Once an industrial dispute concerning your establishment is pending before a conciliation officer, an arbitrator, a Tribunal or a National Industrial Tribunal, Section 90 of the Industrial Relations Code, 2020 stops the employer altering your conditions of service to your prejudice on any matter connected with that dispute, and stops it discharging or punishing you for misconduct connected with that dispute, unless it first obtains the express written permission of the authority before which the proceeding is pending. On matters not connected with the dispute the employer retains its ordinary powers, but even then it cannot dismiss you without paying one month's wages and applying for approval.
Part of the employment and labour law practice at S Jain & Attorneys, Bangalore.
This is the provision that answers the most common fear an employee has about raising a dispute at all, which is that the company will simply make life impossible while the case crawls along. Section 90 does not prevent every adverse step. It does change who has to ask permission first.
The three tiers of Section 90
The section works in three layers, and the layer you are in decides how much protection you have.
| Situation | What the employer must do |
|---|---|
| Matter connected with the pending dispute, ordinary worker | Cannot alter conditions of service to the worker's prejudice, and cannot discharge or punish for misconduct connected with the dispute, save with the express written permission of the authority before which the proceeding is pending |
| Matter not connected with the pending dispute, ordinary worker | May act in accordance with the standing orders applicable, or where there are none, the terms of the contract. But no discharge or dismissal unless the worker has been paid one month's wages and the employer has applied to the authority for approval of the action |
| Protected worker, connected or not | Cannot alter conditions of service to the protected worker's prejudice and cannot discharge or punish, save with the express written permission of the authority before which the proceeding is pending |
The distinction between connected and not connected is where these cases are actually fought. An employer facing a pending dispute about a retrenchment will characterise a subsequent transfer as an unrelated administrative decision. The worker will say it is connected. Nothing in the section defines connection, so it is decided on the facts, and the facts that decide it are timing, sequence and who took the decision.
Express permission
On matters connected with the pending dispute the employer needs the express written permission of the authority before it acts, not afterwards.
One month plus approval
Even on unconnected misconduct, no worker may be discharged or dismissed unless paid one month's wages and an approval application has been made.
Protected workers
One per cent of the workforce, minimum five and maximum one hundred, recognised office bearers of a registered union connected with the establishment.
Section 91 complaint
A breach is not left to the employee to litigate separately. A written complaint goes to the same forum, which adjudicates it as if it were a dispute before it.
The trap in sub-section (2), which employers miss
Sub-section (2) is often read as the employer's escape route, and it is not. It does allow the employer, during the pendency of the proceeding, to alter conditions of service on matters not connected with the dispute, and to discharge or punish for misconduct not connected with it, provided it acts in accordance with the standing orders applicable to the worker or, where there are none, the terms of the contract.
Then comes the proviso, and the proviso is unconditional. 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. Both limbs are mandatory and both are the employer's obligation. The employee does not have to object, does not have to apply, and does not lose the point by staying silent.
Key takeaway. The permission and approval requirements are on the employer, not on you. Where an employer dismisses a worker during a pending proceeding without paying one month's wages and without applying for approval, the defect is in the dismissal itself. That is a much stronger starting position than arguing about whether the dismissal was fair on its merits.
Who is a protected worker, and why the category exists
Sub-section (3) gives a small group absolute protection. During the pendency of any proceeding in respect of an industrial dispute, no employer may alter the conditions of service of a protected worker concerned in that dispute to that worker's prejudice, or discharge or punish that worker, save with the express written permission of the authority. Note what is missing from sub-section (3). There is no carve out for matters unconnected with the dispute.
The Explanation defines the category. 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 the rules made in that behalf.
Sub-section (4) fixes the numbers. In every establishment the number of workers to be recognised as protected workers is one per cent of the total number of workers employed, subject to a minimum of five and a maximum of one hundred.
The purpose is plain enough. The people who organise a dispute are the people most exposed while it is running, and without a category of this kind the machinery would be easy to defeat by removing the organisers early. Whether the category is available to you depends on there being a registered union connected with the establishment and on recognition under the rules, so it will not assist most employees in an unorganised workplace.
What happens when the employer breaches Section 90
Section 91 supplies the remedy, and its design is the useful part. Where an employer contravenes Section 90 during the pendency of proceedings, any employee aggrieved by the contravention may make a complaint in writing in the prescribed manner. Where the proceeding is before a conciliation officer, the officer takes the complaint into account in mediating in and promoting the settlement of the dispute. Where it is before an arbitrator, a Tribunal or a National Industrial Tribunal, that forum adjudicates upon the complaint as if it were a dispute referred to or pending before it, and submits its award to the appropriate Government.
The significance is procedural. You do not have to start a fresh case. The complaint goes into the proceeding that is already running, before the same forum, and is decided as a dispute in its own right. In practice this means a retaliatory dismissal during a pending case can be brought before the Tribunal quickly, rather than becoming a second matter that begins again at conciliation.
Common mistake. Waiting to raise the Section 90 breach until the main case is argued. The complaint under Section 91 is a written complaint made to the forum, and it is most effective when it is made promptly, while the sequence of events is fresh and while the employer has not yet built a paper record explaining the action as routine.
When does a proceeding become pending
Section 90 is triggered by pendency, so the date the proceeding begins is the date the protection begins. That produces a predictable pattern of employer behaviour. Where a company anticipates a dispute it will often complete the transfer, the restructuring or the disciplinary process before anything is filed, because after filing it needs permission.
For an employee this cuts both ways and it should be understood before acting. Raising a dispute brings Section 90 into play, and the protection is real. But it also means that steps the employer takes before the proceeding starts are governed only by the ordinary law, which for a change in conditions of service means Section 40 and its twenty one day notice requirement, discussed in our guide on notice of change under Section 40.
Practical sequence if something happens mid case
- Record the date of the adverse step and the date the proceeding commenced, and keep the order or letter in its original form. The relationship between those two dates is the whole of the Section 90 argument.
- Ask the employer in writing whether permission or approval under Section 90 was obtained, and on what date. The reply, or the absence of one, becomes part of the record.
- If you have been dismissed, check both limbs of the proviso to sub-section (2). Were you paid one month's wages, and was an application for approval made. A failure on either limb is a defect in the dismissal.
- Make the Section 91 complaint in writing to the forum where the proceeding is pending, promptly, rather than saving the point for final arguments.
- Keep working, or keep yourself available for work, unless you have been formally dismissed. Absenting yourself gives the employer a separate and unconnected ground of misconduct, which is precisely the situation sub-section (2) allows it to act on.
Two dates decide it
The date the proceeding commenced and the date of the adverse step. Everything in a Section 90 argument is built on the relationship between them.
Ask about permission
A written question about whether permission or approval was obtained puts the employer to an election it usually cannot make comfortably.
Do not walk out
Absence during a pending case creates unconnected misconduct, which is the one thing sub-section (2) lets the employer act on with far less difficulty.
What Section 90 does not do
It does not freeze the workplace. An employer may still manage, may still discipline for genuinely unconnected misconduct subject to the proviso, and may still make changes on matters outside the dispute. It does not apply before a proceeding is pending, and it does not apply to a person who is not a worker within the meaning of Section 2(zr), which is the threshold question in most private sector matters and is dealt with in our guide on worker status under the Industrial Relations Code.
It also does not decide the main case. A dismissal made without permission is defective, but the Tribunal still has to determine what relief follows, and reinstatement is not automatic. The forum sequence and the relief that is realistically available are set out in our guide on wrongful termination and employee remedies.
An observation from running these matters. The employers who get into difficulty under Section 90 are rarely acting out of spite. They are usually acting on a human resources calendar that was set before the dispute was filed, and nobody in the chain asked whether a proceeding was pending. That is why the written question about permission is so effective early. It is often the first moment anyone inside the company checks, and the answer sometimes produces a withdrawal of the order rather than a contest.
Frequently Asked Questions
Can my employer dismiss me while my case is pending?
Not for misconduct connected with the pending dispute, unless it first obtains the express written permission of the authority before which the proceeding is pending. For misconduct not connected with the dispute it may act in accordance with the standing orders or the contract, but it still cannot discharge or dismiss you unless you have been paid one month's wages and it has applied to that authority for approval.
What counts as connected with the dispute?
The Code does not define it, so it is decided on the facts. Timing, sequence, who took the decision and whether the subject matter overlaps with the pending dispute are what the forum looks at. An adverse step taken shortly after a dispute is filed, by the same management involved in it, is difficult to present as unconnected.
My employer transferred me while conciliation was on. Is that covered?
A transfer can be an alteration of conditions of service to your prejudice, and if the matter is connected with the pending dispute it needs express written permission. Whether the particular transfer is prejudicial and whether it is connected are both questions of fact, and the sequence of dates usually decides them.
Do I have to file a separate case if Section 90 is breached?
No. Section 91 lets you make a written complaint to the same forum. A conciliation officer takes it into account in mediating the dispute. An arbitrator or Tribunal adjudicates it as if it were a dispute referred to or pending before it, so it is decided within the proceeding that already exists.
Who is a protected worker?
A worker who is a member of the executive or another office bearer of a registered trade union connected with the establishment, and who is recognised as a protected worker under the rules. The number is one per cent of the total workers, with a minimum of five and a maximum of one hundred. Protected workers cannot be dismissed or have their terms altered without express written permission even on unconnected matters.
Does Section 90 apply if there is no union at my company?
Sub-sections (1) and (2) do not require a union. They require a pending industrial dispute concerning the establishment and a worker concerned in it. Sub-section (3), the protected worker tier, does require a registered union connected with the establishment, so that tier will not be available.
Does it protect managers?
No. The section operates on workers as defined in Section 2(zr) of the Code, which excludes persons employed mainly in a managerial or administrative capacity and supervisors drawing wages above eighteen thousand rupees a month. The test is the dominant nature of your actual duties, not the designation.
Should I raise a dispute earlier to get this protection?
Filing to obtain protection is not a good reason on its own, because a weak dispute is still a weak dispute. But the timing point is real. Once a proceeding is pending the employer must ask permission, and before it is pending the employer need not. That is worth factoring into when you act rather than treating it as an afterthought.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
Related Guides
- Wrongful Termination in India: Employee Rights and Remedies
- Are You a Worker Under the Industrial Relations Code?
- Notice of Change: The Twenty One Days Before Your Terms Can Be Altered
- Unfair Labour Practices: The List of Things an Employer Cannot Do
- The Four Labour Codes: What Actually Changed for Employees
- Asked to Resign? When a Resignation Is Really a Termination
