Page 189 - DMGT306_MERCANTILE_LAWS_II

Mercantile Laws – II

Notes

Notes Lock out is an antithesis to strike. Just as “strike” is a weapon available to the
employees for enforcing their industrial demands, a “lock out” is a weapon available to
the employer to persuade by a coercive process the employees to see his point of view and
to accept his demands (Express Newspapers (P) Ltd. v. Their Workers (1962) II L.L.J.
227 S.C.).

(vii) Lay-off

“Lay-off” (with its grammatical variations and cognate expressions) means the failure, refusal
or inability of an employer to give employment due to following reasons, to a workman whose
name appears on the muster-rolls of his industrial establishment and who has not been retrenched:

(a) shortage of coal, power or raw materials, or
(b) accumulation of stocks, or
(c) break-down of machinery, or
(d) natural calamity, or

(e) for any other connected reason. [Section 2(kkk)]

Example: Every workman whose name is borne on the muster rolls of the industrial
establishment and who presents himself for work at the establishment at the time appointed for
the purpose during normal working hours on any day and is not given employment by the
employer within two hours of his so presenting himself shall be deemed to have been laid-off
for that day within the meaning of this clause.
Provided that if the workman, instead of being given employment at the commencement of any
shift for any day is asked to present himself for the purpose during this second half of the shift
for the day and is given employment, then, he shall be deemed to have been laid-off only for
one-half of that day.
Provided further that if he is not given any such employment even after so presenting himself,
he shall not be deemed to have been laid-off for the second half of the shift for the day and shall
be entitled to full basic wages and dearness allowance for that part of the day.
From the above provisions, it is clear that lay-off is a temporary stoppage and within a reasonable
period of time, the employer expects that his business would continue and his employees who
have been laid-off, the contract of employment is not broken but is suspended for the time
being. But in the case of M.A. Veirya v. C.P. Fernandez, 1956-I, L.L.J. 547 Bomb., it was observed
that it is not open to the employer, under the cloak of “lay-off”, to keep his employees in a state
of suspended animation and not to make up his mind whether the industry or business would
ultimately continue or there would be a permanent stoppage and thereby deprive his employees
of full wages. In other words, the lay-off should not be mala fide in which case it will not be lay-
off. Tribunal can adjudicate upon it and find out whether the employer has deliberately and
maliciously brought about a situation where lay-off becomes necessary. But, apart from the
question of mala fide, the Tribunal cannot sit in judgement over the acts of management and
investigate whether a more prudent management could have avoided the situation which led to
lay-off (Tatanagar Foundry v. Their Workmen, A.I.R. 1962 S.C. 1533).
Further, refusal or inability to give employment must be due to (i) shortage of coal, power or
raw materials, or (ii) accumulation of stock, or (iii) break-down of machinery, (iv) natural

184 LOVELY PROFESSIONAL UNIVERSITY