ILL CONCEPT 2

8/14/2019 ILL CONCEPT 2

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NDUSTRIAL DISPUTE&CT THE CONTRACT&ABOUR ABOLITIONACT

,Y.ASHMI S: .OLL NO 27


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: , .EC 2A DISMISSAL ETC OF ANNDIVIDUAL WORKMAN TO BEEEMED TO BE AN INDUSTRIAL.ISPUTE

, , 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 disputenotwithstanding that no other workman nor any union of workman

.is a party to that dispute


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/ARKETING FEDERATION LTD V S ,ANJAY 22 JULY 2009 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION :CIVIL APPEAL NO 4605 OF 2009

( ( ) . / )Arising out of SLP C No 1201 2008 -Haryana State Co operative Supply

/APPELANT MARKETING FEDERATION LTD V S

-RESPONDENT SANJAY


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UPREME COURTJUDGEMENT

Ruled against the judgment of the High Court of

Punjab and Haryana whereby Division Bench of

that Court upheld the award passed by the

- - ,Industrial Tribunal Cum Labour Court Hissar

-ordering reinstatement of the respondent workman

%with continuity of service and payment of 50.back wages


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????

, ,Sanjay respondent was engaged as Chowkidar on causal basis by the

, , , .District Manager HAFED Jind on August 1998 for 29 days On

,expiry of the said contract fresh contracts were executed from

,time to time and he rendered service there until December 31

. , ,1998 He was engaged afresh by the District Manager HAFED Hissar

, , .on January 15 1999 where he worked upto May 31 1999

, ,As the service of the respondent was not renewed after May 31 1999

he issued demand notice under Section 2A of the Industrial

, ( " ")Disputes Act 1947 for short ID Act raising dispute to the

.effect that his services were illegally terminated


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.ESPONDENT S ARGUMENT ,The respondent before the Labour Court set up the case that he had

completed more than 240 days of continuous service in the year preceding

.the date of termination with the HAFED He raised the grievance that

-without following the mandatory procedure provided in Section 2 25 F of

,the ID Act his services were terminated which amounted to illegal

.retrenchment

It is pertinent to notice here that the respondent clubbed the period of

, , ,his engagement with District Manager HAFED Jind and District Manager, .HAFED Hissar while computing 240 days of continuous service


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.PPELANT S ARGUMENT

-The Appellant Management set up the plea that the workman was

, ,engaged on contractual basis by the District Manager HAFED Jind

, ,for the period from August 1 1998 to December 31 1998 and there

.he completed 145 days of service

, , ,The District Manager HAFED Hissar which is a separate industrial

, ,establishment engaged the workman afresh on January 15 1999

, ,upto May 31 1999 and accordingly workman worked in the office

, , .of District Manager HAFED Hissar for 112 days


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, ,The Management thus set up a specific case that the workman

worked at two different units of HAFED and the period of service

rendered at these two places cannot be clubbed for the purposes of

- .Section 25 F of the ID Act The case of the Management was that the

,workman having not completed 240 days of continuous service there

- .was no necessity of compliance of Section 25 F of the ID Act

.Industrial tribunal cum labour court violation of sec 2 25F

% .Reinstatement of workman with 50 wages

ABOUR COURTDECISION


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UPREME COURTECISION The Supreme Court of India said that For the purposes of applicability of

- ,Section 25 F the workman has to show that he has been in continuous

.service for not less than one year under an employer A workman is

deemed to be in continuous service for a period of one year if during

,the period of 12 calendar months preceding the date of termination hehas actually worked under the employer for not less than 240 days by

( ) . "virtue of Section 25B 2 of the ID Act The words has been in continuous

.......... " - . service under an employer in Section 25 F are crucial

&The offices of the HAFED Jind Hissar though under the same unit are, .separate establishments hence Mr Sanjay has not worked for the

.required 240 days for the fulfillment of sec 25F


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, &Therefore similar to the cases of DGM Oil Natural Gas

. & . . & .Corporation Ltd Anr v Ilias Abdul Rehman Union of India v

.Jummasha Diwan

,hence Industrial tribunal did not do a thorough reference and also

did not see that no transfer order between the establishments

.has been given

, , , .Therefore the appeal is accordingly allowed The Judgment dated

,May 7 2007 passed by the High Court and the Award dated

, - -February 8 2006 passed by the Industrial Tribunal Cum Labour

, .Court Hissar are quashed and set aside The parties will bear.their own costs


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HE CONTRACT&ABOUR ,BOLITION ACT1970


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EC 10 PROHIBITION OFMPLOYMENT OF CONTRACT LABOUR :Sub Section 1

,

Notwithstanding anything in this act the

,appropriate government may after consultation

, ,with the Central Board or as the case may be

,State Board ,prohibit by notification in the

,Official Gazette employment of contract labour,in any process operation or other work in any

.establishment


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&ACTORS - ( )Sub section 2 of Section 10 lays down sufficient

guidelines for deciding upon the abolition of

,contract labour in any process operation or

.other work in any establishment

:-The guidelines are mandatory in nature and are

Conditions of work and benefits provided to the.contract labour


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.- Whether the work is of Perennial nature sufficient duration

Whether the work is incidental or necessary for the work of an

.establishment

Whether the work is sufficient to employ

- .a considerable number of whole time workmen

Whether the work is being done ordinarily through regular workman in

.that establishment or a similar establishment

,If the question arises if a process is perennial or not the.decision of the appropriate government is deemed to be final


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UPREME COURTJUDGEMENTS

Landmark cases

,Gujarat State Electricity Board Vs Union of India

. &Air India Statutory Corporation Ltd Ors Vs United& .Labour Union Others

. &Steel Authority of India Ltd Others Vs National

Union of Waterfront Workers and others on. . , . . . .09 05 1995 6 12 1996 and 30 08 2001 respectively


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UJRAT STATE ELECTRICITYOARD CASE T he Supreme Court recommended that the Central

Government should amend the Act by incorporating a

suitable provision to refer to industrial adjudicator

,the question of the direct employment of the workers

of the

E - ,x contractor in the principal establishments

W hen the appropriate Government abolishes the contract.labour


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IR INDIA STATUTORYORPORATION CASE Supreme Court held that though there exists no express

provision in the Act for absorption of employees in

establishments where contract labour system is abolished by

( )publication of the notification under section 10 1 of the

,Act the principal Employer is under statutory obligation to

.absorb the contract labour The linkage between the

contractor and employee stood snapped and direct

relationship stood restored between

.principal employer and contract labour as its employees


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TEEL AUTHORITY OF-NDIA SAIL The Supreme Court has held that neither Section 10 of the Act

nor any other provision in the Act whether expressly or by

necessary implication provides for automatic absorption of

contract labour on issuing a Notification by the appropriate

( )Government under sub section 1 of Section 10 prohibiting

employment of contract labour

I .n any process or operation or other work in any establishment

Consequently the Principal Employer cannot be required to order

:-which are perennial in nature for following reasons


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;Reduction of regular employment

The contract labour generally belong to weaker sections of the

society and will be deprived of the benefits that accrue to

.regular employees

Efficiency will decrease as establishment will be deprived of

.experienced staff

Coordination of activities of large number of / -contractors sub contractors will prove to be

.more time consuming and costly than in house activity

What is required is not privatization but in house improvements

and restructuring


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.HANK YOU

Documents

ILL CONCEPT 2