Section 90: Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings

Finin2min analysis — what the section actually does

Full statutory text — Section 90

90. Conditions of service, etc., to remain unchanged under certain circumstances during
pendency of proceedings.—(1) Where an industrial dispute pertaining to an establishment or
undertaking is already pending before a conciliation officer or an Arbitrator or a Tribunal or a National
Industrial Tribunal, as the case may be, with regard to matters not covered by the notice of change
issued by an employer under section 40, no employer shall—
      (a) in regard to any matter connected with such dispute, alter to the prejudice of the workers
   concerned in such dispute the conditions of service applicable to them immediately before the
   commencement of such proceedings; or

       (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or
   otherwise any worker concerned in such dispute,
save with the express permission in writing of the authority before which the proceeding is pending.
    (2) During the pendency of any such proceeding in respect of an industrial dispute referred in sub-
section (1), the employer may, in accordance with standing orders applicable to a worker concerned in
such dispute or, where there are no such standing orders, in accordance with the terms of the contract,
whether express or implied, between him and the worker—
      (a) alter, in regard to any matter not connected with the dispute, the conditions of service
   applicable to that worker immediately before the commencement of such proceeding; or
      (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal
   or otherwise, that worker:
   Provided that no such worker shall be discharged or dismissed, unless he has been paid wages for
one month and an application has been made by the employer to the authority before which the
proceeding is pending for approval of the action taken by the employer.
   (3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency
of any proceeding in respect of an industrial dispute, take any action against any protected worker
concerned in such dispute—
      (a) by altering, to the prejudice of such protected worker, the conditions of service applicable to
   him immediately before the commencement of such proceeding; or
      (b) by discharging or punishing, whether by dismissal or otherwise, such protected worker,
save with the express permission in writing of the authority before which the proceeding is pending.
   Explanation.—For the purposes of this sub-section, a "protected worker" in relation to an
establishment, means a worker who, being a member of the executive or other office-bearer of a
registered Trade Union connected with the establishment, is recognised as such in accordance with rules
made in this behalf.
   (4) In every establishment, the number of workers to be recognised as protected workers for the
purposes of sub-section (3) shall be one per cent. of the total number of workers employed therein
subject to a minimum number of five protected workers and a maximum number of one hundred
protected workers and for the aforesaid purpose, the appropriate Government may make rules providing
for the distribution of such protected workers among various Trade Unions, if any, connected with the
establishment and the manner in which the workers may be chosen and recognised as protected workers.
   (5) Where an employer makes an application to conciliation officer, arbitrator, Tribunal or National
Industrial Tribunal, as the case may be, under the proviso to sub-section (2) for approval of the action
taken by him, the authority concerned shall, without delay, hear such application and pass, within a
period of three months from the date of receipt of such application, such order in relation thereto as it
deems fit:
   Provided that where any such authority considers it necessary or expedient so to do, it may, for
reasons to be recorded in writing, extend such period by such further periods as it may think fit:
   Provided further that no proceedings before any such authority shall lapse merely on the ground that
any period specified in this sub-section had expired without such proceedings being completed.

How to apply this provision

1. Primary statutory test — (1) Where an industrial dispute pertaining to an establishment or undertaking is already pending before a conciliation officer or an Arbitrator or a Tribunal or a National Industrial Tribunal, as the case may be, with regard to matters not covered by the notice of change issued by an employer under section 40, no employer shall— (a) in regard to any matter connected with such dispute, alter to the prejudice of…
2. Additional operative limb — (2) During the pendency of any such proceeding in respect of an industrial dispute referred in sub- section (1), the employer may, in accordance with standing orders applicable to a worker concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the worker— (a) alter, in regard to any matter not connected with…
3. Qualification / exception to test — Provided that no such worker shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
4. Numerical or timing control — Provided that no such worker shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
5. Central Rule mapping — 39. Read the mapped provision together with this text rather than treating the concordance as a substitute for it.
6. Evidence file — retain facts and records proving the role/status of: Employer, Worker, Appropriate Government, Authority / officer, Trade union, Tribunal.

Rules, forms and cross-references

A direct concordance is not exhaustive. Central/State jurisdiction, schemes, authority appointments, saved instruments and later notifications may change the practical route without changing the section wording.

Worked example

Q&A — Section 90

Source & verification trail