Whether bonus will be payable to such persons who are paid only commission?
No! Section 2(21) of the Payment of Bonus Act does not include any commission payable to the employee vide clause (vii) of section 2(21). It clearly defines salary or wages. Its opening provisions includes within it all remunerations (other than the remuneration in case of overtime work) capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to an employee in respect of his employment and includes dearness allowances, yet in express terms, the definition does not include any commission payable to the employee vide clause (vii) of section 2(21).
In many cases it happens that a after submitting resignation and taking full payment, employee raises dispute that he was forced to resign and his resignation was involuntary. What precautions, you suggest, should be taken by company management to ensure that it does not backfire?
In such conditions where after getting all dues on resignation, when challenged its genuineness, it is for the workman to establish that resignation was not voluntary and was obtained under pressure. It is so held by the M.P. HC in the case of Hira Mills, Ujjain vs. Babu 1998 LLR 524. All. HC in the case of Delta Engineering Co. (Pvt.) Ltd. Meerut vs. Industrial Tribunal-V 1998 LLR 622 has also held that burden of proof will lie upon the employees alleging that their signatures on blank papers were used as their resignations. However, Delhi HC in the case of Prabhu Verma vs. D.P. Industries 2019 LLR 711 took different view. Court held that when workman alleged that his resignation was obtained forcefully, It is for the employer to establish that it was not and he left the services of his own. Madhya Pradesh HC in the case of AVTEC Ltd. Vs. Naresh 2019 LLR 254 and Delhi HC in the case of Kay International vs. Raghubir Singh 2019 LLR 361 have held that when workman after submitting resignation receives and accepts full and final payment, such resignation cannot be said to have obtained by force. You can also take following precautions; 1-The resignation should be in the handwriting of the employee with date and if possible with one signature of co worker as witness. 2-There should not be any haste in accepting the resignation by management and should be accepted in writing with date and in terms of employment. 3-The full and final dues in terms of settlement should be in writing and worker should sign the acceptance letter as well as full and final dues details in token of having accepted the correctness of dues. 4- The payment should be made through cheque as far as possible. 5- The workers signature should also be obtained on experience/ relieving certificate. 6- Bipartite settlement should also be signed by the worker and management to the effect and same should be registered under Sec. 18(1) of I.D. Act with the labour authorities. If this process is adopted, there are less chances of challenging the genuineness of the resignation and even if it is challenged, same will not stand in the court of law. Genuineness has to be proved by facts and circumstances.
What is the difference between domestic enquiry and enquiry by IC under POSH Law?
1- Domestic Enquiry is not governed by any defined statute but by principles of natural justice and procedure defined in services rules/standing orders and guidelines provided by courts whereas the enquiry by IC is governed by the provisions of POSH Act. 2-In IC it is a four member committee and qualifications are provided in the POSH Act, whereas in domestic enquiry it is normally one Enquiry officer and there is no qualification of Enquiry Officer provided in any law. 3-For IC the period is of three years for members to remain in the committee, whereas for enquiry officer, it comes to an end with submission of enquiry report to the disciplinary authority. 4- IC can recommend the punishment to the accused/respondent in their report whereas Enquiry officer cannot recommend any punishment. It is for the disciplinary authority to decide on the punishment. 5- The complaint of sexual harassment can be received by any member or presiding officer of the IC and initiate action whereas in domestic enquiry, Enquiry officer has no such role. Charge-sheet is issued by the management and receiving the explanation, decide whether inquiry should be conducted or not? 6- No advocate is allowed to represent any pary before the IC whereas in domestic enquiry it is possible if service rules/standing orders so provide. 7-IC has powers to conciliate upon the matter on the request of the complainant and reach to a settlement without any monetary consideration but in domestic enquiry Enquiry Officer has no such powers. 8- IC members have the same powers as vested in civil court in respect of summoning of records, enforcing the attendance of any person to examine him on oath and production of documents, whereas Enquiry Officer has no such powers. 9-IC has to complete the inquiry within 90 days whereas as per SC judgment domestic should be completed within six months or one year. However, there is no such provision in any law about time frame. 10- IC can recommend interim relief to the aggrieved woman in respect of her transfer to some other place, to grant leave for a period up to 3 months in addition to already available leaves whereas Inquiry officer has no such powers. 11- IC proceedings are to held in camera and no publication of proceedings is allowed whereas I case of domestic enquiry, no such prohibition is applicable.
We have a security guard who is not able to stand and take rounds while on duty since last six months. He sits frequently on chair. Can we treat such physical deficiency as continued ill health?
Though the term Continuous ill health has not been defined under Industrial disputes Act, certified standing orders must have defined it. The courts have on different occasions defined this term. S.C. in the case of Anand Bihari vs. RSRTC (1991) 1 SCC 731 has held that any disorder in health which incapacitates an individual from discharging the duties entrusted to him or affects his work adversely or fall in the way of his normal and effective functioning can be covered by the phrase continuous ill health . Bombay H.C. in the case of Ramaswamy Murugesh vs. S.G. Bhonsale 2006 I LLJ 281 has also held that the expression has to be given contextual meaning. It should mean the condition of the health of an employee that consistently affects the functioning of the duties of the post. It is not the gravity of the disease that would alone fall within the meaning of the expression but its affection on the due discharge of the normal duties. The Punjab & Haryana H.C. in the case of Groz-Beckert Asia Pvt. Ltd. 2009 Lab IC 3692 also held that the touch stone for applicability of Sec. 2(OO) (C) is the effect of such continued ill health in due discharge of normal duties assigned to the workman. It is the disordered physical condition which would pass the test of continued ill health as contained in Sec. 2(OO) (C) of I.D. Act. Madras H.C. in the case of P. Muthukrishnan 1992 LLR 443 has also held that where the gatekeeper of a cinema hall sustained injury in the course of employment resulting in amputation of left leg not allowed to work when reported for duty, his termination will not amount to retrenchment but will cover under the expression Continued ill health. Delhi HC in the case of Munna Prasad vs. The Mgt. of M/S. Sawhney Rubber 2012 LLR 1255 has held that when the workman despite amputation of both hands in an accident was allowed to work for ten years, his termination on the ground of continued ill health would be illegal.
We have a security guard who is not able to stand and take rounds while on duty since last six months. He sits frequently on chair. Can we treat such physical deficiency as continued ill health?
Though the term Continuous ill health has not been defined under Industrial disputes Act, certified standing orders must have defined it. The courts have on different occasions defined this term. S.C. in the case of Anand Bihari vs. RSRTC (1991) 1 SCC 731 has held that any disorder in health which incapacitates an individual from discharging the duties entrusted to him or affects his work adversely or fall in the way of his normal and effective functioning can be covered by the phrase continuous ill health . Bombay H.C. in the case of Ramaswamy Murugesh vs. S.G. Bhonsale 2006 I LLJ 281 has also held that the expression has to be given contextual meaning. It should mean the condition of the health of an employee that consistently affects the functioning of the duties of the post. It is not the gravity of the disease that would alone fall within the meaning of the expression but its affection on the due discharge of the normal duties. The Punjab & Haryana H.C. in the case of Groz-Beckert Asia Pvt. Ltd. 2009 Lab IC 3692 also held that the touch stone for applicability of Sec. 2(OO) (C) is the effect of such continued ill health in due discharge of normal duties assigned to the workman. It is the disordered physical condition which would pass the test of continued ill health as contained in Sec. 2(OO) (C) of I.D. Act. Madras H.C. in the case of P. Muthukrishnan 1992 LLR 443 has also held that where the gatekeeper of a cinema hall sustained injury in the course of employment resulting in amputation of left leg not allowed to work when reported for duty, his termination will not amount to retrenchment but will cover under the expression Continued ill health. Delhi HC in the case of Munna Prasad vs. The Mgt. of M/S. Sawhney Rubber 2012 LLR 1255 has held that when the workman despite amputation of both hands in an accident was allowed to work for ten years, his termination on the ground of continued ill health would be illegal.
In many cases it happens that a after submitting resignation and taking full payment, employee raises dispute that he was forced to resign and his resignation was involuntary. What precautions, you suggest, should be taken by company management to ensure that it does not backfire?
In such conditions where after getting all dues on resignation, when challenged its genuineness, it is for the workman to establish that resignation was not voluntary and was obtained under pressure. It is so held by the M.P. HC in the case of Hira Mills, Ujjain vs. Babu 1998 LLR 524. All. HC in the case of Delta Engineering Co. (Pvt.) Ltd. Meerut vs. Industrial Tribunal-V 1998 LLR 622 has also held that burden of proof will lie upon the employees alleging that their signatures on blank papers were used as their resignations. However, Delhi HC in the case of Prabhu Verma vs. D.P. Industries 2019 LLR 711 took different view. Court held that when workman alleged that his resignation was obtained forcefully, It is for the employer to establish that it was not and he left the services of his own. Madhya Pradesh HC in the case of AVTEC Ltd. Vs. Naresh 2019 LLR 254 and Delhi HC in the case of Kay International vs. Raghubir Singh 2019 LLR 361 have held that when workman after submitting resignation receives and accepts full and final payment, such resignation cannot be said to have obtained by force. You can also take following precautions; 1-The resignation should be in the handwriting of the employee with date and if possible with one signature of co worker as witness. 2-There should not be any haste in accepting the resignation by management and should be accepted in writing with date and in terms of employment. 3-The full and final dues in terms of settlement should be in writing and worker should sign the acceptance letter as well as full and final dues details in token of having accepted the correctness of dues. 4- The payment should be made through cheque as far as possible. 5- The workers signature should also be obtained on experience/ relieving certificate. 6- Bipartite settlement should also be signed by the worker and management to the effect and same should be registered under Sec. 18(1) of I.D. Act with the labour authorities. If this process is adopted, there are less chances of challenging the genuineness of the resignation and even if it is challenged, same will not stand in the court of law. Genuineness has to be proved by facts and circumstances.
Whether bonus will be payable to such persons who are paid only commission?
No! Section 2(21) of the Payment of Bonus Act does not include any commission payable to the employee vide clause (vii) of section 2(21). It clearly defines salary or wages. Its opening provisions includes within it all remunerations (other than the remuneration in case of overtime work) capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to an employee in respect of his employment and includes dearness allowances, yet in express terms, the definition does not include any commission payable to the employee vide clause (vii) of section 2(21).
What is the difference between domestic enquiry and enquiry by IC under POSH Law?
1- Domestic Enquiry is not governed by any defined statute but by principles of natural justice and procedure defined in services rules/standing orders and guidelines provided by courts whereas the enquiry by IC is governed by the provisions of POSH Act. 2-In IC it is a four member committee and qualifications are provided in the POSH Act, whereas in domestic enquiry it is normally one Enquiry officer and there is no qualification of Enquiry Officer provided in any law. 3-For IC the period is of three years for members to remain in the committee, whereas for enquiry officer, it comes to an end with submission of enquiry report to the disciplinary authority. 4- IC can recommend the punishment to the accused/respondent in their report whereas Enquiry officer cannot recommend any punishment. It is for the disciplinary authority to decide on the punishment. 5- The complaint of sexual harassment can be received by any member or presiding officer of the IC and initiate action whereas in domestic enquiry, Enquiry officer has no such role. Charge-sheet is issued by the management and receiving the explanation, decide whether inquiry should be conducted or not? 6- No advocate is allowed to represent any pary before the IC whereas in domestic enquiry it is possible if service rules/standing orders so provide. 7-IC has powers to conciliate upon the matter on the request of the complainant and reach to a settlement without any monetary consideration but in domestic enquiry Enquiry Officer has no such powers. 8- IC members have the same powers as vested in civil court in respect of summoning of records, enforcing the attendance of any person to examine him on oath and production of documents, whereas Enquiry Officer has no such powers. 9-IC has to complete the inquiry within 90 days whereas as per SC judgment domestic should be completed within six months or one year. However, there is no such provision in any law about time frame. 10- IC can recommend interim relief to the aggrieved woman in respect of her transfer to some other place, to grant leave for a period up to 3 months in addition to already available leaves whereas Inquiry officer has no such powers. 11- IC proceedings are to held in camera and no publication of proceedings is allowed whereas I case of domestic enquiry, no such prohibition is applicable.