Whether the owner is liable to pay compensation and prosecution for the death of a contractual workman while working outside the factory premises under contractor?
No! The owner of the factory is not liable to pay any compensation for unfortunate death of contractual workman working under other contractor outside the factory premises because the accident has not occurred inside the factory premises. Karnataka HC in the case of M.V. Nath CMD M/s. Joja Chemicals vs. State of Karnataka 2001 (89) FLR 736 has held that owner owe no duty towards the deceased as the deceased was under contractor firm and the work was not going on inside the factory premises and the most important thing is that the deceased was not the worker within the meaning of Sec.2 (l) as the deceased was not working in the manufacturing process done by the factory. Even though the worker was working on electrical repair work meant for the factory but was outside the factory premises. In this case contractor was held principal employer for the deceased. Had the accident taken in factory premises, the matter would have been different.
What are the functions and duties of works committee constituted under I.D. Act?
Works committee constituted under Sec.3 is to promote measures for securing and preserving good relations between the management of the organisation and its workmen and to compose any material difference of opinion in respect of such matters. The works committee is normally concerned with the problems arising in the routine working of the establishment and function is to ascertain the grievances of employees and when the occasion arises to arrive at some agreement also. But it cannot go beyond recommendations. Decision rests with the concerned parties i.e. employer and employee. The comments of committee may be of much value but are not conclusive and binding in nature. The decisions of the committee would not be binding on their workmen or union. Works committee is not intended to replace or supersede the union. Works committee cannot take up the matters of employment or non employment of workmen.
When an individual dispute becomes the industrial dispute and what is the difference between the two? What are those guiding factors?
Sec. 2A creates a fiction that dispute related to discharge, dismissal and retrenchment or in respect of an individual workman is deemed to be an industrial dispute. In such matter it is not required that it is espoused by the union or considerable number of workmen which means that an individual workman with union support can raise his dispute. A.P. H.C. in the case of Praga Tools Ltd. vs. Government of Andhra Pradesh 1976 Lab. IC 190 has held that except the dispute relating to discharge, dismissal retrenchment or otherwise termination of service, all other disputes relating to terms of employment or conditions of an individual like transfer, bonus, wages, promotion, increment, change in service conditions etc., will be industrial dispute which will be required espousal of union or by substantial number of fellow workmen. Such matters cannot be raised by individual workman. Cal. HC in the case of Swapan Das Gupta vs. First Labour Court 1976, Lab. IC 202 has held that matter of employer employee relationship cannot be a matter of individual dispute and will also be an industrial dispute and require valid espousal. In order that an individual dispute may become an industrial dispute, it has to be established that it had been taken up by union or appropriate number of workers. It is only a collective dispute that can become an industrial dispute. It is so held by SC in the case of Bombay Union of Journalists vs. The Hindu 1961 II LLJ 436. Where there is no union, the dispute is to be espoused by considerable number of workmen and for this there is no hard fast rule as to how many numbers will become considerable. It depends from facts of each case. SC in the case of Indian cable Co., Ltd. vs. Its Workmen 1962 I LLJ 409 has held that the number of workmen must however, be such as to lead to such inference that the dispute is one which affects the workmen as a class. SC in the case of Workmen of Indian Express Newspaper Pvt. Ltd. vs. The Management 1970 II LLJ 132 has held that about 25% of workmen of establishment would constitute requisite number for valid espousal of the dispute.
Upon certain misconducts, how employer should decide whether the employee is to be dismissed or awarded lesser punishment? What are those guiding factors?
The punishment on finding guilt of employee is generally guided by service rules or the standing orders of the company. These documents/policy papers should define the punishment in respect of misconduct. However, even after following the rules/ standings orders, it is open to the court to interfere with the punishment if it is felt by the court that it is disproportionate to the gravity of the misconduct or shockingly disproportionate. Bombay H.C. in the case of J.J. Mody vs. State of Bombay AIR 1962 Guj. 197 has categorised the following misconducts where employer is entitled to dismiss his employee: (i) Where the act or conduct of the servant is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master; (ii) Where the act or conduct of the servant is inconsistent or incompatible with the due or peaceful discharge of his duty to his master; (iii) Where the act or conduct of a servant makes it unsafe for the employer to retain him in service; (iv) Where the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted; (v) Where the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee; (vi) Where the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly; (vii) Where the servant is abusive or if he disturbs the peace at the place of his employment; (viii) Where the servant is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant; (ix) Where the servant is habitually negligent in respect of the duties for which he is engaged; and Where the neglect of the servant though isolated, tends to cause serious consequences.
Under Industrial disputes Act, the apprentice has been included as workman whereas Apprentices Act excludes the apprentice from workman category? Is it not self contradictory? How it should be understood correctly?
It is not self contradictory. Both Acts are independent and separate and have its own coverage and application. When Apprentices Act provision (Sec.18) says that (a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker; and (b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice, it intends to talk about persons who are registered as apprentices under the provisions of the Apprentices Act and not otherwise. In the same way where Sec.2 (s) of Industrial Disputes Act includes apprentices in the definition of worker. It intends to cover those persons who may be designated as apprentices but not registered as apprentices under the Apprentices Act. Moreover the definition of the workman under I.D. Act also further clarifies that person employed in any industry should be to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work, for hire or reward, terms of employment be express or implied. It means if a person engaged as apprentice not registered under Apprentices Act but doing any work as specified in the definition will be deemed as workman. Guj. HC in case of State of Gujarat & Ors vs. Chauhan Ramjibhai Karsanbhai 2004 (102) FLR 347; 2005 LLR 155 has held that persons engaged for production purpose as apprentices but not registered under Apprentices Act would be workman. However Delhi HC in the case of Otis Elevator Company (India) Ltd. vs. The Presiding Officer, Industrial Tribunal III 2003 LLR 701; 2003 (98) FLR 53 has held that Trade Trainee when paid stipend and not wages will not be a workman under I.D. Act.
Upon certain misconducts, how employer should decide whether the employee is to be dismissed or awarded lesser punishment? What are those guiding factors?
The punishment on finding guilt of employee is generally guided by service rules or the standing orders of the company. These documents/policy papers should define the punishment in respect of misconduct. However, even after following the rules/ standings orders, it is open to the court to interfere with the punishment if it is felt by the court that it is disproportionate to the gravity of the misconduct or shockingly disproportionate. Bombay H.C. in the case of J.J. Mody vs. State of Bombay AIR 1962 Guj. 197 has categorised the following misconducts where employer is entitled to dismiss his employee: (i) Where the act or conduct of the servant is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master; (ii) Where the act or conduct of the servant is inconsistent or incompatible with the due or peaceful discharge of his duty to his master; (iii) Where the act or conduct of a servant makes it unsafe for the employer to retain him in service; (iv) Where the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted; (v) Where the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee; (vi) Where the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly; (vii) Where the servant is abusive or if he disturbs the peace at the place of his employment; (viii) Where the servant is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant; (ix) Where the servant is habitually negligent in respect of the duties for which he is engaged; and Where the neglect of the servant though isolated, tends to cause serious consequences.
What are the functions and duties of works committee constituted under I.D. Act?
Works committee constituted under Sec.3 is to promote measures for securing and preserving good relations between the management of the organisation and its workmen and to compose any material difference of opinion in respect of such matters. The works committee is normally concerned with the problems arising in the routine working of the establishment and function is to ascertain the grievances of employees and when the occasion arises to arrive at some agreement also. But it cannot go beyond recommendations. Decision rests with the concerned parties i.e. employer and employee. The comments of committee may be of much value but are not conclusive and binding in nature. The decisions of the committee would not be binding on their workmen or union. Works committee is not intended to replace or supersede the union. Works committee cannot take up the matters of employment or non employment of workmen.
Under Industrial disputes Act, the apprentice has been included as workman whereas Apprentices Act excludes the apprentice from workman category? Is it not self contradictory? How it should be understood correctly?
It is not self contradictory. Both Acts are independent and separate and have its own coverage and application. When Apprentices Act provision (Sec.18) says that (a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker; and (b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice, it intends to talk about persons who are registered as apprentices under the provisions of the Apprentices Act and not otherwise. In the same way where Sec.2 (s) of Industrial Disputes Act includes apprentices in the definition of worker. It intends to cover those persons who may be designated as apprentices but not registered as apprentices under the Apprentices Act. Moreover the definition of the workman under I.D. Act also further clarifies that person employed in any industry should be to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work, for hire or reward, terms of employment be express or implied. It means if a person engaged as apprentice not registered under Apprentices Act but doing any work as specified in the definition will be deemed as workman. Guj. HC in case of State of Gujarat & Ors vs. Chauhan Ramjibhai Karsanbhai 2004 (102) FLR 347; 2005 LLR 155 has held that persons engaged for production purpose as apprentices but not registered under Apprentices Act would be workman. However Delhi HC in the case of Otis Elevator Company (India) Ltd. vs. The Presiding Officer, Industrial Tribunal III 2003 LLR 701; 2003 (98) FLR 53 has held that Trade Trainee when paid stipend and not wages will not be a workman under I.D. Act.
Whether the owner is liable to pay compensation and prosecution for the death of a contractual workman while working outside the factory premises under contractor?
No! The owner of the factory is not liable to pay any compensation for unfortunate death of contractual workman working under other contractor outside the factory premises because the accident has not occurred inside the factory premises. Karnataka HC in the case of M.V. Nath CMD M/s. Joja Chemicals vs. State of Karnataka 2001 (89) FLR 736 has held that owner owe no duty towards the deceased as the deceased was under contractor firm and the work was not going on inside the factory premises and the most important thing is that the deceased was not the worker within the meaning of Sec.2 (l) as the deceased was not working in the manufacturing process done by the factory. Even though the worker was working on electrical repair work meant for the factory but was outside the factory premises. In this case contractor was held principal employer for the deceased. Had the accident taken in factory premises, the matter would have been different.
When an individual dispute becomes the industrial dispute and what is the difference between the two? What are those guiding factors?
Sec. 2A creates a fiction that dispute related to discharge, dismissal and retrenchment or in respect of an individual workman is deemed to be an industrial dispute. In such matter it is not required that it is espoused by the union or considerable number of workmen which means that an individual workman with union support can raise his dispute. A.P. H.C. in the case of Praga Tools Ltd. vs. Government of Andhra Pradesh 1976 Lab. IC 190 has held that except the dispute relating to discharge, dismissal retrenchment or otherwise termination of service, all other disputes relating to terms of employment or conditions of an individual like transfer, bonus, wages, promotion, increment, change in service conditions etc., will be industrial dispute which will be required espousal of union or by substantial number of fellow workmen. Such matters cannot be raised by individual workman. Cal. HC in the case of Swapan Das Gupta vs. First Labour Court 1976, Lab. IC 202 has held that matter of employer employee relationship cannot be a matter of individual dispute and will also be an industrial dispute and require valid espousal. In order that an individual dispute may become an industrial dispute, it has to be established that it had been taken up by union or appropriate number of workers. It is only a collective dispute that can become an industrial dispute. It is so held by SC in the case of Bombay Union of Journalists vs. The Hindu 1961 II LLJ 436. Where there is no union, the dispute is to be espoused by considerable number of workmen and for this there is no hard fast rule as to how many numbers will become considerable. It depends from facts of each case. SC in the case of Indian cable Co., Ltd. vs. Its Workmen 1962 I LLJ 409 has held that the number of workmen must however, be such as to lead to such inference that the dispute is one which affects the workmen as a class. SC in the case of Workmen of Indian Express Newspaper Pvt. Ltd. vs. The Management 1970 II LLJ 132 has held that about 25% of workmen of establishment would constitute requisite number for valid espousal of the dispute.