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. Chargesheet is issued by the management and on receiving the explanation, decide whether inquiry should be conducted or not? 6- No advocate is allowed to represent any party 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 one SC judgment domestic enquiry 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 be held in camera and no publication of proceedings is allowed whereas in case of domestic enquiry , no such prohibition is applicable.
Is there any time limit prescribed for reference of industrial dispute under I.D. Act?
There are two kind of industrial disputes. One is individual and second is industrial (Collective). Sec. 2A talks of individual dispute which can be directly submitted by the aggrieved workman in labour court after 45 days of approaching conciliation officer for exploring the settlement. Here is a time limit for workman to raise his dispute within a period of three years. However, for collective dispute, the phrase at any time is used in Sec. 10 i.e. to refer any industrial dispute if such dispute is in existence or is apprehended, to the forum created under the Act, for adjudication. Normally, it is inferred that, no time limit is prescribed under the Act to refer the dispute for adjudication. In spite of the fact that limitation Act is not applicable on industrial disputes, the Govt. authority can refuse to refer the dispute if it appears that it is stale or too late or does not exist. S.C. in the case of Sapan Kumar Pandit vs. U.P. State Electricity Board 2001(90) FLR 754. has held that the phrase at any time is prima facie indicator of a period without boundary. But the Governments power to refer the dispute has thus owed limitation of time, that it can be referred only so long as the dispute exists. S.C. in the case of Western India Match Co. Ltd. vs. Western India Match Co. Workers Union 1970 (20) FLR 297 has also held that Government may also refer the industrial dispute at any time during the pendency of conciliation proceeding without waiting for failure report of the conciliation officer. So, the Govt. can very well refuse to refer such industrial dispute, which is raised beyond reasonable time having no sign of existence.
Once a point of dispute is settled between workman and management in conciliation, can it be raised again by workman and referred for adjudication in court?
No! The concept oin based Industrial Disputes Act is based on resolution of disputes and if not possible then through adjudication. Thats why sanctity of settlement has been recognized and kept beyond challenge if arrived at during conciliation. In case where the difference or dispute between the parties have been amicably settled resulting in filling of application for withdrawal of the demand notice, no dispute exists. Thus, such dispute could not be referred further for adjudication. P&H Court in the case of Haryana State Industrial Development Corporation Ltd. vs. Presiding Officer, Labour Court-Summary of Cases, 2003 (99) FLR page 5 (Sum) has held that in case such dispute is referred for adjudication, the course open to Labour Court is to conclude, that the dispute between parties has been amicably settled and nothing survive for adjudication.
After lockdown, when we started factory, we asked every employee to give an undertaking that he has not been infected by corona virus so far, he will follow the quarantine rule of the Govt. in case so directed by co., will immediately report to management in case of any symptoms of Covid, maintain and comply with social distancing, wear the mask, maintain discipline and give full production. Few employees refused to give that undertaking. We have marked them absent, not allowed to join the duties and deducted the salary. They have now raised the dispute that they have illegally terminated. What is the legal position?
There appears no industrial dispute at this point as their names are very much on the rolls of the company and they have been marked absent and not paid wages because they did not give undertaking which was required. Undertaking does not in any way change the service conditions. Though the facts of a case are not exactly the same but similar to some extent where Industrial Tribunal, Bombay, in the case of Vishnu Tulsiram & Others vs. Metal Press India Bombay, 1977 (50) FJR 331 has held that. Keeping the workmen out of the factory premises unless they gave the required undertaking did not amount to termination of their services or punishing them. It was up to the workmen to give the undertaking and to enter the factory. If they did not give the undertaking and consequently did not work, the employer cannot be said to have wrongly marked them absent; The undertaking demanded by the employer did not amount to alteration of the rules as there were no existing rules. Marking the workmen absent and depriving them of their wages did not amount to introduction of new rules of discipline; Though the employer is entitled to proceed against the workmen on the basis of the alleged go-slow or sit-down strike and other misconducts, charge sheet them and then proceed in accordance with law, it does not mean that the employer must follow that remedy or that was the only remedy available to him or that it was not open for him to declare a lockout; and If the demand of the employer was unjustified and consequently the non-payment of wages was unjustified, it is open to the workmen to raise an industrial dispute and have it adjudicated in accordance with law.(On facts, the Tribunal found that the alleged misconduct of the workmen was proved and that the employer was justified in asking for the undertaking). The undertaking asked by the employer is legal and effective and there is no contravention of Section 9A or Section 33(2) (b) of the Industrial Disputes Act, 1947.
At what age we can retire a person in the industry?
There is no such uniform law regarding age of retirement in related employment regulations in India. However, it is either governed/decided through certified standing orders of the establishment or model standing orders if applicable, services rules formulated by company and agreed by employee or terms of appointment. Though model standing orders under rules of state carry a retirement age but it will be of no use unless it is incorporated in establishment certified standing orders. It will not apply automatically as held by Karnataka HC in the case of Raju (MC) vs. Karnataka Vidyut Karkhane Ltd., Bangalore 1983(1) LLN 198. It is general practice to retire an employee at the age of 58 years but it is necessary that it must be mentioned in either of the above mentioned documents. Simply looking at the physical sate of a person he cannot be retired. Calcutta High Court in the case of Indian Aluminium Co. Ltd. case 2003 (99) FLR 694 has held that retirement of a worker on attaining the age of 58 years will neither be legal nor proper on attaining the age of 58 years in the absence of any such condition of employment.
At what age we can retire a person in the industry?
There is no such uniform law regarding age of retirement in related employment regulations in India. However, it is either governed/decided through certified standing orders of the establishment or model standing orders if applicable, services rules formulated by company and agreed by employee or terms of appointment. Though model standing orders under rules of state carry a retirement age but it will be of no use unless it is incorporated in establishment certified standing orders. It will not apply automatically as held by Karnataka HC in the case of Raju (MC) vs. Karnataka Vidyut Karkhane Ltd., Bangalore 1983(1) LLN 198. It is general practice to retire an employee at the age of 58 years but it is necessary that it must be mentioned in either of the above mentioned documents. Simply looking at the physical sate of a person he cannot be retired. Calcutta High Court in the case of Indian Aluminium Co. Ltd. case 2003 (99) FLR 694 has held that retirement of a worker on attaining the age of 58 years will neither be legal nor proper on attaining the age of 58 years in the absence of any such condition of employment.
Is there any time limit prescribed for reference of industrial dispute under I.D. Act?
There are two kind of industrial disputes. One is individual and second is industrial (Collective). Sec. 2A talks of individual dispute which can be directly submitted by the aggrieved workman in labour court after 45 days of approaching conciliation officer for exploring the settlement. Here is a time limit for workman to raise his dispute within a period of three years. However, for collective dispute, the phrase at any time is used in Sec. 10 i.e. to refer any industrial dispute if such dispute is in existence or is apprehended, to the forum created under the Act, for adjudication. Normally, it is inferred that, no time limit is prescribed under the Act to refer the dispute for adjudication. In spite of the fact that limitation Act is not applicable on industrial disputes, the Govt. authority can refuse to refer the dispute if it appears that it is stale or too late or does not exist. S.C. in the case of Sapan Kumar Pandit vs. U.P. State Electricity Board 2001(90) FLR 754. has held that the phrase at any time is prima facie indicator of a period without boundary. But the Governments power to refer the dispute has thus owed limitation of time, that it can be referred only so long as the dispute exists. S.C. in the case of Western India Match Co. Ltd. vs. Western India Match Co. Workers Union 1970 (20) FLR 297 has also held that Government may also refer the industrial dispute at any time during the pendency of conciliation proceeding without waiting for failure report of the conciliation officer. So, the Govt. can very well refuse to refer such industrial dispute, which is raised beyond reasonable time having no sign of existence.
Once a point of dispute is settled between workman and management in conciliation, can it be raised again by workman and referred for adjudication in court?
No! The concept oin based Industrial Disputes Act is based on resolution of disputes and if not possible then through adjudication. Thats why sanctity of settlement has been recognized and kept beyond challenge if arrived at during conciliation. In case where the difference or dispute between the parties have been amicably settled resulting in filling of application for withdrawal of the demand notice, no dispute exists. Thus, such dispute could not be referred further for adjudication. P&H Court in the case of Haryana State Industrial Development Corporation Ltd. vs. Presiding Officer, Labour Court-Summary of Cases, 2003 (99) FLR page 5 (Sum) has held that in case such dispute is referred for adjudication, the course open to Labour Court is to conclude, that the dispute between parties has been amicably settled and nothing survive for adjudication.
After lockdown, when we started factory, we asked every employee to give an undertaking that he has not been infected by corona virus so far, he will follow the quarantine rule of the Govt. in case so directed by co., will immediately report to management in case of any symptoms of Covid, maintain and comply with social distancing, wear the mask, maintain discipline and give full production. Few employees refused to give that undertaking. We have marked them absent, not allowed to join the duties and deducted the salary. They have now raised the dispute that they have illegally terminated. What is the legal position?
There appears no industrial dispute at this point as their names are very much on the rolls of the company and they have been marked absent and not paid wages because they did not give undertaking which was required. Undertaking does not in any way change the service conditions. Though the facts of a case are not exactly the same but similar to some extent where Industrial Tribunal, Bombay, in the case of Vishnu Tulsiram & Others vs. Metal Press India Bombay, 1977 (50) FJR 331 has held that. Keeping the workmen out of the factory premises unless they gave the required undertaking did not amount to termination of their services or punishing them. It was up to the workmen to give the undertaking and to enter the factory. If they did not give the undertaking and consequently did not work, the employer cannot be said to have wrongly marked them absent; The undertaking demanded by the employer did not amount to alteration of the rules as there were no existing rules. Marking the workmen absent and depriving them of their wages did not amount to introduction of new rules of discipline; Though the employer is entitled to proceed against the workmen on the basis of the alleged go-slow or sit-down strike and other misconducts, charge sheet them and then proceed in accordance with law, it does not mean that the employer must follow that remedy or that was the only remedy available to him or that it was not open for him to declare a lockout; and If the demand of the employer was unjustified and consequently the non-payment of wages was unjustified, it is open to the workmen to raise an industrial dispute and have it adjudicated in accordance with law.(On facts, the Tribunal found that the alleged misconduct of the workmen was proved and that the employer was justified in asking for the undertaking). The undertaking asked by the employer is legal and effective and there is no contravention of Section 9A or Section 33(2) (b) of the Industrial Disputes Act, 1947.
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. Chargesheet is issued by the management and on receiving the explanation, decide whether inquiry should be conducted or not? 6- No advocate is allowed to represent any party 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 one SC judgment domestic enquiry 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 be held in camera and no publication of proceedings is allowed whereas in case of domestic enquiry , no such prohibition is applicable.