Dear Seniors,
I am working in a PSU Iron Mine. Last year a Trade Union had raised an ID Case before RLC(C) Office concerning some issues of contract labourers and the conciliation proceedings are on. In the mean time, Registrar of Trade Union has cancelled the Union's registration.
Can we refuse to sit for any further conciliation proceedings before RLC(C) based on the cause that, the union is a de-registered one?
From India, Calcutta
1I am working in a PSU Iron Mine. Last year a Trade Union had raised an ID Case before RLC(C) Office concerning some issues of contract labourers and the conciliation proceedings are on. In the mean time, Registrar of Trade Union has cancelled the Union's registration.
Can we refuse to sit for any further conciliation proceedings before RLC(C) based on the cause that, the union is a de-registered one?
From India, Calcutta
I think you are raising this question on behalf of the management. The answer is ' NO'. It is not necessary that an industrial dispute should be raised by a registered Trade Union only. The subsequent cancellation of its registration by the Registrar of the Trade Unions under the Trade Unions Act,1926, therefore, will not alter the Union's representative character in a dispute already raised by it.
From India, Salem
From India, Salem
Thanks Sir. Yes you are right, I am representing Management on the referred ID case.
However, Sir, I would like to refer to cl.36(a) of I D Act, wherein it is stated that: A workmen who is a party to a dispute shall be entitled to be represented in any proceeding by any member of the executive or other office bearer of a registered trade union.
So, won't the de-registration of the union, will take away it's right to represent the workmen in the conciliation proceedings?
From India, Calcutta
However, Sir, I would like to refer to cl.36(a) of I D Act, wherein it is stated that: A workmen who is a party to a dispute shall be entitled to be represented in any proceeding by any member of the executive or other office bearer of a registered trade union.
So, won't the de-registration of the union, will take away it's right to represent the workmen in the conciliation proceedings?
From India, Calcutta
Dear Baishali,
Yours is a very intelligent question though sprouting out from a highly technical point of view. Anyway let me try the answer as far as I can. Before coming to your latest question, first and foremost, I would like to point out that the ultimate object of the Industrial Disputes Act,1947 is the speedy and peaceful resolution of disputes between the partners of production and hence the entire scheme of the Act is designed in such a way that collective bargaining is the under-current in the modes of redressal. In that perspective I would suggest that Sec.36 which deals with representation of parties should be read in conjunction with Sec.2k which defines what an industrial dispute is.Except a dispute relating to the non-employment of an individual workman, all other disputes under the Industrial Disputes Act,1947 can only be raised by the body of workmen or trade union based on the principle of espousal theory.Therefore in a collective dispute u/s 2k, trade union has an inseparable dual role - one as a party to the dispute vis-a-vis the employer and the other as a representative of the workmen whose cause is espoused and this is the quintessence of my earlier answer.Coming to your present question, regarding his right to representation u/s 36(1), a workman has got 3 choices as per clauses (a), (b) and (c) of the Section and he can exercise any one of the choices according to its availability.I think in a situation like what you have mentioned, the problem is to be viewed from the perspective of the parties to the dispute and not from that of the representatives.
From India, Salem
Yours is a very intelligent question though sprouting out from a highly technical point of view. Anyway let me try the answer as far as I can. Before coming to your latest question, first and foremost, I would like to point out that the ultimate object of the Industrial Disputes Act,1947 is the speedy and peaceful resolution of disputes between the partners of production and hence the entire scheme of the Act is designed in such a way that collective bargaining is the under-current in the modes of redressal. In that perspective I would suggest that Sec.36 which deals with representation of parties should be read in conjunction with Sec.2k which defines what an industrial dispute is.Except a dispute relating to the non-employment of an individual workman, all other disputes under the Industrial Disputes Act,1947 can only be raised by the body of workmen or trade union based on the principle of espousal theory.Therefore in a collective dispute u/s 2k, trade union has an inseparable dual role - one as a party to the dispute vis-a-vis the employer and the other as a representative of the workmen whose cause is espoused and this is the quintessence of my earlier answer.Coming to your present question, regarding his right to representation u/s 36(1), a workman has got 3 choices as per clauses (a), (b) and (c) of the Section and he can exercise any one of the choices according to its availability.I think in a situation like what you have mentioned, the problem is to be viewed from the perspective of the parties to the dispute and not from that of the representatives.
From India, Salem
R/Sir,
In my opinion, according to Sec. 36 of ID act, out side representation is barred by the clause, and many judgments also in favour that even ADVOCATES may not represent management and workmen in labour court. Since there is huge difference between both parties...one is very strong and other is very poor.....Org. have much resources....ID act wants to bring equality....
Representation must be from organization only,provided by this clause. Sir, I would like to mention...in this particular case when trade union registration has cancelled....only concerned workman represent the case.....no outside leader of trade union may represent the case....Sir, am I right...please let me know.
Regards,
Manish Bali
From India, Delhi
In my opinion, according to Sec. 36 of ID act, out side representation is barred by the clause, and many judgments also in favour that even ADVOCATES may not represent management and workmen in labour court. Since there is huge difference between both parties...one is very strong and other is very poor.....Org. have much resources....ID act wants to bring equality....
Representation must be from organization only,provided by this clause. Sir, I would like to mention...in this particular case when trade union registration has cancelled....only concerned workman represent the case.....no outside leader of trade union may represent the case....Sir, am I right...please let me know.
Regards,
Manish Bali
From India, Delhi
Sir, The dispute is concerning the issues of contract labour and if there is no union of regular workmen sponsoring it, then the conciliation proceedings cannot continue. Since there is no master-servant relationship with the contract labour and moreover the trade union of regular workers is not in existence on this date, you can very well seek that the conciliation proceedings be closed. The question of outside representation as per Section 36 is subsidiary to the main issue and it would arise only if the dispute persist. KK
From India, Bhopal
From India, Bhopal
What Mr. Umakantan said has substance having regard to he spirit and objectives of the Industrial Disputes Act and on conjoint reading of the relevant provisions of the ID Act as he has so convincingly brought out.But I would like to put forward a different view.Sec.36 of the ID Act is a specific section with regard to representation of workmen and employer in any proceeding under the ID Act and no other Section. deals with subject.Therefore,if any issue with regard to the representation arises, it needs to resolved in accordance with the provisions of Sec.36 only.The rationale for insisting on a registered trade union as Representative of workmen, can be seen from the provisions of sec.10 of the Trade Unions Act which specifies the grounds on which the Registration can be cancelled.Some of the ground are that the trade union ceases to exist or obtained registration by fraud or the registered union ceases to have requisite number of workmen. If so,what if the grounds of cancellation is one of the above and what becomes of the fate of the settlement if the management arrives with such union assuming that it ceased to exist on the date of the settlement on account of cancellation of registration, more so when it is a collective dispute.
The proper course will be to bring to the notice of the Conciliation Officer the fact of cancellation of registration and the probable consequences thereof and abide by his ruling.it is always possible to have two or more views on a legal issue and this is one view that is possible..
B.Saikumar.
From India, Mumbai
The proper course will be to bring to the notice of the Conciliation Officer the fact of cancellation of registration and the probable consequences thereof and abide by his ruling.it is always possible to have two or more views on a legal issue and this is one view that is possible..
B.Saikumar.
From India, Mumbai
Thanks a lot, Saikumar, for your view-point on the matter that has been in cold-storage for long despite the recommendations of the higher judiciary for a suitable amendment of Sec.36 of the Act. However, I am compelled to view it differently based on the perception of effective resolution of industrial disputes. Of course if the registration of a union is cancelled on account of fraud and the like, certainly it will lose its right to representation as per cl (a) of Sec.36(1).Apart from that it also loses its status of a body corporate as well as immunity from civil suit in certain cases.But, it appears to me that de-registration can not completly take away its right to representation in industrial disputes for the simple reason unions are accorded registration only after their formation. After de-registration, its status will be that of an unregistered trade union. Hence, the boafides of any settlement in which such a union is a signatory , I feel, can not be tested on the anvil of its de-registration alone.
From India, Salem
From India, Salem
Thanks for your response, Mr.Umakantan.I have great regard for your views since they are always based on merit and substance.I have only provided a different perspective to the issue of non-registration of the trade union, having regard to the possible causes for cancellation of registration and the prospect of a settlement, if arrived at with such union,being challenged by a rival union, if any.However your view has substance since neither section 2(k) nor section 12 of the Industrial Disputes Act nowhere refers to registered trade union. I therefore, refrained from stating that such union is totally barred from participating in conciliation but preferred to leave it to the Conciliation Officer who will investigate into the facts and effects of cancellation of registration on the settlement before he takes a well considered decision, because a settlement arrived at in conciliation is presumed to be fair and just and commands as much merit as that of an award, notwithstanding intervening issues like cancellation of registration
B.Saikumar
HR & Labour law advisor
From India, Mumbai
B.Saikumar
HR & Labour law advisor
From India, Mumbai
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Trade Union-De-recogn ition-Delhi High Court.docx
REGISTRATION & LICENSING UNDER DELHI S&E ACT.pdf