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The industrial dispute act 1946 1

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The industrial dispute act 1946 1

  1. 1. Name of Institution Chapter -1 Object of the Act 1 04/30/15
  2. 2. Name of Institution Object of the Act • Dimakuchi Tea Estate Karmchari Sangh v. Dimakuchi Tea Estate AIR 1958 SC 358:- The S.C. summed up the principal objects of the Act as follows: - • promotion of measures for securing and preserving amity and good relations between the employers and workmen 2
  3. 3. Name of Institution Object of the Act • Investigation and settlement of industrial disputes, between employers and employers, employers and workmen or workmen and workmen, with a right of representation by registered trade union or a federation of trade unions or an association of employers or a federation of association of employers; 3
  4. 4. Name of Institution Object of the Act • prevention of illegal strikes and lockouts; • relief to workmen in the matter of layoff and retrenchment; and • collective bargaining. 4
  5. 5. Name of Institution Object of the Act • Rajasthan State Road Transport Corporation‘ 2005 LLR 1044 • the object of the Industrial Disputes Act, as its preamble indicates, is to make provision for the investigation and settlement of industrial disputes which means adjudication of such disputes also. • The Act envisages collective bargaining, contracts between union representing the workmen and the management, a matter which is outside the realm of the common law or the Indian law of contact. 5
  6. 6. Name of Institution Object of the Act • The Act also provided for the constitution of various committees and conferred extensive powers on different kinds of authorities in the matter of settlement of adjudication of industrial disputes. • It also provide remedies under Sections 10, 12, 18, 19 and 31(2), 33(1)(a), 33C(1) and 33C(2). 6
  7. 7. Name of Institution Object of the Act • Rajasthan State Road Transport Corporation' SC 2005 • The Act also provided for the constitution of various committees and conferred extensive powers on different kinds of authorities in the matter of settlement of adjudication of industrial disputes. • It also provide remedies under Sections 10, 12, 18, 19 and 31(2), 33(1)(a), 33C(1) and 33C(2). 7
  8. 8. Name of Institution Chapter- 2 Concept & Scope of Industrial Dispute 8
  9. 9. Name of Institution Industrial Disputes • Section 2 (k) of the Industrial Disputes Act, 1947. • 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. 9
  10. 10. Name of Institution Industrial Disputes • Broadly speaking, the definition of 'industrial dispute' may be analyzed under four heads: (i) Factum of industrial dispute; (ii) Parties to the dispute; (iii) Subject matter of the disputes' and (iv) Origin of the dispute. 10
  11. 11. Name of Institution (i) Factum of industrial dispute • The existence of a dispute or difference is the key to the expression 'industrial dispute'. • When the parties are at variance, and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour, there comes into existence an industrial dispute.' 11
  12. 12. Name of Institution (i) Factum of industrial dispute • Whether a mere demand to the appropriate government or to the conciliation officer without a dispute being raised by the workmen with the employer regarding such demand can become an industrial dispute? • Sindhu Resettlement Corp Ltd. V Industrial Tribunal (1968) • Shambhu Nath Goel v Bank of Baroda (1978) 12
  13. 13. Name of Institution (i) Factum of industrial dispute • M/s Village Papers Pvt. Ltd v. State of Himachal Pradesh (1993) Lab. IC 99 at 102-03. • A mere demand made to the government cannot become an industrial dispute without it being raised by the workmen with their employer. 13
  14. 14. Name of Institution (i) Factum of industrial dispute • If such a demand is made to the government, it can be forwarded to the management and if rejected, becomes an industrial dispute. • Though it is apparent that for a dispute to exist, there must be a demand by the workmen or the employer. This demand need not be in writing, unless the matter pertains to a public utility service, in view of the provisions of Section 22 of the Industrial Disputes Act, 1947. 14
  15. 15. Name of Institution (ii) Parties to the dispute • In order to fall within the definition of an 'industrial dispute', the dispute must be between: • (i) employers, or • (ii) employers and workmen, or • (iii) workmen and workmen. 15
  16. 16. Name of Institution (ii) Parties to the dispute • Parties to the industrial dispute do not include disputes :- • (i) between -government and an industrial establishment or • (ii) between workmen and non-workmen. • [Madras Gymkhana Club Employees Union v. Madras Gymkhana Club, (1967) 2 LLJ 720.] 16
  17. 17. Name of Institution (ii) Parties to the dispute • The words 'employers and employers • The disputes between employers and employers may arise in respect of wage matters in an area where labour is scarce or disputes of similar character. 17
  18. 18. Name of Institution (ii) Parties to the dispute • The words 'workmen and workmen' occur in Section 2 (k) to include the disputes between them either directly or through their trade unions. Such a dispute may be demarcation dispute, inter-union dispute, etc. Inter-union dispute has, however, not been held to be an 'industrial dispute. • There is no decided case in India on this subject. 18
  19. 19. Name of Institution (iii) Subject matter of the Industrial disputes connected with the:- • employment or • non-employment or • terms of employment or • conditions of labour, of any person. 19
  20. 20. Name of Institution (iii) Subject matter of the Industrial disputes • The concept of employment involves three ingredients: (i) employer, (ii) employee and (iii) the contract of employment. • The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works on hire basis. The employment is the contract of service between the employer whereunder the employee agrees to serve the employer, subject to his control or supervisions. 20
  21. 21. Name of Institution • In Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate (1958) sc, this Court held the two tests of an industrial dispute: - (as defined by Section 2(k)) • (1) the dispute must be a real dispute capable of being settled by relief given by one party to the other, and, • (2) the person in respect of whom the dispute is raised must be one in whose employment, non-employment, terms of employment, or conditions of labour (as the case may be), the parties to the dispute have a direct or substantial interest and this must depend on facts and circumstances of each particular case. 21
  22. 22. Name of Institution (iii) Subject matter of the Industrial disputes • 'Employment' brings in the contract of service between the employer and the employed. [Shankar Balaji Waje v. State of Maharashtra, (1961) 1 LLJ 119 (SC). ] 22
  23. 23. Name of Institution (iii) Subject matter of the Industrial disputes • 'Unemployment' is the opposite of 'employment' and would mean that disputes of workmen which arise out of service with their employers are within the ambit of the definition. It is the positive or negative act of the employer that leads to employment or unemployment. 23
  24. 24. Name of Institution (iii) Subject matter of the Industrial disputes • 'Unemployment’ Example:- (1) termination of service either voluntary or by act of parties (as employer or workmen). • The instances of this kind are dismissal, discharge, retrenchment, compulsory retirement etc. It also includes temporary unemployment, e.g., suspension, layoff, compulsory leave, lockout, strike, etc. Further, it would include within its scope the words arising out of unemployment, e.g., reinstatement., re-employment, compensation and back wages for wrongful termination of service. 24
  25. 25. Name of Institution (iii) Subject matter of the Industrial disputes • The expression 'terms of employment' generally covers basic wages, dearness allowance and other allowances, wages on promotion, wages on demotion, wages on transfer out of town, wages for over-time work, wages for work on holiday, payment of wages, recovery of wages, bonus, retiral benefits, e.g., pension, provident fund, gratuity, pension, etc. 25
  26. 26. Name of Institution (iii) Subject matter of the Industrial disputes • The expression 'conditions of labour' is much wider in scope and refers to the conditions of service under which they work and the amenities provided or to be provided to them. This expression may include hours of work, holidays, leave, health, safety and welfare of labour. 26
  27. 27. Name of Institution (iii) Subject matter of the Industrial disputes • An analysis of decided cases reveals that following matters have also been included in the definitions: • (i) alteration of conditions of service of employees. [Cooperative Central Bank Ltd v. Addl LT, AIR 1970 SC 245] • (ii) demand for modification of standing orders. [Shahadara (Delhi) Saharanpur Light Rly. Co. v. S S Railway Workers, AIR 1960 SC 945] 27
  28. 28. Name of Institution (iii) Subject matter of the Industrial disputes • (iii) disputes regarding contract labour. [Standard Vacuum Refining Co. of India Ltd v. Workmen, AIR 1960 SC 945] . • (v) transfer of workman from one place to another 28
  29. 29. Name of Institution (iv) Origin of Industrial Dispute The scope of the expression 'any person' occurring in the last part of the definition of 'industrial dispute' has been a subject matter of controversy. 29
  30. 30. Name of Institution • In Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate (1958) sc, this Court held the two tests of an industrial dispute: - (as defined by Section 2(k)) • (1) the dispute must be a real dispute capable of being settled by relief given by one party to the other, and, • (2) the person in respect of whom the dispute is raised must be one in whose employment, non-employment, terms of employment, or conditions of labour (as the case may be), the parties to the dispute have a direct or substantial interest and this must depend on facts and circumstances of each particular case. 30
  31. 31. Name of Institution • In Bongaigaon Refinery &,Petrochemicals Ltd v. Samijuddin Ahmed (2001) 9 sec 557 • a question arose whether a person who had been issued an offer of appointment which was withdrawn before he could join on knowing that he had suppressed material facts and who raised a dispute about his non-employment could fall within the meaning of 'any person' under Section 2(k) of the Industrial Disputes Act. 31
  32. 32. Name of Institution • In Bongaigaon Refinery &,Petrochemicals Ltd …………….. • The Court answered the question in negative and held that the reference of the dispute under Section 10 of the Act was wholly unjustifiable. • Where employer-employee relationship never existed and can never possibly exist cannot be the subject matter of dispute between employer and workmen. [Limitation of Dimachichi case] 32
  33. 33. Name of Institution Chapter 3 Concept & Scope of Individual Dispute 33
  34. 34. Name of Institution Judicial Legislation • Is a dispute between an individual workman and his employer an 'industrial dispute' under Section 2 (k) of IDA? • Three different views as to the meaning of the expression 'industrial dispute'. They are :- • (i) a dispute between an employer and single workman cannot be an 'industrial dispute, [United Commercial Bank Ltd v. Commissioner of Labour, . (1951) SC ] • (ii) it can be an industrial dispute [Swadeshi Cotton Mills Co. v. Ramzani, (1953) Allhabad]and • (iii) it cannot per se be an industrial dispute but may become one if taken up by a trade union or a number of workmen[New India Assurance Co. Ltd v. Central Government Industrial Tribunal, (1954) Patna]. 34
  35. 35. Name of Institution Central Provinces Transport Services Ltd v. Raghunath Gopal Patwardhan 1957 • the question which directly arose, was whether a dismissed worker was an employee within the meaning of Section 2 (10) of the Central Provinces and Brar Industrial Disputes Settlement Act, 1947, the Supreme Court considered the scope of 'industrial dispute' as defined in Section 2(k) of the Industrial Disputes Act. 35
  36. 36. Name of Institution Central Provinces Transport Services Ltd v. Raghunath Gopal Patwardhan 1957 • The preponderance of judicial opinions is clearly in favour of the last of the three views stated above, and there is considerable reason behind it. • The scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same has not been taken up by the union or a number of workmen. 36
  37. 37. Name of Institution D N Banerjee v. P R Mukherjee 1953 SC • discussed the scope of 'industrial dispute' (in the context of individual dispute) and observed that the words: - • ……Convey the meaning to the ordinary mind that the dispute must be such as would affect large groups of workmen and employers ranged on opposite sides …. • A single employee's case might develop into an industrial dispute, when as often happens, it is taken up by the trade union of which he is a member and there is concerted demand by the employees for redress. 37
  38. 38. Name of Institution Newspapers Ltd v. State Industrial Tribunul 1957 SC • In this case, Tajammal Hussain, a linotypist was dismissed by the Newspapers Ltd on the ground of incompetence. His case was neither taken up by the union of workers of the establishment nor by any union of allied or similar trade. His case was, however, taken up by the U P Working Journalists Union, with which the employee had no concern. 38
  39. 39. Name of Institution Newspapers Ltd v. State Industrial Tribunul 1957 SC • The govermnent referred the dispute to the industrial tribunal for adjudication. The tribunal ordered reinstatement. The appellate tribunal and the High Court, successively affirmed. Thereupon, the management preferred an appeal to the Supreme Court. • The Court accordingly held that Tajammal Hussain could not be termed as workmen (in the plural) nor could U P Working Journalists Union be called 'his union' nor is there any indication that the individual dispute had been transformed into 'industrial dispute'. 39
  40. 40. Name of Institution M/ s Western India Match Co. Ltd v. Western India Match Company Workers' Union 1970 SC • A principle was laid down by the Supreme Court that parties to the reference being the employer and his employees, the test must necessarily be whether the dispute referred to adjudication is one in which the workman and substantial section of those who have a direct and substantial interest even though such a dispute relates to a single workman. The Supreme Court held that an 'individual dispute' may be converted into an industrial dispute by the workmen espousing it on the ground that they have community of interest and are directly or substantially interested in the employment, non-employment or conditions of work of the concerned workmen. 40
  41. 41. Name of Institution Necessary to examine in details. The aforesaid decisions indicate that individual dispute per se is not 'industrial dispute' unless it is espoused by; (i) trade union or (ii) appreciable number of workmen. It is, therefore, necessary to examine the aforesaid requirement in details. 41
  42. 42. Name of Institution Necessary to examine in details. • 1. Requirement of Appreciable Number: It has been seen that courts insist that in order to convert an individual dispute into 'industrial dispute', the dispute must be espoused by 'appreciable number' either of the entire labour force in the establishment or at least in a particular section thereof to which the dispute relates. But courts at the same time have admitted that the expression 'appreciable number' does not necessarily mean majority of workmen in the establishment or, indeed, even in the section in which the aggrieved workman was employed. 42
  43. 43. Name of Institution Necessary to examine in details. • 2. Requirement of Dispute Being Sponsored by Trade Unions: In order to convert an individual dispute into 'industrial dispute', it must be taken up by a union of workers of the establishment and where there is no such union, it may be sponsored by any of the unions of workmen employed in similar or allied trades. The union of the plant may even be a minority union. Further, the sponsoring union need not be a registered or a recognized trade union. 43
  44. 44. Name of Institution Necessary to examine in details. • 3. Effect of Subsequent Withdrawal of Support by Workmen: It has now been settled through the Supreme Court decision [Bombay Union of Journalists v. The Hindu, AIR 1963 SC 318] that subsequent withdrawal of support by the workmen of a cause previously espoused by them would not take away the jurisdiction of an industrial tribunal. Likewise, if the dispute was in its inception an individual dispute and continued to be such till the date of reference by the government, it would not be converted into an industrial dispute by support subsequent to the reference even if workmen are interested in the dispute. 44
  45. 45. Name of Institution Necessary to examine in details. 4. Form of Espousal (An act of adopting or supporting a cause ): The Supreme Court in J.H. Yadav v. M/S Forbes Gokak (2005) held that as far as espousal is concerned, there is no particular form prescribed to effect such espousal. But there is no doubt that the union must normally express itself in the form of a resolution which should be proved if it is in issue. However, proof of support by the union may also be available aliunde (from elsewhere). It would depend upon the facts of each case. 45
  46. 46. Name of Institution Necessary to examine in details. • 5. Institution of Legal Proceedings by Legal Heir of Deceased Workman: In Smt.Anjilamma v. Labour Court 1995 (AP), the Andhra Pradesh High Court held that the legal heirs of deceased workmen have locus standi to pursue a dispute against dismissal of deceased workmen either by continuing the pending proceedings or by instituting fresh proceedings. 46
  47. 47. Name of Institution An Appraisal (analysis) • A survey of the aforesaid decisions indicates that the following tests have been applied by the Court in determining as to when an individual dispute would be converted into an 'industrial dispute'. – • (a) If the cause of aggrieved workmen is taken up by appreciable number of workmen or the union of workmen (either registered or not or whether recognized or unrecognized or whether majority or minority union) or in the absence of any union of workmen by union of similar or allied trade and there is a concerted demand by the workmen for redress. 47
  48. 48. Name of Institution An Appraisal (analysis) • (b) If the workmen espousing it have a community of interest and are directly or substantially interested in the employment, non- employment, terms of employment or conditions of labour of the concerned workman/workmen. • (c) If such an interest on the part of workman or substantial number of workmen exists on the date of reference and need not necessarily exist on the date on which-the cause occurs. 48
  49. 49. Name of Institution An Appraisal (analysis) • (d) A dispute would not cease to be an 'industrial dispute' on subsequent support or withdrawal of a cause of individual dispute previously espoused by a workmen or union. • The net effect of the aforesaid decisions is that an individual worker, unsupported by 'appreciable number' of workmen or the union, has no remedy under the Industrial Disputes Act, 1947, particularly when no dispute is pending before authorities under the Industrial Disputes Act, 1947. 49
  50. 50. Name of Institution Deemed Industrial Dispute Sec 2A Where an employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between an individual 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. 50
  51. 51. Name of Institution Deemed Industrial Dispute Sec 2A • No Retrospective Effect: The Supreme Court in Rustom and Hornsby (P) Ltd v. T B Kadam 1975 held that Section 2A provides in effect that what would not be an industrial dispute as defined in Section 2(k) as interpreted by this Court could be deemed to be an industrial dispute in certain circumstances. There is, therefore, no question of giving retrospective effect to that section in making the reference which resulted in the award under consideration. 51
  52. 52. Name of Institution Amendment 2010 in Sec 2A • An analysis of the Sec 2A reveals that a workman aggrieved by the order of dismissal, discharge, retrenchment or otherwise termination of service may directly make an application to the labour court or tribunal for adjudication of the dispute and the labour court/ tribunal is empowered to adjudicate such dispute as it were referred to it by the appropriate government. 52
  53. 53. Name of Institution Amendment 2010 in Sec 2A • But, the two conditions must be satisfied before such application can be entertained: (i) Such application must be made after the expiry of 45 days from the date the aggrieved workman made the application to the conciliation officer of the appropriate government for conciliation of the dispute (ii) Such application must be made before the expiry of 3 years from the date of discharge, dismissal, retrenchment or otherwise termination of service. 53
  54. 54. Name of Institution Chapter 4 Industry [Sec. 2(j)] 54
  55. 55. Name of Institution Industry "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. 55
  56. 56. Name of Institution Two parts of Definition This definition is in two parts. The first says that industry means any business, trade, undertaking, manufacture or calling of employers and the second part provides that it includes any calling, service, employment, handicraft, or industrial occupation Or avocation of workmen. 56
  57. 57. Name of Institution Madras Gymkhana Club Employees Union v. Management of Madras Gymkhana Club, AIR 1968 SC The inclusive part of the definition the labour force employed in any industry is made an integral part of the industry for the purpose of industrial disputes. 57
  58. 58. Name of Institution Management of Safdarjang Hospital, Delhi v. Kuidip Singh, AIR 1970 SC 1407 It is not necessary to view definition of industry under Section 2(j) in two parts. The definition read as a whole denotes a collective enterprise in which employers and employees are associated. It does not consist either by employers alone or by employees alone. 58
  59. 59. Name of Institution "Undertaking" • "Undertaking" means anything undertaken, any business, work or project which one engages in or attempts, or an enterprise. 59
  60. 60. Name of Institution "Undertaking" • State of Bombay v. Bombay Hospital Mazdoor Sabba. AIR 1960 SC 610. • "As a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co-operation of the employer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be casual, nor must it be for one's self nor for pleasure. 60
  61. 61. Name of Institution Bangalore Water Supply v. A. Rajappa AIR 1978 SC 548 • Triple Test.-Where there is • (i) systematic activity, • (ii) organised by co-operation between employer and employee, • (iii) for the production and /or distribution of goods and services calculated to satisfy human wants and wishes, prima facie, there is an "industry" in that enterprise. 61
  62. 62. Name of Institution Bangalore Water Supply v. A. Rajappa AIR 1978 SC 548 • The following points were also emphasized in this case : • (1) Industry does not include spiritual or religious services or services geared to celestial (relating to heaven) bliss, e.g., making, on a large scale, prasad or food. It includes material services and things. • (2) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. • (3) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations. • (4) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking. 62
  63. 63. Name of Institution Dominant nature test • Where a complex of activities, some of which quality for exemption, others not, involve employees on the total undertaking - some of whom are not workmen or some departments are not productive of goods and services if isolated, even then the predominant nature of the services and the integrated nature of the departments will be true test, the whole undertaking will be "industry" although those who are not workmen by definition may not benefit by status. [Bangalore Water Supply v. A. Rajappa AIR 1978 SC 548] 63
  64. 64. Name of Institution Exceptions • Sovereign functions, strictly understood, (alone) qualify for exemption, not welfare activities or economic adventures undertaken by Government or - statutory bodies. • If in pious or altruistic mission, many employ themselves, free or for small honorarium like as lawyers volunteering to run a free legal services, clinic or doctors serving in their spare hours in a free medical centre etc. 64
  65. 65. Name of Institution Exceptions • In Govt. departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can - considered to come within Section 2(j). • A restricted category of professions, clubs, co- operatives and even gurukulas. 65
  66. 66. Name of Institution Municipal Corporation • D.N. Banerjee v. P.R. Mukherjee AIR 1953 SC • In this case the Budge Municipality dismissed two of its employees, Mr. P.C. Mitra, a Head clerk and Mr. P.N. Ghose a Sanitary Inspector on charges for negligence, insubordination and indiscipline. The Municipal Workers Union of which the dismissed employees were members questioned the propriety of the dismissal and the matter was referred to the Industrial Tribunal. The Tribunal directed reinstatement and the award was challenged by the Municipality on the ground that its duties being connected with the local self-government it was not an industry and the dispute was not an industrial dispute and therefore reference of the dispute to the tribunal was bad in law. 66
  67. 67. Name of Institution Municipal Corporation • D.N. Banerjee v. P.R. Mukherjee AIR 1953 SC • The Supreme Court observed that in the ordinary or non- technical sense industry or business means an undertaking where capital and labour co-operate with each other for the purpose of producing wealth in the shape of goods, tools etc. and for making profits. In the opinion of the Court every aspect of activity in which the relationship of master and servant or employer and employees exists or arises does not become an industry. 67
  68. 68. Name of Institution Municipal Corporation • D.N. Banerjee v. P.R. Mukherjee AIR 1953 SC • It was further observed that 'undertaking' in the first part and industrial occupation or avocation in the second part of Section 2(j) obviously mean much more than what is ordinarily understood by trade or business. The definition was apprently intended to include within its scope what might not strictly be called a trade or business. Neither investment of capital nor profit making motive is essential to constitute an industry as they are generally necessary in a business. A public utility service such as railways, telephones,. and the supply of power, light or water to the public may be carried on by private companies or business corporations and if these public utility services are carried on by local bodies like a Municipality they do not cease to be an industry. 68
  69. 69. Name of Institution Municipal Corporation • Nagpur Corporation v. Its Employed AIR 1960 SC • A Corporation is an "industry". But "industry" cannot include what are called the regal or sovereign functions of the State. • Neither the investment of capital, nor the existence of profit making motive is a necessary element in the modem conception of industry. • If a department of a municipality discharges many functions, some pertaining to industry as defined in the Act, and others non-industrial activities, the predominant functions of the department shall be the criterion for the purposes of this Act. 69
  70. 70. Name of Institution Municipal Corporation • In Permanand v. Nagar Palika, Dehradun and others (2004) • the Supreme Court held that the activity of a Nagar Palika in any of its department except those dealing with levy of house tax etc. falls within the definition of industry in U.P. Industrial Disputes Act, 1947. 70
  71. 71. Name of Institution • Is hospital an industry? 71
  72. 72. Name of Institution State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 • In this case, the Hospital Mazdoor Sabha was a registered Trade Union of the employees of hospitals in the State of Bombay. The services of two of its members were terminated by way of retrenchment by the Government and the Union claimed their reinstatement through a writ" petition. It was urged by the State that the writ application was misconceived because hospitals did not constitute an industry. The group of hospitals were run by the State for giving medical relief to citizens and imparting medical education. 72
  73. 73. Name of Institution Hospital Mazdoor Sabha Case…… • The Supreme Court held the group of hospitals to be industry and observed as follows : • (1) The State is carrying on an 'undertaking' within Section 2(j) when it runs a group of hospitals for purpose of giving medical relief to the citizens and for helping to impart medical education. • (2) An activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. 73
  74. 74. Name of Institution Hospital Mazdoor Sabha Case…… • (3) It is the character of the activity in question which attracts the provisions of Section 2(j). Who conducts the activity and whether it is conducted for profit or not make a material difference. • (4) The conventional meaning attributed to the words, 'trade and business' has lost some of its validity for the purposes of industrial adjudication .. .it would be erroneous to attach undue importance to attributes associated with business or trade in the popular mind in days gone by. 74
  75. 75. Name of Institution Other cases • Hospital Mazdoor Sabha case was overruled by Safdarjung Hospital case [Management of Safdarjung Hospital, Delhi v. Kuldip Singh AIR 1970 SC]. But Safdarjung Hospital and Dhanraj Giri Hospital cases [Dhanraj Giri Hospital v Workmen AIR 1978 SC] have now been overruled in Bangalore Water Supply v. A. Rajappa and Hospital Mazdoor Sabha case has been rehabilitated. 75
  76. 76. Name of Institution Hospital…….. Those hospitals which are run by the Government as part of its sovereign functions with the sale object of rendering free service to the patients are not industry. But all other hospitals, both public and private; whether charitable or commercial would be industry if they fulfil the triple test laid down in Bangalore Water Supply Case. 76
  77. 77. Name of Institution Educational Institutions 77
  78. 78. Name of Institution Corporation of City of Nagpur v. Its Employees (1960) 1 LLJ 523 It is the starting point. In this case, the Supreme Court held that the educational institutions run by municipality/corporation was a service rendered by the department and so the subordinate menial employees of the department came under the definition of 'workman' and were entitled to the benefits of the Act. 78
  79. 79. Name of Institution Educational Institution……… • In Bangalore Water Supply v. A. Rajappa overruled this decision and reaffirmed the decision in Corporation of Nagpur case that educational institution was industry. • The test is not the predominant number of employees entitled to enjoy the benefits of the Act. The true test is the predominant nature of the activity. 79
  80. 80. Name of Institution University of Delhi v. Ram Nath, AIR 1963 SC 1873 • The seven-judges bench of the Supreme Court in Bangalore Water Supply v. Rajappa overruled this decision and reaffirmed the decision in Corporation of Nagpur case that educational institution was industry. Justice Krishna Iyer laid down the following test to determine whether an activity is an 'industry'. 80
  81. 81. Name of Institution • Current Confusion 81
  82. 82. Name of Institution Irrigation Department - If Industry • While in Des Raj v. State of Punjab(1981), the Supreme Court held that irrigation department as an 'industry' under Section 2 G), • A two-judge bench of the Supreme Court in Executive Engineer, State of Karnataka v. K Soonasetty (1997) held it to be not an 'industry'. 82
  83. 83. Name of Institution Argument ----Irrigation Dept is not Industry • The function of public welfare of the State is a sovereign function. It is the constitutional mandate under the Directive Principles, that the government should bring about welfare State by all executive and legislative actions. Under these circumstances, the State is not an 'industry' under the Industrial Disputes Act. 83
  84. 84. Name of Institution Argument ----Irrigation Dept is not Industry • But Patna High Court in State of Bihar v. Gajadhar Singh (2012) held that the department of irrigation is an 'industry' under Section 2(j) of the Industrial Disputes Act, 1947. 84
  85. 85. Name of Institution Postal and Telecom Departments - If Industry 85
  86. 86. Name of Institution Postal and Telecom Departments……. • In Sub Divisional Inspector of Post Vaikam v. Theyyam Joseph(1996) , a question arose whether the establishment of the Sub-divisional Inspector of Post was an 'industry' under the Industrial Disputes Act, 1947. A two-judge bench of the Supreme Court answered the question in negative and held that the functions of the postal department are part of the sovereign functions of the State and it is, therefore, not an industry within the definition of Section 2(j) of the Industrial Disputes Act, 1947. 86
  87. 87. Name of Institution Postal and Telecom Departments……. • In General Manager, Telecom v. S Srinivasa Rao(AIR 1998 SC657), the question whether postal and telecom department was an 'industry' was placed specifically before the bench of three judges was whether the telecom department of the Union of India was an 'industry. 87
  88. 88. Name of Institution Postal and Telecom Departments……. • In Senior Superintendent of Post Office, Postal Department, Ludhiana v. Baljit Singh (2012), the Punjab and Haryana High Court held that postal department is an 'industry' under Section 2(j) of IDA. 88
  89. 89. Name of Institution Thank you 89

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