32 Offences by companies, etc. - Where a person committing an offence under this Act is a company, or other body corporate, or an association of persons (whether incorporated or set), every director, manager, secretary, agent or other officer or person concerned with the management thereof, shall unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.


33 Conditions of service, etc. to remain unchanged under certain circumstances during pendency or proceedings.

      (1) During the pendency of any conciliation proceeding before a Conciliation Officer of a Board or of any Proceeding before 1[an arbitrator or a Labour Court or Tribunal or National Tribunal] in respect of an industrial dispute, no employer shall -
     
     (a) in regard to any matter connected with the dispute, alter to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or
     
     (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceedings is pending.
     
     (2) During the pendency of any such proceeding in respect of nay industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman -
     
     (a) alter, in regard to any matter not connected with the dispute the conditions of service applicable to the workman immediately before the commencement of such proceeding; or
     
     (b) for any misconduct connected with the dispute, discharge or punish whether by dismissal or otherwise, that workman :
     


      Provided that no such workman shall be discharged, or dismissed, unless he has been paid wages for one month and an application has been made by

 

the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

     (3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman connected in such dispute -

     (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or

     (b) by discharging or punishing whether by dismissal or otherwise, such protected workman; save with the express permission in writing of the authority before which the proceeding is pending.

     Explanation - For the purposes of this sub-section, a "protected workman", in relation to an establishment means a workman who, being 1[a member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

     (4) In every establishment, the number of workmen to be recongnised as protected workmen for the purposes of sub-section (3) shall be one percent, of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workman among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recongnised as protected workmen.

     (5) Where an employer makes an application to Conciliation Officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2), for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, 2[within a period of three months from the date of receipt of such application] such order in relation thereto as it may think fit:

     3[Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit :

     Provided further that no proceedings before any such authority shall lapse merely on the ground that nay period specified in this sub-section had expired without such proceeding being completed.]

     NOTES - Scope of section 33(2) b : Lolla Ram V. Management, AIR 1978 SC 1004. Sections 33 and 10- Industrial Tribunal or Labour Court on finding the domestic enquiry invalid is under no obligation to suo motu opportunity to the management to adduce additional evidence in support or its orders against the workman : Shankar Chakradhari V. Britania Biscuit Co., 1979) 4 SCC 371.


     
      33-A Special provision for adjudication as to whether conditions of service, etc. changed during pendency of proceedings. - Where an employer contravenes the provisions of section 33 during the pendency of proceedings

 

1[before a conciliation officer Board, an arbitrator, a Labour Court, Tribunal or National Tribunal] any employee aggrieved by such contravention, may make a complaint in writing 2[in the prescribed manner, -

     (a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and

     (b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute has referred to or pending before it, in accordance with the provisions of his this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.]

33-B Power to transfer certain proceedings. -

     (1) The appropriate Government may by order in writing of reasons to be stated therein, withdraw any proceedings under this Act pending before a Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National to which the proceeding is so transferred may, subject to special direction in the order of transfer proceed either day novo or from the stage at which it was so transferred :

     Provided that where a proceeding under section 33 or section 33-A is pending before a Tribunal or National Tribunal the proceeding may also be transferred to a Labour Court,

     (2) Without prejudice to the provisions of sub-section (1), any Tribunal or National Tribunal, if so authorised by the appropriate Government may transfer any proceeding under section 33 or section 33-A pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette, and the Labour Court to which proceeding is so transferred shall dispose of the same.

33-C Recovery of money due from an employer, -

     (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of 3[Chapter V-A or Chapter V-B] the workman himself or any other person authorised by him in writing in this behalf or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, makes an application to the appropriate Government for the recovery of money due to him and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for the amount to the Collector who shall proceed to recover the same in the same manner as an arrears of land revenue :

     Provided that every such application shall be made within one year from the date of which the money became due to the workman from the employer :

     Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government satisfied that the applicant have sufficient cause for not making the application within the said period.

 

     (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount form which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in the behalf by the appropriate Government, 1[within a period not exceeding three months]:

     2[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be record in writing, extend such period by such further period as he may think fit.]

     (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall after taking such evidence as may be necessary submit a report to the Labour Court , and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case.

     (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1).

     (5) Where workmen employed under the same employer are entitled to receive form him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen.

     Explanation. - In this section "Labour Court" includes any Court constituted under may any law relating to investigation and settlement of industrial disputes in force in any State.

     NOTES. - A petition under section 33-C is not barred by the provisions of Payment of Wages Act also : Mohd Ismael V. Presiding Officer, 1980 Lab IC 112 (FB). Application for payment of gratuity does not lie under section 33-C(2) : State of Punjab V Labour Court, (1980) 1 SCC 4 An application by workmen for money compensation of existing benefits is maintainable : AIR 1984 SC 27 : 1983 All. LJ 1102. For method of compensation of back wages, see AIR 1984 SC 320.

34. Cognizance of offences.

     (1) No Court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government.

     (2) No Court inferior to the 3[a Metropolitan Magistrate or a Judicial Magistrate of the first class] shall try any offence punishable under this Act.

35. Protection of persons.

     (1) No person refusing to take part or to continue to take part in any strike or lock-out which is illegal under this Act shall, by reason of such refusal or by reason of any action taken by him under this section, be subject to expulsion form any trade union or society or to any fine or penalty, or to deprivation of any right or benefit of which he or his legal representatives would otherwise be entitled, be liable to be placed in any respect either directly or indirectly, under any disability or at any disability or at any disadvantage as compared with other members of

 

     the union or society, anything to be contrary in rules of a trade union or society notwithstanding.

     Nothing in this rules of a trade union or a society requiring the settlement of dispute in any manner shall apply any proceeding for enforcing any right or exemption secured by this section, and in any proceeding the Civil Court may in lieu of ordering a person who ha been expelled from membership of a trade union or society to be restored to membership, order that he be paid out of the funds of the trade union or society, such sum by way of compensation or damages as that Court thinks just.

36. Representation of ht parties. -
   
      (1) A workman who is a party to a dispute hall be entitled to be represented in any proceeding under this Act by -

     (a) 1[any member of the executive or other office bearer] of a registered trade union of which he is a member;

     (b) 2[any member of the executive or other office bearer] of a registered trade unions to which the trade union referred to in clause (a) is affiliated;

     (c) Where the worker is not a member of any trade union , by 1[any member of the executive or other office bearer] of any trade union connected with or by any other workman employed in, the industry in which the worker is employed and authorised in such manner as may be prescribed.

     (2) An employer who is party to a dispute shall be entitled to be represented in any proceeding under this Act by-

     (a) an officer of an association of employers of which he is a member;

     (b) an officer of a federation of association of employers to which the association referred to in clause (a) is affiliated;

     (c) where the employer is not a member of any association of employers by an officer of any association of employers connected with, or by any other employer engaged in the industry in which the employer is engaged, and authorised in such manner as may be prescribed.

     (3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceeding, before Court.

     (4) In any proceeding before a Labour Court, Tribunal or National Tribunal a party to a dispute may be prescribed by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.

36.-A Power to remove difficulties.

      (1) If, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal, as it may think fit.

     (2) The Labour Court, Tribunal or National Tribunal to which question is referred shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such parties.

 

     36-B Power to exempt. - Where the appropriate Government is satisfied in relation to any industrial establishment or undertaking or any class of industrial establishments or undertakings carried on by a department of that Government that adequate provisions exists for the investigation and settlement of industrial disputes in respect of workmen employed in such establishment or undertaking or class of establishments or undertakings, it may, by notification in the official Gazette, exempt, conditionally or unconditionally such establishment or undertaking or class or establishments or undertakings form all or any of the provisions of this Act.

     37 Protection of action taken under the Act. - No suit, prosecution or other legal proceedings shall be against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made the under.

     38 Power to make rules.

     (1) The appropriate Government may, subject to the condition of previous publication, make rules 2 for the purpose of giving effect to provisions of this Act.

     (2) In particular, and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely :-

     (a) the power and procedure of Conciliation Officers, Boards, Courts, Labour courts, Tribunals and National Tribunals including rule as to the summoning of witnesses, the production of documents relevant to the subject matter or an enquiry or investigation, the number of members necessary to form a quorum and the manner of submission of reports and awards;

     (aa) the form of arbitration agreement, the manner in which it may be signed by the parties, the manner in which a notification may be issued under sub-section (3-A) of section 10-A, the powers of the arbitrator named in the arbitration agreement and the procedure to be followed by him;

     (aaa) the appointment of assessors in proceedings under this Act;

     3[(ab) the constitution of Grievance Settlement Authorities referred to in section 9-C, the manner in which industrial disputes may be referred to such authorities for settlement, the procedure to be followed by such authorities in the proceedings in relation to disputes referred to b them and the period within such proceedings shall be completed;

     (b) the constitution and functions of and the filling of vacancies in Works Committees, and the procedure to be followed by such Committees in the discharge of their duties;

     (c) the allowance admissible to members of Courts, and Boards and presiding officers of Labour Courts, Tribunals and National Tribunals and to assessors and witnesses;

     (d) the ministerial establishment which may be allotted to a Court, Board, Labour Court, Tribunal or National Tribunal and the salaries and allowances payable to members of such establishments;

     (e) the manner in which and the persons by and to whom notice of strike or lock-out may be given and the manner in which such notice shall be communicated;

(f) the conditions subject to which parties may be represented by legal practitioners in proceedings under this Act before a Court, Labour Court, Tribunal or National Tribunal : ]

     (g) any other matters which is to be or may be prescribed.

     (3) Rules made under this section may provide that a contravention thereof shall be punishable with fine not exceeding fifty rupees.

     (4) All rupees made under this section shall, as soon as after they are made, be laid before the State legislature or, where the appropriate Government is the Central Government, before each Houses of Parliament.

     (5) Every rule made by the Central Government under this section shall be laid, as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in 1[two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule, or both the Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

39 Delegation of powers .- The appropriate Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also, -

     (a) where the appropriate Government is the Central Government, by such officer or authority subordinate to the Central Government or by the State Government or by such officer or authority subordinate to the State Government, as may be specified in the notification; and

     (b) where the appropriate Government is a State Government, by such officer or authority subordinate to the State Government, as may be specified in the notification.

40 Power to amend Schedule.

     (1) The appropriate Government may, if it is of opinion that it is expedient or necessary in the public interest so to do by notification in the Official Gazette, and to the First Schedule any industry, and on any such notification being issued, the First Schedule shall be deemed to be amended accordingly .

     (2) The Central Government may, by notification in the Official Gazette, add to or alter or amend the Second Schedule or the Third Schedule, and on any such notification being issued, the Second Schedule or the Third Schedule, as the case may be, shall be deemed to be amended accordingly.

     (3) Every such notification shall, as soon as possible after it is issued, be laid before the Legislature o the State, if the notification has been issued by a State Government, or before Parliament, if the notification has been issued by the State Government.

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