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ForewordThe process of globalization is in many conditions having far-reaching effects onlabour-management relations and the dispute settlement system. The absence of aneffective dispute settlement machinery can result in widespread industrial conflict andhave negative effects on the collective bargaining process itself and on economic

growth in general. There is a growing realization in many countries that the success of economic reforms depends among other things on achieving industrial harmony.

In this fast-changing workplace environment, new and innovative tools, techniques andapproaches to negotiation and conflict resolution are now being studied, developed andapplied. There is a growing stress on prevention of disputes with a focus on mutualgains bargaining and win-win negotiations. In many countries the traditional disputesettlement approaches are being questioned and greater emphasis is being placed onlabour-management cooperation. A new approach to dispute settlement is also evidentin India where it takes on average more than two years to settle a dispute, in fact, thegrowing backlog of unsettled disputes has become a major problem. The promotion of social dialogue in the dispute settlement process has led to the establishment of lokadalats or peoples courts as one way of dealing with this problem. In the state of Punjabin India, more than 18,000 cases have been settled through lok adalats.

Effective prevention and settlement of labour disputes remains a cornerstone of sound labour-management relations, and it is essential that there be an efficient andaccessible machinery for this purpose in the interests of economic growth and social

justice. What is important is to take stock of the new developments in disputeprevention and settlement and ensure that industrial disputes which are inherent inall labour relations systems are prevented and settled as promptly and fairly aspossible.

During the years 2002 and 2003, the Sub-regional Office for South Asia in New Delhi, atthe request of the ILO constituents, was active not only in providing technical advicebut also in undertaking training programmes for conciliators and labour courtadministrators in South Asia. The present volume includes several papers presented atthese workshops in India. It provides an overview of major emerging issues in disputesettlement and suggests ways of improving the dispute settlement machinery. Thisvolume should be of interest to policy makers, industrial relations practitioners, the

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viii Prevention and Settlement of Disputes in India

corporate sector, trade unions and civil society groups. I thank all the contributors, andparticularly my colleague A. Sivananthiran and Professor C.S. Venkata Ratnam for their valuable assistance in editing and publishing this volume for wider dissemination.

30 November 2003 Herman van der LaanDirector, Subregional Office for South Asia and

ILO Representative in India

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PrefaceThe effective prevention and settlement of disputes is a cornerstone of sound industrialrelations, and it is essential that appropriate machineries exist for this purpose. Efficientmechanisms for dispute prevention and resolution help to create a climate in whicheconomic growth and equity can flourish.

Dispute settlement in general and is a major element of the larger problem of labour policy. The dispute prevention and resolution process seeks to assist parties in theemployment relationship to settle their grievances or disputes with minimum disruptionof work. In a sense, the process is a peace-making arrangement.

The absence of an effective dispute settlement system and procedures can result inwidespread industrial conflict with adverse effects on worker-employer relationsand also on the collective bargaining process itself. On the other hand, it has beenrecognized that third-party intervention in the settlement of disputes can alsoundermine the collective bargaining process. In many developing countries, there is agrowing concern that the industrial dispute settlement machinery has become too

legalistic, expensive and slow.An important challenge facing the countries is the large backlog of industrial disputespending before labour courts/tribunals. In India there are more than 500,000 casespending before labour courts and in Sri Lanka about 20,000 cases pending before labour tribunals. In order to be meaningful, justice ought to be delivered on time and this canonly be possible only when pendencies in labour courts come down and disposal ratesgo up.

At the outset it must be borne in mind that the role of dispute settlement mechanismsmust be seen in the overall context of industrial relations in India. Any reform in theconciliation or labour adjudication system will be largely cosmetic unless greater

attention is paid towards developing a sound industrial relations framework at thenational and enterprise levels.

Many changes have been made particularly in the last decade in the way disputes areprevented or resolved. However, effective prevention of disputes remains the core of sound industrial relations. In the new and fast changing workplace environment, newand innovative tools, techniques and approaches to negotiation and conflict resolution

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x Prevention and Settlement of Disputes in India

are now being studied, developed and applied. There is greater stress on the preventionof disputes with a focus on mutual gains bargaining and win-win negotiations. In manycountries the traditional dispute settlement approaches are being questioned and greater emphasis is being placed on labour-management cooperation. A new approach todispute settlement is also evident in India where, on average, it takes more than twoyears to settle a dispute and the growing backlogs have become a problem. The pro-motion of social dialogue in the dispute settlement process has led to the establishmentof lok adalats or peoples court to deal with the problem.

The ten papers presented in the volume deal with labour courts, conciliation, inspection,awards implementation as well as alternative dispute resolution mechanisms and lokadalts. They are based on experience and field research and take into account the

recommendations of the Second National Commission on Labour. Some of the importantdevelopments arising from changes in the workplace scenario include greater emphasison interest-based negotiations, mutual gains bargaining, win-win negotiations andalternative dispute resolution. There is also a general trend to move away fromadversarialism to cooperation which makes disputes and conflict less pronounced thanbefore.

We are grateful to the contributors for sharing their knowledge and experience and tothe ILO for providing the opportunity to document and disseminate the studies.

New Delhi A Sivananthiran25 November 2003 C S Venkata Ratnam

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List of Contributors

A. Sivananthiran, Senior Specialist, Industrial Relations, ILO Subregional Office, NewDelhi.

C. S. Venkata Ratnam, Professor, International Management Institute, New Delhi &Director, GITAM Institute of Foreign Trade, Visakhapatnam.

Elias George, Labour Secretary, Government of Kerala, Trivandrum.

J. P. Verghese, Vice Chancellor, Hidaytullah National Law University, Raipur.

J. S. Sodhi, Executive Director, Shri Ram Centre for Industrial Relations and HumanRelations, New Delhi.

M. Dias, Secretary, North India Employers Association, New Delhi.

P. D. Shenoy, Secretary, Ministry of Labour, Government of India, New Delhi.

Subesh Das, Former Chief Labour Commissioner, Government of West Bengal, Kolkata.S. Ghosh, Advocate, Supreme Court, New Delhi.

S. Shukla, Presiding Officer, CGIT-cum-Labour Court, Government of India, MOL,Lucknow.

V. Nagaraj, Additonal Professor of Law & Chairperson Singhania ADR Chair, NationalLaw School of India, Bangalore.

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Effective Labour CourtAdministration :Trends and IssuesP.D. Shenoy

Adjudication has dug deep roots in the field of labour. Though collective bargainingcaters to long-term peace and organised trade unions and established concernsprefer to bargain and amicably settle labour demands, failure to settle amicably oftenmakes adjudication the preferred trial of strength. Except for a handful who resort tostrikes and lockouts, exceptions which only prove the general rule, labour has cometo cultivate the habit of adjudication. This confidence in adjudication has beeninspired by the benefits earned by labour through this system. Employers in thecountry have found adjudication beneficial to them in as much as it not only curbs

the habit of labour to direct action but also serves as a powerful check and control onthe extravagances of the demands and costs of labour. The State can hardly find abetter substitute for effecting social and economic justice through rule of law in thelabour field. Industrial adjudication has, therefore, very much come to stay in ourcountry.

The technique of industrial adjudication is a dynamic and revolutionary process oftransforming traditional jurisprudence which has proved wholly ineffective andimpotent in protecting the poor industrial masses from social injustice and economicexploitation (resulting from industrial revolution) into a progressive and flexiblelegal institution of social regeneration and economic justice. It has, to some extent,redeemed the infamy of individualistic legal systems and demonstrated that with theinjection of right doses of progressive social philosophy, law and jurisprudence canbecome potential agents of social and economic progress.

A correct understanding of this technique is necessary for all those interested andconcerned with labour affairs. It is also a fascinating study for legal scholars as also

1

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2 Prevention and Settlement of Disputes in India

a romantic story for the working classes. How this technique works, how thedemands of labour are processed in the judicial furnace and what are the workingrules and principles which adjudication has formulated for settling these demands require to be analysed.

The experience in India during the last 50 years has been that the Supreme Court ofIndia, various High Courts, Industrial Tribunals and Labour Court have enriched thecountry with a variety of precedents of labour demands by their sweat and toil andmissionary research from almost a barren and fallow field of labour jurisprudence.They have handed down to the world community jurisprudence, as living as dynamic,as valid as sound, which has redeemed the lost faith of industrial masses in law and

justice. Their contribution to the development of labour law and redemption of socialvalues of law and justice, is unparalled in the world history of jurisprudence, farexceeding the contribution made by Equity in England.

Adjudication of industrial demands being a complicated task, the Tribunals have togo into the merits of each issue which necessarily means examination, analysis andappreciation of the labour economics, the sociological approach and the relevanttechnical aspects of every issue. The demands concerning labour problems haveoften been subjected to expert studies and researches by high powered bodies ofInternational Labour Organization, Indian Labour Conference, Labour InvestigationCommittees, Wage Boards, Pay Commissions and various Government bodies, etc.In fact, these Reports and Recommendations have often been adopted by theSupreme Court, High Courts and Industrial Tribunals as guidelines.

According to Section 10 of the Industrial Disputes Act 1947, the appropriategovernment is empowered to refer a dispute to the Tribunal. This power of theappropriate government is independent of the fact whether conciliation proceedingshave been held or not. However, in practice, a dispute is referred to the Tribunal/ Labour Court for adjudication by the appropriate government after considering thefailure of conciliation report received from the conciliation officer.

The law gives sufficient scope to the conciliation officers for making. investigationinto the dispute and do all such things as they may deem fit in order to bring aroundparties to an amicable settlement of the dispute.

Where a settlement is arrived at during the conciliation proceedings over a dispute orany of the matters in a dispute, the conciliation officer is required to send a report of

the settlement to the appropriate government. The format in which the settlement isrequired to be drawn is laid down in the rules framed under the Act. If no settlementis arrived at, the conciliation officer is required to send to the appropriate governmentas soon as practicable, a full report, setting forth steps taken by him for ascertaining

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Effective Labour Court Administration: Trends and Issues 3

the facts and circumstances relating to the dispute and for bringing about asettlement together with a full statement of facts and circumstances and the reasonson account of which in his opinion, the settlement could not be arrived at. The time-frame laid down for conclusion of the proceedings is 14 days. Section 12(6) laysdown that the report under this Section shall be submitted within 14 days ofcommencement of the conciliation proceedings. The conciliation officer isempowered to extend the time for submission of report by such further time as maybe agreed upon in writing by all the parties to the dispute.

Competence and Jurisdiction of Labour Courts/Industrial Tribunals

Under Section 7 of the Industrial Disputes Act 1947, a Labour Court constituted bythe appropriate government is competent to adjudicate and render awards on the

matters mostly relating to rights, such as:1. Discharge or dismissal of workmen, including reinstatement of, or grant of

relief to, workmen wrongfully dismissed;

2. Withdrawal of any customary concession or privilege;

3. Illegality or otherwise of a strike or lockouts; and

4. All matters other than those specified in Schedule Ill.

INDUSTRIAL TRIBUNALS

Industrial Tribunals under Section 7A of the Industrial Disputes Act 1947 have alsobeen constituted to adjudicate upon the issues falling within Schedules II and III, i.e.

rights disputes and interests disputes.Under Section 7-8 of the Industrial Disputes Act 1947, the Central Government mayalso constitute national Tribunal to adjudicate the disputes if it involves any questionof national importance or it is of such nature that industrial establishments situated inmore than one State are likely to be interested or affected by such dispute whetheror not it is the appropriate government in relation to that establishment.

Labour courts or industrial tribunals are also competent to inquire into andinvestigate industrial disputes referred to them and upon adjudication, render awardswhich are binding on the parties. The Labour Courts and Industrial Tribunals also actas forum of appeal under Section 11A in the matter of discharge, dismissal ortermination of employment.

The Labour Courts and Industrial Tribunals are also vested with power to inquire intocomplaints of effecting adverse change in the conditions of service of the workmenduring pendency of conciliation proceedings and also to adjudicate and render

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awards for providing relief to the aggrieved parties. They are also fora forinterpretation of settlements and awards in case of ambiguity upon referral by theappropriate government. While adjudicating any industrial dispute, the LabourCourts'/Tribunals' jurisdiction is circumscribed by the terms of reference of theappropriate government. The Supreme Court has held that Labour Courts andTribunals are not civil courts in the real sense.

Issues given to the Labour Courts/Tribunals are very wide. Industrial dispute isdefined as any dispute or difference between the employers or between employersand the workmen or between the workmen and workmen which is connected withemployment or non-employment or terms of employment or with the conditions oflabour of any person. In India, no distinction has been made so far where rightsdisputes and interests disputes are concerned in the matter of reference to labour

courts/ tribunals for adjudication.

In the States of Andhra Pradesh, Bihar and Tamil Nadu, a workman can approachthe labour court directly in case of discharge, dismissal or termination ofemployment. In Tamil Nadu, a workman can avail of this right after failure ofconciliation, whereas in Andhra Pradesh no conciliation is needed. In Bihar,workmen covered under Bihar Shops & Establishments Act 1956 can approachLabour Courts directly in case of discharge, dismissal or termination.

Procedure and Approaches of Labour Courts in Deciding and SettlingIndustrial Disputes

The procedure practised in the Labour Courts and Industrial Tribunals has beendefined under Rule 10B, 13 to 30 of the Industrial Disputes Rules 1957. They havethe legal status of civil courts under the Civil Procedure Code 1908 in the matter ofsummoning of witnesses, enforcing attendance and recording of evidence. However,strictly speaking, they are not required to follow either the procedure laid down underthe Indian Evidence Act or the Civil Procedure Cole 1908. The procedureincorporates the basic principles of natural justice. Ordinarily, adjudication is tobe a completed within three months and in case of delay, reasons haveto be recorded in writing. Under Section 11 of the Industrial Disputes Act,Labour Courts, Tribunals or national Tribunals can follow such procedures asthey may deem fit.

Practising lawyers are not allowed to appear in such cases which the workers or

trade unions decide to present themselves. This has been aimed at simplifyingthe process and keep it free from intricate legal wrangling unintelligible tothe ordinary citizen. In practice, however, lawyers flood Labour Courts and IndustrialTribunals. The main emphasis has been on quick and inexpensive mechanisms for

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disposal of disputes and relief to the aggrieved party to ensure industrial peace. Inreality, however, industrial adjudication is neither inexpensive nor prompt.

The awards rendered by the Labour Courts and Industrial Tribunals are binding onthe parties and to all the present and future employees and employers and its non-implementation is a criminal offence punishable under Section 29 of the IndustrialDisputes Act. However, under the Industrial Disputes Act 1947, Labour Courts andTribunals do not have powers to issue decrees for the implementation of their

judgment.

Effectiveness of Labour Courts/Industrial Tribunals in Granting Relief toDismissed Workers/Issues Surrounding Reinstatement Unfair LabourPractices

Before insertion of Section 2A in the Act in 1965, the industrial relations scenariowas agog with allegations of victimization through winning over recognised tradeunions or pocketing unions to oppose reference or reinstatement of dismissedworkers. However, the situation underwent a sea-change after 1965 when individualdisputes relating to discharge, dismissal or termination of employment were definedas industrial disputes under Section 2A of the Industrial Disputes Act, 1947.

Labour Courts / Industrial Tribunals were not competent to enter the quantum or justifiability of punishment except in case the delinquent workman was denied a fairand reasonable opportunity of defending his conduct. In other words, wherevercases of non-compliance of principles of natural justice or finding of the inquiry officerwas found based on extraneous considerations to be termed as 'perverse', thepronouncement of reinstatement with wages was inevitable. The industrial

jurisprudence obtaining in those days was non-interference by the judiciary in thedisciplinary domain of the master (employer) unless there was a gross violation ofthe principles of natural justice. This constraint in industrial jurisprudence continuedtill 1971 when a new Section 11A was inserted empowering the Labour Courts andIndustrial Tribunals to sit in judgement as a forum of appeal. This has completelychanged the industrial relations scenario in so far as reference of disputes and theiradjudication are concerned.

Reinstatement of Dismissed Workers

A case study of 80 dismissed employees employed in the coal industry in the heart

of the coal-belt in Dhanbad in the State of Bihar indicates that the Labour Courts/ Industrial Tribunals are effective in granting relief to the workmen. However, the timetaken in adjudication is not in consonance with the spirit of legislation, whichprovides for passing an award within a period of three months. Of course, this

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provision is recommendatory in nature and it has an enabling provision to justifydelay. In all the 80 cases selected on random basis, the time taken in adjudicationranges from three to five years preceded by four to six months of reference exercisesby the Ministry of Labour. Out of 80 cases, in 59 cases order of reinstatement hasbeen passed by the Labour Courts/Industrial Tribunals on the grounds, inter alia,

1. Alleged misconducts not proved;

2. Punishment disproportionate to the gravity of allegation;

3. Non-compliance of principles of natural justice; or

4. Action of the management found arbitrary.

Therefore, it can be inferred that industrial adjudication through Labour Court/ Industrial Tribunal has proved its effectiveness of dispute resolution in so far asdismissal, discharge or termination of employment is concerned. Of course, the timelag is inordinate.

Establishment of the Labour Courts and Industrial Tribunals and the Pendencyof Cases Before Them"

As on 31.10.1998, there were 214 Labour Courts, 97 Industrial Tribunals and 22Labour Courts-cum-Industrial Tribunals making a total of 333 functioning in thevarious states. The statistics pertaining to the same, state-wise and UT-wise is givenat Annxure I.

As on 10.05.2000, 5,33,038 cases were pending in these Tribunals. Out of these

cases, 28,864 had been pending for more than 10 years. Details can be seen inAnnexure II. This gives a clear picture that the pendency is huge but also nearly29,000 cases are more than 10 years old resulting in the futility of the adjudication.

This however does not imply that adjudicatory authorities are not making any effort todispose of the cases. In the year 1997, 1,21,295 cases, and in the year 1998,1,25,739, and in the year 1999, 1,27,630 cases, respectively were disposed of by theLabour Courts and Industrial Tribunals in the States/UTs. Details can be seen inAnnexure III.

Similarly, 17 Central Government Industrial Tribunals-cum-Labour Courts haddisposed of 867 cases in 2000, 1803 cases in 2001 and 2057 cases in 2002.Similarly, they had disposed of 884 applications in 2000, 2,516 applications in 2001and 827 applications in 2002. Details can be found in Annexure IV.

As on 31.07.2003 there were 11,828 cases and 3,978 applications were pending inthe 17 CGITs. Details can be scanned in Annexure V.

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WORKLOAD OF LABOUR COURTS

So far as the question of coping with the existing workload of the Labour Courts andIndustrial Tribunals in the Central sphere is concerned, the time lag is on theincrease with the rise in the number of references pending before the Labour Courts/ Industrial Tribunals.

Apart from prosecution for breach of settlement or award and recovery of monetarydues, there is no other mechanism in the Industrial Dispute Act to enforce thedecisions of the Labour Court. However, the State Governments of West Bengal andBihar have, by a State Amendment Act, empowered the Labour Courts/ Tribunals toexecute their award or any settlement as a decree of the civil court.

It has been observed that in many cases the awards of Labour Courts arechallenged by the employer in the higher courts of judicial review or writ jurisdictionunder the Constitution though the awards remained unimplemented in spite of filingprosecution.

A study on Labour Adjudication in Central Government Industrial Tribunal, Delhi,from July 1993 to June 1994 by the V.V. Giri National Labour Institute (NLI) hasrevealed that in most of the cases there was inordinate delay in adjudication ofindustrial disputes as well as disposal of claim applications. In cases of awardspassed after completion of adjudication process, the delay was to the extent of fouryear and five months. The major causes of delay is the elaborate proceduresfollowed by the tribunal which are as under:

1. Notice to parties for filing claim;2. Filing claim statements by the workmen and date fixed for filing written

statement by the employer;

3. Filing of written statement by the employer and date fixed for filing rejoinderby workmen;

4. Filing of rejoinder by workmen and date fixed for employers' evidences;

5. Recording of employers' evidence and date fixed for workmen's evidences;

6. Recording and collection of evidence of workmen and date fixed forargument;

7. Arguments and award given or resolves; and

8. Award.

The study suggests that the most prominent cause responsible for delay inadjudication is frequent adjournment granted by the Labour Courts. Both workmen

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and employer seek adjournment after adjournment at each of the above stage andthis contributes to the delay in dispute resolution. According to the study, the workersought 33 per cent adjournment as against 22 per cent adjournment at the instanceof the employer.

Besides the above issues, the other issues pertaining to delay are:

1. Procedural formalities and technicalities of Civil Procedure Codes followedunintentionally almost as a routine;

2. Improper logistic supports such as shortage of staff, transport, access toinformation;

3. Lack of awareness/orientation of the presiding officers about the industry towhich the dispute relates;

4. Lack of enabling provisions in the Industrial Disputes Act to enforce awards;and

5. Duplication of work in conciliation and adjudication, etc.

Lok Adalat

Of late, Labour Lok Adalats have been recognised as a mechanism for quickresolution of disputes with nil expenditure for the parties involved. This systemdispenses justice on the basis of discussions, counselling, persuasions andcompromises. Lok Adalats have helped in resolving cases pending for a long time. InCentral sphere several labour Lok Adalats have been organised. It has beenobserved that many long pending cases which can be settled by awardingCompensation can be settled in Lok Adalats.

Role of Trade Unions

The workers are either represented by the union representative who may not be wellversed in law and may not be in a position to match professional ability, knowledgeand skill of the employer's representative. In some cases, workers are representedthrough legal practitioner-turned union leader who may be more interested in legalpractice than meeting the aspirations and concerns of the workers.

Role of Management

Generally, employers do not want disputes to be adjudicated on merit in LabourCourts or Tribunals. Often they raise technical points to get the reference rejected.They also seek time to try out the patience of workers in adjudication so that a no-dispute award is passed by the Labour Court due to the absence of workers.

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Personnel for the System Relationship with Judicial System

Labour courts and tribunals in India consist of only one person appointed by theappropriate government. A person who has worked as a High Court Judge or DistrictJudge, Additional District Judge for a period of not less than three years may beappointed as presiding officer of a Labour Court/ Industrial Tribunal. A person whoheld any judicial office in India for seven years or the post of presiding officer of aState labour court for five years may also be appointed as a presiding officer of aLabour Court/ Tribunal.

The Labour Courts and Tribunals are not bound to follow strictly the procedure laiddown in the Indian Evidence Act or Civil Procedure Code. They are also not requiredto follow the complex technical, legal procedure followed by the courts. The scopeand jurisdiction of labour court is much wider than the civil courts. The labour courtsand tribunals are required to adhere to the principles of natural justice. Rules 10B, 13to 30 lay down the procedure to be followed by the Labour Courts and Tribunals. TheLabour Courts unlike the civil courts can create new rights or obligation between theemployers and the workmen which they may consider essential for keeping theindustrial peace. [ Western India Automobile Associations vs. Industrial Tribunal,Bombay (AIR 1949); Bharat Bank Ltd. vs. Employees of Bharat Bank Ltd. (AIR 1950SC 188)].

Selection and Training of Labour Court/ Tribunal Manpower Planning Issues

As labour court judges are required to decide complex issues, they requireinduction training and retraining to perceive the change in their role aslabour adjudicators and the impact of their decisions on the national economy.One of the major causes for delay in adjudication is non-availability ofJudges for appointment as presiding officers. Timely and proper selection ofpresiding officers is necessary to avoid delay in dispute resolution. One of the mostcrucial issues relating to delay in adjudication is manpower planning. Seriousmanpower planning exercises like assessment of number of presidingofficers required, their qualifications of requirement, process of selection, training,etc. are required to be undertaken to develop professionals in the dispensation oflabour justice.

The 2 nd National Commission on Labour (2002) has made certain observations onnon-implementation of awards and denial of justice as these are very relevant andquoting them in extenso.

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Non-Implementation of Awards and Denial of Justice

Many witnesses have complained that the awards of Labour Courts and Tribunalsare not implemented by employers. The delay in implementing the awards cause alot of hardship to the concerned workmen and virtually amounts to denial of justice.The remedy in the existing law is for the enforcement authorities to launchprosecution under Section 29 of the Industrial Disputes Act. This remedy has notproved effective. It consumes time at every step. Moreover, the law as it stands onlyempowers the courts to impose fines. It does not empower the courts to ensureimplementation of the awards.

In the Central sphere itself, the number of unimplemented awards is approximately2,500. These involve approximately 20,000 workers. Most of these awards of Labour

Courts / Tribunals have granted relief of reinstatement or regularisation from certainspecified dates. Many of these awards lie unimplemented for five to fifteen years ormore.

We find that non-implementation of the awards of Labour Courts and IndustrialTribunals has become a major problem that paralyses the effectiveness of thedispute resolution machinery and thwarts the basic intentions of the ID Act.

In 70 to 80 per cent of writ petition cases the employer/management does not findsuccess, and the award is upheld. However, it is seen that the High Court decisionsin such writ petitions are pronounced only after three to five years and sometimeseven seven to eight years.

The management again takes their time and if the worker again makes a demandfor the implementation of the award, or if the Labour Department issues a legalnotice for the implementation, they again go on appeal to a larger bench of the HighCourt.

Most of the awards which employers/management challenge relate to theregularisation, reinstatement, back wages, etc. of a large number of workers. Often,awards in respect of individual worker too are challenged.

After 10 or 15 years when the employer/management loses in every court, it is oftenthat the concerned worker has disappeared from the scene.

It must be pointed out here that the Hon'ble Supreme Court had directed the

Government of India to set up a committee consisting of representatives of theMinistry of Industry, the Bureau of Public Enterprises and the Ministry of Law tomonitor disputes between ministries and between ministries and PSUs, to ensurethat no litigation went to the Court or a Tribunal without the matter being examined

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and cleared by the Committee for Litigation (Order dated 11 October 1991 in CivilAppeal Nos.2058-59 of 1988 in the case of ONGC vs. Collector of Central Excise ).

The Hon'ble Supreme Court further directed that every court and every tribunalwhere such a dispute is raised should first demand a clearance from the Committee,and in the absence of the clearance, refuse to take further proceedings. Theintention of the apex courts order is clearly to prevent litigation between departmentsand agencies of the Government.

But it has been seen that Public Sector Undertakings (PSUs) often file writ petitionsagainst the Labour Ministry, impleading the Labour Secretary, the LabourCommissioner and the Enforcement Officer as main respondents.

The situation in the State sphere private industrial units is even worse. They oftenmake it a point of prestige. Furthermore, awards with high financial implications arehardly ever implemented. Quite often they fail to enable workers to receive financialdues or back wages or compensation in spite of clear orders from the Courts.

Poor workers or their unions often find it difficult to defend their cases in the HighCourt or in the Supreme Court, as it costs them huge sums of money. Many timesthey approach employers or the Labour Commissioner for partial implementation ofthe award. After losing from all the courts and feeling pressurised from all corners,the employer pressurises the workers or unions to accept much less than what theaward has given them.

We, therefore, feel that if the existing unethical system of continuous denial of justice

is not changed, the workers will lose faith in the law, in labour administration and inthe labour judiciary. To remedy the situation it is essential that the award isimplemented immediately and the payment to the worker is started on the basis oflast salary drawn. This principle would apply to workers both in the private and in thepublic sector organisations. However, for public sector organisations, which want toprefer appeal against the orders of Labour Court, they should obtain permission of aScreening Committee to be set up by the appropriate Government.

If the above recommendation is accepted, it would go a long way in providing reliefto the workers.

Policy Recommendations

There is a need to review the industrial disputes resolution system in the light ofeconomic liberalisation, globalisation and restructuring of the economy. The changestaking place due to globalisation and market-driven economy demand that theapproach of voluntary resolution of disputes should take prime place and be

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strengthened over the legalistic approach of settlement of disputes by the courts.The workplace cooperation between employers and workers needs to be improved.The focus should be on bipartite consultation, building trust by information sharing atenterprise level and voluntary arbitration rather than resolution of disputes byadjudication.

As conciliation in rights disputes is not as effective as it is in interests disputes, itwould be appropriate to allow workmen to approach the Labour Court straight awaywithout going through the process of conciliation specially in disputes under Section2A.

There is a need for improvement of knowledge, skills and competency of conciliationofficers to enable them to win the confidence of employers and workmen. It is also

necessary to upgrade the skills of labour adjudicators to enable them to perceive thechange in their role as labour adjudicators and the impact of their decisions on thenational economy. Therefore, to improve the efficiency and effectiveness ofconciliation officers and labour adjudicators, induction training and periodicalrefresher courses should be provided on a regular basis.

The labour adjudication should encourage pre-trial hearing to settle the disputesamicably between the parties without involving any time-consuming procedures ofhearing.

Conciliators and adjudicators should be given sufficient staff and infrastructural back-up to improve efficiency. Support facilities, such as office equipment, library,transport and communication should be provided to conciliators and adjudicators.They should have access to information on all matters concerning industrial relationslike industrial statistics, human resource, long term settlements, retrenchments,dismissals, strikes and lockouts and judicial pronouncements. A data base should bebuilt by the Labour Ministry on all aspects related to industrial relations. Theconciliators and adjudicators should have access to such data base throughcomputer connectivity.

Whenever the conciliators are not in a position to settle the disputes they submit a'Failure Report' o the Government. These are commonly known as 'FOCs'. Thefactual reports submitted by the conciliation officers mention the efforts made bythem to investigate the disputes and also give a detailed analysis of the demandsmale by the trade unions and the response given by the managements. The reports

also give the details pertaining to the efforts made by the conciliation officers to settlethe disputes. If copies of these reports are given to the adjudicators, they will bebenefited to a great extent. They can use them as inputs in their understanding ofthe disputes though they are not bound by the analysis of the conciliation officers.

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Efforts Made by the Central Government to Set up More CGIT-cum-LCs

Acting on one of the proposals of the Working Group set up by the PlanningCommission on Labour Policy in the context of preparation for the 9th Five Year Planthat 15 additional CGIT-cum-Labour Courts may be considered for setting up duringthe 9% Five Year Plan to cope with the increasing number of cases, three CGIT-cum-Labour Courts in Chennai, Hyderabad and Bhubaneshwar were set up in the9th Five Year Plan. In the second phase another exercise was conducted to createfive more CGIT-cum-Labour Courts at Ahmedabad, Emakulam, Guwahati,Chandigarh and Delhi under the 9th Five Year Plan itself. However, they could notbe set up due to delay in receipt of the concurrence of the Ministry of Finance forcreation of essential posts.

Procedure for Filling up Vacant Posts of CGIT-cum-Labour Courts(Current Position)

For appointment of Presiding Officers in the CGIT-cum-Labour Courts, a panel ofnames is sought from the High Courts concerned in the States where CGIT-cum-Labour Court located and also from High Courts of the neighbouring States. Thepanel of names suggested by the High Courts are submitted for approval of theLabour Minister and the judicial officer selected by the Labour Minister is appointedas Presiding Officer.

With regard to the appointment of Presiding Officers in the five new CGIT-cum-Labour Courts, the position is as follows:

With the approval of Labour Minister, the post of Presiding Officer in CGITcum-Labour Court, Delhi-11 has been filled up.

It is expected that the CGIT-cum-Labour Courts at Ahmedabad, Eamakulam.Guwahati and Chandigarh will be functional by the end of this calendar year. At anypoint of time there are several vacancies in the post of Presiding Officers of CGITs.These are due to procedural delays involved in circulation of vacancies to theHigh Courts, collection of Curriculum-Vitae and annual confidential reports of the

judicial officers and seeking approval of the competent authority for theirappointment, etc.

The National Commission on Labour has recommended that officials of the Labour

Department at the Centre and the States who are of an above the rank of Deputylabour Commissioner/Regional Labour Commissioner with 10 years experience andhaving a degree in law may be eligible for being appointed as Presiding Officers ofLabour Courts.

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The State Governments of Haryana, Maharashtra, Gujarat and Madhya Pradeshhave relaxed qualifications of Presiding Officers of Labour Courts/Industrial Tribunalsto make officers of the State labour Department possessing prescribed qualificationsand experience, also eligible.

The expertise of these officers of the Labour Department in handling conciliation andmediation and also the degree in law or social work or social welfare will definitelyhelp them in expeditiously deciding the cases. Hence, once this recommendation isaccepted by the Central Government and other State Governments, it is hoped thatthere will be a vast reduction in the pendency of the cases before the adjudicatingauthorities.

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ANNEXURE I

State Labour Courts-cum-Industrial TribunalsThe number of Labour Courts (LCs), Industrial Tribunals (ITs) and Labour Court-cum-Industrial Tribunals (LC&ITs) set up by State Governments & Union TerritoryAdministrations as on 31.10.1998

S .No. Name of the State/ UT No of LC No. of IT No. of LC & IT Total

1 Andaman & Nicobar 1 1 0 22 Andhra Pradesh 6 2 3 11

3 Arunachal Pradesh 0 0 0 04 Assam 2 3 0 55 Bihar 14 3 0 176 Chandigarh 6 0 1 77 Dadra & Nagar Haveli 1 0 0 18 Daman & Diu 1 0 0 19 Delhi 10 3 0 1310 Goa 1 0 1 211 Gujarat 41 17 0 5812 Himachal Pradesh 0 0 1 113 Haryana 0 0 7 714 J&K 0 0 1 115 Kerala 4 5 0 916 Karnataka 12 4 0 1617 Lakshadweep 0 0 0 018 Meghalaya 1 0 1 219 Maharashtra 40 28 0 6820 Manipur 0 1 0 121 Madhya Pradesh 26 5 0 3122 Mizoram 0 1 0 123 Nagaland 1 1 0 224 Orissa 3 1 0 425 Punjab 6 1 0 7

26 Pondicherry 3 1 0 427 Rajasthan 1 1 7 928 Sikkim 0 0 0 0

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S .No. Name of the State/ UT No of LC No. of IT No. of LC & IT Total

29 Tripura 3 3 0 630 Tamil Nadu 10 1 0 1131 Uttaar Pradesh 19 6 0 2532 West Bengal 2 9 0 11

Total 214 97 - 333

Source: Annual Report of the Ministry of Labour 2000-2001 (Part-1)

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ANNEXURE II

Statement Showing the Number of Cases Pendingin Each Labour Court in Every State Indicating

Separately the Cases Pending for More than10 years (Information upto 10.05.2000)

S.No. Name of the State /UT No. of Cases Pending atPresent

No. of Cases Pendingfor More Than 10

Years1 Andaman & Nicobar 128 002 Andhra Pradesh 11674 473 Arunachal Pradesh There is no Labour Court / I. Tribunal In the State4 Assam 189 1385 Bihar 5200 5666 Chandigarh 1428 67 Dadra & Nagar Haveli 2 008 Daman & Diu 15 009 Delhi 28837 234210 Goa 175 0011 Gujarat 133916 861612 Haryana 11803 0013 Himachal Pradesh 935 00

14 J&K 90 415 Kerala 3450 6316 Karnataka 17457 292417 Lakshadweep There is no Labour Court 1 I. Tribunal In the State18 Meghalaya There is no Labour Court 11. Tribunal In the State19 Maharashtra 142345 1150820 Manipur 00 0021 Madhya Pradesh 89341 0022 Mizoram There is no Labour Court/ I. Tribunal In the State23 Nagaland 4 0024 Orissa 4588 2825 Punjab 14784 11026 Pondicherry 128 127 Rajasthan 20066 77528 Sikkim There is no Labour Court/ I.Tribunal In the State

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S.No. Name of the State /UT No. of Cases Pending atPresent

No. of Cases Pendingfor More Than 10

Years29 Tripura 6 0030 Tamil Nadu 21713 15031 UttarPradesh 22539 130332 West Bengal 2225 283

Total 533038 28864

Source: Answer provided to a question in Parliament.

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ANNEXURE III

Statement Showing the Year-wise Numberof Cases Disposed of During theLast Three Years in Each State

S.No.

Name of the State /UT No. of Cases Disposed of During the Last Three Years,Year-wise

1997 1998 19991 Andaman & Nicobar 41 10 212 Andhra Pradesh 3381 2686 3713

3 Arunachal Pradesh There is no Labour Court/ Industrial Tribunal in the State4 Assam 265 255 1895 Bihar 706 1107 6956 Chandigarh 574 520 6917 Dadra & Nagar Haveli NIL NIL NIL8 Daman & Diu 6 NIL 19 Delhi 4092 13591 1316910 Goa 35 2 4 9311 Gujarat 32057 24154 2746112 Himachal Pradesh 457 197 35413 Haryana 2703 4116 364614 J&K * 18 1015 Kerala 990 723 74316 Karnataka 3160 3722 297917 Lakshadweep There is no Labour Court/ Industrial Tribunal in the State18 Meghalaya There is no Labour Court/ Industrial Tribunal in the State19 Maharashtra 25244 26995 2715920. Manipur NIL NIL NIL21 Madhya Pradesh 22584 26665 2669822 Mizoram There is no Labour Court/ Industrial Tribunal in the State23 Nagaland 4 cases have been disposed of during these three years24 Orissa 1074 755 142425 Punjab 6616 5332 4569

26 Pondichery 42 110 3627 Rajasthan 3039 2416 242728 Sikkim There is no Labour Court/ Industrial Court/Industrial Tribunal in the Sate

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S.No. Name of the State /UT No. of Cases Disposed of During the Last Three Years,Year-wise

1997 1998 199929 Tripura 2 NIL 230 Tamil Nadu 4707 4542 587131 Uttar Pradesh 9103 7304 528432 West Bengal 417 479 395

Total 121295 125739 127630

J&K not provided the figures for the year 1997.

Source: Answer provided to a question in Parliament.

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ANNEXURE V

Pendency Statement Upto July 2003

Cases ApplicationsS.No. Name of CGIT

B/F fromPrevious

Month

Recei-ved

Dis-posed

Pen-ding

B/F fromPrevious

Month

Recei-ved

Dis-posed

Pen-ding

1 Mumbai-I 183 35 36 182 64 26 28 622 Mumbai-II 335 43 77 301 411 60 123 3483 Dhanbad-I 1739 65 85 1719 376 22 14 3844 Dhanbad-II 1337 59 178 1218 32 -- -- 845 Asansol 419 27 35 411 74 9 0 836 Kolkata 149 7 2 154 157 0 0 1577 Chandigarh 1783 136 98 1821 293 18 59 2528 New Delhi 1144 101 25 1220 290 22 6 3069 Kanpur 636 17 12 641 611 37 7 64110 Jabalpur 1368 129 35 1462 548 149 45 65211 Chennai 318 118 65 371 35 21 28 2812 Bangalore 314 42 34 322 133 37 18 15213 Hyderabad 516 70 25 561 639 224 214 64914 Nagpur 423 194 15 602 - -- -- -15 Bhubaneshwar 393 28 58 363 84 26 21 8916 Lucknow 337 76 51 362 32 10 11 3117 Jaipur 90 43 15 118 143 13 96 60

Total 11484 1190 846 11828 3922 674 670 3978

Source: Answer provided to a question in Parliamen

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Making Conciliation EffectiveC.S. Venkata Ratnam

Conciliation is an extension of the bargaining process in which the parties try to recon-

cile their differences. A third party acting as an intermediary independent of the twoparties and acting impartially seeks to bring the disputants to a point where they canreach agreement. The conciliator has no power of enforcement and does not activelytake part in the settlement process but acts as a broker, bringing people together. Theattitudes of parties have a significant bearing on the effectiveness of conciliation. It isnot uncommon that they resort to dilatory tactics resulting in an endless chain of jointmeetings and conciliation proceedings 1.

Conciliation is often seen as an essential first step in the resolution of interest disputessince compromise could be expected 2. In respect of rights disputes, however, the scopefor compromise being limited, conciliation usually has little or no role. The objective of conciliation in rights disputes should be limited to clarifying the facts and the rights andobligations of the parties rather than to encourage any party to compromise on his/her rights. The increasing role of conciliation in rights disputes points to the blurring of thedistinction between disputes over rights and interests.

Conciliation begins when bargaining is deadlocked. It is referred to assisted bargainingand a peace-making, confidential, consensus building flexible process to reconciledifferences and facilitate agreement. Its success hinges on trust, confidence, credibilityand relationship building by the conciliator.

Conciliation and mediation are third party mechanisms to assist parties to negotiationduring the process of negotiation, particularly when they are deadlocked. Conciliation

and mediation are generally used as synonyms. However, in conciliation the conciliator,who is a third party, brings the parties together, encourages them to discuss their differences and assists them in developing their own proposed solutions. In mediation,the mediator plays a more active role in assisting the parties to find an acceptablesolution, and may even submit his/her own proposals for settlement to the parties. Of course the parties are free to reject the proposals.

2

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Conciliation is voluntary when parties are free to make of use of it if they wish. It iscompulsory when they are required to participate in the conciliation process. But suchcompulsion is only in terms of participation in the process, but not accepting theproposals, if any, of the conciliator.

The Industrial Disputes Act, 1947 assigns the conciliation machinery the role of mediationand settlement of industrial disputes. Under the Industrial Disputes Act, 1947 theappropriate government appoints the conciliation officers (they are not independentauthorities), makes reference of industrial disputes for adjudication, receives andpublishes the awards of the adjudicatory bodies and enforces such awards as also thesettlements entered into bilaterally [Section 2(p),18] or through the efforts of theconciliation officer [Section 12(3)] or a Board of Conciliation [Section 13(2)]. Thegovernment has the power to prosecute any person who breaches any term or settlementor an award (Section 29). It is clear that in India conciliation is not voluntary, notindependent, and not autonomous.

For a proper appreciation of the statutory fore of conciliation, as Rao 3 asserts, it isnecessary to distinguish between conciliation proceedings from joint meetings: Under Section 20 of Industrial Disputes Act conciliation proceedings in respect of a publicutility service is deemed to have commenced on the date on which the conciliationofficer receives a notice of strike or lockout. It means that in such cases the matter stands automatically and directly admitted in conciliation without any interveningproceeding. Thus, deemed conciliation is an extreme statutory measure applicable onlyto public utility services. Where, (a) the undertaking being a public utility service, no

such notice of strike or lock-out has been served; or (b) either party makes a request tothe conciliation officer to intervene; or (c) the dispute relates to a non-public utility serviceand one of the parties makes a request for intervention the conciliation officer doesnot straightaway admit the dispute in conciliation, but fixes a date or a joint meeting of the parties. The concept of joint meeting is not contemplated by the Industrial DisputesAct, but is implied in the phrase the conciliation officer may do all such things hedeems fit [Section 12(2)]. He has absolute discretion to hold ay number of joint meetings,before formally admitting the dispute in conciliation. Joint meetings are informal andnon-statutory, whereas conciliation proceedings are formal and statutory. A settlementreached in the course of joint meeting per se is not a settlement arrived at in the courseof conciliation proceedings within the meaning of Section 18(3), notwithstanding thefact that the conciliation officer is a signatory to it. Such a settlement stands on thesame footing as the one reached at the bipartite level, i.e., under Section 18(1) and isbinding only on the parties thereto. On the other hand, a settlement arrived at in thecourse of a formal conciliation proceeding is binding not only on the parties to the dispute,but also on the whole body o workmen employed in the establishment and thoseconcerned, in the dispute. Joint meetings provide ample opportunity to the conciliationofficer to gauge the magnitude of the dispute, the extent of variance in rival positions

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Making Conciliation Effective 25

and the gravity of the situation and help him in deciding when to initiate formal conciliationproceedings. The importance of conciliation lies in that once the proceedings commence,the parties cannot resort to a strike or lockout, while no such prohibition operates duringthe phase of joint meetings. Another reason for holding joint meetings is the absence of a statutory deadline requiring the conciliation officer to send a report to the government,whereas submission of report within 14 days is mandatory in the case of a conciliationproceeding under Section 12(6).

INTERNATIONAL LABOUR STANDARDS

International labour standards on dispute settlement leave room to accomodate diversesituations in different countries. There is no ILO convention which mandates the

establishment of a labour court. The ILO conventions and recommendations present awide range of instruments to deal with dispute resolution. The following of the importantconventions which deal with the subject 4 :

The Voluntary Conciliation and Arbitration Recommendation, 1951 (No.92)focuses on the importance of recourse to voluntary machinery for the resolutionof disputes. The Recommendation calls for voluntary conciliation machinery tobe made available to assist in the prevention and settlement of industrial disputes.The procedure should be free of charge and expeditious. Where a dispute hasbeen submitted voluntarily to arbitration, the Recommendation goes on statethat the parties should be encouraged to refrain from strikes and lockouts andaccept the arbitration award.

In the area of interest issues the Collective Bargaining Convention, 1981 (No.151)stresses the importance of voluntary dispute settlement procedure. Article8 of the Labour Relation (Public Service Convention, 1978 (No.151) states thatThe settlement of disputes arising in connection with the determination of terms and conditions of employment shall be sought, as may be appropriateto national conditions, through negotiation between the parties or throughindependent and impartial machinery, such as mediation, conciliation andarbitration, established in such manner as to ensure the confidence of theparties involved.

In the area of rights disputes, the Examination of Grievance Recommendation,1967 (No.130) provides the following procedures in the event all other efforts tosettle the grievance within the undertaking have failed:

Procedures provided by collective agreement, such as joint examinationof the case by the employers and workers organizations concerned or voluntary arbitration by a person or persons designated with the agreementof the employer and worker concerned or their respective organizations;

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Conciliation or arbitration by the competent authorities;

Recourse to a labour court or other judicial authority;

Any other procedure which may be appropriate under national conditions.

PROBLEMS / ISSUES

The conciliation machinery and conciliation proceedings suffer from the followingproblems 5 :

Inadequate Manpower.

Low Status.

Poor Infrastructure.Politicised polarization among the parties to dispute.

Lack of trust between and rigid attitudes among the parties to dispute and their narrow self interests.

Legalistic orientation of parties to dispute.

Absence of proper system for grievance redressal within most enterprises.

Delays in conciliation more due to pressure tactics of parties than heavy workload on conciliation officers.

Conciliation system is intertwined with the adjudication system and worksas the invisible stage of adjudication. The problem became acute with theSupreme Court severely restricting the discretionary power of the appropriategovernment not to refer individual disputes relating to termination 6. Sincereference decisions are made after submission of the failure report of theconciliation officer, conciliation in such cases tends to become a mereformality.

Difficulties and usual failure of conciliation in dealing with cases of individualcases of termination of employment where employers would be usually unwillingto reconsider their decision and workers and unions reluctant to accepttermination without taking the law take its full course. In such a scenario the

conciliation officers are usually less motivated to make much effort in dealingwith cases of unfair dismissals, discharge, termination, etc.

Multiple roles of conciliators with responsibility for the enforcement of variousother labour laws which are often numerous.

Political interference.

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2ND NATIONAL COMMISSION ON LABOUR ON CONCILIATION

The 2 nd National Commission on Labour 7 made the following observations andrecommendations regarding conciliation.

There is a popular perception that conciliation is not effective in resolving industrialdisputes. This is only partially correct. In 1999-00, 741 out of 783 threatenedstrikes were averted (success rate 94.6%). In 2000-01, 622 out of 630 threatenedstrikes were averted (success rate 98.7%).

Conciliation has not been effective in the case of rights disputes, as in the caseof interest disputes. In fact, conciliation has an impressive record in interest disputes.

Conciliation machinery is more eager to consider the problems of employerstoday.

Conciliation should be optional on rights issues (dismissals, promotions,etc.). Parties should have right to go to labour court and labour relationscommissions.

Conciliation should be compulsory only in the case of industrial disputes relatedto disputes like wages, allowances, fringe benefits, etc.

Conciliation should also be compulsory in the case of strikes and lockouts over any issue.

Conciliation officer should be clothed with sufficient authority to enforceattendance at proceedings of the conciliation.

The conciliation officer will carry out such directions as may be given by theLabour Relations Commission in addition to performing their duties as prescribedunder the Law.

Inspectors should not be appointed as conciliation officers as that may underminethe efficiency of conciliation officers.

Individual worker disputes to be referred first to Grievance Redressal Committeeand if they fail to other levels conciliation, arbitration and adjudication.

In rights issues parties should have right to go to labour courts/labour relationscommission straight away.

Collective bargaining plus inbuilt arbitration will result in speedy disputeresolution.

Labour courts, lok adalats, labour relations commissions and adjudicationsystem.

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All India Labour Adjudication Service should be established.

Creation of autonomous Industrial Relations Commissions at central and statelevel with conciliation and adjudication powers.

Powers of Supreme Court to National Industrial Relations Commission.

ALTERNATIVE MECHANISMS

The Harvard Law Schools negotiation project established four principles which providethe basis for effective resolution of disputes:

Focus on problem, not the person

Focus on interests, not take position

Multiply optionsInvent mutually agreeable procedures

Focus on win-win solutions

If parties to a dispute adhere to the above principles disputes can be minimizedand handled at bipartite for a without the need of even a conciliator, arbitrator or adjudicator.

There is a need for some changes in the present system of conciliation and adjudicationof industrial disputes. Many European labour courts provide for pre-trial hearings to beheld to establish the facts of the case and to provide the parties with an opportunity to

reach a settlement. Conciliation is one of the principal means employed to expeditematters and reduce the case load of the labour courts by encouragement settlements.In Germany, conciliation proceedings will be held before the presiding judge of the labour court with a view to encourage the parties to reach an amicable settlement. Thisconciliation process is mandatory. In France, the labour court is bifurcated into a bureauof judgement and a bureau of conciliation. The members of the labour court rotate fromone bureau to the other. The member of the court may also make proposal for settlement,moving the process from conciliation to mediation. The parties are free to accept or reject the proposals. The U.K. has a tripartite statutory, but independent and autonomousAdvisory Conciliation and Arbitration Service (ACAS). When a complaint is presented toan industrial tribunal, a copy is sent to ACAS. The conciliation officer can contact theparties and initiate conciliation proceedings. The concerned parties, however, can choosewhether or not to participate in the conciliation proceedings.

In the event that is not possible, besides the mechanism envisaged under the IndustrialDisputes Act, 1947, the following alternatives are available and tested with success inseveral parts of India. Some of them for instance, Lok Adalats are being increasinglyused to clear the huge backlog of cases and expedite justice:

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Panchayat/community based system of diagnosis and recommendations

Labour Lok Adalats which take justice to the door step of litigants and provideexpeditious on the spot resolution of disputes

Permanent negotiating machinery (as in steel industry) whereby the bipartitemachinery established for negotiating agreements also takes up the responsibilityto resolve disputes and monitor implementation

Encourage voluntary arbitration

Working together, the ILO sponsored South Asia and Vietnam Project onTripartism (SAVPOT) experience that documented case studies of successfulbilateral mechanisms to address issues of corporate performance and disputemechanism through consultation, communication and cooperation.

CONCLUSIONS AND RECOMMENDATIONS 8

In the context of intensifying global competition, there is a need to change mindset fromlegalism to humanism and adversarialism to cooperation in labour management relations.Voluntarily resolution of disputes should be encouraged because norms which areestablished and agreed upon by the parties will be respected better than those imposedby third party. Effective grievance redressal mechanism at enterprise level, two-waycommunication and encouragement to bipartism will go a long way in promoting mutualtrust and cooperation which are conducive to amicable and voluntary resolution of disputes by the parties themselves. The measures adopted by the State to reform the

dispute resolution process should not restrict the development of collective bargaining.Moral persuasion through the mechanism of tripartite discussion should be used tostimulate appropriate behaviours/attitudes in dispute settlement.

The 2nd NCL observed that the conciliation machinery is today more considerate toproduct market considerations. Does it mean that they are neglecting labour marketaspects? In West Bengal, for instance, a region-cum-industry wide wage agreement issigned. Soon thereafter another agreement is signed exempting the operation of theagreement to certain financially unviable units. Collective agreements in unorganisedsector provide for less than the legal minima. Some unusual (which are becomingusual now) collective agreements provide for clauses which conflict with certified serviceconditions and certain clauses in Industrial Disputes Act. What should be the role of conciliators who certify such agreements?

When parties agree to aspects that go below legal minima due to certain perception of ground level realities, should conciliators endorse or certify such agreements? In thenewspaper industry, over 40 per cent of the news paper establishments in West Bengaland Bihar did not honour the Bachawat award. The Supreme Court ordered that the

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minimum wage rates prescribed by the Wage Board must be paid. When the issuewas raised in the parliament, the Parliament reiterated the decision of the SupremeCourt. Still most establishments were not paying and the unions in such enterpriseswere hesitating to go on protest for fear that if they press too hard the employers mightclose the units which are already unviable and their members may lose whatever subsistence pay they are getting. In such cases conciliators face moral and ethicaldilemmas.

The following steps will make conciliation more effective:

Establish a separate, specialized cadre for conciliation/mediation

Equip the conciliators with proper role, authority commensurate with responsibility,and infrastructure and other facilities for effective functioning without dependenceon the parties to dispute for physical facilities and other resources required for undertaking the conciliation/mediation.

Provide structured, continuous training to update the knowledge and skill baseof conciliators.

Focus on preventive conciliation and workplace cooperation.

Conciliation in individual disputes concerning unfair dismissals, termination,retrenchment, discharge, etc., may be optional. Parties should have the optionto directly approach labour courts to ease the load on and to avoid unnecessarydelays in conciliation.

There should be time-bound network of conciliation, reference and adjudication.If the conciliation does not result in a settlement within that time, the matter will be deemed to have failed in conciliation. After the failure/deemed failure of conciliation, government will have the prescribed time for deciding whether or not to make a reference. If the reference is not made within the prescribed time,the matter will be deemed to have been referred. A time-frame of three monthsfor each of these two stages appears adequate.

A time limit of one year should be prescribed for raising industrial disputes and atime limit of two years for making applications under Section 33 C (2) of theIndustrial Disputes Act.

Laws should be amended for recognition of majority unions with exclusive right

of representing workmen and settlements, entered by such union(s), be madebinding on all the workmen in the industry, including those workmen who are notmembers of the union.

The lawyers should be permitted to represent parties before industrial tribunals/labour courts because restriction on their appearance was leading tomalpractices, like engagement of lawyers by the organizations of workers and

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employers as office bearers. Consequent deficiency in legal advice could resultin shortcomings in examination and cross examination of witnesses and failureof justice.

An automatic permanent injunction on raising of dispute under Section 33 of theIndustrial Disputes Act encourages the culture of raising disputes at the slightestprovocation. Law should not confer any advantage on those who raise disputes,as against those who do not. The discretion to grant or refuse injunction under Section 33 should rest with the tribunal/labour court/conciliator, based on themerits of each case.

Special courts could be established to deal with the accumulated backlog of disputes pending in courts.

Lok Adalat system could be tried at the state and the district levels to deal withindividual disputes.

The Government should take urgent steps to enact a law providing for Labour Relations Commissions at the Central and State levels for interest and individualdisputes, except termination disputes. The commissions should have one judicialand two non-judicial members each. The Labour Relations Commissions shouldperform the function of certification of bargaining agents and bargaining councils,determination of the level at which collective bargaining shall be held, mediationof disputes if desired by disputant parties, and adjudication of disputes not settledby any of the above methods. The National Labour Relations Commissions is tohave powers exercisable by the Supreme Court of India under clause 2 o article32 of the Constitution of India in so far as labour matters are concerned. Aregular cadre of labour conciliators, mediators and adjudicators should be drawnfrom experienced persons in related field to man the Labour RelationsCommissions. It is desirable to include employers and workers representativein dispute settlement machinery.

The governments role in dispute resolution should be limited to setting up aninstitutional framework rather than intervening directly in the dispute resolutionprocess. The government should play no part in referring cases to labour courts.

There is a need for a data base to support policy formulation and reform in

dispute settlement area.

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REFERENCES

1. E. M. Rao (2001), Globalization and Dispute Settlement Process, The Indian Journal of Labour Economics, Vol. 44(3). Pp. 459-474.

2. The National Commission on Labour (1969; 323) observed, conciliation is looked upon very oftenby the parties as merely a hurdle to be crossed for reaching the next stage.

3. E. M. Rao (2001). Pp.460-1.

4. Shauna Olney (1997), European Labour Court Experiences, in A. Sivananthiran (1997), Labour Adjudication in India, New Delhi: ILO-SAAT, pp. 112-113.

5. Cf. Saini, Debi S. (1997), Labour Court Administration in India, in A. Sivananthiran, Labour Adjudication in India, New Delhi: ILO-SAAT.

6. Ram Avtar Sharma & Others v. The State of Haryana (1985 Lab.I.C.1001).

7. Government of India (2002), Report of the 2nd National Commission on Labour, New Delhi:Ministry of Labour.

8. This section draws from the recommendations of the 1st and 2nd National Commissions onLabour as well as the conclusions of the High-level tripartite roundtable of experts on labour courtadministration in India conducted by the International Labour Organisation Delhi office at New Delhiduring 30-31 May 1996.

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Role of Conciliation Officersin the Resolution of Industrial DisputesSubesh K. Das 1

Cooperation between management and labor is essential for success of any firm.Accordingly labor policy prescribes measures to secure and sustain cooperation bylimiting the chances of conflict between management and union. In spite of such policiesin favor of cooperation, the workers and employers are often found in conflict situations,which is not uncommon even in firms known for good labor-management relations. Inorder to maintain cooperation, whenever a dispute arises or is imminent, it is necessaryto make sincere efforts to resolve it amicably and without any delay. In general,management and labor try to resolve their differences bilaterally. If it fails, two coursesof actions are open to them. One is to resort to direct action normally strike or lockoutor other forms of protests. The other option is to invite a third party to assist them tocontinue their resolution of disputes or to give them an award. Strikes and lockouts notonly affect the parties in conflicts, but also the community at large and the nation as awhole. It is thus the latter course of action that is often resorted to.

The tripartite techniques of dispute resolution are of three types based on the nature of involvement of the third party fact-finding, conciliation, and adjudication/ arbitration. Of the three, conciliation is a more democratic technique as the parties to the disputeretain their freedom and right to determine the manner in which their dispute should besettled. In conciliation, the third party or the conciliator helps negotiations but there is nocompulsion on the part of the parties to accept the solution of the third party. Theconciliator tries to reconcile the differences by offering suggestions and alternateproposals, but he does not impose his decisions on the parties. The third party acts asa catalyst, whose fresh views, suggestions, proposals, and knowledge from similar cases, and the dignity of his office facilitate agreements between the disputants. Hehas no power of decisions. He uses his expertise of diplomacy and mental acutenessas contrasted with judicial decision-making in adjudication and arbitration. His initiative

3

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and ability to a large extent influence conciliation outcomes. In spite important rolesconciliators in the conciliation process, few studies have focused on their roles andhow they can be more effective. In the following pages we discuss the role of conciliator in resolution of industrial disputes and provide an analysis of their key strategies.The objective is not only to resolve disputes, but also to resolve in a way that issustainable.

INDUSTRIAL DISPUTES, CONCILIATION, AND CONCILIATORS:

Industrial dispute arise because of differences between the employer and the workmanor a body of workmen connected with the employment or non-employment or the termsof employment or the conditions of labor, of any person 2. Section 2(k) of the Act gives a

broad definition of industrial dispute, but most often it refers to disputes betweenemployers and their employees 3. Industrial disputes involving employers and employeescan be classified into two groups individual disputes and collective disputes. Thecollective disputes are connected with terms of employment and the condition of labor in general involves economic interests of both management and labor. They involvegroups of workers and lend themselves a good amount of negotiations and assistedbargaining. In contrast to such collective disputes, the disputes connected with non-employment usually involve a disciplinary action, or incapacity of employer to employsurplus labor, or unwillingness of the employer to continue employment of a workmanfor reasons like habitual absence, low productivity. The Industrial Disputes Act 1947has provision for conciliation of such disputes and adjudication is seen as a consequentialprocess. Section 2A of the Act has further strengthened the position by declaring allsuch individual disputes as industrial disputes and giving individual workers the legalauthority to submit termination disputes for conciliation.

The Industrial Disputes Act 1947 provides the legal framework for the conciliation of industrial disputes. It provides for conciliation by the conciliation officers and Boards of Conciliation. Of the two, the use of standing conciliation machinery consisting of theconciliation officers appointed by the appropriate governments is the most commonmethod of conciliation. This paper focuses on the roles of the conciliation officers inresolution of industrial disputes. The issues are discussed in terms of conciliationmachinery, duties and powers of conciliation officers, conciliation procedure, settlementof disputes, and other related matters. The discussion includes legal aspects of

conciliation and the techniques that the conciliators can apply in resolving industrialdisputes. The conciliation officers need to know the various provisions in the Act relatingto conciliation, their amendments by central and state government depending on theappropriate government he represents and interpretation by the Supreme Court and theHigh Courts 4. Further, he must also know the legal provisions in other acts that apply tosubject matters of specific disputes.

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Role of Conciliation Officers in the Resolution of Industrial Disputes 35

Conciliation is a profession, but unlike other professions the conciliators are drawnfrom different fields and professions. A conciliator is not a person educated and trainedin a specialized school of mediation. He learns the art of conciliation by experience andapprenticeship once he is drafted into the profession either by accident or by appointment.He has no tools and no rules. His professional equipment consists of subtle, formlesspersonal elements whose identification is a difficult task. In Indian context, conciliatorscan be classified in to two types: (1) the professional conciliators, and (2) the distinguishedoutsiders. The professional conciliators are appointed by the State, while in the case of the distinguished outsiders the parties in disputes approach them because of their reputation and qualities or the office they hold. Usually the outsiders are politicalpersonalities a minister, a member of legislative assembly, an officials in generaladministration like the district magistrates or sub-divisional officers, or any other person

with a position to reckon with5

. More often than not, such mediators act more asarbitrators than as the mediators or at least they use a mix of mediation and arbitration.The discussions in this paper focus on the roles of the professional conciliators appointedby the governments.

Conciliation is a process of diplomatic efforts by a neutral third party. The conciliationofficers typically appointed by the government to intervene in industrial disputes andassist the workmen and management through persuasion, advice, and alternateproposals, etc, to resolve the disputes and arrive at a voluntary settlement. The conciliationofficers are appointed under section 4(1) of the act and section 4(2) defines their

jurisdiction. In India, the conciliation system is quasi compulsory. Seeking conciliation iscompulsory on the part of the workmen and management in a public utility service if thedispute results in a strike or lockout or when the parties intend to resort to direct action.It is voluntary in other situations. Section 12(1) of the act casts a compulsory duty on aconciliation officer to intervene in the disputes related to public utility services when hereceives a notice for strike or lockout under Section 22. Further, conciliation is of twotypes- disputes conciliation and preventive conciliation. Besides intervening in the existingindustrial disputes, the conciliation officers are also expected to apprehend the disputesand promote fair and amicable settlements.

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