Notice of Change under Section 9A of Industrial Dispute Act, 1947
Condition of Service for Change of Which Notice to be Given
"It is not new the Notice of Change for having changes in the condition of Service or work is command, yet some place I found that today we are not focusing towards this arrangement and not ready to comprehend when and why 'Notice of Change' is looked for to actualize in industryWith this small pieces of writing shall put efforts to elucidate the expression of Section 9A sought in the Industrial Dispute Act, 1947."
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Section 9A – Notice of Change
No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change -
(a) without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice :
Provided that no notice shall be required for effecting any such change -
(a) Where the change is effected in pursuance of any [settlement or award]; or
(b) Where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.
THE FOURTH SCHEDULE
CONDITIONS OF SERVICE FOR CHANGE OF WHICH NOTICE IS TO BE GIVEN
[ Section 9-A Industrial Disputes Act]
- Wages, including the period and mode of payment;
- Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit for the workmen under any law for the time being in force;
- Compensatory and other allowances;
- Hours of work and rest intervals;
- Leave with wages and holidays;
- Starting, alternating or discontinuance of shift working otherwise than in accordance with standing orders;
- Classification by grades;
- Withdrawal of any customary concession or privilege or change in usage;
- Introduction of new rules of discipline, or alteration of existing rules except insofar as they are provided in standing orders;
- Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen;
- Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift not occasioned by circumstances over which the employer has no control.
Please find the case study commentary exhibit below for further elucidation:-
1 Change in Condition of Service
Sec. 9A is attracted only when an employer wants a change in condition of service of its workmen in regard to matters enumerated in the Fourth Schedule of the Act. But when the employees were taken directly for short period less than 240 days on humanitarian ground to be continued only till a contract was negotiated with the society under CLRA Act and the labourer‟s were specifically put on notice and this was recorded by the High Court and hence while switching over direct to contract labour no notice u/s. 9A is required since it does not amount to any change in the condition of service.
International Airport Authority of India v. International Air Cargo Workers' Union & Anr., 2009
“We have already referred to the circumstances in which the said contract labour agreement was executed. To repeat, the workers were the regular and permanent employees of Airfreight till 31.10.1985. When Airfreight ceased to be the ground handling agent, apprehending retrenchment by Airfreight, the workers appealed to the IAAI to provide them some employment. They also approached the High Court in a writ petition. IAAI categorically stated that it cannot absorb them. Purely as a humanitarian measure and to mitigate their hardship, the IAAI offered to entrust the work of handling of cargo to a society formed by these workers and the workers through their union, readily agreed to form a society and the cargo handling work was given to the society and the workers as the members of the society benefited from such work/contract by working as contract labour. Instead of working under a private employer operating with a profit motive, they worked under their own society. The contract labour agreement was entered by the IAAI with the workers' society not to deny the workers of their right to continue as casual direct labour but, on the other hand, to provide them succour by awarding the contract to their society. The offer of IAAI to enter into a contract with the society formed by the workers, for supply of contract labour was readily welcomed and accepted by the workers' union in W.P. No. 11683 of 1985 filed by it. Virtually, the seal of approval by the court was put on the same by recording the proposal and the acceptance of the workers the same. The writ petition of the workers was dismissed and attained finality. Thus, the contracts with the society were genuine, beneficial voluntary bilateral contracts and there was nothing sham or nominal about it. It should also be noticed that at no point of time, the workers or their union pleaded that the agreement between IAAI and the society was sham or nominal. A careful reading of the claim statement filed before the tribunal and the evidence given by WW-1 shows that not even an allegation or claim to that effect was made in that behalf. In these circumstances, it is un-understandable as to how the tribunal could have held that the agreement was sham and nominal.” (Page: 43, Para: 27.1)
2 Change in Salary Structure
Where an inadmissible benefit is sought to be recovered no notice of change is required to be given Notice of Change under Section 9A of Industrial Dispute Act, 1947. In this case the employer had erroneously included the allowances such as HRA, CCA, TA and Small Family Allowance in the computation of overtime wages, which are essentially compensatory or Incentive in nature. The “ordinary rate of wages” as contemplated in Sec. 59(2) of the Factories Act do not include these allowances. However, the employer erroneously included these allowances also while computing the overtime wages. The employer thereupon sought to recover these inadmissible benefits but has not issued Notice of Change under Section 9A of Industrial Dispute Act, 1947. The Division Bench upheld the same holding that the need for such notice is required only if the overtime allowance withdrawn was based on eligible rate of wages. In this case the employer has not taken any decision adverse to the terms of employment including eligibility for overtime but made only a correction of a mistake.
V.E. Jossie & Ors. v. Flag Officers Commanding-in-Chief Naval Base & Anr., 2011
“The only question to be..........view taken by the Tribunal.” (Page: 333, Para: 3)
“Senior Counsel..........merit in this contention also.” (Page: 334, Para: 4)
3 Removal in Benefit Structure
The workman working in unaided posts were granted wages equal to workers working in posts getting Government aid. But later the employer sought to remove this parity including withdrawal of the benefit of merging of 50% of Dearness allowance in their basic pay. The reduction in wages was effected without giving the mandatory notice to workmen under Section 9A of Industrial Dispute Act, 1947. Since there is a patent violation of Notice of Change under Section 9A of Industrial Dispute Act, 1947 the Division Bench upholding the judgement of Single Judge dismissed the appeal of employer against direction to restore the reduction in wages.
Sikh Educational Society & Anr. v. Presiding Officer, Industrial Tribunal-cum-Labour Court, U.T. Chandigarh & Ors., 2011
“We have heard learned..........same are dismissed.” (Page: 254, Para: 3)
4 Reduction in the strength of employees
Services of 10 workmen were transferred with their condition of service and wages unaffected. The transfer was in fact an incident of service. The transfer was necessitated due to dematerialisation of shares and decline in volume to the tune of 99% in the physical transfer. The electronic transfer was as per the requirement of SEBI. The workmen resisted their transfer before Industrial Court and obtained an interim stay for not complying with 'Notice of Change' under Section 9A of Industrial Dispute Act, 1947 in as much as Item II of Fourth Schedule is attracted occasioning a reduction in the strength of employees in the share department for which a Notice of Change under Section 9A of Industrial Dispute Act, 1947 is required. The Single Judge dismissed the writ there against. But the Division Bench set aside the same and held that before provision of Notice of Change under Section 9A of Industrial Dispute Act, 1947 is attracted the change which is proposed by the employer must be such as would adversely affect the conditions of service of the workman. In this case there is no such alteration.
Hence the application for interim relief staying transfer was dismissed, transfer being an incident of service.
Associated Cement Companies Ltd. Mumbai v. Associated Cement Staff Union, 2009 dt. 21-3-2009
“The condition of..........no control.” (Page: 759, Para: 10
“Item II..........item 11.” (Page: 759, Para: 11)
“While industry..........at the interim stage.” (Page: 760, Para: 14)
5 Transfer from Superior Department Role to another Inferior Department Role
If the workman, a fitter in engineering department drawing pay of 1200 p.m. was transferred to weaving department where he has to work as mazdoor with a pay of 1100 it was held that though transfer from engineering department to weaving department was not vitiated by not giving a 'Notice of Change' under Section 9A of Industrial Dispute Act, 1947 due to settlement u/s. 12(3), the reduction of pay and designation do definitely call for violation of Sec. 9A. In such circumstance a termination of workman fitter for not joining duties to weaving department consecutively for 8 days will be non est for violation of 'Notice of Change' under Section 9A of Industrial Dispute Act, 1947.
The termination was set aside by the Division Bench reversing the judgment of Single Judge to the contrary but upholding the award of Tribunal.
T. Rajamanickam v. Binny Ltd., Madras & Anr., 2009
“In this case..........causing notice u/s. 9A.” (Page: 144, Para: 8)
“MWI in his cross..........Sec. 9A of the Act.” (Page: 144, Para: 9)
6 Withdrawal of Casual Leave
The employer of this particular sugar mill was giving the facility of encashment of casual leave to its workers including seasonal workers and the said rule came into being from 1966- 1967 season onwards. This facility fructified into a custom, withdrawal of it requires notice u/s. 9A. The Commissioner of Sugar withdrew this facility on the basis of a letter from the Joint Secretary Government of Tamil Nadu. The assumption was as if the Government has floated a separate scheme to withdraw this benefit. The withdrawal was set aside by the Single Judge and upheld by the Division Bench.
Ambur Co-operative Sugar Mills Ltd. v. Ambur Co-operative Sugar Mills National Workers Union & Ors., 2009
“From the aforesaid..........commissioner of sugar.” (Page: 136, Para: 13)
“The learned..........sugar mills.” (Page: 137, Para: 14)
7 Bipartite settlement between Employer & Employee
Under a bipartite settlement the employer assured 21 days wages in a month irrespective of work load and he has to work for 6 days a week which means 26 days a month. Balance 5 days wages depended upon the workload. In these facts it can be seen that if the workman had refused work and then if he was asked to work on Sunday or any holiday of that week, he cannot be denied extra wages for overtime work for not completing 42 hours of work because it was not his fault. Even if he took leave during some days of week and the employer asked him to work on Sundays, thereafter, extra wages for over time cannot be denied. Once having paid the over time sudden withdrawal is contrary to the provisions of Notice of Change under Section 9A of Industrial Dispute Act, 1947
Food Corporation of India v. Union of India & Ors., 2009
“The provisions..........two hours.” (Page: 83, Para: 14)
8 Change in Working Days in a Week
Where the employer terminates an existing settlement governing six days week and seeks to alter the condition of service into five days a week, by issuing Notice of Change under Section 9A of Industrial Dispute Act, 1947 then in all such cases a burden is cast on the employer to establish the basis for effecting the change that he proposed before the adjudicating forum. Such burden is not on the union though union may challenge such notice of change. This is a settled principle of law as enunciated in the case of Indian Hume Pipe Company Ltd. (1986 I LLJ 520 (SC)).
Rashtriya Chemicals & Fertilizers Ltd. v. RCF Employees Union, 2008
“The Judgment..........not in error.” (Page: 1036, Para: 10)
9 Payment of ex-gratia
Payment of ex-gratia was not a service condition falling under Item 8 of Schedule IV such as withdrawal of any customary concession or privilege or change in usage. The union of workmen had challenged the reduction in ex-gratia for not issuing a notice of change u/s. 9A. The High Court held that reduction in ex-gratia payment without giving notice to the workmen or union does not amount to violation of Section 9A Notice of Change under Industrial Dispute Act, 1947
1. Magnesite National Labour Union, rep. by its Deputy General Secretary
2. Magnesite Thozhilalar Munnetra Sangam, rep. by its General Secretary
3. Salem District Magnesite Labour Union, rep. by its General Secretary
versus
1. Dalmia Magnesite Corporation, rep. by its General Manager, Salem
2. The Presiding Officer, Central Government Industrial Tribunal, Shastri Bhavan, Haddows Road, Chennai, 2011 I LLN 92 (Mad.HC) WP 2178 of 2006 dt. 7-9-2010
“Leaving aside the details..........Writ Petition. No costs.” (Page: 96, Para: 12)
10 Earned Leave
There was equal number of 32 days earned leave both for office and factory workmen. The employer reduced the number of days of earned leave to 18 in case of factory workmen relying on Sec. 79 of Factories Act. The workmen contested the same on the ground that the employer did not satisfy the statutory provisions of Sec. 9A of the Act since it amounts to alteration in the condition of service requiring giving of notice in the prescribed manner. Because notice was given in English instead of in Tamil the regional language. The tribunal allowed the reference. The High Court also found that there was infraction of Sec. 9A and also in merit there was no justification for the reduction. It held that the Factories Act prescribes only the minimum and does not take away the right of the employer to provide more number of earned leave. Besides within the same establishment there cannot be two sets of service conditions and the workman are eligible to get same number of leave which other workmen were enjoying. Hence the High Court upheld the award of the tribunal.
Management of Salem District Co-op. Milk Producers Union Ltd. v. Presiding Officer, Industrial Tribunal, Chennai & Anr., 2010
“Though the Management.......... Sec. 9-A of the I.D. Act.” (Page: 437, Para: 6)
“With reference to the second..........workmen are enjoying.” (Page: 438, Para: 7)
“In the present case, not..........Section employed by them.” (Page: 438, Para: 12)
11 Change in Working Hour
The employer changed the hours of work in India Security Press and Currency Note Press from 37 1⁄2 hours to 44 hours a week by a notice u/s. 61(10) of the Factories Act. The workman contested the same before the tribunal contending that the same was illegal for want of a notice of change u/s. 9A. The tribunal allowed the reference. The employer challenged the same in a writ petition holding that the requirement of a notice u/s. 9A did not arise because a notice u/s. 61(10) under Factories Act was issued in continuation of earlier notice. The earlier notice relied upon could not have been revived after 3 years following closing of the conciliation proceedings. It was held that before proposing a change in working hours a fresh notice of change was necessary u/s. 9A and issuing notice u/s. 61(10) of Factories Act will not be a substitute to Sec. 9A of I.D. Act. Hence the High Court directed the employer to pay overtime worked beyond 40 hours per week since the Fourth Pay Commission recommended that the staff should work for 40 hours and entitled for overtime if they worked beyond 40 hours.
Union of India through the Secretary, Government of India, Ministry of Finance, Dept. of Economic Affairs, New Delhi & Ors. Petitioners v. Workmen, through the General Secretary of the India Security Press & Currency Note Press Staff Union & Anr., 2010
“The next issue..........the reference.” (Page: 1186, Para: 10)
12 Moving employee from one to another sister concern company
Nava Bharat was a printing and publishing newspaper at various places and the said firm was dissolved at the close of business on 31.12.1982. One of the partners separated and formed a new firm where as the publishing business was continued. One of the terms of dissolution was that the working condition of workmen will not be changed. After the dissolution management wanted reclassification of the firm under Palekar award from class II to class IV because of the gross revenue value had decreased. The Industrial Tribunal held that the press establishment to continue in the classification of class II because by bringing it under Class IV there is a perceptible change in the condition of service to the detriment of the workmen. High Court upheld the same holding that the dissolution was aimed at with the purpose of reducing the burden of Palekar Award. As the terms and conditions of service of the workmen has changed by bringing it under class IV it is in breach of Sec. 9A in so far as no notice of change was given in this case. The classification made without notice will therefore not survive.
Nava Bharat Press, Nagpur v. P.P. Patil, Presiding Officer, Industrial Tribunal, Nagpur & Anr., 2009
“Since the procedure..........establishment to class IV.” (Page: 835, Para: 19)
“In the case at hand..........treated as one establishment.” (Page: 838, Para: 28)
13 Adhoc Payment Scheme
The scheme for the payment of Adhoc Cash Award earlier applicable to contingent employees was modified excluding them. The question posed was whether the employer changed the condition of service attracting Sec. 9 A of the Act. The court held that there is no change in the service conditions on this account and Sec. 9 A will not apply.
M/s. Mineral Exploration Corporation Ltd. v. Presiding Officer, Labour Court, Hazaribagh & Ors., 2009
“The counsel for..........in service condition.” (Page: 1033, Para: 12)
14 Restoring of Changing Working Hours
Where there is no evidence to show that the actual working hours were eight hours from the inception, a change made by the employer as if he is restoring the hours of work to the original working hours by directing the workmen to put up eight hours of duty is illegal for want of compliance with Sec. 9A of the Act. Therefore the working hours of the dispensary of the employer were held cannot be changed from 6 1⁄2 hours to 8 hours without notice of change.
Maharashtra State Power Generation Co. Ltd. v. Maharashtra Vij Mandal Kamgar Sangh & Anr., 2009
“There is no..........the present case.” (Page: 629, Para: 3)
15 Payment of Gratuity
State Government exempted the Municipal Corporation of Vadodara from payment of gratuity in exercise of power u/s. 5 of payment of Gratuity Act 1972. This was challenged by the union of workmen. It was held that employees of the corporation are not entitled to both benefit of pension as per BCSRs with commuted pension under the Scheme/Service Rules and benefit of gratuity under the 1972 Act because the municipal corporation was not able to bear the financial burden. As the benefit of pension under the BCSR is more beneficial to employees, the impugned exemption granted to Municipal Corporation to pay Gratuity under 1972 Act is held valid. Also where the exemption is granted as aforesaid by the State Government, Section 9A Notice of Change under Industrial Dispute Act, 1947 has no application and the award of the Tribunal is also rendered inoperative.
Vadodara Mahanagarpalika Naukar Mandal v. State of Gujarat & Anr., 2008
“In this group..........and 3-9-92.” (Page: 851, Para: 4)
“Thus aforesaid observations..........of any person.” (Page: 855, Para: 8)
“Therefore considering the..........Constitution of India.” (Page: 856, Para: 9)
“It is true..........entitled to gratuity” (Page: 857, Para: 14)
16 Fixing Different Working Hours
The question is whether discrimination in fixing different working hours to typist-cum- computer clerks appointed after 01.11.1996 and those appointed prior to that date, in which the later appointees have to work for 7 1⁄2 hours as against earlier employees whose working hours was 6 1⁄2 hours, is hit by Article 14 of the constitution. The Court held that so long as the classification is founded on intelligible differentia which distinguishes persons or things and the differentia has the rational relation to the object sought to be achieved the classification will not per se violate Article 14 of the constitution. The Court held that it is not prudent to insist absolute equality when there are diverse situations and contingencies and in this case the MPT took an administrative decision to bring uniformity in outdoor and indoor working hours of employees to be abreast with technology, in this competitive world by giving service to port users more efficiently. The MPT has a case for survival while competing with Pvt. Ports in an age of privatization and globalization. The Supreme Court upheld the classification made by MPT.
Transport & Dock Workers Union & Ors. v. Mumbai Port Trust & Anr., 2011
“It has been repeatedly held by this Court that Article 14 does not prohibit reasonable classification for the purpose of legislation or for the purposes of adoption of a policy of the legislature or the executive, provided the policy takes care to reasonably classify persons for achieving the purpose of the policy and it deals equally with all persons belonging to a well defined class. It is not open to the charge of denial of equal protection on the ground that the new policy does not apply to other persons. In order, however, to pass the test of permissible classification, as has been laid down by the Supreme Court in the catena of its decisions, two conditions must be fulfilled;
(1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and
(2) that the differentia must have a rational relation to the object ought to be achieved by the statute in question, vide Gopi Chand v. Delhi Administration MANU/SC/0056/1959 : AIR 1959 SC 609 (see also Basu's 'Shorter Constitution of India, fourteenth edition 2009 page 81).” (Page: 17, Para: 21)
“There may be several tests to decide whether a classification or differentiation is reasonable or not. One test which we are laying down and which will be useful in deciding this case, is: is it conducive to the functioning of modern society? If it is then it is certainly reasonable and rational.” (Page: 18, Para: 28)
“In the present case, as we have noted, the purpose of the classification was to make the activities of the Port competitive and efficient. With the introduction of privatization and setting up private Ports, the respondent had to face competition. Also, it wanted to rationalize its activities by having uniform working hours for its indoor and outdoor establishment employees, while at the same time avoiding labour disputes with employees appointed before 01.11.1996.” (Page: 18, Para: 29)
“The policy decision of the Port cannot be said to cause any prejudice to the interest of the personnel recruited after 1.11.1996 because before their recruitment they were clearly given to understand as to what would be their working hours, in case they accept the appointment. In our opinion the introduction of the new policy was a bona fide decision of the Port, and the acceptance of the conditions with open eyes by the appellants and the recruits after 1.11.1996 means that they can now have no grievance. It is well settled that Courts should not ordinarily interfere with policy decisions.” (Page: 19, Para: 37)
Note: Also refer to the judgment of the Division Bench of Bombay High Court reported in Transport & Dock Workers Union & Ors. v. Mumbai Port Trust & Anr., 2010
17 Reduce Cabin Crew
Where Air India has taken a decision to reduce the cabin crew complement as a measure of rationalization it is held that such reduction without any concomitant adverse effect on employment such as retrenchment as contemplated under Sch. IV item no. 10, it does not attract Sub-Sec. (b) of Section 9A Notice of Change under Industrial Dispute Act, 1947. Hence where there is no likelihood of retrenchment compliance with Sec. 9A is not necessary.
Air India Cabin Crew Association, Mumbai v. Union of India & Ors., 2008
“..........That provision..........appropriate case.” (Page: 76, Para: 44)
18 Transfer of Union Representative
Where the proposed transfer of the union representatives was made without any explanation with an intention to scuttle the trade union activities and the same was not proposed against the representatives of the other eight unions and the interim relief was also rejected by the employer on the basis of Clause 12.5 of the Service Regulations saying that it was empowered to transfer any employee, Trial Court held it malafide and illegal in view of breach of long standing practice ripened into an agreement for not transferring the representatives without complying with Section 9A Notice of Change under Industrial Dispute Act, 1947. High Court in the present petition upheld the same.
Municipal Corporation of Greater Mumbai v. Best Workers' Union, 2008 (5) BCR 478 (Bom.HC) WP 2454 of 2007 dt. 28-1-2008
“It was argued..........waiver or concession.” (Page: 481, Para: 5)
“The petitioners have..........committed by it.” (Page: 482, Para: 7)
“Counsel for the..........of writ jurisdiction.” (Page: 483, Para: 9)
“Indeed even with..........the appropriate stage.” (Page: 485, Para: 16)
19 Settlement of Dispute
If a Settlement of Dispute arrived at u/s. 12(3) is still in force without change made in subsequent settlements regarding reckoning a month to be 26 days for calculating the length of service for purposes of gratuity, then can the employer change the same merely by issuing Notice of Change under Section 9A under Industrial Dispute Act, 1947is issue in point. It was held relying on the judgement in the case of Life Insurance Corporation of India v. D.J. Bahadur & Ors., 1980 II LLN 575 even after Section 9A Notice of Change under Industrial Dispute Act, 1947 putting the employees on notice the intention of the employer to terminate a particular clause in the said settlement, it remains validly operative till the same is replaced by a fresh settlement. In this case no mutual settlement replacing the earlier settlement was arrived at u/s. 12(3) of Industrial Disputes Act varying or modifying the specific clause of the erstwhile settlement arrived at between the parties. Hence 26 days for reckoning a month to calculate the length of service for quantifying gratuity cannot be faulted.
Management of the Coimbatore District Central Co-operative Bank Ltd. Coimbatore v. Joint Commissioner of Labour/Appellate Authority, under payment of Gratuity Act Coimbatore & Anr., 2010
“The learned counsel..........survive for consideration.” (Page: 414, Para: 6)
“Firstly..........parties.” (Page: 415, Para: 12)
“In this context..........settlement.” (Page: 415, Para: 13)
20 Refix of Employee Salaru
The Registrar of Co-operative Societies addressed a letter to all Regional Joint Registrars which stated that the salary of employees be refixed as per government order. The letter according to workmen was contradictory to the settlement arrived at by them u/s. 18(1) of Industrial Disputes Act. A petition filed challenging the letter. The court held that the letter contained general directions and was not yet implemented and hence the challenge to the said letter was premature. The employer before implementing the contents of the letter has to comply with Section 9A Notice of Change under Industrial Dispute Act, 1947 without which the directions do not come into play. Hence the petition of workmen fails and dismissed.
N. Rajagopal & Ors. v. Registrar of Co-operative Societies, Chennai & Ors., 2009
“In this case..........provided under law.” (Page: 926, Para: 7)
21 Ex-gratia
Where the petitioner Corporation has by long practice and convention, been paying its employees ex-gratia amount in accordance with the amendments made to the Bonus Act from time to time, the finding of the Tribunal that the said practice has become the condition of service is legal and valid and if the petitioner does not follow the said practice, whether it amounts to altered condition of service in violation of Section 9A Notice of Change under Industrial Dispute Act, 1947 and the consequences thereof are not examined by the Tribunal, the matter for deciding the same was remanded to the Tribunal as this issue cannot be examined in a writ petition.
Management of APSRTC v. Workmen of the APSRTC & Anr., 2008
“In the settlement..........no merit acceptance.” (Page: 3022, Para: 41)
“The right in..........this writ petition.” (Page: 3024, Para: 49)
22 Retrenchment due to Surplus Workmen
Retrenchment of the surplus workmen does not attract Section 9A Notice of Change under Industrial Dispute Act, 1947 for it could not deemed to have altered any condition of service so as to require the compliance of Section 9A Notice of Change under Industrial Dispute Act, 1947
K.N. Asokan v. Presiding Officer, Labour Court, Coimbatore & Anr., 2010
“As pointed out..........void ab initio.” (Page: 443, Para: 4.3)
23 Retrenchment Compensation Structure
The employer while calculating retrenchment compensation has taken the dearness allowance as @ 11.5% whereas the workmen claimed that it should be at the rate of 79.75%. The labour court allowed the claim of the workmen and also held that the employer did not comply with Section 9A Notice of Change under Industrial Dispute Act, 1947 before retrenching them. Hence they were reinstated with full back wages and continuity of service. Interfering with the award the single judge set aside the same on the ground that there was lack of pleading in their claim and a claim of this nature can be molded in the form of monetary compensation and directed for payment of 24 months emoluments in full and final settlement. Upon challenge by the workman the Division Bench set aside the order of single judge and restored the award on the ground that the principles of pleading are not rigidly applicable to the industrial laws. Besides in matters of error in the computation of D.A. irrespective of pleadings the courts can go to the root of the matter and allow the claim. If the employer fails to issue notice Section 9A Notice of Change under Industrial Dispute Act, 1947 before retrenchment, the action of the employer violates Section 25F of Industrial Dispute Act, 1947 .
Y. Premlatha v. Hyderabad Co-op. Central Trading Soc. Ltd. & Anr., 2011
“Coming back to the..........(1999 Lab. IC 2826).” (Page: 2049, Para: 17)
“Therefore, having regard..........25-F of the I.D. Act.” (Page: 2050, Para: 18)
24 On Asking your employee to "job work‟ to "no work‟ (Termination)
By an order dated 28.9.2003 the Manager of the Depot was directed not to undertake repair works on job work basis, which resulted in alteration of condition of service of the petitioners from "job work‟ to "no work‟ (Termination). And this admittedly happened during the pendency of dispute of the said employees for regularization. The impugned action of the employer was held to be void as it had violated Sec. 33 of the Act. Hence the High Court directed the employer to reinstate them with 50% back wages.
Satya Narain Vaishnav & Ors. v. RSRTC & Ors., 2011
“In the considered..........is therefore, void.” (Page: 944, Para: 15)
25 Change in the Age of Retirement
The Government of India enhanced the age of retirement of the employees of PPL from 58 to 60 years. Later on the management of the PPL was taken over by a private company upon disinvestment. The private company adhered to the Certified Standing Orders which were to the effect of 58 years as the age of superannuation. The union raised a dispute on the ground of violation of Section 9A Notice of Change under Industrial Dispute Act, 1947 and infringement of Sec. 33(1). The tribunal dismissed the reference.
The High Court held that in the Fourth Schedule there are 11 conditions of service for change of which notice to be given. But the age of retirement is not one of the conditions of service. The workmen though now work under different management the service conditions have remained unchanged including the Certified Standing Orders. In view of this reduction in the age of retirement from 60 to 58 has not altered any conditions of service so as to require giving of Notice of Change Section 9A under Industrial Dispute Act, 1947. Therefore there is no case to file a complaint u/s. 33A.
Sri Achyuta Charan Panda v. The Managing Director, Paradeep Phosphates Ltd., 2011
“In order to substantiate..........is not maintainable.” (Page: 473, Para: 4)
“In reply, Sri Rath..........1993 Lab IC 1850.” (Page: 473, Para: 6)
“It is apparent from a..........age of retirement.” (Page: 475, Para: 9)
26 Reduced in wages due to early wage payment
The workman was earlier being paid X per month but it was subsequently reduced to Y per month This amounts to alteration in terms of service conditions. Therefore the Labour Court held that change in wage being an alteration in the condition of service it requires compliance with 'Notice of Change' under Section 9A of Industrial Dispute Act, 1947. As the employer failed to comply the workman can validly invoke Sec. 33C(2) for claiming the difference in wages and in doing so he was entitled to claim wages in lieu of rest days and holidays by making reference to Rule 23(4) under Minimum Wages Act. The High Court upheld accordingly the computation made by the Labour Court.
Municipality Baretta, through its Executive Officer, District Bhatinda v. Presiding Officer, Labour Court, Bhatinda & Anr., 2011
“I do not think that..........Court was competent.” (Page: 995, Para: 3)
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