Industrial
Dispute Act
Can an individual dispute between the workman and employer be referred to as Industrial Dispute under the above section?
1. When the cause because of which an industrial dispute is supported by a substantial number of workmen in the industry. Workmen as a body or a considerable section of them- must be found to have a common cause with the individual workman.
Further,
2. The
individual dispute is sponsored or supported by the workmen as a body or a
considerable section of them at a time- before the date of reference. This
support should come before the date of reference. Date of reference as
mentioned under section 10 of the act means that when the dispute arises and it
goes to the works committee. Before the matter reaches to the conciliating
officer, the support shall come for the dispute.
Then
only the individual’s issue/dispute can be addressed under this section.
Exception
– it is again not a hard and fast rule, even if the individual dispute is not
supported by the workman of the same industry or by the trade union, but in the
similar kind of other industry the workmen or the trade union are supporting
that individual dispute, it will recognise as an industrial dispute.
The
dispute is different from the “difference between the parties”. A dispute can
be on a hike in wages or proper working condition, where the employer recognises
the right of the employee but deny providing it, which then leads to a dispute
as a common ground cannot be reached. There is a scope of negotiation between
the parties.
Sambhu
Nath Goyal vs. Bank of Baroda and Ors[1]
Sambhu
Nath was an employee of Bank of Baroda and was removed from his job. He
challenged this removal of his from the job by the bank. His cause was
supported by Punjab bank workers union and the case went to the Supreme Court.
The
supreme court said that the, a real and substantial difference be there between
the parties, that dispute. Any element of dispute which has an element of
continuity and persistence. If it is not resolved, it will lead to
inconsistency and also endanger in the peace of the industry as well as the
community. And such kind of dispute comes under section 2(k) of the act. The dispute
in a wider sense may mean any quarrel or difference, which is connected with
the employment or non-employment or the terms of employment or, with the
conditions of labour of any person there comes into existence an industrial
dispute. It connotes a real and Substantial, difference having some element of
persistency and continuity till resolved and likely if not adjusted to endanger
the industrial peace of the undertaking or the community.
Whenever
the dispute is referred for adjudication, then we are automatically going to
presume that a particular dispute is an industrial dispute. (refer to the
blog of - institution of settlement of trade dispute). Dispute as defined
under section 2(k), must be in relation to existing industry and it should not
be a dead industry. An industrial dispute under this section is when the demand
is raised by workmen and that demand is denied. Industrial dispute under this
section also includes a claim of an employee who ceases to be a workman,
restricted to some condition that it has to be supported by the union. But we
are not limiting to it as the industrial dispute can also be raised between the
2 workman or 2 employers as well.
Western
Indian Automobiles Association vs. Industrial Tribunal[2]
Employment
and non-employment meaning
The
supreme court said that the term employment can be of 2 types, explained by 2
examples. i) Employer already employed a person whereas the union says to not
to employ that person. ii) employers give notice to the trade union in order to
employ a new person, to which the union denies.
The
court also explains the term Non-employment by 2 examples –
1)
When an employer dismisses a workman and denies employing him. E.g.: in case of
Railway or state education system, where the employment is given on the basis,
the father dies during working for that industry. It is called Compensate or
compassionate employment. So as per the service rule, an opportunity be given
to the family member and if it is denied by the employer, then in this
situation it will be an industrial dispute
2)
Retrenchment- for any reason employer has the power to remove workman from
their employment. But the employer has to pay compensation and all the dues ap
per the act should be paid. In a situation workman is thrown out without a
reason, it will lead to an industrial dispute.
Non-employment
is negative of employment. Can the reinstatement of a dismissed employee be an
industrial dispute or not. Because this word has not to be mentioned in the
statue, the court held it will come under the ambit of section 2(k) of the act.
Workmen
vs. Hindustan Lever Ltd.[3]
The
supreme court explained the term ‘term of employment and condition of labour’.
Term
of employment not only include specified contractual terms of a contract
between the employer and workman but all the practical, habitually and commonly
understood by the common consent of the parties, even not included in the terms
of the contract.
Condition
of labour- a condition in general in which the labour works. Anything related
to leave with wages, provision of health, safety, welfare provision, bonus,
gratuity payment, and all such similar condition. Residence for the workman
does not fall under condition of labour though.
Workman
Rohtak general Transport Co.[4]
What
constitutes a substantial number of workmen to raise an industrial dispute?
There
was a dispute against the retrenchment of workmen and not giving the duty to
another worker. To which the workmen raised the objection which was supported
by only 5 members out of 22 workmen in total working in the industry.
The
supreme court held that even 5 workmen out of 22 workmen support the cause of
these 2 workmen, it will be referred to as industrial dispute. As it is likely
to cause disharmony and endanger peace within the industry.
Also,
even if a dispute is sponsored by workmen and the reference follows, the
dispute which was an industrial dispute at the date of reference does not cease
to be an industrial dispute merely because it has lost its sympathy of the workmen
thereafter.
Workmen
of Dimakuchi Tea Estate vs. The Management of Dimakuchi Tea Estate[5]
There
was tea state, Mr Banerjee who was a medical officer under probation period,
not consider a workman. He was terminated from his job without giving any
reason in the notice, which the company earlier agreed upon as a condition. He raised
objection and his cause was supported by a trade union. Trade union asked for the
reason, the management gave the reason of incompetence of Mr Banerjee. This
reason was not accepted by the union and hence it became an industrial dispute.
But he was not a workman, can still if the union is supporting the cause.
Issue
– Is Mr Banerjee a workman within the meaning of the act to raise an industrial
dispute?
The
Supreme Court said that yes, Mr Banerjee can raise an industrial dispute because
they terminated without giving any reason. Even if the person is not a workman,
the union is supporting a cause, which is not following the terms of the contract.
And the employer is hiring and firing anybody. The court recognised it as an industrial
dispute. Because the cause and not the person is supported by the union, that
individual dispute become an industrial dispute.
‘Any
person’ never means any workman. But a person in whose, the workman as a class
the workman a substantial interest that nexus has to be established.
How an Industrial Dispute can be raised and settled under the Industrial Dispute Act, 1947
In the bare act, there is no specific requirement or manner mentioned to raise the industrial dispute. Therefore, the courts have also not particularly specified the manner to raise an industrial dispute per se. Demand specifying the matter in dispute-made on the employer and such demand rejected by him. Dispute of workman – when takes the character of an industrial dispute. When the matter is supported or sponsored by a substantial number of workmen, then the only individual dispute will take the form of an industrial dispute. Industrial dispute need not be raised by all the workers. Settlement of industrial dispute: (refer to the article)
Observation
The
issue might come that why would an employer or the government refer the dispute
to any institution for settlement. The state government has to refer the case
to the higher authority as there is no other way out because the matter like
industrial dispute like a forest fire if not resolved quickly. Union of other industries
also start to protest in order to support the cause. The appropriate government
is responsible for the settlement of the industrial dispute because it is the
duty of the ruling government that the industries function well under their
jurisdiction, and hence in case of any dispute nonconformity arose within the
industry itself, the appropriate government quickly tries to resolve it for
maintaining peace and smooth functioning.
Standard
Vacuum Refining Co. of India Ltd v Their Workmen[6]
What
is ‘any person’ defined by the Supreme Court
Facts the workers made a demand for the abolition of the
contract system that prevailed in the company and for absorbing the workmen
employed through the contractors into the regular service of the company with
retrospective effect from the date of their employment in the company through
the contractors. As the contractor changes the workmen were anytime thrown out or
taken in for the employment and hence there was no security of service.
The
Supreme Court laid down the following condition to transform an individual
dispute into industrial dispute. Whenever you wanted an individual dispute to
be converted into the industrial dispute, one has to establish that if the
dispute is not dissolved then it will affect the workmen as a class, which is
also known as ‘community interest’. Workmen who are supporting the dispute
shall be working for the same employer (not even similar employer). Whenever an
individual dispute is raised (then the dispute has to be a real dispute,
supported by a substantial number of workmen) and the company is not in a
position to provide the relief (as per the service rules), then it no
individual dispute will become an industrial dispute. E.g.: a woman wants to enjoy the maternity benefit,
but the employer is not in a position to provide such relief as there is no
such law for that particular industry, then this particular individual dispute
will not be converted into industrial dispute.
The
Supreme Court upheld the decision of the Tribunal and held the contract system with
respect to this work should be abolished. Discontinue the practice of getting a
contractor and to have it done through workmen engaged by itself.
Observation:
If the individual dispute is supported by the substantial number of people, but
just before the judgment comes, the workmen drew their support, then what will
happen?
In
this case, if the nature of the dispute does not fall under the ambit of
section 2 of this act.
Workmen
of India Express Ltd v Management of India Express Ltd[7]
There
were 2 workers (lithographers), who got terminated from their service. None of
the trade union or the workmen supported their cause, who were working in that
industry. But it was supported by Delhi Union of Working Journalist. This union
was in Delhi and was not of lithographer but of a journalist.
The
issue before the court - Whether the cause of section 2(k) of the Act, the workmen
in a particular establishment in an industry could be sponsored by Delhi Union
of Working Journalist, which is not a union of workmen of the establishment but
a union of similar or allied trade. Can such individual dispute be an
Industrial Dispute or not?
The
Supreme Court held that in any establishment if there is no trade union of
their own or some of the workmen join the other trade union of similar
industry. If none of the workmen or union of your very own industry is
supporting you but if any other union of the same industry is supporting your
cause and such a union take up the cause of. The dispute will become Industrial
Dispute, if there was no union of workmen in an establishment, a group of
employees can raise the dispute which becomes an industrial dispute even though
it is a dispute relating to an individual workman and lastly that where the
workmen of an establishment have no union of their own and some or all of them
have joined a union of another establishment belonging to the same industry, if
such a union takes up the cause of the workman working in an establishment
which has no union of its own, the dispute would become an industrial dispute
if such a union can claim a representative character in a way that its
support would make the dispute an industrial dispute
If
the industry is different, then it would not become Indutrial Dispute. But in
the above case, the union and the industry are the same industry of newspaper
industry. Hence their cause was termed as Industrial Dispute by the Supreme
Court.
Section
2-A:
Automatically the Individual Dispute will be deemed as Industrial Dispute if
the dispute is related to the:
· 1. Discharge,
· 2. Retrenchment,
· 3. Dismissal
or
· 4. Wrongful
termination of service
There
is no need for support of trade union or a substantial number of workmen as
well.
[1] AIR 1978 SC 1088
[2] AIR 1949 FC 111
[3] 1984 1 SCC 392
[4] 1962 1 LLJ 634 SC
[5] (1958) SCR 1156
[6] AIR 1960 SC 948
[7] 1970 2 LLJ 132 SC
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