. Against the said decision, the employees 'Federation preferred Letters Patent Appeal before the Division Bench of the High Court and the Division Bench by its impugned judgment reversed the decision of the learned single Judge by accepting the contention of the employees and negativing that of the Bank. The Division Bench in substance, held that the approval of the Central Government as a condition precedent to their implementation was not incorporated in the settlements nor was such approval necessary. Hence, there was no valid industrial dispute for which the conciliation proceedings could be held. Since the conciliation proceedings were invalid, the provisions of Section 22 (1) (d) did not apply. The Strike was, therefore, not illegal. The Court also held that the strike was, in the circumstances, justified since it was the Bank Management's unjustified attitude in not implementing the settlements, which was responsible for the strike. The Bench then relied upon two decisions of this court in Churakulam Tea Estate, (AIR 1969 SC 998) and Crompton Greaves (AIR 1978 SC 1489) cases (supra) and held that since the strike was legal and justified, no deduction of wages for the strike day could be made from the salaries of the employees. The Bench thus allowed the appeal and quashed the circular of the 12th October, 1989. Since the matter has been referred to the larger Bench on account of the seeming difference of opinion expressed in T.S. Kelawala, (1990 (4) SCC 744) (supra) and the earlier decisions in Churakulam Tea Estate, (AIR 1969 SC 998) and Crompton Greaves, (AIR 1978 SC 1489) (supra), we will first discuss the facts and the view taken in the earlier two decisions. In Churakulam Tea Estate (supra), which is a decision of three learned Judges, the facts were that the appellant-Tea Estate which was a member of the Planter's Association of Kerala (South India), from time to time since 1946, used to enter into agreements with the representatives of the workmen, for payment of bonus. In respect of the years, 1957, 1958 and 1959, there was a settlement dated 25th January, 1960 between in Managements of the various plantations and their workers relating to payment of bonus. The agreement provided that it would not apply to the appellant-Tea Estate since it had not earned any profit during the said years. On the ground that it was not a party to the agreement in question, the appellant declined to pay any bonus for the said three years. The workmen started agitation claiming bonus. The conciliation proceedings in that regard failed. All 27 workers in the appellant's factory struck work on the afternoon of 30th November, 1961. The management declined to pay wages for the day of the strike to the said factory workers. The management also laid off without compensation all the workers of the estate from 1st December, 1961 to 8th December, 1961. By its order dated 24th May, 1962, the State Government referred to the Industrial Tribunal three questions for adjudication one of which was whether the factory workmen were entitled to wages for the day of the strike. The Tribunal took the view that the strike was both legal and justified and hence directed the appellant to pay wages. This Court noted that at the relevant time, conciliation proceeding relating to the claim for bonus had failed and the question of referring the dispute for adjudication to the Tribunal was under consideration of the Government. The Labour Minister had called for a conference of the representatives of the management and workmen and the conference had been fixed on 23rd November, 1961. The representatives of the workmen attended the conference while the management boycotted the same. It was the case of the workmen that it was to protest against the recalcitrant attituded of the management in not attending the conference that the workers had gone on strike from 1 P.M. on the day in question. On behalf of the management, the provisions of Section 23 (a) of the Act were pressed into service to contend that the strike resorted to by the factory workers was illegal. The said provisions read as follows: "23. No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out. (a) during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings; x x x x x x x x x x x x x x This Court noted that there were no conciliation proceedings pending on 30th November, 1961 when the factory workers re- sorted to strike and hence the strike was not hit by the aforesaid provision. The Court further observed that if the strike was hit by Section 23(a), it would be illegal under Section 24(1)(i) of the Act. Since, however, it was not so hit, it followed that the strike in this case could not be considered to be illegal. We may quote the exact observations of the Court which are as follows: "... Admittedly there were no conciliation proceedings pending before such a Board on November 30, 1961, the day on which the factory workers went on strike and hence the strike does not come under S.23(a) No doubt if the strike, in this case, is hit by S. 23 (a), it will be illegal under S.24(1)(i) of the Act; but we have already held that it does not come under S. 23 (a) of the Act, it follows that the strike, in this case, cannot be considered to be illegal." Alternatively, it was contended on behalf of the management that in any event, the strike in question was thoroughly unjustified. It was the management's case that it had participated in the conciliation proceedings and when those proceedings failed, the question of referring the dispute was pending before the Government. The workmen could have made a request to the Government to refer the dispute for adjudication and, therefore, the strike could not be justified. Support for this was also sought by the management from the observations made by this Court in Management of Chandramalai Estate, Ernakulam v. Its workmen, (1960) 3SCR 451 : (AIR 1960 SC 902). In that case, this Court had deprecated the conduct of workmen going on strike without waiting for a reasonable time to know the result of the report of the Conciliation Officer. This Court held that the said decision did not support the Management since the strike was not directly in connection with the demand for bonus but was as a protest against the unreasonable attitude of the management in boycotting the conference held on 23rd November, 1961 by the Labour Minister of the State. Hence, this Court held that the strike was not unjustified. In view of the fact that there was no breach of Section 23 (a) and in view also of the fact that in the aforesaid circumstances, the strike was not unjustified, the Court held that the factory workers were entitled for wages for that day and the Tribunal's award in that behalf was justified. In Cromption Greaves Ltd., (AIR 1978 SC 1489) (supra), the facts were that on 27th December, 1967, the appellant-management intimated the workers' Union its decision to reduce the strength of the workmen in its branch at Calcutta on the ground of severe recession in business. Apprehending mass retrenchment of the workmen, the Union sought the intervention of the Minister in charge of Labour and the Labour Commissioner, in the matter. Thereupon, the Assistant Labour Commissioner arranged a joint conference of the representatives of the Union and of the Company in his office, with a view to explore the avenues for an amicable settlement. Two conferences were accordingly held on 5th and 9th January, 1968 in which both the parties participated. As a result of these conferences the Company agreed to hold talks with the representatives of the Union at its Calcutta office on the morning of 10th January, 1968. The talk did take place but no agreement could be arrived at. The Assistant Labour Commissioner continued to use his good offices to bring about an amicable settlement though another joint conference which was scheduled for 12th January, 1968. On the afternoon of 10th January, 1968, the Company without informing the Labour Commissioner that it was proceeding to implement its proposed scheme of retrenchment, put up a notice of retrenching 93 of the workmen in its Calcutta Office. Treating this step as a serious one demanding urgent attention and immediate action, the workmen resorted to strike w.e.f. 11th January, 1968 after giving notice to the appellant and the Labour Directorate and continued the same up to 26th June, 1968. In the meantime, the industrial dispute in relation to the retrenchment of the workmen was referred by the State Government to the Industrial Tribunal on 1st March, 1968. By a subsequent order dated 13th December, 1968, the State Government also referred the issue of the workmen's entitlement to wages for the strike-period, for adjudication to the Industrial Tribunal. The Industrial Tribunal accepted the workmen's demand for wages for the period from 11th January, 1968 to the end of February, 1968 but rejected their demand for the remaining period of the strike observing that "the redress for retrenchment having been sought by the Union itself through the Tribunal, there remained no jurisdiction for the workmen to continue the strike." In the appeal filed by the management against the award of the Tribunal in this Court, the only question that fell for determination was whether the award of the Tribunal granting the striking workmen wages for the period from 11th January, 1968 to 29th February, 1968 was valid. In paragraph 4 of the judgment, this Court observed as follows (AIR 1978 SC 1489): "4. It is well settled that in order to entitle the workmen to wages for the period of strike, the strike should be legal as well as justified. A strike is legal if it does not violate any provision of the statute. Again, a strike cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether a particular strike was justified or not is a question of fact which has to be judged in the light of the facts and circumstances of each case. It is also well settled that the use of force or violence or acts of sabotage resorted to by the workmen during a strike disentitled them to wages for the strike-period." After observing thus, the Court formulated the following two questions, viz., (1) whether the strike in question was illegal or unjustified? and (2) whether the workmen resorted to force or violence during the said period i.e., 11th January, 1968 to 29th February, 1968? While answering the first question, the Court pointed out that no specific provision of law has been brought to its notice which rendered the strike illegal during the period under consideration. The strike could also not be said to be unjustified as before the conclusion of the talks for conciliation which were going on through the instrumentality of the Assistant Labour Commissioner, the Company had retrenched as many as 93 of its workmen without even intimating the Labour Commissioner that it was carrying out its proposed plan of effecting retrenchment of the workmen. Hence, the Court answered the first question in the negative. In other words, the Court held that the strike was neither illegal nor unjustified. On the second question also, the Court held that there was no cogent and disinterested evidence to substantiate the charge that the striking workmen had resorted to force or violence. That was also the finding of the Tribunal and hence the Court held that the wages for the strike-period could not be denied to the workmen on that ground as well. It will thus be apparent from this decision that on the facts, it was established that there was neither a violation of a provision of any statute to render the strike illegal nor in the circumstances it could be held that the strike was unjustified. On the other hand, it was the management by taking a precipitatory action while the conciliation proceedings were still pending, which had given a cause to the workmen to go on strike. 5. We may now refer to the other relevant decisions on the subject. In Management of Kairbeta Estate, Kotagiri v. Rajamanickam, (1960) 3 SCR 371: (AIR 1960 SC 893), this Court observed as follows (para 7 of AIR): " ... Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock-out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. In the struggle between capital and labour, the weapon of strike is available to labour and is often used by it, so is the weapon of lock-out available to the employer and can be used by him. The use of both the weapons by the respective parties must, however, be subject to the relevant provisions of the Act. Chapter V which deals with strikes and lock-outs clearly brings out the antithesis between the two weapons and the limitations subject to which both of them must be exercised." In Chandramalai Estate, (AIR 1960 SC 902) (supra), the facts were that on 9th August, 1955, the workers' Union submitted to the management a charter of fifteen demands. Though the Management agreed to fulfil some of the demands, the principal demands remained unsatisfied. On 29th August, 1955, the Labour Officer, Trichur, who had in the meantime been apprised of the situation both by the management and the workers' Union, advised mutual negotiations between the representatives of the management and the workers. Ultimately, the matter was recommended by the Labour Officer to the Conciliation Officer, Trichur for conciliation. The Conciliation Officer's efforts proved in vian. The last meeting for conciliation was held on 30th November, 1955. On the following day, the Union gave a strike notice and the workmen went on strike w.e.f. 9th December, 1955. The strike ended on 5th January, 1956. Prior to this, on 5th January, 1956, the Government had referred the dispute with regard to five of the demands for adjudication to the Industrial Trubunal, Trivandrum. Thereafter, by its order dated 11th June, 1956, the dispute was withdrawn from the Trivandrum Tribunal and referred to the Industrial Tribunal, Ernakulam. By its award dated 19th October, 1957, the Tribunal granted all the demands of the workmen. The appeal before this Court was filed by the management on three of the demands. One of the issues was "are the workers entitled to get wages for the period of the strike?" On this issue, before the Tribunal, the workmen had pleaded that the strike was justified while the management contended that strike was both illegal and unjustified. The Tribunal had recorded a finding that both the parties were to blame for the strike and ordered the management to pay the workers 50% of their total emoluments for the strike-period. This Court while dealing with the said question, held that it was clear that on 30th November, 1955, the Union knew that the conciliation attempts had failed and the next step would be the report by the Conciliation Officer to the Government. It would, therefore, have been proper and reasonable for the workers' Union to address the Government and request that a reference be made to the Industrial Tribunal. The Union did not choose to wait and after giving notice to the management on 1st December, 1955 that it had decided to strike work from 9th December, 1955, actually started the strike from that date. The Court also held that there was nothing in the nature of the demands made by the Union to justify the hasty action. The Court then observed as under (AIR 1960 SC 902, para 7): "... The main demands of the Union were about the cumbly allowance and the price of rice. As regards the cumbly allowance they had said nothing since 1949 when it was first stopped till the Union raised it on August 9, 1995. The grievance for collection of excess price of rice was more recent but even so it was not of such an urgent nature that the interest of labour would have suffered irreparably if the procedure prescribed by law for settlement of such disputes through Industrial Tribunals was resorted to. After all it is not the employer only who suffers if production is stopped by strikes. While on the one hand, it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking the Government to make a reference. In such cases, strike even before such a request has been made may well be justified. The present is not however one of such cases. In our opinion, the workmen might well have waited for some time after conciliation efforts failed before starting a strike and in the meantime to have asked the Government to make a reference. They did not wait at all. The conciliation efforts failed on November 30, 1955, and on the very next day the Union made its decision on strike and sent the notice of the intended strike from the 9th December, 1955, and on the 9th December, 1955, the workmen actually struck work. The Government appear to have acted quickly and referred the dispute on January 3, 1956. It was after this that the strike was called off. We are unable to see how the strike in such circumstances could be held to be justified." In India General Navigation and Railway Co. Ltd., v. Their Workmen, (1960) 2 SCR 1 : (AIR 1960 SC 219) this Court while dealing with the issues raised there, observed as follows (at pp. 227-28 of AIR) : "... In the first place, it is a little difficult to understand how a strike in respect of a public utility service, which clearly, illegal, could at the same time be characterized as "perfectly justified". These two conclusions cannot in law co-exist. The law has made a distinction between a strike which is illegal and one which is not, but it has not made any distinction between an illegal strike which may be said to be justifiable and one which is not justifiable. This distinction is not warranted by the Act, and is wholly misconceived, specially in the case of employees in a public utility service. Every one participating in an illegal strike, is liable to be dealt with departmentally, of course, subject to the action of the Department being questioned before an Industrial Tribunal, but it is not permissible to characterize an illegal strike as justifiable. The only question of practical importance which may arise in the case of an illegal strike, would be the kind or quantum of punishment, and that, of course, has to be modulated in accordance with the facts and circumstances of each case. Therefore. the tendency to condone what has been declared to be illegal by statute, must be deprecated, and it must be clearly understood by those who take part in an illegal strike that thereby they make themselves liable to be dealt with by their employers. There may be reasons for distinguishing the case of those who may have acted as mere dumb driven cattle from those who have taken an active part in fomenting the trouble and instigating workmen to join such a strike, or have taken recourse to violence." We may now refer to the decision of this Court in the I.S.Kelawala case (1990(4) SCC 744) (supra) where allegedly a different view has been taken from the one taken in the aforesaid earlier decisions and in particular in Churakulam Tea Estate, (AIR 1969 SC 998) and Crompton Greaves, (AIR 1978 SC 1489) cases (supra). The facts in the case were that some demands for wage revision made by the employees of all the Banks were pending at the relevant time and in support of the said demands, the All India Bank Employees Association, gave a call for a country-wide strike. The appellant-Bank issued a circular on 23rd September, 1977 to all its branch managers and agents to deduct wages of the employees who participate in the strike for the days they go on strike. The employees' Union gave a call for a four-hour-strike on 29th December, 1977. Hence, the Bank on 27th December, 1977 issued a circular warning the employees that they would be committing a breach of their contract of service if they participated in the strike and that they would not be entitled to draw the salary for the full day if they do so and consequently they need not report for work for the rest of the working hours of that day. Notwithstanding it, the employees went on four hour-strike from the beginning of the working hours on 29th December,1977. There was no dispute that banking hours for the public covered the said four hours. The employees, however resumed work on that day after the strike hours and the Bank did not prevent them from doing so. On 16th January, 1978, the Bank issued a circular directing its managers and agents to deduct the full day's salary of those of the employees who had participated in the strike. The employees' Union filed a writ petition in the High Court for quashing the circular. The petition was allowed. The Bank's Letters Patent Appeal in the High Court also came to be dismissed. The Bank preferred an appeal against the said decision of the High Court. On these facts, the only questions relevant for our present purpose which were raised in the case before the High Court as well as in this Court were whether the Bank was entitled to deduct wages of workmen for the period of strike and further whether the Bank was entitled to deduct wages for the whole day or pro rata only for the hours for which the @page-SC330 employees had struck work. The incidental questions were whether the contract of employment was divisible and whether when the service rules and the regulations did not provide for deduction of wages, the Bank could do so by an administrative circular. We are not concerned with the incidental questions in this case. What is necessary to remember is the question whether the strike was legal or illegal and whether it was justified or unjustified was not raised either before the High Court or in this Court. The only question debated was whether, even assuming that the strike was legal, the Bank was entitled to deduct wages as it purported to do under the circular in question. It is while answering this question that this Court held that the legality or illegality of the strike had nothing to do with the liability for the deduction of the wages. Even if the strike is legal, it does not save the workers from losing the salary for the period of the strike. It only saves them from disciplinary action, since the Act impliedly recognises the right to strike as a legitimate weapon in the hands of the workmen, However, this weapon is circumscribed by the provisions of the Act and the striking of work in contravention of the said provisions makes it illegal. The illegal strike is a misconduct which invites disciplinary action while the legal strike does not do so. However, both legal as well as illegal strike invite deduction of wages on the principle that whoever voluntarily refrains from doing work when it is offered to him, is not entitled for payment for work he has not done. In other words, the Court upheld the dictum 'no work no pay'. Since it was not the case of the employees that the strike was justified, neither arguments were advanced on that basis nor were the aforesaid earlier decisions cited before the Court. 6. There is, therefore, nothing in the decisions of this Court in Churakulam Tea Estate, (AIR 1969 SC 998) and Crompton Greaves (AIR 1978 SC 1489) cases (supra) or the other earlier decisions cited above which is contrary to the view taken in T.S.Kelawala, (1990(4) SCC 744). What is held in the said decisions is that to entitle the workmen to the wages for the strike-period, the strike has both to be legal and justified. In other words, if the strike is only legal but not justified or if the strike is illegal though justified, the workers are not entitled to the wages for the strike-period. In fact, in India General Navigation Case (AIR 1960 SC 219) (supra), the Court has taken the view that a strike which is illegal cannot, at the same time be justifiable. According to that view, in all cases of illegal strike, the employer is entitled to deduct wages for the period of strike and also to take disciplinary action. This is particularly so in public utility services. 7. We, therefore, hold endorsing the view taken in T.S.Kelawala, (1990 (4) SCC 744) that the workers are not entitled to wages for the strike-period even if the strike is legal. To be entitled to the wages for the strike-period , the strike has to be both legal and justified. Whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Under the Act, the question has to be decided by the industrial adjudicator, it being an industrial dispute within the meaning of the Act. 8. In the present case, the High Court relying on Churakulam Tea Estate, (AIR 1969 SC 998) and Crompton Greaves, (AIR 1978 SC 1489) cases, has held that the strike was both legal and justified. It was legal according to the High Court because the reference to the conciliation proceedings was itself illegal and, therefore, in the eye of the law, no conciliation proceedings were pending when the employees struck work. The strike was, further justified according to the High Court because the Bank had taken a recalcitrant attitude and had insisted upon obtaining the approval of the Central Government for the implementation of the agreements in question, when no such approval was either stipulated in the agreements or required by law. We are afraid that the High Court has exceeded its jurisdiction in recording the said findings. It is the industrial adjudicator who had the primary jurisdiction to give its findings on both the said issues. Whether the strike was legal or illegal and justified or unjustified, were issues which fell for decision within the exclusive domain of the industrial adjudicator under the Act and it was not primarily for the High Court to give its findings on the said issues. The said issues had to be decided by taking the necessary evidence on the subject. We find nothing in the decision of the High Court to enlighten us as to whether notwithstanding the fact that the agreements in question had not stipulated that their implementation was dependent upon the approval of the Central Government; in fact, the Bank was not duty bound in law to take such approval. If it was obligatory for the Bank to do so, then it mattered very little whether the agreements in question incorporated such a stipulation or not. If the approval was necessary, then there did exist a valid industrial dispute between the parties and the conciliation proceedings could not be said to be illegal. It must be noted in this connection that the said agreements provided for benefits over and above the benefits which were available to the employees of the other Banks. Admittedly, the employees struck work when the conciliation proceedings were still pending. Further, the question whether the implementation of the said agreements was of such an urgent nature as could not have waited the outcome of the conciliation proceedings and if necessary, of the adjudication proceedings under the Act, was also a matter which had to be decided by the industrial adjudicator to determine the justifiability or unjustifiablility of the strike. It has to be remembered in this connection that a strike may be illegal if it contravenes the provisions of Sections 22.23 or 24 of the Act or of any other law or of the terms of employment depending upon the facts of each case. Similarly, a strike may be justified or unjustified depending upon several factors such as the service conditions of the work men , the nature of demands of the workmen, the cause which led to the strike, the urgency of the cause or the demands of the workmen, the reason for not resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules and regulations etc. An enquiry into these issues is essentially an enquiry into the facts which in some cases may require taking of oral and documentary evidence. Hence such an enquiry has to be conducted by the machinery which is primarily invested with the jurisdiction and duty to investigate and resolve the dispute. The machinery has to come to its finding on the said issue by examining all the pros and cons of the dispute as any other dispute between the employer and the employee. Shri Garg appearing for the employees did not dispute the proposition of law that notwithstanding the fact that the strike is legal, unless it is justified, the employees cannot claim wages for the strike period. However, he contended that on the facts of the present case, the strike was both legal and justified. We do not propose to decide the said issues since the proper forum for the decision on the said issues in the present case is the adjudicator under the Act. 9. The strike as a weapon was evolved by the workers as a form of direct action during their long struggle with the employers. It is essentially a weapon of last resort being an abnormal aspect of the employer-employee relationship and involves withdrawal of labour disrupting production, services and the running of the enterprise. It is a use by the labour of their economic power to bring the employer to see and meet their viewpoint over the dispute between them. In addition to the total cessation of work, it takes various forms such as working to rule, go slow, refusal to work overtime when it is compulsory and a part of the contract of employment, "irritation strike" or staying at work but deliberately doing everything wrong, "running-sore strike", i.e., disobeying the lawful order, sit-down, stay- in and lie-down strike etc. The cessation or stoppage of work whether by the employees or by the employer is detrimental to the production and economy and to the well-being of the society as whole. It is for this reason that the industrial legislation while not denying the right of workmen to strike, has tried to regulate it alongwith the right of the employer to lock-out and has also provided a machinery for peaceful investigation, settlement, arbitration and adjudication of the disputes between them. Where such industrial legislation is not applicable, the contract of employment and the service rules and regulations many times, provide for a suitable machinery for resolution of the disputes. When the law or the contract of employment or the service rules provide for a machinery to resolve the dispute, resort to strike or lock-out as a direct action is prima facie unjustified. This is, particularly so when the provisions of the law or of the contract or of the service rules in that behalf are breached. For then, the action is also illegal. The question whether a strike or lock-out is legal or illegal does not present much difficulty for resolution since all that is required to be examined to answer the question is whether there has been a breach of the relevant provisions. However, whether the action is justified or unjustified has to be examined by taking into consideration various factors some of which are indicated earlier. In almost all such cases, the prominent question that arises is whether the dispute was of such a nature that its solution could not brook delay and await resolution by the mechanism provided under the law or the contract or the service rules. The strike or lock-out is not to be resorted to because the concerned party has a superior bargaining power or the requisite economic muscle to compel the other party to accept its demand. Such indiscriminate use of power is nothing but assertion of rule of "might is right". Its consequences are lawlessness, anarchy and chaos in the economic activities which are most vital and fundamental to the survival of the society. Such action, when the legal machinery is available to resolve the dispute, may be hard to justify. This will be particularly so when it is resorted to by the section of the society which can well await the resolution of the dispute by the machinery provided for the same. The strike or lock-out as a weapon has to be used sparingly for redressal of urgent and pressing grievances when no means are available or when available means have failed, to resolve it. It has to be resorted to, to compel the other party to dispute to see the justness of the demand. It is not to be utilised to work hardship to the society at large so as to strengthen the bargaining power. It is for this reason that industrial legislation such as the Act places additional restrictions on strikes and lock-outs in public utility services. With the emergence of the organised labour, particularly in public undertakings and public utility services, the old balance of economic power between the management and the workmen has undergone a qualitative change in such undertakings. Today, the organised labour in these institutions has acquired even the power of holding the society at large to ransom, by withholding labour and thereby compelling the managements to give in on their demands whether reasonable or unreasonable. What is forgotten many times, is that as against the employment and the service conditions available to the organised labour in these undertakings, there are millions who are either unemployed, underemployed or employed on less than statutorily minimum remuneration. The employment that workmen get and the profits that the employers earn are both generated by the utilisation of the resources of the society in one form or the other whether it is land, water, electricity or money which flows either as share capital, loans from financial institutions or subsidies and exemptions from the Governments. The resources are to be used for the well-being of all by generating more employment and production and ensuring equitable distribution. They are not meant to be used for providing employment, better service conditions and profits only for some. In this task, both the capital and labour are to act as the trustees of the said resources on behalf of the society and use them as such. They are not to be wasted or frittered away by strikes and lock-outs. Every dispute between the employer and the employee has, therefore, to take into consideration the third dimension, viz., the interests of the society as a whole, particularly the interest of those who are deprived of their legitimate basic economic rights and are more unfortunate than those in employment and management. The justness or otherwise of the action of the employer or the employee has, therefore, to be examined also on the anvil of the interests of the society which such action tends to affect. This is true of the action in both public and private sector. But more imperatively so in the public sector. The management in the public sector is not a capitalist and the labour an exploited lot. Both are paid employees and owe their existence to the direct investment of public funds. Both are expected to represent public interests directly and have to promote them. 10. We are, therefore, more than satisfied that the High Court in the present case had erred in recording its findings on both the counts, viz., the legality and justifiability, by assuming jurisdiction which was properly vested in the industrial adjudicator. The impugned order of the High Court has, therefore, to be set aside. 11. Hence we allow the appeal since the dispute has been pending since 1989,by exercising our power under Article 142 of the Constitution, we direct the Central Government to refer the dispute with regard to the deduction of wages for adjudication to the appropriate authority under the Act within eight weeks from today. The appeal is allowed accordingly with no order as to costs. C.A.No.2689of 1989 and C.A.Nos.2690-92of1989 12. In these two matters, arising out of a common judgment of the High Court, the question involved was materially different, viz, whether when the employees struck work only for some hours of the day, their salary for the whole day could be deducted. As in the case of T. S. Kelawala, (1990 (4) SCC 744) (supra), in this case also the question whether the strike was justified or not was not raised. No argument has also been advanced on behalf of the employees before us on the said issue. In the circumstances, the law laid down by this Court in T. S. Kelawala, with which we concur, will be applicable. The wages of the employees for the whole day in question, i.e., 29th December, 1977 are liable to be deducted. The appeals are, therefore, allowed and the impugned decision of the High Court is set aside. There will, however, be no order as to costs. Appeals allowed.
AIR 1998 SUPREME COURT 2456 "Indian Oil Corporation Ltd. v. Chief Inspector of Factories" (From : (1997) 1 Cur LR 282 (Patna)) G.T. NANAVATI AND S.P. KURDUKAR, JJ. Civil Appeal No. 3237 of 1998 with Civil Appeal No. 3247 of 1998 (arising out of S. L. P. (C) Nos. 5167 with 5215 of 1997), D/- 14-7-1998. Indian Oil Corporation Ltd. , Appellant v. The Chief Inspector of Factories and others, Respondents. WITH Indian Oil Corporation Ltd., Appellant v. The Labour Commissioner and others, Respondents. Factories Act (63 of 1948), S.2(n) Proviso (2) (ii) (as amended by Act (20 of 1987)) - Factory of Indian Oil Corporation (Govt. owned Company) - 'Deemed occupier' of - Who is - Whether any of its Director or person appointed by Govt. - Ultimate control over all affairs of Corporation including opening and running of factories, is with Central Govt. - Person other than Director appointed by Central Govt. to manager affairs of factories shall be deemed to be the occupier. CWJC No. 443 of 1991, D/- 29-11-1996 (Patna), Reversed. In case of Indian Oil Corporation which is Govt. Company and which owns factories for establishing new storage unit, it is open to Central Govt. to nominate any person other than Director as the occupier of Factory. For the purpose of Section 2 (n) what is to be seen is who has the 'ultimate control' over the affairs of the factory. It is true that Indian Oil Corporation is a legal entity, has a separate and independent existence of its own and right to manage the affairs of Corporation including the rights to set up and run the factories vests in Board of Directors, yet, relevant provisions regarding establishment of the Corporation and its working leave no doubt that the ultimate control over all the affairs of the Corporation, including opening and running of factories, is with the Central Government. Acting through the Corporation is only a method employed by the Central Government for running its petroleum industry. In the context of Section 2 (n) it will have to be held that all the activities of the Corporation are really carried on by the Central Government with a corporate mask. As the factories run by the Indian Oil Corporation are effectively and really owned and controlled by the Central Government they fall within the purview of clause (iii) and not clause (ii) of the first proviso to Section 2 (n). The persons appointed by the Central Government to manage the affairs of the factories shall be deemed to be the occupiers of those factories for the purposes of Section 2 (n) of the Factories Act. (Paras 14, 18) Ordinarily, for running the factories owned or controlled by the Central Government or any State Government, or any local authority, a person or persons would be appointed by it to manage the affairs of the factory, because the Government or the local authority as a whole would not run the factory. Therefore, the legislature appears to have provided that in case of a factory owned or controlled by the Central Government, the State Government or the local authority the person or persons appointed to manage the affairs of the factory by the Central Government, State Government or the local authority, as the case may be, shall be deemed to be the occupier. Therefore, if it is a case of a factory in fact and in reality owned or controlled by the Central Government or the State Government or any local authority then in case of such a factory the person or persons appointed to manage the affairs of the factory shall have to be deemed to be the occupier, even though for better management of such a factory or factories a corporate form is adopted by the government. While making the amendment in 1987 in Section 2 (n) and deleting Section 100 which was governing provision at the same time the Legislature made the proviso to sub-section (2) of Section 100 an independent proviso to Section 2 (n). That also clearly indicates the intention of the Legislature that it wanted to make a separate provision for deeming who should be the occupier of a government factory. CWJC No. 443 of 1991 D/- 29-11-1996 (Patna), Reversed. (Paras 16, 17) Cases Referred : Chronological Paras (1996) 6 SCC 665 : (1996) 9 JT (SC) 27 4, 5, 9, 13 AIR 1990 SC 1031 : (1990) 3 SCC 752 12 AIR 1981 SC 212 : (1981) 1 SCC 449 11, 15 AIR 1962 SC 1351 13 Ashok Desai, Attorney General, Avijit Chaudhary, Sr. Advocate, A. K. Dhar, Ms. Deepti Choudhary, Ms. Sangeeta Mandal, B. B. Singh, Ms. Abha R. Sharma, Ms. Anil Katiyar, Advocates with them, for the appearing parties. Judgement NANAVATI, J. :- Leave granted. Heard learned counsel for the parties. 2. A short but an interesting question of law arises for consideration in these appeals. The question is : who is to be deemed 'occupier' of a factory of a government company incorporated under the Indian Companies Act ? If the government company is to be treated like any other company then according to clause (ii) of the first proviso to Section 2 (n) of the Factories Act, 1948 any one of the directors of that company is deemed to be the occupier, but, if its factory is considered as a factory owned or controlled by the Government as provided by clause (iii) of the proviso the person appointed to manage the affairs of the factory by the Government is to be deemed (to be) the occupier. 3. The appellant, Indian Oil Corporation Limited, is a government company as defined by Section 617 of the Companies Act. It is almost wholly owned and controlled by the Government. It is, inter alia, engaged in the supply and distribution of petroleum and petroleum products including L. P. G. In order to ensure an effective and efficient supply system it is required to establish and maintain storage facilities at many places in the country. At Namkum, in Ranchi District, it already had large storage facility. With the object of increasing storage capacity at Namkum it established a new storage unit in 1992 after obtaining approval of the Central Government. As storage facilities are also covered by the definition of 'factory' as defined by the Factories Act, the Depot Manager posted at the Namkum Depot made an application on 10-4-92 for obtaining a licence for the new unit. He also made an application on 30-12-91 for renewal of the licence of the existing unit. While granting the licence earlier, for the existing unit, the Inspector of Factories had recognized the Depot Manager as the 'occupier' and the occupancy certificate etc. were issued in his name. But this time, the new Inspector of Factories by his letter dated 28-4-92 refused to grant the licence showing Depot Manager as the occupier, on the ground that Indian Oil Corporation is a company and in case of a company any one of the directors only can be deemed to be the occupier. He directed the appellant to submit proper applications duly signed by one of the directors of the company. In view of this refusal the appellant filed C. W. J. C. No. 443 of 1991 in the Patna High Court. On 11-5-92 the Corporation wrote to the Ministry of Petroleum and Natural Gas apprising it of the stand taken by the Inspector of Factories at Ranchi and seeking its guidance in the matter. On 26-5-92 the Inspector of Factories passed an order granting permission to the Corporation to start pumping of oil and to do other allied processes in its new unit at Namkum on certain conditions and on temporary basis till the disposal of the said writ petition. In that order also he reiterated that he would recognise only the Board of Directors of the Corporation in general and Director (Marketing) in particular as the occupier of the factory and not the local Depot Manager. On 2-7-92 the Government of India, in the Ministry of Petroleum and Natural Gas, wrote to the Chief Inspector of Factories that the Ministry had already issued notifications declaring the unit incharge as the occupier for the purpose of the Act. He was accordingly advised to recognise the officer incharge of the concerned depot as the occupier of that factory. Rejecting this request the Inspector of Factories reiterated the stand taken by him and refused to recognise the officer incharge as the occupier. Thereupon the Corporation filed a more comprehensive petition, C. W. J. C. No. 2456 of 1992 challenging the action of the Inspector of Factories. 4. Before the High Court two questions were raised on behalf of the appellant. One was whether in the case of a company one of the directors of the company only can be recognised as an occupier of the factory owned by it and the second was whether clause (iii) would apply to the factories of the Corporation and it is open to the Central Government to nominate any person other than the director as the occupier. Following the decision of this Court in J. K. Industries Limited v. The Chief Inspector of Factories and Boilers, (1996) 6 SCC 665, wherein it is held that in the case of a company, which owns a factory, it is only one of the directors of the company who can be notified as the occupier of the factory for the purposes of the Factories Act and the company cannot nominate any other employee as the occupier of the factory, the High Court answered the first question accordingly. In view of this decision the learned Attorney General appearing for the Corporation has not raised that point before us. On the second point, the High Court held that proviso (ii) to Section 2 (n) would apply to the storage depots at Namkun. It gate the following three reasons for taking that view : (1) The storage depots are owned by the company and not by the Central Government, though the company itself is owned, to a very large extent by the Central Government, (2) proviso (ii) to Section 2 (n) is applicable to all the companies as it does not make any distinction between a private company and a Government owned company, and (3) the Depot Manager has not been appointed by the Central Government but by the company. It, therefore, dismissed both the petitions. 5. Pressing only the second point the learned Attorney General submitted that though Indian Oil Corporation is a Government company and, therefore, a company as contemplated by clause (ii) of the proviso to Section 2(n) its factories would properly fall within the purview of clause (iii) inasmuch as the Corporation is in reality owned by the Central Government and almost all its affairs, except the day to day affairs, are controlled by the Central Government. He submitted that 91. 5 per cent of its share capital is held by the Government, 5 per cent by its employees and the rest by the financial institutions. The Government officers acting for and on behalf of the President, had, as initial subscribers, applied for the formation and incorporation of the company. The articles of association disclose that the Central Government has all pervasive control as regards increase or reduction of the capital of the corporation, its borrowing powers, appointment and removal of its Chairman and directors, powers of its directors and working of the corporation itself. Under Article 144 the President has been given the power to call for any return accounts and other information with respect to the papers and activities of the company and to issue such directives or instructions as may be considered necessary in regard to the financing, conduct of business and affairs of the corporation. He also drew our attention to Section 2(n) of the Act and submitted that the main part of the definition of the word "occupier" itself makes it clear that the person who has the ultimate control over the affairs of the factory is to be regarded as the occupier of the factory. He submitted that obviously in case of a company, though it does not ordinarily look after day to day affairs of its factories, the ultimate control is that of the company and, therefore, the directors in whom the power to manage the affairs of the company vest are deemed to be the occupier of the factory. He further submitted that if the ultimate control is the litmus test for finding out who should be regarded as occupier of the factory, as held by this Court in the case of J. K. Industries (1996 (6) SCC 665) (supra), in the case of the appellant - corporation it will have to be held that the ultimate control over the affairs of all the factories of the Corporation is really of the Central Government, and, therefore, all the factories of the Corporation should be regarded as factories owned and controlled by the Central Government. As there is a special provision governing factories owned or controlled by the Central Government the general provision made with respect (to) the companies, will not apply. 6. On the other hand, the learned Counsel for the contesting respondents supported the judgment of the High court on the first two grounds given by it and further contended that on a correct and harmonious interpretation of clauses (ii) and (iii) of the first proviso to Section 2(n) it should be held that clause (iii) applies only to those factories which are run by the Government departmentally. He submitted that the appellant Corporation is just like any other company, has its own share capital, has a Board of Directors in whom the power to manage the affairs of the company vests and profit and loss made by it would be its own. Thus it is not merely a separate legal entity but is quite independent and different from the Government. He also submitted that though the Government has vast powers to control the affairs of the Corporation yet the factories of the Corporation are run by the Corporation and its employees and not by the concerned Government department and the employees working therein. 7. Section 2(n) of the Act which defines the word 'occupier' reads as under : "2(n) 'occupier' of a factory means the person who has ultimate control over the affairs of the factory: Provided that (i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii) in the case of a company; any of the directors shall be deemed to be occupier; (iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier; .... ...... ....." Second proviso to Section 2 (n) is not set out, as it is not necessary to refer to it. Prior to its amendment in 1987 section 2 (n) read as under :- "2(n) 'occupier of a factory means the person who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory. " 8. Before 1987 Section 2 (n) was required to be read with Section 100 of the Act which read as under : "Section 100 - Determination of occupier in certain cases :- (1) Where the occupier of a factory is a firm or other association of individuals, any one of the individual partners or members thereof may be prosecuted and punished under this Chapter for any offence for which the occupier of the factory is punishable: Provided that the firm or association may give notice to the Inspector that it has nominated one of its members, residing within India to be the occupier of the factory for the purposes of this Chapter, and such individual shall, so long as he is so resident, be deemed to be the occupier of the factory for the purposes of this Chapter, until further notice cancelling his nomination is received by the Inspector or until he ceases to be a partner or member of the firm or association. (2) Where the occupier of a factory is a company, any of the directors thereof may be prosecuted and punished under this Chapter for any offence for which the occupier of the factory is punishable: Provided that the Company may give notice to the Inspector that it has nominated a director, who is resident within India, to be the occupier of the factory for the purposes of this Chapter and such director shall, so long as he is so resident, be deemed to be the occupier of the factory for the purposes of this Chapter, until further notice cancelling his nomination is received by the Inspector or until he ceases to be a director : Provided further that in the case of a factory belonging to the Central Government or any State Government or any local authority the person or persons appointed to manage the affairs of the factory shall be deemed to be the occupier of that factory for the purposes of this Chapter. (3) . . . . . . . . . . . . . . . " 9. While amending Section 2(n) in 1987 a significant change was made by the legislature. Section 100 was deleted and instead in Section 2(n) itself a stricter provision was made by introducing the first proviso. In J. K. Industries Limited (1966 (6) SCC 665) (supra) this Court had an occasion to consider the history of these provisions and the objects and reasons why changes were made therein form time to time. In that context the Court observed that "by the Amending Act of 1987 it appears that the legislature wanted to bring in a sense of responsibility in the minds of those who have the ultimate control over the affairs of the factory, so that they take proper care for maintenance of the factories and the safety measures therein. . . . Proviso (ii) was introduced by the Amending Act, couched in a mandatory from "any one of the directors shall be deemed to be the occupier" keeping in view the experience gained over the years as to how the directors of a company managed to escape their liability, for various breaches and defaults committed in the factory by putting up another employee as a shield and nominating him as the 'occupier' who would willingly suffer penalty and punishment. . . .. Proviso (ii) now makes it possible to reach out to a director of the company itself, who shall be prosecuted and punished for breach of the provisions of the Act, apart from prosecution and punishment of the Manager and of the actual offender". These observations were made by this Court while considering constitutional validity and correct interpretation of clause (ii) of the first proviso to Section 2 (n). We have referred to the same as they are also relevant for construing the true ambit and width of clauses (ii) and (iii) of that provision. 10. If ultimate control is the litmus test, then as contended by the learned Attorney General, it is necessary to find out whether the Central Government has the ultimate control over the affairs of the factories of the Corporation or it is the Corporation itself which possesses such control. 11. In Som Prakash Rekhi v. Union of India, 1981 (1) SCC 449 : (AIR 1981 SC 212) this Court has held that corporations are one species of legal persons invented by the law and invested with a varieties of attributes so as to achieve certain purposes sanctioned by the law. The characteristics of corporations, their rights and liabilities, functional autonomy and juristic status are jurisprudentially recognised as of a distinct entity even where such Corporations are State agencies or instrumentalities. But merely because a company or other legal person has functional and jural individuality for certain purposes and in certain areas of law, it does not necessarily follow that for the effective enforcement of fundamental rights under our constitutional scheme, court should not scan the real character of the entity; and if it is found to be a mere agent or surrogate of the State, in fact owned by the State, in truth controlled by the State and in effect an incarnation of the State, constitutional lawyers must not blink at these facts and frustrate the enforcement of fundamental rights despite the inclusive definition of Article 12 that any authority controlled by the Government of India is itself State. The true test is functional, not how the legal person is born but why it is created. Apart from discharging functions or doing business as the proxy of the State, wearing the corporate musk there must be an element of ability to affect legal relations by virtue of power vested in it by law. After taking into consideration the fact that control by the Government over the Corporation is writ large in the Act and in the factum of being a Government company and the circumstances under which the Bharat Petroleum @page-SC2461 Corporation Limited was made a Corporation, this Court further held that they emphasise the fact that it "is not a mere company but much more than that and has a statutory flavour in its operation and functions in its powers and duties and in its personality itself, apart from being functionally and administratively under the thumb of the Government. " It was also observed that a "commercial undertaking although permitted to be run under our constitutional scheme by Government, may be better managed with professional skills and on business principles, guided, of course, by social goals, if it were administered with commercial flexibility and celerity free from departmental rigidity, slow motion procedure and hierarchy of officers. . . Welfare States like our called upon to execute many economic projects readily resort to this resourceful legal contrivance because of its practical advantages without a wee bit of diminution in ownership and control of the undertaking. The true owner is the State, the real operator is the State and the effective controllerate is the State and accountability for its actions to the community and to Parliament is to the State. . . The core fact is that the Central Government, through this provision, chooses to make over, for better management, its own property to its own offspring. A Government company is a mini-incarnation of Government itself, made up of its blood and bones and given corporate shape and status for defined objectives, not beyond". 12. Though in a different context this Court in Mahabir Auto Stores v. Indian Oil Corporation, (1990) 3 SCC 752 : (AIR 1990 SC 1031) held that the Indian Oil Corporation which is a statutory body incorporated under the Companies Act, is an organ of the State or an instrumentality of the State. The relevant thing to be noted is that this Court while so holding took note of the fact that the Corporation is subject to the policies, directions, instructions and guidelines issued by the Ministry of Energy. 13. Again in J. K. Industries Ltd. (1996) 6 SCC 665 this Court, while dealing with Section 2(n), as amended by Act 20 of 1987 emphasised the use of the word "ultimate" and after referring to the decision in John Donald Mackenzie v. Chief Inspector of Factories, AIR 1962 SC 1351 observed that the law does not countenance duality of ultimate control. If the transfer of the control to another person is not complete, meaning thereby that the transferor retains its control over the affairs of the factory, the transferee, whosoever he may be, (except a director of the company, or a partner in a partnership firm) cannot be considered to be the person having ultimate control over the affairs of the factory notwithstanding what the resolution of the Board States. The litmus test, therefore, is who has the 'ultimate control' over the affairs of the fact. It is also held therein that the deeming provision made in proviso (ii) does not override the substantive provision of Section 2(n) but clarifies it. 14. The above discussion fully supports the contention of the learned Attorney General that for the purpose of Section 2 (n) what is to be seen is who has the 'ultimate control' over the affairs of the factory. Relevant provisions regarding establishment of the Corporation and its working leave no doubt that the ultimate control over all the affairs of the Corporation, including opening and running of factories, is with the Central Government. Acting through the Corporation is only a method employed by the Central Government for running its petroleum industry. In the context of Section 2 (n) it will have to be held that all the activities of the Corporation are really carried on by the Central Government with a corporate mask. 15. It is, therefore, not possible to agree with the contention raised on behalf of the contesting respondents that the ultimate control over the factories of the Corporation lies with the Corporation and not with the Central Government, though it is true as contended by the learned Counsel appearing for them that the Corporation is a legal entity, has a separate and independent existence of its own and the right to manage the affairs of the Corporation including the right to set up and run the factories vests in the Board of Directors. In our opinion, it will not be proper to adopt this narrow approach while construing the scope and ambit of clauses (ii) and (iii) of the first proviso to Section 2 (n). The approach which deserves to be adopted is one which would achieve the object of the provision and, therefore, the same approach which was adopted by this Court in Som Prakash Rekhi's case (AIR 1981 SC 212) (supra) is to be preferred over the narrow approach which is the basic of the contention raised on behalf of the contesting respondents. 16. Apart from the main part of Section 2(n), the first proviso also indicates that the Legislature intended that the person having ultimate control over the affairs of the factory has to be regarded an occupier of the factory. The proviso to the Section is not in the nature of an exception. In order to avoid any ambiguity, to plug loopholes and to seal the escape routes a deeming provision has been made in a mandatory form. In the case of a firm obviously the partners of the firm have ultimate control over the affairs of the partnership. In case of other type of association the members thereof will have such control. In the case of a company the directors have the ultimate control, as the power to manage the affairs of the company vests in the Board of Directors. What clauses (i) and (ii) of the proviso provide is that they shall be deemed to be 'occupier'. Thus they merely restate the position which is obvious even otherwise. The position of the Government and the local authority is quite different from that of a firm or an association or a company not only with respect to the person who can be said to be in ultimate control but also with respect to the object for which the factory is set up. In a democratic set up of Government it may not be possible to say with certainty as to who is having the ultimate control. In a welfare state the Government does not carry on such activity for its own profit or benefit but for the benefit of the people as a whole. Moreover, it is the Government which looks after the successful implementation of the provisions of the Factories Act and, therefore, it is not likely to evade implementation of the beneficial provisions of the Factories Act. That appears to be the reason why the legislature thought it fit to make a separate provision for the Government and the local authorities. Ordinarily, for running the factories owned or controlled by the Central Government or any State Government, or any local authority, a person or persons would be appointed by it to manage the affairs of the factory, because the Government or the local authority as a whole would not run the factory. Therefore, the legislature appears to have provided that in a case of a factory owned or controlled by the Central Government, the State Government or the local authority the person or persons appointed to manage the affairs of the factory by the Central Government, State Government or the local authority as the case may be, shall be deemed to be the occupier. Therefore, if it is a case of a factory in fact and in reality owned or controlled by the Central Government or the State Government or any local authority then in case of such a factory the person or persons appointed to manage the affairs of the factory shall have to be deemed to be the occupier, even though for better management of such a factory or factories a corporate form is adopted by the Government. 17. Before 1987, when Section 100 was the governing provision, any one of the individual partners of a firm or any one of the members of the association of individuals could be punished under sub-section (1) thereof for any offence for which the occupier of the factory was punishable. The firm or association was given an option to nominate one of its members as the occupier of the factory and if such an option was exercised by giving a notice to the Inspector then he alone was to be deemed to be the occupier of the factory for the said purpose. Under sub-section (2) if the occupier of the factory was a company then any one of the directors thereof could be prosecuted and punished. A similar option was available to the company, as in the case of a firm and an association of individuals. It is significant to note that it was by way of a proviso to sub-section (2) which dealt with the case of a firm and an association of individuals. It is significant to note that it was by way of a proviso to sub-section (2) which dealt with the case of a company that the provision was made for deciding who should be deemed to be the occupier of a factory in case it belonged to the Central Government or any State Government or any local authority and a similar option is made available to them. The said proviso though enacted as an exception to the main part of sub-section (2) is truly by way of a separate provision made in the case of a factory belonging to the Central Government or any State Government or any local authority. While making the amendment in 1987 in Section 2 (n) and deleting Section 100 at the same time the Legislature made the proviso to sub-section (2) of Section 100 an independent proviso to Section 2(n). That also clearly indicates the intention of the Legislature that it wanted to make a separate provision for deeming who should be the occupier of a Government factory. 18. For the aforesaid reasons we hold that as the factories run by the appellant-Corporation are effectively and really owned and controlled by the Central Government they fall within the purview of clause (iii) and not clause (ii) of the first proviso to Section 2 (n). In our opinion, the High Court was wrong in taking a contrary view. We, therefore, allow these appeals, set aside the judgment and order passed by the High Court to the extent as indicated above and direct respondents Nos. 1 and 2 to accept the persons appointed by the Central Government to manage the affairs of the factories at Namkum as the occupiers of those factories for the purposes of Section 2 (n) of the Factories Act. In view of the facts and circumstances of the case, we direct the parties to bear their own cost. Appeals allowed.