Section 35 Industrial Disputes Act 1947 - Protection of Persons

Section 35 of the Industrial Disputes Act, 1947 protected a person who refused to take part, or continue to take part, in a strike or lock-out that was illegal under the Act. The corresponding current provision is Section 93 of the Industrial Relations Code, 2020.

Current law: Section 93 of the Industrial Relations Code substantially preserves the protection formerly contained in Section 35. A person who refuses participation in an illegal strike or lock-out cannot, merely because of that refusal or action taken under the section, be expelled, fined, deprived of rights or benefits, or otherwise disadvantaged by a Trade Union or society.

Section 35 Industrial Disputes Act 1947

Section 35(1) - Protection for refusing an illegal strike or lock-out

A person refusing to take part or continue to take part in a strike or lock-out that was illegal under the Industrial Disputes Act could not, because of that refusal or action taken under Section 35, be expelled from a trade union or society, subjected to a fine or penalty, deprived of any right or benefit otherwise available to that person or legal representatives, or placed directly or indirectly under any disability or disadvantage compared with other members.

The protection operated notwithstanding anything contrary in the rules of the trade union or society.

Section 35(2) - Civil Court remedy

A rule of a trade union or society requiring disputes to be settled in a particular manner did not apply to proceedings enforcing a right or exemption secured by Section 35. In such proceedings, instead of ordering restoration of an expelled person to membership, the Civil Court could direct payment from the funds of the trade union or society of such compensation or damages as the Court considered just.

Legacy provision: Section 35 remains relevant where the Industrial Disputes Act continues to govern or is preserved by applicable saving or transitional provisions. For the present Industrial Relations Code framework, Section 93 is the direct corresponding provision.

Section 93 Industrial Relations Code 2020 - Protection of Persons

Section 93 carries forward the substance of former Section 35. Its protection applies when a person refuses to participate or continue participating in a strike or lock-out that is illegal under the Industrial Relations Code.

Protection against Trade Union or society action

Section 93(1) prevents adverse consequences based on such refusal or action taken under the section. The protected person cannot on that account be subjected to expulsion from a Trade Union or society, a fine or penalty, deprivation of a right or benefit to which that person or the person's legal representatives would otherwise be entitled, or any direct or indirect disability or disadvantage compared with other members.

Trade Union rules cannot override the protection

The statutory protection applies notwithstanding a contrary rule of the Trade Union or society. Internal rules therefore cannot lawfully remove the protection conferred by Section 93.

Civil Court enforcement and compensation

Section 93(2) provides that a Trade Union or society rule requiring disputes to be settled in a particular manner does not apply to a proceeding for enforcing a right or exemption secured by Section 93. In an appropriate proceeding, the Civil Court may, instead of ordering restoration of an expelled member, direct payment of compensation or damages from the funds of the Trade Union or society in such amount as the Court considers just.

When is a Strike or Lock-out Illegal?

Section 63 of the Industrial Relations Code deals with illegal strikes and lock-outs. In general, a strike or lock-out is illegal if it is commenced or declared in contravention of Section 62, or continued in contravention of an order made under the statutory arbitration provisions. Section 62 regulates notice and restrictions relating to strikes and lock-outs, including restrictions during specified pending proceedings and while settlements or awards are in operation.

Section 35 and Section 93 - Key Comparison

Industrial Disputes Act 1947	Industrial Relations Code 2020
Section 35 - Protection of persons	Section 93 - Protection of persons
Protected refusal to participate in an illegal strike or lock-out.	The same central protection is continued.
Protected against expulsion, fine, penalty, loss of rights or benefits, disability or disadvantage.	These protections are substantially retained.
Contrary trade union or society rules could not defeat the statutory protection.	Section 93 likewise overrides contrary Trade Union or society rules.
Civil Court could award compensation or damages instead of restoring membership.	The Civil Court remedy is substantially continued.

Related Provisions Under the Industrial Relations Code

Section	Subject
Section 62	Prohibition and regulation of strikes and lock-outs, including notice requirements and restrictions during specified proceedings.
Section 63	Determines when a strike or lock-out is illegal and addresses specified consequential strikes or lock-outs.
Section 64	Prohibits knowingly spending or applying money in direct furtherance or support of an illegal strike or lock-out.
Section 86	Contains penalties for specified contraventions relating to illegal strikes, lock-outs and other offences under the Code.
Section 93	Protects persons who refuse to take part or continue to take part in an illegal strike or lock-out.

Repeal and Saving

Section 104 of the Industrial Relations Code contains repeal and saving provisions relating to the Industrial Disputes Act, 1947 and other enactments consolidated into the Code. For a dispute arising from older events, the relevant dates, commencement provisions and applicable savings should be checked before deciding whether the legacy Act or the Code governs the matter.

This article provides general statutory information. Whether a particular strike or lock-out is illegal and whether Section 93 protection applies depends on the facts, the applicable statutory provisions and the legal status of the industrial action concerned.