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India - Avenues for redress (penalties, remedies) and litigation procedure for individual complaints

Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - India - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

  • Sec. 11A of the IDA states:
    "Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
    Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter"

Compensation for unfair dismissal - Are there legal limits?: No

Reinstatement available: Yes

  • Sec. 11A IDA

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

  • Sec. 7 IDA

Existing arbitration: Yes

  • Sec. 10A IDA reads as following:

    "Voluntary reference of disputes to arbitration-(1) Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred under section 10 to a Labour Court or Tribunal or National Tribunal, by a written agreement, refer the dispute to arbitration and the reference shall be to such person or persons (including the presiding officer of a Labour Court or Tribunal or National Tribunal) as an arbitrator or arbitrators as may be specified in the arbitration agreement.

    (1A) Where an arbitration agreement provides for a reference of the dispute to an even number of arbitrators, the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purpose of this Act.]

    (2) An arbitration agreement referred to in sub-section (2) shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed.

    (3) A copy of the arbitration agreement shall be forwarded to the appropriate Government and the conciliation officer and the appropriate Government shall, within '[one month] from the date of the receipt of such copy, publish the same in the Official Gazette.

    (3A) Where an industrial dispute has been referred to arbitration and the appropriate Government is satisfied that the persons making the reference represent the majority of each party, the appropriate Government may, within the time referred to in sub-section (3), issue a notification in such manner as maybe prescribed; and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator or arbitrators.

    (4) The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be.

    (4A) Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3A), the appropriate Government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.

    (5) Nothing in the Arbitration Act, 1940 (10 of 1940) shall apply to arbitrations under this section."

Burden of proof: worker

  • There is no presumption in favour of employment status. The burden of proof lies on the person claiming the status of “workman” under the Act (See: Supreme Court, Workmen of Nilgiri Cooperative Marketing Society)