What ate the tests to conclude that multiple establishments can be clubbed as one under EPF Act?
Functional integrality and existence on one without the other are not the only absolute tests to club the two or multiple establishment to cover under EPF Act. There are other factors such as intent and objectives of the owner behind creating different firms are also to be seen. Delhi HC in the case of Regional PF Commissioner vs. Nath Traders and Ors. 2008 II CLR 124 has held that where the nature of business is same with common control and supervision, in common premises having one accountant to manage their accounts with one common telephone and employees of both the firms were intermingled will be deemed as one establishment for the purpose of EPF. In this case the owner was in business of dealership of LPG gas and other unit was having dealership of distribution of Kerosene Oil. He was sole proprietor of one unit and was partner in other unit. Other partner being his wife was sleeping partner. Merely having separate sales tax and income tax registrations shall not change the unity of the establishments.
What is the difference between Resignation and retirement where the end result of both is the end of employer- employee relationship ?
Supreme Court in the case of UCO Bank and Others vs. Sanwar Mal 2004 (101) FLR 437 and in the case of Syndicate Bank, Bangalore vs. Satya Srinath 2007 (114) FLR 977 has made distinction between resignation and retirement. In case of resignation, Employee can exercise his right to leave the service at any point of time and it is his action whereas in case of retirement or voluntary retirement, he retires on qualifying certain conditions of his employment terms or/and age. The resignation and voluntary retirement are deliberate actions leading to abandonment of job. Retirement can also be compulsory as a punishment. Premature retirement or compulsory retirement cannot be voluntary in nature. It has an element of imposition by management.
In case of daily wages workman, when he is terminated illegally, can there be any reasons where he can be compensated only in lieu of reinstatement?
Yes! Supreme Court in Haryana Tourism Corporation Ltd. vs. Fakir Chand 2003 (99) FLR 821 has laid many relevant facts to be considered before awarding retrenchment compensation viz., daily wager, not recruited through the employment exchange or any other accepted mode of selection, not regularized and nature work. Raj. HC in the case of Resident Engineer, Housing Board, Kota vs. Lokhpat and Ors. 2003 (99) FLR 105 has held that where a workman has remained not in touch with job for long period of time (in this case it was 12 years) , it may not be expedient to order reinstatement while setting aside the termination. In such a case compensation in lieu of reinstatement should be ordered. SC in the case of Rattan Singh vs. Union of India (1997) 11 SCC 396 has also ordered compensation because of long period 20 years lapsed in litigation. SC in the case of Surendra Kumar Verma vs. The Central Government Industrial Tribunal 1980 (41) FLR 351 has also cited that in case where industry might have closed down or might be in severe financial doldrums, or the workman secured better or other employment elsewhere, the compensation in lieu of reinstatement may be granted. Raj. HC in the case of Zonal Manager, UCO Bank vs. Ram Prakash Prajapati 2007 (114) FLR 314, has laid down certain circumstances when compensation in lieu of reinstatement may be granted and these are (1) When takes plea of lack of trust in the employee (2) worker being a daily rated worker and long time have elapsed since his retrenchment (3) Non availability of work or post (4) workman not having been recruited through any accepted mode of selection.
What is the scope and dimension of the term sexual harassment as defined in POSH Law. Can the hostile circumstances created in the organization though not straight instances of seeking sexual favour against the woman employee, also can be termed as an act of sexual harassment?
Yes! The POSH Law has been enacted with objectives to provide broad view of sexual harassment against woman and provide protection to her at workplace. The workplace definition is also very much expanded and not restricted to physical designated workplace of employer and their four walls. In the same way, the definition of sexual harassment has to be interpreted and understood in broad respect and cannot have restricted meaning. M.P. H.C. in the case of Global Health Private Pvt. vs. Local Complaints Committee 2020 LLR 40 has discussed the issue in detail and held that scope and dimension of Sec. 2 (n) and 3(2) must not receive narrow and pedantic meaning. The act of sexual harassment is an act of violation of human rights, women right to live with dignity and protection against all types of discrimination. Court held that unwelcome acts or behavior, directly or by implication including circumstances if it occurs or is present in relation to or connected with any act or behavior of sexual harassment like comment of perpetrator, If she wanted to continue, she should be good to him, comments upon dress and outfits of woman, avoiding signature on her bills of reimbursement, making her sit in his cabin for hours together, creating obstruction and causing harassment in technical and operational support, talking with her in high pitch voice with contempt and offending her dignity and chastity, not allowing her to participate in marketing, marginalizing and embarrassing and subjecting to typical hostile work environment intimating with future employment etc will constitute acts of sexual harassment. When word Includes is used in definition, the legislature does not intend to restrict the definition.
Our establishment is in UP. We have State ID Act. My question is whether in respect of working of 240 days by workman, it is to counted in preceding 12 months from the date of termination or if he has completed 24 days in any period during his service tenure, he will be entitled to retrenchment compensation?
The definition of continuous service as provided in Central Industrial Disputes Act in Sec. 25B and in Sec. 2 (g) of U.P. I.D. Act is different. In Central Act, Sub Sec. 2 (a) of 25B says that for a period of one year if the workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days, where as in U.P. I.D. Act Sec. 2 (g) defines.. "a workman who during a period of twelve calendar months has actually worked in an industry for not less than 240 days shall be deemed to have completed one year of continuous service". In U.P. I.D. Act the word "Preceding" is missing and that makes the whole difference. It means that a workman in order to be in continuous service may have worked continuously for a period of 240 days in any calendar year during his period of service. For example if a workman has been in employment for three years and in any year he has completed 240 days, he will be entitled to retrenchment compensation according to Sec. 6 -N of UP ID Act . It will not be necessary to for such workman to complete 240 days in last 12 months preceding the date of termination. Whereas it is required in case of Central I.D. Act. To become entitled to get retrenchment compensation under Sec. 25 F of I.D. Act, it is to be seen whether he has completed 240 days in last 12 months. It will not make any effect/benefit even if he qualifies this condition in previous/early years of his service period in UP. S.C. Court in the case of Sriram Industrial Enterprises vs. Mahak Singh 2007 CLR II 744 has held that the workman will be entitled to relief if such workman competes 240 days in any calendar year.
If the employee after strike do not report back to duty and leave the services, can gratuity be forfeited?
No! The gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of property belonging to the employer shall be forfeited to the extent of the damage or loss so caused. The mere intention or abandonment of job after strike cannot be said to be a situation whereby employer has the power under Sec. 4 (6) of Payment of Gratuity Act to forfeit the gratuity of such employee. The pre-condition to exercise of powers under provision stated above is that the employer has to pass a specific order terminating the services of the employee. This has so been held by P&H H.C. in the case of M/s. Hindustan Everest Tools vs. Inderjeet & Another 2020 (166) FLR 1019.
In case of daily wages workman, when he is terminated illegally, can there be any reasons where he can be compensated only in lieu of reinstatement?
Yes! Supreme Court in Haryana Tourism Corporation Ltd. vs. Fakir Chand 2003 (99) FLR 821 has laid many relevant facts to be considered before awarding retrenchment compensation viz., daily wager, not recruited through the employment exchange or any other accepted mode of selection, not regularized and nature work. Raj. HC in the case of Resident Engineer, Housing Board, Kota vs. Lokhpat and Ors. 2003 (99) FLR 105 has held that where a workman has remained not in touch with job for long period of time (in this case it was 12 years) , it may not be expedient to order reinstatement while setting aside the termination. In such a case compensation in lieu of reinstatement should be ordered. SC in the case of Rattan Singh vs. Union of India (1997) 11 SCC 396 has also ordered compensation because of long period 20 years lapsed in litigation. SC in the case of Surendra Kumar Verma vs. The Central Government Industrial Tribunal 1980 (41) FLR 351 has also cited that in case where industry might have closed down or might be in severe financial doldrums, or the workman secured better or other employment elsewhere, the compensation in lieu of reinstatement may be granted. Raj. HC in the case of Zonal Manager, UCO Bank vs. Ram Prakash Prajapati 2007 (114) FLR 314, has laid down certain circumstances when compensation in lieu of reinstatement may be granted and these are (1) When takes plea of lack of trust in the employee (2) worker being a daily rated worker and long time have elapsed since his retrenchment (3) Non availability of work or post (4) workman not having been recruited through any accepted mode of selection.
What is the difference between Resignation and retirement where the end result of both is the end of employer- employee relationship ?
Supreme Court in the case of UCO Bank and Others vs. Sanwar Mal 2004 (101) FLR 437 and in the case of Syndicate Bank, Bangalore vs. Satya Srinath 2007 (114) FLR 977 has made distinction between resignation and retirement. In case of resignation, Employee can exercise his right to leave the service at any point of time and it is his action whereas in case of retirement or voluntary retirement, he retires on qualifying certain conditions of his employment terms or/and age. The resignation and voluntary retirement are deliberate actions leading to abandonment of job. Retirement can also be compulsory as a punishment. Premature retirement or compulsory retirement cannot be voluntary in nature. It has an element of imposition by management.
Our establishment is in UP. We have State ID Act. My question is whether in respect of working of 240 days by workman, it is to counted in preceding 12 months from the date of termination or if he has completed 24 days in any period during his service tenure, he will be entitled to retrenchment compensation?
The definition of continuous service as provided in Central Industrial Disputes Act in Sec. 25B and in Sec. 2 (g) of U.P. I.D. Act is different. In Central Act, Sub Sec. 2 (a) of 25B says that for a period of one year if the workman during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days, where as in U.P. I.D. Act Sec. 2 (g) defines.. "a workman who during a period of twelve calendar months has actually worked in an industry for not less than 240 days shall be deemed to have completed one year of continuous service". In U.P. I.D. Act the word "Preceding" is missing and that makes the whole difference. It means that a workman in order to be in continuous service may have worked continuously for a period of 240 days in any calendar year during his period of service. For example if a workman has been in employment for three years and in any year he has completed 240 days, he will be entitled to retrenchment compensation according to Sec. 6 -N of UP ID Act . It will not be necessary to for such workman to complete 240 days in last 12 months preceding the date of termination. Whereas it is required in case of Central I.D. Act. To become entitled to get retrenchment compensation under Sec. 25 F of I.D. Act, it is to be seen whether he has completed 240 days in last 12 months. It will not make any effect/benefit even if he qualifies this condition in previous/early years of his service period in UP. S.C. Court in the case of Sriram Industrial Enterprises vs. Mahak Singh 2007 CLR II 744 has held that the workman will be entitled to relief if such workman competes 240 days in any calendar year.
If the employee after strike do not report back to duty and leave the services, can gratuity be forfeited?
No! The gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of property belonging to the employer shall be forfeited to the extent of the damage or loss so caused. The mere intention or abandonment of job after strike cannot be said to be a situation whereby employer has the power under Sec. 4 (6) of Payment of Gratuity Act to forfeit the gratuity of such employee. The pre-condition to exercise of powers under provision stated above is that the employer has to pass a specific order terminating the services of the employee. This has so been held by P&H H.C. in the case of M/s. Hindustan Everest Tools vs. Inderjeet & Another 2020 (166) FLR 1019.
What is the scope and dimension of the term sexual harassment as defined in POSH Law. Can the hostile circumstances created in the organization though not straight instances of seeking sexual favour against the woman employee, also can be termed as an act of sexual harassment?
Yes! The POSH Law has been enacted with objectives to provide broad view of sexual harassment against woman and provide protection to her at workplace. The workplace definition is also very much expanded and not restricted to physical designated workplace of employer and their four walls. In the same way, the definition of sexual harassment has to be interpreted and understood in broad respect and cannot have restricted meaning. M.P. H.C. in the case of Global Health Private Pvt. vs. Local Complaints Committee 2020 LLR 40 has discussed the issue in detail and held that scope and dimension of Sec. 2 (n) and 3(2) must not receive narrow and pedantic meaning. The act of sexual harassment is an act of violation of human rights, women right to live with dignity and protection against all types of discrimination. Court held that unwelcome acts or behavior, directly or by implication including circumstances if it occurs or is present in relation to or connected with any act or behavior of sexual harassment like comment of perpetrator, If she wanted to continue, she should be good to him, comments upon dress and outfits of woman, avoiding signature on her bills of reimbursement, making her sit in his cabin for hours together, creating obstruction and causing harassment in technical and operational support, talking with her in high pitch voice with contempt and offending her dignity and chastity, not allowing her to participate in marketing, marginalizing and embarrassing and subjecting to typical hostile work environment intimating with future employment etc will constitute acts of sexual harassment. When word Includes is used in definition, the legislature does not intend to restrict the definition.
What ate the tests to conclude that multiple establishments can be clubbed as one under EPF Act?
Functional integrality and existence on one without the other are not the only absolute tests to club the two or multiple establishment to cover under EPF Act. There are other factors such as intent and objectives of the owner behind creating different firms are also to be seen. Delhi HC in the case of Regional PF Commissioner vs. Nath Traders and Ors. 2008 II CLR 124 has held that where the nature of business is same with common control and supervision, in common premises having one accountant to manage their accounts with one common telephone and employees of both the firms were intermingled will be deemed as one establishment for the purpose of EPF. In this case the owner was in business of dealership of LPG gas and other unit was having dealership of distribution of Kerosene Oil. He was sole proprietor of one unit and was partner in other unit. Other partner being his wife was sleeping partner. Merely having separate sales tax and income tax registrations shall not change the unity of the establishments.