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CHAPTER 1: INTRODUCTION

ABSTRACT
The project paper while dealing with the topic i.e. Unfair Labour Practices under Industrial
Dispute Act, 1947 delves on multi-ferrous aspect of this topic. The first chapter brings out the
definition of the said term as enshrined in the act and is an introduction to the topic. The
second chapter focusses on the ILO and its policy towards workers. Then it also touches
Indian policy with regard to the same. Thus this chapter notably talks about historical
development in this field. Then the third chapter talks about various incentives of the states in
this regard. It is followed by the forth chapter which highlights the further reforms needed in
this field after analysing the status quo. Lastly, this paper ends with apt conclusion which
aims to point the way ahead by analysing the spectrum of the topic.

CONCEPT

The industrial dispute act is a benign measure which seeks to pre-empt industrial tensions,
provide energies of partners in production may not be dissipated in counter-productive battles
and assurances of industrial justice may create a climate of goodwill.
- Krishna Iyer, J.1

The intricate pattern of employer-employee relations has evolved considerably in the last
several decades. After moving from an era of unrestricted laissez faire to a more regulated
labour market operating within the confines of legal framework, it is once again pacing
towards greater deregulation, which has brought about tremendous changes in the individual
employment contract and the labour market as a whole. Such turpitude requires a stalwart
labour legislation to counter it. One of which is the Industrial dispute act, 1947.
Collective bargaining is the touchstone of the act. It is method of regulating employment
relations. It presupposes the existence of two parties, the employer and the workers. The
collectives of workers aligned on one side be organised into trade unions. The need for the
existence of trade unions and in tum, the right of trade unions to function freely and further,
the right of individual members to freely join and participate in the affairs of the trade union
then would, a fortiori, be an indisputable and necessary condition for the efficient functioning
of collective bargaining mechanism. Viewed in this light, any action of either party to the
collective bargaining process which interferes with the formation or existence of unions or in
the participation of individuals in these organisations would hamper the collective bargaining
process and would merit being termed an unfair labour practice.
At the same time collective bargaining also requires that the collective bargaining agent be
identified from among several available collectives of workers - be they trade unions or
groups of workers-and further that this bargaining agent has the right, and also the duty, to

1
Life Insurance Corporation v. D.J. Bahadur, (1980) Lab.I.C. 1218 1226 (S.C.).
negotiate on behalf of the workers, in short be an exclusive bargaining agent. The need to
evolve criteria for determining what have been variously termed as a bargaining agent or a
recognised union is a prerequisite for collective bargaining and the failure to do so or
irregularities in these procedures could also be treated as an unfair labour practice.
In the USA where the expression 'unfair labour practices' was first used, there have been
legislations since 1926 in favour of collective bargaining. The National Labour Relations Act
1935, also known as the Wagner Act noted that the "refusal of the employer to accept
collective bargaining causes strikes and other forms of industrial strife or unrest, which have
the effect of burdening or obstructing commerce". The Labour Management Relations Act
1947 (the Taft-Hartley Act) which replaced the earlier Act, apart from listing unfair labour
practices on the part of the employers, in addition, listed those on the part of the trade unions
too - the idea being to place employers and employees on an equal footing as far as collective
bargaining was concerned.2
Until 1982 the expression unfair labour practice had not been defined in the Industrial
Disputes Act, 1947. Section 2(ra) of the Indus- trial Disputes (Amendment) Act, 1982 defines
unfair labour practice to mean ''any practices specified in the Fifth Schedule. Although it
was prohibited by way of section 25 T and 25u since the inception.

PROBLEM:
Opportunity to work for its people and providing for dispensation of labour justice to them
are important aspects of social justice responsibility of any state. In third world countries -
and especially in a country like India - these aspects get added significance where a large
percentage of people live below the poverty line and suffer from problems of unemployment
and underemployment and commission of unfair labour practices (ULPs) by employers
against them. A mere 8.3 per cent of the Indian labour force is organised, the majority of
which mainly belongs to the public sector. It is estimated that not more than 2 to 3 per cent of
the labour force in India has access to assertion of labour rights through collective bargaining
process. Working people in all societies - and more so in developing societies such as India -
are highly vulnerable to exploitation at the hands of the inherently more powerful employers.
In fact, India is being viewed as a society where labour is over- protected through law.
Despite that, the cases of labour law violation are many; so much so that often when one sees
the working conditions of the unorganised labourers, it appears as if no labour law exists for
them.Typically the worker as individual has to accept the condition which the employer
offers. On the labour side, power is collective power ...the relation between an employer and
an isolated employee or worker is typically a relation between a bearer of power and one who
is not a bearer of power. In its inception it is an act of submission, in its operation it is a
condition of subordination, however much concealed by that indispensable figment of the
legal mind known as the contract of employment. The individual contract of employment
cannot challenge the unilateral rationality of managerial prerogatives. This gives rise to the

2
Kamala Sankaran UNFAIR LABOUR PRACTICBS - AN OVERVIEW Available from: https://www.
file:///H:/labour%20project%204th%20sem/Unfair%20Labour%20Practices%20an%20Overview.pdf [Accessed
16 April 2017 at 19:37].
need to allow labour to unite, form collectives, and thus struggle to alleviate its poverty on its
own. Unionisation and collective bargaining lie at the root of most labour relations issues.
CHAPTER 2: POLICY ON UNFAIR LABOUR PRACTICES

The ILO Approach:

The ILO has considered protection against anti-union discrimination3 to be an integral part of
the protection of freedom of association. This term covers restriction or prohibition directed
against individual workers by reasons of their involvement in trade union activities; it may
also be directed against the trade union(s) as a whole by interfering in the functioning of
workers' organisations or by refusal to enter into collective bargaining with the union(s) and
other such unfair labour practices. The protection of workers against threats to their
functioning by employers and employer's organisations is dealt with under the Right to
Organise and Collective Bargaining Convention, 1949 (No. 98) of the ILO. Article 2 (I) of
the Convention provides that, Workers' and employers' organisations shall enjoy adequate
protection against any acts of interference by each other or each other's agents or members in
their establishment, functioning or administration. The guarantee against interference bas
been further elaborated in paragraph 2 of the same article by specifying that acts designed to
promote the establishment of workers' organisations under the domination of the employers
or the support of workers' organisations by financial or other means with the object of placing
such organisations under the control of the employers' or employers' organisations, also
constitute acts of interference. By virtue of article I of the Convention the workers must be
adequately protected against anti-union discrimination. Protection from anti-union
discrimination would cover not only hiring and dismissal but also any other discriminatory
measure such as transfers, refusal of employment, demotions, disciplinary measures,
deprivation of or limitation on wages or social benefits, or other acts prejudicial to the
worker.

Protection against acts of anti-union discrimination in respect of employment is particularly

desirable for trade union leaders. The Workers' Representatives Convention, 1971 (No. 135)
and Workers' Representatives Recommendation, 1971 (No. 143) establish ,that workers
representatives in the undertaking shall enjoy effective protection against any act prejudicial
to them, including dismissal, based on their status or activities as workers' representatives or
based on union membership or participation in union activities, in so far as they act in
conformity with existing laws or collective agreements or other jointly agreed arrangements.
Where trade union representatives and elected representatives exist side by side, the Workers
Representatives Convention provides that, wherever necessary, appropriate measures shall be
taken to ensure that the position of the trade unions or their representatives in the undertaking
is not undermined by the existence of elected representatives. The recommendation which
supplements the Convention provides that:

3
The bundle of rights contained in articles 1 and 2 of Convention No. 98 are often referred to by the ILO as
protection against anti-union discrimination. Actions that violate the guarantees in articles 1and 2 of Convention
No. 98 were referred to in the Indian Trade Unions (Amendment) Act, 1947 as "unfair practices". and
subsequently in the Industrial Disputes Act 1947 as "unfair labour practices".
(i) the workers must be provided precise reasons justifying termination of employment,
(ii) the availability of special procedures for the workers' representative to challenge any
termination or act of anti-union discrimination,
(iii) The provision of an effective remedy including reinstatement with payment of unpaid
wages in case of unjustified termination of employment, and
(iv) The preference in the matter of retention in employment in case of reduction of the
work force.

Articles 4 and 5 of the Labour Relations (Public Service) Convention, 1978 (No. 151)
extends similar protection to public employees just as the Rural Workers'
Organisations Convention, 1975 (No. ~41) in article 3 (2) provides such protection to
rural workers and their organizations.4 The Termination of Employment Convention,
1982 (No. 158) also contains similar prohibition.5

Traditionally, therefore, the expression unfair labour practice has been used
synonymously with such actions which interfere in the collective bargaining process.
This has been the common understanding in much of the western world and also the
understanding developed by the ILO itself. However, in India, the expression 'unfair
labour practices' has not always been used to mean only activities which hinder the
smooth functioning of collective bargaining. The expression as used in legislation
and in the decisions of the courts is used in a wider and looser sense to cover unjust
dismissals, unmerited promotions and every form of victimisation, whatever be the
cause.6 The reason for this appears to be that collective bargaining has never been the
central feature of the framework of employer-employee relations in India.

Indian Policy

Several commentators have noted the Indian labour policy's uneasy attitude towards
collective bargaining as a method of regulating employment relations.7 The Royal
Commission reporting in 1931 found very little evidence of collective bargaining in
India. The commission rejected a demand made for making recognition obligatory in
certain cases.8 During the period of State autonomy in 1937-40, the Congress
government tried to introduce legislation for encouraging collective bargaining and
curbing unfair labour practices. The Bombay Industrial Disputes Act. 1939, the
precursor to the present Bombay Industrial Relations Act. 1946 was a result of this

4
It states that "the principles of freedom of association shall be fully respected; rural workers' organisations
shall be independent and voluntary in character and shall remain free from all interference, coercion or
repression".
5
Article 5 (a) of the Convention stipulates that "union membership or participation in union activities outside
working hours or, with the consent of the employer, within working hours" are not valid grounds for
termination. The Discrimination (Employment & Occupation) Convention, 1958 (No. 111) which India has
ratified provides protection against discrimination on the basis of political view, membership of political party
or political activities.
6
Government of Maharashtra, Report of the Committee on Unfair Labour Practices 40 (1969).
7
See for instance, E.A. Ramaswamy, Power and Justice: The State in Industrial Relations (1984) and V.D.
Kennedy, Unions. Employers and Government: Essays on the Indian Labour Questions (1966).
8
Report of the Royal Commission on Labour in India 323 (1931).
 policy. The Industrial Disputes Bill introduced in the Central Legislative Assembly
on 28th October, 1946 and which became a law on 1st April, 1947 retained, inter alia,
the essential principles of Rule 81-A of the Defence of India Rules which empowered
the government to refer industrial disputes to adjudication and to enforce their
awards.
Explaining the government's policy in the Central Legislative Assembly Mr.
Jagjivan Ram labour minister stated:
I must make it clear that in providing for compulsory adjudication our intention is
not to oust or in any way minimise the importance of the methods of voluntary
negotiation and conciliation in the settlement of disputes.9

At around the same time, the Trade Unions (Amendment) Act 1947 introduced what
it termed as 'unfair practices' which should be eschewed by trade unions and
employers alike in their relations with each other. These included activities such as
the majority of the members of the trade unions taking part in an illegal strike, and on
the part of the employer, interference with or restraint on or coercion of his workmen
in the exercise of their right to organise. The Act provided for compulsory
recognition of representative unions by employers and for arbitration of disputes over
certification of unions. It is interesting to note that these measures (which have yet to
come into effect more than 50 years later) deal only with the issues of non-
interference by the employer in trade union matters and protection of the workers
against victimisation on the basis of their trade union activities, and not with the
criterion for determining a bargaining agent.

Mr. Jagjivan Ram's approach, of balance between collective bargaining and

compulsory adjudication, found reflection in the Labour Relations Bill, 1950 and the
Trade Unions Bill, 1950 introduced in the Parliament of India. Under the Labour
Relations Bill, 1950, collective bargaining was made compulsory for both employers
and unions under stipulated conditions. The Bill provided for a procedure for
collective bargaining, which included the prohibition of strikes and lock-outs until
the parties had resorted to collective bargaining and obligation on both the employers
and workers to observe collective agreements. The conclusion of written agreements
to be registered with the appropriate government office was declared to be the
purpose of collective bargaining.

Mr. V.V. Giri who took over as the new labour minister in 1952 sought to
completely overhaul the existing scheme of compulsory adjudication, At the Indian
Labour Conference at Nainital, Mr. Giri tried, with moderate success to win support
for shifting emphasis towards collective bargaining. Following the resignation of Mr.
Giri in 1954, Mr. Khandubhai Desai took over as labour minister. While
acknowledging that the shift from compulsory adjudication to collective bargaining
was essential he emphasised that compulsory adjudication has to be retained as a
reserve weapon in the armoury of the state for tackling labour-management relations.
Thus, despite attempts like the voluntary Code of Discipline in Industry adopted by

9
Legislative Assembly Debates. 1.11.46, 404-5. Similar views were echoed in the Select Committee to which
the Bill was referred. See Report of the Select Committee, Gazette of India 33 (1947).
 the Indian Labour Conference in 1958 obliging management and unions not to take
unilateral action and to settle all future disputes through conciliation, negotiation and
voluntary arbitration, collective bargaining progressively took a back seat. The Code
of Discipline in Industry which was ratified by representatives of the All India
organizations of employers and workers in March 1958, enumerated what constituted
acts of interference and declared that there has to be just recognition by employers
and workers of the rights and responsibilities of either party and that neither party
will have recourse to coercion, intimidation or victimisation. The Code of Discipline
is a non-statutory measure and over the years it has lost much of its importance.

After a gap of several years, the Industrial Disputes Act 1947 (IDA) was amended in
1982 to provide for unfair labour practices, which cover broadly all the categories of
anti-union discrimination to be found in articles 1 and 2 of Convention No. 98 of the
ILO. Broadly speaking, interference by the employer in the trade union rights of the
workmen and victimisation on these grounds have been termed as unfair labour
practice on the part of employers. Proceeding on illegal strikes, refusal to bargain
collectively in good faith on the part of the recognised union (notwithstanding the
fact that there are no provisions dealing with recognition of trade unions under the
IDA) and indulging in violence and acts of coercion have been treated as unfair
labour practice under the Act.

REDRESSAL OF UNFAIR LABOUR PRACTICES:

Committing an unfair labour practice has been made an offence for which a criminal
complaint could be filed, after seeking permission from the appropriate government,
and which can be punished with imprisonment and fine. The amendment does not
provide for any civil remedy such as issuing a cease and desist order to the employer
in the case of a continuing unfair labour practice or empower the labour court to
award damages.

The 1982 amendment to the IDA incorporating a new Chapter on Unfair Labour
Practices has no doubt provided a framework for encouraging collective bargaining
by specifying certain activities as unfair labour practices; yet it must be noted that the
vexed question of the need to have recognised unions and pre-determined recognition
procedures has been side-stepped once again. However, as already noted above, the
description of what constitutes an unfair labour practice under this Act is not
confined to acts which hamper collective bargaining. Actions on the part of the
employers to employ workmen as badlis, casuals or temporaries and to continue
them as such for years, with the object of depriving them of the status and privileges
of permanent workmen has also been regarded as an unfair labour practice.

However, it is not as if the IDA has recognised some form of unfair labour practices
for the first time in 1982. The IDA has, right from its enactment in 1947 afforded
specific protection against dismissals under certain conditions.10 Any violation of this
provision can be challenged by the aggrieved workman filing an application before

10
Section 33. These would include, inter alia. the dismissal of a worker in connection with a pending dispute.
 the authority where the dispute is pending.11 The IDA was amended by the Industrial
Disputes (Amendment and Miscellaneous) Provisions Act, 1956to provide protection
to protected workmen, who were given additional protection against arbitrary
dismissals.12 One per cent of the total number of workmen employed in an
establishment, subject to a minimum of five and a maximum of one hundred, are to
be recognised as protected workmen. The Rules framed under the IDA provide for
the distribution of such protected workmen among the various trade unions connected
with the establishment roughly in proportion to the membership figures of the
unions.13 It must be noted that the limitation of these provisions, including those
relating to unfair labour practices under this Act, is that it is available only when the
dismissal has actually taken place and not when it is anticipated or feared by the
concerned workman.14 Thus, in practice, a charge sheeted employee fearing his
dismissal is unable to make use of Chapter V-C of the IDA.15

Apart from section 33, an industrial dispute can be raised regarding the dismissal of
any workmen under the IDA.16 Till 1964 any such dispute had to be espoused by a
trade union or a substantial number of workmen to be treated as an industrial dispute
under the IDA. Following an amendment in 1964, the IDA permits an individual who
is aggrieved over his dismissal or termination to raise an industrial dispute.17 The
powers of the labour court examining such a dispute have been considerately
widened in 1971 to allow it to re-appraise all the evidence on the basis of which the
employer decided to terminate the services of a workman and to independently
decide on the adequacy of reasons for the termination.18 The Supreme Court of India

11
Section 33 A, IDA.
12
Section 33 (4). Under section 33(3) of the Act, no action can be taken against protected workmen by way of
altering their conditions of service to their prejudice or by discharging or punishing them otherwise during the
pendency of any conciliation or arbitration proceedings in respect of an industrial dispute in regard to matters
connected with such dispute except with the express permission of the authority before which the proceedings
are pending. It must be noted that the protected workmen would cover only workmen being officers of a
registered trade union connected with the establishment, and who are recognised as protected workmen. This
excludes workers representatives elected by the workmen, other members of the trade unions and officers of
unregistered trade unions.
13
Once the union(s) make their choice of protected workmen under R. 66 of the rules under the IDA, there is a
mandatory obligation on the employer to recognise these workmen. {R. Balasubramanian and others v.
Carborandum Universal Ltd. Okha. 1978 I LLJ 432 (Guj) and M.S.R.r.C.. Akola v. Conciliation Officers. 1994
2 LLJ 41 (Bom).}
14
In Hindustan Lever v. Ashok Vishnu Kate, 1996 I LLJ 899, the Supreme Court observed that neither the IDA
nor the BIRA had provision for preventing any proposed discharge or dismisal by way of an unfair labour
practice which the Mabarashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act
1971 has.
15
Chaman Singh v. Registrar, Coop. Societies Punjab. 1976 II LLJ 98 (SC).
16
Section 2(k) of the IDA which defines an industrial dispute covers any dispute or difference between
employers and employers or between employers and workmen, or between workmen and workmen, which is
connected with the employment or non-employment or the terms of employment or the conditions of labour of
any person.
17
Section 2A provides that a dispute or difference between an individual workman and his employer connected
with or arising out of (i) discharge, (ii) dismissal, (iii) retrenchment, (iv) or otherwise termination of service of
an individual workman, shall be deemed to be an industrial dispute even though no fellow workmen or any
union of workmen is a party to the said dispute.
18
The statement of objects and reasons accompanying the Bill which amended the IDA stated that this
modification in the Act was sought to bring the Indian law in line with the Termination of Employment
Recommendation No. 119.
 has in a number of cases laid down that the management must act in good faith,
without mala fides nor victimise the workmen. Termination of employees on the
ground of loss of confidence in the workman so that it be treated as a case of
termination simpliciter and not as dismissal for a misconduct is not permitted. The
courts have lifted the veil in such cases to find out the true reason for the
termination. The courts have held that termination of services on the ground of loss
of confidence is stigmatic and it calls for a domestic enquiry or the leading of
evidence before the labour court in order to justify the dismissal. Termination in such
cases is mala fide and is definitely not in good faith but is a colourable exercise of the
employer's right to terminate the services of their workmen. The labour court can
order reinstatement of the worker with back wages in such cases.19These principles
have been valuable in reducing the arbitrariness in the termination of workmen, inter
alia, for their trade union activities

State-level Initiatives

Labour being a subject in the concurrent list of the Indian Constitution, the states and
union territories of India have enacted their own labour laws over and above the
central laws to suit local situations and power realities. What the Parliament had
hesitated long in doing, some states had achieved by providing for protection
guaranteed to workmen and trade unions against anti-union discrimination. The
Madhya Pradesh Industrial Relations Act, 1960 specifically provides that no
employee shall be victimised by reason of the circumstances that he is an office
bearer of any union or that he has taken part in any trade union activity or has gone
on strike which is not illegal or has appeared or intends to appear as a witness in any
preceding.20 Similar provisions are to be found in the Bombay Industrial Relations
Act, 1946 (BIRA).21 The Maharashtra Recognition of Trade Unions and Prevention
of Unfair Labour Practices Act, 1971 (MRTUPULPA) provides for detailed
protection against antiunion discrimination. As already noted above, some of the
unfair labour practices pertain to matters wider than merely ensuring the success of
collective bargaining procedures. In the MRTUPULPA just as in the IDA there are
provisions making the appointment of badlis or temporary workers for long years
with a view to denying them their benefits, an unfair labour practice.

We have already adverted to the wider meaning given to unfair labour practices in
the Indian context. Going by the case law generated under the MRTUPULPA, we
note several cases which relate to the demand for regularisation of workmen or the
absorption of contract labour by the principal employer. Thus, the fact that the
demand for abolition of contract labour may not be raised directly under the IDA is
sought to be achieved in this manner through the MRTUPULPA by alleging an unfair
labour practice. However, the real point of departure from the central law is with
respect to the power of the courts to give relief. The industrial court has the civil

19
L. Michael v. Johnston Pumps Ltd., AIR 1975 SC 661; Kamal Kishore Lalcshman v. The Management of Pan
Am. 1987 1 LLJ 107 (SC); Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sangh. AIR 1980 SC 1896;
Tata Engineering and Locomotive Company Ltd. v. S. C. Prasad. 1969 II LLJ 779 (SC).
20
Section 83;
21
Section 101.
 power to issue a cease and desist order to the employer to prevent them from
continuing to commit an unfair labour practice and in the case of a dismissal to
reinstate the workman forthwith in his original position with continuity of service and
full back wages in a proceeding relating to unfair labour practice. 22 The labour court
under the MRTUPULPA has the power to try offences relating to unfair labour
practices, making a departure from the usual pattern of the other labour laws that
require moving the magistrates' courts as also taking the prior permission of the
appropriate government before prosecution is launched. It is ironic that when the IDA
was amended in 1982 the wider powers of providing a civil remedy for an unfair
labour practice were not provided. Further, since the amendment did not provide for
recognition of trade unions, the provision under the Maharashtra law that permitted
only a recognised union to raise a complaint relating to an unfair labour practice was
not provided.23

The rich body of case law that has developed under the Maharashtra law stands
testimony to the fact that that law is frequently used to curb unfair labour practices, in
contrast to the virtually non-existent litigation of a similar nature under the IDA. The
need to suitably modify the central law in order that it can be of greater utility
appears all the more relevant in the present context when sea changes are taking
place in the economy and labour market in India following the process of
liberalisation and de-regulation. Greater casualisation of the work force even in the
organised sectors and a diminished role of trade unions have set the stage for an
increased incidence of unfair labour practices. The need to increase the access and
scope of the remedies under the central law appears to be an urgent necessity.

22
Sanjiv P. Jathan v. Larsen & Tuobro Ltd. 1989 II LLJ 194 (80.).
23
Section 28, MRTUPULPA
 CHAPTER 3: VICTIMISATION UNDER UNFAIR LABOUR
PRACTICES

Until 1982, the expression unfair labour practice had not been defined in the Industrial
Disputes Act, 1947. Section 2(ra) of the Industrial Disputes (Amendment) Act, 1982 defines
unfair labour practice to mean ''any practices specified in the Fifth Schedule.
The Fifth Schedule enumerates the unfair labour practices:
I. On the part of employers and trade unions of employers:
1. To interfere with, restrain from, or coerce, workmen in the exercise of their right to
organise, form, join or assist a trade union or to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection, that is to say:
(a) threatening workmen with discharge or dismissal, if they join a trade union;
(b) threatening a lock-out or closure, if a trade union is organised;
(c) granting wage increase to workmen at crucial periods of trade union organisation, with a
view to undermining the efforts of the trade union organisation,
2. To dominate, interfere with or contribute support, financial or otherwise, to any trade
union, that is to say:
(a) an employer taking an active interest in organising a trade union of his workmen; and
(b) an employer showing partiality or granting favour to one of several trade unions
attempting to organise his workmen or to its members, where such a trade union is not a
recognised trade union.
3. To establish employer-sponsored trade unions of workmen.
4. To encourage or discourage membership in any trade union by discriminating against any
workman, that is to say:
(a) discharging or punishing a workman, because he urged other workmen to join or organise
a trade union;
(b) discharging or dismissing a workman for taking part in any strike (not being a strike
which is deemed to be an illegal strike under this Act);
(c) changing seniority rating of workmen because of trade union activities;
(d) refusing to promote workmen to higher posts on account of their trade union activities;
(e) giving unmerited promotions to certain workmen with a view to creating discord amongst
other workmen, or to undermine the strength of their trade union;
(f) discharging office-bearers or active members of the trade union on account of their trade
union activities.
5. To discharge or dismiss workmen
(a) by way of victimisation;
(b) not in good faith, but in the colourable exercise of the employers rights:
(c) by falsely implicating a workman in a criminal case on false evidence or on concocted
evidence;
(d) for patently false reasons;
(e) on untrue or trumped up allegations of absence without leave;
(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or
with undue haste;
(g) for misconduct of a minor or technical character, without having any regard to the nature
of the particular misconduct or the past record or service of the workman, thereby leading to
a disproportionate punishment.
6. To abolish the work of a regular nature being done by workmen, and to give such work to
contractors as a measure of breaking a strike.
7. To transfer a workman mala fide from one place to another, under the guise of following
management policy.
8. To insist upon individual workmen, who are on a legal strike to sign a good conduct bond,
as a pre-condition to allowing them to resume work.
9. To show favouritism or partiality to one set of workers regardless of merit.
10. To employ workmen as badlis, casuals or temporaries and to continue them as such for
years, with the object of depriving them of the status and privileges of permanent workmen.
11. To discharge or discriminate against any workman for filing charges or testifying against
an employer in any enquiry or proceeding relating to any industrial dispute.
12. To recruit workmen during a strike which is not an illegal strike.
13. Failure to implement award, settlement or agreement.
14. To indulge in acts of force or violence,
15. To refuse to bargain collectively, in good faith with the recognised trade unions.
16. Proposing or continuing a lock-out deemed to be illegal under this Act.
 II. On the part of workmen and trade unions of workmen:

1. To advise or actively support or instigate any strike deemed to be illegal under this Act,
2. To coerce workmen in the exercise of their right to self-organisation or to join a trade
union or refrain from joining any trade union, that is to say:
(a) for a trade union or its members to picketing in such a manner that non-striking workmen
are physically debarred from entering the work places;
(b) to indulge in acts of force or violence or to hold out threats of intimidation in connection
with a strike against non-striking workmen or against managerial staff.
3. For a recognised union to refuse to bargain collectively in good faith with the employer.
4. To indulge in coercive activities against certification of a bargaining representative.
5. To stage, encourage or instigate such forms of coercive actions as wilful go slow,
squatting on the work premises after working hours or gherao of any of the members of
the managerial or other staff.
6. To stage demonstrations at the residences of the employers or. the managerial staff
members.
7. To incite or indulge in wilful damage to employers property connected with the industry.
8. To indulge in acts of force or violence or to hold out threats of intimidation against any
workman with a view to prevent him from attending work.
While Section 25T prohibits an employer or workman of a trade union (whether registered
under the Trade Unions Act, 1926, or not) to commit any unfair labour practice, Section 25U
penalises the person committing any unfair labour practice with imprisonment for a term
which may extend to six months or with fine which may extend to one thousand rupees or
with both.

Section 25 T reads as follows:

Prohibition of unfair labour practice:
No employer or workman or a trade union, whether registered under the Trader Unions Act,
1926 (16 of 1926), or not, shall commit any unfair labour practice
While section 25 U reads as follows:
Penalty for committing unfair labour practices: Any person who commits any unfair
labour practice shall be punishable with imprisonment for a term which may extend to
six months or with fine which may extend to one thousand rupees or with both.
 ANALYSIS

DEFINITION: UNFAIR LABOUR PRACTICES

In L.H. Sugar Mills v. Its Workmen,24 it was held that it was not possible to give an
exhaustive definition of the phrase unfair labour practice and that each question
must be considered according to its own circumstances. It is not possible to lay down
any exhaustive test of unfair labour practice, but as a working principle, any practice
which violates the principles of Art. 4325 of the Constitution and other articles
declaring decent wages and living conditions for workmen and which if allowed to
become normal would tend to lead to industrial strife, should be condemned as unfair
labour practice.

In the case of Eveready flash light company v. Labour court, Bareilly26 , the question
of importance before the court was as to what was the meaning of unfair Labour
Practices. Whether putting a workman on indefinite probation on unjustified grounds
to avoid or delay making him a permanent hand amounted to an unfair labour
practice. Counsel for the petitioner argued that this amounted to unfair labour
practices.

Counsel for the respondent contended that this phrase should be given a restricted
meaning. He referred to the definition of unfair practice contained in the Indian
Trade Unions (Amendment) Act, 1947 (XLV of 1947). There is a special chapter in
this Act dealing with unfair practice. Section 28 J defines unfair practice by
recognised trade unions and S 28k deals with unfair practice by employers. But the
court rejected his contention on the ground that: the definition of unfair labour
practice in S. 28K has no application in the matter of the employers relations with
his individual employees. The Act was not intended to regulate the employers
relations with the employees arising out of the terms of employment which is the
purpose of the Trade Disputes Act.

Learned counsel for the petitioner then argued that an employer cannot be held guilty
of unfair labour practice simply on the basis of one contract of employment. He
contended that there must be a number of transactions to constitute an unfair practice.
But this was blatantly rejected by the court quoting It would mean that he must be
permitted to victimize several workmen before he can be stopped. The dictionary
meaning of the word practice includes a single transaction. It is in the public
interest that even a single act of an employer should be condemned if it amounts to an
unfair labour practice, for the policy of the legislature is to weed out any such practice
before it has spread and become a danger to the industrial peace.
Eventually, the court held in light of facts of this case that The dividing line between
victimization and unfair labour practice is very thin and what is unfair labour practice

24
(1961 I.L .L J. 686).
25
Constitution of India 1949.
26
Allahabad High Court, (1961) 2 L L J. 204.
 may also be victimization and vice versa. The employer who makes his workmen sign
on temporary contracts and compels them to work for years on permanent jobs with
the object of depriving them of the status and the privileges of permanent workers, is
guilty of unfair labour practice.

In the case of Bengal Bhatdee coal co. v. Singh27, during a strike, thirteen workers
belonging to the union obstructed the surface trammels working in the companys
colliery. Some of them incited the other workers to join in this act. It was during such
a strike that the misconduct in question took place and the misconduct was that these
thirteen workmen physically obstructed other workmen who were willing to work
from doing their work by sitting down between the tramlines. The company served
charge- sheets on the thirteen, The Welfare Officer of the company conducted the
domestic enquiry, and held all thirteen guilty of the charges against them; he
recommended their dismissal.
As an industrial dispute was pending at that time, the company sought the permission
of the tribunal under Section 33 (2) (b) to dismiss. The tribunal granted that
permission.
Later, the union raised an industrial dispute on the same issue. The tribunal held that,
though the enquiry was procedurally correct, the case was one of victimization. The
order of dismissal was therefore set aside. The company obtained special leave from
the Supreme Court. It referred to a decision of the Calcutta High Court in National
Tobacco Company of India Ltd. v. Fourth Industrial Tribunal28, where it was held
that in a case where the punishment meted out was unconscionable or grossly out of
proportion to the nature of the offence that may itself be a ground for holding that the
dismissal was an act of victimization.
But in the present is not such a case and no inference of victimization can be made
merely from the fact that punishment of dismissal was imposed in this case and not
either fine or suspension as there was serious misconduct on the part of the thirteen
workmen and punishment of dismissal is perfectly justified.

VICTIMISATION MEANING:

The word victimization has not been defined in the statute. The term was
considered by this Court in the case of Bharat Bank Limited v. Employees of Bharat
Bank Limited,29. The Court observed, It (victimization) is an ordinary English word
which means that a certain person has become a victim, in other words, that he has
been unjustly dealt with. When the word victimization can be interpreted in two
different ways, the interpretation which is in favour of the labour should be accepted
as they are the poorer section of the people compared to the management.

Victimisation means any of the two things:

1. When the workman concerned is innocent and yet he is punished because he
has in some way displeased the employer. For eg. : by being an active member

27
Supreme Court, [1963-64] 24 F.J.R. 406.
28
[1959] 18 F.J.R. 157.
29
[1950 L.L.J. 921].
 of a union of workmen who were wcting prejudicially to the interests of
employer.
2. Where an employee has committed an offence but is given a punishment quite
out of proportion to the gravity of offence, simply because he has incurred the
displeasure of employer. 30

The Court in the case of K.C.P. Employees' Association, Madras v. Management of

K.C.P. Limited, Madras and others observed:
In Industrial Law interpreted and applied in the perspective of part IV of the
Constitution, the benefit of reasonable doubt, on law and facts, if there be such doubt
must go to the weaker section, labour.

In the case of Bharat Iron Works v. Bhagubhai Balubhai Patel31, court held that:
Ordinarily a person is victimised, if he is made a victim or a scapegoat and is
subjected to persecution, prosecution or punishment for no real fault or guilt of his
own, in the manner, as it were, of a sacrificial victim. It is therefore, manifest that if
actual fault or guilt meriting the punishment is established, such action will be rid of
the taint of victimisation.
It is apparent that victimisation may partake of various types, for example,
pressurising an employee to leave the union or union activities, treating an employee
unequally or in obviously discriminatory manner for the sole reason of his connection
with union or his particular union activity or inflicting a grossly monstrous
punishment which no rational person would impose upon the employee and the like
Victimisation is a serious charge by an employee against an employer. The charge
must not be vague or indefinite being as it is an amalgam of facts as well as inferences
and attitudes. The onus of establishing a plea of victimisation will be upon the person
pleading it.
Again victimisation must be directly connected with the activities of the concerned
employee inevitably leading to the penal action without the necessary proof of a valid
charge against him.... A proved misconduct is antithesis of victimisation as
understood in industrial relations.

30
Supra 28.
31
A.I.R. 1976 S.C. 98.
 CHAPTER 4: THE LOOPHOLES

The Constitution of India the super-ordinate law of the land guides all legislative, executive
and judicial actions in the country. In its preamble, the Constitution seeks to secure to the
people, among others, justice, social, economic and political... and liberty of thought,
expression... Article 19 (1) (c) of this grund norm guarantees to all citizens a fundamental
freedom to form associations and unions.
1. The provisions about Unfair Labour Practices seem to have been lifted from the
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices
Act (MRTU PULP Act). The concept of unfair labour practices - in fact, the term
itself has been borrowed from the American practice. But there, the National Labour
Relations Act seeks specifically to protect the right of workers to for-m their own
unions and to choose their own bargaining agent without any obstruction or
interference from the employer and also to promote bipartite collective bargaining in
good faith. Any act contrary to these objectives is viewed as 'unfair' and the law there
gives very wide latitude to the National Labour Relations Board in deciding whether a
particular action is unfair or not depending upon the consequences of that act in the
context of the objectives of the NLRA, without trying to list out a series of do's and
don'ts for the purpose. The same act may under one set of circumstances be declared
as 'unfair' but not so under a different set of circumstances.
IDA amendment, like the MRTP-PULP Act from which it is taken, however, lists an
elaborate set of do's and don'ts separately for employers and for workmen and trade
unions, which will inevitably tie down the Courts to strictly legal interpretation of the
words used in the lists rather than the effect of a particular action on the freedom of
organisation of workers and on collective bargaining. What is odd is that many of the
don'ts listed are already barred by other provisions of the ID Act and by the case law
that has developed over the years, aid some by even the criminal law of the land. By
the specific inclusion of such acts in the list of unfair labour practices, one wonders if
they will cease to attract the general provisions of the ID Act, the Standing Orders or
the criminal law. What it will undoubtedly do is to provide one more fertile field for
employers' lawyers for endless litigation and hair splitting. In sum, the latest
amendments are unlikely to achieve anything beyond making the ID Act even more
ponderous and complicated and enmeshing both employers and workmen in its
complexities and litigation resulting there from than at present.32

2. At the same time collective bargaining also requires that the collective bargaining
agent be identified from among several available collectives of workers - be they
trade unions or groups of workers-and further that this bargaining agent has the right,
and also the duty, to negotiate on behalf of the workers, in short be an exclusive
bargaining agent. The need to evolve criteria for determining what have been
variously termed as a bargaining agent or a recognised union is a prerequisite for

32
Bagaram Tulpule Making Labour Laws More Ponderous Economic and Political Weekly, Vol. 17, No. 22
(May 29, 1982), pp. 896-897.
 collective bargaining and the failure to do so or irregularities in these procedures
could also be treated as an unfair labour practice.

Strangely, however, provision for union recognition was made in the TUA by way of
amendment in 1947, but this has not been enforced till date. Today, recognition can
be gained by a union only through show of its strength

3. Some scholars have observed that state is pro-management in matters of

determination of capacity to pay, but is pro- worker in matters relating to termination.
Study shows, state and management alliance is stronger than that between state and
ruling party affiliated unions. This study showed that wherever a union tried to show
its independent status, it had to undergo the wrath of the management. The state has
endorsed disciplining process of managements with phenomenal lawless methods,
both by remaining a mute witness and even by active abetment. It never enforced
even the symbolic protection available to unions by way of prosecution of
managements for unfair labour practices (ULPs). Not a single case of such
prosecution was noticeable, whether or not unions involved were allies of the party in
power.

4. Another important area for action by labour bureaucracy is in ensuring reinstatement

of dismissed workers as per court directions. Most such cases in small and medium
organisation are settled for money; despite awards in workers' favour, not even in 1
per cent of reinstatement awards, is the worker concerned actually taken back.

5. Resort to questionable practices in the process of bringing peace through nefarious

means including bribing, and collusion with the labour bureaucracy and/or the
political executive are rampant. Researcher laments the presence of corruption in the
labour adjudication system. Ample evidence to this effect is available in regard to a
large number of cases which are abandoned by workers at the tribunal level.

6. The processing of industrial conflict through legal channels has directed the labour
power in India into thousands of individual cases and questions. The weakening of
unions by the juridification process is further reinforced when to it are added high
incidence of unfair labour practices (ULPs) by the employers, and terminations by
them for trade union activities, and the inability of the labour relations system to see
them reinstate. Feeling marginalised due to union disempowerment, workers disbelief
the goal of labour justice.

7. When the IDA was enacted, it was expected to provide a forum for promoting
peaceful labour relations and minimising industrial conflict. It was also thought that
awards delivered by them would enable unions to derive countervailing power, which
is more necessary in political disputes such as interest questions in labour relations. It
was expected of these quasi-judicial bodies to provide: greater accessibility to the
weaker side; more informal atmosphere than that created by the civil court culture; the
use of specialist's skills of the labour adjudicators; and expeditious dispute resolution
by minimising delay. This implies that the adjudicatory bodies must be easily
accessible.

So as to be labelled as accessible, adjudicatory bodies must demonstrate and promote

the following expectations: the knowledge that a forum exists where dispute
processing could be sought; perception that there are reasonable chances of success by
activating that forum; bearable costs in processing of the dispute in terms of time and
money; closer geographical location of the forum; availability of competent
representatives to plead the case of the party concerned; perception that the weaker
party (mostly the workers) will not be victimised for espousing a dispute; and in the
Indian context of the IDA, getting a successful reference of the dispute

Since getting nominated to labour tribunals is low on the priority of judges, a large
number of vacancies always remain in almost all the states in India, which reduces
accessibility. Accessibility is further impaired when the tribunal output results in a
high incidence of disputes abandonment by the powerless workers. A large number of
such cases also tell the story of the vulnerability of the downtrodden in the labour
relations process where labour submitted itself to the wishes of the powerful after it
felt humiliated by the commission of ULPs by the employers and the inability of the
tribunal to protect it.

The IDA confers freedom on the tribunals to innovate their own procedures in dispute
processing. It is provided that they are not guided by the civil procedure and the
normal evidence law. Thus, they were expected to minimise the use of jargon and
promote inquisitorial and adversarial style of dispute investigation.

The IDA is destined to reach its goal if all the above stated loopholes are targeted and
deleted from the act.
 CHAPTER 5: CONCLUSION AND SUGGESTION

The industrial dispute act is a benign measure which seeks to pre-empt industrial tensions,
provide energies of partners in production may not be dissipated in counter-productive battles
and assurances of industrial justice may create a climate of goodwill.
- Krishna Iyer, J.33

The intricate pattern of employer-employee relations has evolved considerably in the last
several decades. After moving from an era of unrestricted laissez faire to a more regulated
labour market operating within the confines of legal framework, it is once again pacing
towards greater deregulation, which has brought about tremendous changes in the individual
employment contract and the labour market as a whole. Such turpitude requires a stalwart
labour legislation to counter it. One of which is the Industrial dispute act, 1947.
Collective bargaining is the touchstone of the act. It is method of regulating employment
relations. It presupposes the existence of two parties, the employer and the workers. The
collectives of workers aligned on one side be organised into trade unions. The need for the
existence of trade unions and in turn, the right of trade unions to function freely and further,
the right of individual members to freely join and participate in the affairs of the trade union
then would, a fortiori, be an indisputable and necessary condition for the efficient functioning
of collective bargaining mechanism. Viewed in this light, any action of either party to the
collective bargaining process which interferes with the formation or existence of unions or in
the participation of individuals in these organisations would hamper the collective bargaining
process and would merit being termed an unfair labour practice.

In the USA where the expression 'unfair labour practices' was first used, there have been
legislations since 1926 in favour of collective bargaining. Until 1982 the expression unfair
labour practice had not been defined in the Industrial Disputes Act, 1947. Section 2(ra) of
the Indus- trial Disputes (Amendment) Act, 1982 defines unfair labour practice to mean ''any
practices specified in the Fifth Schedule. Although it was prohibited by way of section 25 T
and 25u since the inception.
In third world countries - and especially in a country like India - these aspects get added
significance where a large percentage of people live below the poverty line and suffer from
problems of unemployment and underemployment and commission of unfair labour practices
(ULPs) by employers against them.
When labour relations get legalised, they are beneficial to those who can develop institutional
skills to use them to their advantage. Legalised framework promotes bureaucratisation, and
thus enables the government to prevent labour to unite and struggle for industrial equity and
democracy. Government's first concern is production and peace at whatever social cost.
Consultationism, inherent in the IDA in the Indian context, produces management consultants

33
Life Insurance Corporation v. D.J. Bahadur, (1980) Lab.I.C. 1218 1226 (S.C.).
and briefcase union leaders. They help strengthen opportunistic alliances between various
power centres. And thus, they help in making the legal labyrinth more tortuous. The
individualisation of labour relations exacerbated by them further dis-empowers labour.
The most important instrument of labour empowerment is strong unions, which can organise
themselves to match the managerial rationality in organising private industrial governments;
juridification and its consequent fallouts counter such a possibility. It creates a labyrinth
which empowers labour at one moment only to disempower it at the other.

SUGGESTIONS:
Comparatively, labour standards in India are low. The IDA and the consequent legalism
produced have made labour-power weak in its fight for their enforcement. A large part of
Indian labour does not get minimum wage. The Bhopal gas disaster tells us of the safety
conditions in which they work.
1. The first step that should taken is the enforcement of laws relating to these. We need a
programme of social action for requisite sensitisation of all concerned in this regard.
Intellectuals, NGOs and international trade union movement can play a useful role in
this regard.
2. Any programme of action for enhancing labour power needs to evolve a better
enforcement mechanism. Labour needs to be given representation in carving out such
an enforcement mechanism.
3. There is a need for constant monitoring of the implementation mechanism by rights
groups at national and inter- national levels.
4. There is a need for simplification of labour laws, and internalisation of such simplicity
as a social value.
5. It is absolutely necessary to ensure autonomy of tribunals and conciliators from the
state apparatus. This is perhaps the most difficult task in the Indian context as the
analysis in this paper reveals.
6. There is a need for greater degree of public interest litigation for enforcing minimum
labour standards and developing some basic postulates of sound labour relations. It
can be a very useful instrument especially in the Indian context. But we need to
involve those people who are genuinely interested in poverty alleviation.
7. In the globalisation euphoria, unionism and collective bargaining as values as also the
values of welfare state and welfare economics themselves are in a deep crisis. We
need wider popularisation of the perspective that unions are not fundamentally
antithetical to globalisation philosophy.