In the year
2010, the Parliament of India, by virtue of the Industrial Disputes (Amendment)
Act, 2010 (No. 24 of 2010), inter-alia,
inserted/added sub-sections (2) and (3) to Section 2A of the Industrial
Disputes Act, 1947. The amendment became effective from 15th September,
2010.
Section 2A, post
amendment, reads as under:-
"2A.
Dismissal, etc., of an individual workman to be deemed to be an industrial
dispute:-
(1)
Where any employer discharges, dismisses, retrenches or otherwise terminates
the services of an individual workman, any dispute or difference between that
workman and his employer connected with, or arising out of, such discharge,
dismissal, retrenchment or termination shall be deemed to be an industrial
dispute notwithstanding that no other workman nor any union of workmen is a
party to the dispute.
(2)
Notwithstanding anything contained in section 10, any such workman as is
specified in Sub-section (1) may, make an application direct to the Labour
Court or Tribunal for adjudication of the dispute referred to therein after the
expiry of three months from the date he has made the application to the
Conciliation Officer of the appropriate Government for conciliation of the
dispute, and in receipt of such application the Labour Court or Tribunal shall
have powers and jurisdiction to adjudicate upon the dispute, as if it were a
dispute referred to it by the appropriate Government in accordance with the
provisions of this Act and all the provisions of this Act shall apply in
relation to such adjudication as they apply in relation to an industrial
dispute referred to it by the appropriate Government.
(3)
The application referred to in sub-section (2) shall be made to the Labour
Court or Tribunal before the expiry of three years from the date of discharge,
dismissal, retrenchment or otherwise termination of service as specified in
sub-section (1)."
Section 2A(1)
contains a deeming provision with respect to disputes connected with or arising
out of discharge, dismissal, retrenchment or termination of services of a
workman. Section 2A(1) deems such a dispute of an individual workman to be an ‘industrial
dispute’ notwithstanding that no other workman, or any union of a workman, is a
party to the dispute.
Section 2A(2)
enables a workman, whose services have been terminated, to make an application directly
to the Labour Court/Industrial Tribunal for adjudication of the dispute
pertaining to termination of his services. Sub-section 2 prescribes that such
workman will have to first make an application to the Conciliation Officer for
conciliation of the dispute and, on expiry of forty five days from the date of
making such application, to directly approach the Labour Court/Industrial Tribunal
for adjudication of the dispute. As a result, the workman stands exempted from
awaiting the outcome of the conciliation and also the reference being made by
the Appropriate Government under Section 10 of the Industrial Disputes Act,
1947.
Section 2A(3)
provides that application under Section 2A(2) should be made to the Labour
Court/Industrial Tribunal before the expiry of three years from the date of termination
of services of the respective workman.
In the year 2016, the Parliament of
India passed the Repealing and Amending Act, 2016 (No. 23 of 2016). The
Repealing and Amending Act, 2016 received the assent of the President of India
on 06th May, 2016 and was published in the Gazette of India (Extraordinary, Part II—Section 1) on
09th May, 2016. The Repealing and Amending Act, 2016 repealed the
Industrial Disputes (Amendment) Act, 2010 (No. 24 of 2010) in entirety.
Effect of the Repealing and Amending
Act, 2016 is that sub-sections 2 and 3 of Section 2A of the Industrial Disputes
Act, 1947 stands deleted. Now the workman cannot approach the Labour
Court/Industrial Tribunal directly and will have to wait for the reference
being made by the Appropriate Government under Section 10 of the Industrial
Disputes Act, 1947.
Note
The Industrial Disputes (Delhi
Amendment) Act, 2003 (No. 9 of 2003), which became enforceable with effect from
22nd August 2003, inserted/added the following sub-section to Section
10 of the Industrial Disputes Act, 1947:-
"10. xxx
(4A)
Notwithstanding anything contained in section 9C and in the case of a dispute
falling the scope of Section 2A, the individual workman concerned may, within
twelve months from the date of communication of the order of discharge,
dismissal, retrenchment or termination of the date of commencement of the
Industrial Disputes(Delhi Amendment) Act, 2003, whichever, is later, apply in the
prescribed manner, to the Labour Court, tribunal, as the case may be, for
adjudication of the dispute and the Labour Court or Tribunal, as the case may
be dispose of such application in the same manner as a dispute referred under
sub-section(1)."
In view of Section 10(4A) of the
Industrial Disputes (Delhi Amendment) Act, 2003, a workman in Delhi can
directly approach Labour Court/Industrial Tribunal for adjudication of dispute
pertaining to discharge, dismissal, retrenchment or otherwise termination of
his service within 1 year of the passing of the termination order.
It may be noted that provisions similar to
Section 10(4A) of the Industrial Disputes (Delhi Amendment) Act, 2003, have been
made by the State Governments of Karnataka as well as West Bengal.
Anuj Aggarwal
Advocate
483, Block-2, Lawyers Chambers,
Delhi High Court, New Delhi – 110003
Mob – 9891403206
478-479, Lawyers Chamber,
Western Wing, Tis Hazari Court,
Delhi – 110054
Mob - 9891403206
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