In case where the complainant withdraws his complaint made by him before the management, Can inquiry proceedings in such situation become in fructuous and invalid?
No! Mad. H.C. in the case of Sri Ganapathi Mills Co. Ltd. vs. Presiding Officer, Labour Court and Another. 2003 LLR 88 has held that the mere fact that the complainant/victim had chosen to withdraw the complaint in respect of assault on him by other workers, cannot result in preventing the management from taking appropriate action for the misconduct against such workers who assaulted him.
Can employer deny the payment of legal dues of employee like wages, OT or gratuity on the ground that the company is protected under Sec.22 of SICA Act?
No! Employer cannot get any protection from provisions of SICA Act in respect of payment of legal dues of employee. The M.P.H.C. in the case of of National Textiles Corporation vs. Collector (1998 M.P.L.S.R. 469) has held that held Inter alia that though the language of Section 22 ibid is wide yet, it cannot be stretched so as to include within its sweep to stay the legitimate dues of workers. The Court held that if the R.R.C. is issued for recovery of dues of a worker, then Section 22 of SICA cannot be relied on by the employer. In another case M.P. H.C. in the case of M/s. Shri Ishwar Alloy Steels Ltd. vs. The Collector and Two Others. 2002 LLR 455 has held in the same direction. In this case the worker wages and overtime was not paid and recovery certificate was issued by competent authority under Minimum Wages Act against the employer.
Can establishment reduce the suspension allowance of the workman where disciplinary proceedings are delayed due to grant of stay by court on such proceedings on the application of the workman under MRTU & PULP Act?
No! Suspension allowance cannot be reduced on such account. Sec. 10 of Industrial Employment (S.O.) Act will prevail in such circumstances. It is clear from Section 10-A, that the employer is required to pay subsistence allowance to a workman suspended pending inquiry at the rate of 50% of wages for the first 90 days and at the rate of 75% of wages for the remaining period of suspension, if delay in completion of disciplinary proceedings is not directly attributable to the conduct of the workman concerned. If a workman is entitled to more beneficial provisions regarding subsistence allowance under any other law in force in any State, then the provisions of such other law shall prevail. However, as an exception a workman can be denied payment of subsistence allowance at the rate of 75% after expiry of 90 days of suspension, if the delay in the completion of disciplinary proceedings is directly attributable to the conduct of such workman. S.C. in the case of B.D. Shetty & Ors. vs. Ms. Ceat Ltd. & Anr. 2002 LLR 2 has examined the issue that whether delay of any kind is covered by mischief of Section 10-A(1)(b) of the Act? Court observed that If under Section 10-A(1)(b) of the Act only the words attributable to were used, the position would have been different but the words used directly attributable to prefixing the word directly to the words attributable to makes a drastic difference to emphasis that in order to deny a workman subsistence allowance at the rate of 75%, the delay should be directly attributable to the conduct of such workman in completion of disciplinary proceedings and not that every kind of delay is covered by the said provision. If that was the intention of the legislature there was no need for emphasis by adding the word directly and instead they would have simply used the words attributable to. When a workman approaches a competent court bonafidely to protect himself from prejudice likely to be caused by continuing proceedings simultaneously in domestic inquiry as also in the criminal case grounded on the same set of facts and succeeds in getting order from a competent judicial authority staying further proceedings in the disciplinary proceedings till the disposal of the criminal case, it cannot be said that delay on that account in completion of disciplinary proceedings is directly attributable to the conduct of such workman. It appears, reference to the delay directly attributable to the conduct of the workman in the said provision is obviously to the one where the workman unjustifiably, deliberately or designedly drags on or prolongs the domestic inquiry. To put it in other way, a workman cannot be permitted to take advantage of delay caused by himself in the absence of any order passed by a court. If such a delay is also to be taken as covered by Section 10- A(1)(b) it may amount to in a way putting restraint or clog on the exercise of legal right of a workman to approach a court of law out of fear of losing subsistence allowance at the rate of 75%. Merely because legal proceedings will be pending in a court or before other authority and they take some time for disposal, may be inevitably, that itself cannot be the ground to deny subsistence allowance to a workman against a statutory obligation created on the employer under Section 10-A(1)(b). Bombay High Court in the case of May & Baker Ltd. vs. Kishore Jaikishandas Icchaporia (1991) Lab. I.C. 2066 has held that the Model Standing Orders, as also Certified Standing Orders, are laws no doubt, but they are laws made under the provisions of the Act. They are not provisions under any other law. Therefore, the provisions of Section 10-A supervene in relation to the payment of subsistence allowance over the provisions of the Model Standing Orders.
When an additional unit is acquired, Is management under legal obligation to seek consent of workers for transfer to such new acquired unit when continuity of service and same pay/perks are ensured?
No! Management is not required to seek consent for transfers. Such transfers are governed by section 25-FF of the Industrial Disputes Act. There are three conditions: (a) The service of the workman has not been interrupted by such transfer. (b) The terms and conditions of service applicable to the workman after such transfer are not, in any way, less favourable to the workman than those applicable to him immediately before the transfer. (c) The new employer is, under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer. The objective of legislature behind enacting this provision seems to ensure that there should not be any break in service by joining new establishment and adverse impact on salary/wages/perks of the workman. If all these are ensured then pre- requisite of consent of workmen is not there.
We are a Pvt. Ltd. Co. Are we as Principal employer responsible to pay retrenchment compensation to contract labour when he is terminated by Contractor in view of renowned Uma Devi case Judgment?
The case of State of Karnataka vs. Uma Devi which has been referred to in the question has different context. This judgment does make private sector employer responsible to pay retrenchment compensation in case of termination of contract labour by contractor. The judgment of Uma Devi case is about right of regularisation of casual or daily wager or adhoc or temp. employee engaged in PSUs/Govt. Dept. or Instrumentality of the State. The judgment does not give casual worker or contract worker a right to get him regularised against sanctioned post in public sector merely because he has worked for more than required days. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. Regularisation rests with the court. Since your organisation being incorporated under Companies Act is not a state instrumentality and hence falls under private sector. The contract labour engaged by contractor and placed at principal employer site will be governed by the terms of employment between contractor and him and of course provisions of Industrial Disputes Act and Contract Labour (R&A) Act will also apply. It makes no difference for principal employer if any contract labour completes 240 days because on that basis only such contract labour cannot demand/claim permanency from principal employer, unless the court declares that thex contract between contractor and principal employer was sham and bogus and employer employee relationship exists between contract labour and principal employer. It is the liability of the contractor and not the principal employer to pay retrenchment compensation to such workman engaged by contractor at the time of termination if he completes 240 days in preceding 12 months before the date of termination and he was not appointed on fixed term basis. If the contract labour so engaged by contractor is employed on fixed term basis, and he is discharged as per terms of his employment or his contract comes to an end because of expiry of contract period then even the contractor is also not liable to pay any retrenchment compensation because any such termination falls under Sec.2 (oo) (bb) of I.D. Act. Moreover, the retrenchment compensation is not defined as wage under related Acts and since the principal employer is responsible to pay only wages to contract labour in case of default committed by contractor, principal employer is not liable for payment of retrenchment compensation to contract labour engaged by contractor. What you as principal employer need to ensure that the documentation between principal employer and contractor and terms of employment between contract labour and contractor are correct, genuine, legal and valid.
When an additional unit is acquired, Is management under legal obligation to seek consent of workers for transfer to such new acquired unit when continuity of service and same pay/perks are ensured?
No! Management is not required to seek consent for transfers. Such transfers are governed by section 25-FF of the Industrial Disputes Act. There are three conditions: (a) The service of the workman has not been interrupted by such transfer. (b) The terms and conditions of service applicable to the workman after such transfer are not, in any way, less favourable to the workman than those applicable to him immediately before the transfer. (c) The new employer is, under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer. The objective of legislature behind enacting this provision seems to ensure that there should not be any break in service by joining new establishment and adverse impact on salary/wages/perks of the workman. If all these are ensured then pre- requisite of consent of workmen is not there.
Can establishment reduce the suspension allowance of the workman where disciplinary proceedings are delayed due to grant of stay by court on such proceedings on the application of the workman under MRTU & PULP Act?
No! Suspension allowance cannot be reduced on such account. Sec. 10 of Industrial Employment (S.O.) Act will prevail in such circumstances. It is clear from Section 10-A, that the employer is required to pay subsistence allowance to a workman suspended pending inquiry at the rate of 50% of wages for the first 90 days and at the rate of 75% of wages for the remaining period of suspension, if delay in completion of disciplinary proceedings is not directly attributable to the conduct of the workman concerned. If a workman is entitled to more beneficial provisions regarding subsistence allowance under any other law in force in any State, then the provisions of such other law shall prevail. However, as an exception a workman can be denied payment of subsistence allowance at the rate of 75% after expiry of 90 days of suspension, if the delay in the completion of disciplinary proceedings is directly attributable to the conduct of such workman. S.C. in the case of B.D. Shetty & Ors. vs. Ms. Ceat Ltd. & Anr. 2002 LLR 2 has examined the issue that whether delay of any kind is covered by mischief of Section 10-A(1)(b) of the Act? Court observed that If under Section 10-A(1)(b) of the Act only the words attributable to were used, the position would have been different but the words used directly attributable to prefixing the word directly to the words attributable to makes a drastic difference to emphasis that in order to deny a workman subsistence allowance at the rate of 75%, the delay should be directly attributable to the conduct of such workman in completion of disciplinary proceedings and not that every kind of delay is covered by the said provision. If that was the intention of the legislature there was no need for emphasis by adding the word directly and instead they would have simply used the words attributable to. When a workman approaches a competent court bonafidely to protect himself from prejudice likely to be caused by continuing proceedings simultaneously in domestic inquiry as also in the criminal case grounded on the same set of facts and succeeds in getting order from a competent judicial authority staying further proceedings in the disciplinary proceedings till the disposal of the criminal case, it cannot be said that delay on that account in completion of disciplinary proceedings is directly attributable to the conduct of such workman. It appears, reference to the delay directly attributable to the conduct of the workman in the said provision is obviously to the one where the workman unjustifiably, deliberately or designedly drags on or prolongs the domestic inquiry. To put it in other way, a workman cannot be permitted to take advantage of delay caused by himself in the absence of any order passed by a court. If such a delay is also to be taken as covered by Section 10- A(1)(b) it may amount to in a way putting restraint or clog on the exercise of legal right of a workman to approach a court of law out of fear of losing subsistence allowance at the rate of 75%. Merely because legal proceedings will be pending in a court or before other authority and they take some time for disposal, may be inevitably, that itself cannot be the ground to deny subsistence allowance to a workman against a statutory obligation created on the employer under Section 10-A(1)(b). Bombay High Court in the case of May & Baker Ltd. vs. Kishore Jaikishandas Icchaporia (1991) Lab. I.C. 2066 has held that the Model Standing Orders, as also Certified Standing Orders, are laws no doubt, but they are laws made under the provisions of the Act. They are not provisions under any other law. Therefore, the provisions of Section 10-A supervene in relation to the payment of subsistence allowance over the provisions of the Model Standing Orders.
When an additional unit is acquired, Is management under legal obligation to seek consent of workers for transfer to such new acquired unit when continuity of service and same pay/perks are ensured?
No! Management is not required to seek consent for transfers. Such transfers are governed by section 25-FF of the Industrial Disputes Act. There are three conditions: (a) The service of the workman has not been interrupted by such transfer. (b) The terms and conditions of service applicable to the workman after such transfer are not, in any way, less favourable to the workman than those applicable to him immediately before the transfer. (c) The new employer is, under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer. The objective of legislature behind enacting this provision seems to ensure that there should not be any break in service by joining new establishment and adverse impact on salary/wages/perks of the workman. If all these are ensured then pre- requisite of consent of workmen is not there.
In case where the complainant withdraws his complaint made by him before the management, Can inquiry proceedings in such situation become in fructuous and invalid?
No! Mad. H.C. in the case of Sri Ganapathi Mills Co. Ltd. vs. Presiding Officer, Labour Court and Another. 2003 LLR 88 has held that the mere fact that the complainant/victim had chosen to withdraw the complaint in respect of assault on him by other workers, cannot result in preventing the management from taking appropriate action for the misconduct against such workers who assaulted him.
We are a Pvt. Ltd. Co. Are we as Principal employer responsible to pay retrenchment compensation to contract labour when he is terminated by Contractor in view of renowned Uma Devi case Judgment?
The case of State of Karnataka vs. Uma Devi which has been referred to in the question has different context. This judgment does make private sector employer responsible to pay retrenchment compensation in case of termination of contract labour by contractor. The judgment of Uma Devi case is about right of regularisation of casual or daily wager or adhoc or temp. employee engaged in PSUs/Govt. Dept. or Instrumentality of the State. The judgment does not give casual worker or contract worker a right to get him regularised against sanctioned post in public sector merely because he has worked for more than required days. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. Regularisation rests with the court. Since your organisation being incorporated under Companies Act is not a state instrumentality and hence falls under private sector. The contract labour engaged by contractor and placed at principal employer site will be governed by the terms of employment between contractor and him and of course provisions of Industrial Disputes Act and Contract Labour (R&A) Act will also apply. It makes no difference for principal employer if any contract labour completes 240 days because on that basis only such contract labour cannot demand/claim permanency from principal employer, unless the court declares that thex contract between contractor and principal employer was sham and bogus and employer employee relationship exists between contract labour and principal employer. It is the liability of the contractor and not the principal employer to pay retrenchment compensation to such workman engaged by contractor at the time of termination if he completes 240 days in preceding 12 months before the date of termination and he was not appointed on fixed term basis. If the contract labour so engaged by contractor is employed on fixed term basis, and he is discharged as per terms of his employment or his contract comes to an end because of expiry of contract period then even the contractor is also not liable to pay any retrenchment compensation because any such termination falls under Sec.2 (oo) (bb) of I.D. Act. Moreover, the retrenchment compensation is not defined as wage under related Acts and since the principal employer is responsible to pay only wages to contract labour in case of default committed by contractor, principal employer is not liable for payment of retrenchment compensation to contract labour engaged by contractor. What you as principal employer need to ensure that the documentation between principal employer and contractor and terms of employment between contract labour and contractor are correct, genuine, legal and valid.
When an additional unit is acquired, Is management under legal obligation to seek consent of workers for transfer to such new acquired unit when continuity of service and same pay/perks are ensured?
No! Management is not required to seek consent for transfers. Such transfers are governed by section 25-FF of the Industrial Disputes Act. There are three conditions: (a) The service of the workman has not been interrupted by such transfer. (b) The terms and conditions of service applicable to the workman after such transfer are not, in any way, less favourable to the workman than those applicable to him immediately before the transfer. (c) The new employer is, under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer. The objective of legislature behind enacting this provision seems to ensure that there should not be any break in service by joining new establishment and adverse impact on salary/wages/perks of the workman. If all these are ensured then pre- requisite of consent of workmen is not there.
Can employer deny the payment of legal dues of employee like wages, OT or gratuity on the ground that the company is protected under Sec.22 of SICA Act?
No! Employer cannot get any protection from provisions of SICA Act in respect of payment of legal dues of employee. The M.P.H.C. in the case of of National Textiles Corporation vs. Collector (1998 M.P.L.S.R. 469) has held that held Inter alia that though the language of Section 22 ibid is wide yet, it cannot be stretched so as to include within its sweep to stay the legitimate dues of workers. The Court held that if the R.R.C. is issued for recovery of dues of a worker, then Section 22 of SICA cannot be relied on by the employer. In another case M.P. H.C. in the case of M/s. Shri Ishwar Alloy Steels Ltd. vs. The Collector and Two Others. 2002 LLR 455 has held in the same direction. In this case the worker wages and overtime was not paid and recovery certificate was issued by competent authority under Minimum Wages Act against the employer.