Questionnaire on Labour Laws
Hon'ble Thiru. Justice D. Hari Paranthaman, Judge, High Court Madras.
Question No: 1
What are the basic conditions one has to satisfy the Court to maintain a dispute under Section 2 (A) of the I.D. Act?
(i) First the establishment in which the person seeking remedy should be an ‘Industry’ within the meaning of Section 2 (j) of the act and
(ii) Secondly the person raising dispute under Section 2 (A) shall be workman within the meaning of Section 2 (s).
Question No: 2
When a person raising dispute under Section 2 (A) is not coming within any of exceptions under 2 (s) of the I.D. Act, can the dispute be dismissed on ground of status? Is there any difference in the definition of ’workman’ based on his status, mode of recruitment and method of payment?
No difference on status.
(i) A person, whether he is permanent, temporary, casual or part-time, shall be a ‘workman’ provided if he was employed to carry out any of the work as mentioned under Section 2 (s) of the employer.
(ii) Similarly it is immaterial whether he is employed with written appointment order or merely by an oral order.
(iii) Similarly, there is no difference between the persons who were appointed in terms of recruitment rules and appointment without reference to rules.
(iv) Hence initial entry not in accordance with rules will not take away the protection.
(v) Similarly, the mode of payment of wages is also not relevant. The wage may be paid either on time rated basis or on piece rate basis.
(vi) Similarly, it is immaterial whether is getting wages on monthly basis or weekly basis or on daily basis.
See following judgments:
(i) Punjab Land Reclamation case 1990 (2) LLJ Page 70
(ii) The president, Srirangam Cooperative Urban Bank Limited 1996 (2) LLJ Page 216.
(iii) Divisional Manager, New India Assurance Co. Limited Vs A. Shankaralingam case reported in 2009 (1) LLJ page 602.
Question No: 3
Whether a case of resignation would amount to termination and whether such a person can raise a dispute under Section 2 (A)?
Only in cases where the workman is able to prove that it was a forced resignation obtained by the employer under threat of coercion, it would be taken as a case of termination. But on appreciation of pleadings and evidence if it is found to be free and voluntary, then it would not amount to termination and no dispute under Section 2 (A) is maintainable.
Question No: 4
When the employee is able to prove that he is a ‘workman’ within the meaning of Section 2 (s) and if the employer taken a plea that he is not a ‘workman’ and says that he belongs to either supervisory cadre or managerial cadre, then who is to prove and burden of prove lies on whom?
The Burden is on the employer
See Judgment in Management of Hindustan Motors Limited case reported in 2002 Vol.100 FJR Page 257.
Question No: 5
When the workman comes with a plea of retrenchment but the employer takes up the plea that his or her non-employment comes under any one of the four exceptions? Who has to prove it?
Employer has to prove.
See Judgment S.M. Nilajkar and others Vs Telecom District Manager, Karnataka reported in 200 (4) SCC Page 27.
Question No: 6
Whether the employer can invoke and take shelter under 2 (oo) (bb)?
No. contractual appointment can be resorted to only in cases where the work would last only for a particular period or in cases where the workman is employed to carry out a particular/specific job and not in other cases where the employment is permanent/continuous.
For employment in a permanent/continuous work contractual appointment/periodical renewal cannot be restored to. Then it would amount to unfair labour practice.
See the following judgments:
(i) K. Rajendran Vs Director (Personnel) Project and Equipment Corporation of India reported in 1992 (1) LLN 150 (MAD).
(ii) Shanmuganathan Vs The Registrar, Tamil University reported in 1997 WLR Page 180.
In the above two judgments, since the employer resorted to fixed period contract employment when the work is continuous and permanent and since the employer extended the said contract periodically, it was held that it would amount to unfair labour practice resorted to by the employer in order to defeat, take away and frustrate the protection given to the workman under Section 2 (oo) read with Section 25 (F) and hence the same would not come under the exception clause 2 (oo) (bb).
Therefore, the burden is on the employer to prove that the workman was employed only for a particular work/project and that the work/project existed only for a particular time and that it has come to an end and that the work is no more in existence, so as to claim the benefit under Section 2 (oo) (bb). If the employer is not able to prove the same, even the employment is on contractual basis, it has to be held that the termination is retrenchment. Therefore, the Labour Court has to see as to whether the employer has resorted to contractual appointment in order to do mischief against the protection given to the workman under the I.D. Act.
See the judgment in S.M. Nilajkar case reported in 2003 (4) SCC Page 27.
Question No: 7
What are the preliminary issues that the employer can raise and what are the preliminary issues which the workman can raise?
By the Employer
(i) Not an industry,
(ii) Not a workman,
(iii) Not an industrial dispute,
(iv) The concerned Labour Court has no territorial jurisdiction.
By the Employee
Fairness of the enquiry.
Question No: 8
Whether the Labour Court can try all the above issues in question No.7 as a preliminary issue?
As per the judgment of the Supreme Court in Cooper Engineering reported in 1975 (2) LLJ Page 379 (para 19), if a workman raises the issue in his claim statement that the enquiry is not fair and proper and that he was not given fair and reasonable opportunity, the Labour Court shall try the fairness of enquiry as a preliminary issue, in cases where an enquiry was held prior to the dismissal.
Question No: 9
If the enquiry is set aside, whether the Labour Court could straight away order reinstatement? Under what circumstances, the Labour Court could give opportunity to employer to let in evidence to justify the dismissal?
Mere setting aside of enquiry would not result in the setting aside of dismissal, only if unless the employer failed to see opportunity in the counter itself. Only if the management prays for an opportunity in their counter itself to let in evidence afresh in the event of enquiry being set aside by the Labour Court.
Therefore, when the Management was called upon to let in evidence before the Labour Court on merits even before deciding the fairness of enquiry, the Hon’ble Division Bench of Madras High Court set aside the said order in Madurai - Devakottai Transport Private Limited case, reported in 1976 (II) LLJ Page 447 and held that when the fairness of enquiry is put in dispute, the Labour Court could allow the parties to let in evidence only with regard to fairness of enquiry and on merits.
Question No: 10
Whether the workman or the employer can challenge the findings by way of Writ Petition against the order on the preliminary issue regarding the fairness of enquiry?
In the very same judgment in Cooper Engineering case reported in 1975 (II) LLJ 379 in paragraph 19, the Hon’ble Supreme Court held that the said issue cannot be questioned at that stage as the same would delay the proceedings and it was held that the aggrieved person can challenge the findings on the fairness of enquiry along with the main award.
Question No: 11
Whether the Labour Courts or Tribunals can try the preliminary issues other than the preliminary issue regarding the fairness of enquiry?
No. The Labour Court and Tribunals shall try all the issues at the same time and shall not try any issues as preliminary issues other than the fairness of enquiry in order to avoid delay which will lead to misery to the workman and since it would jeopardize the industrial peace. Similarly, the High Court and Supreme Court cannot interfere with the preliminary issues and cannot entertain Writ Petitions or Appeals either under Article 226 or Article 136.
Further, under Section 10 (2A) of the I.D. Act, the dispute connected with an individual workman shall be adjudicated within three months. That is why the Hon’ble Supreme Court in the judgments, in D.P. Maheshwari case reported in 1983 (2) LLJ Page 424, para 1 and in S.K. Varma case reported in 1983 (2) LLJ Page 429, para 2 held as stated above.
Question No: 12
Whether the employer is entitled to let in evidence afresh before the Labour Court/Tribunal on merits and to prove the charges, in the case of defective enquiry, that is, when the enquiry is set aside as not fair and proper.. Similarly, whether the employer is entitled to let in evidence in case of dismissal or discharge for misconduct without enquiry.
Yes. In both the cases, the employer can let in evidence afresh, provided if the employer seeks opportunity in the Counter Statement itself to let in evidence afresh on merits to prove the charges both in the case of enquiry being set aside and in the case of no enquiry. But in the case of no enquiry, the employer should come with the reason for which they were not able to hold enquiry and they should prove to the satisfaction of the Labour Court/Tribunal that they were not in a position to conduct enquiry before passing the order of dismissal of the charge for the reasons beyond their control or for the reasons not directly attributable to them.
This is as per the judgment of the Hon’ble Supreme Court in Sambunath Goyal case reported in 1983 (2) LJ Page 415, which was later confirmed and affirmed by the Constitution Bench of the Hon’ble Supreme Court in Lakshmi Devamma Vs KSRTC reported in 2001 (5) SCC Page 433 and followed by the Hon’ble Division Bench of Madras High Court in Caterpillar India case reported in 2003 (4) LLN Page 1128.
Question No: 13
Whether the power under Section 11 (A) is applicable to cases other than non-employment namely dismissal or discharge?
No. It is applicable only in case of dismissal or discharge.
Question No: 14
Whether the Labour Court or Tribunal can re-appreciate the evidence in the domestic enquiry like an appellate court and come to a different and independent conclusion to that of Enquiry Officer, even though the enquiry is held to be fair?
Yes. Under Section 11 (A) of the I.D. Act, the Labour Court can re-appreciate the evidence in the domestic enquiry even the same is held to be fair like an appellate court. However, if the enquiry is held to be fair, the Labour Court has to appreciate only the evidence in the domestic enquiry and cannot receive any new evidence on merits and also cannot rely upon any evidence on merits other than the evidence in the domestic enquiry, in order to give findings as to whether each charge leveled against the workman is proved or not.
Question No: 15
Whether the Labour Court/Tribunal can interfere with the punishment of dismissal or discharge even after holding the charges are proved?
Yes. Under Section 11 (A) of the I.D. Act, the Labour Court can interfere with the punishment and grant appropriate relief namely either reinstatement with continuity of service and backwages but impose some minor penalty or can order only reinstatement without backwages but with continuity of service and other attendant benefits or can order mere compensation or grant only notional reinstatement and terminal benefits, provided if it comes to the conclusion that the charges which were held to be proved does not warrant the extreme penalty of dismissal or discharge.
Refer: The Judgment of Hon’ble Supreme Court in Workmen of Firestone Tyre and Rubber Company case reported in 1973 (1) LLJ Page 278 = 1973 (1) SCC Page 813.
Question No: 16
What is the meaning of ‘Victimization’? Whether it is defined under the I.D. Act? How to judge it is case of ‘victimization’?
The Hon’ble Supreme Court in the judgment in Colour Chem Limited reported in 1998 (3) SCC Page 198 held that the meaning of Victimization as victim of the circumstances and also held that it would include both factual victimization and legal victimization and also the circumstances which would attract factual victimization and legal victimization.
In the said judgment the employees were dismissed from service for sleeping while on duty by keeping the machines on. Though some other persons were also alleged with same misconduct they were not dismissed from service like those Petitioners. Therefore, since it was a case of discrimination and also considering the length of service and past record, the Hon’ble Supreme Court held that the punishment of dismissal imposed on them was nothing but killing a fly with sledge hammer and hence it would amount to legal victimization and unfair labour practice and interfered with the punishment and ordered reinstatement with a portion of bakcwages.