Sachin Ranglal Nikam. C.J.J.D. & J.M.F.C.

Motala SUBJECT: Workshop of Judicial Officers of Buldana District To be held on 24/09/2011 at Khamgaon TOPIC: Labour & Industrial Law and Departmental Inquiries INTRODUCTION 1. Labour and industrial laws aim at maintaining harmony in labour-capital relationship, at doing away with the differences amongst them and avoiding exploitation of labour. While the Laws relating to Departmental Inquiry put a check on the work, conduct, behavior and integrity of a Government Servant so as to ensure discipline in the system. The industrial Dispute Act, 1947 & M. R. T. U & P. U. L. P Act, 1971 BACKGROUND 2. Starting with the Bengal Regulation VIII of 1819, Labour Laws has come a long way with the enactment of the Industrial Disputes Act, 1947 (Hereinafter referred to as I D Act) and other labour legislations. The major shortcoming of the labour laws prevailing before the commencement of this Act was that settlements or awards under those Acts were not binding or conclusive. Whilst the Trade Disputes Act, 1929 banned strikes, it did not provide an alternative mode of redressing the grievances of workmen. Moreover, under that Act, relief was given only to a few categories of workmen. The provisions of that Act provided for reference of existing or apprehended disputes to a board of Conciliation or a Court of Enquiry; but if the conciliation proceedings failed, then there was no further provision in that Act for settlement of disputes. During World War II, the Defence of India Rules were promulgated, under which for the first time Rule 81-A made a provision for the enforcement of awards.

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This principle of compulsory enforcement of awards has now been incorporated in the I D Act. OBJECT & PURPOSE 3. According to the preamble, the I D Act makes provision for the investigation and settlement of industrial disputes and certain other purposes. The object of the Act is to achieve the promotion of harmony in labour-capital relationship. It provides machinery for the settlement of industrial disputes by arbitration or adjudication. It attempts to ensure social justice and economic progress, for fostering industrial harmony. It enables workmen to achieve their demands by means of legitimate weapon of strikes, and thus facilitates collective bargaining. It prohibits illegal strikes and lockouts. It also provides relief of workmen in the event of a lay-off or retrenchment. It enables the state to play a constructive role in employer-workmen relationship, in keeping with the concept of a welfare state. 4. The Act defines Industry to mean any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workman. This definition was amended in 1982 by Industrial Disputes Amendment Act, 1982, but the amended definition has not yet been brought into force. Pursuant to the decision in the case of Bangalore Water Supply and Sewage Board-Vs-Rajappa reported in A I R 1978 S C 548, the ambit of the term Industry was widened. In this judgment of far-reaching importance, Honble Apex Court had brought within the scope of this definition, clubs, educational and research institution and charitable projects. It laid down tests to help to determine whether an activity is an industry within the meaning of the Act. 5. The Act provides for seven authorities, their constitution, powers, duties and procedure for the purpose of dealing with the Industrial Disputes. Sec.3 of the Act provides that in industrial establishments in which 100 or more workmen are empowered (or have been employed on any day in the last 12 months), the appropriate Government may by general or special order require the employer to constitute a Works Committee in the prescribed manner. The works committee has to deal with measures to preserve amity and
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cordial relations between the employer and the workmen to comment upon issues of common interest or concern and to attempt to settle any material difference of opinion in such matters. In Kemp & Co. VsIts workmen reported in 1955 I LLJ 48 S C it was held that although the decisions of the works committee are not conclusive they do have great weight. The appropriate Government may, by gazetted notification appoint Conciliation Officers for a specified area or a specified industries in specified area, either permanently or temporarily to mediate in or promote the settlement of industrial disputes by holding conciliation proceedings. Under sec.5 of the Act, the Appropriate Government may, as occasion arises, by gazetted notification, constitute a Board of Conciliation for promoting settlement of industrial disputes. Likewise it may also constitute Courts of Inquiry for inquiring in to any matter appearing to be connected with or relevant to any industrial dispute. It is empowered to constitute one or more Labour Courts, Industrial Tribunals, and National Tribunals for the adjudication of industrial disputes relating to any matter specified in second schedule and third schedule and for the performance of other functions as may be assigned to them under the Act. 6. Chapter V of the Act deals with reference of industrial disputes to boards, courts or Tribunals. It has been provided that no dispute can be referred to Boards, Courts or Tribunals unless it is first referred to Grievance Settlement Authority and its decision is not acceptable to any of the parties to the dispute. The dispute may be voluntarily referred to arbitration u/sec 10 A by the parties by a written agreement. The effect of an order of reference u/sec.10 is generally as under,1] Where an industrial dispute has been referred for adjudication 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 reference. Sec.10 (3) 2] Where in an order of reference, the appropriate government has specified the points of dispute for adjudication the same is to be confined to those points and matters incidental thereto. Sec.10 (4)
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3] where a dispute concerning any establishment or establishment has been, or is to be referred to adjudication and the appropriate government is of opinion whether on application or otherwise that the dispute is of such a nature that any other establishment group or class of establishments of 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 the reference such establishment group or class of establishments whether or not at the time of such inclusion any dispute exists or is apprehended in the establishment, group or class of establishments. Sec.10 (5) 7. Chapter VI deals with Award. Normally an award becomes enforceable on the expiry of 30 days from the date of its publication under sec.17. When the appropriate government or the central government makes a declaration under the proviso to sec.17 A (1), the award shall not become enforceable on the expiry of said period of 30 days. Where an award has been rejected or modified within 90 days of its publication u/sec.17 A (1) although a declaration under the proviso to sec.17 A (1) has been made the award becomes enforceable on the expiry of the period of 90 days from the date of its publication u/sec.17. The award becomes operative either from such date as may be specified in the award itself, or if no such date is specified on the date when the award becomes enforceable u/sub sec.(1) or (3) of sec.17 A. The award then becomes binding on the parties concerned. Breach of any term of settlement or award has been made punishable offence u/sec.29 of the Act with imprisonment upto six months or with fine or with both. 8. Sec.22 and 23 have prohibited strikes and lock-outs in breach of contract without following the conditions given therein and strikes and lock-outs declared in contravention thereof or sec.10 of the Act make the same illegal and such illegal strikes or lock-outs are made punishable u/sec.26 of the Act. 9. Chapter VIII of the Act provides for lay-off and Retrenchment. The distinction between the two is as under,-

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1] Lay-off does not involve the termination of services, while retrenchment necessarily involves such termination. 2] Lay-off is the failure, refusal or inability of an employer to give employment to a workman on account of A] B] C] Shortage of coal, or raw material or The accumulation of stocks, or Breakdown of machinery, or any other reason

Retrenchment is the termination of service of the workman for any reason whatsoever but does not include,A] B] Punishment by way of disciplinary action, or Voluntary retirement, or

C] Retirement at the age of superannuation, if the contract of employment contains a provision in that behalf, or D] Termination on the ground of continued ill-health

3] A retrenched workman cannot be laid-off, however, a workman who has been laid off may be subsequently retrenched. 4] A workman may be laid off only on the grounds mentioned in sec.2 (k k k), however, a workman may be retrenched on the ground that his services are not required for any reason whatsoever, except the grounds which have been specifically excluded. 5] The right to receive lay-off compensation is subject to restrictions under the Act. However, right to retrenchment compensation is absolute. UNFAIR LABOUR PRACTICES 10. The purpose of The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (Hereinafter, referred to as MRTU & PULP Act) is inter alia to provide for the recognition of Trade Unions for facilitating collective bargaining for certain undertakings, to state their rights and obligations and to confer certain powers on unrecognized unions. The Act also provides
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for declaring certain strikes and lock-outs as illegal and prevention of unfair labour practices. It also deals with the constitution of courts as independent machinery for carrying out the purposes of according recognition to trade unions and for connected purposes. 11. Sec.26 of MRTU & PULP Act describes that the unfair labour practices are listed in the Schedule II, III, and IV of the Act. Such unfair labour practices are classified into (a) unfair labour practices on the part of employers, (b) unfair labour practices on the part of Trade unions and (c) General unfair labour practices on the part of employers. Sec.27 of the Act prohibits engaging in unfair labour practices. PROCEDURE FOR DEALING WITH COMPLAINTS U L P 12. Any union or any employee or any employer or any Investigating officer, against whom any person has engaged or is engaging in any unfair labour practice, may within ninety days of the occurrence of such unfair labour practice, file a complaint before the competent court to deal with such complaint either u/sec.5 or as the case may be u/sec.7 of this Act. However, the court may entertain a complaint after a period of 90 days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the delay in filing complaint. 13. It is well settled that when applications are made by the workers for condonation of delay; delay is required to be condoned unless the workers have acted mala fide or there is such a gross negligence as a result of which the employer has changed his position and would be prejudiced as held in the case of Hiper Karamachari Sanghatana-VsHiper and others reported in 1991 II LLJ 568 BOM. 14. The court shall take a decision on every such complaint as far as possible within a period of six months from the date of receipt of the complaint and the court may, if it considers it necessary, first cause an investigation into the said complaint to be made by the investigating officer, and direct that a report in the matter may be submitted by him to the court, within the period specified in his direction. During investigation, the Investigating officer may visit the undertaking, where the practice alleged is said to have occurred and
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make such enquiries as he considers necessary. He may also make efforts to promote settlement of the complaint. On completion of his investigation u/sub-sec.4, he shall submit his report to the court, within the time specified by it, setting out the full facts and circumstances of the case, and the efforts made by him in settling the complaint. The court shall on demand and on payment of prescribed fees, supply a copy of the report to the complainant and the person complained against. For the receipt of the report of the investigating officer, the court finds that the complaint has not been settled satisfactorily and that the facts and circumstances of the case require that the matter should be further considered by it, the court shall proceed to consider it and give its decision. The decision of the Court shall be final and shall not be called in question in any civil or criminal court. The court shall cause its order published in the prescribed manner and the order shall become enforceable from the date specified in the order. The order shall be binding on the parties to the complaint and on their heirs, successors or assigns. 15. Sec.25 T of the I D Act also provides that no employer or workman or a trade union whether registered under Trade Union Act, 1926 or not shall commit any unfair labour practice. Sec.25 U provides that any person who commits any unfair labour practice shall be punishable with imprisonment upto six months or with fine upto Rs.1000/- or both. DEPARTMENTAL INQUIRY 16. Section 3 (a) of Departmental Inquiries Act 1972 lays down that, "Departmental inquiry" means an inquiry held under and in accordance with (I) any law made by parliament or any rule made there under; or (II)any rule made under the proviso to Article 309 or contained under Article 313 of the Constitution of India into any allegation of lack of integrity against any person to whom this Act applies; PURPOSE

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17. The purpose of Departmental Enquiry is to enquire into the truth of the charges leveled against the Government servant for alleged disobedience, neglect of duty, remissness in discharge of duty, misconduct or misbehavior done by the alleged person in the capacity of being public servant as such. If the charges are sustained the delinquent may be awarded minor / major penalties depending on the gravity of offence/misconduct. The Supreme Court held that, The only purpose to hold an enquiry is to help punishing authority to come to a definite conclusion regarding guilt of the accused. (Venkatramanan Vs UOI, AIR 1954, SC 375) The second aspect of D.E is to observe the mandatory constitutional provisions under clause (2) of Art 311. Under this provision, no person who is a member of civil service of Government or holds a civil post under the state shall be dismissed or removed or reduced in rank except after an enquiry in which he has to be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Principle of Natural Justice is also to be kept in mind at all steps during the entire proceedings. Departmental Enquiry is quasi-judicial in nature (SC- UOI Vs HC Goel AIR 1964 SC 364) therefore technical rules of criminal trial do not apply to DE (Joga Rao Vs State AIR 1957 AP-197). Hence, Indian Evidence Act and Criminal Procedure Code do not apply to departmental proceedings. GROUNDS OF INQUIRY 18. Normally the departmental enquiries against every government servant are initiated on the following three grounds: (i) Failure to maintain absolute integrity, (ii) Failure to maintain devotion to duty; and (ii) Committing of an act which is unbecoming of a government servant. In exceptional circumstances, there may be other grounds like that of a government servant engaging in plural marriage, etc. 19. Rule 4 of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (Hereinafter, referred to as M C S (D & A) Rules) empowers the appointing authority or any authority to which the appointing authority is subordinate or the disciplinary authority or any other
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authority (empowered in the behalf of the Governor by general or special order), to place a Government Servant under suspension under certain circumstances. Suspension as contemplated in Rule 4 is of two kinds, i. e. as a punishment or as an interim measure pending disposal of inquiry or pending criminal proceeding. The Government can place its servant under suspension where the criminal proceedings are pending against him, during the pendency of such proceedings. However, the Division Bench of Honble Bombay High Court has observed in the case of Machhindra P Chavan- Vs State of Maharashtra reported in 1989 Mah L J 505 DB that, where the suspension is interim pending the criminal trial, the principles of natural justice would not apply to such an order of suspension. It means that giving an opportunity of hearing before such suspension is not necessary since it is an interim measure and not as punishment. 20. The object of suspension order is explained in the case of Arun U Parve-Vs-State of Maharashtra reported in 1994 Bom L C 452 (MAT), it is observed in para 12 of the judgment thatThe object of placing a Government servant under suspension is mainly to ensure that a free and impartial enquiry is conducted in to his alleged misconduct in certain cases, where serious allegations are made it may be proper also to remove him from sphere of his activity by placing him under suspension. The free and impartial enquiry can be achieved by transferring him in some other place or by placing him under suspension. 21. A Government Servant can be penalized if he is found guilty of misconduct. The provisions about the conduct of a Government Servant are made in M C S (Conduct) Rules, 1979. Rule 5 of M C S (D & A) Rules provides that without prejudice to the provisions of any other laws, minor / major penalties as envisaged therein may be imposed on a Government Servant for good and sufficient reasons and as provided in these Rules. 22. Rule 7 empowers Governor or any other authority empowered by him, to institute or direct a disciplinary proceeding against a Government Servant. This Rule is amended by a notification dated 06/02/1998 empowering the Governor or the authority to direct transfer of any pending enquiry from any enquiring authority,
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appointed by the disciplinary authority under sub-rule 2 of Rule 8 to any other enquiring authority if he is satisfied that it is necessary for timely completion of enquiry. The Disciplinary authority may either enquire itself or appoint an inquiring authority. The procedures which need to be adopted for imposing major / minor penalties are given in Rule 8 and 10 in detail. It mandates an enquiry, delivery of articles of charge of imputations and list of documents and witnesses to, and giving an opportunity of being heard to, the delinquent Government Servant. He may take help of a serving or a retired Government Servant to defend himself against the charge of alleged misconduct or misbehavior. The delinquent Government Servant may not engage a legal practitioner unless the presenting officer is a legal practitioner, or the Disciplinary authority permits so having regard to the facts of the case. 23. On such enquiry, the disciplinary authority, if it is not itself the inquiring authority may, for reasons in the writing, remit the case to the inquiring authority for further inquiry and report, and the enquiring authority shall thereupon proceed to hold the further inquiry as given in Rule 8. The Disciplinary authority may disagree with the findings of the inquiry authority. If it agrees with the findings of inquiry authority on all or any of the articles of charge and is of the opinion to impose any minor penalties on the Government servant, it may do so. Similarly, it may impose any major penalties on the delinquent servant, if it comes to such findings and it shall not be necessary to give an opportunity to such Government Servant for the penalty proposed to be imposed. 24. Part 5 provides for appeals against the orders of Authorities and lays down a period of 45 days of limitation for appeal from the date on which a copy of the order is delivered to the appellant. Rule 25 and 25 A also entrust the Governor and the Authority with powers of Revision and Review. CONCLUSION 25. To conclude, the I D Act and M R T U & P U L P Act have overcome the shortcoming of their earlier labour and industrial laws providing for the gray areas. The M C S (D & A) Rules helps in keeping
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effective check on the conduct and integrity of the Government servant.

(S R Nikam) Dt: 01/09/2011 CJJD & JMFC, MOTALA

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