Submitted by: Charan Kamal Singh MBA(HR) Topics: (1) Reinstatement and re-employment of retrenched workmen (2) Termination within probation (3) Special Provision Relating to Lay-off, Retrenchment and Closure in Certain Establishments.
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Industrial Dispute Act 1947
Topics: (1) Reinstatement and re-employment of retrenched workmen (2) Termination within probation (3) Special Provision Relating to Lay-off, Retrenchment and Closure in Certain Establishments.
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INDEX
S. No. CONTENTS PAGE No. 1 Reinstatement and re-employment of retrenched workmen 4-5 2 Termination within probation 5 3 Special Provision Relating to Lay-off, Retrenchment and Closure in Certain Establishments 6-12 References 12
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1. Reinstatement and re-employment of retrenched workmen
Reinstatement refers to restoration of a former employee to his/her previous position after unfair or unlawful dismissal, demotion or transfer. Reinstatement usually involves no loss of entitlements or earnings that have been accrued for a period between the original dismissal and the date the employee was reinstated. This means that the employee is deemed to have continued to perform the work for the employer, although not employed by the employer during that time. Unlike reinstatement, re-employment usually means a loss of earnings and accrued entitlements for the period between the original dismissal and the date the employee was re-employed.
Reinstatement of retrenched workmen When the retrenchment of the worker is invalid his reinstatement can be ordered. When an order with respect to reinstatement of a workman is passed it must also ordinarily lead to reinstatement with full back wages. In case a worker is entitled to be reinstated with full back wages but the employer prefers to pay him compensation instead of reinstatement then it is necessary for the employer to pay him adequate compensation in order to meet justice. There are some exceptional circumstances also where it may be impossible or may be wholly inequitable for the employer and workmen to direct reinstatement with full back wages. For e. g., the industry might have closed down or it could be in deep financial problems or the concerned workmen may have secured a better employment elsewhere. In such cases, the Court has the power to make consequential orders.
Reinstatement with full back wages Every workman invariably pleads that after he was retrenched or unemployed he was not able to find any job. Therefore on the basis of this assertion the burden is on the employer to prove that the said worker had been gainfully employed during the period he was rendered unemployed. In case the reinstatement of the workmen has been ordered with continuity of service and the workmen are ready to work but they are kept away therefrom on account of invalid act on the part of the employer then the employer has to reinstate them with full back wages. 1 But this cannot be considered as straight rule and the discretion of the Tribunal is necessary with respect to reinstatement of the workmen with full back wages. Reinstatement with full back wages is considered to be a normal rule and the employer is required to establish the circumstances necessitating the departure.
1 Hindustan Tin Works Ltd. v. Its Employees, (1978) II L.L.J. 474 (S.C.) 5
Re-employment of retrenched workmen When the workman has been retrenched on grounds of surplus staff by the employer then it is the duty of the employer to offer the retrenched employee an opportunity to join the service whenever any opportunity arises. The retrenched workmen would be given a preference over others provided that they offer themselves for employment. The provision for this has been made under the section 25-H of the Industrial Dispute Act, 1947. It is required that the worker should have been retrenched prior to re-employment. Also, the workman is required on his part to offer himself for re-employment in response to any notice regarding re-employment given by the employer. The worker is required to have been retrenched from the same category of the service with respect to the industrial establishment in which the employer has proposed to provide him re-employment. Only a worker who has been retrenched can claim benefit under the Section 25-H. In case of dismissal, discharge or superannuation the worker cannot make a claim for re- employment.
2. Termination within probation
There is no legal bar on terminating an employee during his or her probation period without notice for any reason unless in his letter of appointment notice there is a mention of notice period. The order of termination of service within the period of probation on ground that the service was unsatisfactory cannot be held bad under the law. 2 The termination of services of an employee either during the initial period of probation or during the extended period of probation on the basis of the ground that the services of the employee was not suitable is considered to be as retrenchment. 3 The above view was overruled by the Supreme Court in the case of M. Venugopal v. L.I.C. of India, A.P. and another. 4 The supreme court held in the above mention case that the termination of service cannot be considered as retrenchment under section 2(oo) of the Industrial Dispute Act, 1947 because the conformation of the probationer was dependent on the conditions of fulfilment of minimum business guarantee and the employee failed on his part to fulfil the minimum requirement as prescribed. Therefore L.I.C. was justified in terminating the service of the employee on probation without complying with the provisions of the Industrial Dispute Act, 1947 relating to retrenchment.
2 Rajaji Nagar Co-operative Bank Ltd. v. K. Gujuraj and another, (2001) II LLJ 412 (SC)
3 Management Karnataka State Road Transport Corpn., Bangalore v. Shek Abdul Khader and others, (1984) I LLJ 110 (SC)
4 (1980) II LLJ 72 (SC) 6
3. Special Provision Relating to Lay-off, Retrenchment and Closure in Certain Establishments
After the amendment in the year 1976 in the Industrial Dispute Act, 1947 the chapter relating to Special Provision Relating to Lay-off, Retrenchment and Closure in Certain Establishments was added. This act was added as the section V-B to the Industrial Dispute Act, 1947. This chapter consists of Section 25-K to 25-R. The various sections of this chapter have been discussed in detail below:
Application of chapter V-B (Section 25-K). The provisions of this chapter is applicable to any industrial establishment in which hundred or more than hundred workers have been employed on an average per working day in the the last preceding 12 months. The industrial establishment should not be of seasonal character or in which the work has been performed intermittently. Also, the decision of the appropriate government shall be final in case a question arises that whether the work performed is of seasonal character or whether the work is performed intermittently.
Definitions (Section 25-L) Under this section an industrial establishment has been defined as a factory as per section 2(m) of the Factories Act, 1948 or a mine as per section 2(1) (i) the Mines Act, 1952 or as a plantation as per section 2(f) of the Plantations Labour Act, 1951. Also, under this act the central government shall be the appropriate government in relation to any company in which more than 50% of the paid up share capital is owned by the central government. Also, in case of corporations which have been established by or under any law which had been made by the parliament the central government shall be the appropriate authority provided that the corporation is not the corporation mentioned under the sub-clause (ii) of clause (a) of Section 2 of the Industrial Dispute Act, 1947. Section 2 (a) (ii) is related to State public sector undertakings, subsidiary companies, autonomous bodies that have been set up or owned by the State Government.
Prohibition of lay-off (Section 25-M) As per Section 25-M, no workman employed in an industrial establishment (as defined in the section 25-L) and whose name appears on the muster role of that industrial establishment can be laid-off without taking prior permission of the appropriate government or any other 7
authority specified by the appropriate government (through notification in the official gazette). The worker should not a badli or casual workman. For taking permission the application needs to be sent to the appropriate government or specified authority, unless such a lay-off is regarding to shortage of power or natural calamity or in case of mine such a lay- off is a result of flood, fire, explosion or excess of inflammable gas. The application has to be made in the prescribed manner and should clearly state the reasons relating to lay-off. It is also necessary to serve a copy of the application to the workmen concerned. In case the lay-off occurs in a mine due to the reasons of flood, fire, explosion or excess of inflammable gas, the concerned employer has to make an application in the prescribed manner within 30 days of the commencement of the lay-off to continue the lay-off. The application should be made as discussed above to the appropriate government of specified authority. The appropriate government or the specified authority shall conduct an inquiry on the application made. The appropriate government (or specified authority) should give equal chances of being heard to the employer as well as the workmen concerned and also to any other persons interested in such lay-off. If the appropriate government is satisfied that the permission is rightly sought as per the provisions of the act, the appropriate government or the specified authority after considering the adequacy and genuineness of the reasons given by the party requesting for the permission by an order may grant or refuse permission. The order has to be made in writing and the copy of such an order is required to be communicated to both the employee and the workmen. In case where the application for permission has been made as per the provisions of the act and the appropriate government or the specified authority does not communicate any decision on grant of refusal of the application within 60 days of making such an application after the expiry of 60 days period shall be deemed to be granted. The order of the appropriate government or the specified authority regarding refusal or grant of permission shall be final and would be binding on all parties concerned and will be in force for one year from date of passing. The appropriate government (or specified authority) on the basis of the application made by the employer or any workmen or on its own may review the order regarding deny or grant of permission or it may refer the matter for adjudication process to the Tribunal. The Tribunal is required to pass an award within a period of 30 days from the date the matter was referred to it. In case no application for lay-off has been made by the employer as per sub-section 3 to the appropriate government (or the specified authority) or in case the permission has been refused by the appropriate government regarding lay-off then such a lay-off shall be deemed as illegal and all the benefits will be given to the workmen to which he is entitled. In case of exceptional circumstances such as an accident in the establishment or death of the employer, the appropriate government if satisfied, may by order direct that the provisions relating to conditions for lay-off of workers as explained above will not be applicable to such 8
an industrial establishment for a period as mentioned in the order of the appropriate government. Also, the worker shall not be considered as laid-off by the employer if the employer offers him any alternative employment. Such a employment can be offered in the same establishment or any other establishment of the same employer. The establishment should be situated in the same town or village, or the establishment is situated within such a distance from the existing establishment that the transfer will not cause any undue hardship to workman are far as the facts and the circumstances of the case is concerned. It is also necessary that the workmen shall be paid same wages in case of alternate employment which would have been paid normally to him in case of previous employment.
Conditions precedent to retrenchment of workmen (Section 25-N). Under this section the workman who has been in continuous service for a period not less than one year cannot be retrenched unless the employer gives the workman three months prior notice regarding to the reasons for the retrenchment. Also, the employer is required to pay the wages in lieu of any such notice before retrenchment. If in case the notice period has expired the employer cannot retrench the workman. The prior permission of the appropriate government and specified authority needs to be taken by the employer as per the provisions contained in this act before proceeding for retrenchment. The application shall be made in a manner as may be prescribed under the provisions of the act and should clearly state the reasons for the retrenchment intended to be carried out. The copy of such a application is also required to be served to the concerned workmen. The appropriate government or the specified authority shall conduct an inquiry on the application made. The appropriate government (or specified authority) should give equal chances of being heard to the employer as well as the workmen concerned and also to any other persons interested in such retrenchment. If the appropriate government is satisfied that the permission is rightly sought as per the provisions of the act, the appropriate government or the specified authority after considering the adequacy and genuineness of the reasons given by the party requesting for the permission by an order may grant or refuse permission. The order has to be made in writing and the copy of such an order is required to be communicated to both the employee and the workmen. In case where the application for permission has been made as per the provisions of the act and the appropriate government or the specified authority does not communicate any decision on grant of refusal of the application within 60 days of making such an application after the expiry of 60 days period shall be deemed to be granted. The order of the appropriate government or the specified authority regarding refusal or grant of permission shall be final and would be binding on all parties concerned and will be in force for one year from date of passing. The appropriate government (or specified authority) on the basis of the application made by the employer or any workmen or on its own may review the order regarding deny or grant of permission or it may refer the matter for adjudication process to the Tribunal. The Tribunal is 9
required to pass an award within a period of 30 days from the date the matter was referred to it. In case no application for retrenchment has been made by the employer as per sub-section 1 to the appropriate government (or the specified authority) or in case the permission has been refused by the appropriate government regarding retrenchment then such a retrenchment shall be deemed as illegal and all the benefits will be given to the workmen to which he is entitled. In case of exceptional circumstances such as an accident in the establishment or death of the employer, the appropriate government if satisfied, may by order direct that the provisions relating to conditions for retrenchment of workers as explained above will not be applicable to such an industrial establishment for a period as mentioned in the order of the appropriate government. In case the permission for retrenchment by the appropriate government (or specified authority) has been granted or is deemed to have been granted, every workman who has been employed in the concerned industrial establishment on a date before which the application was made for retrenchment, shall be paid with compensation which shall be equivalent to average pay of 15 days for every year of continuous service completed by the workman or any part thereof which is in excess of six months.
Procedure for closing down of an undertaking (Section 25-O). Under the provisions of this section any employer who intends on closing down of the undertaking of the industrial establishment is required to apply for permission to the appropriate government. The application shall be made at least 90 days before the date on which the closure is intended to become effective. The employer shall clearly state the reasons for the intended closure in the application and also he is required to serve the notice to the workmen in the prescribed manner under this section. The provisions are not applicable to an undertaking which has been set up for the purpose of construction of bridges, canals, roads, dams or buildings or any other construction work. The appropriate government or the specified authority shall conduct an inquiry on the application made. The appropriate government (or specified authority) should give equal chances of being heard to the employer as well as the workmen concerned and also to any other persons interested in such closure. If the appropriate government is satisfied that the permission is rightly sought as per the provisions of the act, the appropriate government or the specified authority after considering the adequacy and genuineness of the reasons given by the party requesting for the permission by an order may grant or refuse permission. The order has to be made in writing and the copy of such an order is required to be communicated to both the employee and the workmen. In case where the application for permission has been made as per the provisions of the act and the appropriate government or the specified authority does not communicate any decision on grant of refusal of the application within 60 days of making such an application after the expiry of 60 days period shall be deemed to be 10
granted. The order of the appropriate government or the specified authority regarding refusal or grant of permission shall be final and would be binding on all parties concerned and will be in force for one year from date of passing. The appropriate government on the basis of the application made by the employer or any workmen or on its own may review the order regarding deny or grant of permission or it may refer the matter for adjudication process to the Tribunal. The Tribunal is required to pass an award within a period of 30 days from the date the matter was referred to it. In case no application for closure has been made by the employer as per sub-section 1 to the appropriate government or in case the permission has been refused by the appropriate government regarding closure then such a closure shall be deemed as illegal and all the benefits will be given to the workmen to which he is entitled. In case of exceptional circumstances such as an accident in the establishment or death of the employer, the appropriate government if satisfied, may by order direct that the provisions relating to conditions for closure as explained above will not be applicable to such an industrial establishment for a period as mentioned in the order of the appropriate government. In case the permission for closure of the undertaking by the appropriate government has been granted or is deemed to have been granted, every workman who has been employed in the concerned undertaking on a date before which the application was made for closure, shall be paid with compensation which shall be equivalent to average pay of 15 days for every year of continuous service completed by the workman or any part thereof which is in excess of six months.
Special provision as to restarting of undertaking closed down before commencement of the Industrial Disputes (Amendment) Act, 1976 ( Section 25-P). Under this section the conditions for restarting of an undertaking of an industrial establishment which has been closed down before Industrial Disputes (Amendment) Act, 1976 has been discussed. The conditions are as follows: - If the appropriate government has the opinion that the undertaking was closed down on account of circumstances that were beyond the control of employer. - If the appropriate government has the opinion that there are possibilities of restarting the undertaking. - If the appropriate government has the opinion that it is necessary to restart the undertaking for rehabilitation of the workers who were employed in the undertaking. - If the appropriate government has the opinion that restarting of the undertaking is necessary to maintain the supplies and services which are essential with respect to the life of the community. - If the appropriate government has the opinion that restarting of the undertaking will not impose any kind of hardship on the employer.
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In the above cases, the appropriate government after giving an opportunity to restart to the employer may by order direct that the undertaking ought to be restarted. The order should be published in the official gazette and the time given to the employer to restart the undertaking should not be less than one month from the date on which the order of restarting of the undertaking has been passed.
Penalty for lay-off and retrenchment without previous notification (Section 25-Q)
Under this section any employer who has contravened the provisions contained in the section 25-M or section 25-N is liable to be punished with imprisonment for a period which may extend to 1 month or a fine may be imposed on him which may extend to Rs.1000 or he may be imprisoned and fined both.
Penalty for closure (Section 25-R)
Under this section any employer who has closed down an undertaking of an industrial establishment without adhering to the provisions of the sub-section (1) of Section 25-O is liable to be punished with imprisonment for a period which may extend to 6 months or a fine may be imposed on him which may extend to Rs. 5000 or he may be imprisoned or fined both.
Any employer who has contravened an order of the appropriate government related to refusal to grant permission to close down an undertaking of the industrial establishment under sub- section (2) of Section 25-O or a direction which has been given under Section 25-P is liable to be punished with imprisonment for a period which may extend to 1 year or a fine may be imposed on him which may extend to Rs.5000 or he may be imprisoned and fined both. In case of continued contravention he may be subjected to a further fine of Rs. 2000 for every day during the period the contravention continues after conviction.
Any employer who has contravened the provisions contained in the sub-section (3) of section 25-O is liable to be punished with imprisonment for a period which may extend to 1 month or a fine may be imposed on him which may extend to Rs. 1000 or he may be imprisoned or fined both.
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Certain provisions of Chapter V-A to apply to an industrial establishment to which this Chapter applies (Section 25-S).
As per section 25-S the provisions contained in the sections 25-B, 25-D, 25-FF, 25-G, 25-H and 25-J in Chapter V-A, so far as the case may be, shall be applicable also in relation to an industrial establishment to which provisions of the Chapter on Special Provision Relating to Lay-off, Retrenchment and Closure in Certain Establishments are applicable. Under section 25-B the continuous service has been defined. Section 25-D is related to the duty of the employer to maintain muster rolls of workmen. Section 25-FF is related to compensation given to the workers in case of transfer of undertakings. Under section 25-G procedure for retrenchment has been given. Section 25-H is related to re-employment of retrenched workmen. Section 25-J is related to effect of laws which are inconsistent with the Chapter V-A.
References
Balasubramanian, A., Industrial Relations, Indian Institute of Modern Management, Pune, pp. 38-88.
Mishra, S.N., Labour and Industrial Law, Central Law Publications, Allahabad, 27 ed., pp. 207-269.
Sinha, P.N., Industrial Relations, Trade Unions and Labour Legislations, Pearson Publications India, New Delhi, pp. 368-397