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rajkiran (lawyer)     24 April 2015

Labour law confusion

DEAR ALL EXPERTS ,

                                           CAN ANY LABOUR LAW EXPERT TELL ME AS TO WHEN AND UNDER WHAT CIRCUMSTANCES INDUSTRIAL DISPUTES ACT IS APPLICABLE AND WHEN M.R.T.U. AND P.U.L.P.ACT IS APPLICABLE? YUP THAT I KNOW THAT IN ORDER TO GET INDUSTRIAL DISPUTES ACT APPLICABLE PERSON MUST FALL WITHIN THE DEFINITION OF WORKMAN AND UNDERTAKING MUST FALL WITHIN THE DEFINATION INDUSTRY.BUT MY CONFUSION IS , IF INDUSTRIAL DISPUTES ACT EXISTS THEN WHY COMPLAINT ULP IS FILED UNDER MRTU AND PULP IN LABOUR COURTS OF MAHARASHTRA?IF ANY EMPLOYEE IS TERMINATED WHY SHOULD HE FILE COMPLAINT ULP IF INDUSTRIAL DISPUTES ACT EXISTS OR WHY SHOULD HE SEEK REMEDY UNDER INDUSTRIAL DISPUTES ACT IF MRTU AND PULP ACT EXIST?

                                            CAN ANYONE PLEASE TELL ME THE DIFFERENCE APART FROM RECOGNITION OF TRADE UNION WHICH IS ONLY INCLUDED IN MRTU AND PULP ACT?

                                             SECONDLY----AS THERE IS NO APPEAL UNDER LABOUR COURT'S ORDER(EXCEPT ORDERS UNDER CRIMINAL JURISDICTION) ONLY AGGRIEVED PERSON CAN FILE REVISION TO INDUSTRIAL COURT UNDER SECTION 44. IS IT POSSIBLE IN CASE OF ULP COMPLAINT ONLY? NOT IN REFERENCE IDA? THEN WHAT IF PERSON IF AGGRIEVED  FORMT HE DECISION OF REF.IDA'S WHERE SHOULD HE GO? SHOULD HE FILE WRIT PETITION? OR CAN FILE REVISION UNDER SEC.44?MEANS FROM WHICH ORDERS REVISION LIES AND REVISION DOES NOT LIES?AND WHAT IF REVISION DOES NOT LIES?

                                               THIRDLY----- IN CASE EMPLOYER IS ORDERED TO PAY BACKWAGES BY LABOUR OR INDUSTRIAL COURT IF HE WANT TO FILE WRIT PETITION IN HIGH COURT SHOULD HE HAS TO PAY SOME PERCENTAGE OF BACK WAGES BEFORE FILING THE PETITION?



Learning

 9 Replies

bsrao   25 April 2015

Go to a lawyer in your place. He can advise you better.

rajkiran (lawyer)     25 April 2015

Many thanks Mr.bsrao for such kind of intellectual reply !  i just had forgotten that i have a way  of going to a lawyer and ask him.

                                 the questions which i had raised are technical and procedural in nature can be answered by expert in labour law only. which are not available on net also.this questions can't be asked by layman. In my opinion if anyone don't want to give proper reply he must not bother his fingers in giving replies. 

                                    as a part of professional ethics this manners are taught in law schools to every law student that to co-operate other law professional. i don't know about anybody but i had learnt this in law school. 

                                      i am really glad to have answer of this kind. i think this answer must be used as a title sentence on lawyersclubindia.com . whenever any person who in search of any kind of legal advice approaches and uses this site this sentence will be displayed " go to a lawyer he can advice you better". the purpose of this site will be served in just these lines.lolz

                                     i think this site is used for lawyers and by lawyers so that they can share their knowledge!!!

                            

arulprasath (HR & Legal)     27 April 2015

Hi

 

I would like to share my views; As per the halmark judgement of Bangalore Water-Supply & ... vs R. Rajappa & Others on 21 February, 1978 case given clear defenition for industry and workman. According to this judgement all matters related with employer and employee dispute can be deals with IDA. 

According to the sec 2 (k) give the provision to rise the dispute before concenred jurisdiction sponsered or espousal of unions.  But some time aggrieved employees may not get the support from representatives. In this situation aggrieved employee can be apporached MRTU. But after insert the section 2A give the provision to individual employee can approach the jurisdiction mater of dismissal, retrenchment, termination etc. any matter within fifth schedule that aggrieved employee can be challenge before JCL.

 

Finally any ordered issued to the employer for giving the backwages and employer wants to challenge against that order need not to pay the arrears untill further order is issued.

rajkiran (lawyer)     27 April 2015

Respected arulprasath sir, thanks for your reply,

                                              yes bangalore water supply judgement laid down the same. and section 2 (k) defines industrial dispute.

                                                please correct me if i am not wrong.what i understood from your reply.

  you want to say that all catagories of disputes can be raised under industrial disputes act but when employee is terminated and recognized union is not helping him adequately then the same employee can raise dispute under MRTU AND PULP Act in the labour court. isnt it?

arulprasath (HR & Legal)     28 April 2015

Dear Rajkiran

 

Yes, This is how we are practicing here.

 

(IDA fifth schedule of Unfair labour practice seeking the justice from Laour court. According to your statement said that maharashtra has the seperate act for the ULP, I understood maharashtra is giving more protection to the worker community) 

rajkiran (lawyer)     28 April 2015

thanks for your reply arulprasath sir

rajkiran (lawyer)     01 May 2015

respected arulprasath sir,

                                                    according to section 2(a) of the industrial disputes act individual employee can also seek remedies under this section though it is not adequately supported by trade union.then instead of filing complaint industrial disputes act why many employees approaches labour court under MRTU &PULP Act by filing complaint ULP in all labour courts of maharashtra?

                                                       i am confused on this issue only. as industrial disputes act gives right to employee to raise an industrial disputes at an individual level then yes i can understand he approaches before ACL under industrail disputes then why many employees approches to labour court under MRTU and PULP act?bangalore water supply case mentions that no particular number of persons is essential for raising dispute under IDA.the every employee whos services are terminated should have to seek remedy under IDA and should not file complaint ULP in labour court isnt it? then why people approaches labour court directly if they can raise dispute under IDA before JCL?

 it is really confusing i am not forcing you to give answer if you have trouble or irritation

V.RAGHUNADH   15 November 2017

Dear Rajkiran, hope the following extract may throw some light on the doubt posed by you :

"COMPRESSION OF PROVISIONS OF THE INDUSTRIAL DISPUTES ACT CONCERNING UNFAIR LABOUR PRACTICES WITH THE PROVISIONS OF THE MAHARASHTRA ACT. “When we keep the relevant provisions of the Industrial Disputes Act concerning unfair labour practices in view and compare these provisions with the provisions of the Maharashtra Act, a clear difference becomes obvious. Section 25-T of the Industrial Disputes Act prohibits an employer or workman or a trade union from committing any unfair labour practice. While so far as Section 27 of the Maharashtra Act is concerned, it prohibits an employer or union or employee from engaging in any unfair labour practice. Consequently the prohibition under the Industrial Disputes Act is against the commission of unfair labour practice which may include the final acts of such commission. While Section 27 of the Maharashtra Act prohibits the concerned party even from engaging in any unfair labour practice. The word `engage' is more comprehensive in nature as compared to the word `commit'. But even that apart, Section 25-U provided for penalty for committing unfair labour practice and mandates that whoever is guilty of any unfair labour practice can ..8.. be prosecuted before the competent court on a complaint made by or under the authority of an appropriate Government under Section 34(1) read with Section 25-U of the Industrial Disputes Act. So far as the Maharashtra Act is concerned, there is no direct prosecution against a party guilty of having engaged in any unfair labour practice. Such a prosecution has first to be preceded by an adjudication by a competent court regarding such engagement in unfair labour practice. Thereafter, it should culminate into a direction under Section 30(1)(b) or it may be a subject matter of interim relief order under Section 30(2). It is only thereafter that prosecution can be initiated against the concerned party disobeying such orders of the Court as per Section 48(1). Consequently, it cannot be said that the Division Bench of the Bombay High Court was not right when it took the view that the act of engaging in any unfair labour practice by itself is not an offence under the Maharashtra Act while such commission of unfair labour practice itself is an offence under the Industrial Disputes Act.” SOME CASE LAWS In a Bombay High Court in the Murlidhar s/o Atmaram Wani vs Dharangaon Nagarpalika (2008(1) CLR 825) case, the Hon'ble Court held that a litigant should be given an opportunity to prosecute for its remedy on merits rather than rejecting his claims on mere technicalities. In this case, the petitioner was working for the municipal council as a driver on daily wages. He filed a complaint under MRTU & PULP Act 1971, claiming various service benefits including permanency. The Industrial Court had allowed the permanency benefit to the petitioner, awarded payment of relevant wage rates with retrospective effect and directed the council accordingly. When the council did not comply with the direction of the Industrial Court to grant permanent status to the petitioner and subsequently failed to pay pensionary and other retirement benefits upon his superannuation, the petitioner filed complaints under MRTU & PULP Act. The respondents objected to the complaints on the ground of undue delay without justification. The petitioner replied that the Chief Officer of the council had already paid some part of the benefit by installments and, therefore, he had reason to believe that the rest will also be paid to him. He cited the verbal assurances of the Chief Officer of the council that he would be paid his dues, in due course. The High Court observed that the delay in filing complaints was not on account of either negligence or callousness of the petitioner. The Court further observed that petitioner being a class IV employee belongs to that stratum of the society 11/15/2017 Print Article : Concept of unfair labour practice and the procedure for its redressal under M.R.T & P.U.L.P Act https://www.legalservicesindia.com/article/print.php?art_id=1051 6/7 which cannot be expected to challenge the authority of his employer, more so after being given a verbal assurance by a high ranking official of the employer. A litigant should be given an opportunity to prosecute its remedy on merits because it advances the substantial cause of justice. Delay in the present case has been caused not by the fault of the party but by the circumstances of the case. Therefore, it has to be condoned, and the complaints filed by the petitioner for the ULPs of not ..9.. granting retirement and pensionary benefits as well as permanent status would have to be decided on merits and in accordance with law. In another case, Ratnagar Ramchandra Patil vs Municipal Corporation of Greater Bombay (2008 (1) CLR 923), before the same High Court, a similar judgment was given on 25 February 2008. The Justice BH Marlapalle held that refusing promotion from class IV to class III posts amounts to ULP if the rules of the organisation contain provision for such promotions. The High Court held that it is well settled that to be considered for promotion is a legal right and if the same is infringed due to the inaction or wrong action of the employer, the employees have a right to seek redressal before the appropriate judicial forum. The Industrial Court has made manifest error in dismissing the complaint on reasons that are frivolous, baseless and unconnected with the relief sought. Under the rules of the corporation, most of the class III posts are required to be filled through promotions from amongst the class IV employees if they meet the eligibility criteria. The petitioner cannot pray for being promoted but his claim was required to be considered to a limited extent of directing the corporation to hold him eligible for being considered for promotion. Therefore, the corporation was held to be guilty of ULP. The Court directed that the petitioner be considered as eligible for promotion to the class IV posts. Interestingly, in both cases, the employer, held guilty of ULP, was the local authority. Raymond Ltd. and Anr. Vs. Tukaram Tanaji Mandhare and Anr. - Mar 9 2011 Issue before court is Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Sections 3(5) and 28; Industrial Disputes Act, 1947; Bombay Industrial Relations Act, 1946 - Section 3(13) and 3(14) This appeal was filed against the impugned judgment of the Full Bench of the High Court of Judicature at Bombay. Petitioners filed complaints under Section 28 read with items 1 (a)(b), (d) and (f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 before the Industrial Court/Labour Court for certain reliefs claiming that they were employees of the Respondent company. The Respondent company in all those writ petitions , disputed the status of the employees and had contended in its written statement that there was no relationship of employer - employee with any of the Petitioners. The company had contended that the complainants were employed through the contractors and that the issue regarding maintainability of the complaints would have to be decided by the court. During the pendency of these complaints, the judgments in the case of Vividh Kamgar Sabha v. Kalyani Steel Ltd. (2001) 2 SCC 381 and in the case of Cipla Ltd. v. Maharashtra General Kamgar Union (2001) 3 SCC 101 were pronounced by this Court, and relying upon these decisions, an application was made by the Respondent company before the court that the complaints were liable to be dismissed as there was no employer - employee relationship between it and the complainants. Further a large number of decisions were put forward before this court. Due to conflict in judgments, this ..10..court sent the matter for the larger bench reference. PROS AND CONS OF MRTU & PULP ACT The MRTU & PULP Act is lauded for several reasons. It provides for the recognition of trade unions at the enterprise level, something that is missing in most other states and even at the Central level. By ensuring ‘one union one enterprise’, it helps tackle the problem of multiple unions, the most irritating feature of unionism in India. The conciliation and referral processes under the Industrial Disputes Act are lengthy, bureaucratic and even political.In contrast, under the MRTU & PULP Act, the parties to a dispute can directly approach the labour judiciary and seek legal redress. Both the parties could get injunctions against the actions of the other; thus, no party could do anything without the due process of law be completed. Thus, it provides easy avenues for both, especially workers, to approach the court to prevent or challenge arbitrary actions. However, on the negative side, this easy access to the courts 11/15/2017 Print Article : Concept of unfair labour practice and the procedure for its redressal under M.R.T & P.U.L.P Act https://www.legalservicesindia.com/article/print.php?art_id=1051 7/7 that the Act allows has encouraged high amount of litigation. The parties approach the courts apprehending the conduct of some unfair labour practice or the other and get stay orders. The Srinivasan Committee (2002) found two disturbing consequences of the Act. Firstly, a large number of unions did not seek recognition under the Act. The Committee found that as of 31 December 2001, only 1,445 applicant unions out of 3,302 were granted recognition under the Act. The important reasons for poor response include reluctance of the unions to comply with clauses imposing difficult obligations; long duration of recognition proceedings primarily because of the adoption of membership verification method (the average time taken is two years but there have been cases where it has taken eight years to grant recognition to unions). Secondly, the law failed to check unfair labour practices. Both employers and unions are guilty of approaching the court frequently and, as a result, the pendency of cases relating to unfair labour practices increased in all types of cases. The important cause for litigation by workers relates to unfair discharge by employers (an unfair labour practice under Schedule IV of the MRTP & PULP Act). The main reason for high pendency was the long time taken to dispose of cases, which in turn, was due to (a) time consuming procedures adopted to decide on the disputes, (b) frequent and long adjournments sought by the parties, and (c) reluctance of the parties to comply with the procedural requirements of the Act. Litigation and the delay in disposal of cases cannot promote industrial harmony"

darshana sawant (associate consultant)     15 November 2017

Dear Rajkiran,

 

A workman has the option to file either a Complaint of Unfair Labour practices under MRTU PULP Act in Maharashtra or raise a dispute before the Dy. Commissioner of Labour and seek a reference for illegal termination.  In case of a complaint, he normally seeks Interim relief in case of gross illegality which comes up for hearing immediately, so also in case of apprehended termination also he can pray for stay on apprehended termination, which according to workers are efficacious remedies.  In case of reference the time lost in conciliation etc. results in termination and then the workman has to fight for n no. of years to set aside that termination.  But the workman can only choose one remedy either a complaint under MRTU PULP Act or a reference under IDA, as bar of Section 59 operates under MRTU PULP Act.

In case of Award under IDA, appeal lies by way of Writ Petition in the High Court where Section 17-B operates and the workman is bound to get the full salary pending writ petition as per Section 17 B of the Industrial Disputes Act, which is not the case in MRTU PULP Act.  The orders passed under MRTU PULP Act by Labour Courts have the remedy of revision under section 44 of MRTU PULP Act.  However awards passed in reference only remedy is filing WP.

 

 


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