https://indiacode.nic.in/handle/123456789/2169?view_type=browse&sam_handle=123456789/1362
Section 2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.
1[2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.--
2[(1)]Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.]
3[(2)Notwithstanding anything contained in section l0, any such workman as is specified in sub-section (1)may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.
(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).]
STATE AMENDMENT
Andhra Pradesh--
2. In Section 2A
The following sub-section shall be added, namely:--
"(3) Notwithstanding anything in sub-sections (1) and (2), no such dispute or difference between that workman and his employer connected with or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute if such dispute is not raised in conciliation proceeding within a period of three years from the date of such discharge, dismissal, retrenchment or termination:
Provided that the Labour Court or the Conciliation Officer, as the case may be, may consider to extend the said period of three years when the applicant workman satisfies the Court or Conciliation Officer that he had sufficient cause for not raising the dispute within the period of three years.".
[Vide Andhra Pradesh 12 of 2015, s. 2]
1. Ins. by Act 35 of 1965, s. 3 (w.e.f. 1-12-1965).
2. Section 2A numbered as sub-section (1) thereof by Act 24 of 2010, s. 3 (w.e.f. 15-9-2010).
3. Ins. by s. 3, ibid. (w.e.f. 15-9-2010).
Section 25G. Procedure for retrenchment.Previous Next
1[25G. Procedure for retrenchment.--Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.]
Section 25K. Application of Chapter VB.
1[25K. Application of Chapter VB.--(1) The provisions of this Chapter shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than
2[one hundred] workmen were employed on an average per working day for the preceding twelve months.
(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final.]
STATE AMENDMENT
Andhra Pradesh--
In Section 25K
The following shall be substituted, namely:--
"25-K.Application of Chapter V-B:--(1) The provisions of this chapter shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than three hundred workmen were employed on an average per working day for the preceding twelve months.
(2) Without prejudice to the provisions of sub-section (1), the State Government, may, if satisfied that maintenance of industrial peace or prevention of victimization of workmen so requires, by notification in the official gazette apply the provisions of this chapter to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which such number of workmen which may be less than three hundred but not less than one hundred, as may be specified in the notification, were employed on an average per working day for the preceding twelve months.
(3) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the State Government thereon shall be final."
[Vide Andhra Pradesh 12 of 2015, s. 3]
Assam--
Amendment of section 25K.--In the principal Act, in section 25K, for the words “one hundred”, appearing in between the words "than" and "workmen", the words three hundred” shall be substituted.
[Vide Assam Act 22 of 2018, s. 2]
Karnataka--
Amendment of section 25K.--In section 25K of the principal Act, after sub-section (1), the following sub-section shall be inserted, namely:--
"(1A) Notwithstanding anything contained in sub-section (1) the State Government may, from time to time by notification in the official gazette, apply the provisions of section 25-O and section 25-R in so far, as they relate to contravention of sub-section (2) of section 25-O, also to an industrial establishment of a seasonal character or in which work is performed only intermittently in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months."
[Vide the Karnataka Act 5 of 1988, s. 5]
Section 25L. Definitions.
1[25L. Definitions.--For the purposes of this Chapter,--
(a) "industrial establishment" means--
(i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);
(ii) a mine as defined in clause (i) of sub- section (1) of section 2 of the Mines Act, 1952 (35 of 1952); or
(iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);
(b) notwithstanding anything contained in sub-clause (ii) of clause (a) of section 2,--
(i) in relation to any company in which not less than fifty-one per cent. of the paid-up share capital is held by the Central Government, or
(ii) in relation to any corporation not being a corporation referred to in sub-clause (i) of clause (a) of section 2 established by or under any law made by Parliament, the Central Government shall be the appropriate Government.]
Section 25M. Prohibition of lay-off.
1[25M. Prohibition of lay-off.--(1) No workman (other than a badli workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment to which this Chapter applies shall be laid-off by his employer except 2[with the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority), obtained on an application made in this behalf, unless such lay-off is due to shortage of power or to natural calamity, and in the case of a mine, such lay-off is due also to fire, flood, excess of inflammable gas or explosion.]
3[(2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended lay-off and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner.
(3) Where the workman (other than badli workmen or casual workmen) of an industrial establishment, being a mine, have been laid-off under sub-section (1) for reasons of fire, flood or excess of inflammable gas or explosion, the employer, in relation to such establishment, shall, within a period of thirty days from the date of commencement of such lay-off, apply, in the prescribed manner, to the appropriate Government or the specified authority for permission to continue the lay-off.
(4) Where an application for permission under sub-section (1) or sub-section (3) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such lay-off, may, having regard to the genuineness and adequacy of the reasons for such lay-off, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.
(5) Where an application for permission under sub-section (1) or sub-section (3) has been made and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.
(6) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of sub-section (7), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order.
(7) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (4) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication:
Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.
(8) Where no application for permission under sub-section (1) is made, or where no application for permission under sub-section (3) is made within the period specified therein, or where the permission for any lay-off has been refused, such lay-off shall be deemed to be illegal from the date on which the workmen had been laid-off and the workmen shall be entitled to all the benefits under any law for the time being in force as if they had not been laid-off.
(9) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub-section (1), or, as the case may be, sub-section (3) shall not apply in relation to such establishment for such period as may be specified in the order.]
4[(10)] The provisions of section 25C (other than the second proviso thereto) shall apply to cases of lay-off referred to in this section.
Explanation.--For the purposes of this section, a workman shall not be deemed to be laid-off by an employer if such employer offers any alternative employment (which in the opinion of the employer does not call for any special skill or previous experience and can be done by the workman) in the same establishment from which he has been laid-off or in any other establishment belonging to the same employer, situate in the same town or village, or situate within such distance from the establishment to which he belongs that the transfer will not involve undue hardship to the workman having regard to the facts and circumstances of his case, provided that the wages which would normally have been paid to the workman are offered for the alternative appointment also.]
Section 25N. Conditions precedent to retrenchment of workmen.
1[ 2[25N. Conditions precedent to retrenchment of workmen.--(1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,--
(a) the workman has been given three months notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and
(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.
(2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended retrenchment and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner.
(3) Where an application for permission under sub-section (1) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such retrenchment, may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.
(4) Where an application for permission has been made under sub-section (1) and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.
(5) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of sub-section (6), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order.
(6) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (3) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication:
Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.
(7) Where no application for permission under sub-section (1) is made, or where the permission for any retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him.
(8) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct, that the provisions of sub- section (1) shall not apply in relation to such establishment for such period as may be specified in the order.
(9) Where permission for retrenchment has been granted under sub-section (3) or where permission for retrenchment is deemed to be granted under sub-section (4), every workman who is employed in that establishment immediately before the date of application for permission under this section shall be entitled to receive, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months.]]
Section 25-O. Procedure for closing down an undertaking.
1[ 2[25-O. Procedure for closing down an undertaking.--(1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall, in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate Government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner:
Provided that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work.
(2) Where an application for permission has been made under sub-section (1), the appropriate Government, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and the persons interested in such closure may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the general public and all other relevant factors, by order and for reasons to be recorded in writing, grant or refused to grant such permission and a copy of such order shall be communicated to the employer and the workmen.
(3) Where an application has been made under sub-section (1) and the appropriate Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.
(4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding on all the parties and shall remain in force for one year from the date of such order.
(5) The appropriate Government may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a Tribunal for adjudication:
Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.
(6) Where no application for permission under sub-section (1) is made within the period specified therein, or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed down.
(7) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply in relation to such undertaking for such period as may be specified in the order.
(8) Where an undertaking is permitted to be closed down under sub-section (2) or where permission for closure is deemed to be granted under sub-section (3), every workman who is employed in that undertaking immediately before the date of application for permission under this section, shall be entitled to receive compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months.]]
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Now that the enterprises have been freed of the size threshold, entrepreneurs get no advantage in dwarfing their firms. Other reforms can soon follow, such as allowing for workers’ representation in a firm’s supervisory board, as it happens in Germany.
Written by Dipankar Gupta
https://indianexpress.com/article/opinion/columns/coronavirus-economic-relief-package-india-lockdown-6433660/
What made so many migrants suddenly long for their village, the very place they were happy to leave just a short time ago?
The answer lies in our Industrial Disputes Act (IDA), the motherboard of our labour laws, which has encouraged short-term employment, low skills and zero security. It did this by setting up thresholds which disincentivised long-term commitment of workers to entrepreneurs and vice versa.
How exactly did the thresholds in the IDA accomplish this? We can cut to the chase and go to Chapter V-B of the IDA, where its core provisions are stated almost “mantra-like. There are three thresholds which are absolutely pivotal: Hire more than 99 workers, and you will have to notify the government before you can fire any one of them. Hire more than 20 and you open yourself up to provident fund commitments and bonus payments. Finally, the ultimate threshold: If you want to deny workers severance pay, never keep them continuously employed for more than 240 days.
Given these provisions in the IDA, it will need either a foolish entrepreneur or one with extraordinary courage to hire more than 99 workers for over 240 days. The non-exceptional employers, that constitute the majority, are naturally tempted to observe these thresholds and duck under the radar.
As a result, these thresholds have only encouraged the informal sector, where both unregistered labour and unregistered entrepreneurs dominate.
The IDA has created a perfect storm. It has led to the proliferation of informal enterprises and low-skill workers. In the first 15 years of this century itself, over half the increase in total employment has been that of contract workers. This has also led to a phenomenal rise in MSMEs as the IDA has spooked entrepreneurs from harbouring any ambitions to grow big and formal. The MSMEs have, consequently, increased in number from 3.6 crore units in 2012 to about six crore today.
Sadly, over 94 per cent of MSMEs are in the micro sector and their contribution to GDP is just not measuring up. In 2012, MSMEs produced 37.54 per cent of our GDP, but this number fell to 30.7 per cent in 2015, and in 2019 it decreased further to 29.7 per cent. Over time, the IDA has succeeded in converting a large number of organised sector companies into strange, hybrid economic creatures, both fishy and foul.
In the ultimate analysis, the IDA does not produce winners, only losers. Imagine a different scenario without the IDA thresholds. Under this altered dispensation, every worker — regardless of factory size — is entitled to the same rights. Likewise, every employer, regardless of factory size, can hire and fire workers.
The outlook changes dramatically. The worker can now be fired without notifying the government, but must be compensated with severance wages, regardless of the size of the firm. Also, unlike the IDA, all the firms must have a formal dispute resolution board.
Now that the enterprises have been freed of the size threshold, entrepreneurs get no advantage in dwarfing their firms.
The IDA thresholds must go and not be merely fiddled with, as some states have done.
This article first appeared in the print edition on May 30 under the title “Law that produces losers”. The writer is a Delhi-based sociologist.
1 Whether the proposal of the writer is acceptable as it is or in a modified form or rejectable?
2 What should be guiding principles in deciding these issues? Do they need to be modified to be practical in today’s situation?
The goal of Sampoorn Rojgaar - can this be promoted?
Role of job security in industry – job security vs. more emoluments. Is not job security a basis of happy contented life for most of the people?
Does it maintain balance among workers and owners?
Does this serve overall national interest?
3 Will this proposal increase or decrease jobs?
4 Does this appear one-sided favouring industrialists?
5 Does this help Cottage, household, tiny, micro, small scale industries? – provisions like registration (street vendors?), severance pay etc.