Industrial Adjudication in India and in USA.docx

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INDUSTRIAL ADJUDICATION IN INDIA AND IN USA: A

COMPARATIVE LAW PERSPECTIVE

Project report on Labour Law-I

Submitted To:

Assistant Pro! Su"ato Mu#$er%ee

Submitted &':

S$i(ani Jais)a*

&!&!A!LL!& +,ons!- . VII Semester

MATS Uni(ersit'

1



MATS La) S/$oo*0 Rai1ur

AC2NOWLED3EMENT

I express my sincere gratitude to Asst. Prof. Sugato Mukherjee, MATS Law Schoo,

!aipur, and owe my foremost regards to him for gi"ing me an opportunity to carry out this

project work under his guidance. This work woud not ha"e #een possi#e without his in"aua#e

support and thought pro"oking comments.

I woud aso ike to thank my #atch mates who directy or indirecty heped me in making

this project.

2



DISCLAIMER

This project report is authored #y student of $ th year under the fi"e year %%A.LL.% &'( Program

in MATS Law Schoo, !aipur. The report is purey academic in nature and sha not #e treated as

a ega or #usiness ad"ice. The "iews expressed in this report are persona to the student and do

not refect the "iew of aw schoo or any of its staff or personne. A the copyrights reating to

this work are "ested in the author) the same sha not #e expoited without their express

permission.

Shi"ani *aiswa

$th +ear, MATS Law schoo, !aipur

3



RESEARC, MET,ODOLO34

I ha"e adopted the mode of primary research source where I ha"e refereed some #ooks of

Industria aw to take information a#out this project report. So I ha"e taken materias, references

and guide from #ooks

I ha"e aso adopted the -octrina !esearch Methodoogy where the sources of the project are

soey #ased upon the materias coected from the we#sites and #ooks. /ertain other resources

for our project are se"era Artices coected from "arious journas and maga0ines as we as

se"era other commentaries and digests written and pu#ished #y se"era eminent schoars who

ha"e exceed in "arious fieds of the manageria fraternity nationay and internationay.

O&JECTIVES O5 RESEARC,:

The o#jecti"es of research are 1

• To understand the concept of industria adjudication in India under the Industria -ispute

Act,23$4

• To understand the concept of industria adjudication in 5SA

• 6urther the researcher highight the comparati"e anaysis of industria adjudication

#etween 5SA and India

4



TA&LE O5 CONTENT

INTRODUCTION........................................................................................................... 6

THREE METHOD FOR SETTLEMENT OF DISPUTE.........................................................7

ADJUDICATION PROCESS IN INDIA.............................................................................. 9

A COMPARISON OF INDIA AND THE UNITED STATES.................................................18

CONCLUSION AND SUGGESTION..............................................................................21

REFRENCES.............................................................................................................. 22

5



INTRODUCTION

The Industria -isputes Act, 23$4, refects this "ery concern of the State and thus justifying a

strong need for the inter"ention of the State in modern industria disputes. State inter"ention in

industria reations is essentiay a modern de"eopment. 7ith the emergence of the concept of

wefare state, new ideas of socia phiosophy, nationa economy and socia justice sprang up with

resut that industria reation no onger remains the concern of a#our and management aone.

The concern of state in matters reating to a#our is a product of its o#igations to protect the

interest of industria community, whie at the same time fostering economic growth in amost a

countries. The state has assumed powers to reguate a#our reations in some degree or the other.

In some, it has taken the form of aying down #are rues or o#ser"ance #y empoyers and

workers) in others, the rues co"er a wider area of the rues. So far as our country is concerned,

State inter"ention in a#our matters can #e traced #ack to the enactment of the 8mpoyers and

7orkmen9s -isputes Act 2:;< which pro"ided for the speedy disposa of the dispute reating to

the wages of workmen engaged in raiways, canas and other pu#ic works #y Magistrates. In

23$4, the =o"ernment of India passed the Industria -isputes Act under which machinery for the

pre"entions and settement of the disputes was outined. The Act as amended in 23>; has set up

machinery for settement of disputes. The act pro"ides the three methods for settement of industria disputes are as foows /onciiation, Ar#itration and Adjudication.

6



T,REE MET,OD 5OR SETTLEMENT O5 DISPUTE

Con/i*iation

In simpe sense, conciiation means reconciiation of differences #etween persons. /onciiation

refers to the process #y which representati"es of workers and empoyers are #rought together

#efore a third party with a "iew to reso"e the dispute persuading them to arri"e at an agreement

#y mutua discussion #etween them. The aternati"e name which is used for conciiation is

mediation. The third party may #e one indi"idua or a group of peope.

In (ie) o its ob%e/ti(e to sett*e dis1utes as 6ui/#*' as 1ossib*e0 /on/i*iation is /$ara/teri7ed

b' t$e o**o)in" eatures:

i. The conciiator or mediator tries to remo"e the difference #etween the parties.

ii. 'e?she persuades the parties to think o"er the matter with a pro#em1so"ing

approach, i.e., with a gi"e and take approach.

iii. 'e?she ony persuades the disputants to reach a soution and ne"er imposes his?her

own "iewpoint.i". The conciiator may change his approach from case to case as he?she finds fit

depending on other factors.

Arbitration:

Ar#itration is a process in which the conficting parties agree to refer their dispute to a neutra

third party known as @Ar#itrator9. Ar#itration differs from conciiation in the sense that in

ar#itration the ar#itrator gi"es his judgment on a dispute whie in conciiation, the conciiator

disputing parties to reach at a decision.

The ar#itrator does not enjoy any judicia powers. The ar#itrator istens to the "iew points of the

conficting parties and then gi"es his decision which is #inding on a the parties. The judgment

on the dispute is sent to the go"ernment. The go"ernment pu#ishes the judgment within < days

of its su#mission and the same #ecomes enforcea#e after < days of its pu#ication. In India,

there are two types of ar#itrationB Countary and /ompusory.

Ad%udi/ation:

7



The utimate ega remedy for the settement of an unreso"ed dispute is its reference to adjudica1

tion #y the go"ernment. The go"ernment can refer the dispute to adjudication with or without the

consent of the disputing parties. 7hen the dispute is referred to adjudication with the consent of

the disputing parties, it is caed @"ountary adjudication.9 7hen the go"ernment hersef refers the

dispute to adjudication without consuting the concerned parties, it is known as @compusory

adjudication.

The difference #etween ar#itration and adjudication is that in the case of ar#itration the

parties to the dispute agree to refer the dispute for the decision of the ar#itrator. In the case of

adjudication, the dispute is referred for adjudication #y the =o"ernment. In the case of ar#itration

the parties to the dispute can choose the ar#itrators. In the case of adjudication the Presiding

Dfficer of the La#our /ourt?Industria Tri#una are appointed #y the =o"ernment.

8



ADJUDICATION PROCESS IN INDIA

The pream#e to the Industria -isputes Act, 23$4 mentions that this Act makes pro"ision for the

in"estigation and settement of Industria -isputes and certain other purposes. The pream#e of

the act pro"ides for the settement of industria disputes through a three tier system of La#our

/ourts, Industria Tri#unas and Eationa Tri#unas2, which comes under this adjudication

process. The La#our /ourt?Industria Tri#una gets the jurisdiction to decide an industria ony if

the =o"ernment makes a reference of that dispute to it. The proceedings #efore the La#our

/ourt?Industria Tri#una are caed adjudication proceedings.

LA&OUR COURT:

La#our /ourtF is one of the adjudication authorities set up #y the appropriate =o"ernment

#y notifying in the officia =a0ette, may constitute La#our /ourt for adjudication of the

industria disputes. The a#our court consists of one independent person who is the presiding

officer or has #een a judge of a 'igh /ourt, or has #een a district judge or additiona district

judge for not ess than years, or has #een a presiding officer of a a#our court for not ess than >

years. The a#our court deas with the matters specified in the second schedue of the Industria

-isputes Act, 23$4, which incudes the matter as foowsB

2. The property or egaity of an empoyer to pass an order under the standing orders.

F. The appication and interpretation of standing orders.

. -ischarge or dismissa of workers incuding reinstatement or grant of reief to workmen

wrongfuy dismissed.

$. 7ithdrawa of any statutory concession or pri"iege.

>. Iegaity or otherwise of a strike or ockout.

1 A critica anaysis on efficacy of mechanism to industria disputes resoution in India #y M.*.ArputharajG and !.

=ayatri.

2 Section 4 of the Industria -isputes Act, 23$4

9



;. A matters other than those reser"ed for industria tri#unas.

INDUSTRIAL TRI&UNAL:

An Industria Tri#una may #e set up #y the appropriate =o"ernment on a temporary or

permanent #asis for a specified dispute for industry. As a whoe the Tri#una comprises of one

person ony. The Huaifications for appointment as Presiding Dfficer of an Industria Tri#una are

that the candidate shoud ha"e #een a judge of a 'igh /ourt or has hed the post of /hairman or

La#our Appeate Tri#una for not ess than two years or he has #een judge or Additiona -istrict

judge for a period not ess than three years. =eneray, industria disputes of major importance or

industria disputes which are important to the industry as a whoe are referred to the industria

tri#unas.

The appropriate =o"ernment may constitute one or more Industria tri#unas for the adjudication

of industria disputes. /ompared to a#our court, industria tri#unas ha"e a wider jurisdiction.

An industria tri#una is aso constituted for a imited period for a particuar dispute on an adhoc

#asis.

T$e matters t$at /ome )it$in t$e %urisdi/tion o an industria* tribuna* in/*ude t$e

o**o)in":

a. 7ages, incuding the period and mode of payment.

#. /ontri#ution paid or paya#e #y the empoyer to any pro"ident or pension fund or for the

#enefit of the workmen under any aw for the time #eing in force)

c. /ompensatory and other aowances.

d. 'ours of work and inter"as.

e. Lea"e with wages and hoidays.

f. Starting ateration or discontinuance.

g. /assification #y grades)

3 Section 4A of the Industria -ispute Act

10



h. 7ithdrawa of any customary concession or change usage)

i. Introduction of new rues of discipine or ateration of existing rues, except in so far as they

are pro"ided in standing orders)

j. !ationai0ation, standardi0ation or impro"ement of pant or techniHues which is ikey to ead

retrenchment of workmen.

k. Any increase or reduction in the num#er of persons empoyed or to #e empoyed in any

occupation or department or shift not occasioned #y circumstances o"er which the empoyer has

no contro)

NATIONAL TRI&UNAL8 :

This is the third one man adjudicatory #ody appointed #y the /entra =o"ernment #y notification

in the Dfficia =a0ette. They are to #e constituted for the adjudication of the industria disputes,

which in opinion of the /entra =o"ernment in"o"e Huestions of nationa importance or such a

nature that industria esta#ishments situated in more than one State are ikey to #e interested in

or affected #y, such disputes.

The /entra =o"ernments can made a reference to the Eationa Tri#una. 7here any reference is

made to Eationa Tri#una, then notwithstanding anything contained in the Act, no La#our /ourt

or Tri#una has jurisdiction to adjudicate upon any matter which is under adjudication of nationa

tri#una. If the mater under adjudication of Eationa Tri#una is pending #efore a /ourt or

Tri#una the proceedings reating to that matter which are pending #efore them wi #e deemed to

ha"e #een Huashed. State =o"ernments are de#arred from referring the matter under adjudication

of Eationa Tri#una to any La#our /ourt or Industria Tri#una.

The Eationa Tri#una consists of one person ony to #e appointed #y the /entra =o"ernment. A

person who is Huaified for appointment as the Presiding Dfficer of a Eationa IndustriaTri#una. 'e is or has #een a judge of a 'igh /ourt. 'e has hed the office of the chairman or

any other mem#er of the La#our Appeate Tri#una constituted under the Industria -isputes

Act, 23$4 for a period of not ess than two years.

4 Section 4% of the Industria -ispute Act,23$4

11



The /entra =o"ernment may aso appoint two assessors to ad"ise the Eationa Tri#una. The

Presiding Dfficers of La#our /ourts, Tri#unas or Eationa Tri#unas shoud #e independent

persons, #eow the age of ;> years and with no interest in the industry whose dispute #e heard.

RE5ERENCE O5 DISPUTES TO ADJUDICATION AUT,ORITIES:

The appropriate =o"ernment may refer the dispute to a La#our /ourt Tri#una or Eationa

Tri#una for adjudication. The La#our /ourt is empowered to adjudicate upon matter specified in

Second Schedue and an Industria Tri#una on those specified in Second or Third Schedue.

Thus, any matter which is important for the industry as a whoe and is isted in schedue ii or

schedue iii may#e referred for adjudication to a Tri#una or Industria.

'owe"er, where a dispute reates to a matter specified in the third schedue, and is not ikey to

affect more than one hundred workmen, the appropriate =o"ernment may refer it to a La#our

/ourt.

In case a dispute in"o"es any Huestion of nationa importance or is of such nature that industria

esta#ishment situated in more than one state or ikey to #e interested in or affected #y the

dispute, the /entra =o"ernment may at any time refer the dispute or any ree"ant matter reated

to the dispute to the Eationa Tri#una.

If the parties to an industria dispute make a reHuest in the prescri#ed manner to refer the dispute

to a La#our /ourt, Tri#una or Eationa Tri#una the appropriate =o"ernment is reHuired to make

such reference, #ut it may refuse to do so, if it is satisfied that the persons appying for the

reference do not represent the majority of the party.

12



ADJUDICTAION PROCESS IN USA

Adjudication is a procedure for reso"ing disputes as a fast track dispute resoution introduced in

the 5 in 233; #y the 'ousing =rants, /onstruction and !egeneration Act &/onstruction Act(.

The '=/!A does not define the term adjudication, #ut it is generay understood to #e a

process in which third party wi make a potentiay #inding decision on the issue of entitement

or ia#iity. That sounds simiar to ar#itration.

Adjudication is a Huick process that attempts to acceerate the cash fow of a construction project

#y enforcing a judgment on the parties within F: days of the dispute #eing fied..> Driginay the

intention of the /onstruction Act was that the process woud #e fairy informa. 'owe"er, it has

de"eoped into a forma process with parties ser"ing detaied su#missions, witness statements

and often e"en expert reports.

T,E ADJUDICATION MEC,ANISM

The egisation was contained in section 2<: of the 'ousing =rants, /onstruction and

!egeneration Act 233;. The fina Act is not we drafted) the origina %i was e"en worse.

T$e )a' t$e *e"is*ation )or#s is as o**o)s:

The adjudication process #egins when the party referring the dispute to adjudication gi"es

written notices of its intention to do so. The Eotice of Adjudication is the first forma step in the

adjudication procedure. The Scheme for /onstruction /ontracts pro"ides that this Eotice of

Adjudication shoud #riefy set out the foowingB

• a description of the nature of the dispute and the parties in"o"ed)

• detais of where and when the dispute arose)

• the nature of the remedy #eing sought)

5 &ennedy, Miigan, Mc/uskey, and /attanach, F<2<a(

13



Eames and addresses of the parties to the contract, incuding addresses where documents

may #e ser"ed.

T$e A/t sets out ei"$t eatures o a /om1*iant ad%udi/ation s/$eme9

If a construction contract does not contain a compiant procedure, then the terms of the statutory

Scheme for /onstruction /ontracts &a piece of su#ordinate egisation( cut in #y way of statutory

impication.

T$e ei"$t /om1*ian/e 1oints are as o**o)s:

2. The contract must ena#e a party to gi"e notice at any time of his intention to refer a

dispute to adjudication)

F. The contract must pro"ide a timeta#e with the o#ject of securing the appointment of the

adjudicator and referra of the dispute to him within 4 days of such notice). The contract must reHuire the adjudicator to reach a decision within F: days of referra or

such onger period as is agreed #y the parties after the dispute has #een referred)$. The contract must aow the adjudicator to extend the period of F: days #y up to 2$ days,

with the consent of the party #y whom the dispute was referred)

>. The contract must impose a duty on the adjudicator to act impartiay );. The contract must ena#e the adjudicator to take the initiati"e in ascertaining the facts and

the aw)

4. The contract sha pro"ide that the decision of the adjudicator is #inding unti the dispute

is finay determined #y ega proceedings, #y ar#itration &if the contract pro"ides for

ar#itration or the parties otherwise agree to ar#itration( or #y agreement)

! The contract sha aso pro"ide that the adjudicator is not ia#e for anything done or

omitted in the discharge or purported discharge of his functions as adjudicator uness the

act or omission is in #ad faith, and that any empoyee or agent of the adjudicator is

simiary protected from ia#iity.

APPOINTMENT O5 T,E ADJUDICATOR

5nder the system parties in the 5SA ha"e compete freedom to choose their adjudicator or, if

they prefer, their nominating #ody. In practice, it is rare for the parties to name their chosen

14



adjudicator in their contract. In many cases, the parties wi agree on their adjudicator when a

dispute arises on a #etter the de"i you know principe. In arge cases, they wi often choose a

construction speciaist soicitor, #ut in smaer "auation cases, a Huantity sur"eyor or other

construction professiona is much more usua.

6oowing ser"ice of the Eotice of Adjudication, the next step is to appoint an

adjudicator. The appointment of an adjudicator must #e secured within se"en days from ser"ice

of the Eotice of Adjudication. The parties can agree on an indi"idua to act as the adjudicator or,

if agreement cannot #e reached, the party who referred the dispute to adjudication may make an

appication to an Adjudicator Eominating %ody &AE%(. This is usuay done #y competing a

form and paying the reHuired fee. Dn receipt of a reHuest to nominate an adjudicator, the AE%

shoud communicate their seection to the party who referred the dispute to adjudication withinfi"e days of the reHuest. In the e"ent that an AE% fais to do this the whoe process must #egin

again.

T,E RE5ERRAL NOTICE

The referra notice must #e ser"ed within se"en days of ser"ice of the Eotice of Adjudication.

This is the document that sets out in detai the case of the party who is referring the dispute to

adjudication and it shoud #e accompanied #y documentation in support of the caim together with expert reports &if any( and witness statements. It is important to ensure that the referring

party is in a position to ser"e this notice 1 there ha"e #een instances where the AE% has

appointed an adjudicator F$ hours #efore the se"en1day period expires, in which case the

adjudicator wi need the notice within a day. A copy shoud #e sent to the other party at the same

time.

TIMETA&LE INVOLVED

The /onstruction Act sets out a tight timeta#e of within F: days of ser"ice of the referra notice

for su#mission of a response and for the adjudicatorJs utimate decision. 'owe"er this may #e

extended with the consent of the adjudicator. The rationae #ehind the process was to o#tain

Huick and cost effecti"e resuts which are of a #inding nature uness re"iewed #y itigation or

ar#itration. This reies on timescaes #eing tight.

15



RESPONDIN3 PART4;S RESPONSE

This is essentiay the other partyJs defence, and is reHuired to #e ser"ed within se"en days of the

!eferra Eotice. !eHuests for this to #e extended to 2$ days are usuay agreed. The '=/!A

does not demand a response or further su#missions 1 the need for one is a matter for the

adjudicator.

T,E DECISION

The adjudicator is reHuired to reach his decision within F: days of ser"ice of the referra notice.

This period can #e extended #y a further 2$ days if the party who referred the dispute in the first

pace agrees, or can #e further extended if #oth parties agree.

The decision is fina and #inding, pro"iding it is not chaenged #y su#seHuent ar#itration or

itigation. The parties are o#iged to compy with the decision of the adjudicator, e"en if they

intend to pursue court or ar#itration proceedings. In the majority of adjudicatorsJ decisions the

parties accept the decision, howe"er if they choose to pursue su#seHuent proceedings the dispute

wi #e heard afresh 1 not as an JappeaJ of the adjudicatorJs findings. A party cannot adjudicate

the same issue in further adjudication proceedings.

COSTS

The /onstruction Act makes no mention of how costs shoud #e deat with. 'owe"er changes to

the Act which come into force on 2 Dcto#er F<22 pro"ide that any contractua pro"ision which

attempts to aocate the costs of an adjudication #etween the parties wi #e in"aid uness it is

made after the adjudicator is appointed. This appies to agreements #oth as to the aocation of

the adjudicatorJs fees and expenses and agreements as to who is to #ear the partiesJ own costs.

This pro"ision seeks to pre"ent parties agreeing contractua terms which pace a the costs risk

on one party.

ADJUDICATOR;S 5EES AND E<PENSES

16



The parties wi #e jointy and se"eray ia#e to pay the adjudicator a reasona#e amount in

respect of fees for work reasona#y undertaken and expenses reasona#y incurred #y him. This

means that #oth parties can #e pursued for these fees, or that either party may #e pursued for the

whoe amount. The adjudicator may decide himsef what sum is reasona#e #ut, if there is any

dispute, an appication can #e made to the court for determination. This pro"ision appies ony to

adjudications which contain the reHuired adjudication pro"isions set out in the /onstruction Act,

not to adjudications which rey on the pro"isions of the Scheme for /onstruction /ontracts.

The Loca -emocracy, 8conomic -e"eopment and /onstruction Act pro"ides thatB

• the parties may agree, in the construction contract, to confer power on the adjudicator to

aocate his fees and expenses #etween them 1 this agreement must #e in writing)

• if the parties agree, in the construction contract, to aocate ia#iity for their own costs of

the adjudication that pro"ision wi #e ineffecti"e)

• the parties are free to agree ia#iity for their own costs of the adjudication after the notice

of intention to refer has #een gi"en 1 if they do so, this agreement must #e in writing.

The Act does not address what wi happen if a contract pro"ision aocates ia#iity for #oth the

partiesJ costs and the adjudicatorJs fees and expenses. It is argua#e that in such a situation the

whoe cause wi #e ineffecti"e.

INTEREST

The adjudicator can ony dea with interest on sums awarded if the contract contains a pro"ision

deaing with interest, or aternati"ey if the parties agree.

17



A COMPARISON O5 INDIA AND T,E UNITED STATES

Athough a#or aws in #oth the 5nited States and India are deri"ed primariy from %ritish a#or

egisation,; there ha"e #een significant differences in the way the aws of the two countries ha"e

e"o"ed o"er time. American egisation has #een argey infuenced #y the free enterprise

management phiosophy, resuting in the fact that coecti"e #argaining is not a compusory #ut

an optiona process. In the Indian situation, a#or egisation was designed to pre"ent empoyer1

empoyee conficts from hindering rapid economic de"eopment.K4In addition, the Indian

egisation is #ased on the assumption that a#or unions are weak and wi remain weak.

/onseHuenty, the egisation and coecti"e #argaining framework that ha"e e"o"ed are

designed to protect a#or.

5rom m' 1oint o (ie) t$e /om1arison as o**o)s:

2. In India, parties ha"e to choose the three tier system one #y one if the parties is not

satisfied with the decision of negotiation, the parties may agree to "ountary ar#itration

and the commission wi hep the parties in choosing an ar#itrator mutuay concept a#e

to them. 6urther, when the parties to the dispute do not agree to ar#itration, then party

refer the case for adjudication under section 4 of the Industria -ispute Act, 23$4. %ut in

the country of 5SA does not foow the three tier system, the party can refer their case

directy for adjudication under section 2:< of '/=!A, which is simiar to the concept of

ar#itration #ecause in 5SA party can choose their adjudicator itsef.

F. In terms of definition, The La#our /ourt?Industria Tri#una gets the jurisdiction to

decide an industria ony if the =o"ernment makes a reference of that dispute to it. The

proceedings #efore the La#our /ourt?Industria Tri#una are caed adjudication

proceedings. %ut the '=/!A does not define the term adjudication, #ut it is generay

understood to #e a process in which third party wi make a potentiay #inding decision

on the issue of dispute. That sounds simiar to ar#itration.

6 Id.; See Also -. Twomey, La#or Law Legisation $1; &;th 8d. 23:<(.

7 8. !amaswamy 5. !amaswamy, Industry and La#orB An Introduction 23> &23:2(.

18



. 7hen the parties to the dispute do not agree to ar#itration, either party sha notify the

Industria !eations /ommission &I!/( with a copy to the appropriate =o"ernment of the

faiure of negotiation where upon the I!/ shoud adjudicate upon the disputes. : 7hie in

5SA, there is no need to notify to any commission with a copy of the faiure of pre"ious

decision. 'ere, the party directy choose the mechanism of adjudication #y gi"ing a

notice with the intention to refer the dispute to adjudication.

$. 5nder the system of India party do not ha"e right to choose their adjudicator. 'owe"er in

India, one independent person is appointed with the different Huaification as per the

hierarchy of the system which is gi"en under the Industria -ispute Act.

5or e=am1*e: The a#our court consists of one independent person who is the presiding

officer or has #een a judge of a 'igh /ourt, or has #een a district judge or additiona

district judge for not ess than years, or has #een a presiding officer of a a#our court for

not ess than > years. In this way the industria tri#una and nationa tri#una ha"e the

different Huaification as per the Act.%ut 5nder the system of 5SA the parties ha"e compete freedom to choose their

adjudicator. The party who referred the dispute to adjudication may make an appication

to an Adjudicator Eominating %ody &AE%(.The appointment of an adjudicator must #e

secured within se"en days from ser"ice of the Eotice of Adjudication.

>. In India, a#our court has the jurisdiction to entertain the dispute which is specified in the

second schedue of the Industria -isputes Act, 23$4. Industria tri#una aso do not ha"e

same status as a#our court #ecause it refer the dispute which is specified in the second

schedue as we as third schedue of the Act. 'owe"er , the Eationa Tri#una are to #e

constituted for the adjudication of the industria disputes which in"o"e Huestions of

nationa importance or are of such a nature that industria esta#ishments situated in more

than one State are ikey to #e interested in or affected #y such disputes.

7hie in 5SA under the adjudication process the dispute is not referred in hierarchy

manner and there is not gi"en the schedue for entertaining the specific matter or dispute

as per the court.

8 A critica anaysis on efficacy of mechanism to industria disputes resoution in India #y

M.*.ArputharajG and !. =ayatri.

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;. In 5SA, the contract must reHuire the adjudicator to reach a decision within F: days of

referra or such onger period as is agreed #y the parties after the dispute has #een

referred)

6urther it aow the adjudicator to extend the period of F: days #y up to 2$ days, with the

consent of the party #y whom the dispute was referred.4. If we ook at the Indian perspecti"e, the dispute resoution machinery has increasingy

faied to #ring a#out the decision on time due to which cases are pending in the court and

party get frustrated with the case proceeding #ut the 5SA adjudication system compete

within a month ike < or >< days.

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CONCLUSION

T$e o**o)in" are e) su""estions to ma#e t$e sett*ement ma/$iner' more ee/ti(e:

2. Dne a"erage, around one1third of the disputes referred for conciiation faied. Df these,

a#out ;< to 3< per cent of cases were referred to adjudication. Dny one per cent of the

cases were referred for ar#itration. These underine the ineffecti"eness of conciiation

machinery in setting industria disputes. Thus, the existing machinery for the settement

of industria disputes, as pro"ided under the Industria -isputes Act, 23$4, needs to #e

strengthened. %ut in the same way adjudication has pro"ed the most popuar way of

setting industria disputes in India. This is #ecause adjudication is the ast recourse for disputing parties to sette their disputes.

F. Dne way to strengthen the adjudication machinery is to su#stitute it #y setting up

Industria !eations /ommissions &I!/s(, #oth at the /entra and the State e"e, on the

ines suggested #y the Eationa /ommission on La#our. The I!/ shoud aso #e

empowered to o"ersee the working of the conciiation machinery.. The go"ernment shoud refrain from acti"ey inter"ening in the matters of industria

disputes uness it is must for her to inter"ene in the disputes.$. As we ha"e seen that in 5SA the parties has agree to choose their adjudicator if they want

#ecause it has created a pro#ems in practice, and has ed to a coupe of disad"antage to

the system as the it is not possi#e to pro"ide a new adjudicator to num#er of parties due

to which the commercia interest of any Adjudicator Eominating %ody is highy

increased, So the 5SA system shoud #e changed.%ut in India the parties do not ha"e freedom to choose their adjudicator or officer,

the act itsef pro"ide the appointment and Huaification of them as per their hierarchy for

the period not more than > or years which is the #est way of appointment.

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Industrial Adjudication in India and in USA.docx

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