Category Archives: Labour Law

Industrial Dispute – Jurisdiction

In Nand Ram v. Garware Polyster Ltd., (2016) 149 FLR 306, it was held that where the management at Aurangabad first took a decision to transfer the workman from Aurangabad to Pondicherry and then to close the unit at Pondicherry. It was then held that while industrial dispute of termination from service could validly be raised at Pondicherry, however, in such a case, it does not mean that the adjudication proceedings initiated at Aurangabad, where the management took a decision to close the Pondicherry unit, were without jurisdiction.
In matters of industrial dispute, the principle of part cause of action does apply and there is no rule, that only if the two or more States will be competent to make a reference. It will depend on the facts of each case. Also, it may have to be borne in mind, how much or which part of the cause of action arose inside the State where a reference happens to be made. Also, in case of two references arising in two different States, involving the same set of facts or cause of action, different tests may have to be evolved to see which of the two references arose first or which of the reference is more comprehensive or which may require to be decided first or which would suite the parties. Veritaz Health Care Ltd. v. State of U.P.¸ 2017 (3) AWC 3051.

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Hotel – Falls within the purview of Factories

In G.L Hotels Ltd. v. T.C. Sarin, (1993) 4 SCC 363, the Hon’ble Supreme Court even included Hotels to fall within the purview of factories by ruling thus:

“Since the manufacturing process in the form of cooking and preparing food is carried on in kitchen and the kitchen is a part of the hotel or a part of the precinct of the hotel, the entire hotel falls with the purview of the said definition of Factory.

In the same line, the decisions rendered in Poona Industrial Hotels Ltd. v. I.C. Sarin, 1983 (63) FLR 354 and ESI Corporation v. ITC Hotel Ashok, Bangalore, 1984 (64) FLR 184 answered the issue in clear terms that manufacture of food constitutes a Factory. Taj Madras Flight Kitchen Pvt. Ltd. v. Assistant Inspector of Labour, 2016 (150) FLR 315.

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Shop and Establishment

As per Concise Oxford English Dictionary, 11th Edition (Revised), the term “shop” has been given the following meaning:
Shop.—a building or part of a building where goods or services are sold.
According to Wharton’s Law Lexicon, 14th Edition (1993), a “shop” has been said to mean: a place where things are kept for sale, usually in small quantities, to the actual consumers.
According to Black’s Law Dictionary, 7th Edition (1999), the term “shop” has been stated to mean: A business establishment or place of employment; a factory, office or other place of business.”
According to Words and Phrases, Permanent Edition, Vol. 39, the term “shop” has been stated to mean, inter alia, the following:
“The word shop means a room or building in which the making, preparing, or repairing of any article is carried on or in which any industry is pursued; the place where anything is made; the producing place or source. State v. Sabo, 140 NE 499: 108 Ohio St 200 (1923)
Worcester defines a shop as a place, building or room in which things are sold; a store. Salomon v. Pioneer Coop. Co., 21 FLA 374: 58 Am Rep 667 (1885).
According to Corpus Juris Secundum, Vol. LXXX, the term shop has been explained as follows:
“The word shop appears to be derived from the old high German ‘schopf’ or ‘scopf’which meant a building without a front wall. It is a term of various significance, and has many definitions, and it may have different meanings when used with different texts. In it’s popular sense, as well as it’s legal meaning, the term shop is not confined to a store, and it may include both a store and a workshop.
The word shop may denote a place where goods are sold, a place, building or room in which things are sold and expressing this concept, the term is defined as meaning a place kept and used for the sale of goods; a place where goods are sold for retail.”
From the above it can be said that a “shop” is a place of business or an establishment where goods are sold for retail. However, it may be noted that the definitions as given in the dictionaries are very old and may not reflect, with complete accuracy, what a “shop” may be referred to as in the present day.
In Hindu Jea Band v. ESI Corporation, (1987) 2 SCC 101, it is observed that a “shop” would be a place where services are sold on a retail basis. In International Iron Ore and Fertilizers (India) (P) Ltd. V. ESI Corporation, (1987) 4 SCC 203, the Hon’ble Apex Court stated that a “shop” would be a place where the activities connected with buying and selling of goods are carried on. In Cochin Shipping Company v. ESI Corporation, (1992) 4 SCC 245, the Court observed that a “shop” must be held to be a place where commercial activity of buying and selling of merchandise takes place. In ESI Corporation v. R.K. Swamy, (1994) 1 SCC 445, the Court extended the meaning of a “:shop” to include even sale of services.
Therefore, certain basic features of a “shop” may be culled out from the above. It can be said that a “shop” is a business establishment where a systematic or organized commercial activity takes place with regard to sale or purchase of goods or services and includes an establishment that facilitates the above transaction as well.
In view of the fact that an “establishment” has been found to be a place of business and further that a “shop” is a business establishment, it can be said that a “shop” is indeed covered under, and may be called a subset of, the term “establishment”. Royal Western India Turf Club Limited v. ESI Corporation, (2014) 9 SCC 657.

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Workman – Accident and Injury

‘Accident’ and ‘Injury’ are distinct in cases where accident is an event happening externally to a man, eg., when a workman falls from the ladder and suffers injury. The less obvious cases of accident are strain causing rupture, bursting of aneurism, failure of muscular action of the heart, exposure to draught causing chill, etc. Such accidents can be called as internal accidents. In such cases, it is hardly possible to distinguish between the ‘accident’ and ‘injury’. The rupture is an accident, at the same time injury leading to death or incapacity at once or after a lapse of time. Thus in cases of internal accidents, “Accident” and “Injury” coincide. But the common factor in all cases of accident, whether internal or external is some concrete happening at a definite point of time and incapacity resulting from such happening. An accident happening to a person in or about any premises at which, he is for the time being employed for the purpose of his Employer’s trade or business shall be deemed to raise out of and in the course of employment.
At times accident need not be due to immediate cause or as a result of collusion or sudden mishap. Even a non-spontaneous injury resulting in death or causing injury to workman during the course or arising out of employment can also be termed as accidental injury.
The word ‘Injury’ includes physiological injury. The physiological injury suffered by a workman due mainly to the progress of a disease unconnected with employment, may amount to an injury arising out of and in the course of employment if the work which the workman was doing at the time of the occurrence of the injury contributed to its occurrence. The connection between the injury and employment may be furnished by ordinary strain of ordinary work if the strain did in fact contribute to or accelerate or hasten the injury. M.D., Karnataka State Road Transport Corporation v. Jayalakshmi, 2014 (142) FLR 978.

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Contract Labour – Control and Supervision

The expression “control and supervision” in the context of contract labour was explained by the Hon’ble Supreme Court in the case of International Airport Authority of India v. International Air Cargo Workers’ Union, (2009) 13 SCC 374 as under:
“If the Contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor.
The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.” Workmen, Bihar Colliery Kamgar Union v. Bharat Coking Coal India Ltd., 2014 (142) FLR 536.

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Industrial Dispute – Words “at any time”

The real test is that the words “any industrial dispute exists or is apprehended” has to be read alongwith the words “at any time”. These words, under Section 4K of the U.P. Industrial Disputes Act are complimentary to each other. Consequently, the words “at any time” does not suggest that a dispute could be raised at any stage and that there is no period of limitation attached to it. All it means that so long as an industrial dispute exists or is apprehended, such dispute could be referred for adjudication before an appropriate Labour Court or Industrial Tribunal upon a reference being made by the State Government.
The crucial test is that an industrial dispute should be in existence or is apprehended on the date of reference. If there was no industrial dispute existing or if the industrial dispute was not apprehended, the State Government had no power to make a reference but if the dispute was existing or was apprehended, the State Government could refer the dispute even if the dispute was raised after a considerable period of time.
Further the reference of such dispute is to be made on such opinion being formed by the Government on the basis of the material placed before it. In appropriate cases, even without waiting for the conciliation report the State Government can “at any time” refer a dispute which is existing or is apprehended for adjudication. Dr. Jawahar Lal Rohatagi Memorial Eye Hospital, Kanpur v. State of U.P., (2014) 1 UPLBEC 158.

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Industrial Dispute-Settlement arrived outside the conciliation proceedings

A settlement arrived at outside the conciliation proceedings has a limited application in the sense that it merely joins the parties to the agreement, whereas a settlement arrived at in the course of the conciliation proceedings binds all the parties to the Industrial Dispute not only parties to the settlement, but All such persons employed in the establishment. Further a settlement arrived in the course of conciliation proceedings with the recognized majority union would be binding on all the workers of the establishment, even to a minority union, who may have objected to the same. Hawkins Cookers Mazdoor Union and others v. Conciliation Officer, 2013 (5) AWC 4841

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