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    LLB S. Y. SEMESTER-III UNVERSITY SRTMUN

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    LLB S. Y. SEMESTER-III UNVERSITY SRTMUN

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    © All Rights Reserved
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    12 views81 pages

    3 Labour II (LLB S. Y. SEMESTER-III)

    Uploaded by

    Vyankatesh Gotalkar
    LLB S. Y. SEMESTER-III UNVERSITY SRTMUN

    Copyright:

    © All Rights Reserved
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    LABOUR LAW - IT THE MATERNITY BENEFIT ACT, 1961 Introduction This Act is solely devoted to working women making provisions to provide different kinds of benefits to fernale wage earners. This is the most important enactment dealing with the women working in factories, mines, and other industrial establishments. ‘The principal object behind passing of this Act, 1961 is to regulate the employment of women in certain establishment, and in certain period i.e. before and after child birth. This Act provides the maternity benefit and other benefits to pregnant woman workers for certain period. It is one of the welfare legislation enacted by the Indian parliament in 20" century. The present Act is piece of welfare legislation and the Maternity Benefit Act is intended to achieve the object o doing social justice to women workers, Therefore, in interpreting the provisions of this Act, beneficent rule of construction, which would enable the woman worker to nurse her child, preserve her efficiency as a worker, has to be adopted by the court This Act may be called as Maternity Benefit Act, 1961, It extends to the whole of India, including the state of Jammu & Kashmir. It shall come in force on the date notified in official gazette by the central Govt. in this behalf. This Act contains total 30 sections. Objects The Maternity Benefit Act, 1961 has been passed to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide for maternity benefit and certain other benefits Application for the Act a. The Act applies to every establishment, being a factory, mine or plantation or any establishment belonging to the Govt b. The Act applies to every shop or establishment in a state, in which 10 or more workers are employed or were employed. c. The state Govt. is empowered to apply the Act or the provisions of the Act, with the approval of central Govt., by notification in official gazette, to any establishment, industry, agricultural d. The Actis also applicable to Beedi & Cigar workers. e. This Act is applicable to every women being employed or engaged on casual basis or badly or daily wages or temporary basis or permanent basis Article 39, 42, 43 of the Constitution The Act applies to a woman engaged on casual basis or on muster rolls or on daily wages. It is one of the important Directive Principles of state policy embodied under Articles 39, 42 and 43 of the Indian Constitution. It lays down that every state should try to secure the welfare of women workers. Important Provisions of Maternity Benefit Act, 1961 The important provisions of maternity benefits & other benefits are contained under section 4 to 30 of this Act. The main provisions of this Act of 1961 may be explained under following headings. 1. Employment of or work by a woman prohibited Under the provisions of this section pregnant woman has been given protection in order to protect her health as well as to avoid any interference which may be dangerous to the sound development of the unborn child. The effective safeguards have been provided for sound development of the child and the maintenance of health of the mother. Under Sec. 4 of the Act, (i) No employer shall knowingly employ a woman in any establishment during the 6 weeks immediately before the day of her delivery or her miscarriage. (ii) No woman shall work in any establishment during the 6 weeks immediately following after the day of her delivery or her miscarriage (iii) It may be noted that even on a request from a pregnant woman, she shall not be given any work of the nature i.e. which may cause interference with her pregnancy, normal development of fetus or may cause her miscarriage. The work of following nature is prohibited (1) any work which is of arduous nature, (2) any work which involves long hours of standing. (3) any work which may interfere with the pregnancy or normal development of fetus or may cause her miscarriage or adversely affect her health. 2. Right to payment of maternity benefit (Sec. 5) Sec. 5 provides that every woman shall be entitled to and her employer shail be liable for the payment of maternity benefit for the period of her actual absence. The period includes - Six weeks immediately before her delivery, the day 0 her delivery and for the six weeks immediately after her pregna: In other words, we can say that ~ The maximum period for which any woman is entitled to maternity benefit, shall be 12 weeks, that is to say, 6 weeks upto and including the day o her delivery and 6 weeks immediately after her pregnancy. i) A woman means a woman employed whether directly or through any agency for wages in any establishment ii) "Wages" for the purpose of this Act mans all remuneration paid or payable in cash to a woman including dearness allowance, house rent allowances etc iii) The maximum period for which any woman is entitled to maternity benefit is twelve weeks, that is to say, six weeks upto and including the day of her delivery and six weeks immediately after her delivery. iv) However, no woman is entitled to maternity benefit, if she has not actually worked in establishment of the employer for a period of at least 160 days in the twelve months immediately preceding the date of her expected delivery 3. Notice of claim for maternity benefit and payment thereof Section 6 of the Maternity Benefit Act deals with the rules regarding notice of a claim for maternity benefit and payment thereof. The notice under section 6 must contain following rules, i) Any woman who is entitled to maternity benefit or any other amount has to give notice in writing, in order to receive the claim, to her employer. ii) The notice shall be in such form as may be prescribed iii) The notice must indicate/mention the name of the nominee in case of death of a woman iv) A woman must state in her notice that she will not work in any other establishment during the period for which she receives maternity benefit v) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery vi) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of 6 weeks after the day of her delivery vii) However, if a woman fails to give notice as required under t t, she does not become disentitled to maternity benefit. But, in such a case she has to make an application to the inspector. The inspector shall make an order for the payment of maternity benefit. 4. The work is prohibited in any other establishment According to this provision, a woman who claims maternity benefit from her employer is prohibited to work in any other establishment during the period for which she receives maternity benefit. 5. Payment of maternity benefit in case of death It has been provided under Section 7 of this Act that if a woman entitled to maternity benefit any other amount, dies before receiving such maternity benefit or amount, it shall be paid to her nominee as indicated in the notice and in case there is n6é such nominee, the amount should be paid to her legal representative. S. Payment of medical bonus (S.8} Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus as pet the prescribed rate by the Act. 7. Leave for miscarriage (S.9) In case of miscarriage, a woman shall on production of such proof as may be prescribed be entitled to leave with wages at the rate of maternity benefit for a period of 6 weeks immediately after the day of her miscarriage 8. Leave with wages for tubectomy operation (S.9-A) Section 9(A) was inserted by Act of 1995. It is a new provision incorporated in the Act, with an intention to inspire & increase the family planning operations with the object to prevent the over growing population Under this provision a woman undergone to tubectomy operation is entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately after the day of her tubectomy operation. o. Le ave for illness arising out of pregnancy ete. Section 10 of this Act provides that a woman suffering from illness arising out of pregnancy, delivery, premature birth of child, miscarriage, medical termination of pregnancy or tubectomy operation shall on production of prescribed proof be entitled in addition to the period of absence allowed to her, to leave with wages for a maximum period of one month. Thus, under section 10 leaves for one month is available in cases indicated above. 10. Nursing Breaks Section 11 of the Maternity Benefit Act, provides that every woman delivered of a child who returns to duty after such delivery shall be allowed two breaks of prescribed duration of nursing a child upto the age of 15 months, in the course of her daily work 11. Dismissal during the absence or pregnancy of woman is prohibited Section 12 of the Act provides that when a absents herself from work in accordance with the provisions of this Act. Her employer can not discharge or dismiss her during or on account of such absence Thus, the employers are prohibited from discharging or dismissing a woman worker during the absence or during the perio¢ of pregnancy of woman. This is a special protection provided to woman workers under the provisions of this Act 12. No dedu stion of wages in certain cases Section 13 of this Act provides that the employer cannot deduct the normal wages of a woman entitled to maternity benefit. This, this provision makes it clear that the employer can not play any mischief by allowing her light work during pregnancy and breaks for nursing the child when duty after delivery and cannot make deductions from her wages by reasons only of she has given/allowed breaks for nursing the child 13. Effect of Laws & Agreements inconsistent with this Act It has been provided that the provisions of this Act shall override any other Law or any award or agreement or contract of service, which may be inconsistent with the present Act. 6 It may be pointed out that if under any such award or agreement or contract of service a woman has given more favourable benefits than those provided under this Act, then she shall be entitled to the more favourable benefits. 14. Forfeiture of Maternity Ben fit Section 18 provides that ~ If a woman works in any other establishment after she has been permitted by her employer to absent from works under the provisions of this Act for any period during such authorized absence, then she shall forfeit her claim of Maternity Benefit for such period 15. Al of Act & Rules to be exhibited The benefits allowed under this Act may not be known to every workman & workwoman. Hence section 19 imposes the liability upon every employer to exhibit the Abstract of this Act and the rules made there under, in the language of the locality in a conspicuous place in every work of the establishment to such woman are employed 16, Court of Competent Jurisdiction Section 23 of this Act provides that "No Court inferior to that of a Metropolitan Magistrate or a Magistrate of the First Class shall ty the offences under this Act. It means that - The Court of Metropolitan Magistrate or a Judicial Magistrate First Class are competent court to try the offences committed under this Act 17. Power to Exempt any establishment. Section 26 lays down that — "The appropriate Govt. has power to exempt any establishment or class of establishments from the operation of this Act on being satisfied, ‘The Govt. may do so by giving notification in the official gazette THE MATERNITY BENEFITS ACT, 1961 Section 21 to 24 of the Maternity Benefit Act, 1961 deals with the penalties for contravention of the Act as well as it provides for penalty for obstructing Inspection. Section 23 explains about "Cognizance of Offences". 1, Penalty for contravention of Act by emplover (Section 21) Section 21 provides that if any employer contravenes the provisions of this Act or the rules made thereunder, he shall be punishable with imprisonment which may extend to 3 months or fine which may extend to Rs.500/- or with both Where the employer contravenes any provisions regarding maternity benefit or regarding payment of any other amount & such maternity benefit or amount has not already been recovered, the court shall, in addition recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto 2. Penalty for obstructing Inspector (Section 22 The following acts shall be punishable with imprisonment which may extend to 3 months or with fine which may extend to Rs.500/- or with both : i) failure to produce on demand by the Inspector any register or document kept in custody of the person in pursuance of this Act; and ii) concealing or preventing any person from appearing before or being examined by an Inspector. 3. Cognizance of Offences (Section 23) Section 23 explains about the cognizance of offences — i) It says that any aggrieved woman, an office — bearer of a trade union registered under the Trade Unions Act of which such woman is a member or an Inspector, may file a complaint regarding the commission of an offence under this Act in any court of competent jurisdiction. ii) And, no such complaint shall be filed after the expiry of one year from the date on which the offence is alleged to have been committed. 8 iii) No prosecution shall be made except by or with the previous sanction of the Inspector. iv} In computing the period of onc year as aforesaid, the time, if any, taken for the purpose of obtaining such previous sanction shall be included v| Further, no court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try such offence. 4. Prohibition of action taken in good faith (S ction 24] Section 24 provides that — any suit, prosecution or other legal proceedings shall not lie against any person for anything which is, good faith, done or intended to be done in pursuance of this Act. nm Conclusion THE MINIMUM WAGES ACT, 1948 Introduction The Minimum Wages Act, 1948 passed for the welfare of workers. The main object is that to provide for a minimum limit of wages in certain schedule employment is means the fixation of minimum wages. According to law which the employer must pay to worker (to employee) ‘This Act to prevent the torture or harassment of the workers So this Act has been enacted to secure the welfare of workers in a competitive market. So, wages is given to the workers as per the schedule In short, this Act is to fix minimum wages & also to avoid of prevent unfair wade practice, by the employer due to this reason various provision are prescribed which are relating to meaning of wages, fixation, revision, claim for minimum wages. Hence this Act provide the security to the workers and prevent unfair practice by the employer DEFINITION 1. Wages - "Wages means remuneration or consideration liable of being expressed in the terms of money. 2. Wages ~ "It means such consideration, something as per Act, which is paid by employer to employee." 3. Wages ~ “Wages means all remuneration/consideration payable in terms of money or facilities by an employer to employee INCLUDE The following are the factors are consider or included in the meaning of wages such as Basic pay Allowances . House rent . Medical facility . Light bill . Water bill ‘elephone bill NOMeoOne 10 The following factors are not consider or included in the meaning of wages it means these are excluded such as 1. Pension 2. Provident fund 3. Gratuity 4. Bonus 5. Concession in travelling KINDS OF W. According to this Act there are three kinds of wages. They are as under 1. Fair wages According to this wages, employer provided the wages to the workers alongwith luxurious facilities. It means the more luxurious facility along with the wages [F.W.= Wages + More luxurious] 2. Living wag According to this kind wages given by employer to employee along with few luxurious facilities ie. the ratio is very law of luxurious facility it is created as per the requirement [L.W. = Wages + Few facility] 3. Minimum Wages ~ According to this kind of wages is given by employer to employee. It is provided according to the requirements in this circumstances there is no any luxurious facility provided to the worker it is given as per the ratio which are prescribed by Act. [M.W.= Wages + No luxurious facility} ir FIXATION OF DETERMINATION OF MINIMUM WAGES REVISION/REVIEW/REVISE OF MINIMUM WAGES Introduction According to this Act provide the various provision or procedure and fixation and revision of wages it is fixed by appropriate government for this purpose. Notification is published in the “Official Gazette” about fixation and revision some rules and regulations are made regarding fixation or revision. Therefore every employer the rules & regulations of this Act otherwise when employer is unable to provide such wages then the employee has right to claim against the employer so the main object is that to prevent the unfair trade practice Thus, the following are the factors which are taken into consideration for fixation or revision of minimum wages. 1. Appropriate Govt, According to this Act appropriate govt. is consider as a competent authority. It may be central government o state government such government has power to appoint appropriate govt. Therefore such government has power to fixation & revision of minimum wages on reasonable ground. 2. Period ~ According to this Act provides the provision for the period ot fixation & revision of minimum wages. So fixation or revision can be is over it means after the expiry of 5 years done after every five years such minimum wages may be fix or revise. 3. Nature of work — The minimum wages is fixed or revised according to the nature of work. So when the nature of work is simple then minimum wages is very low as per the Act. Whereas the nature of work is danger or accidental etc., then minimum wages is more than ordinary wages. 4. Time of work ~ The time of work is taken into consideration for fixation of minimum wages. Therefore minimum rate of wages are also different in every industry at the time of fixation or revision of wages working 12 hours, overtimes urgency, ete. factors must be consider when the shirts then wages is twice than work is provided under nights ordinary wages 5. Capacity of employer The capacity of employer plays very vital role in the fixation & also rev revision when employer is having better financial position. Then wages are fixed or revised accordingly. On the contrary the employer collect the borrow money, loan debt ete. then rate of wages is low Therefore capacity of employer is consider. sion of wages. It is considered at the time of fixation or 6. Cost of living index number It means that a schedule which indicates the requirements of human beings such schedule explain the necessary expenditure of employee. So it is take in to consideration for fixation or revision. It is certain & declares by competent authority applicable to employs in employment 7. Circumstantial worl According to this Act in certain period minimum wages is fixed or revised according to the circumstantial work. It means some types of changes are done in nature of work. Then such nature must be consider similarly if efficiency is required in the work then minimum wages is fixed or revised such as dangerous work or simple work etc 8. Transport facility It is applicable to the supply of raw materials. Because supply of raw material is a fundamental part of production. Therefore at a time fixation or revision of minimum wages, such facility is considered. Therefore according to this facility it is considered at that time, various factors are considered. 9, Facilitic According to Act number of types of facilities is necessary to the employee. Therefore when employer provide the various facilities to employee, then rate of minimum wages is very low otherwise facilities are not supplied by the employer the minimum wages may be higher. 13 10. State advisory board ‘The State Govt. established advisory board for every state. In short every state established advisory board therefore number of types of power are vested to such board. Out of them one of the powers has fixation or revision of minimum wages for this purpose necessary procedure must be followed as per the law 11, Central advisory board This board is established by central government it is situated at central place of country. As per the above board various powers vested to such boards. According to power such board interferes in fixation or revision of minimum wages. So this board determines the minimum wages 12. Settlement committee This committee is established by the appropriate government when any dispute is arises then such committee is created. In this committee the representatives of employer & employee are involved they settled the minimum wages as per the ‘Employment Schedule’. 13. Region According to this Act, some provision relating to the area of industry & also wages because minimum wages must be fixed or revised according to the region. Conclusion Thus all above is the most important factor which are consider at the time of fixation or revision of minimum wages under this Act Out of them any work factors is sufficient to revision & fixation of minimum wages. CLAIM/PROCEDURE FOR MINIMUM WAGES Introduction According to this Act the employer is responsible to pay minimum wages to the employee at that time employment schedule must be consider where as employer is unable to provide minimum wages to employee then he can take legal remedy against employer i4 therefore claim of minimum wages ¢ purpose some procedure must be consider. m be done by employee for this Procedure According to the procedure of this Act, employee can make application for the payment of minimum wages. Such application must be submitted before the competent authority such as. commissioner, labour officer, inspector and also court Thus above are the competent authorities for the claim of minimum wages they arc appointed under this Act. Therefore employee filed such application before the authorities, Such authorities take an action in the period of six months. During that period equal opportunity is given to the employer & employee the main object is that both can make explanation about the application So they represented the necessary information relating to the payment of minimum wages After that the competent authority take decision ie. a direction can be given to employer for the payment of minimum wages. The power of authorities are just like civil courts if such authority is unable to decide the application in this circumstances the employee can file a suit before court & prove his case in this circumstance court can pass necessary order regarding to minimum wages. According to this Act claim for minimum wages are divided into two parts A] APPROPRIATE AUTHORITY 1. Application 2. Appropriate officer 3. Opportunity 4. Period 5. Direction B) LABOUR COURT 1. Suit 2. Issue summons 3. Service of summons Appearance Written statement ae Issues, 7. Evidence Argument 9. Judgment/ Decision 10. Appeal. we DEFENSES OR EXCEPTION EXEMPTION Following are various defence available to the defendant or employer such as — Non skilled without consent of employer Ultravirus Not followed the direction of emplover Fenn THE PAYMENT OF GRATUITY ACT, 1972 Q. 1. How employee is entitled to get the benefit of payment cf gratuity? Q. 2. Define gratuity. How it is determined & forfeited? 1, Scheme of the Act It is small Act, having only 15 sections without schedules. Section 1 of the Act, 197: s about the short title, extent and commencement of the Act spea. ‘ection 2 gives various definitions relating to this Act ction 4 is the most important section which explains about “Payment of Gratuity" The Payment of Gratuity Act, 1972 is enacted by the Indian Parliament in accordance with the spirit & ambition of Article 43 of the Constitution 2. Object & reasons of the Act The preamble of the Act says the “An Act to provide for a scheme for the payment of gratuity to employees engaged in industries or establishments.” The Supreme Court of India, while deciding the case “Indian Hum Pipe Company Ltd. Vs. It's Workmen” expressed the object of payment of gratuity as follows "Gratuity is a kind of retirement benefit like the provident fund or pension. Gratuity is paid to the workmen with an intention to help them after retirement, whether the retirement is the result of the rules of superannuation or physical disability. The general principle underlying such gratuity schemes is that by their length of service workmen are entitled to claim a certain amount as a benefit.” 3. Introduction The law relating to payment of gratuity was very vague and uncertain before passing of the Gratuity Act, 1972. Ultimately all controversies were settled by passing of the Payment of Gratuity Act, 1972. It's main object was pointed out in "Dethi Cloth and General 17 Mill: Ltd. Vs. Their Workmen (1968 36 FIR 247)", that the object of providing a gratuity scheme is to provide a retiring benefit to the workmen who have rendered long and unblemished service to the employer and thereby contributed to the prosperity of the employer. The important thing is to know that the very definition of "gratuity" on which the Act is framed, is not defined in the Act. However, in simple words we can say that, "Gratuity" is a retrial benefit. It is a lump sum payment made by an employer to an emplovee due to his past service. When the employment is terminated? It helps in the case of death of an employee, much needed financial a: Therefore, gratuity is an instrument of social security and their significance in a developing country like India is very much. stance to the surviving members of the family. Further Section 1{3) provides that, the Act applied o every factory, mine, oilfield, plantation, port and railway company and applied to every shop or establishment in which 10 or more persona are employed or were employed on any day of the preceding twelve months, ‘The Payment of Gratuity Act, 1972 was passed and received the assent of the president of India on August 21, 1972. It came into force from 16% Sept. 1972. This Act extends to the whole of India. However where it relates to plantation or ports, it shall not extend to the state of J. & K It was held in Nagar Palika Moradabad Vs. App. Authority and Addl. Labour Commissioner, U.P. Kanpur & Ors. (1990) 2 Lab.L.J 156 (Ail) that Municipal Board is an ‘establishment’ governed by the Payment of Gratuity Act, 1972 and it is not necessary for a legal heir of an employee to first obtain a succession certificate & then apply for payment of gratuity amount In Municipal Corporation of Delhi Vs. Smt. V.T, Naresh & anr. 1986} Lab.L.J. 323 (Delhi) the Hon'ble Court held that a corporation and/or a local authority like the Municipal Corporation of Delhi is ‘an establishment’ governed by the Payment of Gratuity Act, 1972. It is an authority created by the Delhi Municipal Corporation Act, 1957 4. Eligibility to Receive Gratuity OR When Gratuity is Payable? Section 4 is the most important section of the Payment of tuity Act. Section 4 has 7 sub-sections. Section 4/1) explains 18 about the eligibility to receive gratuity. Section 4(3) restricts the amount payable towards gratuity. Section +{6} explains about “forfeiture of gratuity.” According to section 4{1) of the Act gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less that 5 years a. On his superannuation; or b. On his retirement or resignation: On his death (or) disablement due to accident or disease Important Points A. Minimum Period of Service Gratuity is retirement benefit to employee for his long and continuous service it helps in his old age i) The primary condition to receive gratuity is that an employee should be in service continuously for not less than 5 years. ii) Further this condition is It means that — the completion of continuous service of 5 years is not necessary where the termination of the employment of any employee is due to death or disablement iii) Further, the period of continuous service is to be counted from the date of employment B. When is Gratuity Payable? According to Section 4(1), the gratuity is payable on ~ i) Superannuation Section 2 of the Act defines ‘superannuation’. Superannuation in relation to an employee, means the attainment by an employee of such age as is fixed in the contract or conditions of service, as the age on the attainment of which the employee shall vacate the employment. ii) Retirement Section 2 defined ‘retirement’. Retirement means ‘termination of service of an employee otherwise than on superannuation. Thi section include: ‘dismissal’ and ‘removal 19 iii) Resignation An employee may resign his job with his pleasure. While resigning, he should not violate the terms of service contract. He may resign for better opportunities in other establishment. A forced resignation is equal to dismissal. iv) Death If death of an employee occurs, the employer should pay gratuity to the aggrieved family of the employee. In case of death, the completion of continuous service of 5 years is not necessary. This exemption is given on humanitarian grounds. v] Disablement due to accident or disease If a worker gets disablement due to accident or disease and he is not fit for employment, he may be removed from his job. Under such circumstances, the gratuity shall be payable to him. The completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to disablement. Disablement may be partial or total. It may be temporary or permanent. DETERMINATION OF THE AMOUNT OF GRATUITY A, “Fifteen Days Average Pay" "Fifteen days Average Pay payment of gratuity. is the important principle laid in Important Points a. Gratuity is calculated & payable to an employce at the rate of 15 days ages. It is a yard-stick for the purpose of calculation b. The wages shall be wages last drawn by the employee. For Ex. — An employee joined in service on 01.01.1993 @ Rs.S00/-. He was retired from service under superannuation on 31,12,1999, At the time of his retirement, he drew a monthly salary of Rs.3000/-. While calculating the gratuity, the wages at the rate of Rs.3000/- shall be taken into account, and not Rs.500/-. 20 Calculation ~ The fifteen days wages last drawn shall be calculated by diving the monthly ratc of wages by 36 and multiplying the quotient by 15. For In the above example, the employee was drawing Rs.3000/- at the time of his retirement. This was the pay last drawn by him 3000/26 = 115.40 115.40 x 15 = 1731.00 01.01.1973 to He was in employment for 27 years i.e. from 31.12.1999 and gratuity payable to him is 1731 x 27 = Rs.46,737.00/ d. Calculation in case of disabled worker Sometimes, after retiring a disabled person from service, he may be re-appointed in lesser category posts on humanitarian grounds. For Ex. A Lorry Drive is disabled due to the accident. After retiring as a Lorry Driver, the management may appoint him as an office attender an lesser wages. In_ that circumstances the worker gets gratuity at two different rates i.e. one for the periad of employment prior to disability and second for the period as office attender at different rate. e. Maximum Limit Section 4(3) imposes the restriction that the amount of gratuity payable to an employee shall not exceed Rs.3,50,000/ f. Maximum limit, which is imposed in Section 4(3) is not a mandatory one. Section 4(5) relaxes it. This section provides that — "Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer." B. Procedure for determination of the amount of Gratuity Sec. 7 of the Act enunciates or lays down a detailed procedure & provisions for the determination of the amount of gratuity. Important Points on Sec. 7 i) An employee who is eligible for payment of gratuity under the Act or any person authorized, in writing on his behalf, shall apply, ordinarily within 30 days from the date the gratuity became payable, to the employer ment of ii) A nominee of an employee who is eligible for pay gratuity shall apply, ordinarily within 30 days from the date the gratuity become payable to him, to the employer iii) A legal heir of an employee who is eligible for payment of gratuity shall apply ordinarily within one year from the date the gratuity became payable to him, to the employer. iv) The period of limitatior where the applicant gives may be relaxed in appropriate cases, sufficient reasons for the delay vy) Employer! Obligation / Duty a) As soon as gratuity becomes payable, it is the duty of employer to determine the amount of gratuity and to give notice, in writing. to the employee or his nominee or to his legal heirs as the case may be. b) The employer shall arrange to pay the amount of gratuity within 30 days from the date it becomes payable to the person to whom the gratuity is payable. c) Deposit — If there is any dispute arose between the employee and the employer about the determination of the gratuity, forfeiture to gratuity, ete. then the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity FORFEITURE OF GRATUITY Section 4(6) of the Act deals with the issue of forfeiture of Gratuity. It empowers the employer to forfeit the amount of gratuity of employee in certain ci umstances. Important Points i) Section 4(6) covers all major misconducts, minor misconduct are exempted. ii) Course_o employment ~ Such misconducts should have been done by such employee during the course of his employment 22 iii) Riotous conduct or act of violence — If any damage is caused to the property of the estivlishment/employer by the violent acts of any employee, he is disqualified to receive gratuity such employer shall forfeit gratuity to the extent of the damage or loss so caused iv) Moral Turpitude ~ This term is not defined in the Act but, it means anything done contrary to justice, honesty, modesty or good morals. It is provided that — the employer may forfeit the amount of gratuity for any act committed by the employee involving the offence of moral turpitude provided further that such offence should be committed by the employee in the course of his employment v) In such cases the amount of gratuity payable to the employee may be wholly or partially forfeited or loss vi) The right of forfeiture is limited to the extent of dame caused vii) Principal of Natural Justice — Where the gratuity of an employee is forfeited, the employer should follow the principles of natural justice i.e. notice and hear the other side viii) Where the service quarters is not vacated by retiring employer, in such cases gratuity cannot be withheld/forfeited by the employer. (Air India Vs. Authority Under the Act, 1999 CLA 34 Bom. 66) "NOMINATION’ An employee covered by the Act is required to make nomination in accordance with the Rules under the Act for the purpose of payment of gratuity in the event of his death. The Rules also provide for change in nomination Important Point: i) An employee is at liberty and right to nominate more than one nominee ii) Subject to the provisions of 6(3) & 6(4), an employee may modify or change his nomination at any time, after giving to his employer a written notice iii) It is the duty of the empioyer to keep nomination papers in sat custody. iv) In case of the death of the employee, the nominee is entitled to receive gratuity. He should submit an application ordinarily within 30 days from the date the gratuity became payable to him, to the employer Protection of Gratuity Gratuity has been exempicd from attachment in execution of any decree or order of any civil. revenue or criminat court. This relief is aimed at providing payment of gratuity to the person or persons entitled there to without being affected by any order of attachment by a decree of any court mption: The appropriate Govt. may excmpt any factory or establishment from the operation of the Act, if the gratuity or pensionary benefits for the employees are more favorable than conferred under the Act. THE INDIAN TRADE UNIONS ACT, 1926 A, Scheme of the Act On the recommendation of “Royal Commission of Labour" the term British Govt. enacted the Indian Trade Unions Act, 1926. It is a small Act having 33 sections housed /divided in five chapte Chapter ~ I, containing sections 1 and 2 explains the provisions about ‘preliminary’. Section 2 defines various terms. Chapter - 11, S Unions.” on 3 10 14 deals with "Registration of Trade Chapter ~ III, Section 15 to 2 of Registered Trade Unions.” deals with "Rights and liabilities Chapter - IV, Section 29 & 30 delegates the power to the appropriate Govt, to make Regulations. Chapter - V, containing Section 31 to 33 provides for "Penalties and Procedure.” B. Introduction Before passing of the Indian Trade Unions Act, 1926, the Trade Union Leaders could have been liable for prosecution and imprisonment even for the bona fide trade union activities. Hence, an Act to provide the protection to the union leaders was badly needed. Under such circumstances, it was considered proper and expedient to provide a suitable legislation for registered trade unions. Then the secretary of state recognized the need for trade union legislation, And Shri N.M. Joshi moved a resolution in 1921, making recommendation to the Governor. General in council that, "he should take steps to introduce, at an early date, in the Indian Legislature, such legislation as may be necessary for the registration of trade unions and for the protection of trade union leaders and trade union officials from civil & criminal liabilities for bona-fide trade union activities. C. Aims and Objects of the Act, 1926 Like British Trade Union Act, 1871 the Indian Trade Unions. Act, 1926 had two main objects. 25 ij Ils first object was to grant all trade unions, immunity from some of the civil & criminal liabilitics. ii) Its second object was to provide a system of voluntary registration for trade unions, requiring the adoption of adequate rules, and to make necessary provision in regard to the keeping & audit of proper accounts & fling of annual returns. ‘Thus, in order to encourage registration, a legal status was given to registered trade unions, conferring certain powers & advantages which are not given to unregistered unions. Mr. V.V. Giri had rightly remarked that the passing of the Indian Trade Unions Act in 1926, is an important land mark in the history of the trade union movement in the country D. Extent & Commencement of the Indian Trade Unions Act, 1926 The Indian Trade Unions Act, 1926 extends to whole of India (Sec. 1(2)) and it has commenced from the 1* of June, 1927. The word “Indian” had been dropped by Amending Act of 1964 from it's title. Since then, it is called, "The Trade Unions Act, 1926." In order to meet the needs of the working class & provide further safeguards & protection the Act has been amended from time to time. E, Definitions (Sec.2) i) Trade Dispute : - The expression "Trade Dispute” has been defied in the section 2(9) of this Act in relation to parties & the nature of the dispute “rade dispute", means any dispute 1) aj between employer & workmen; or b) between workmen & workmen; or c) between employer & employers; 2) Any such dispute must be connected with : - {i) the employment; or (ii) non-employment; or (iii) the terms of the employment; or (iv) the conditions of labour or any person. Registrar : - As provided in S.2{) Registrar means, a Registrar of Trade Unions appointed by the appropriate Govt. U/Sec.3 and Re: sua also includes an Additional or Deputy Registrar of Trade Unions. iii) Definition of Trade Union Section 2(h) of the Trade Unions Act, 1926 defines "Trade Union". "Trade Union” means any combination whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers, (or) between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions Ingredients a) A Trade Union is any combination whether temporary permanent. b) The primary object and purpose of a trade union is to regulate the relations between — workmen & employers; or workmen & workmen; or employers & employers; or for imposing restrictive conditions on the conduct of any trade or business c) It may include any federation of two or more trade unions. d) An agreement between partners to form a partnership firm is not trade union. ¢) The Trade Unions Act does not affect any agreement between an employer and employers. f) The membership of the Trade Union is not restricted under this definition and Act, to any particular class of persons. 9) The definition of Trade Union given in Sec. 2(h) is very wide & exhaustive. It makes clear that the employers can also form a trade union or it includes a combination of employers and employees. i N Nature of Trade Unions A Trade Union is an association of wor securing certain economic benefits for its members through collective bargaining. Trade Union may also try to advance the social, political and cultural interest of its members. kers which is engaged in A Trade Union is commonly regarded as an association to help its members in getting collectively between terms of employment, wages, hours of labour, ete. members musi A Trade Union must possess definite aims. be welded together in a united form for the good of the whole group rather than for the promotion of any selfish, individual interests. ‘ The members not joint the ass hip is never compulsory. Any worker may or may ciation ‘The Trade Unions may be temporary or permanent. But, it may be effective & powerful only when their trade union is made on the permanent basis The temporary association may not be able to succeed to accomplish its goals & objectives G. Objectives and goals of the Trade Union : So far as the objectives & goals of the trade unions are concerned, the Trade Unions are made/ formed, i) Firstly, to secure speedy improvement of conditions of work and life and status of the workers in industry and society ii) Secondly, to obtain for the workers various measures of social security including adequate provision in respect of acciden maternity, sicknes old age and unemployment iii) Thirdly, to secure a living wage for every worker in normal employment and to bring about the progressive improvement in his standard of life; iv) Fourthly, to regulate hours & other conditions of work in keeping with the requirements of the workers in the matter of health, recreation & cultural development; 28 v) Filthly, to secure suitable legislative enactments for ameliorating the condition of workers and to ensure proper enforcement of legislation for the protection and uplift of labour. H. Employers Association It may be pointed out that not only the associations of workmen are covered within the definition of Trade Union, but the of employers are also covered and may validly be Trade Unions within the meaning of this Act organizations described as Some of the employers association may be mentioned here — For Ex. - Indian Jute Mills Association, Indian Tea Association, Indian Paper Mills Association, The Employers Federation of India and the All India Organization of Industrial Employers, ete. 29 Q. 1. "Registration of Trade Unions" Chapter Il of the Trade Unions Act, 1926 gives a detailed procedure form the purpose of registration of trade unions. This chapter - II contains 12 sections ie. Section 3 to 14, All these sections clearly state that the procedure for effecting the registration of trade unions To encourage unions to register, certain advantages & immunities were offered by the Act, including express power to acquire & hold movable & immovable property in its name, ete (1) Appointment of Registrars (Sec. 4) The Registrar of Trade Unions are empowered to register the trade unions. They are also empowered to cancel the Registration Sec. 2(1) defines “the Registrar". Section 4 of the Act empowered the appropriate Govt. shall appoint a person to be the "Registrar of Trade Unions’ for each state The appropriate Govt. may also appoint as many "Additional and Deputy Registrars of Trade Unions", as it thinks fit & necessary The appropriate Govt. may be notification, shall vest such powers and functions of the Registrars of ‘Trade Unions. It may specify & define the local limits within which any such ‘Additional or Deputy Registrar, who shall exercise & discharge the powers & functions accordingly (2) What is the mode of Registration of a Trade Unions Section 4 of the Trade Unions Act, elucidates the mode or procedure of registration of Trade Union. It says, any seven or more members of a Trade union may, by subscribing their names to the rules of the Trade Union, shall apply to the Registrar of Trade Unions for registration of the Trade Unions under this Act. This provision makes it clear that ~ an application for registration must be moved at least by seven members, but it is not necessary that this minimum number of members must remain in tact until the Trade union is finally registered. It may be pointed out that persons under the age of 15 years can not be members of trade unions. It has been provided that any person who has attained the age of 15 years may be a member of a registered trade union. 30 Application for r-gistration and what it shall conti The applic:ition must be in a prescribed manner. 'Form-a’ is the prescribed application. An every application for registration of a trade union shall bc made to the Registrar of the T Unions. The application shall accompany with “Rules of the ‘Trace Union", and a statement of the following particulars, namely (a) The names, occupations and addresses of members making the application {b} The name of the Trade Union and the address of it's Head Office. (c) The titles, names, ages, addresses and occupations of officer of the Trade Union. Thus, according to Sec. 5 of the Act, the above particulars are necessary to be furnished to the Registrar by the newly established Trade Union (4) Rules of Trade Union Section 5 provides that the applicants must submit "A copy of Rules of Trade Union" alongwith their application for registration. The Rules of Trade Union must state legal objects. If the objects are unlawful, the Registrar may withhold the registration. And further it is provided that — in the absence of such rules, no Trade Union shall be entitled to registration. The Rules must clearly mention the following particulars. (a) the name of the Trade union; (b) the object of the Trade union; (c) the whole of the purposes for which the general funds of the ‘Trade Union shall be applicable, which must be permissible under this Act; (d) the maintenance of a list of the members of the union & adequate facilities, for the inspection thereof by the office bearers & members of the Trade Union; (c) the payment of a subscription by members of the union which shall be not less than 25 paise per month per member (9 the conditions under which any member shall be entitled to any benefit assured by

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