CONCLUSION OF CONCILIATION PROCEEDINGS

Submitted by: Prasun Kumar

Roll No. – 1351
2nd year, B.A., LL.B.

Submitted to: Dr. S.C. Roy

Faculty of Labour Law

Final draft submitted in fulfillment of the course Labour Law –I for completion of B.A.,
LL.B. (Hons. Course)

20th April, 2017

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

1|Page CONCLUSION OF CONCILIATION PROCEEDINGS

 DECLARATION PAGE

I Prasun Kumar, student of B.A., LL.B. (Second year) in Chanakya National Law University
declare that the research project entitled “CONCLUSION OF CONCILLIATION
PROCEEDINGS” submitted by me for the fulfillment of “LABOUR LAW” course is my
own work. This project has not been submitted for any other Degree / Certificate / Course in
any Institution / University.

2|Page CONCLUSION OF CONCILIATION PROCEEDINGS

 ACKNOWLEDGEMENT
I am highly elated to have worked on my research topic “CONCLUSION OF CONCILIATION
PROCEEDING” under the guidelines of Dr. S.C. ROY, (Faculty of Labour Law). I am very
grateful to him for the proper guidance.

I would like to take this opportunity to express my profound gratitude and deep regard to him for his
exemplary guidance, valuable feedback and constant encouragement throughout the duration of the
project.

His valuable suggestions were of immense help throughout my project work.

His perceptive criticism kept me working to make this project in a much better way. Working under
him was an extremely knowledgeable experience for me.

I would also like to thank all my friends and my seniors. Apart from all these I would like to give
special regard to the librarian and other staffs of the library of my university who made a relevant
effort regarding to provide the materials to my topic and also assisting me.

Finally, I would also like to extend my gratitude to my parents and all those unseen hands that
helped me out at every stage of my project.

THANK YOU,

Prasun kumar
Roll no. - 1351
2nd year B.A., LL.B. (Hons)

3|Page CONCLUSION OF CONCILIATION PROCEEDINGS

 PAGE OF CONTENT

SL.NO. NAME OF THE CHAPTER PAGE NO.

Declaration……….…………………………………………………………………….02

Acknowledgement…………………………………….………………………………..03

1. Introduction………………………………………………………………………….

1.1 Aims and objective of the project………………….......................................

1.2 Hypothesis……………………………………………………………….......

1.3 Research Question…………………………………………………………...

1.4 Limitation of the project…………………………………………………........

1.5 Sources of Data………………………………………………………………..

2. Conciliation officer and board of Conciliation………………………………………..

3. Effective Conciliation process ………………………………………………………..

4. A Comparison of India and The United States………………………………………..

5. Conclusion and Suggestion………………………………………………………........

Bibliography………………………………………………………………………………..

4|Page CONCLUSION OF CONCILIATION PROCEEDINGS

(3).INTRODUCTION

DISPUTES ARE endemic in any organisation. Even in a well-knit family where paternal, maternal and
fraternal feelings are supposed to be pervasive, they are not ruled out. Thus, in an industrial set up,
because of the dissimilar characteristics of the groups which ex necessitates come together to engage in
the production of material goods or services, the dispute or difference aspect is bound to loom large.

It cannot be gainsaid that industrial peace and amity are of great significance in a developing country
like India. Peaceful and harmonious relationships between the partners in production would ensure to
workers economic security and facilitate economic development of the nation. Perpetual protests and
continuous confrontations, while spreading the tentacles of distrust and disharmony among employers
and workmen, would also hamper the nation's economic progress. In the light of this, the machinery
provided under the Industrial Disputes Act 1947 (hereinafter referred to as "the Act") for the settlement
of industrial disputes assumes significance and is of great consequence. The Act provides for
"conciliation" with a view to bringing about an amicable settlement of industrial disputes.1 The word
"conciliation" has not been defined under the Act. In industrial parlance, it involves in an industrial
dispute intervention by a third party, who may be a private body or a governmental representative, for
the purpose of bringing about a "settlement".

It is important to note that parties to an industrial dispute are not the typical litigants before an ordinary
court of law. Its "right settlement" can usher in and ensure industrial peace. After it has been resolved,
the parties, unlike the ordinary litigants, have to get back and engage under a common roof in the
industry's productive processes. Thus, if any rancor or ill-will persists even afterwards such feelings
would not augur well for promoting industrial peace. Consequently, only a "right settlement", i.e., a
settlement which is "right" from the point of view of both the parties would ensure future harmonious
relationships. It is, therefore, important that the eminently sensible principle of "voluntarism" that
underlies the conciliation process be borne in mind. Unlike the situation in adjudication or arbitration
where a third party would impose its award, in this process, the parties themselves have an excellent
opportunity to settle their differences. The adjudicator or arbitrator cannot understand and appreciate the
differences of the parties as well as they themselves can. The "give and take" policy demonstrated by
them when they voluntarily endeavour to reconcile their differences can rarely be effectively employed
by a quasi-judicial body such as an adjudicator or arbitrator. Further, the cost aspects of the adjudicatory
and arbitration processes as well as the inherent delay involved therein should make the conciliation
process more attractive.

Under the Act, the power to appoint officers is vested in the appropriate government, which may also,
when the situation demands, constitute a Board of Conciliation. While the Act charges the officers "with
the duty of mediating in and promoting the settlement of industrial disputes, the board is created "for
promoting the settlement of an industrial dispute." Also the officer acts singly, whereas the board
functions as a multi-membered body. Both are required to induce the parties to arrive at an amicable
settlement. In case this is achieved, they have to send their reports along with the memorandum of the
settlement. Otherwise, a failure report is required to be submitted detailing out the facts of the dispute
and the reasons for failing to arrive at a settlement. While the officer in submitting his report cannot
make a recommendation "for the determination of the dispute", the board can do so. The Act compels
the officer to commence conciliation proceedings where an industrial dispute exists or is apprehended in
a public utility service and where notice of strike or lockout has been issued under section 22 of the Act.
In respect of non-public utility services, though the Act suggests that the officer may commence
proceedings, in light of the statutory objectives, namely, prompt investigation and settlement of
industrial disputes, it is reasonable to conclude that there is an implicit statutory obligation on his part to
5|Page CONCLUSION OF CONCILIATION PROCEEDINGS
do so even in those cases where a dispute exists or is apprehended. The board, however, acquires
jurisdiction to promote a settlement only on a reference being made to it by the appropriate government,
under section 10(1) (a).

Both the officer and the board have been given certain powers of the civil court under the Code of Civil
Procedure 1908. However, the board's powers are greater. Thus, for example, while both attendance and
examination on oath of any person can be enforced by it, the officer can enforce only attendance. As
regards the binding nature of settlements, the Act envisages two situations. A settlement arrived at in the
course of conciliation proceedings, in so far as its "binding nature" is concerned, is at par with the award
of a labour court, industrial or national tribunal and, in some circumstances, that of an arbitrator.17
However, if it is achieved "otherwise than in the course of conciliation proceedings" it binds only the
parties to the agreement.

Conciliation is process by which representatives of workers and employees are brought together before a
third party with a view to persuading then to arrive at an agreement by mutual discussion between them.
The Industrial Dispute Act, 1947 and other states enactments authorize the government to appoint
conciliators charged with the duty of mediating in and promoting the settlement of industrial disputes. A
conciliation officer may be appointed for specific area or for specified industries in a specific area or for
one or more industries either permanently or for a limited period. In conciliation, the ultimate decision
rests with the parties themselves but the conciliator may offer a solution to the dispute acceptable to both
the parties and serve as a channel of communication. The parties may accept his recommendations for
settlement of any dispute or reject it altogether. If conciliation fails, the next stage may be compulsory
adjudication (Mandatory settlement of industrial dispute by labour courts or industrial tribunal or
national tribunal under the Industrial Dispute Act, or under any other corresponding state affairs) or the
parties may be left to their choice. In cases where a settlement is arrived at , they can record the
settlement and in cases of failure of the conciliatory negotiations ,they can send a failure report to the
appropriate government.

(3.1) AIMS AND OBJECTIVE OF THE PROJECT

(i) The researcher’s aim for making this project is to study the Conciliation process.
(ii) The project work aims at defining the duties of conciliation officer and board of conciliation.
(iii) To see the present status of conciliation process.
(iv) To see the obstacles that comes in the path of conciliation process.
(v) To find out what should be a model conciliation process.
(vi) To do a comparative study of conciliation process followed by India and United States of
America

(3.2) HYPOTHESIS

The researcher has assumed that,

(i) The conciliation process is a fast and effective way of solving dispute.
(ii) It reduces the expenditure of the parties spent on court proceedings.
(iii) Conciliation is an important and most common way of settlement of industrial dispute
(iv) The eligibility of conciliation officer should be given due consideration while his
appointment.

6|Page CONCLUSION OF CONCILIATION PROCEEDINGS

(3.3) RESEARCH QUESTION

(i) What is meant by conciliation process?

(ii) What is the procedure of conciliation?
(iii) What are the duties of conciliation officer and board of conciliation?
(iv) How conciliation officer should carry on his duties?

(3.4) LIMITATION OF THE PROJECT

Owing to the large number of topics that could be included in the project, the scope of this research
paper is exceedingly vast. However in the interest of brevity and due to certain restrictions like that of
area limited to Bihar and limitation of time etc., the researcher will not be able to deal with the topic in
great detail.

(3.5) SOURCES OF DATA

Primary Sources – Case laws, constitutional provision, legislative provision.

Secondary Sources – Books on Labour Law, websites, journals, articles, magazines etc.

7|Page CONCLUSION OF CONCILIATION PROCEEDINGS

(2) CONCILIATION OFFICER AND BOARD OF CONCILIATION

Conciliation Officer

This is the second agency or authority created by proceedings 1.The appropriate Government has been
authorized to appoint one or more Conciliation Officers for mediating and promoting the settlement of
industrial disputes. A Conciliation Officer can be appointed either for a specified area or for a specified
industry or industries. In order to bring about a right settlement of a dispute, a Conciliation Officer is
given wide desecration. Whereas, it is obligatory on the parties involved in the dispute to appear before
him, is summoned, but they are not bound to accept his point of view.

Duties of Conciliation Officers:

A Conciliation Officer may take appropriate steps for inducing the parties to a fair and amicable
settlement of the dispute. If a settlement is arrived at during conciliation proceedings, he must send a
copy of the report and the memorandum of the settlement signed by the parties to appropriate
Government or an officer authorized by it. In case no settlement is arrived at, he is required to send to
appropriate Government, full report of the steps taken by him to resolve the dispute, and the reasons on
account of which a settlement could not be arrived at. The Conciliation Officer is required to submit his
report within fourteen days of the commencement of the conciliation proceedings, but the time for the
submission of the report may be extended further on the written request of the parties to the dispute.
Where a settlement is not reached, the appropriate Government, after considering the report of the
conciliation officer, may refer the dispute to a Board of Conciliation or Labour Court or Industrial
Tribunal or National Tribunal as the case may be.

Board of Conciliation

Section 5 of the Industrial Disputes Act, 1947 provides for creation of Board of Conciliation which is
simply an extension of conciliation officers work.2 Unlike a Conciliation Officer, the board may not be a
permanent body and can be set up as the occasion arises. It comprises of two or four members
representing parties to the dispute in equal numbers and a chairman who has to be an “independent
person”. The Board has the status of a Civil Court and can issue summons and administer oaths. The
members representing the parties are to be appointed on the recommendations of the parties concerned,
but in case of their failure to make such recommendations, the appropriate Government must appoint on
its own, persons representing the parties.

References of Disputes to Board of Conciliation

Where the appropriate Government is of the opinion that any industrial dispute exist or is apprehended,
it may at any time, by order in writing, refer the dispute to a Board of Conciliation for promoting
settlement. In case the parties to an industrial dispute make an application in the prescribed manner
whether jointly or separately, for a reference of the dispute to a Board of Conciliation, the appropriate
Government is required. On being satisfied that the persons making such an application represent the
majority of each party to make the reference accordingly. Where the dispute is referred to the Board, the

1
Industrial Disputes Act 1947, Section 4 & 12 read along with the Central rules 7, 8 and 9.
2
Industrial Disputes Act, 1947, Sec-13
8|Page CONCLUSION OF CONCILIATION PROCEEDINGS
appropriate Government may prohibit the continuance of any strike or lock-out in connection with such
dispute which may be in existence on the date of reference.

Duties and Powers of the Board

When a dispute has been referred to the Board of Conciliation, it may take suitable steps to induce the
parties to come to a fair and amicable settlement. If settlement is arrived at, the board is required to send
a report and a memorandum of the settlement signed by the parties to the disputes to the appropriate
Government. If no such settlement is arrived at, the Board is required to the appropriate Government a
full report setting forth the proceedings and steps taken by the board for ascertaining the facts and
circumstances relating to the disputes and bringing about a settlement and the reasons on account of
which a settlement could not be arrived at, and also its recommendations for the determination of the
dispute.3

The board is required to submit report within two months of the date of the reference of the dispute or
within shorter period as determined by the appropriate Government. The appropriate Government may
extend the time of the submission of the report to a period of not exceeding two months in the aggregate.
The date of the submission of the report may also be extend to such date as may be agreed on in writing
by all parties to the dispute. The report of the Board of Conciliation writing and is to be signed by all
members of the board but any member may record any minute of dissent from a report or from any of its
recommendation. Every report together with any minute of dissent has to be published by the
appropriate Government with in a period of 30 days from the date of its receipt.

Period of Operation:

A settlement comes into operation on the date agreed upon by the parties to the dispute and in case no
date is agreed upon, the date on which the memorandum of the settlement is signed by the parties to the
depute, a settlement is binding for such period as is agreed upon, for a period of six months from the
date which the memorandum of settlement is signed by the parties to the dispute4

Settlement is Binding:

A settlement arrived at in course of conciliation proceedings is binding on

(i) all parties to the industrial disputes.
(ii) all other parties summoned to appear in the proceedings as parties to the dispute.
(iii) where such parties is employer ,his heirs and successors of the establishment to which the
dispute relates.
(iv) where such parties composed of workmen all persons who were employed in the
establishment or part of the establishment, as the case may be to which the dispute relates.

3
P.L. Malik Labour And Industrial Law,( Lucknow: Eastern Book Company, 2007). 210
4
Ibid.
9|Page CONCLUSION OF CONCILIATION PROCEEDINGS
(3). EFFECTIVE CONCILIATION PROCESS

Effective conciliation process It has been said: "Mediation will never be a science but will always
remain an art. Nothing can replace human touch which is so rare and precious." In order to make the
conciliation process effective, the attitudes of various participants, namely, parties to the dispute, the
officer, appropriate government, and adjudicatory bodies like labour courts and ordinary courts
exercising supervisory or appellate jurisdiction, become relevant and important. It is time the disputants
should bury their notion that this process is "a fifth wheel to the coach." They should become aware of
the fact that dispute settlement through conciliation is founded on the eminently sensible principle of
voluntarism and that conciliation process is cheap and can be "quick" if they so desire. In this context,
the Swedish experience should hold out a lesson of great value to the parties to an industrial dispute in
India. 5

In Sweden, where conciliation is compulsory, the representatives of the employer and workmen
"assemble in a spirit of determination to formulate an agreement—to make a success of their meeting"
and "both sides consider it a disgraceful thing if they cannot come together and compose their
differences themselves." Parties to a dispute in India should no longer regard that the conciliation
process is a hurdle which has to be inevitably faced and crossed in order to have the dispute adjudicated
by a labour court or an industrial tribunal. Unless they lay all their cards on the table and enter the
process with a determination to resolve their differences amicably, the conciliation machinery cannot
meet with success and will continue to remain "a fifth wheel to the coach". Here, the government has a
great responsibility. It should not persist in the habit of making references to adjudicatory bodies either
indiscriminately or soon after the officer or the board reports failure. It can definitely require such
bodies to make their reports clear and cogent and once it is satisfied that the parties have not taken a
meaningful part in the process, it may refuse to make a reference on the ground that this would be
"inexpedient". When demands of the workmen are unreasonable or when the employer's attitude in the
course of the process is found to be unreasonable the government should publicise the reports received
from the officer or board in prominent newspapers to expose such attitudes and to demonstrate and
establish that its exercise of discretion, in not making the reference at the request of either of the
disgruntled parties, has not been abused. Steps should also be taken to ensure that the persons appointed
as officers possess proper qualifications.6 It is the government that has first to demonstrate that it
attaches great importance to the conciliation machinery by selecting and appointing the right personnel.
In the selection and appointment of officers it would do better if it gives credence to "technical
qualifications in terms of education, training and experience" and to "knowledge of relevant practice,
including personnel management qualifications, as well as the technical and cultural peculiarities of their
region or industries.... Further, it should ensure that officers do not perform a combination of functions,
for example, as enforcers of labour laws and conciliators, since in such a situation the employer class is
not likely to extend the cooperation expected of them during conciliation proceedings. Also, the status of
the officer should be raised in order to impress upon the parties that the conciliatory body is an
important one. The government, employers and trade unions can come together to learn from
experiences of the countries where conciliation has been successful. They can also, through
documentaries and video tapes, impress upon workers the advantages emanating from a sincere
participation in the conciliation process. Additionally, a tripartite body consisting of representatives of
employers, unions and government can also draw up a list of names of persons who can act as
conciliators in respect of an industrial dispute. Since the parties themselves are going to draw up the
names and approve the list, the persons acting as conciliators would be able to command their co-

5
S.N. Misra Labour And Industrial Law,(Allahabad: Central Law Publication, 2014). 150
6
Ibid
10 | P a g e CONCLUSION OF CONCILIATION PROCEEDINGS
operation in promoting a settlement. The role of the conciliator is delicate and extremely crucial, and
only an impartial body can instil confidence in the disputants. In this context, the government should
examine whether the separation/removal of conciliation service from the stranglehold of the Ministry of
Labour and the creation of an "autonomous government [conciliation] agency" would not be expedient.
By establishing such an agency, it may be possible "to insulate the service from possible subjection to
partisan political pressures as well as to ensure^ the building up of a specialised and dedicated career
service." The conciliation process demands that the authority has requisite knowledge of the collective
bargaining process. He should be a staunch believer in it, encourage it and minimise his role as a
mediator. However this cannot be one of a silent spectator but should be that of a representative of
public interest. At the commencement of the proceedings, the parties might have almost come near the
point of exchanging blows. Tempers would have been frayed with each party perhaps determined to
stick to its guns. The feeling that "invincibility" should be demonstrated might reign supreme. 7

An officer who begins to promote a settlement without,

(i) gaining a good grasp of the real differences,
(ii) finding out the facts leading to the dispute,
(iii) a feel of the emotionally charged atmosphere,

is comparable to a doctor who proceeds to treat a patient without knowing or analysing his
symptoms. The consequences can very easily be imagined. Since "[mediation [conciliation, in the
Indian context] is an emotionally charged process" the mediator has to ensure that "these human
emotions are constructively discharged as well as dealt with as substantive issues in disputes. The
conciliator must cool the frayed tempers, infuse confidence in the parties and impress upon them that
he has thoroughly understood their problems. It is also his task to make each party "realise the
untenability of its original position and insert in their minds areas of reasonable expectation." In the
course of proceedings, each party would assert the Tightness of its stand, paint its own righteousness
in bold letters and try to expose the stark rigidity and naked unreasonableness of the other's stand.
The officer should, therefore, endeavour "to deflate the inflated misunderstandings...and enable them
to see the reasonableness of the other party's point of view...." In India, especially, because of the
hopeless state of the workmen in unorganised sectors, their illiteracy and ignorance, lack of
bargaining power, the conciliator's role would become much more significant.

According to Simkin, the conciliation officer should possess a combination of qualities, namely,
(i) "the wit of the Irish";
(ii) "the physical endurance of the marathon runner";
(iii) "the guile of MachiavelU";
(iv) "the personality-probing skills of a good psychiatrist";
(v) "the hide of a rhinoceros";
(vi) "the wisdom of Solomon";
(vii) "demonstrated integrity and impartiality"; and
(viii) "firm faith in voluntarism in contrast to dictation."8

The foregoing may probably give an indication of the delicate and crucial role to be played by the
conciliator. His functions call for varied qualities including tons of patience and perseverance. "Proper
selection of personnel, adequate pre-job training and periodic in-service training" might help in making
the system of conciliation effective. The role of any one in the conciliation drama cannot, however, be

7
C.P. Ghosh Guide to Labour Law in Construction Industry & it’s Management, (B.C. Publication’s: Kolkata, 2014). 89
8
Ibid.
11 | P a g e CONCLUSION OF CONCILIATION PROCEEDINGS
over emphasised. For the process to be successful, right spirit, co-operation, understanding and sincerity
on the part of all concerned, would be required

(4) A COMPARISON OF INDIA AND THE UNITED STATES

Although labor laws in both the United States and India are derived primarily from British labor
legislation, there have been significant differences in the way the laws of the two countries have evolved
over time. American legislation has been largely influenced by the free enterprise management
philosophy, resulting in the fact that collective bargaining is not a compulsory but an optional process.
In the Indian situation, labor legislation was designed to prevent employer-employee conflicts from
hindering rapid economic development. In addition, the Indian legislation is based on the assumption
that labor unions are weak and will remain weak. Consequently, the legislation and collective bargaining
framework that have evolved are designed to protect labor.

A. Mediation and Conciliation

For example, in the private sector in the United States, the process of mediation is very similar to
the Indian conciliation system described earlier in this article. Like the Indian conciliator, the
American mediator also does not have the power to dictate a binding settlement on the parties, but
instead tries to arrive at an agreement by persuasion, discussion and the subtle use of pressure on
both parties. Mediation is the first form of intervention in most disputes in the private and public
sectors. The difference between the two systems lies mainly in the fact that in India, once
conciliation proceedings are instituted, the conciliation officer often may prohibit strikes during the
pendency of conciliation proceedings. In the United States a mediator does not have this authority. 9

The United States Federal Mediation and Conciliation Service is a commendable organization that
provides a well trained body of mediators, with enough time to handle various disputes, thus
rendering the service effective. In contrast, the Indian conciliation officers lack quality training,
infrastructural support systems such as information, legal and administrative support, and time to be
effective. Because of time constraints, an interest dispute referred to conciliation could take almost
six months to solve through the Indian conciliation system, especially since it goes through various
levels of conciliation by different conciliation officers. In the United States, there is only one level of
mediation and, consequently, decisions are reached much quicker.

B. Fact Finding

Fact finding in the United States’ system and in the courts of inquiry in India are also very
similar in that their role is restricted to the investigation and presentation of the facts. However,
fact finding in the United States assumes a broader function in that it not only investigates and
presents facts, but also has power to make recommendations. In contrast, the Indian courts of
inquiry do not possess these powers. Fact finding in the United States also involves an effort to
identify an acceptable compromise settlement that the parties can use as a basis for negotiating
an agreement. 10

In India, courts of inquiry are used very rarely in the private sector, and in the case of public
sector disputes, they are generally used to buy time, in order to let the emotions of the unions

9
K. Uday Kumar Labour Management in India, (New Delhi: Omega Publications, 2013). 215
10
Ibid.
12 | P a g e CONCLUSION OF CONCILIATION PROCEEDINGS
 cool off. The government may ban strikes while the inquiry process is instituted in India. In the
United States, although a majority of the states that have enacted bargaining legislation still have
fact finding as an important part of their impasse procedures, the bulk of the evidence suggests
that its effectiveness, both in avoiding strikes and in achieving settlements, has declined during
the last two decades. It would appear that in most states in the United States, failure of mediation
proceedings or bilateral negotiations will generally result in the dispute ending in arbitration,
rather than fact finding.

C. Voluntary Arbitration –

Private Sector In India, almost any kind of dispute may be brought before arbitration. In the
United States, it is primarily grievance disputes that reach the arbitration process, after the
dispute goes through the steps of the grievance procedure. Arbitration is very rarely used in
India, primarily because there is no corps of arbitrators available, and because management and
unions rarely agree on an arbitrator. It is possible that if there was a professional corps of
arbitrators available in India with voluntary arbitration rules and a code of ethics, there might be
an increase in the use of the arbitration procedure as a means of settling disputes in the private
sector.

The process of initiating arbitration proceedings and the actual arbitration are similar in both
countries. However, in India, where arbitration is used in rare cases, conciliation officers, or
Industrial Tribunals are normally used as arbitrators. Since they are employees of the
government, they do not charge a fee for their services. In the United States, frequent use of the
American Arbitration Association members could prove expensive to the parties, especially to
the unions who do not always have the large funds available to management. An arbitration
award in both countries is binding upon the parties. 11

However, there is a subtle difference since in the United States there is generally only one
bargaining representative for the entire firm and, consequently, an arbitration award may be said
to be binding on the whole firm. In India, laws do not restrict the number of bargaining agents in
any firm or industry and, consequently, an arbitration award by a private person (not an
employee of the government) is binding on the parties to the dispute only. However, if the
arbitration is conducted by one of the government officials, such as the conciliation officers or
industrial tribunals, the award will be binding on the whole firm, irrespective of the number of
unions that were the parties to the dispute. Consequently, this is a reason why private arbitration
has not been popular in India, unlike in the United States, where learned academicians,
professors and other persons may be frequently used as arbitrators. However, if the dispute is
referred to a private arbitrator as a result of conciliation proceedings, then the agreement
subsequently arrived at will be binding on the whole firm. However, in firms where there is only
one bargaining agent, a private arbitrator’s award is generally acceptable. 12

D. Compulsory Arbitration

In the United States, many states have introduced compulsory arbitration in connection with public
utility industries, in the event that there is a strike threat or strike. In India, the government has the
power to refer any dispute in the public utility industry to compulsory arbitration, adjudication of the

11
V.G. Goswami Labour And Industrial Law (Allahabad: Central Law Agency, 2004) 301.
12
Ibid
13 | P a g e CONCLUSION OF CONCILIATION PROCEEDINGS
 labor courts, or the industrial tribunals. Generally, depending on the nature of the dispute, a
reference is made to labor courts or tribunals since there is no separate cadre of arbitrators.

However, most contracts in the public utility services in India contain a clause providing that
disputes arising out of interpretation of contract terms will be left to the arbitration of a conciliation
officer or industrial tribunal. The primary difference between arbitration awards and the labor courts
and industrial tribunals in India, is that an arbitration award is final and binding, while the decisions
of the labor courts and tribunals are legal decisions that may be either appealed or used as precedent
in other cases.

There is only one process of arbitration in India, unlike in the United States where there are several
variants of the arbitration process. For example, final offer arbitration exists where the arbitrator
does not make an award based on demands made by both parties, but chooses between one or the
other list of demands for his award.

Arbitration is generally a time bound procedure in the United States making it one of the most
effective and speedy methods of solving disputes. There is no fixed time frame for arbitration in
India, but a time may be specified when the government refers a public utility dispute to arbitration.
Arbitration is more widely used than any other method of dispute resolution in the public sector in
the United States. It has been argued that the extensive dependence of the parties on the arbitration
process in the United States has had a “chilling” and “narcotic” effect on bilateral negotiations. The
parallel in India is that such effects are due to excessive dependence on adjudication through labor
courts and tribunals.

In terms of overall effectiveness of the dispute settlement machinery, figures reported regarding the
number of disputes successfully settled in India do not indicate a very high rate of success. It is felt
that labor legislation must undergo significant changes in order for this machinery to be more
effective. One of the greatest sources of disputes stems from rampant inter union rivalry resulting
from the multiplicity of unions. A law regarding the recognition of a single bargaining agent in each
organization will go a long way toward reducing industrial disputes. Although a bill to this effect
was introduced in Parliament in 1978, it did not receive Parliament’s support. Politicians,
understandably, will be reluctant to support a bill of this nature, since it will restrict the number of
trade unions on whom they largely depend for their support

14 | P a g e CONCLUSION OF CONCILIATION PROCEEDINGS

(5). CONCLUSION AND SUGGESTION

Industrial disputes cam be treated as an index variable for the industrial relations situation of a country.
Industrial relations actors, i.e. government, employers, management, trade unions and workers have
earnestly desired to achieve harmonious industrial relations. In the present study industrial disputes
denote work stoppages as well as those differences that are reported and settled through the industrial
relations machinery. A comparative analysis of strikes and lock out suggests that in absolute terms over
the period of study the phenomenon of rising and emerging lock out started appearing on the industrial
relations scene.

In 2006, 31 industrial disputes resulted in strike action. This is the highest number since 1989. In spite if
this, 2006 cannot be characterised as a year of great industrial unrest. A total of 11 thousand workers
were involved in industrial action in 2006; in 2005 this was 29 thousand, and in 2004 104 thousand. At
16 thousand, the number of working days lost as a result of industrial action was substantially lower in
2006 than in preceding years. In 13 disputes, the duration of the strike was less than 1 day and in 17
cases it lasted 5 working days or longer. There were a few very long strikes, but as they involved only
few workers relatively few working days were lost. Most working days are lost through disputes about
privatisation or takeovers, and negotiations about collective labour agreements. Both these cost about
4.5 thousand working days. Strikes connected with closures cost 4 thousand working days. In India
dispute resolution process mainly involves -Litigation, Arbitration, Conciliation, meditation.

Despite best effort of all, dispute arises among people and organisation. It is important to discover these
clashes of interest as quickly as possible through such means as gripe boxes, direct observation of
behaviour, analysis of records. An open door attitude, personnel counselors, morale surveys, exit
interviews, ombudsmen and ombudswomen and grievance procedure. A grievance is a complaint that
the employees feels is serious enough to justify some types of formal submission and action. It may be
ridiculous and justified, but whether or not it is a grievance is up to the employees and not to the
management.

The usual steps in grievance procedure are:

(i) Conference among aggrieved employee, the supervisor and the union steward.
(ii) Conference between middle management and middle union leadership.
(iii) Conference between top management and top union leadership
(iv) Arbitration

The manner of processing the grievance on any one level should follow the sequence of functions found
in the scientific method i.e. Receive and define the grievance, get the facts, analyse and decide, apply the
answer and follow up Just as the individual makes certain demands upon the organization, so the
organization expects certain things from its members. Codes of behaviour are established. For those
individual who do not choose to confirm to the codes, negative disciplinary action must be applied. The
supervisor should seek to condition behaviour and not merely to punish.

In the application of penalties, the following guides have been found to be valuable:

(i) Disciplinary action should be administrative in private;

(ii) An application of a penalty should always carry with it an explanation of what constitute
proper behaviour;
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 (iii) Disciplinary action should be applied by the immediate supervisor;
(iv) Promptness is important in the taking of disciplinary action;
(v) Consistency in penalty is highly essential;
(vi) An immediate supervisor should never be disciplined in the presence of his or her own
subordinate;
(vii) After the disciplinary action has been taken, the manger should attempt to assume a normal
attitude towards the employee.

The basic method of conflict resolution advocated by behavioral scientist is problem solving and
confrontation, a stance that approaches the 9, 9 leadership style in the managerial grid. Other commonly
used approaches are withdrawal, smoothing, establishment subordinate goals, compromise, meditation,
arbitration, and forcing. The conflict must be managed to produce long term organizational
effectiveness. Industrial relations are never a one-sided game but depend on the mutual understanding,
faith, and goodwill of all the participants in the industrial relation system. The positive attitude of one
party towards the whole issue demands the positive of the others. For effective dispute resolution and
settlement of differences between labour and management, the best course is to prevent differences from
developing into disputes. Even when the differences have developed into disputes, it is desirable to
secure their settlement through negotiations between the two parties. It must be tried by the concerned
parties to minimize the duration of strikes and lockouts to assure the minimum loss of production and
wages. It is also suggested that to curb the growing menace of lock-outs every effort should be made to
prevent them, as they are highly intensive. For this purpose, new legislations may be enacted and the
existing laws may be amended. One of the reasons for the present state of affairs is the poor
performance and inefficiency of the State’s industrial relations machinery. Therefore there is a need to
reorganize, reorient, and restructure this machinery according to the present day needs. There should be
also an attempt to eliminate the corrupt practices, malpractices and irregularities committed by the
officials.

Advantages Of Conciliation

For resolving industrial disputes of almost any kind pertaining to contracts, conciliation has proved to be
an alternative which is more flexible than both arbitration and litigation for the simple reason that it is
completely voluntary.

At any stage in a conciliation proceeding, parties can withdraw without any kind of prejudice to their
own legal position.

Conciliation facilitates in settling the matters at the very threshold of the dispute. Hence it helps in
avoidance of protracted litigation efforts at any of the courts. Also, because of the fact that we can
schedule conciliation very early in the dispute, a settlement is reached much more early than litigation.

The parties concerned get engaged directly while negotiating the settlement.

Since the conciliation officer is a neutral third party, he can look at the dispute objectively and hence can
assist the parties involved in exploring those alternatives which they themselves might not have
considered.

The parties involved cut costs and save a lot of money which is otherwise spent on unproductive things
such as traveling to the courts and the legal costs involved in retaining of counsels and litigation and also
the staff time.
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The parties are free to choose conciliators and they can carefully select them looking at their knowledge
and experience.

The process of conciliation significantly improves the probability of the parties involved in continuing in
an amicable business relationship both during the proceedings and even after it.

The special needs of the parties can be catered to by making the creative solutions a part of the
settlement.

Throughout the course of the conciliation process, confidentiality is strictly maintained with respect to
the information exchanged and the offers and counter offers that are there as solutions. Also whatever
information is exchanged in this process may not be leaked out and used as evidence in any judicial,
arbitral or other proceedings.

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BIBLIOGRAPHY

BOOKS:-

(i) Malik P.L. Labour And Industrial Law,( Lucknow: Eastern Book Company, 2007).

(ii) Misra S.N. Labour And Industrial Law,(Allahabad: Central Law Publication, 2014).

(iii) Ghosh C.P. Guide to Labour Law in Construction Industry & it’s Management, (B.C.
Publication’s: Kolkata, 2014).

(iv) Kumar H.L. Disciplinary Proceedings in Industries (New Delhi: Universal Law
Publishing, 2010).

(v) Kumar K. Uday Labour Management in India, (New Delhi: Omega Publications, 2013).

(vi) Goswami V.G. Labour And Industrial Law (Allahabad: Central Law Agency, 2004).

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