REMEDIAL ASPECTS CONCERNING LABOUR MANAGEMENT WITH SPECIAL REFERENCE TO UNFAIR LABOUR PRACTICE IN INDIA (An analytical study of statutes and judicial pronouncements there of) A THESIS Submitted for the award of Ph.D. Degree In the Faculty of Law to the University of Kota, Kota (Rajasthan) Submitted by: Supervised by: Mahendra Singh Meena Dr. Kailash Chandra Sharma Lecturer in Law Principal (Retd.) Government Law College, Government Law College, Kota (Raj.) Jhalawar (Raj.) 2015 Dr. K.C. Sharma Dean & Principal (Retd.) University of Kota, Kota (Raj.) Government Law College, Jhalawar (Raj.) CERTIFICATE FROM THE SUPERVISOR It is certified that the (i) Thesis “Remedial Aspects Concerning Labour Management With Special Reference to Unfair Labour Practice in India (An analytical study of statutes and judicial pronouncements there of)” Submitted by Mahendra Singh Meena, Lecturer in Law, Government Law College, Kota (Rajasthan) is an original Copy of research work carried out by the candidate under my supervision. (ii) His literary presentation is satisfactory and the thesis is in a form suitable for publication. (iii) Work evinces the capacity of the candidate for critical examination and independent judgment. The thesis incorporates new facts and a fresh approach towards their interpretation and systematic presentation. (iv) Mr. Mahendra Singh Meena has put in at least 200 days of attendance every year. Date: 30.05.2015 Dr. K.C. Sharma Place : Kota Supervisor (i) PREFACE In this study the researcher has examined in detail the “Remedial Aspects Concerning Labour Management With Special Reference to Unfair Labour Practice in India (An analytical study of statutes and judicial pronouncements there of)” It is intended that such a study will help determine the parameters which any legislation for labourers must include. The acknowledgement of the debt to other is always a pleasant task. The help given by those mentioned in this acknowledgement has been of paramount value. Despite best efforts, non-acknowledgement to some worthy patrons cannot be completely ruled out but their contribution has been equally valuable. My gratitude to them can never diminish. I record my deep sense of gratitude and gratefulness to Dr. K.C. Sharma, Retired Dean, Faculty of Law, University of Kota, Kota (Raj.), who has kindly taught me the fundamentals of legal research. His scholarly academic support, guidance and training has been immensely sustained which could help me in viewing Unfair Labour Practice in India. His willing supervision and guidance has gone a long way in shedding light on many hitherto unknown areas. I am indebted to him not only for accepting me as his research scholar and giving me complete impact of Unfair Labour Practice in India. I have never missed an opportunity to take best possible advantage of Dr. Sharma's scholarly thoughts and learned discourses in the field of Labour Management relating to Unfair Labour Practice in India. I have hardly any work in my vocabulary to express my gratitude to him. (ii) I shall be failing in my duty if I do not express my debt of gratitude's to Dr. A.K. Sharma, Dr. R.K. Sharma, Dr. B.K. Galchania, Dr. Mahattam, Dr. R.K. Upadhyay, Shri C.J. Singh, Professor in the Faculty of Law, University of Kota, Kota, for helping me and extending their co- operation in the completion of this work. I am also grateful to Dr. Suresh Bhaira (Principal), Dr. Vivek Sharma (RJS), Mr. Sajnay Bhatnagar (RJS) and other well wishers who have helped me by giving necessary material relating to the study in question. I wish to express my thanks to the staff of the libraries of the University, University of Kota, Kota (Raj.); University Studies in Law, University of Rajasthan, Jaipur; Indian Law Institute, New Delhi; Institute of Development Studies, Jaipur; The Harish Chandra Mathur State Institute of Public Administration, Jaipur;; Rajasthan Legislative Assembly, Secretariat; Information Centre, Government, Jaipur and Government Law College, Jhalawar for their cooperation. I have suitable words to express my feeling of indebtness for my father Shri B.R. Meena, mother Smt. Sarvo Devi, my Elder Brother Shri R.S. Meena (R.Ac.S.), my Sister-in-Law Smt. Nalini Kathotia (R.A.S.) my wife Smt. Shashi (TGT), my Daughter Nitisha and my Son Utkarsh who allowed me to tread on their time and comforts during the course of this project. I also acknowledge the help tendered by Vintron Computers, Jaipur for computering the printing of the thesis. Place : Kota, Dated : 30.05.2015 (Mahendra Singh Meena) (iii) Remedial Aspects Concerning Labour Management With Special Reference to Unfair Labour Practice in India (An analytical study of statutes and judicial pronouncements there of) GENERAL INDEX Preliminary Detail Chapter Page No. INTRODUCTION 1 1 : EVOLUTION AND CONCEPTUAL PERCEPTION OF INDUSTRIAL RELATIONS 31 2 : EMPLOYERS UNFAIR DISCHARGE, DISMISSAL, RETRENCHMENT AND TERMINATIONS 105 3 : WORKMEN AND TRADE UNION UNFAIR LABOUR PRACTICES 161 4 : REMEDIAL MEASURES UNDER THE INDUSTRIAL DISPUTES ACT 173 5 : REMEDIAL MEASURES IN U.S.A. AND U.K. 244 6 : JUDICIAL PRONOUNCEMENT 256 7 : CONCLUSIONS AND SUGGESTIONS 384 BIBLIOGRAPHY 407 Detailed Scheme of the Thesis Certificate from the Supervisor (i) Preface (ii) Index (iv) List of Cases (xiv) INTRODUCTION 1-30 (I) Nature of Study 2 (A) What is Unfair Labour Practice 2 (B) Committee on Unfair Labour Practices 4 (iv) (C) Recognition of Unions 5 (D) Unfair Labour Practice 7 (E) Historical Background: 9 (1) China 10 (2) Germany 11 (3) South Africa 13 (4) Norway 17 (5) India 19 (F) Plan Policies 21 (G) Industrial Relations Machinery 23 (H) Collective Agreement 24 (I) Conciliation 25 (II) Objective of Study 27 (III) Review of Literature 28 (IV) Research Methodology 29 (V) Plan of the Study 29 CHAP.–1 EVOLUTION AND CONCEPTUAL PERCEPTION OF INDUSTRIAL RELATIONS 31-104 (I) Necessity of Historical Background 31 (II) Genesis and Expanding of Industrial Relations 32 (A) Origin of Industrial Relations 32 (B) Origin of Trade Unionism 35 (C) Development of Stable Workmen Trade Unions 38 (III) Suppression of Early Workers' – Unions 39 (A) United Kingdom 39 (1) Criminal Jurisdiction 40 (v) (a) Wage Fixing System 40 (b) Combination Acts 41 (c) Attitude of Judges 42 (2) Civil Jurisdiction 46 (B) United States of America 48 (C) India 52 (IV) Conceptual Framework of Unfair Labour Practice and its Constituents 64 (A) Concepts Involved 65 (B) Constituents of Unfair Labour Practices 69 (1) Literal Approach 69 (2) Substantive Approach 71 (a) Perpetrators 72 (i) Employer 73 (ii) Workman 73 (iii) Trade Union 74 (b) Victims 76 (c) Industry 77 (d) Employment Relationship 81 (e) Rights of Parties 82 (f) Illegal Action 83 (g) Violation of Statutory Provisions 84 (h) Violation of Legal Rights 85 (i) Cause of Injury 85 (j) Offence or Actionable Wrong 87 (k) Act or Omission 90 (vi) (l) Motive With or Without 91 (m) Mens rea 92 (n) Commission or Engagement 94 (C) Principles Incorporated 97 (V) Conclusion 99 CHAP.—2 EMPLOYERS UNFAIR DISCHARGE, DISMISSAL, RETRENCHMENT AND TERMINATION 105-160 (I) Discharge 105 (A) Discharge and dismissal distinguished 105 (B) Notice of Discharge 106 (C) In the case of a permanent workman 107 (D) In the case of a temporary workman 107 (E) In the case of a probationer 109 (F) Grounds of discharge 109 (1) Negligence 110 (2) Overstay leave 110 (3) Inefficiency 111 (4) Suspected loyalty 111 (G) Rule for wrongful dismissal or discharge 112 (H) Tribunal’s jurisdiction 113 (II) Dismissal 113 (A) Dismissal—an industrial dispute 113 (B) Charge sheet and enquiry to precede dismissal 114 (C) The procedure—when an employee refuses to accept charge sheet 114 (D) Dismissal and Removal 115 (vii) (E) Authority for order of dismissal 115 (F) Important grounds of dismissal 116 (G) Dismissal follows misconduct 116 (H) Wilful insubordination or disobedience 118 (I) Theft, fraud or dishonesty 119 (J) Taking or giving bribes or any illegal gratification 120 (K) Habitual absence and habitual late attendance 120 (L) Riotous or disorderly behaviour and acts subversive of discipline 121 (M) Habitual negligence or neglect of work 123 (N) Inciting strike and taking part in an illegal strike 124 (O) Go-Slow Policy 127 (III) Retrenchment 127 (A) Pre Conditions for a valid retrenchment 127 (1) Notice to the workman or wages in lieu thereof 127 (2) Retrenchment compensation under Clause (b) of Section 25-F 128 (3) Notice to the Appropriate Government Under Section 25-F (c) 128 (4) Application of the Rule ‘Last Come, First Go’ 128 (B) Relief when departure from the rule is unjustified 130 (C) Notice to workman in case of retrenchments 131 (D) Remedies in Case of wrongful retrenchment 131 (1) Workman’s remedy under Section 2-A 132 (2) Retrenchment whether a charge in condition of service under Section 9-A 132 (viii) (E) Notice to inspector of factories 132 (F) Notice to the government in case of retrenchment 133 (G) Procedure for re-employment of retrenched workmen 134 (IV) Termination 137 (A) Termination for Legitimate Business or Economic Reasons 139 (1) Notice of Termination and Termination Pay 140 (2) Severance Pay 141 (3) Group Terminations 142 (4) Disentitlement to Termination and Severance Pay 142 (B) Termination for Just Cause 144 (1) Background 144 (2) Access to Adjudication 146 (3) The Processing of Unjust Dismissal Claims Prior to a Hearing 147 (4) Disposing of Unjust Dismissal Complaints Prior to a Hearing 148 (5) Delays in Hearing and Deciding Cases 149 (6) The Mechanics of the System 150 (7) Overall Management of the Adjudication