JUDICIAL INTERPRETATION OF ‘ANY PERSON’ IN INDUSTRIAL DISPUTES

Meaning of industrial jurisprudence, trade union freedoms- judicial responses, role of Supreme Court under Article 136 of Indian Constitution, problems of strike in Indian industry, and wage structure decisions of judiciary and its responsiveness in settling the industrial disputes has discussed in this chapter.

1. Introduction:
The role of management and trade unions in settlement of industrial disputes is very important and dynamic concept specially in India where the relations between capital and labour is very critical in view of poverty, illiteracy, and the ignorance of the majority of the workers in organized industry and also in unorganized sectors. Therefore always many conflicts between these two parties arise frequently posing a great threat to the industrial peace and production is affected and ultimately the progress of the society gets crippled at this juncture, is set rite the machine of industry for the progress of the nation, it is the responsibility or obligation of the judiciary to interfere and settle the disputes.

The role of the judiciary is very significant in providing social justice to the workers by the eminent judges. Justice Krishna Iyer in the case of Indian Express News Papers Pvt. Ltd., Vs Indian Express News Papers Employees Union1 said that “industrial jurisprudence is not static, rigid or textually cold but dynamic, burgeoning and warm with life. It answers in emphatic negative to the biblical interrogation. The Industrial Tribunal of India in the areas unoccupied by precise block letter law, go by the constitutional mandate of social justice in the claims of the little people”. It can be pointed out here that in every state certain ideas or values will be followed and they can be achieved through various laws. These values are very important to the society because through these „values‟ the state desires to mould the society. In India these „values‟ are „fundamental Principles‟ which are projected in the Constitution. The Constitution of India embodies the noble and grand vision of liberty, equality, and fraternity and also promise to secure social, economic and political justice. The Constitution of India desires to attain these goals through the legislation and judiciary. In this manner the Constitution has served as basis for jurisprudence The same is true in the case of industrial jurisprudence, therefore it is said that India Constitutional law is the touch stone to the development of industrial jurisprudence in India. The industrial jurisprudence in India is value oriented and seeks to attain a very just and social order. The Industrial Dispute Act, 1947 is a peace of welfare legislation desired in achieving social as well as economic justice

1

1978, I LLJ II (SC), pp.12 – 13.

It is also pointed out that the institutional constraints created by the Industrial Disputes Act. vol. it is shown that the constraints imposed by Indian labour law in the quest for justice. But after some time the Industrial workers had self conscious and started understanding or realizing their importance for the industry to organize themselves into unions and also started representing their grievances to the authorities concern including the employers. According to the Act if concerned parties are unable to resolve a dispute. wages. provides the basis for settling disputes that may arise between employers and employees. The second part of the paper attempts to discern the impact of the law on the process of reaching agreements by placing the discussion around the positive and normative consequences of the law. conditions of work.“Labour & Practice”. The Industrial Disputes Act 1947. bonus.M. The Industrial Disputes Act 1947 Section 2(k). among other things. This legislation operates by judicially intervening in the contract of employment in the event of a substantial dispute between employers and employees and aims to ensure an equitable outcome to the dispute. This type of Government laid to many social problems including anarchy in industrial relations and exploitation of labour giving rise to many serious social tensions. One possibility is to set up a so called Works Committee consisting of workers and employers 2 3 G. Under the system of „Laissez – faire‟ the activities of Government are very limited to collection of revenues and maintenance of peace and order and defense against external threats or aggression. interpretation of standing orders.Kothari. and the section concludes by posing some questions regarding the efficacy of the Industrial Disputes Act. Also the second and third schedules of the Industrial Disputes Act. lay-offs and retrenchments3. In the early periods of Industrial Revolution. it might be preferable to give workers rights that improve their bargaining position and enable them to directly interact with their employers. rationalization. they have several options open to them. A – 3. begins by listing some aspects of the Industrial Disputes Act. act not only to encourage inefficient outcomes. 1980. „Laissez – Faire‟ continued to rule for fight some time. which is largely descriptive. The role of trade unions in India is briefly discussed in this context. The contents of the paper are divided into two parts. but can also have the additional effect of stalling agreements. I. p. encourage outcomes which signify normative effects of a dubious nature. 1. . 1947.2 Objective: This paper aims to critique some of the legal principles under which industrial disputes are resolved in India. A typical list of disputes that are covered by the Act include discharge or dismissal of workers. Finally it is suggested that instead of intervening judicially. The first part. After a brief narration of the normative content of the Nash bargaining solution. The discussion in this paper is confined to the class of issues where labour and their employers can gain by co-operating but run into a tussle over the precise apportioning of gain.which is the aim of industrial jurisprudence2. compelling the analysis to be organised around the Nash solution to the bargaining problem.

The Industrial Disputes Act gives the government the power to appoint labour courts and tribunals to adjudicate disputes. Labour courts deal with relatively minor matters and concerns that affect less than 100 workmen. 2. The more common option is to initiate a process called conciliation. they can move for special leave appeal to the Supreme Court under Article 136 of the Constitution of India or seek writ jurisdictions of the relevant High Court under Articles 226 and 227 of the Constitution of India. a failure report is tabled by the conciliation officer or board. The judgment‟s and awards of labour courts and tribunals are final and not subject to regular appeal. Broadly speaking.1 Judicial Intervention in the Contract of Employment under the Industrial Disputes Act As a point of departure into the many implications of the Industrial Disputes Act. does not have the same status as a court order. if one of the disputing parties asks for it and the government considers the demand valid or alternatively if a dispute appears to be persistent in the perception of the government. on the grounds that this approach would better serve the cause of social justice. These bodies consist of a person who is or has been a judge of a High Court or has been a district or additional district judge for a period not less than three years. At this point. it might be useful for a moment to look at the background behind the legislation of the Act. parties to a dispute can ask for an arbitrator to resolve the conflict. which involves the active participation of the government. a conciliation officer from the labour department5 or a board of conciliation appointed by the government if the dispute is particularly complex.which tries to sort out the dispute. A settlement. Around the time of the Indian independence. The government steps into the picture. or developing a legal system that would emphasise judicial intervention in the resolution of labour conflicts. these steps can be taken only on the grounds that the judgement or award of the labour court/tribunal is inconsistent or faulty on a substantial point of the law. As a consequence it is widely believed that conciliation is viewed as just a stage before adjudication. proceedings then move to the final stage called adjudication. The Industrial Disputes Act and the Contract of Employment 2. It was felt that social justice would be best administered by a labour judiciary because it would keep in mind the power position and 4 5 Id Section 3 Id Section 4 . If a settlement is not worked out. upon a reference being made by the government. this route of resolving disputes is very rare. Protagonists favouring the latter approach won. but this is again not very common as the award of the arbitrator does not have legal standing.4 However since the recommendations of such committees do not have any legal standing. though binding on all parties. Initially. industrial tribunals and national tribunals. is required to try working out a settlement. while disputes of greater import are looked after by industrial tribunals. There are three kinds of courts . If some party to a dispute is not satisfied with the judgement or award. legislators faced the choice between orienting the labour law towards a system where collective bargaining between unions and employers would be encouraged. Instead.labour courts.

921 9 Id . that provided the basic structure of the Industrial Disputes Act. a judgement of the Federal Court .J. though they may not be within the terms of the existing agreement. an industrial tribunal most definitely could do so. Among its provisions was the facility of referring industrial disputes to adjudicators.L. and that this could not be done if the focus was going to be on the enforcement of contractual agreements. To quote "It is its [Tribunals] duty to adjudicate on a serious dispute between employers and employees as affecting their right of freedom of contract and it can impose liabilities of a pecuniary nature and disobedience of its award is made punishable. The British Government had enacted the Defence of India Rule 81-A to ensure that industrial disputes did not disrupt the war effort. A ratification of this judgement was made in one of the early Supreme Court judgements .L. The issue raised in this case was whether an industrial tribunal can direct the employer to re-instate a worker.Western India Automobile Association v The Industrial Tribunal Bombay and others.the Defence of India Rule 81-A. Instead it was felt that the law was so structured that industrial tribunals adopted a different approach to the problem. it is instructive to look at some of the early judgements of the Supreme Court of India. Manaktalas Western India Automobile Association Vs Industrial Tribunal 1949 I L.susceptibilities of workers. To get a sense of the role that the labour courts and tribunals were envisioned to play in the task of ensuring social justice. and thus with a few minor changes the Defense of India Rule 81-A became the Industrial Disputes Act of 1947. It has not merely to interpret or give effect to the contractual rights and obligations of the parties.J 245 8 1950 II L. and it was observed that such a tribunal can do what no court can."9 Another passage from the same judgement says "In settling the disputes between the employers and workmen. It was pointed out that the object of adjudication was to substitute for strikes and lock-outs by doing justice to the workers claim. In fact before the Supreme Court was set up. The powers exercisable by a tribunal of the nature were considered in a judgement of the Federal Court of India in Western India Automobile Association v Industrial Tribunal Bombay. The judgement said that while a civil court could not re-instate an employee. it is for this reason that it is armed with the extraordinary powers. The tribunals were in effect creating new rights since they are empowered to modify or change existing contracts and thus existing contracts could be overwritten. the function of the tribunal is not confined to administration of justice in accordance with law. namely add to alter the terms or conditions of the contract of service. It can create new rights and obligations between them which it considers essential for keeping industrial peace. The tribunal having been entrusted with the duty of adjudicating a dispute of a particular character. Employers and Government Bombay." 6 7 V. It can confer rights and privileges on either party which it considers reasonable and proper.6 The country already had a legislation on hand .D Kennedy(1966) Unions.Bharat Bank Ltd v their employees8. provided the basic parameters that have come to define Indian Labour Law 7.

This. reasonable work hours and the payment of minimum wages. As industrializing societies have sought greater equality in society. then is the definitive thematic of Indian labour law – any labour contract/agreement can be overridden and redefined on the basis of notions held by the labour courts as to what is just. Apart from this. contracts can be rescinded only under circumstances where it can be shown that the contract involved fraud. which is rooted in the general law of contracts. Specifically. An exhaustive description of the relationship between the legal system and collective bargaining in various parts of the world cannot be seriously attempted here. there is a good deal of variation as to both the extent to which the law regulates collective bargaining and the manner in which the law intervenes with the collective bargaining process. Thus. the process of collective bargaining which has replaced the individual bargain. duress. mistake or misrepresentation. Two common features of labour law in most Common Law countries (also many Civil Law countries) are of particular relevance. Typically such terms include the provision of safe working conditions. and the employee in turn is compensated with wages. the modern welfare state compels the inclusion of statutory terms along with the terms agreed on by parties. Second. but it is important to mention a couple of broad features present in diverse legal systems. As any standard legal text points out. fair and expedient. The employer derives a benefit from the employee working under his directions. is that contracting parties are free to lay down their own terms and that there can be no intervention by anyone not party to the contract. working hours and safe working conditions. involves trade unions as legal representatives of the worker and the agreements worked out between unions and employers have a legal standing. Though collective bargains of a sort have come to dominate many of the interactions between employers and employees all over the world. One of the corner stones of the Common Law of contracts. howsoever inequitable.2 The Contract of Employment under Common Law and Collective Bargaining This kind of intervention is quite in contrast to the Common Law perception of the contract of employment. One. leaving the contracting parties to make their own bargain. Common Law sees the contract of employment as a legally binding agreement between "master and servant" or to state it in more contemporary language between employer and employee. as regards labour and industrial relations. one institutional response has been to progressively substitute collective for individual bargaining10. collective bargaining of some sort has more or less displaced the master and servant relationship as the rubric around which employers and workers interact. a number of legal systems require by statute that the contracts of employment include certain standardised terms regarding minimum wages. In other words trade unions typically negotiate terms of employment on behalf of individual 10 See the chapter titled "The Changing Function of Contract" in Wolfgang Friedmann(1972) Law in a Changing Society Middlesex Penguin Books 119-160 . 2. so as to provide a working comparison with the Indian law. the law of contracts does not typically concern itself with the adequacy of consideration.

they are exempt from criminal liability. In this judgement it is explicitly stated “Recognition by an employer of a trade union as a representative of its members and as their bargaining agent is a matter of volition on the part of the employer.J 425. (c) Where the worker is not a member of any trade union.collective bargaining. At the same time Section 36 of the Industrial Disputes Act states "A workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by (a) Any member of the executive or other office bearer of a registered trade union of which he is a member. any seven adults can gather and register themselves as a trade union. Court decisions have made it very clear that obligatory recognition of a particular trade union as a bargaining agent is not supported by any law11. Under this legal framework. Ramaswamy and Uma Ramaswamy(1981) Industry and Labour: An Introduction Delhi Oxford University Press 86-94 . but if a "dispute" arises even the smallest union can bring up the grievances of its members before the labour department of the local government for conciliation. independent of the size of membership. because each side can always initiate or threaten to 11 See for example T. if they do so.” 12 E. each winning the support of a fraction of the labour force employed in the concern. powers and privileges. Both the sides are not confined to a framework where a direct confrontation decides what each side will give and receive. As a consequence. contract and litigate. the Trade Unions Act does not set up any rules that oblige employers to recognize a particular union as being representative of the workers interests. Very broadly these rights include conferring on every trade union the status of a corporate body which can hold property." Therefore. by any member of the executive or other office bearer of any trade union connected with or by any other workman employed in the industry in which the worker is employed and authorized in such manner as may be prescribed. and the employer is obliged to deal with all of them12.C 1982 I L. According to the Trade Unions Act of 1926. The problem stems from the legal framework within which Indian trade unions operate.C. (b) Any member of the executive or other office bearer of a federation of trade unions to which the trade union mentioned in clause (a) is affiliated.workers and these terms are usually enforceable by the courts.C. coupled with the presence of the State and the Judiciary as additional actors. all registered trade unions enjoy the same legal rights. In addition to this trade unions can call for a strike and. As a consequence. multiple unions can exist. the relationship between an union and an employer cannot be characterized by the usual understanding of the term .C Thozhilali Union v T. 2.L.A. However.3 Trade Unions In India the relationship between employers and employees cannot in general be described as being confined to a direct bargain between the employer and the trade union. it is the volition of the employer to decide who is a representative bargaining agent.

In the post-independence period India adopted the philosophy of social and economic justice and the planned production target by introducing scheme of mixed economy to avoid loss of production caused by the recurring industrial strife.K.adjudication process. Justice Bhagavati. It is very interesting to mention here that the Supreme Court of India has emphatically propounded the very ideas of social justice in the form of general interest of the community in its historical judgment of State of Bihar Vs Kameshwar13 which are given below: “with the onward march of civilization. 1957 SCR. 1956 I LLJ 227 (SC). It is interesting to mention the Judgement of the Supreme Court in the case of J. With the effort of Chief Justice 13 14 AIR. 335.initiate the conciliation . This modern trend social and political philosophy well reflected and given expression in our constitution.. In the same case Mr. . 1952 SC 252.. 15 Nirmala Textile Finishing Mills Ltd. our notions as to be scope of general interest of the community are fast changing and widening with the result that our old and narrower notions as to the sanctity of the private interest of the individual can no longer stem the forward following tide of time and must necessarily give way to the broader notions of general interest of the community. Punjab. an eminent judge of Supreme Court in an exceptional situation evolved the notion of social justice who remarked that the ultimate object of industrial adjudication is true to help the growth and progress of the national economy to promote industrial peace15. productivity and social justice because of the workers who were very weak and incapable to bargain with the employer and settle the dispute. Vs Iron & Steel Mazdoor Union14 Mr. With a view to relax the legislative grip and to promote industrial democracy the judiciary has made new dimensions in maintaining the industrial relations. The Supreme Court of India during the periods of 1950‟s decided industrial dispute generally within the ambit of the strict law and adhering to the literal interpretation of the provisions of labour legislation and contractual obligations. Justice Vivien Bose speaking from the Supreme Court laid down that the decision of the Tribunal must be based on established principles and not import any notion of so called justice or compulsion to safe guard the interest of the workman. Therefore the Government of India adopted strike or lockout ban policy to maintain peace in industry with quasi democratic measures which assured workers association in non – essential matters.The Government of India introduced a system of compulsory conciliation and adjudication machinery to achieve the objectives of maintaining industrial peace. Vs Second Industrial Tribunal. Iron & Steel company Ltd. Bose said that one sided benefit to the workman should not be given by evolving the notion of socio–economic justice.

1960. 819. Vs Labour Appellate Tribunal19 It was held that the ultimate object of industrial adjudication is to help the growth and progress of national economy. The labour problem ceases to be purely arithmetical and physical satisfaction. the welfare policy of the state takes a more dynamic forum. the advent doctrine of welfare state confined and routed deeply in the nation‟s progressive philosophy which have rendered the traditions concept of „laissez – faire‟ absolute. One of such persons is 16 17 Ganga Sahai Sharma “Trade Union Freedoms in India”. 1990. P.17 that the social justice is not based on contractual relations and is not to be enforced on the principles of contract of service. The Supreme Court of India played a very important role specially in protecting the interest of poor working class by ignoring the strict contractual laws and provided social justice to them. Some of the judges in delivering the judgment on labour matters have established new principles of industrial jurisprudence through judicial legislation to safe guard the emerging trade union freedoms. It is also to be pointed out that industrial adjudication and also necessarily to be aware of the current economic thought around in the case of J. 19 1963 II LLJ 444. 18 1961 I LLJ 22 SC. p – 192..B. The state should try to avoid strikes and strifes‟ in the industrial world to maintain cordial and harmonious relationship between labour and management. Dr. the national economic progress stage to stage and under the growing strength of trade union.. SC. There are some judges who created history in delivering justice to the working class. collective bargaining and industrial democracy enter the field. Gajendra Ghadkar introduced the very important philosophy that the concept of industrial peace is positive and postulates the existence of the understanding. AIR.16 Justice Hidayatullah observed in the case of Rastriya Mill Mazdoor Sangh Vs Apollo Mills Ltd. In the case of Standard Vacuum Refining Company Vs Its Workmen18 with a view to clarify the transformation era of notions and conception of labour.K. Cotton Spinning and Weaving Mills Company Ltd. cooperation and sense of partnership between the employers and employees. .Gajendra Ghadkar evolved law in response to the needs of the society. Justice Gajendra Ghadkar made his sincere efforts to uplift the deprived and downtrodden people within the parameters of the law. thus protecting the interest of the socially and economically weaker sections of the society. and it is something outside these principles and is invoked to do justice without a contract to back it. Therefore the judgment of the highest Tribunal reveals that the Judges of the Supreme Court have spoken different times with different voices. And where the social consciousness of the general community becomes more alive and active.

the conciliation . It appears that disputes get settled on the basis of legal norms and procedures rather than on 20 21 1983 Lab. while reference of demands raised by rival unions was willfully prevented22. Social justice is justice according to social interests subordinate to fundamental rights. It is entirely the discretion of the government as to whether the dispute is referred for adjudication or not. it applies with equal vigour. as noted earlier. They would like to have a responsible and respectable place in society and also in the industry where they work for about a 100 years.justice V. Political parties see industrial workers as a source of votes and therefore actively patronise unions.scale political interference in the process. may later end up involving the labour minister or even a higher executive functionary. A study based on a sample of dispute cases shows that unions affiliated to the ruling party were favoured by referring demands raised by them for adjudication. In the case of Board of Trustees. “To him the principles of scientific management tend to value technical efficiency about human factors may not hold goods in managing human beings who have emphatically demonstrated in recent years that they cannot be treated as cogs in the wheel of machinery. IC 419 SC. The process of conciliation initially put in the hands of the labour department. However.R. Saini(1993) "Reference Power of State in Industrial Disputes Adjudication: A Study with Reference to Industrial Disputes in Faridabad" 35 (Part II) 4 Journal of the Indian Law Institute 233-252 . Unions supported by the ruling party can look forward to favourable treatment of disputes raised by them. Ramaswamy and Uma Ramaswamy Id 22 Debi S. E. in practice labour courts and tribunals have come to follow very strict civil procedures – in the sense that court procedure and the evidence delivered follow the dictates of the Civil Procedure Code 1908 and the Evidence Act I 1872. Such involvement of the government at various steps of dispute resolution causes large .A. if conciliation is not successful. In fact almost all union activity in India is controlled by prominent political parties and the independent union movement is quite weak21. was to have been procedurally more flexible than civil suit resolution. Port of Bombay Vs Dilip Kumar20 Justice Bhagavathi said that “justice must not only be done must seem to be done” is not a requirement for courts alone. There is no doubt that justice alone can maintain relations between the employees and employers and by which a nation can achieve productivity and industrial peace. In a similar manner the government can engineer the progress of a dispute in favour of an employer who has political patronage. The above discussion it is clear about the role played by the judiciary in providing justice and also for the maintenance of good labour management relations. Adjudication. and rigour t o all those who must responsible for fair play in action. the next stage involves the government as well.adjudication process involves government participation at many of the crucial stages of dispute resolution. as conceived by the Industrial Disputes Act. As described earlier. Also. Krishna Iyer who made revolutionary and progressive philosophy.

the judges appointed to the labour judiciary are transferred from the civil judiciary.the inherent matter of the case23. As has been mentioned earlier.) Labour Judiciary. It has been observed that these legal and political considerations have given rise to the phenomenon of "outsider union leaders" who man key positions in trade unions. ends up generating iniquitous outcomes because the legal system persists in using 23 D. Saini (ed. the judge acts as a passive individual. The Problem with Adjudication Legal scholars have pointed out many problems with adjudication as it has come to be practised. . Such outsider union leaders may not have the interest of workers as their central objective and have been documented as being susceptible to working out underhand deals with employers that ultimately result in weaker unions24. particularly so in a situation where employers are represented by advocates. Desai(1994) "Industrial Adjudication and Social Justice in India" in Debi S. Adjudication and Industrial Justice New Delhi. 24 Debi S. Saini (ed) Labour Judiciary. Oxford & IBH Publishing Co. management is represented by management consultants or lawyers. they are poorly informed about the issues at stake in labour disputes. Oxford & IBH Publishing Co. Furthermore. Saini(1994) "Tribunal Procedure and Approach in Industrial-Disputes Adjudication: Industrial Justice on Reverse-Value Hypothesis" in Debi S. Saini (ed. Instead. If. Some of these problems are endemic to the Indian legal system such as long term delays and the fact that there are too few judges and courts in relation to the number of cases. The Industrial Disputes Act does allow for experts to assist labour tribunals and courts but this option is reported to almost never being exercised. while parties to the dispute present their case in the adversarial manner used in civil courts. Studies based on a sample of cases brought forth for adjudication indicate that in the proceedings before labour courts. political and legal hurdles. Saini(1995) "Leaders or Pleaders: Dynamics of Brief. but the point to note is that the relationship between workers and employers is not at all direct. Adjudication and Industrial Justice New Delhi. position themselves as having the requisite skill to see disputes through administrative. this study and other similar works are taken to be representative of the ground realities. Thus unions have to be represented by individuals who are conversant with legal procedures. politicians. since the judges are transferred to labour courts and tribunals from civil courts. It has been noted that labour courts and tribunals emphasise formal civil court procedure rather than working with a more flexible inquisitorial method which is more likely to bring out the essential issues in a dispute. 26 Debi S. who are not workers. Current estimates indicate that there are over three lakh cases pending disposal with labour courts and tribunals. Once a case is initiated it can take up to ten years for the judgement to be passed25. while workers rely on the outsider union leaders mentioned earlier. judges and administrators. If the proceedings are of an adversarial nature.Case Trade Unionism Under Existing Legal Framework" 37 1 Journal of the Indian Law Institute 73-91 25 Upendra Baxi(1994) "Industrial Justice Dispensation: The Dynamics of Delay" in Debi S. Adjudication and Industrial Justice New Delhi. However there are other specific problems with adjudication that have also been highlighted. These individuals. it is ironical that a legal system that jettisoned Common Law doctrines for being iniquitous. to represent them26. the representatives of the management are in a better position to present their case than the workers representatives. Instead the relationship is mediated by a number of exogenous elements that include outsider union leaders. Oxford & IBH Publishing Co. Of course the exact orientation of such leaders would vary from case to case. 3.A.) Labour Judiciary.

Common Law procedure and is unable to innovate on procedure. within which to position the adjudication process. If one were to locate a schematic. grant special leave to appeal from any Judgment. thus far the precursory step of identifying the positive consequences of the current system of legislation. Role of supreme court under article 136 of Indian constitution The Article 136 of the Indian Constitution provides that the Supreme Court may. should not to be confused with the definition of arbitration as it is set out in the Industrial Disputes Act. To analyse the labour adjudication process. in a manner which is at once cognisant of the concerns of justice and the sense that one is dealing with rational agents who are involved in economic interaction with each other. independent and informed decisions28. There has been a long controversy in the judicial circle about the use 27 The term as it is being used here. Sentence. The term arbitration27 as commonly understood by economists refers to a process where a third party makes an efficient decision regarding the terms of a contract. interpreting adjudication as arbitration would be a bit of a misnomer because it is not at all clear that the system is geared towards making decisions that are necessarily informed. can cause employer-employee interaction to become something far more intricate than a simple bargain. remain inadequately explored. Determination. This is a fairly formidable task because apart from the difficulties of conjoining notions of justice with those of economics. then the central issue that comes up is the appropriate form of intervention. given the admixture of normative and positive considerations that are thrown up. If it is accepted as a premise that there is an intrinsic inequity in the freely drawn up contract of employment and that some intervention is needed to raise the bargaining power of labour. A popular Industrial Organisation text maintains that the most basic requirement for meaningful arbitration is that the arbitrator must make fair. 28 Jean Tirole(1988) The Theory of Industrial Organisation Cambridge The MIT Press 29-30 . in its discretion.it could possibly be a simple bargaining problem. it is necessary to search for a framework that is able to incorporate the institutional idiosyncrasies of Indian labour law.at least not in the sense that fairness in an arbitrated settlement would be customarily viewed and are unlikely to be economically efficient as well. The contracts specified by adjudication are most likely not fair . one could reflexively categorise the adjudication process as an exercise in arbitration. 4. Decree. it becomes but essential to evaluate the Indian labour legislation. which could not or have not been specified properly by the contracting parties.From the brief description above. conflict resolution is a complex affair . which cannot be ignored by the parties. Should rights of workers be gained prescient to the act of forming a contract or should the State allocate rights as it sees fit? Is it preferable that the State guarantee certain rights while other rights are gained contractually? In seeking to answer such questions. As the brief description of some of the key labour laws and institutions has shown. but the presence of the Industrial Disputes Act. or Order many causes or matter passed or made by any court or Tribunal.

the Supreme Court of India did not think it right to interfere with decisions taken by the Government under that provisions through making reference to the Government is required to indicate the nature of the dispute. Vs State of U. The question is whether the Supreme Court jurisdiction to entertain an application for leave to appeal against the award of a Tribunal was raised for the first time in the case of Bharat Bank Ltd. The Supreme Court laid down a principle that it could exercise its discretionary jurisdiction only in cases where awards were made in violations of the principles of natural justice. . Further it is to be stated that the court could not quash the proceedings merely because. 1966 II LLJ 330. was of the view that Government acting under Section 10 of the Industrial Disputes Act was doing an administrative Act and the fact that it had to form an opinion has to the factual existence of the dispute as a preliminary step to discharge its functions. Whatever judicial review was permissible in one form or other. 31 Rohtak Hissar District Electric Supply Company Ltd. In the case of Bengal Chemical and Pharmaceutical Works Ltd.. in its opinion the Government had no material to 29 30 1950 II LLJ 921.. Justice Fazal Ali was also of the opinion that since the Tribunal had all the trappings of the court and performed some kind of judicial functions its decisions were appealable to the Supreme Court. 1947 was questioned. In other words the employers had been prevented from canvassing such a question because the matter of fairness and reasonableness was left by the legislature for decisions with authorities constituted under the Act31. 1959 I LLJ 413. Justice Mahajan said that mere circumstances that a remedy in the nature of writ of certiorari was opened to the petitioners did not necessary laid to the conclusion that the power of this court under Article 136 of the Indian Constitution was circumscribed by that circumstance. In subsequent cases on the basis of. the observations denied interference with the conclusions as to be reasonableness and fairness by authorities empowered under the industrial dispute Act to arrive at such conclusions. the highest court in the land could exercise its special power and circumvent ordinary procedure by granting special leave. the court would reluctant to entertain such an application.of this power.P.. Even in cases where the Government‟s power of reference under Section 10 of the Industrial Dispute Act. Vs Employees30. Vs The Employees of Bharath Bank29 Chief Justice Kania was of the opinion that the wording of the Article 136 were wide enough to give jurisdiction to the court to entertain such an application although having regard to the nature of the functions of the Tribunals. did not make it the less administrative in character and the court could not canvas the order closely as it was a judicial or quasi Judicial Act. causing substantial and grave injustice to the parties or which raised an important principles of industrial law requiring adjudication and final decisions of the courts or which disclosed such other exceptional or special circumstances which merited the consideration of the court..

The causes of the strikes are many such as non payment of proper wages. dominating attitude of the management.come to that conclusion. Parthasarathi32 it was said that rather the Government have power in the interest of industrial production to set the machinery of settlement in motion without pausing to enquire what the specific points of the disputes were. or atleast to concede something to them. p – 327. The trade unions leaders emotionally declare strikes against the employers using different types of methods. failure of collective bargaining system and other methods of settlement of industrial disputes. The threat is often explicit much more often tacit but not for that reason less effective34. economic and political variants in the system for safe guarding the public interest. influence the course of the contest. Threats of their use even more than their actually use. The stoppages hurt both parties badly create worse tensions and frictions and violations of law and order and above all. 34 Indian Law Institute “Labour Law and Labour Relations”. 1987. Reasonable restrain use of this right is also recognized. involvement of political parties. Trade unions and employers will have to use very skillfully these weapons strike and lock – out by way of threatening or actual may help one party to force the other to accept the demands. The strikes and lock – outs are useful and powerful weapons in the armoury of workmen and employers and are available when a dispute are struggle arises between them. Similarly the employers also have the freedom to use the weapon of lock – out in case workers fail to follow the rules of contract of employment. . Courts and Adjudication In India it is known fact that the strikes are frequently resorted by the workers and the trade unions because of various reasons such as lack of proper trade union consciousness and lack of legal awareness about the consequences of strikes. Report of the National Commission on Labour. from the public point of view they retard the Nation‟s Economic Development. 1969. failures in providing labour welfare and the social security. But reckless use of this weapon creates the risk of unnecessary stoppages. 5. p – 361. A strike could be defined as a 32 33 1953 I LLJ 174. The degree of freedom granted for its exercise varies according to the social. Right to strike : The Constitution. the resort to strike or lock – out and in some cases the duration of either subject to rules and regulations or voluntarily agreed to by the parties or statutorily imposed this has been criterion underline the earlier legislation for regulating industrial relations in the country33. stringent working conditions. The right to strike has also been recognized in all democratic societies. In the case of State of Madras Vs C.

The right has been recognized by almost all democratic countries. 343. 38 1989 (4). 710. With the constitution coming into force there was an attempt made to bring in the theory of a concomitant right. etc and work. or a concerted refusal. when he said that “a concerted stoppage of work by men done with a view of improving their wages or conditions. work to rule. 35 36 1950. SCR. The right to demonstrate and therefore the right to strike is an important weapon in the armoury of the workers. SCR. Perhaps the closet we come to is Lord Denning‟s attempt in Court of Appeal in 1975. Though not raised to the high pedestal of a fundamental right. SCC. weapons in the hand of the workers and their organizations to promote and protect their economic. or giving vent to a grievance or making a protest about something or other. they are subject to such laws and such laws cannot be tested under Article 19(4) of Indian Constitution37.cessation of work by a body of persons employed in any industry acting in combination. eg. There are different modes of demonstrations. In English law.R. of any number of persons who are or have been so employed to continue to work or to accept employment. Singh Vs. as was inferred in Romesh Thapar’s case35 to infer the right to strike within the confines of Article 19(1) (c) of the Indian Constitution. Labour Industrial Cases Journal. or supporting or sympathizing with other workmen in such an endeavour”. sit in. in other words. or a refusal under a common understanding. there is no comprehensive legal definition of strike or industrial action. National Industrial Tribunal and others36 held as follows : The right guaranteed by Art 19(1)(c) of the Constitution of India does not carry with it concomitant right that unions formed for the protection of the interests of labour shall achieve their object such that any interference to such achievement by any law would be unconstitutional unless it could be justified under Article 19(4) of the Indian Constitution as being in the interest of public order or morality. Strikes are. In the case of All India Bank Employee’s Association Vs. 37 Mayuri Patel. 404. absenteeism. occupational and social interests in the broad sense of the term. 2008. Go-slow. The right under Article 19(1)(c) extends only to the formation of an association or union concerned or as regards the steps which the union might take to achieve its object. Union of India38. “Strike in a given situation is only a form of demonstration. Strike is one such mode of demonstration by the workers for their rights. justice Ahmadi was of the view that the right to strike cannot be equated to that of a fundamental one. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed under it”. 269. Trade Union Law in India. it is recognized as a mode of redress for resolving the grievances of the workers. In another case B. (1962) 3. . p.

Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shal1 be equality of opportunity for all citizens in matters relating to employment or appointment to any office and the State.40 In Randhir Singh v. as the name itself implies. But it certainly is a constitutional goal. Directive Principles. Union of India case41 the Supreme Court observed as it is true that the principle of 'equal pay for equal work' is not expressly declared by out of the Constitution to be a fundamental right. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. 41 (1982) 1 SCC 618: 1982-I-L. as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. These equality clauses of the Constitution must mean something to everyone.5. Article 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women' as a Directive Principle of State Policy. a draft bill was considered by the Indian Labour Conference in 1945. 1948 All India Reserve Bank Employees Association V. being not well organized and having less effective bargaining power. AIR 1966 SC 306. and b)For the benefit of workers who are not in a position to bargain with their employer.J-344 . The Minimum wage. Reserve Bank of India. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and 39 40 Preamble of the Minimum Wages Act. The object of the set is to ensure a minimum subsistence wage for workers. which would if the terms of contract of employment. The Minimum Wages Act.L. As per the recommendations of Royal Commission on Labour in India. introduced in Indian Legislative Assembly in 1946 which was followed by the adoption of Minimum Wages Act. be payable to a person employed in respect of employment or of work done in such employment.1 Wage Structure – Decision of the Judiciary The concept of 'Minimum wage' was first evolved by International Labour Organisation in 1928 with reference to remuneration of workers in those Industries where the level of wages was substantially low and the labour was vulnerable to exploitation. represents the level below which wages can not be allowed to drop. Wages means all remuneration capable of being expressed in terms of money. The Act was enacted to secure the welfare of the workers in a competitive market for a minimum limit of wages in certain employments39. 1948. It is prescribed in order to check : a)The evil of sweating. express or implied were fulfilled. 1948 provides for fixation and enforcement of minimum wages in respect of scheduled employees to prevent sweating or exploitation of labour through payment of low wages.

the Industrial Disputes Act ends up affecting the ex-ante behaviour of agents. yet another source of inequity is the endemically slow processing of cases by the judicial machinery. Much of the substantive content of contract law such as the doctrines that cover breach of contract can be seen from this perspective . co-operative outcomes are more likely to prevail. the status quo of workers as a group can be influenced by a host of circumstances that can raise their well-being. the mode of intervention with the division problem does not resolve the problem of inequity between workers and employers because employers often have better resources and networks to take on the adjudication process.the pay they get.Indian labour law provides workers and their employers with idiosyncratic rights that encourage non co-operative outcomes. by encouraging norms that work in favour of collective bargaining and by legally ensuring good working conditions for all workers. In the final analysis of things. Such delays can and often do work to the detriment of workers and to the advantage of employers. by offering detrimental ex-post resolutions. where otherwise with a more conventional rights entitlement.Conclusion: The statement that emerges is that ." 6. Correspondingly. It is the writing point of this paper to suggest that future discourse on Indian labour law be re-oriented in this direction.as essential safeguards against defection. resulting in a substantial loss to the sum of co-operative undertakings that could have been secured. . Put another way. to the extent agents working under the shadow of Indian labour law look out and see unfavourable outcomes. say. By analogy. by increasing productive employment opportunities. Apart from the obvious advantages gained by employers on account of possessing superior resources. it is of the view that the principle 'equal pay for equal work' is deducible for those articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer. To them the equality clauses will have some substance if equal work means equal pay construing Articles 14 and 16 of the Constitution in the light of the Preamble and Article 39(d). they are bound to reject the initiation of many co-operative ventures.