The Bombay Industrial Relations (Gujarat Extension and Amendment) Act, 1961

(1) This Act may be called the Bombay Industrial Relations (Gujarat Amendment) Act, 1972. (2) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.

In section 3 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as "the principal Act"),- (i) for clause (13), the following shall be substituted, namely:- "(13) 'employee' means any person employed in the execution of any work in respect of which the owner of any undertaking is an employer within the meaning of sub-clause (e) of clause (14), (b) a person who has been dismissed or discharged from employment on account of any dispute relating to a change in respect of which a notice is given or an application made under section 42 whether before or after his dismissal or discharge: but does not include- (i) a person who is employed in the police service or as an officer or other employee of a prison, (ii) a person, who being employed primarily in a managerial, administrative or supervisory capacity draws basic pay (excluding allowances) exceeding five hundred rupees per month, and (iii) irrespective of the pay drawn, any other person or class of persons employed in a capacity specified in clause (ii) or in a technical capacity, which the State Government may, by notification in the Official Gazette, specify in this behalf"; (ii) in clause (14), for sub-clause (e), the following shall be substituted, namely:- "(e) where the owner of any undertaking in the course of or for the purpose of conducting the undertaking entrusts the execution of the whole or any part of any work which is ordinarily a part of the undertaking, to any person otherwise than as the servant or agent of the owner, the owner of the undertaking"; (iii) in clause (35A) for the figures and letters "86A" the figures and letters "86AA" shall be substituted. In section 3 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as "the principal Act"),- (a) in clause (13), in sub-clause (b), for the words "dismissed or discharged from employment" the words "dismissed, discharged or retrenched from employment or whose services have been terminated shall be substituted; and for the words "dismissal or discharge", the words "dismissal, discharge, retrenchment or, as the case may be, termination from employment" shall be substituted; (b) in clause (23),- (i) after the words "any area" the brackets and words "(including the entire State)" shall be inserted; and (ii) the following shall be added at the end, namely : - "or for different industries;"; (c) in clause (25), for the words "two annas" the words "twenty-five paise" shall be substituted; (d) in clause (31), after the words "and includes" the words "an Additional Registrar, and" shall be inserted; (e) in clause (39), for sub-clause (vi), the following sub-clause shall be substituted, namely : - "(vi) gratuity payable, if any.". After sub-section (1) of section 97 of the Bombay Industrial Relations Act, 1946 the following sub-section shall be inserted, namely :

"(1A) Notwithstanding anything contained in sub-section (1) a strike which is commenced or continued only for the reason that the employer has not paid the basic pay or dearness allowance due to the employees within the period fixed under any law for the time being in force or under a registered agreement or settlement or an effective award or an effective decision of a Wage Board shall not be deemed to be illegal :

Provided that such strike shall be deemed to be illegal if

(i) it is commenced without seven clear days' notice being given to the employer by the representative of employees, or

(ii) it is commenced or continued after the employer has paid basic pay or dearness allowance due to the employees." In the Bombay Industrial Relations Act, 1946 (hereinafter referred to as "the principal Act"), in section 27A, for the words and figures "sections 32 and 33" the words, figures and letter "sections 32, 33 and 33A" shall be substituted. In the Bombay Industrial Relations Act, 1946 (hereinafter referred to as "the principal Act"), in section 27A, for the words and figures "sections 32 and 33" the words, figures and letter "sections 32, 33 and 33A" shall be substituted. In the Bombay Industrial Relations Act, 1946, in section 2, after sub-section (5), the following shall be added, namely :- "(6) The State Government may, by notification in the Official Gazette, direct that the provisions of this Act shall cease to apply to such industry, in such area, and from such date, as may be specified in the said notification, and thereupon the provisions of section 7 of the Bombay General Clauses Act, 1904, shall apply to such cessor as if this Act had then been repealed in relation to the said industry in such area by the Gujarat Act."

In section 10 of the principal Act, in sub-section (4), after the words "or is eligible for being appointed a judge of such Court" the words "or has presided over a Labour Court for not less than ten years" shall be inserted and after the proviso, the following further proviso shall be inserted, namely :- "Provided further that a member, who before his appointment as such member has presided over a Labour Court for not less than ten years shall not notwithstanding anything contained in section 92, be eligible for appointment on a Bench of the industrial Court consisting of one member and section 92 shall have effect accordingly." In section 13 of the principal Act,- (a) in sub-section (1), for the words "not less than fifteen percent" the words "not less than twenty-five per cent" shall be substituted; (b) after sub-section (3), the following new sub-section shall be added, namely : - "(4) Notwithstanding anything contained in this section, if a union makes a fresh application for registration as a Representative Union, Qualified union, or as the case may be, Primary Union, the Registrar shall not entertain such application unless a period of one year has elapsed since the date of disposal by the Registrar of the previous application of that union for such registration.". The Bombay Industrial Relations (Gujarat Amendment) Ordinance, 1968 is hereby repealed and the provisions of sections 7 and 25 of the Bombay General Clauses Act, 1904 shall apply to such repeal. In section 30 of the principal Act, for the words "The following shall be entitled to appear or act" the words, figures and letter "Subject to the provisions of section 33A, the following shall be entitled to appear or act" shall be substituted.

In section 14 of the principal Act, for the third proviso the following shall be substituted, namely:- "Thirdly, that- (i) where two or more unions fulfilling the conditions necessary for registration apply in the same calendar month for registration in respect of the same industry in any local area, subject to the provisions of the second proviso, the union having the largest membership of employees employed in the industry during the whole of the period of three calendar months immediately preceding that in which the applications were made shall be registered, and any application made in any subsequent calendar months shall not be considered by the Registrar until the applications made in the earlier calendar month are disposed of by him; (ii) where a union fulfilling the conditions necessary for registration makes an application during any calendar month for registration in respect of an industry in any local area, any application in any subsequent calendar month by any other union for registration in respect of the same industry shall not be considered by the Registrar until the former application is disposed of by him". In section 16 of the principal Act, in sub-section (1),- (i) after the words "the Registrar shall" the words "if a period of two years has elapsed since the date of registration of the registered union," shall be inserted: (ii) at the end, the following proviso shall be added, namely : - "Provided that the Registrar shall not entertain any application for registration of a union, unless a period of one year has elapsed since the date of disposal of the previous application of the union.". In section 32 of the principal Act, in the proviso,- (a) for the words "Provided that" the words, figures and letter "Provided that, subject to the provisions of section 33A," shall be substituted; (b) after the words "any proceedings" the brackets and words "(not being a proceeding before a Labour Court or the Industrial Court in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee is under consideration)" shall be inserted.

To sub-section (3) of section 16 of the principal Act, the words "and issue a certificate of registration in such form as may be prescribed" shall be added at the end. In section 24 of the principal Act, in the marginal note thereto, the words "cancelling registration" shall be deleted. In section 33 of the principal Act,- (a) in clause (b), the words and figures "or for deciding any industrial dispute referred to it under section 72" shall be deleted; (b) in the second proviso,- (i) for the words "Provided further that" the words. figures and letter, "Provided further that, subject to the provisions of section 33A." shall be substituted: (ii) after the words "any proceeding under this Act" the brackets and words "(not being a proceeding before a Labour Court or the Industrial Court in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee is under consideration)" shall be inserted.

(1) in sub-section (1) (d) for clause (v) the following shall be substituted, namely :- "(v) every industrial dispute in which a settlement is not reached by conciliation shall be offered to be submitted to arbitration or for decisions to a Wage Board as may be mutually agreed upon and that arbitration of the Industrial Court under chapter 11 shall not be refused by any party to the dispute"; (ii) clause (vi) shall be deleted; (2) to sub-section (3), the following provisos shall be added, namely :- "Provided that where two or more unions satisfying the conditions necessary for being entered in the approved list under sub-section (1) apply in the same calendar month for being so entered in respect of the same industry in any local area, union having the largest membership of employers employed in the industry during the calendar month immediately preceding that in which the applications were made shall be entered in the approved list and any application made in any subsequent calendar months shall not be considered by the Registrar until the applications made in the earlier calendar months are disposed of by him. Provided further that where a union satisfying the conditions necessary for being entered in the approved list applies in any calendar month for being so entered in respect of an industry in any local area, any application in any subsequent calendar month by any other union for being so entered in respect of the same industry shall not be considered by the Registrar until the former application is disposed of by him." (3) to sub-section (4), the following shall be added at the end, namely :- "If he is satisfied that the membership of the applicant union had in the calendar month in which the application was made as also in the calendar month immediately preceding it was respectively larger than the membership of the approved unions in those months. The provisions of sub-section (3) shall mutatis mutandis apply to such application."

In section 23B of the principal Act, for the words "shall be deemed to be the approved union" the words "shall continue to have all the rights and privileges of an approved union in respect of its members" shall be substituted. In section 25 of the principal Act, in sub-section (1), in clause (a), after the words "for the industry" at the end, the words "in that local area" shall be inserted.

In section 24 of the principal Act, in clause (ii) the word "or" shall be added at the end and after clause (ii) the following shall be inserted, namely :- "(iii) has instigated, aided or assisted the commencement or continuance of a strike or a stoppage which has been held or declared to be illegal."

After section 73 of the principal Act, the following new section shall be inserted, namely : - "73AA. Where an industrial dispute concerning any undertaking in an industry or section thereof has been or is to be referred to a Labour Court or Industrial Court under sectibn 72 or 73, and the State Government is of opinion, whether on application made to it in this behalf or otherwise, that the dispute is of such a nature that any other undertaking, group or class of undertaking of a similar nature in that industry or any section thereof is likely to be interested in or affected by such dispute, the State Government may, at the time of making such reference or at any time thereafter, but before the submission of the award, include in that reference such undertaking, group or class of undertakings or any section thereof, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class of undertakings or section thereof.".

In section 25 of the principal Act, (i) in clause (c), the following clause shall be inserted, namely:- "(d) to remain present during any departmental inquiry held against an employee, who is a member of that union." (ii) after sub-section (4), the following sub-section shall be inserted, namely:- "(5) Where in any proceeding under this Act, an employee is represented by an association of employees, a settlement, submission or an award to which such association is a party, shall be binding on such employee."

In section 79 of the principal Act, in sub-section (3), for the words "three months" wherever they occur the words "six months" shall be substituted.

After section 27A of the principal Act, the following new section shall be inserted, namely: "27B. Notwithstanding anything contained in this Act, on any alteration in any local area or areas any association of employers entitled under sub-section (1) of section 27 for the local area of areas immediately before such alteration, shall continue to be entitled to represent the employers in accordance with the provisions of sub-section (1) or (2) in the altered local area or areas, as the case may be, for a period of twelve months from the date on which such alteration is effected."

(i) in clause (a), in sub-clause (ii) after the words and figures "section 72 or 73" the words, figures and letter "or referred for decision under section 86C" shall be inserted. (ii) in clause (b), in sub-clause (ii) after the words, figures and letter "section 72, 73 or 73A" the words, figures and letter "or referred for decision under section 86C or 86CC" shall be inserted.

In section 100 of the principal Act, after sub-section (3), the following new sub-section shall be added, namely :- "(4) A Court of Enquiry may refer to the Industrial Court any point of law arising in any proceeding before it under this Act. Any Wing of the Coubt of Enquiry in such proceeding shall be in accordance with the decision of the Industrial Court on such point.".

After section 118A of the principal Act, the following new section shall be inserted, namely :- "118B. (I) Where in any proceeding before the Industrial Court or a Labour Court, if either party in spite of notice of hearing having been duly served on it, does not appear when the matter is called on for hearing, the Court may either adjourn the hearing of the matter to a subsequent date or proceed ex-parte and make such award, order or decision as it thinks fit. (2) Where any award, order or decision is made ex-parte under sub-section (I), the aggrieved party may, within thirty days of the receipt of a copy thereof, make an application to the Court, to set aside such award, order or decision. If the Industrial Court or Labour Court is satisfied that there was sufficient cause for non-appearance of the aggrieved party, it may set aside the award, order or decision so made and shall appoint a date for proceeding with the matter : Provided that no award, order or decision shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.".

In Chapter XII of the principal Act, after section 86, the following new section shall be inserted, namely:- "86B. (1) A Labour Court shall have the power to direct by whom the whole or any part of the costs of any proceeding before it shall be paid: Provided that, no such costs shall be directed to be paid for the services of any legal adviser engaged by any party. (2) The provisions of section 63 shall apply to an order made under this section in the same manner as they apply to an order of the Industrial Court."

In section 123 of the principal Act, in sub-section (2),- (i) in clause (g), after the words, brackets and figure "sub-section (I)" the words, brackets and figure "the form of certificate of registration under sub-section (3)" shall be inserted; (ii) in clause (iia), for the figures and word "III and IV" the figures and word "III, IV and V" shall be substituted.

In section 87 of the principal Act, in clause (a) - (a) in sub-clause (i), for the figures and word "20 or 44" the figures, letter and word "20, 24A or 44" shall be substituted ; and (ii) after sub-clause (viii) the following sub-clause shall be inserted, namely:- "(viii a) to decide applications made to it under section 115 B;".

In section 93 of the principal Act, after the words "a place of residence or business" the words "or where such place is within the City of Ahmedabad before the Court of Small Causes of Ahmedabad" shall be inserted.

In section 107 of the principal Act, after the words "who acts in contravention of" the words, brackets and figures "a model standing order notified and in operation under sub-section (5) of section 35 of" shall be inserted.

In section 114 of the principal Act, in sub-section (2), after the words "in that local area" the words "and with effect from such date" shall be inserted.

After section 115A of the principal Act, the following section shall be inserted, namely:-- "115B. Where any question arises regarding the construction or interpretation of any award, any employer or employee on whom such award is binding may:- (a) if the award was made by a Labour Court, Wage Board or Industrial Court, apply to the Court or Board which made the award, and (b) if the award was made by any other arbitrator, apply to the Industrial Court, for deciding the question. The Court or Board to which the application is made may, after giving the parties concerned an opportunity of being heard, decide the question and such decision shall be binding on the parties on whom the award is binding."

(1) in sub-section (1), (d) for clause (v) the following shall be substituted

In section 24 of the principal Act, in clause (ii) the word "or" shall be added at the end and after clause (ii) the following shall be inserted

After section 123 of the principal Act, the following new section shall be inserted, namely:-- "124. The State 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 by such officer or authority subordinate to it as may be specified in the notification,"

In Schedule III to the principal Act in item (4), the word "awards" shall be deleted.

Section 121 of the principal Act shall be deleted.