W.B.

NATIONAL UNIVERSITY of JURIDICAL SCIENCES

KOLKATA
End Term Examination Winter Semester 2011-2012

V Semester

INTRODUCTION TO LABOUR LAW

Time: Three Hours Marks: 60

Instructions
You are required to answer only one question from Part A.
All the questions in Part B are compulsory.
Read the questions properly.
Kindly use relevant cases and statutory provisions in support of your answers.
In case of any gap or omission in facts (provided for a question) that prevents you from a forming a conclusive
opinion, please state so in your answer
Students are allowed to consult Bare Acts, Reading Materials, Notes, Journals, Books or any other material
during the exam.
Students are however not allowed to use a computer or any other electronic instrument.

PART-A

1. In so far as B.R. Singh v Union of India recognised strike as a form of demonstration and Communist
Party of India (M) v Bharat Kumar Palicha [(1998) 1 SCC 201] reiterated the distinction between strike
and bandh while declaring bandhs to be illegal and unconstitutional, it would be correct to say that
the right to strike has acquired the status of a fundamental right in India. Comment. [Marks:8]

2. While we agree that the language of Section 13-A is not very clear, it cannot certainly be understood a creating a
forum for adjudication of industrial disputes involving the application and/or interpretation of the Standing Orders.
The above statement of the Supreme Court of India is not only contrary to the legislative intent
underlying the insertion of Section 13-A into the Industrial Employment (Standing Orders) Act but
also renders impracticable the implementation of the provision. Discuss. [Marks 8]

PART-B

3. Principle of collective bargaining is the bedrock of the Industrial Disputes Act, 1947 and the interests of the
individual workmen necessarily recede to the background under the Act.
Would it be correct to assert that Indian judiciarys fidelity to the aforementioned principle has
meant that the rights and interests of individual workers have been sacrificed at the altar of the
collective in Indian Labour and Industrial Law? Discuss with support of relevant cases and
statutory provisions. [Marks: 12]
4. Khurana and Khurana Power Corporation, a private company, incorporated under the
Companies Act, 1956, operated the Jai Mata Di Thermal Power Plant (JMDTPP), situated in 32
Khosla Kunj, New Sapna Vihar, Sajjanpur with 88 employees. There was an interruption in the
supply of coal to JMDTPP between February 16 and February 28, 2011 as a result of a Bandh in
Raniganj, the main source of coal for the Plant. Consequently, Kishan Khurana, the Chairman
and Managing Director (CMD) of KKPC issued a notice on March 4, 2011 to all the employees
in the plant that stated: Due to shortage of supply of coal, the JMDTPP would be closed from
March 5 to March 14, 2011 and as a result, the employees of the Plant would not be given work
on the said days.

When the JMDTPP resumed work on March 15, 2011, workers of the plant led by Chironji Lal
Khosla, who was also the Regional Convenor, Bharatiya Shaakahaari Mazdoor Sangh (BSMS), a
national level trade union, demanded full wages for the period between March 5 to March 14,
2011 on the ground that the shutdown of JMDTPP was an illegal and unjustified lock-out or, in
the alternative, was a closure which was illegal since no notice was served nor any permission
sought from the Appropriate Government. Chironji Lal Khosla also argued that even if the shut-
down did not amount to a lock-out or a closure, it was a lay-off and was illegal as the
requirements of neither Section 25M nor Section 25C had been complied with.

KKPC CMD, Kishan Khurana in a meeting with the office-bearers of the BSMS, refused to
accede to these demands. The workmen led by BSMS wrote to the Assistant Commissioner of
Labour, State Government of Sajjanpur seeking a reference to an Industrial Tribunal under
Section 10 (1) of the Industrial Disputes Act. The dispute was accordingly referred to a Tribunal
on April 30, 2011.

Part A
Kishan Khurana has sought your advice on whether:
a) The State Government of Sajjanpur is the Appropriate Government in this case and thereby
competent to refer the dispute;
b) The power of reference under Section 10 (1) of the Industrial Disputes Act, 1947 is
amenable to judicial review and whether there are sufficient grounds to challenge the legality
of the reference in the instant case;
c) Whether the shut-down of JMDTPP between March 5 and March 14, 2011 required prior
permission of the Appropriate Government; and
d) Whether KKPC, as the employer, would be liable to pay any compensation or wages for the
aforesaid shutdown?
Please advise in accordance with the relevant statutory law and decided cases?
(Marks 16)

Part B
On September 18, 2011, BSMS, called for a general strike for the next day, September 19, 2011 in
protest against the announcement of a peace treaty between Madan Mohan Singh, Prime Minister
of India and General Mogambo, the President of Berzerkistan.

Workers of the JMDTPP led by Chironji Lal Khosla, also joined the strike. As a result of the
strike and stoppage of work for one day, Khurana and Khurana Power Corporation suffered a
loss of Rs1, 50, 000. Moreover, some of the workers led by RK Munjaal, Vijender, Balwant Sahni
and Asif Iqbal indulged in acts of vandalism and destroyed some equipments.

As a result, the management of JMDTPP dismissed all the employees en masse without any
inquiry and filed a suit for damages before the District Court, Sajjanpur. The BSMS, JMDTPP
Branch raised an industrial dispute over the dismissal which was referred by mutual agreement to
an arbitrator under S. 10-A of the Industrial Disputes Act, 1947.

The Arbitrator affirmed the dismissal of RK Munjaal, Vijender, Balwant Sahni and Asif Iqbal but
directed the reinstatement of other employees. The Tribunal also directed the BSMS, JMDTPP
Branch to pay to Khurana and Khurana Power Corporation a sum of Rs. 1, 50, 000 in damages
as the strike was illegal.

The BSMS, JMDTPP Branch filed a writ petition before the Sajjanpur High Court claiming that:
a) The strike was not illegal.
b) Dismissal from services of RK Munjaal, Vijender, Balwant Sahni and Asif Iqbal is bad in law.
c) Since BSMS enjoyed immunity from civil liability under Trade Unions Act, 1926, the arbitral
award was vitiated by an error of law in so far as it directed the Union to pay a sum of Rs 1,
50, 000 in damages.
d) In the alternative, the arbitral proceeding was in violation of Section 10-A of the Industrial
Disputes Act, 1947 since an industrial dispute was already pending at the time of the
agreement.

The KKPC apart from contesting the aforesaid claims, also argued that
a) An arbitral award under Industrial Disputes Act is not subject to judicial review.
 Please decide the case with the use of relevant statutory provisions and case-law. (Marks
12)

5. Lee Van Cleef, a retired Army Officer, set-up a Private Security Service named, Colonel
Mortimers in Badarpur, New Delhi in May 2002. On June 2002, Mr. Van Cleef, as the sole
proprietor of Colonel Mortimers, entered into a contract with M/s Octavian Legal Services, a
Legal Process Outsourcing (LPO) Firm, [comprising of 2 partners and 18 directly employed staff
under the designation of Research Associate] wherein he agreed to provide 8 Security Guards for
a term of 3 years for a monthly payment of Rs 1, 20, 000.

According to the terms of the contract, the guards were to be selected by Mr. Van Cleef or any
other designated employee of Colonel Mortimers. However, the Guards were required to work
in accordance with directions issued by Management of M/s Octavian Legal Services and were to
be governed by the same disciplinary rules as other workers of the firm. The contract further
specified that the Guards were to be recruited in 2 grades Shift Assistant (6 posts) and Shift
Leader (2 posts). Promotion from Shift Assistant to the grade of Shift Leader was to be made by
Colonel Mortimers in consultation with M/s Octavian Legal Services. Shift Assistants were to be
paid Rs 8000/- per month whereas the Shift Leaders were to paid Rs 11,000/- month. Any
revision to the said wage rates during the term of the contract could be done by Colonel
Mortimers only after the approval of M/s Octavian Legal Services. Further, the contract
stipulated that the wages were to be paid to the guards directly by M/s Octavian Legal Services
and the consequent wage-bill were to be set-off from the contractual fees payable to Colonel
Mortimers.

In pursuance of the aforesaid contractual arrangement, Mr. Lee Van Cleef hired eight persons-
Indio, Tuco, Blondiee, Harmonica, Cheyenne, Frank Seamus, Ed McBain and Padre Ramirez - as
Security Guards for M/s Octavian Legal Services. These persons worked from June 2002 to June
2005. Subsequently, the contract between Colonel Mortimers and M/s Octavian Legal Services
was renewed first in 2005 and then in 2008 for a term of another 3 years. As a result, the
aforesaid workers continued working for M/s Octavian Legal Services, through Colonel
Mortimers.

In November 2010, M/s Octavian Legal Services decided to close down its operation due to a
marked decline for demand for its services due to the global economic slowdown. Consequently,
its contract with Colonel Mortimers was terminated on November 30, 2010 and the eight
security guards were permanently relieved of their duties.

Indio, Tuco, Blondiee, Harmonica, Cheyenne, Frank Seamus, Ed McBain and Padre Ramirez met
Mazhar Iqbal, the General Secretary of National Trade Union Congress (NTUC), seeking the
help of Union in securing some financial protection for them. NTUC raised a dispute on behalf
of these security guards wherein it claimed that M/s Octavian Legal Services were their employer,
that the latter had not obtained the permission of the Appropriate Government before closing
down its business. The Union further claimed that Indio, Tuco, Blondiee, Harmonica, Cheyenne,
Frank Seamus, Ed McBain and Padre Ramirez were entitled to notice and compensation from
M/s Octavian Legal Services.

After the dispute was referred to the Tribunal by the Appropriate Government, M/s Octavian
Legal Services argued that it was not an industry, that its Security Guards were not its employees,
and that even otherwise, they could not be considered as workmen, and that it was not required
to seek permission or serve any notice before closing down its business.

Please decide the case with the help of relevant statutory provisions and case-law.
(Marks 12)