Discuss the Legal Provisions Relating to Discharge and Dismissal Under Industrial Dispute Act, 1947.
DISCHARGE OR DISMISSAL (Under Industrial Dispute Act, 1947).
In India, the Industrial Disputes Act, 1947 is the main legislation for investigation and settlement of all industrial disputes. The Act enumerates the contingencies when a strike or lock-out can be lawfully resorted to, when they can be declared illegal or unlawful, conditions for laying off, retrenching, discharging or dismissing a workman, circumstances under which an industrial unit can be closed down and several other matters related to industrial employees and employers.
The Act is administered by the Ministry of Labour through its Industrial Relations Division. The division is concerned with improving the institutional framework for dispute settlement and amending labor laws (elating to industrial relations. It works in close co¬ordination with the Central Industrial Relations Machinery (CIRM) in an effort to ensure that the country gets a stable, dignified and efficient workforce, free from exploitation and capable of generating higher levels of output. The CIRM, which is an attached office of the Ministry of Labour, is also known as the Chief Labour Commissioner (Central) [CLC(C)) Organization. The CIRM is headed by the Chief Labour Commissioner (Central). It has been entrusted with the task of maintaining industrial relations, enforcement of labor laws and verification of trade union membership in central sphere. It ensures harmonious industrial relations through:
- Monitoring of industrial relations in central Sphere.
- Intervention, mediation and conciliation in industrial disputes in order to bring about settlement of disputes.
- Intervention in situations of threatened strikes and lockouts with a view to avert the strikes and lockouts.
- Implementation of settlements and awards.
According to the Act, the term industrial dispute means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of employment or with the conditions of labor, of any person. The basic objectives of the Act are:
- To provide a suitable machinery for the just, equitable and peaceful settlement of industrial disputes.
- To promote measures for securing and preserving amity and good relations between employers and employees.
- To prevent illegal strikes and lockouts.
- To provide relief to workers against layoffs, retrenchment, wrongful dismissal and victimization.
- To promote collective bargaining.
- To ameliorate the conditions of workers.
- To avoid unfair labor practices.
Under the Act, statutory machinery has been constituted for conciliation and adjudication of industrial disputes. It includes:
The Act provides for appointment of Conciliation Officers, by appropriate government, charged with the duty of mediating in and promoting the settlement of industrial disputes. He/ she may be appointed for a specified area, or for specified industries in a specified area, or for one or more specified industries, either permanently or for a limited period. It is the duty of these officers to bring
both the employees and employers together and help them to resolve their differences. If the dispute is settled, he/ she shall send a report, to that effect, to the appropriate Government.
The Appropriate Government may, as occasion arises, constitute a Board of Conciliation, which shall consist of a chairman and two or four other members, as the appropriate government thinks fit. The Chairman”shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute. Where a dispute has been referred to a board, it shall, without delay, investigate the dispute and do all such things as it thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
The appropriate government may, as occasion . arises, also. constitute a Court of Inquiry to , inquire into any matter appearing to be connected with or relevant to an industrial dispute. It shall, thereafter, report about it to the government ordinarily within a period of six months from the commencement of its inquiry. Such a court may consist of one independent person or of such number of independent persons as the Appropriate Government may think fit and where it consists of two or more members, one of them shall be Appointed as the chairman.
The appropriate government may constitute one or more ‘Labour Courts’ to adjudicate industrial disputes relating to any matter specified in the second schedule like issues related to standing orders, discharge or dismissal of workers, illegality or otherwise of strikes and lockouts, withdrawal of any customary benefit, etc. and to perform such other functions as may be assigned to them under the Act. A labor court shall consist of one person only to be appointed by the appropriate government.
The appropriate government may constitute one or more ‘Industrial Tribunals’ to adjudicate industrial disputes relating to any matter, whether specified in the second schedule or third schedule, and to perform such other functions as maybe assigned to them. under the Act. A tribunal shall consist of one person only to be appointed by the appropriate government. The third schedule covers the matters such as wages, bonus, allowances and certain other benefits, certain working conditions, discipline, rationalization, retrenchment and closure of establishment.
The central government may, by notification in the official gazette, constitute one or more National Industrial Tribunals to adjudicate an industrial dispute which, in the opinion of the central government, involve questions of national importance or are of such a nature that industrial establishments situated in more than one state are likely to be interested in, or affected by, such disputes. Such a tribunal shall consist of one person only to be appointed by the central government.
The Act also makes it obligatory for an employer to set up a ‘Grievance Settlement Authority (GSA)’ in an industrial establishment in which fifty or more workers have been employed in the preceding twelve months. This authority shall have the responsibility to settle industrial disputes concerning an individual worker employed in that establishment.
No reference can be made under the Act to Conciliation Boards, Labour Courts or Industrial Tribunals, unless the dispute has first been the subject of a decision of a Grievance Settlement Authority.
Examples in cases of Discharge or Dismissal.
In M/S A & Co. Ltd. v. Their Workmen, it was laid down that mere participation in the strike would not justify suspension or dismissal of workmen. Where the strike was illegal the Supreme Court held that in case of illegal strike the only question of practical importance would be the quantum or kind of punishment. To decide the quantum of punishment a clear distinction has to be made between violent strikers and peaceful strikers.
In National Bank v. Their Employees, it was held that in the case of strike, the employer might bar the entry of the strikers within the premises by adopting effective and legitimate method in that behalf. He may call upon employees to vacate, and, on their refusal to do so, take due steps to suspend them from employment, proceed to hold proper inquiries according to the standing order and pass proper orders against them subject to the relevant provisions of the Act.