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ADJUDICATION
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Meaning
Adjudication involves intervention in the
dispute by a third party appointed by thegovernment for the purpose of decidingthe nature of final settlement.
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Why??
When the government gets a report of thefailure of conciliation, it has to decide
whether it would be appropriate to refer
the dispute to adjudication. Developing countries cant afford to suffer
loss of production from long-drawn strikes
and lockouts.
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Why??
Further, the trade union cannot rely only
on collective bargaining for the protection
of the interest of the workers.
Therefore, the need for intervention by the
government is felt. This, the government
does by making references of disputes to
the adjudication machinery
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Socio-Economic Importance ofAdjudication
It is always a matter of making reasonableadjustments between the two competing claims.So the claims of the interests of the generalpublic have to be weighed and balanced againstthe claims of the individual citizen in regard to
his fundamental right. So, too, in the case of adjudication, the claims of
the employer based on the freedom of contracthave to be adjusted with the claims of industrial
employees for social justice."
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Types of Adjudication
When the government gets a report of thefailure of conciliation proceedings, it has to
decide whether it would be appropriate to
refer the dispute to arbitration. The reference of dispute to adjudication is
at the discretion of the government.
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Types of Adjudication
When both parties, of their own accord,
agree to refer the dispute to adjudication, it
is obligatory on the part of the government
to make a reference. When a reference toadjudication is made by the parties, it is
called Voluntary Adjudication.
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Types of Adjudication
On the other hand, when reference is
made to adjudication by the government
without the consent of either or both the
parties to the dispute, it is known asCompulsory Adjudication.
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Three-Tier System ofAdjudication
The Industrial Disputes Act, 1947 provides
for a three-tier system of adjudication:
(1) Labour Courts;
(2) Industrial Tribunals; and
(3) National Tribunals.
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Three-Tier System ofAdjudication
The Labour Courtsadjudicate upondisputes listed in Schedule II of the Act
The Industrial Tribunalsadjudicate upondisputes listed in Schedule II or III of the
Act.
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Three-Tier System ofAdjudication
The National Tribunalsadjudicate upondisputes which are of national importance,
or when the dispute is of such a nature as
to affect industrial establishments situated
in more than one state.
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LABOUR COURTS
Constitution :
A labour court shall consist of one persononly, who:
(a) Is or has been a judge of a High Court; or
(b) Has been, for a period of not less than 3years, a District Judge; or
(c) Has held any judicial office in India for notless than 7 years.
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LABOUR COURTS
No person shall be appointed or continue
in the office of the labour court if he is not
an independent person, or if he has
attained the age of 65.
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LABOUR COURTS
The duties of the labour court are:
(i) To hold adjudication proceedingsexpeditiously; and
(ii) Submit its award to the appropriategovernment as soon as practicable on the
conclusion of the proceedings.
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JurisdictionThe jurisdiction of labour courts extends
to the adjudication of the followingdisputes relating to matters specified inthe Second Schedule:
1. The propriety or legality of an orderpassed by an employer under theStanding Orders.
2. The application and interpretation of
Standing Orders.
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3. Discharge or dismissal of workers,including reinstatement of, or grant of relief
to, workers wrongfully dismissed.4. Withdrawal of any customary concession or
privilege.
5. Illegality or otherwise of a strike or lockout.6. All matters other than those specified in the
Third Schedule of the Act (i.e., thosematters which are within the jurisdiction ofindustrial tribunals).
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LABOUR COURTS
The labour court has no power whatever
except those powers which can be traced
to a Statute, to a statutory rule or a
statutory instrument. It has no supervisoryjurisdiction, i.e., it cannot act as a guardian
of an industrial establishment.
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LABOUR COURTS The jurisdiction of the labour court is
circumscribed. It does not apply its mind tofind out if a different conclusion is possible.
Its duty is to see whether the enquiry
satisfies the principles of natural justice;whether there was material for the
managements to act in the manner they did
and whether their act was savoured of any
malpractice or victimization.
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LABOUR COURTS
In the absence of such an indication exfacie inthe proceedings of the enquiryofficer, the labour court is normally
expected to approve the decision of thedomestic enquiry and grant the permission
asked for.
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Ex facie, Latin for "on the face [of it]," is alegal term typically used to note that a
document's explicit terms are defectivewithout further investigation.
For example, a contract between two
parties would be void if, ex facie, thedocument does not require party A to give
consideration to party B for services
rendered.
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INDUSTRIAL TRIBUNALS
The matters which are in the form of newdemands and give rise to industrial
disputes which affect the working of a
company or industry are usually referredto an industrial tribunal. The industrial
tribunal may be appointed for a limited
period on an ad hocbasis or permanently.
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Constitution
A tribunal shall consist of one or morepersons, such as
a)Are or have been judge(s) of a High
Court;(b)Are or have been District Judge(s) for a
period of not less than 3 years;
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Constitution
(c) Hold or have held the office of thechairman or any other member of the
Labour Appellate Tribunal or any tribunal
for a period of not less than 2 years.
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Although it is not a court, it has all the necessary
attributes of a court of justice.
It may create new obligations or modify contracts in
the interest of industrial peace; protect legitimate
trade union activities and prevent unfair practices
and victimization.
The tribunals are required to give awards based oncircumstances peculiar to each dispute; and
they are, to a large extent, free from restrictions of
technical consideration or rules of evidence
imposed on courts.
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Jurisdiction
An industrial tribunal has a widerjurisdiction than labour courts. It has
jurisdiction over any matter specified in the
Second Schedule or Third Schedule. Thejurisdiction covers the promotion of social
justice, that is, fairness in the adjudication
proceedings to all concerned parties.
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Third Schedule
1) Wages, including the period and mode ofpayment.
2) Compensatory and other allowances.
3) Hours of work and rest intervals.4) Leave with wages and holidays.
5) Bonus, profit-sharing, provident fund and
gratuity.
Thi d S h d l
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Third Schedule6) Shift working, otherwise than in
accordance with the standing orders.7) Classification of grades
8) Rules of discipline.
9) Rationalization.10)Retrenchment of workmen and closure of
an establishment.
11)Any other matter that may be prescribed.
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Model Principles for Reference ofDisputes to Adjudication
1. All disputes ordinarily be referred to
adjudication on request.
2. Disputes may not, however, be ordinarily
referred to adjudication:
(a) Unless efforts at conciliation have failedand there is no further scope for
conciliation and the parties are notagreeable to arbitration;
Model Principles for Reference of
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Model Principles for Reference ofDisputes to Adjudication
(b) If there is a strike or lockout declaredillegal by a court, or a strike or lockoutresorted to without seeking settlement bymeans provided by law and without proper
notice or in breach of the Code ofDiscipline as determined by the machineryset up for the purpose, unless such astrike or lockout, as the case may be, iscalled off;
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Model Principles for Reference ofDisputes to Adjudication
(c) If the issues involved are such as have
been the subject matter of recent judicialdecisions or in respect of which an unduly
long time has elapsed since the origin of
the cause of action; and
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Model Principles for Reference ofDisputes to Adjudication
(d) If in respect of demands, other legalremedies are available, that is, matters
covered by the Factories Act, Workmen'sCompensation Act, Minimum Wages Act,
Payment of Wages Act, etc.
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Model Principles for Reference ofDisputes to Adjudication
3.Industrial disputes raised in regard to
individual cases, that is, cases of
dismissal, discharge or any other action of
management on disciplinary grounds, maybe referred for adjudication when the
legality or propriety of such action is
questioned, and in particular:
Model Principles for Reference of
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Model Principles for Reference ofDisputes to Adjudication
(a) If there is a case of victimization orunfair labour practice;
(b) If the Standing Orders in force or the
principles of natural justice have notbeen followed; and
(c) If the conciliation machinery reports
that injustice has been done to theworker.
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Model Principles for Reference ofDisputes to Adjudication
Whenever an industrial dispute exists, or
even where there is a mere apprehension
that it will arise, the government may makea reference of the dispute for adjudication.
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Model Principles for Reference ofDisputes to Adjudication
The following principles regarding the powers
of the government to make a reference of
industrial disputes have been established by
a series of judicial decisions:
i. The government must be of the opinion that
an industrial dispute actually exists or is
apprehended;
Model Principles for Reference of
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Model Principles for Reference ofDisputes to Adjudication
ii. Making a reference is an executive and
administrative act and not a judicial or
quasi-judicial act. Government's order
making a reference, therefore, cannotbe challenged on ground that the
government has no material before it to
come to the conclusion that the disputeexists;
Model Principles for Reference of
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Model Principles for Reference ofDisputes to Adjudication
iii. Expediency of making a reference isa matter entirely for the governmentto decide. Even if a dispute factuallyexists, the government may not
make a reference. The governmentcannot be compelled by a court tomake a reference. Making of
reference, thus, is not a duty or anobligation on the part of thegovernment but a matter ofdiscretion;
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Model Principles for Reference ofDisputes to Adjudication
iv. The government may refer the dispute or
any matter appearing to be connected
with or relevant to the dispute, whether it
relates to any matter specified in theSecond Schedule or the Third Schedule,
to a tribunal for adjudication;
Model Principles for Reference of
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Model Principles for Reference ofDisputes to Adjudication
v. Where the government is of the opinionthat any industrial dispute exists or isapprehended and that the disputeinvolves any question of national
importance or is of such a nature thatindustrial establishments situated inmore than one state are likely to beinterested in or affected by it, it may
refer the dispute for adjudication to theNational Tribunal- whether it relates toany matter specified in the Second orthe Third Schedule;
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Model Principles for Reference ofDisputes to Adjudication
vi. Where the dispute relates to any matter
specified in the Third Schedule and is
not likely to affect more than 100workers, the government may make a
reference to a labour court;
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Model Principles for Reference ofDisputes to Adjudication
vii. It is mandatory upon the government to
make a reference of disputes to courts or
tribunals where:
(a) the dispute relates to a public utilityservice;
(b) a notice of strike or lockout has been
given;
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Model Principles for Reference ofDisputes to Adjudication
(e) where the parties to the dispute apply inthe prescribed manner for a reference and
the government is satisfied that the
persons applying represent the majority of
each party;
Model Principles for Reference of
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Model Principles for Reference ofDisputes to Adjudication
viii. The reference shall be made even if anyother proceeding has commenced; but
this mandatory power is subject to two
exceptions:
(a) the notice has been frivolously orvexatiously given; or
(b) it would be expedient to make areference.
Model Principles for Reference of
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Model Principles for Reference ofDisputes to Adjudication
An order of reference passed by thegovernment can be challenged on the
following grounds:
(i) that the order is void ab initioor withoutjurisdiction;
(ii) where the order of reference is made in
bad faith or is mala fide;
Ab I iti
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Ab Initio
[Latin, From the beginning; from the firstact; from the inception.] An agreement issaid to be "void ab initio" if it has at notime had any legal validity. A party may besaid to be a trespasser, an estate said to
be good, an agreement or deed said to bevoid, or a marriage or act said to beunlawful, ab initio. Contrasted in this sensewith ex post facto, or with postea (after
these or those (things), afterward.]
Model Principles for Reference of
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Model Principles for Reference ofDisputes to Adjudication
(iii) the appropriate government had nomaterial before it;
(iv) it did not apply its mind to the materialbefore it;
(v) it has not taken into consideration certainvital facts and materials which it ought to
have taken into account.
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Ex facie, Latin for "on the face [of it]," is alegal term typically used to note that a
document's explicit terms are defectivewithout further investigation. For example,
a contract between two parties would be
void if, ex facie, the document does notrequire party A to give consideration to
party B for services rendered.
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Ab Initio
[Latin, From the beginning; from the first act;from the inception.] An agreement is said to be"void ab initio" if it has at no time had any legalvalidity. A party may be said to be a trespasser,an estate said to be good, an agreement ordeed said to be void, or a marriage or act said tobe unlawful, ab initio. Contrasted in this sensewith ex post facto, or with postea (afterthese orthose (things), afterward.]
natural justice
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Definition English legal systemdoctrine that protects against
arbitraryexercise ofpowerby ensuring fair play. Naturaljustice is based on two fundamental rules: (1) Audialteram partem (Latin for, hear the other side): noaccused, or a person directly affected by a decision,shall be condemned unless given full chance to prepareand submit his or her case and rebuttal to the opposingparty'sarguments; (2) Nemo judex in causa sua (Latin
for, no man ajudge in his own case): no decision is validif it was influenced by any financial consideration orotherinterest orbias of the decision maker. Theseprinciples apply to decisions of all governmentalagencies and tribunals, andjudgments of all courts,which may be declared to be of having no effect (ultravires) if found in contravention of natural justice. Seealso natural law and natural rights.
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