We have our export unit where only export of finished stone products are done. The cutting, grinding, designing, finishing and polishing are done by contractor firm who also has set up its unit separately registered under factories Act and do our work. In such arrangement can ESI be applicable on both units considering them as one?
As facts you have narrated that you split the work in to manufacturing and marketing which is done by two units-one by you as principal employer and other is done by contractor for you. Looking in to the definition of the Immediate Employer and employee as provided in ESI act and if apply in your case, in all probabilities, contractor factory will be considered as the factory of principal employer because predominant activity is being carried by contractor for principal employer business. SC in the case of Lakshmanamurthy B.M. The Employees State Insurance Corporation 1974 (28) FLR 223; 1974 I LLJ 304; 1974 (4) SCC 365 has held that work taken out by contractors in the adjoining vicinity though their factory has been subsequently registered separately under Factories Act, is preliminary or incidental to the work in the principal employers factory turning out the finished products for export. The work in two places has an intimate correlation and is a piece of integrated whole and the work of the contractors through their labour is ordinary part of the work of the principal factory. Court held that the contractors are the immediate employers within the meaning of Sec. 1(13) of the ESI Act and the workers employed with them are the employees under the Act.
In the course of disciplinary proceedings, sometimes employee tenders his confession or admission or apology letter. I want to understand the difference and impact of such document in proceedings?
Karnataka HC in the case of H.K. Lakshminarayanappa vs. The University of Agricultural Sciences, Bangalore in WRIT APPEAL NO. 5986/2011decidecd on 6.3.2015 has discussed the issue and said that Admission is the nod of the charged employee to any particular fact mentioned in the charge sheet. If it is accompanied by admission of guilt also, it becomes a confession. An apology presupposes that the accused admits the guilt and begs to be pardoned. Admission/apology to have the effect of dispensing with inquiry must be clear, concise and unconditional and made after issue of the charge-memo/charge-sheet. An apology loses its grace if it is not tendered in the beginning but only when the charge is proved and punishment is going to be imposed. Confession is based on the maxim habemus optimum testem, confitentem reum which means that confession/admission of delinquent employee is the best evidence against him. The rationale behind this principle is that an ordinary, normal sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience. When there is admission which constitutes the delinquency then there is no necessity for further proof and a decision can be taken by the competent authority on admission. Apology tendered at the later stage when things turn against him it shorn of all grace and is an act of cringing coward. Apology is an act of contrition, the manly consciousness of a wrong done and a desire to make reparation. It should be the outcome of a real feeling of remorse. Hence, if it is not offered in the earliest and unreservedly, it is shorn of penitence. An apology tendered when the punishment is going to be imposed ceases to be an apology but an act of cringing coward.
Can you brief about the key highlights of amendments made in Apprenticeship Rules in 2019?
The new rules of 2019 are focused to increase the skilled manpower in the country and increase the remuneration for the apprentices. The Rules have now raised the engagement limit to 15 percent of the total employee strength in an organization with a revised stipend up to INR 9000. The Rules have been made effective from September 25, 2019. The minimum amount of stipend prescribed ranges from INR 5,000 per month - for school pass outs between Class 5th and 9th - to INR 9,000 per month to graduate or degree apprentices in any stream. Key highlights are : 1. The minimum stipend amount that will be paid to trade apprentices will be based on qualification which will be between INR 5000 per month to INR 9000 per month now. 2. As per new Amendments in Rules, the size-limit of an establishment with a mandatory obligation to engage apprentices on an optional basis has been reduced from 40 to 30. It has also reduced the size-limit of an establishment intending to engage apprentices from 6 to 4. This will allow smaller companies to engage more trainees. 3. The employers having four or more workers shall only be eligible to engage apprentices and engagement of apprentices by establishment having thirty or more number of workers shall be obligatory. 4. The period of apprenticeship training for optional trade shall be a minimum of six months to a maximum of three years. 5. Every apprentice undergoing apprenticeship training in an establishment shall be a trainee and not a worker. The provisions of any law with respect to labour shall not apply to or in relation to such an apprentice. 6. Within a financial year, each establishment shall engage apprentices in a band of 2.5 per cent. to 15 per cent. of the total strength of the establishment including contractual staff, subject to a minimum of 5 per cent. of the total to be reserved for fresher apprentices and skill certificate holder apprentices. 7. In no month, number of apprentices should be less than 2 per cent. of the total strength of the establishment and more than 18 per cent. of the total strength of the establishment. 8. The minimum rate of stipend payable to apprentices per month shall be as per the qualifications stipulated in the curriculum. An establishment can engage apprentices of age eighteen and above in normal working hours of the establishment. Apprentices under the age of eighteen shall be engaged in such training between the hours of 8.00 am and 6.00 pm. Any relaxation in the same shall be approved by the Apprenticeship Adviser.
What would be the legality of engaging group of workers for a fixed period and then rotate them after some time? Since such employment would be on fixed term, so cannot be challenged also.
It sounds good and also can be practicable on ground also but it would be illegal if challenged. It will amount to unfair labour practice. On the surface of it appears that since you are engaging the workmen temporarily for a short period and even if re engaging them after some time, there should not be any problem. But it is illegal. Recently Bombay High Court Single judge bench while disposing group of petitions filed by the temporary workers of Bajaj Auto held that keeping engaged workers as temporary for seven months and then re engaging them on rotational patterns for years together to keep them deprived of permanent status is illegal and unfair labour practice. Court announced the judgment in the case of Shri Sunil Pralhad Khomane & Others vs. Bajaj Auto Limited in WP. 4502 of 2006 on 02. Feb. 2021. Court found in the present case that the work performed by these workers was of perennial nature. It was no different from what is performed by the permanent workmen of the company, for which these temporary workforce was engaged. This system of engagement of workers on rotational basis continues as long as for 13 years. Court also found that the employment of the workmen in the present case was neither for any particular work or project nor was brought to an end after a fixed period due to wanting of work upon expiry of the period of contract. So such termination also does not fall under Sec. 2(oo) (bb) of I.D. Act. The engagements of temporaries workers were brought to an end purportedly at the expiry of the stipulated period of contract only to ensure that they get an artificial break (during which others from the waiting list were employed) only to be re-employed and this went on - again and again. High Court held that the above pattern appeared to have been designed with a view to avoiding any legitimate claim of permanency of tenure on the part of workmen concerned.
Can you brief about the key highlights of amendments made in Apprenticeship Rules in 2019?
The new rules of 2019 are focused to increase the skilled manpower in the country and increase the remuneration for the apprentices. The Rules have now raised the engagement limit to 15 percent of the total employee strength in an organization with a revised stipend up to INR 9000. The Rules have been made effective from September 25, 2019. The minimum amount of stipend prescribed ranges from INR 5,000 per month - for school pass outs between Class 5th and 9th - to INR 9,000 per month to graduate or degree apprentices in any stream. Key highlights are : 1. The minimum stipend amount that will be paid to trade apprentices will be based on qualification which will be between INR 5000 per month to INR 9000 per month now. 2. As per new Amendments in Rules, the size-limit of an establishment with a mandatory obligation to engage apprentices on an optional basis has been reduced from 40 to 30. It has also reduced the size-limit of an establishment intending to engage apprentices from 6 to 4. This will allow smaller companies to engage more trainees. 3. The employers having four or more workers shall only be eligible to engage apprentices and engagement of apprentices by establishment having thirty or more number of workers shall be obligatory. 4. The period of apprenticeship training for optional trade shall be a minimum of six months to a maximum of three years. 5. Every apprentice undergoing apprenticeship training in an establishment shall be a trainee and not a worker. The provisions of any law with respect to labour shall not apply to or in relation to such an apprentice. 6. Within a financial year, each establishment shall engage apprentices in a band of 2.5 per cent. to 15 per cent. of the total strength of the establishment including contractual staff, subject to a minimum of 5 per cent. of the total to be reserved for fresher apprentices and skill certificate holder apprentices. 7. In no month, number of apprentices should be less than 2 per cent. of the total strength of the establishment and more than 18 per cent. of the total strength of the establishment. 8. The minimum rate of stipend payable to apprentices per month shall be as per the qualifications stipulated in the curriculum. An establishment can engage apprentices of age eighteen and above in normal working hours of the establishment. Apprentices under the age of eighteen shall be engaged in such training between the hours of 8.00 am and 6.00 pm. Any relaxation in the same shall be approved by the Apprenticeship Adviser.
What would be the legality of engaging group of workers for a fixed period and then rotate them after some time? Since such employment would be on fixed term, so cannot be challenged also.
It sounds good and also can be practicable on ground also but it would be illegal if challenged. It will amount to unfair labour practice. On the surface of it appears that since you are engaging the workmen temporarily for a short period and even if re engaging them after some time, there should not be any problem. But it is illegal. Recently Bombay High Court Single judge bench while disposing group of petitions filed by the temporary workers of Bajaj Auto held that keeping engaged workers as temporary for seven months and then re engaging them on rotational patterns for years together to keep them deprived of permanent status is illegal and unfair labour practice. Court announced the judgment in the case of Shri Sunil Pralhad Khomane & Others vs. Bajaj Auto Limited in WP. 4502 of 2006 on 02. Feb. 2021. Court found in the present case that the work performed by these workers was of perennial nature. It was no different from what is performed by the permanent workmen of the company, for which these temporary workforce was engaged. This system of engagement of workers on rotational basis continues as long as for 13 years. Court also found that the employment of the workmen in the present case was neither for any particular work or project nor was brought to an end after a fixed period due to wanting of work upon expiry of the period of contract. So such termination also does not fall under Sec. 2(oo) (bb) of I.D. Act. The engagements of temporaries workers were brought to an end purportedly at the expiry of the stipulated period of contract only to ensure that they get an artificial break (during which others from the waiting list were employed) only to be re-employed and this went on - again and again. High Court held that the above pattern appeared to have been designed with a view to avoiding any legitimate claim of permanency of tenure on the part of workmen concerned.
In the course of disciplinary proceedings, sometimes employee tenders his confession or admission or apology letter. I want to understand the difference and impact of such document in proceedings?
Karnataka HC in the case of H.K. Lakshminarayanappa vs. The University of Agricultural Sciences, Bangalore in WRIT APPEAL NO. 5986/2011decidecd on 6.3.2015 has discussed the issue and said that Admission is the nod of the charged employee to any particular fact mentioned in the charge sheet. If it is accompanied by admission of guilt also, it becomes a confession. An apology presupposes that the accused admits the guilt and begs to be pardoned. Admission/apology to have the effect of dispensing with inquiry must be clear, concise and unconditional and made after issue of the charge-memo/charge-sheet. An apology loses its grace if it is not tendered in the beginning but only when the charge is proved and punishment is going to be imposed. Confession is based on the maxim habemus optimum testem, confitentem reum which means that confession/admission of delinquent employee is the best evidence against him. The rationale behind this principle is that an ordinary, normal sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience. When there is admission which constitutes the delinquency then there is no necessity for further proof and a decision can be taken by the competent authority on admission. Apology tendered at the later stage when things turn against him it shorn of all grace and is an act of cringing coward. Apology is an act of contrition, the manly consciousness of a wrong done and a desire to make reparation. It should be the outcome of a real feeling of remorse. Hence, if it is not offered in the earliest and unreservedly, it is shorn of penitence. An apology tendered when the punishment is going to be imposed ceases to be an apology but an act of cringing coward.
We have our export unit where only export of finished stone products are done. The cutting, grinding, designing, finishing and polishing are done by contractor firm who also has set up its unit separately registered under factories Act and do our work. In such arrangement can ESI be applicable on both units considering them as one?
As facts you have narrated that you split the work in to manufacturing and marketing which is done by two units-one by you as principal employer and other is done by contractor for you. Looking in to the definition of the Immediate Employer and employee as provided in ESI act and if apply in your case, in all probabilities, contractor factory will be considered as the factory of principal employer because predominant activity is being carried by contractor for principal employer business. SC in the case of Lakshmanamurthy B.M. The Employees State Insurance Corporation 1974 (28) FLR 223; 1974 I LLJ 304; 1974 (4) SCC 365 has held that work taken out by contractors in the adjoining vicinity though their factory has been subsequently registered separately under Factories Act, is preliminary or incidental to the work in the principal employers factory turning out the finished products for export. The work in two places has an intimate correlation and is a piece of integrated whole and the work of the contractors through their labour is ordinary part of the work of the principal factory. Court held that the contractors are the immediate employers within the meaning of Sec. 1(13) of the ESI Act and the workers employed with them are the employees under the Act.