May 2022

The PoSH Act requires employer to carry out certain obligations under the Act and one of the important obligations is to constitute an Internal Committee (“IC”), a body to receive complaints on sexual harassment at the workplace from an aggrieved woman, as well as to inquire into and make recommendations to the employer on the action required pursuant to its inquiry of such complaint made.The IC is to be formed in all establishments where ten employees are employed. The POSH Act requires the employer to specify the term of office of the members of the IC, which period should not be more than three years from the date of their nomination. Raj. HC in the case of Shital Prasad Sharma vs. The State of Rajasthan and Others (2018 Lab IC 1859), observed that the PoSH Act contemplates that a Presiding Officer is appointed to chair an IC for a term of three years and should not be removed in the interim except on grounds of statutorily prescribed disqualifications.The PoSH Act envisages that an IC constituted by an employer should comprise three categories of members with certain eligibility criteria. The Presiding Officer of IC shall be a senior level female employee. All. HC in the case of Shobha Goswami vs. State of Uttar Pradesh and Others (2015 LLR 1038) held that the PoSH Act only requires that such lady member should be of a senior level. Even if the PO of IC happens to be junior than the accused against whom SH charges are levelled, will not make the constitution of IC invalid on this ground alone. If the female employee fulfilling such criteria is not available, the employer may nominate a senior level female employee from another its workplace of the same employer, or other department or organization.

There should also be an external member who should be familiar with issues relating to sexual harassment, or from a non-governmental organization or association committed to the cause of women. Delhi HC in the case of Ruchika Singh Chhabra vs. Air France India and Another (2018 LLR 697) has held the being a lawyer having experience in labour matters would not meet the criteria of external member who was neither from NGO nor having any experience of dealing SH cases. The purpose of having such external member is to achieve the objective of inclusion and neutrality. Apart from these two members there should also be two more employee members in the IC subject to the condition that 50% of the IC should be of females.

SC in the case of Surath Chandra Chakravarty vs. The State of West Bengal, AIR 1971 SC 752 has held that it is not permissible to hold an enquiry on vague charges, as the same do not give a clear picture to the delinquent to make out an effective defence as he will be unaware of the exact nature of the allegations against him, and what kind of defence he should put up for rebuttal thereof. The Court observed “The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders, has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.”

When statement of allegations is not served with the chargesheet, the enquiry stands vitiated, as having been conducted in violation of the principles of natural justice. Evidence adduced should not be perfunctory, even if the delinquent does not take the defence of, or make a protest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair-play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges. These cases can also be considered on the point. State of Andhra Pradesh & Ors. vs. S. Sree Rama Rao, AIR 1963 SC 1723; Sawai Singh vs. State of Rajasthan, AIR 1986 SC 995; U.P.S.R.T.C. & Ors. vs. Ram Chandra Yadav, AIR 2000 SC 3596; Union of India & Ors. vs. Gyan Chand Chattar, (2009) 12 SCC 78; and Anil Gilurker vs. Bilaspur Raipur Kshetria Gramin Bank & Anr., (2011) 14 SCC 379).

We have three central schemes for welfare namely Employees State Insurance, Employee deposit linked Insurance and Employees’ Compensation under EC Act. Apart from these three schemes, one more is of labour welfare fund managed by states separately.

Under ESI, which is applicable to the employees drawing up to 21K wages per month,in case of the death of the insured employee due to employment injury, the widow is entitled to 3/5 of the full rate till death or remarriage ,widowed mother gets 2/5 of the full rate till death and children are entitled to (sons at 2/5th of the full rate each till he attains the age of twenty five years and unmarried daughters at 2/5th of the full rate till they get married) amount as dependents’ benefit. The rate of the dependent’s benefit is 90% of the standard benefit rate of the wages of the deceased insured person.

Under Employees Compensation Act, injured or dependants of deceased are entitled to compensation from the employer that suffered during the course of employment but are not covered under ESI.

If an employee contracts any disease specified as an occupational disease while in the employment of an employer for not less than six months or incurred any injury by accident during and in the course of employment, the employee is eligible to claim compensation. The employer will only be liable if the death of the employee is due to the infectious and parasitic diseases that occurred in the course of the employment in any work that involves exposure to health/laboratory work exposure to veterinary work or handling animals, animal carcasses, part thereof or merchandise contaminated by the same or any other work carrying a particular risk of contamination.

The dependents of the deceased employees are eligible for the employee death benefit amount equal to 50 per cent of the monthly wages (limit of wage calculation is Rs. 8000/) of the deceased employee multiplied by the relevant factor, or an amount of Rs. 1.2 lakh, whichever is more in case of death of the employee. Claim compensation in case of death can be filed within two years from the date of death. Employee is also entitled to compensation in case of permanent or temporary disablement.

Under Employees deposit linked insurance of EPF, employee members of the family (nominees) nominated under EPF Scheme are entitled to a maximum of Rs. 7 Lakh as benefit in case of unfortunate death of employee during employment.The insurance cover depends on the salary drawn in the last 12 months of employment before death.In case the employee had not done any nomination during his employment period then all members of the family (except major sons, married daughters with major sons, and married granddaughters) would be entitled to this insurance benefit.

Apr 2022

No! On such reimbursement of TDS amount deducted from salary of expats in the shape of special allowance does not attract PF. Such special allowance will not become part of wages for the purpose of PF contribution because it is not earned by the international workers while only duty but amount is in the nature of reimbursement of TDS. Karnataka HC in the case of Assistant Provident Fund Commissioner vs. M/s. Roll Royce Operations (India) Pvt. Ltd. 2021(171) FLR 770 has held in the same direction. HC set aside the orders of the appellate Tribunal and remanded back the matter to adjudicate fresh.

To initiate disciplinary proceedings, the first step is to issue chargesheet. It is the basis of any such actionas held by SC in the case of Chairman-cum-MD, Coal India Ltd. and others vs. Ananta Saha and Others, 2011 (129) FLR 787 (SC).

The charge-sheet must be clear, unambiguous and specific as held by SC in the case of Government of Andhra Pradesh and Others. vs. A. Venkata Naidu, 2007 (1) LLJ 1004 (SC); Sawal Singh vs. State of Rajasthan, 1986 (2) LLJ 390 (SC). It must contain the details of the specific misconduct said to have been committed by the employee. In other words it should be informative. SC in the case of Anil Gilurker vs. Bilaspur Raipur Kshetriya Gramin Bank and Another, 2012 (2) LLJ 20 held so. The charge-sheet contents should so clear that employee finds himself in a position to understand the nature of charges and reply to such charges.

Following are the factors which may make a chargesheet vague/invalid or valid:

In case of insubordination and disobedience, lack of precision may make charge sheet defective when how and where the order/instructions of the senior is disobeyed is not properly mentioned.
When date, time and place is not mentioned.

When mis-description of the acts are mentioned. For example, violent or rude or disrespectful behavior towards senior cannot an act of insubordination.

Name of the persons are not mentioned if any before whom incident happened.

Verbosity and ambiguity in expression reflects in charge sheet.

Unnecessary and extraneous matters are mentioned.

Wordings of the charges are not objective, precise and meaningful to the point.

Delhi HC in the case of DTC vs. Pyare Lal 2012 LLR 1171 has held that charge-sheet will not be vague when the details of absence were not spelt out in the charge but leave statement was placed on record.

SC in the case of State Bank of India vs. Narendra Kumar Pandey 2013 LLR 211; 2013 FLR (136) 704 has held that charge sheet will not become vague or invalid if the details of documents or the names of witnesses are not mentioned unless so provided by relevant law or rules. A.P. HC in the case of R. Srinivasa Reddy vs. Hon’ble Labour Court-II 2013 LLR 433 has held that merely because all foul language was not mentioned in the charge-sheet that will not make the whole charge-sheet vague.

Bom. HC in the case of ICICI Bank Ltd. vs. Babasaheb Dhapoal Gat 2016 LLR 883 has held that when the employee was arrested on the charge of murder and charge sheet contained the charges of acting prejudicially to the interest of bank and tarnishing the image of bank only and Enquiry Officer heavily relied on the evidence of murder, such charge-sheet would be improper.

Mad. HC in the case of A. Manju vs. Union of India 2017 LLN (1) 778 has held that vagueness of the charge memo is not to be determined from the facts and law but from perception of the charge sheeted employee.

Sec. 4(5) of Payment of Gratuity Act entitles an employee to receive better terms of gratuity under any award or agreement. Since the appointment letter stipulates better terms of payment of gratuity than mentioned in Payment of Gratuity Act, Employee will get gratuity @ 21 days of completed year of service. In such case Payment of Gratuity Act condition of 15 days amount of gratuity per year will not be applicable. It has also so been held by Madras HC in the case of Tamil Nadu Khadi And Village Industries Board vs. Assistant Commissioner of Labour 2022 (172) FLR 416. However, If the condition of employment had mentioned lesser payment rate of gratuity than provided in Payment of Gratuity Act, then the provisions of Payment of Gratuity Act would have prevailed because Sec. 14 of the Act in no uncertain terms states that the provisions of the Actor any rule made thereunder shall have effect not with standing anything contained in any enactment other than the Actor any instrument or contract, having effect by virtue of any enactment other than the Act.

No! It will not be as stated by you in your question. It is well settled now by many judgments of the Supreme Court that where an employer fails to make an enquiry before dismissal or discharge of a workman, it is open for the employer to justify it’s action before the Labour Court by leading evidence before it. The entire matter would be open before the tribunal, which would have the jurisdiction to satisfy itself on the evidence adduced by the parties as to whether the dismissal or discharge was justified.

The Supreme Court in the case of The State of Uttarakhand vs. Sureshwati in Civil Appeal no. 142 of 2021 decided recently on 20 January, has categorically held that the dismissal of an employee without conducting disciplinary enquiry is not illegal & unsustainable only on this ground alone.

The Supreme Court has put to rest the controversy as to whether conducting Disciplinary Enquiry is mandatory before dismissal of an employee holding that the employee gets sufficient & reasonable opportunity to put forth his/her case before the Labour Court and the principles of Natural Justice are not violated in such an eventuality.

SC in the case of Workmen of the Motipur Sugar Factory Private Ltd. vs. Motipur Sugar Factory AIR 1965 SC 1803 has also held that In a case where enquiry is not held, the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been properly held but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified.

SC in the case of Delhi Cloth and General Mills Co. vs. LudhBudh Singh (1972) 1 SCC 595 held that. If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.

Feb 2022

Yes. You can do . Absence from duty shows negligence towards duty and disinterest in work. The Supreme Court in the case of Delhi Transport Corporation v. Sardar Singh, 2004 LLR 953 has clarified that when an employee habitually absents himself from duty without sanctioned leave for a very long period and his past record was not satisfactory, it prima facie shows negligence and lack of interest in work.It was further held that merely because the absence of a workman was treated as leave without pay for the purpose of maintaining correct record by the management, it does not absolve a workman from the misconduct of his habitual absence from duty. It makes no difference if workman moves an application after enjoying absence and he is marked as leave without pay. Actually leave is to be sanctioned before proceeding on leave.

You are not required to seek express permission from the Conciliation Officer where the dispute/conciliation proceedings are pending under Sec. 33(1) for such dismissals, since the misconduct committed by such workmen for which they are proposed for dismissal is in no way connected with the pending conciliation proceedings, So, you are required to obtain approval only under Sec. 33(2)(b) of the I.D. Act. Here you should pay such workmen one month wages along with dismissal order and then side by side apply for approval. S.C. in the case of Shri Dorairaj Spintex vs. R. Chittibabu 2021 (171) FLR 580 has held that when the misconducts alleged to have been committed by workmen were not connected to the dispute raised in conciliation, Sec. 33(1) and (2) would not be applicable.

An unmarried person under EPF Act has the freedom to nominate anybody for his account even outside his family, if he does not have a family. On getting married i.e. on “acquiring” a family, the nomination outside family stands invalid as per the EPFO Scheme 1952. All benefits of a member’s account under EPF Act and Employees’ Family Pension will be extended to his/her spouse and children, if any.

As per the Provident Fund Scheme, a fresh nomination is required by the member on his/her marriage and any nomination made before marriage shall be deemed to be invalid. This means that if you have joined the EPF and EPS before your marriage then post your marriage you will have to make a fresh nomination as the previous nomination made will be considered invalid, i.e., as if you have never made nomination.

Under the EPF Act- (i) in the case of a male member ”family” means his wife, his children (whether married or unmarried), his dependent parents and his deceased son’s widow and children and ii) In the case of a female member, “family” means – her husband, her children (whether married or unmarried), her dependant parents, her husband’s dependent parents and her deceased son’s widow and children.”

The rules of nomination for EPF and EPS are different. Family, in respect of whom nomination may be made, is defined differently for the purpose of Provident Fund Scheme and Pension Scheme. In the case of EPF, a member has an option to nominate even his/her parents, apart from spouse and children. However, in the case of EPS, a member can nominate only his spouse and children.

After marriage, you can still nominate your parents (irrespective of your gender) or any other family member as defined in the law in your EPF account. However, for your pension scheme account, you can only nominate your spouse and children after your marriage.

Where an employee has no family (as prescribed under the rules), a nomination may be made in favour of anyone. However, once an employee is married or has a family, fresh nomination in favour of one or more family members is required as the previous one stands cancelled.

The member is required to make nomination using Form 2. Recently, EPFO (Employees’ Provident Fund Organisation) has launched the e-nomination facility on the member sewa portal. EPF members whose account is Aadhaar linked and verified can use the facility to make fresh nominations.

Under the EPF Scheme, if no nomination exists, the entire sum will become payable to the members of the family (as prescribed in the EPF Act) in equal shares, however, no share shall be payable to sons who have attained majority, married daughters whose husband are alive. In case of EPS if the person is unmarried, then pension will be payable to dependent father/mother.

Yes! The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, popularly known as POSH Law is applicable on workplace, employee and employer. These terms have been defined very exhaustively. The Act does not talk of employing particular number of women to attract its applicability. The law recognizes the right of every woman to a safe and secure workplace environment irrespective of her age or employment/work status. Hence, the right of all women working or visiting any workplace, whether in the capacity of regular, temporary, ad-hoc, or daily wages basis, is protected under the Act. It includes all women, whether engaged directly or through an agent, including a contractor, with or without the knowledge of the principal employer. They may be working for remuneration, voluntarily or otherwise. Hence you may not have women on the roll but Act is still applicable.

You are not required to seek express permission from the Conciliation Officer where the dispute/conciliation proceedings are pending under Sec. 33(1) for such dismissals, since the misconduct committed by such workmen for which they are proposed for dismissal is in no way connected with the pending conciliation proceedings, So, you are required to obtain approval only under Sec. 33(2)(b) of the I.D. Act. Here you should pay such workmen one month wages along with dismissal order and then side by side apply for approval. S.C. in the case of Shri Dorairaj Spintex vs. R. Chittibabu 2021 (171) FLR 580 has held that when the misconducts alleged to have been committed by workmen were not connected to the dispute raised in conciliation, Sec. 33(1) and (2) would not be applicable.

Power to recover damages for default in paying PF Contributions are governed by Sec.14B of The EPF Act. The Damages cannot be recovered more than the arrears of PF dues. Pl. note that damages are distinct and separate from the Interest. It means the employer is liable to pay both interest and damages for the default. Orissa H.C. in the case of Cuttack Electrical Division vs. Regional Provident Fund Commissioner 2016 LLR 936 has held that EEPF Authority while assessing the quantum of damages has to take into consideration various factors including number of defaults, the amount involved, frequency of defaults reasons of delay offered by employer. However, the financial problems, power cut, delay in realisation of amount may not be the justified reasons of default. Delhi H.C. in the case of Assistant Provident Fund Commissioner vs. Hi-Tech Vocational Training Centre 2015 LLR 1132 has held that for levying damages there must be presence of an element of mens rea which is very relevant. S.C. in the case of APFC vs. The Management RSL Textiles 2017 LLR 337 has held that the presence or absence of mens rea and/or actus reus causing delay in deposit of PF dues by the employer would be a determinative factor in imposing damages. In the absence of guilty mind on the part of the employer in the findings of the EPF Authority imposition of damages cannot be sustained. Delhi H.C. in the case of Manpower Bureau vs. APFC 2017 LLR 729 has held that if the circumstances for delayed deposit of PF contributions are beyond the control; of employer and default is not having mens rea, the rate of damages may not be at the maximum rate.
There is no limitation period prescribed in the EPF Act for recovery of PF contributions and damages but for imposing damages the employer must be given an opportunity as held by Orissa H.C. in the case of Bhubaneshwar City Distribution Division vs. Union of India 1998 LLR 312. Damages cannot be condoned on the ground that it was demanded/notice issued belatedly. Delhi H.C. in the case of Saroj Hospital and Heart Institute vs. EPFO 2008 LLR 696 has held that damages cannot be levied for default without holding inquiry under Sec. 7A.
In case of any order of damages from EPF authority, the same can be challenged before the Tribunal who has the powers to reduce the damages. There are conflicting judgments on the point of waiver of damages due to financial difficulties of employer. So as an employer you should not rely fully on this reason for waiver.

Jan 2022

Industrial Court Chennai in HCL Technologies case in 2016 has declared that a senior service progmmer would be a workman under I.D. Act because he does the skilled work. Court reinstated him by declaring his termination as illegal effected by the company on the basis of unsatisfactory performance. Court held that It cannot be denied that the job of an engineer in a software company involves skills and technical knowledge. Therefore, it can be concluded that the job of a software engineer can be termed as the skilled or technical one. In a decision of the Division Bench of the Karnataka High Court in the Commissioner of Income Tax vs. Texas Instruments India Pvt. Ltd. (I.T.A No 141 of 2020 c/w I.T.A No 151 of 2020), rendered on 21st April 2021 has held that the software engineer per se would be a workman but a software engineer rendering supervisory work would not be a workman. The above dispute between an Information Technology company and the Income Tax Department arose on the question of tax concession sought by the company under Section 80JJ-AA of the Income Tax Act, wherein company sought concession on income tax to the extent of 30% of emoluments paid to newly employed workers. The catch in seeking such a concession is the fact that the newly recruited workers have to satisfy the definition of workman as per Section 2(s) of the Industrial Disputes Act. The judgment unambiguously confers the status of workman for software engineers employed in information Technology Company who does not have any supervisory function. Consequently, the status is accompanied by several rights at the workplace, including the right of forming association and the right of access to redressal mechanism of disputes laid down under the Industrial Disputes Act. Accordingly, such category of workmen in the industry are also eligible for the payment of overtime wages at the rate of double the ordinary rate of wages under the provisions of the Shops and Commercial Establishments Act such companies are registered as establishment under respective State Shops and Commercial Establishments Act.

No! In 2017, Central Govt. enacted the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (the HIV AIDS Act)., according to which, HIV positive person has a right to employment. An HIV positive individual or any person who is or was residing with an HIV positive individual (each a Protected Person) cannot be denied employment or be terminated from employment. Such Protected Person cannot be unfairly treated at the workplace. Further, persons cannot propagate hatred towards Protected Persons, generally or specifically, on account of HIV positivity. If an employer or any other employee at the workplace happens to know about the HIV positive status of a particular employee, the employer or the other employee cannot disclose this to any other person without the prior written consent of the HIV positive employee. Employer cannot compel a person to disclose HIV status in employment form at the time of employment and HIV testing cannot be a pre-requisite for obtaining employment or for the continuation of employment. A Protected Person can be terminated from employment only if: (i) a qualified and independent healthcare provider provides a written assessment of the Protected Person stating that he/she poses a significant risk of transmission of HIV to other persons in the workplace, or is unfit to perform the duties of the job; and (ii) the employer provides a written statement stating the nature and extent of administrative or financial hardship for not providing the Protected Person reasonable accommodation. If the written statement from the healthcare provider cannot be obtained, it is presumed that there is no significant risk and that the Protected Person is fit to perform the duties of the job. Likewise, if the written statement from the employer cannot be obtained, it is presumed that no undue administrative or financial hardship is being faced by the employer. Apart from the above Bombay HC in the case of MX of Bombay Indian Inhabitant vs. ZY and Ors. (AIR 1997 Bom 406) has held way back in 1997 that a person cannot be deprived of his right to livelihood simply because he is HIV positive, if he is otherwise capable of performing his regular duties and does not pose a threat or health hazard to other persons or property at the workplace.

As such there are no defined obligations of employer in respect of employees who do “Work from Home”. Even this term has not been defined in the codes. New labour Codes are silent on the evolving new working model post covid. However, there is a mention in model standing orders for service sector that an employer may allow employees to do WFH, subject to conditions of appointment or agreement between the two parties, for a pre-determined period.

To understand whether home of the employee from where he will be working constitutes workplace or not, is to check the definition of the establishment provided in OSH code, according to which “Establishment” has been defined as a place employing workers, connoting a physical space where work takes place. Any other place is not an establishment; hence home will not be a workplace under the codes. The inclusive definition of workplace as provided under POSH law is different from definition provided under OSH code. In case of sexual harassment matter, home will be treated as workplace.

Code on social Security defines home-based work as the work which is carried out at the home of employee, and further permits the women availing maternity benefit to work from home, however, this code does not encompass the definition of ‘Work from home’.

In such ambiguous situation, it will be better for the organizations to voluntary treat the ‘Work from Home’ as extended workplace and make compliances as done in case of employees working from designated workplace of the organization. One issue which may disturb the employers will be of payment of minimum wages to such employees who are working in different states and appointment order is issued from different state having head office of the organization. In such cases employers may legally be under obligation to pay the wages of sate wherein the employee is stationed and working. These issues will have to be spelled very clearly in employment terms and conditions.

POSH Act prescribes that The IC should include an external member being a person familiar with issues relating to sexual harassment, or from a non-governmental organization or association committed to the cause of women. Inclusion of such a third party member in IC has been provided for with a view to inject a degree of objectivity and outside perspective in the working of the IC.

However, neither the POSH Act nor the POSH Rules further elaborate on what qualifies as being ‘familiar with issues relating to sexual harassment’ or ‘committed to the cause of women.’ The Act and Rules also does not appear to prescribe any prior experience or other qualifications required of the person selected from a non-governmental organization or association to serve as an external member of the IC. If your legal advisor is familiar with the issues of sexual harassment or working as a social activist committed to the cause of women, then he/she can be appointed as external member otherwise not.

Delhi HC in the case of Ruchika Singh Chhabra vs. Air France India and Another (2018 LLR 697) has observed that the aim of the complaints committee procedure and its underlying premise was to provide the complainant with the assurance of an inquiry mechanism which is objective, neutral and insulated from possible intrusions by the employer. To achieve that end and meet out justice in sexual harassment inquiries, it is critical that the person appointed as the external member of an ICC satisfactorily comply with qualifications prescribed by the POSH Act. Court held that a lawyer having experience in handling labour matters cannot qualify for becoming an external member of IC.

Dec 2021

Yes! You are legally correct on this point and can deduct 8 days wages for strike which seems illegal in the back drop of the facts you have shared. In a case of similar circumstances, Karnataka H.C. in the case of Mineral Minor Union vs. Kundremukh Iron Ore Company Ltd. 1986 I LLJ 204 held the 8 days deduction of wages legal on strike without fresh notice. In this case Union issued a notice of strike on 1st September, 1984 intimating its intention to go on one day token strike any day after 20th September, 1984. Conciliation proceedings commenced and took place in terms of 20(1) of the Industrial Disputes Act on 19th September 1984. On 1st October, 1984 conciliation failed and report about failure of conciliation was submitted to the State Govt. on 12th October, 1984. Parties were informed about the failure of conciliation only on 9th November, 1984. Members of the union went on strike on 10th December, 1984. Management informed the union that the workmen are not entitled to wages from 10th December, 1984 and therefore they were deducting 8 days wages under Section 9(2) of the Payment of Wages Act, for the workmen having gone on illegal strike. This action of the Management was challenged by the union. Court Held that it is clear that fresh notice of strike under Section 22(1) is necessary if in a given case by the date on which failure of conciliation is intimated, six weeks period from the date of notice of strike issued earlier under Section 22(1) of the Act and had expired. In respect of public utility service workmen cannot go on strike abruptly which would result in irreparable loss and damage to the industry and State. Workmen could go on strike after the expiry of seven days after the date of conclusion of the conciliation in failure. If by that time, six weeks had expired from the date of notice of strike issued under Section 22(1) issuance of fresh notice under Section 22(1) is obligatory on the part of the workman. If such notice is issued, the provisions of Sections 12(1) and 20(1) are not applicable though the demand in respect of which the fresh notice of strike is given is identical with the one which was the subject matter of earlier notice of strike and conciliation proceedings which ended in failure. The workmen are bound to specify the date of strike under Section 22(1) of the Act and this is beyond doubt contained in the provision 8 of Section 22(4), Rule 71, and Form L appended to the Rules. Proviso under Section 9(2) of the Payment of Wages Act empowers the management to deduct wages for 8 days subject to any rules made in this behalf if ten or more workmen absent themselves in concert.

For the first time the gig worker, platform worker, self employed and unorganized worker has been defined under New Social Security Code. They have not been defined either in code on wages or Industrial Relations code, which indicate that law only provides them social security in terms of medical services and provident fund/pension. Their exclusion from other codes establishes that such categories of employment do not fall under the category of employer-employee relationship in India. Neither he can challenge illegal deduction in incentives nor lower wages, unless his employment is formally regularized by the company through appointment terms. Such companies like, Ola, Uber, Flipkart, Snapdeal, Amazon, Zomato, Swiggy and others who employ thousands of such workers declare the engaging arrangement with them as partners and not workers. Definitions of these four terms can also be confusing for common man. Definitions appear to be overlapping. For example If there is no appointment letter and regulation of work timings, a worker working for one app-based platform may be taxi service or delivery service, who might work for its competitor as well, would also fall under the definition of a gig worker as well as a platform worker, as he pursues his occupation via an online platform. One can even be categorised as self-employed. This may create ambiguity in terms of applicability of social security scheme on such worker.

One of the ingredients for ascertaining amount of compensation payable to injured or deceased employee is monthly wages. Section 5 of ECA defines term monthly wages to mean an amount of wages deemed to be payable for a months service. Section 4 provides for manner in which compensation amount is calculated. The amount of compensation payable to an employee is directly influenced by the quantum of monthly wages paid to an employee. The Central Government by 2020 Notification No. S.O. 71(E) dated 3-1-2020 almost doubled the monthly wages to Rs. 15,000 from Rs. 8000/- that was notified under 2010 Notification No. S.O. 1258(E) dated 31-5-2010. There are conflicting judgments on the point as to whether the notified monthly wage should be treated as base amount or ceiling amount? H.P. High Court in the case of New India Assurance Co. Ltd. vs. Govindi Devi in FAO (ECA) No.355 of 2019 decided on 14.8.2019. 2019 SCC OnLine HP 2529 has held that it is not in dispute that while amending the said clause, no restriction has been attached or specified that if the monthly wages of the deceased employee exceeds Rs. 8000 whether it should be considered at Rs. 8000 only. Liberal interpretation has to be made especially when the Act itself is a beneficial legislation so the monthly wages specified by the statute by way of amendment at Rs. 8000/- is appropriate for consideration for the purpose of computing the compensation, even if the actual monthly wage is less than prescribed one. H.P.H.C. in another case of Rajender Kumar vs. Shyam Lal 2019 SCC OnLine HP 1709 has held that the notified monthly wages is the base amount i.e. minimum amount for ascertaining compensation. In this case, the claimant claimed that he was earning Rs. 7500/- per month but failed to prove income as claimed by him. High Court placed reliance on 2010 Notification.

Sikkim H.C. in the case of United India Insurance Co. Ltd. vs. Kakali Sarkar Guha 2019 SCC OnLine Sikk 156 while relying on the SC Judgment in the case of Jaya Biswal vs. Iffco Tokio General Insurance Co. Ltd. (2016) 11 SCC 201 considered the actual wages of the employee as the amount for calculating the compensation as it was higher than the amount specified in the EC Act considering it as base amount and not as ceiling amount. However, Madras HC in the case of United India Insurance Co. Ltd. vs. Seethammal, 2014 SCC OnLine Mad. 12336 has taken a different view and held that when the intent of the legislature is clear while amending the Act to enhance the minimum rates of the compensation from time to time as well as to specify the monthly wages in relation to an employee for the purpose of the said compensation, liberal interpretation beyond the prescription made in the Act, is not at all required. Further, it is pertinent to note that while amending the Act, the legislature has consciously in its wisdom, omitted the Explanation II of Section 4-A of the Act only in order to enhance the minimum rates of compensation so monthly wages specified by the statute by way of amendment at Rs. 8000/- is appropriate for consideration for the purpose of computing the compensation. Court considered the presecribed amount as ceiling amount and not as base amount.

Nov 2021

No! During operational period of settlement under which it is agreed not to raise demand involving monetary commitments, employees/union cannot raise industrial dispute relating to the individual grievances like promotion or higher wages. A.P. H.C. in the case of Singareni Collieries Co. Ltd. vs. Indl. Tribunal (C). [1995] I LLJ 342 has held that the matter is of promotion policy or higher wages covered under the settlement and clearly forbids espousal of such grievances since they inevitably entail financial commitments. Court held that even in respect of any demand not covered by the settlement; it is not open to union to make any demand involving monetary commitment on the part of the management, by virtue of the operative portion of the settlement. By that settlement the Unions had agreed that all their demands were settled fully and finally and the demands not referred to shall be deemed to have been withdrawn. Therefore during the currency of the settlement it was not open to the Union to raise any demand involving any monetary commitment. Even if in some cases the management agreed to enter into agreement with workmen in order to confer financial benefits on certain categories of employees cannot be a ground for the Union to contend that the same treatment should have been extended to the other workmen also. The liberty of the management in appropriate cases to extend financial benefits to any category of workmen even during the period of the currency of the settlement cannot be approximated to an obligation on its part to concede every demand raised by the union although same is forbidden by the settlement.

No! Sec. 33 C (1) of I.D. Act comes into operation in such cases where any amount is due to workman either under settlement or award or Chapter VA or VB. The Section does not vest any power of adjudication in the Govt. except to the limited extent of examining the facts. Delhi H.C. in the case of Colcom Plastic Ltd. vs. Union of India. 1997 1 LLJ 1230 has held that: (i) Proceedings under Section 33-C(1) of the I.D. Act are in the nature of execution proceedings; (ii) The appropriate Government has no power in this connection to hold a formal enquiry; (iii) In case the management raises bona fide disputes on the right of the workman to claim of money under a settlement or an award or under chapter VA or VB of the Act, the Government has no right of adjudication of such disputes; (iv) In case of bona fide dispute, the workman will have to raise an industrial dispute for reference being made for adjudication by the Labour Court/Industrial Tribunal; (v) The Government has, however, a limited right of examining the objection of the management to the claim of the workman, only to from a prima facie opinion whether the objection of the management is perverse, frivolous or mala fide taken with a view to deprive the workman of the money due to him; The Government is required to afford a reasonable opportunity complying with the principles of natural justice to the management and the workman before taking a decision under Section 33-C(1) and is also required to make a speaking order giving reasons so that the aggrieved party-management or workman-may seek judicial review of the Government decision in accordance with law.

o! Such dispute cannot be adjudicated by civil court because it is not arising out of any common law. Delhi H.C. in case of Lahori Singh vs. Larsen & Toubro Ltd. 1997 III LLJ (Suppl.) 836 has held that the issue raised by employee is not violation of any terms of contract. It was based on the implementation of term and condition of settlement providing inter alia for retirement age of workman and extension subject to conditions which was arrived at between the company management and union. The rights and liabilities created by such settlement is necessarily got to be adjudicated only by Labour Court/Industrial tribunal under Industrial Disputes Act.

In the present case as the facts you have narrated, it is an industrial dispute and conciliation officer is correct in taking cognizance of the dispute. He can very well start conciliation proceeding on such charter of demands. It makes no difference if remaining 43 employees are not members of the union. Law gives right to any seven persons to form a union. On the demands of the union even if having 7 members, Conciliation officer is entitled to hold meetings and send a failure report to Govt. if no settlement is arrived at between management and union and Govt. may refer the dispute to Industrial Tribunal for adjudication. Now coming to the point of withdrawing the demands by workmen. Withdrawing demands by workmen does not amount to settlement under Sec. 2(p) of Industrial Disputes Act. The Rules provide that the settlement has to be in a prescribed format and formalities are to be completed to close the matter legally. I suggest that if the 7 persons of union agree to withdraw the demands raised by them, you must enter with them into a settlement to this effect otherwise mere withdrawal of demands will not work. They may further raise the demands and there will not be any bar for them in this respect. Gujarat H.C. in the case of Kalaniketan (Bombaywala) vs. State of Gujarat 1994 II LLJ 177 has held in the same direction.

Yes! The management will be well within its right to withdraw facility extended to union office bearer and it will not be any violation of employment law. Madras H.C. in the case of Workmen of Indian Bank vs. Management of Indian Bank 1985 I LLJ 6 has held that withdrawal of management of duty relief given union office bearer would not amount to change in service conditions. For whatever reasons management may have deemed fit to grant duty relief at an anterior point of time, the legal status of that act is only that of a concession and not a matter pertaining to conditions of service. It will not amount to grant any inherent right in the office bearer of union. The beneficiaries (Office Bearer of Union) cannot make out a grievance out of it that a condition of service is affected and the management is not entitled to do so without raising an industrial dispute.

The Occupier when complies with all safety and precautionary measures and accident happens because worker violates the norms and safety measures, the occupier will not be liable for such accident. Guj. High Court in the case of State of Gujarat vs. Dilipkumar Dahyabhai Patel 1995 (87) FLR 47 (sum.); 1998 III LLJ 433 has held that when worker violated the norms and instructions and entered the boiler room before time and accident took place, occupier will not be liable for the consequences.

Oct 2021

Code on Wages Act 2019 contains many definitions under Sec. 2. Employee is defined under sub clause (k), contract labour is defined under sub clause (g) and worker is defined under sub clause (z). All the three definitions are distinct in its character. Apparently the definition of employee covers any person except apprentice engaged under Apprentices Act employed on wages to do work of almost every category. Contract labour falls under the definition of worker and not Employee. Contract labour is defined as a person employed by or through contractor in or in connection with the work of establishment. Worker is separately defined as any person excluding apprentice and person employed in establishment for doing supervisory or managerial functions. The contract labour is not employed by establishment but by the contractor in connection with the work of establishment. So employee definition does not cover contract labour.

Section 33A of the I.D. Act is attracted when the following conditions exist: Firstly, that there should have been a contravention by the employer of the provisions of Sec. 33 of the Act and secondly, that the contravention should have been during the pendency of the proceedings before the conciliation officer, Board, arbitrator, labor court, tribunal or national tribunal. Thirdly, that the complainant should have been aggrieved by the contravention and lastly, that the application should have been made to the forum before which the original proceedings are pending. Sec. 33A authorizes the conciliation officer to take such complaint of the workman in into account in bringing about settlement of the complained dispute. Conciliation officer is not empowered to adjudicate upon the dispute, which is the jurisdiction of the adjudicating authority. His role is limited to mediate or promote the settlement of the dispute. The Sec. 33A gets attracted only when a workman is discharged or punished or otherwise for a misconduct connected with the pending dispute without obtaining prior permission of the authority before whom the dispute is pending. SC in the case of NEI Ltd. vs. Hanuman 1967 II LLJ 883, Air India Corporation vs. V.A. Rebellow 1972 I LLJ 501, have held that discharge simpliciter not connected with the pending dispute will not amount to contravention of Sec. 33 thus will not attract Sec. 33A. SC in the case of Central Bank of India vs. K R Meenakshi 1959 I LLJ 446 has held that if a workman abandons his job, it will not constitute discharge within Sec. 33 (I) of I.D. Act. Madras H.C. in the case of M S Manikam vs. Cheran Transport Corporation 1982 I LLJ 396 has held that termination simpliciter under conditions of service or standing orders will be outside the scope of Sec. 33. Punjab & Haryana H.C. in the case of Ram Sanjeevan & Ors. vs. PO, Labour Court 2009 II LLJ 630 has held that application under Sec. 33A can only be filed before the conciliation officer where the main dispute was pending and not before the Industrial Tribunal cum Labour Court. The workman is not free to choose any forum for dealing with an application under Sec. 33A.

The provisions of the Rights of Persons with Disabilities Act 2016 which has been made effective from 15.06.2017 are applicable to Private sector industries also. The term private establishment provided in Section 2(v) of the Act includes company, firm, co-operative society, association, trust, agency, institution, organization, union, factory etc. So, every private establishment in any form shall be subjected to compliance with the provisions provided in the Act. Illegitimate discrimination against disabled persons within the workplace is prohibited. Central Act talks of 5% job reservation for public sector organizations and Govt. establishments but there is no reservation for private establishments in the central Act. However, with a view to recruit more persons with disabilities, the appropriate government and the local authority shall provide incentives to private employers who ensure that at least five percent of their workforce is composed of persons with disabilities. Establishment employing 20 persons or more is required to formulate and publish an equal opportunity policy for disabled persons and such policy has to be displayed on their official website or at a place that is clearly visible to all employees working at their premises. Also, the establishment is bound to register a copy of the said Policy with the Chief Commissioner or the State Commissioner for Persons with Disabilities. Establishments having more than 20 employees are under obligation to appoint a Liaison Officer to oversee the recruitment of disabled persons and special facilities provided for them.

No! In case of closure, Sec. 25-H cannot be invoked. If a factory is closed by complying the relevant provisions and closure compensation is paid to workmen, such workmen are not entitled for re employment when factory is restarted. It has so been held by Bombay HC in the case of Meltron Engineering Industries vs. Pune Labour Union 2021(170) FLR 344. The court held that the duration of the closure, though relevant for determining the intention and bonafides of the employer at the time of closure is not decisive. SC in the case of General Labour Union, Bombay vs. B.V. Chavan 1985 (50) FLR 16 has held that the true test to consider “whether the closure was a device or pretence to terminate the services of workmen or whether it was bonafide and for reasons beyond the control of the employer at the time of closure”. The court must in such case keep in view all relevant circumstances at the time of closure.

Bombay H.C. in the case held that it was not the case here and only the reason of restarting the factory after few months cannot be the sole reason to question the intent of employer. Termination of workmen due to closure cannot be converted in to retrenchment in such circumstances.

No! ESI cannot. ESI Corporation is duty bound to provide medical benefits to a member of the family of insured person whose condition requires medical treatment be it an ordinary treatment or super specialty. It is the duty of the employer to deduct employee’s share and then deposit it along with his own share to ESIC. The Kerala HC in the case of Smitha Rajendran vs. Employees’ State Insurance Corporation 2021 (169) FLR 942 has held so.

In case of failure to do so by employer, ESIC is empowered to recover the amount as arrears of land revenue from the employer. The term Insured Person as defined by Sec. 2(14) of the ESI Act covers an employee in respect of which contributions were payable meaning thereby that only because of non remittance of contribution of such employee, he cannot be made disentitled to the benefit available for the insured person. Sec. 68 of ESI Act points out that even if the employer fails or neglects to pay any contribution, as a social security measure, The ESI corporation is duty bound to provide.

Sep 2021

It is not self contradictory. Both Acts are independent and separate and have its own coverage and application. When Apprentices Act provision (Sec.18) says that (a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker; and (b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice, it intends to talk about persons who are registered as apprentices under the provisions of the Apprentices Act and not otherwise. In the same way where Sec.2 (s) of Industrial Disputes Act includes apprentices in the definition of worker. It intends to cover those persons who may be designated as apprentices but not registered as apprentices under the Apprentices Act. Moreover the definition of the workman under I.D. Act also further clarifies that person employed in any industry should be to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work, for hire or reward, terms of employment be express or implied. It means if a person engaged as apprentice not registered under Apprentices Act but doing any work as specified in the definition will be deemed as workman. Guj. HC in case of State of Gujarat & Ors vs. Chauhan Ramjibhai Karsanbhai 2004 (102) FLR 347; 2005 LLR 155 has held that persons engaged for production purpose as apprentices but not registered under Apprentices Act would be workman. However Delhi HC in the case of Otis Elevator Company (India) Ltd. vs. The Presiding Officer, Industrial Tribunal III 2003 LLR 701; 2003 (98) FLR 53 has held that Trade Trainee when paid stipend and not wages will not be a workman under I.D. Act.

Works committee constituted under Sec.3 is to promote measures for securing and preserving good relations between the management of the organisation and its workmen and to compose any material difference of opinion in respect of such matters. The works committee is normally concerned with the problems arising in the routine working of the establishment and function is to ascertain the grievances of employees and when the occasion arises to arrive at some agreement also. But it cannot go beyond recommendations. Decision rests with the concerned parties i.e. employer and employee. The comments of committee may be of much value but are not conclusive and binding in nature. The decisions of the committee would not be binding on their workmen or union. Works committee is not intended to replace or supersede the union. Works committee cannot take up the matters of employment or non employment of workmen.

The punishment on finding guilt of employee is generally guided by service rules or the standing orders of the company. These documents/policy papers should define the punishment in respect of misconduct. However, even after following the rules/ standings orders, it is open to the court to interfere with the punishment if it is felt by the court that it is disproportionate to the gravity of the misconduct or shockingly disproportionate. Bombay H.C. in the case of J.J. Mody vs. State of Bombay AIR 1962 Guj. 197 has categorised the following misconducts where employer is entitled to dismiss his employee:

(i) “Where the act or conduct of the servant is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master;

(ii) Where the act or conduct of the servant is inconsistent or incompatible with the due or peaceful discharge of his duty to his master;

(iii) Where the act or conduct of a servant makes it unsafe for the employer to retain him in service;

(iv) Where the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted;

(v) Where the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;

(vi) Where the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly;

(vii) Where the servant is abusive or if he disturbs the peace at the place of his employment;

(viii) Where the servant is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant;

(ix) Where the servant is habitually negligent in respect of the duties for which he is engaged; and

Where the neglect of the servant though isolated, tends to cause serious consequences.”

Sec. 2A creates a fiction that dispute related to discharge, dismissal and retrenchment or in respect of an individual workman is deemed to be an industrial dispute. In such matter it is not required that it is espoused by the union or considerable number of workmen which means that an individual workman with union support can raise his dispute. A.P. H.C. in the case of Praga Tools Ltd. vs. Government of Andhra Pradesh 1976 Lab. IC 190 has held that except the dispute relating to discharge, dismissal retrenchment or otherwise termination of service, all other disputes relating to terms of employment or conditions of an individual like transfer, bonus, wages, promotion, increment, change in service conditions etc., will be industrial dispute which will be required espousal of union or by substantial number of fellow workmen. Such matters cannot be raised by individual workman. Cal. HC in the case of Swapan Das Gupta vs. First Labour Court 1976, Lab. IC 202 has held that matter of employer employee relationship cannot be a matter of individual dispute and will also be an industrial dispute and require valid espousal. In order that an individual dispute may become an industrial dispute, it has to be established that it had been taken up by union or appropriate number of workers. It is only a collective dispute that can become an industrial dispute. It is so held by SC in the case of Bombay Union of Journalists vs. The Hindu 1961 II LLJ 436. Where there is no union, the dispute is to be espoused by considerable number of workmen and for this there is no hard fast rule as to how many numbers will become “considerable”. It depends from facts of each case. SC in the case of Indian cable Co., Ltd. vs. Its Workmen 1962 I LLJ 409 has held that the number of workmen must however, be such as to lead to such inference that the dispute is one which affects the workmen as a class. SC in the case of Workmen of Indian Express Newspaper Pvt. Ltd. vs. The Management 1970 II LLJ 132 has held that about 25% of workmen of establishment would constitute requisite number for valid espousal of the dispute.

Works committee constituted under Sec.3 is to promote measures for securing and preserving good relations between the management of the organisation and its workmen and to compose any material difference of opinion in respect of such matters. The works committee is normally concerned with the problems arising in the routine working of the establishment and function is to ascertain the grievances of employees and when the occasion arises to arrive at some agreement also. But it cannot go beyond recommendations. Decision rests with the concerned parties i.e. employer and employee. The comments of committee may be of much value but are not conclusive and binding in nature. The decisions of the committee would not be binding on their workmen or union. Works committee is not intended to replace or supersede the union. Works committee cannot take up the matters of employment or non employment of workmen.

No! The owner of the factory is not liable to pay any compensation for unfortunate death of contractual workman working under other contractor outside the factory premises because the accident has not occurred inside the factory premises. Karnataka HC in the case of M.V. Nath CMD M/s. Joja Chemicals vs. State of Karnataka 2001 (89) FLR 736 has held that owner owe no duty towards the deceased as the deceased was under contractor firm and the work was not going on inside the factory premises and the most important thing is that the deceased was not the worker within the meaning of Sec.2 (l) as the deceased was not working in the manufacturing process done by the factory. Even though the worker was working on electrical repair work meant for the factory but was outside the factory premises. In this case contractor was held principal employer for the deceased. Had the accident taken in factory premises, the matter would have been different.

Aug 2021

The Industrial Disputes Act provides mechanism of investigation, settlement and adjudication of disputes. It is a tripartite mechanism where Employer, workman/union and Govt. are involved. It is the appropriate Govt. who refers the dispute for adjudication where the dispute is not settled between employer and employee through conciliation machinery after proper examination. Under Sec 10 of the Industrial Disputes Act, 1947, the appropriate government enjoys wide and discretionary powers to refer an industrial disputes to the Labour court or Tribunal. The appropriate government has been granted with the liberty to make the reference to a Labour and Industrial Tribunal if the matter of dispute falls under Schedule-II and III. Where the dispute relates to public utility services and a strike notice under Sec. 22 has been given; if the appropriate Government after examination, thinks fit, can make a reference of the dispute, to the court. Appropriate Govt. can also refer the dispute matter to Board or court in case parties to the dispute request so. Where the strike or lock-out is in existence at the time of reference of the dispute to Labour Court or Tribunal, the appropriate government may by order prohibit the continuance of any strike or lock-out in the industry. Apart from the above, if any industrial disputes exists or is apprehended, the employer and the workmen/union can enter into an agreement for reference of dispute to an arbitrator and request the Govt. for reference. In such situation, the appropriate Government has to refer the same to the arbitrator (s) chosen by employer and workmen/union. In respect of establishments/ industry/ undertakings of private sector or state public sector undertaking, State Govt. would be Appropriate Govt. in which such industry is situated. In respect of public sector undertakings where either central Govt. owns or have control over such undertakings, corporations, boards, central Govt. would be appropriate Govt. as defined in Sec. 2(a) of Industrial Disputes Act. By amendment Act of 1982, several new establishments have been added to the list under this definition. In case of a dispute between a contractor and the contract labour employed through the contractor in any industrial establishment where such dispute first arose, the appropriate Government shall be the Central Government or the State Government, as the case may be, which has control over such industrial establishment. Supreme Court in the case of Hindustan Aeronautics vs. Their Workmen, AIR 1975 SC 1737 has held that the State Government is the appropriate government in respect of a separate unit of the company within its jurisdiction, even though it may be functioning under the directions of its Head Office situated in other state. In the case of workmen of Sri Ranga Vilas Motors vs. S.R. Motors, AIR 1967 SC 1040 SC held that where the industrial dispute arising out of transfer and termination of workman arose in Bangalore branch in Mysore state, the Mysore Government was the appropriate Government to make the reference, because, the subject matter of the, dispute substantially arose within the jurisdiction of the Mysore Government. And not the Madras Govt. where the company head office was situated in Krishnagiri. (Madras State). The important factor to be seen is where did the dispute arise and not where was the dispute sponsored : that is, whether there is a nexus between the dispute and the territory of the State making the reference. Ordinarily if there is a separate establishment and the workman is working in that establishment, the dispute would arise at that place.

No! He is not. S.C. in the case of SBI vs. Central Government Labour Court, (1972) 3 SCC 595, has held that Increment has a definite concept in service law jurisprudence. It is an increase or addition on a fixed scale; it is a regular increase in salary on such a scale. Under the labour and industrial laws, an increment is when in a timescale of pay an employee advances from the lower point of scale to the higher by periodic additions. In other words, it is addition in the same scale and not to a higher scale. An increment is an incidence of employment and an employee gets an increment by working the full year and drawing full salary. During the period of suspension, the contract of service remains suspended. The order of suspension by the departmental enquiry has the effect of temporarily suspending the relations between the master and servant with the consequence that the servant is not bound to render service and, therefore, an employee is not entitled to increments during this period which is taken as period not spent on duty. Delhi H.C. in the case of Government of NCT of Delhi vs. Ram Nath in Civil Writ Petition No. 12109 of 2015 decided on 08-12-2016 has also held in the same direction.

There has been a long controversy on whether the Building and Other Construction Workers Welfare Cess (BOCWW Cess) under the Building and Other Construction Workers Welfare Cess Act, 1996 (BOCWW Cess Act) and the rules there under, applies only to the cost of construction portion or the whole value of the contract. When computing BOCW Cess, there existed a constant confusion surrounding the amplitude of the phrase cost of construction. Does it include the ancillary costs incurred in order to give effect to construction viz. engineering, design, supply, erection, installation, commissioning, testing etc.? Or is cost of construction to be understood as per its plain meaning i.e. civil works only? SC in the case of Uttar Pradesh Power Transmission Corporation Ltd. vs. CG Power And Industrial Solutions Limited & Anr., SLP(C) No. 8630 of 2020 decided on 12.5.21 has held that: 1. BOCWW Cess was payable only on the Contract, which covered the civil works. Other Contracts did not contemplate any civil works or construction works and thus did not attract levy of BOCW Cess. 2. The BOCW Cess could only be imposed upon the construction, repair, demolition, or maintenance or any other work of construction. Mere supply, installation and/or erection activities which did not involve construction work were not amenable to BOCWW Cess. 3. There could be no realisation of BOCW Cess prior to an assessment by the concerned authorities. In the absence of any adjudication by the concerned department and in the absence of contractual right, it was not permissible for the Owner to deduct the BOCWW Cess from the contractors bills. In addition to the above, the SC also clarified that having an arbitration clause in an agreement did not preclude a concerned party from pursuing its writ remedy under Article 226 of the Constitution of India. It is to be seen at what will happen with those single contracts where lumpsum contract is awarded including supply of parts, machinery, equipments, and civil work construction also.

The definition of fixed term contract has been provided in Industrial Relations Code and OSH Code. It is same. What is interesting to note is that when the definition of fixed term employment was introduced in Industrial Employment Standing Orders Act and Rules were amended vide notification no. G.S.R. 235 (E) dated 16.3.2018. New rule 3(A) was inserted according to which No employer of an industrial establishment shall convert the posts of the permanent workmen existing in his industrial establishment on the date of commencement of the Industrial Employment (Standing Orders) Central (Amendment) Rules, 2018 as fixed term employment thereafter. But now there is no such mention/bar/prohibition either in the definition or in chapter of standing orders. Draft Central Rules also do not say anything about it. Legally as such there is no prohibition for employer to convert the existing permanent workers into fixed term contractual workers but it would be unfair and sufficient to trigger the labour unrest in the industrial establishment. Employer should stay away from going to such extent because industrial relations can never be smooth or harmonious solely on the legal approach. There has be an element of mutual trust and transparency.

Jul 2021

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.

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.

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.”

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 employer’s 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.

Jun 2021

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.

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.

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.

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.

Yes! Adopting such process will not be illegal. Compliance with clauses (a) and (b) of Section 25F of I.D. Act strictly as per the requirement of the provision is mandatory. However, compliance with clause (c) is directory, as held in Gurmail Singh and Ors. vs. State of Punjab and Ors. (1991) 1 SCC 189 and a substantial compliance would be enough.

The underlying object of Section 25F is two-fold. Firstly, a retrenched employee must have one month’s time available at his disposal to search for alternate employment, and so, either he should be given one month’s notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment. Section 25F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month’s notice; on the contrary clause (b) expressly provides for the payment of compensation being made at the time of retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment of tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and non-compliance with the mandatory provision would result in nullifying the retrenchment.

Supreme Court In the case of Pramod Jha & Ors. vs. State of Bihar & Ors. 2003 LLR 419 has held that where one month notice in writing was given to workmen, where retrenchment was to take effect on expiry of one month from the date of the notice and compensation as required by Section 25F was available in the form of banker’s cheques for payment to the workers simultaneously with the time of retrenchment and they were given an intimation in advance in that regard would make the complete process legal and compliant of Sec. 25F.

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. M/s. 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.

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.

May 2021

No! Because she has not served any notice of maternity leave. Termination if done after adopting procedural formalities should be held valid by the court in all probabilities. Delhi High Court in the case of Sunita Baliyan vs. Director Social Welfare Department, Government of NCT of Delhi, 2008 LLR 130 has held that maternity benefit will not be available even on delivery by a female employee since she has not given any notice either about her pregnancy or delivery and even the letter that too after 5 months did not mention about delivery. In the absence of any express termination by the management of the employee alleging that she has gone on maternity leave and was orally refused duties has been rightly rejected by the Labour Court.

Yes! Industrial Disputes Act has taken care of such protection provided to workman. Sec.25H is the answer. The legislature has given this right to workman that even after taking his retrenchment compensation, employer will have to provide the opportunity of re employment to such retrenched person in future If such vacancy arises. The Sec. says Where any workmen are retrenched, and the employer proposes to take into his employment any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for reemployment and such retrenched workman] who offer themselves for re-employment shall have preference over other persons. Section 25H of I.D. Act applies to cases where the employer has proposed to take into their employment any person to fill up the vacancies. It is at the same time, the employer is required to give an opportunity to the retrenched workman an offer him re-employment and if such retrenched workman offers himself for re-employment, he shall have preference over another person, who has applied for employment against the vacancy advertised. The object behind enacting Section 25H of the I.D. Act is to give preference to a retrenched employee over the other persons by offering them re-employment in the services when the employer takes a decision to fill up the new vacancies. Section 25H of I.D. Act is required to be implemented as per the procedure prescribed in Rule 78 of Industrial Dispute (Central) Rules,1957 which clearly provides that Section 25H of I.D. Act is applicable only when the employer decided to fill up the vacancies in their set up by recruiting persons. It provides for the issuance of notice to retrenched employee prescribed therein in that behalf. In order to attract the provisions of Section 25H of I.D. Act, it must be proved by the workman that- (i) he was the retrenched employee; (ii) his ex-employer has decided to fill up the vacancies in their set up and therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking re-employment in the services. AP H.C in the case of B. Ashok vs. Chairman, Food Corporation of India; 1996 Lab IC 2808 has held that merely because the employee has accepted the retrenchment compensation, cannot be a ground to deny him the re-absorption. So employer cannot deny the re-absorption on the ground that the person does not have requisite educational qualification at the time re-employment because no technical skill is required for class IV post. S.C. in the case of Management of Barara Co-operative Marketing cum Processing Society Ltd. vs. Workman Pratap Singh decided on 2.1.2019 (CIVIL APPEAL No. 7 OF 2019 [Arising out of SLP (C) No. 17975 of 2014] has held that the workman who after challenging his termination receives the compensation from the employer as per court award cannot invoke Sec. 25H merely on the ground that some other workman has been regularized in the service by Employer. Court held that the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25H of the I.D. Act for claiming re- employment in the services.

It is the matter of reasonableness and prejudice which is to be looked into and it is also based on facts and circumstances of each case. It is also to be guided by the relevant services/regulations/certified standing of the establishment. Core point is to be seen whether in the facts and circumstances of the case, denial of lawyer representation in disciplinary enquiry from workman has really caused prejudice to him. Though the employee has no right to be represented by lawyer in the absence of any such service rule as held by SC in the case of Bharat Petroleum Corporation Ltd. vs. Maharashtra General Kamgar Union and Others 1999 LLR 180; 1999 (81) FLR 358. But Karnataka HC in the case of G.V. Aswathanarayana vs. The Central Bank of India, 1993 LLR 535; 1993 (66) FLR 670 has held that when the charges against the employee run into 25 pages and several hundred documents are involved in the enquiry, the employee who is not legally trained to put up his case effectively in the enquiry without the help of a lawyer, the representation by a lawyer in the enquiry must be permitted. Karnataka HC in another case of Sri S. Jayarajan vs. Reserve Bank of India and Others, 1996 LLR 1055 has held that employee facing criminal trial should be permitted to be represented by a lawyer in the enquiry if there is likelihood of his dismissal from service. Yet in another case of N. Balasubramanian vs. Canara Bank Financial Services Ltd. 1996 LLR 995; 1996 (74) FLR 2047 Karnataka HC has again held that denial of representation by a lawyer in enquiry will not be justified when the charges are of serious consequences.

No! Simply because the neighbouring industries are providing transport facility/ conveyance allowance to its employees does not create a legal obligation on you to also provide such facility or pay such allowance unless it has been agreed as term of employment or a part of settlement. However, if such demand is raised and referred for adjudication, then Tribunal has jurisdiction to adjudicate and grant such relief based on the practice followed by other industries having principle of industry cum region basis. S.C. in the case of Atic Industries Ltd. vs. Workmen, 1972 Lab IC 642 (SC); 24 FLR 196 has held that the principle that in a proper case the Industrial Tribunal can impose new obligation on the employer in the interest of social justice and can also involve the parties in a new contract has been accepted by this Court. There can be no doubt that an Industrial Tribunal has jurisdiction to make a proper and reasonable order in an industrial dispute. The Tribunal was justified in having regard to the practice obtaining in the region on the principle of region-cum industry when considering the claim of the workmen for payment of transport allowance. The foundation of the principle of region-cum-industry is that as far as possible there should be uniformity of conditions of service in comparable concerns in the industry in the region as that there is no balance, in the conditions of service between workmen in one establishment and those in the rest. The danger otherwise would be migration of labour to the one where there are more favourable conditions from those where conditions are less favourable. In this case the dispute was regarding dearness allowance, transport allowance and other demands between the company and its workers. In regard to transport allowance the Tribunal in its award directed the employers to pay 15 paise per day to workmen who lived more than five miles away from the place of work except on days when a workman was on leave. in doing so the Tribunal took into account the fact that in the same region a pharma company was paying transport allowance to its workmen and SC upheld the tribunal award.

Apr 2021

No! ESI Authorities cannot ask you to deposit the amount as demanded. It cannot be a pre-condition of hearing. You are not legally bound to deposit the amount first and then ask for hearing. ESI Authority is under legal obligation to provide you a copy of the inspection report and basis of their demand notice and give you an opportunity to file your objections to the notice of demand. Allahabad High Court in the case of Naresh Chand Bhargava vs. Chairman ESIC Kanpur 2008 LLR 1262 has also held that ESIC is not empowered to direct employer of an establishment to first deposit the amount as sought to be recovered only then hearing and objections will be allowed.

Generally service rules/certified or model standing orders/HR policy/Manual applicable in the organization carry such procedure of communication. Even if it is not there, first, it should be served personally. One more person should be there at the spot while making service as witness. If refused to take delivery, make a note of such refusal, with signature of person who attempted to deliver with date and time and one witness. Send the photocopy of such charge sheet with refusal endorsement along with cover letter at his last available address. If the employee is not available, send by regd. post at his last available address and put a copy on the notice board of the organisation. If employee avoids to take delivery, the same can be published in newspaper also. The purpose is to make employee aware of the charges against him. Sending charge sheet by ordinary post has no legal sanctity. Procedure provided in the service rules has to be adhered. Deviation from that will make the service invalid. A.P. HC in the case of Principal Chief Conservator of Forests vs. T. Bhaskar Rao 2006 LLR 768 has held that when rules provide the service of charge sheet either by registered post or by publication in newspaper, pasting of charge sheet at the residence of employee will not make service legal. As far as publication in news paper is concerned, it should be ensured that the newspaper should be popular in the area in which charge sheet is published, failing which, such service will be bad in law. S.C. in the case of Union of India vs. Dinanath Shantaram Karcher 1998 LLR 1097; 1998 FLR (80) 446 has held like this. You should take special care in case of female employee. Do not serve the charge sheet alone or in the presence of other male employee. At least one female employee should be present while serving the document to avoid any unpleasant happening.

Yes! Co. can be liable. It all depends on the facts of each case but as has been narrated, it seems that all the three (drivers and cook) will be deemed as employees of the company and it may be declared as illegal termination. Delhi HC in the case of Union Bank of India vs. Mujahid Qasim 2021 I CLR 386 by applying the law laid down by SC in the case of Bank of Baroda vs. Ghemar Bhai 2005(2)LLN 671 has held that where drivers also performed the other duties like picking up parcels, computers, sundry jobs and also claiming reimbursements, log book maintained to supervise their day to day duties, drivers required to wear the bank uniform for which payment was also made by the bank indicate that functions performed by drivers was integral part of day to day working of the bank will establish employer-employee relationship and entitled to reinstatement. They were not mere personal drivers of the bank executives. It will not make any difference that their salary was routed through managers. By applying the above principles, it appears that in your case too if your drivers and cook are able to establish they were doing other duties of the company also and cook was making food for other Co. Guests also who stayed in guest house, it may go against you since employer employee relationship between co and drivers/ cook may be established.

Feb 2021

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.

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.

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.

Jan 2021

No! Management is not bound to grant leave to such workman who remained in police custody or in jail for some offence and later reports for duty and applies. S.C. in the case of Indian Iron & Steel Co. vs. workmen 1958 SCR 667 has held that it is not justified to hold that if a workman is arrested, then company management is always required to grant him leave. Establishing of charge has no relevance with grant of leaves.

Generally in most of the States Shops and Commercial Establishment Acts, there are three kind of leaves- Earned/privilege, sick and casual. For example in Delhi, earned leaves are 15 while casual and sick leaves are 12in a year. In UP, earned leaves are 15, while casual leaves are 10 and sick leaves are 15 in a year. In Haryana & Punjab earned leaves one @ of 20 working days while casual leaves are 7 and sick leaves are 7 in a year. In Uttrakhand, earned leaves are one @ twenty working days while casual leaves are 8 in a year. There is no provision for sick leaves. In Himachal Pradesh earned leaves are @ 1 for every 12 working days, casual leaves are 7 and sick leaves are 7 in a year. In Gujarat earned leaves are @ 1 for every 20 working days, casual leaves are 7 and sick leaves are 7 in a year. In Maharashtra, earned leaves are @ 1 for every 20 working days, casual leaves are 8 and festival holidays are 8 in a year. In Rajasthan there is only provision for earned leaves @ 1 for every 20 working days. There is no provision for casual and sick leaves. In MP, earned leaves are 30 after 12 months of continuous service and casual leaves are 14 in a year. There is no provision for sick leave. In Karnataka earned leaves are @ 1 for every 20 working days. Sick leaves are 12 in a year. In Tamil Nadu earned, casual and sick leaves are 12 each in a year. In Telangana, earned leaves are 15, casual and sick leaves are 12 each in a year. In Kerala earned, casual and sick leaves are 12 each in a year. In Andhra Pradesh earned leaves are 15, casual and sick leaves are 12 each in a year. In west Bengal earned Leaves are 14,casual leaves are 10 and sick leaves are 14 in a year. In Bihar, earned leaves are 1@ twenty working days, while casual and sick leaves are 12 each in a year. In Jharkhand earned leaves are 1@ twenty working days, while casual and sick leaves are 12 each in a year. In Orissa earned leaves are 1@ twenty working days while sick leaves are 15 each year. There is no provision for casual leaves. In Assam earned leaves are 16, casual and sick leaves are 12 each in a year.

Yes! It can be. But care is to taken that no employee should get leave less than what is prescribed in the Act. Higher leaves van be given to senior officers. SC in the case of Dalmia Cement (Bharat) Ltd. vs. Workmen AIR 1967 SC 209 has held that where clerks were 12 days casual and 12 days sick leaves and subordinate staff were given only 12 days sick and casual leaves, tribunal awarding sick and casual leaves to subordinate staff equal to clerks was not justified in going beyond the limit as prescribed of 12 casual or sick leaves in Delhi Shops Act.

No! Section 25B of the I.D. Act does not contemplate any such basis of calculation where double duty in single day is to be counted as two days for the purpose of calculation of 240 days working of continuous service. Madras High Court in the case of Tamil Nadu State Transport Corporation vs. N. John Henri Raj 2008 LLR 1208 has held that while calculating 240 days in preceding calendar year, the double working of a workman on a day will not be taken into consideration since it is only for the purpose of overtime payment and not for reckoning of continuous service.

There may be many situations and circumstances for which employee cannot be blamed for overstay on the happening of any such contingency like illness, death in family etc. Absence of the workman from work if due to any cause beyond his control, it would not be reasonable for you to refuse leave to the extent required. In such cases termination on account of absenting without leave will be held illegal as held by Delhi High Court in the case of Delhi Cloth and General Mills Ltd. vs. Piaralal 1976 Lab IC 21. In this case workman was detained under Defence of India Rules and he requested for leave for an indefinite period of about 6 months. Court said that the circumstances were beyond the control of the workman. So you have to closely analyse and examine the circumstances under which workman overstays leave and decide whether the circumstances were beyond his control or not.

Nov 2020

We can understand the difference from two angles- practical and legal. When it is seen practically, all work in the establishment for long duration doing sometimes same or similar nature of work with few exceptions but with difference in salary and benefits. It is difficult to ascertain the difference by seeing them at workplace but legally there is difference. Fixed term employment was not defined as category of employment in Employment standing orders Act till 2018 when it was defined in Central Rules of the Act. This category of employment has now also find a place in new Industrial relations Code 2020 which is an employment based on written contract for a fixed period. Both establishment and employee know beforehand about the tenure of the employment and when it will expire. In this kind of employment there is no third party between establishment and employee. Such employee employed on fixed term will be on the direct pay roll of the establishment. For such category, there will be no legal obligation of paying retrenchment compensation on expiry of the contract. In other words this category of employment is outside the purview of retrenchment. Law does not prescribe any limit of employment tenure. Also there is no limit of renewal period. Nature of work is also not specified which means that fixed term employee can work the same and similar kind of work which the permanent employee does.

Permanent employment is a kind of employment against the permanent vacancy in the establishment which is filled by establishment. Such person on permanent post cannot be terminated like person employed on fixed term. Permanent employee either can be retired on attaining the age of retirement as agreed in terms of employment or service rules, or retrenched after compliance of related provisions of Industrial Disputes Act or dismissed if found guilty of misconduct after completing disciplinary proceedings. Such persons are employed for permanent nature of work.

Contract labour is a category of employment in the establishment which is employed by the third party (Contractor) and not by the establishment directly but for the work of establishment under a contract executed between establishment and contractor. Such employees are not on the rolls of the establishment. They are appointed, paid and terminated by the contractor and not by the establishment. Also the control and supervision on the work accomplished by such contract labour in the establishment remains with the contractor. Their life of employment in establishment depends on the terms of contract between contractor and establishment. Establishment is not bound to pay such labour wages and benefits equal to the wages paid to the employees on the payroll of the establishment. They can be appointed on lesser wages by the contractor depending upon the nature of work. Such employment of contract labour can be prohibited by the appropriate Govt. in any process of any industry or class of industries if apart from other factors, govt. considers that they are employed in perennial nature of work. If the contract is genuine and fair between the establishment and the contractor and the nature of work is not prohibited, then such labour engagement can be continued for years together legally.

No! You are not. The establishment registered under state shops Act as commercial establishment will be covered under the schedule of employment of the state Govt. under The Minimum wages Act. Your establishment is under legal obligation to pay at least minimum wages to your employees as declared by state Govt. under the Act and not as applicable on Pvt. Bank being a banking company establishment under Banking Regulation Act 1949 for which central Govt. is the appropriate Govt. to issue MW notification for their employees. Simply because your employees are working in the premises of an establishment which is covered under Central law and for which appropriate Govt. is the central Govt. does not conclude that your employees will also be covered under the MW notification issued by Central Govt. under the MW Act. Bombay H.C. in the case of Dust Blowers vs. Regional Labourr Commissioner (Central) 2020 CLR III 196 has held that the contractor firm is the employer in respect of the employees deputed by him. The central Regional Labour Commissioner is not justified in holding that since the work of the housekeeping was being undertaken under the authority of the central Govt. the contractor was liable to pay minimum wages as per notification issued by central Govt. The Employer and employee as defined under Sec. 2(e) of Minimum Wages Act is liable to pay minimum wages as prescribed and specified in the schedule under the Act.

No! Consequential benefits do not include encashment of earned leaves of all the period from dismissal to reinstatement. Earned leave is a privilege, a workman would be entitled to only by actual working and it cannot be earned as a matter of right, even if he did not work. Unless relevant rules of the organization expressly specifies otherwise cannot be considered as a part of consequential benefits. The proposition of law as decided by SC in the case of Dilbagh Rai Jerry vs. Union of India AIR 1974 SC 130 and Karnataka Housing Board vs. C. Muddaiah (2007) 7 SCC 689 in summary is that an employee if reinstated with consequential benefits would be entitled to all such benefits that he would have got if he had worked in the normal course. But he is not entitled to those allowances which would accrue only if he worked in the conditions entitling him to draw the allowances. AP HC in the case of Andhra Bank & Another vs. P. Balakrishna 2005 III LLJ 891 has held that earned leave is not a consequential benefit and workman has to render active service and thereby earn privilege leave to his credit. Though in contrary to above in one case All. H.C. in the case of H N Jain vs. National Textile Corporation 2004 LLR 832 has held that when employee could not work due to the fault of the corporation and once the order of termination is quashed, employee is entitled to be on duty and in service making him entitled for earned leaves of that period also. But the Karnataka HC in the case of General Manager, Vijaya Bank vs. H. C. Jayaprakash 2020 CLR II 135 while relying on SC verdicts and full bench decision of A.P. H.C. has held that earned leaves is not a part of consequential benefits. It is similar to night shift allowance or travelling allowance which accrue only if the person decided to work. If he does not work, in that event he is not entitled to it.

Gratuity is to be paid at the rate on the last drawn basic salary and not at the rate of the suspension allowance. Wages has been defined under Sec. 2(s) of the Payment of Gratuity Act which clearly prescribe that last drawn wages are to be reckoned for calculating the amount of gratuity. Suspension or subsistence allowance cannot partake the characteristic of the wages. Subsistence allowance cannot be said to be a wage so as to calculate the same for gratuity purpose. The wages which the employee is receiving is under suspension as subsistence allowance is only the allowance when the employee is not called upon to serve. This cannot be said to in lieu of wages. The Gujarat HC in the case of Chief Officer vs. Arjanbhai Tapubhai Vadhia 2020 (166) FLR 150 has held that the employer cannot be given liberty to reckon the gratuity amount contrary to the provisions of Payment of Gratuity Act because suspense allowance is not a wage for the purpose the calculating the gratuity.

The parameters are well decided by the courts. Court or the Authority cannot go into the merits of the matter and pronounce upon the misconduct of the employee with regard to the documents, findings of the Enquiry officer in the disciplinary proceedings. It is not in the scope of the Sec.33(2) (b) of the Act that is contemplated is a summary enquiry and as a result of which would not preclude the workman from challenging the punishment imposed upon him.SC in the Case of John D’ Souza Vs. Karnataka State Road Transport Corporation (CA No.8042 of 2019 decided on 16.10.2019) has held that Sec. 33 (2)(b) Of I.D. Act in the very nature of things contemplates an enquiry by way of summary proceedings as to whether a proper domestic enquiry has been held to prove the misconduct so attributed to the workmen and whether he has been afforded reasonable opportunity to defend himself as per principles of natural justice. Labour court or the authority can lift the veil to find out that there is no hidden motive to punish the workman for a nonexistent misconduct. While holding such enquiry court or the authority would remember that such summary proceedings are not akin and at par with its jurisdiction to adjudicate the dispute nor sec. 33(2)(b) clothe with power to peep in to the quantum of punishment. When the enquiry is found fair and proper, permission of approval is must. Such approval has no binding effect on the adjudication of dispute challenging such termination. For such approval court cannot invoke adjudicatory powers vested in him under Sec. 10(1) (c) and (d) of the Act. Karnataka HC in the case of Karnataka State Road Transport Corporation vs. Raju M 2020 CLR I 990 has also held in the same direction.

Yes! But in a specific situation. Supreme Court in the case of Rajasthan state Road Transport Corporation vs. Ramesh Kumar Sharma 2020 (166) FLR 390 while concurring with the earlier judgment of this court in the case of Rajasthan State Road Transport Corporation vs. Krishna Kant 1995 (71) FLR 211 has held that where the dispute arises from general law of contract i.e. where reliefs are claimed on the basis of general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute “Industrial Dispute” within the meaning of Sec. 2 (k) or 2-A of the I.D. Act. However, if the dispute involves recognition, observance, or enforcement of any of the rights or obligations created by I. D. Act, then civil court is barred. When there is matter about violations of Standing orders, employee can either approach to the forum created by ID Act or Civil Court to seek relief as the statutory imposed service conditions though do not amount to statutory provisions.

Since the matter is related to recovery of fine which cannot be said to be covered under Sec. 2-A, civil court jurisdiction is open for the employee to seek relief.

Yes! There is no restriction on retired employees of an organization or bank to form a union or association and get it registered under Trade Unions Act. Persons have a fundamental right to form association for lawful acts and present their grievances to the Govt. Madras HC in the case of Karur Vysya bank Retirees’ association vs. Deputy Commissioner of Labour 2020 (166 )FLR 522 has held that preventing one set of persons namely retired employees to form a trade union to espouse their cause to the Govt. could not be permitted at any cost and Labour Authority could not narrow the definition to reject such application. Court held that the Authority is bound to register the association unless there is any other prohibited ground for non registering the same.

Oct 2020

There is no law which makes it obligatory for the employer to determine the permanent strength. It is the management prerogative to plan for man power subject to the provisions of laws requiring to observe work conditions. The nature job categorized as permanent will be based on the definition of workman under Certified Standing Orders. Since rationalization of manpower is a matter of dispute which can be espoused by the Unions, the subject matter of permanent strength will arise and the employer has to substantiate his stand with industrial engineering studies made to establish scientific method of determining the manpower requirement.

Civil Court has no jurisdiction to entertain any matter covered under Industrial Law. Operation of settlement cannot be stayed by any civil court. Conciliation settlement under section 12(3) entered between management and the sole worker union would be binding on all workmen. Settlement should be considered as a whole. As far as collective issues are concerned, individual workmen are not allowed to dispute the validity of the settlement. The terms of settlement by collective bargaining get incorporated into the individual contract of service and become conditions of service. It has to be considered prima facie to be in the best interest of employees in the absence of attribution of oblique motives based on concrete materials.

No! It is not necessary to have disciplinary powers for an officer to come out of definition of workman as defined in I.D. Act. If you look at the definition of workman as provided in Sec. 2(s) of I.D. Act, It has four exclusions. First is about the persons who are subject to Air Force, Navy and Army acts, second is about persons of police and prison, Third one is about person who is mainly employed in managerial or administrative capacity and the last fourth one is about a person who being employed in supervisory capacity draws wages more than Rs. 10,000/- per month or exercises mainly functions of managerial nature either by the nature of duties attached to the office or by the reason of the power vested in him. Gujrat HC in the case of Baroda Rayon Corporation Ltd. Vs. Jayant Kumar Maganbhai, 2018 (156) FLR 1, has held that it is not required for a person as supervisor to have disciplinary powers to get excluded from the definition of workman as defined under the definition of I.D. Act. S.C. in the case of Sh. S.K. Maini vs. M/s. Carona Sahu Company Ltd. 1994 (68) FLR 1101 has also observed that though the workman may not necessarily be employed mainly in managerial or administrative capacity, however, if he is employed in supervisory capacity and draws more than the limit specified in the exclusion (iv), he will not be a workman. While determining the categories of service as indicated by the words supervisory, managerial or administrative, it is not necessary to bring interpretation of one into the other. Once it is established that the workman was in charge of the shift and drawing wages exceeding the limit, he would fall within clause (iv) of sec. 2(s) of the Act. An employee employed in a supervisory capacity goes out of the definition of workman if he draws wages exceeding the limit even if he does not exercise functions of a managerial nature. This conclusion comes from the Gujrat HC judgment in the case of Gujrat Electricity Board vs. B.M. Shah 2001(3) GLH 36 and Bombay HC judgment in the case of Union Carbide (India) Ltd. Vs. D. Samuel 1998 (80) FLR 684.

No! Works committee under I.D. Act has a different scope to function. It is obligatory on the employer to constitute works committee in case workers are more than 100 in numbers. The function of the works committee is to discuss matters of common interest and remove causes of friction in day-to-day working. The representative of works committee do not represent for all purposes. It is not intended to supplant or supersede the union for the purpose of collective bargaining. Works committee is not entitled to consider real or substantial changes in the conditions of service. The decision of the works committee is in no way binding on the workmen or their union. It has been held way back in 1955 in the case of North Brook Jute 1960 I LLJ 580 (H.C.) approving Kemp & Co. Ltd. case 1955 I LLJ 48 (LAT). The nature of the works committees finding is recommendatory or advisory and final decision rest with union and the employer. No legal obligation is imposed upon the employer to implement the decisions reached by such committee. Works committee is created with a view to the rendering recourse to the remaining machinery. Works committee cannot go beyond recommendation as they are the bodies who in first instance endeavour to compose differences and final decision rest with the parties. The works committee cannot consider matters like pay revision, employment or re-employment and rationalisation. So your objective of replacing or reducing the impact union cannot be met by making works committee.

No! Payment towards union activities and fighting for co-workers cases cannot be termed as gainful employment. Such income of the union leader will not be a remuneration for the purpose of section 17-B of the I.D. Act. This has been so decided by Gujarat High Court in the case of M.J. Patel vs. Tata Chemicals Ltd. (2008 1 CLR 588).

DA is not compulsory in salary fixation. It is organisations internal compensation package policy which determines about components of salary. There is no law on grade structure. It is regulated either by your service rules, agreements, terms & conditions of appointment or any other local law applicable to your establishment. Again, giving benefit of LTA & Medical on DA is a matter to be decided according to the policy of the company. There is no law which direct payment of LTA & Medical on DA. The normal practice in industry is about keeping 50% of basic and rest is divided in various allowances.

No! Such person will not be exempted from EPF Act. He has to be enrolled as a member but he will not be entitled for any pension benefits. All his contribution will be in PF account only. There is no exemption clause in EPF act for any person who has opted for VRS. He will not be entitled for any exemption under EPF act. PF benefits are to be extended to him when he joins the service.

No! It is well settled principle that washing allowance is a part of wage as per definition of wages provided in Sec 2(22) of the Act. It will be a wrong notion for ESI to treat washing allowance as a perk on one hand and on the other hand expect contribution too on that amount. Medical allowance too is a part of wage but when it is paid only to those employees who are out of ESI coverage has no relevance for the purpose of contributions. Gujarat HC in the case of Regional Director ESIC vs. Bhavnagar Vegetable Products unit, 2016 CLR I 620 has also held that washing allowance would be treated as part of wage and if by adding the amount of washing allowance, employee crosses the wage limit fixed for the purpose, unit is exempted from making payment of contribution of such employees to the ESIC.

Sep 2020

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.

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.

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.

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.

Aug 2020

The Supreme Court order is interim in nature. Next hearing has been fixed for last week of July. The order has provided an opportunity to settle the matter amicably by both employer and employee and whatever is decided and agreed between the two will be valid irrespective of MHA dated 29.03.2020 order in question which has been challenged by companies. In view of the order, it is suggested to talk to workers, reach out to some amount or percent of wages to be paid for the lockdown period of 50 days as mentioned in order, make an agreement in writing, get it signed by all workers and registered under Sec. 18(1) of I.D. Act. In case it is not possible for employer and employees to reach out to an agreement, labour authorities can very well be involved for conciliation. If such agreement is reached out with the intervention of conciliation officer, it should be written, signed and registered as tripartite settlement under Sec.12(3) of I.D. Act. In case there is not settlement is made out even after intervention of labour authorities, then this dispute cannot be referred for adjudication as the matter is sub-judice in Supreme Court and then employer has to wait for final order in the matter. That final order would be binding. Instead of waiting for final order of SC, employer should avail this interim opportunity and close the matter mutually from becoming a dispute.

No! Maternity leave period started before lockdown was announce, will continue for 26 weeks and any maternity period falling in between lockdown has no link with Covid induced lockdown. Such maternity period cannot be neutralized against lockdown period and further extended proportionately after lockdown is lifted. She is only entitled to 26 weeks paid leave from the date she opted. However, If she suffers from any illness arising out of delivery after baby is born she is entitled to get paid leave of one more month as per Sec. 8 of Maternity Benefit Act. So in total she is entitled to maximum period 26 weeks plus one month paid leave. Beyond that if she is advised to take bed rest medically, either she has to get this period adjusted against her credited earned leaves or sick leaves as may be available in accordance with co. policy or remain unpaid.

Your stand appears weak legally. As you narrated, it appears that since co. is in bad financial position due to Covid generated lockdown, employees were made to resign involuntarily. Involuntary resignation amounts to termination/retrenchment and can always be challenged under I.D. Act. Such employees who have mentioned in emails that they have been forced to resign, tantamount to illegal retrenchment if not complied with relevant provisions of I.D. Act. Moreover, the allegation of donating any fund from Co. towards PM cares Fund will have to be meted out by you strongly and justify the resignations as voluntary. It is suggested that the employees who have mentioned the element of force/undue influence in getting their resignations, you should not treat that as resignation and accept. Rather adopt the legal way of terminating their services by complying with retrenchment provisions. If your strength is more than 100 workmen, then you need to seek prior approval of effecting retrenchment from the appropriate Govt. In all probabilities, such dispute of resignations if referred for adjudication, final order may go against you.

No! Once Govt. allowed re opening of business activities and after reopening you have called workers to report for duty and they do not report, wages of such absence period is not payable. It appears that during lockdown such workers left for their permanent homes in different states from local residence. If they have done it without management information and approval, at their own risk, they have to be responsible for their own acts. Moreover, during lockdown, by moving from their local residences, they have also violated the Govt. guidelines of remaining at the same place where they were at pre lock down period.

Since they have communicated about their inability to report due to circumstances beyond their control, it is suggested that neither their names should be struck off from rolls, nor any disciplinary action should be initiated.

Yes! In such situation where you informed workers of re-starting the plant and asked them to be ready to report on call, you as an employer is liable to wages to such workers who have not been called for duty. It is not their fault.

As employer you were not able to provide employment to them and asked them to be at home. Better would have been for you to declare lay off for such workers who were not called. In that case your liability to pay wages would have reduced to 50% of basic and DA.

I suggest that initiate a dialogue with such workers, make them understand the co. situation in a transparent way and also understand their position. Try to strike out a settlement which leads to win- win situation. There are many options. In such absence, you will be liable to pay full wages to such workers.

Jul 2020

After lock down, in normal working, I.D. Act would be applicable. Sec. 9-A prohibits employer to effect any change in service conditions that affects adversely to workers without giving them 21 days notice. So make out a case, rational proposal, inform affected individually with 21 days notice and implement. If your employment terms indicate that he is hired to work on all week days and five day week is introduced temporarily without any pay cut, then management can withdraw five day week working and start six day working. However, even after this, It may be an industrial dispute. Workers may challenge your pay cuts/restarting six day week. You should be ready with sounding and reasonable facts before the court/industrial tribunal to establish your genuineness and reasonability.

Your terms of employment will indicate about your proposed action. Is he employed on task basis? Has he been paid proportionately earlier also? What is his mode of payment? Finding out these facts will answer your question. If he is present full day, he cannot be marked absent. Yes disciplinary action can be taken against him for negligence and not doing the work as instructed or refusal to work.

Section 2(o) of the Act defines “workplace” in an inclusive and non-exhaustive manner which under its sub clause (vi) includes ‘a dwelling place or a house’. Although, the spirit of the Act refers to the domestic servants and helpers who are employed in a dwelling place or a house when it means that workplace includes a dwelling place or a house.

Yet the unprecedented extraordinary times of Corona virus lockdown and on application of literal rule of interpretation, the meaning of workplace shall also encompass work from home under Section 2(o) (vi). Therefore, sexual harassment occurring through online medium while working from home falls under the scope of Prevention of Sexual Harassment at Workplace Act, 2013.

The second most pertinent question that is likely to arise is that, since there is no physical element involved while working from home, what are the kinds and forms of sexual harassment that can occur while working from home?

The answer to the kinds and forms of sexual harassment that can occur while working from home can be found under section 2(n) of the Act, which is yet another non-exhaustive and inclusive clause defining “sexual harassment”. The relevant sub clauses here are sub clause ii, iii, iv and v of section 2(n) which deals with the expressed or implied unwelcome acts or behaviour demanding or requesting sexual favours, making sexually coloured remarks, showing pornography and any other unwelcome verbal or non-verbal conduct of sexual nature, respectively.

Therefore, such are the instances of sexual harassment that are covered under the Prevention of Sexual Harassment at Workplace Act, 2013 which one can encounter online while working from home.

Yes! She would be entitled. The word “dependent” Under the E.C. Act is defined. Under the definition. The word dependent has been used and not the legal heir which expands its intention. Allahabad HC in the case of Sohanbeer vs. Workmen’s Compensation Commissioner 2007 (113) FLR 619 has held that law of inheritance is not applicable, as such the widow of the deceased is entitled for compensation even she had married. M.P.H.C in the case of Mankuwar Bai Mandsaur vs. Kusumlata 1988 (56) FLR 674 has also held that remarriage would not disentitle for compensation under the E.C. Act.

Actually the term Misconduct has neither been defined under the Industrial Disputes Act nor in The Industrial Employment (S.O.) Act. Delhi HC in the case of Manilal vs. Matchless Industries of India Ltd. 2016 LLR 72 has discussed the term misconduct and said that the dictionary meaning of the word misconduct is improper behaviour; intentional wrong or deliberate violation of a rule of standard behaviour. In so far as the relationship of industrial employment is concerned, a workman has certain express or implied obligations towards his employer. Any conduct on the part of an employee inconsistent with the faithful discharge of his duties towards his employer would be misconduct. Any breach of the express or implied duties towards his employer, therefore, unless it be of trifling natures would constitute an act of misconduct. In industrial law the word misconduct has acquired a specific connotation.

It cannot mean inefficiency or slackness. It is something far more positive and certainly deliberate. The charge of misconduct therefore is a charge of some positive act or of conduct which would be quite incompatible with the express and implied terms of relationship of the employee with the employer. What is misconduct will naturally depend the circumstances of each case. In any case the act of misconduct must have some relationship with the employee’s duties to the employer. In other words there must be some rational connection of the employment of the employee with the employer.

If the act complained of is found to have some relationship to the affairs of the establishment having a tendency to affect or disturb the peace and good order of the establishment or be subversive of discipline in any direct or proximate sense, such act would amount to misconduct.

While gauging the gravity of the misconduct in proportion to the punishment imposed, it is to be seen that it should not shock the conscious of the court or that no person of ordinary prudence would come to such conclusion or it is ex-facie arbitrary. Courts have justified the dismissal for the misconduct of theft, go slow, illegal strike, abusive and mis-behaviour with senior officer, assault, sexual harassment, sleeping while on duty, habitual absence, gross indiscipline, dis-honesty, fraud, misappropriation of money, cheating, causing loss to the employer, refusal to work etc. Supreme Court in the case of State Bank of Patiala vs. General Secretary, Staff Union 2016 LLR 1121 has held that any act of the part of the employee adversely affecting the interest of the bank is nothing but a gross negligence on his part justifying the punishment of dismissal.

In this case godown keeper/record keeper was asked to look after the godown maintained by the bank wherein stock of the borrowers had been stored. The said stock had been pledged to the bank as security and the employee was not allowed to permit any one to remove the stock but the employee permitted one of the borrowers to take away the goods with an understanding that he will replace the said goods after sometime but the borrowers replaced the goods of an inferior quality.

Yes! He will be entitled to gratuity since he has completed five of continuous service in your organization. Don’t get confused with lock down period of no working. It will be deemed as on duty days as per govt. order. Employee will be entitled to all benefits on this period till 17.5.2020 when this order is withdrawn.

Jun 2020

If an employee has resigned and his notice period falls in between lock down period, such lock down period will be treated as served notice period. However, for the remaining period he has to serve. If he does not complete the remaining period, you can deduct the amount of such period as per terms of employment and company rules/policy.

Until lockdown prevails, establishments and factories have to abide by the govt. directives. Reduction in manpower or salary is prohibited during this period of lock down. Yes, having the same manpower, you can arrange shifts as per your requirements provided wages are not reduced. After lock down period is over and govt. directives of payment of wages for the period ceases, you can very well take recourse of lay off or retrenchment or VRS in compliance with provisions of I.D. Act and your certified standing orders and terms of employment or agreement if any. You can restructure your manpower by giving 21 days notice to all workmen as per Sec. 9A of I.D. Act only after lock down period is over. Raj. Govt. has issued order for allowing industries to work for 12 hours and run two shifts only subject to payment of overtime for extra four hours. Punjab and Haryana govt. have also issues orders in this regard with few differences. Guj. Govt. has also issued order allowing industries in general to work in 12 hours shift and extra four hours will not be treated as OT. That means employer needs to pay only in proportion to extra hours at normal rates in Gujarat. So, kindly check such of your state and act accordingly.

Yes! After lock down is lifted or next new order under DMA (Disaster Management Act, 2005) does not have any such restrictions, employer can very well start working on lay off if required. Kindly check under which chapter of I.D. Act your establishment falls. Whether it is V-A or V-B. If you have less than 100 workmen, you need not to seek prior permission from Govt. Many states have increased this limit to 300. Kindly check about your state notification. Then you have to comply with provisions of Chapter V-A, otherwise you have to apply in prescribed format to Govt. for seeking approval for lay off. Your reasons have to be strong enough for seeking approval of lay off.

If the industry is exempted during lock down, allowed to operate, and employee denies to work or remains absent without any justifiable reasons, he can be put to disciplinary action as per terms of employment and certified standing orders/ company service rules and marked absent. It would be better for employer to take action against such erring employee after lock down is lifted otherwise he may have many excuses of making him present for disciplinary action. It may also be difficult to serve him any communication.

This lock down must have given enough indications for organisations to reorganise its manpower, restructure them, and communicate effectively with enough transparency with workers. Front line officers and managers must share about real financial condition of company and involve them in decision making process affecting their livelihood/financial aspect. It would always be better to have less instead of having nothing.

You can identify unnecessary expenses and curtail them, change working habits to save cost like waste of electricity, waste of food items, unnecessary transport expenses, avoidable events, etc.

You can also temporarily reduce certain allowances/perks/ expenses to bring back business normal. There must be an environment of ownership in employees to support their organisation during these tough times.

It is all according to your terms of employment. Notice period falling in between lockdown period will be treated as served. In case of new joining, either you can extend their joining or defer or cancel. The decision has to be as per your company policy but remember your any such decision may have an effect on your employer brand image. So take decision cautiously.

If any workman is forced to resign during lock down period, a complaint can be given by him to district magistrate. An FIR can be filed against such employer under DMA provisions for prosecution. If it happens after lock down period, industrial dispute can be raised before Labour Dept. Authority.

Effective communication is the key in such matters to convince workers and inspire/encourage them to voluntarily offer to have pay cut. You can use informal group chat to build environment, change worker thought process about to choose one- whether the temp. pay cut permanent job loss. Influential managers/front line officers who have enough command on workers can be used for this counselling. HR can play a big role in it through positive workers to start such discussion among workers and sell management idea.

May 2020

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 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.

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.

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).

Apr 2020

No! All such points raised are procedural and have no bearing on legality and validity of enquiry because the disciplinary enquiry is not a judicial trial where procedure defined in CPC or Evidence Act is to be followed. Gauhati HC in the case of Phukan Chandra Nath vs. Indian Oil Corporation 2016 LLR 398 has held that the object of holding the Inquiry is to determine the actual facts. What is to be ensured that principles of natural justice are followed where employee should get fair opportunity to defend himself. Nothing should be done on his back. SC in the case of M/s. Cholan Roadways vs. G. Thirugnanasambandam 2005 LLR (SN) 302 has held that provisions of Evidence Act are not applicable on disciplinary enquiry. Madras HC in the case of Smt. M. Vijayakumari vs. Financial Controller, Tamilnadu Electricity Board, Chennai 1998 LLR1030 has held that Enquiry officer is not bound to follow the provisions of Evidence Act. H.P. HC in the case of Kali Kant Jha vs. M/s. Birla Textiles Ltd. 2019 LLR 646; 2019 Lab IC 138 has held that enquiry findings cannot be rejected by applying rigours of Evidence Act.

It makes no difference whether the documents are marked before the management witnesses statements were recorded or thereafter. The purpose of marking the documents does not mean exhibiting the same but merely record all the papers by marking them serially numbered to make the entire process more transparent. Employee should know what documents given by management or him are on file and what are their numbers.

Not allowing advocate as workman representative can be fatal if the service rules of the organisations so provide because disciplinary proceeding are conducted as per service rules. If the service rules do not provide such option, Employee has no such right of representation by another person or advocate. This has so been held by SC in the case of Bharat Petroleum Corporation Ltd. vs. Maharashtra General Kamgar Union 1999 LLR 180. All. HC in the case of S.N. Maheshwari vs. General Manager, Syndicate Bank 2013 LLR 707 has held that Refusal to allow advocate as representative for assisting in defence is not violative of principles of natural justice.

When the statement of employee was recorded on his request and he makes also the request of submitting documents which is allowed, there is no illegality in such process adopted in the enquiry. What has to be seen whether buy adopting certain procedure, any prejudice is caused to the employee or he was restrained from defending his case properly or his opportunity is curtailed? What have you mentioned are trivial technical formalities where this does not appear that have caused any prejudice to the employee. All. HC in the case o f State Bank of Patiala vs. Union of India 2011 LLR 701 has held that enquiry can’t be declared invalid on trivial points. Mad. HC in the case of Dharmaraj S. vs. Chairman and Disciplinary Authority, Pandyan Grama Bank, Virudhunagar and Anr. 2007 LLR 724 has also held that even if the trivial formalities had not been followed in the inquiry and thereafter, unless the employee could show that substantial prejudice had been caused to him, inquiry cannot be quashed.

Yes! Your engagement of contractual labour in cleaning and security operations will be legal and proper till it is not prohibited by the Govt. by issuing a notification under Sec. 10 of The Contract labour Act. Simply because the nature of job is continuous, there cannot be an employer employee relationship between principal employer and contractual labour. Delhi HC In the case of National Projects Construction vs. P.O. Industrial Tribunal 2016 LLR 19 has held that If required notification is not issued by the state Govt., the principal Employer is not prohibited to engage contract labour through independent contractors.

Sec. 25 B of I.D. Act has defined it well. Continuous service of one year means a period of 12 calendar months preceding the date of termination. The calculation of continuous service of 240 working days is to taken within the period of 12 calendar months preceding the date of termination. Sub-section (1) defines what continuous service is as uninterrupted service including the interruptions on account of sickness or authorised leave or an accident or a legal strike or a lock-out or a cessation of work not due to the fault of the workman. Thus a legal fiction is created to deem the above interruptions as part of contininous service.

Sub-section (2) incorporates another deeming fiction for a different situation. When workman is not in continuous service within the meaning of Sub-section (1) for a period of one year or six months. Therefore, for the purpose of calculation of continuous service under the Act this Sub-section (2) introduces further clause (a) in respect of a period of one year and clause (b) in respect of a period of six months. The sub section (2) states plainly that the date of termination of employment is the date from which the calculation is raisable. It shall be 120 days during the period of preceding 12 calendar months in the case of employment below ground in a mine and 240 days in any other case.

M.P. HC in the case of Engineer in Chief, Water Resources Department, Bhopal vs. Manharam 2016 LLR 1244 has held that the basis of calculation of 240 days working is twelve calendar months preceding the date with reference to which calculation is to be made and not the calendar year. Raj. HC in the case of Manager, Muslim Musafir Khana Moti Ddoongri Jaipur vs. Zahir Khan 2016 LLR 1257 has held that the workman is not required to show his working for 240 days, if he has worked continuously for a year or more than a year. Sec. 25 B would be applicable when an employee has not worked continuously for a year but has worked for more than 240 days in a year. In case an employee has worked continuously for more than a year, Sec. 25 B would not be applicable.

No! There is no such provision in the EPF Act or the scheme that pre deposit is mandatory in respect of filing of appeal against the order of EPF Authority under Sec. 14B of the Act. Sec. 7-O of the Act makes specific reference only to orders, passed in terms of section 7A of the Act that no appeal shall be entertained unless 75% of the amount determined by the Authority under Sec. 7A is deposited provided the Appellate Tribunal may waive or reduce the amount by using its discretion. Appeal to be filed under Sec. 7-I of the Act against orders passed under Sec. 14- B is only within such time and with such fee as may be prescribed and no part of determined amount under Sec. 14- B is required to be deposited. This has so been held by S.C. in the case of M/s. Shiv Herbal Research Laboratory vs. Assistant P.F. Commissioner 2016 LLR 55.

Yes! He will be. Since the ownership of both the companies are same and he has continously served in both companies one after one for a period of more than five years of continous service, he is entitled to gratuity. Punjab and Haryana High Court in the case of Rajvir Singh vs. The Appellate Authority. 2016 LLR 1088 has held in the same direction. You are advised to pay his gratuity amount without entering into any dispute.

Mar 2020

Chapter VA and VB of Industrial disputes Act deal with Lay off along with other matters. Chapter VA is applicable on industrial establishments employing more than 50 and less than 100 workmen, whereas Chapter VB is applicable on establishments who employ more than 100 workmen, but in both the chapters there is no provision specifying about the minimum or maximum period of lay off that can be done by employer. The law is silent about it. However, second proviso of Sec. 25-C gives an option that the employer may resort to retrenchment after 45 days period of lay off and the amount so paid as lay off compensation may be adjusted against the retrenchment compensation.

One more thing needs to be understood that the very idea of lay off generates from a situation beyond the control of employer that is temporary and not indefinite. So, lay off should come to an end after a reasonable time and should not continue for indefinite period. Under the guise of this provision, by declaring lay off, employees cannot be left unattended to lead their life on 50% compensation indefinitely.

EPF authority considers many factors while deciding to impose damages on defaulting employer. Delhi HC in the case of Dentsu Marcom Pvt. Ltd Vs. Central Board of Trustees, Through APFC, Delhi 2019 LLR 469 has held that the determinative factor is mens rea which means intention of the employer in delayed deposit of the PF contributions. In such absence, the damages can be on lower side .Other factors are period of delay, whether the default is regular or intermittent, whether it is prompted by certain conditions beyond the control of employer or employer is in habit of such default. So such factors are to seen by the EPF authority before passing an order imposing damages. The factors depend on each case.

No! Though it depends on the terms and conditions of the appointment and service rules/certified standing orders of the establishment, but employee cannot be kept on probation for an indefinite period. All. HC in the case of Indian Oil Corporation Ltd. Vs. R.P. Garg 2015 (145) FLR 93; 2015 LLR 666 ( SN) has held that where neither at the time of appointment nor at the time of termination, there were no certified standing orders of the corporation, the model standing orders will continue to operate. And when there is conflict in between the terms of appointment and model standing orders, the terms of model standing orders will prevail. In this case the term of probation was mentioned as of six months in the appointment letter whereas in model standing orders it was only 3 months. Term contrary to model standing orders would not have any binding force, so in such case the employee would be deemed to have confirmed after completion of three months of probation period. Bombay HC in the case of Subhash Vitthal Pise vs. Childrens’ Film Society of India 1998, LLR 852 has held that when society rules permit continuation of maximum period of probation of six months after initial period of one year then employee stood confirmed on the expiry of 18 months from the date of promotion and would be entitled to all consequential benefits. All. HC in the case of Micro Abrasives (India) Ltd. Vs. Dhanvir Singh 2001 LLR 737 has held that longer period of probation mentioned in the appointment letter than that of model standing orders would not make the appointment invalid itself but the employee would be deemed confirmed after the expiry of the period of probation as mentioned in model standing orders.

Yes! Karnataka HC in the case of Regional Director ESIC, Bangalore vs. Management of Shagil Precision India 2009 LLR 72 has held that when an appeal is filed before the insurance court under Sec. 75 against the order of ESIC authority and court comes to conclusion that such contribution was wrongly taken by ESI authorities, it is competent to order refund of such amount to the employer. In this case the employer paid amount to contractor for construction of new building which included cost of material, machinery and other expenses. On all such payment ESIC made employer to pay ESI contribution which employer challenged on the ground that all such payment cannot be termed as wages.

No! The life of any service benefit comes to an end with expiry of service contract. No benefit is accrued to employee after the service period. Delhi HC in the case of Dr. Artiben R. Thakkar vs. Delhi Pharmaceutical Sciences & Research University 2018 LLR 1293 has held that when the employee service contract expired in between but was extended for further period of two months to enable her to avail her maternity benefit of 12 weeks, she cannot claim further benefit of 26 weeks in view of the amendment in the Act because her service contract came to an end with the end of academic session. Court held that the employee is not entitled to 26 weeks maternity benefit since also no other person was appointed in her place.

Yes! Employer is under legal obligation as per Sec. 7 of the Payment of Gratuity Act to calculate the amount of gratuity when an employee leaves, and inform in writing to the employee concerned with a copy to the to the controlling authority. Employer is also under legal obligation to pay the amount with in 30 days. All. High Court in the case of Kraft Palace vs. Appellate Authority. 2013 LLR 254 has held in the same direction. Though there is also a provision about giving a notice by the employee to the employer demanding gratuity in prescribed format but that will not absolve the employer from paying the gratuity amount on the ground that the employee has not submitted the application for demand of gratuity. Delhi High Court in the case of University of Delhi vs. Tahel Ram Bellani 2015 LLR 555 (SN) has so held.

Yes! Under Employees’ Compensation Act, employer is under legal obligation to reimburse the expenses of treatment incurred by employee because of accident caused during the course of employment. The provision of sub-Section (2A) of Section 4 of the E.C. Act has made this provision after amendement of 22/12/2009. Delhi High Court is the case of Mohinder Pal Singh vs. Upender Paswan 2017 LLR 371 has held that Commissioner under the E.C. Act will not consider the payment made to the employee or his dependents on account of medical treatment expenses while passing an award of compensation.

No! Madras High Court in the case of Hindustan Unilever Employees’ Union Pondicherry vs. Inspector of Factory 2010 LLR 878 has held that introducing computerised attendance system will not come within the purview of Sec. 9A of the I.D. Act.

Feb 2020

The law is very much settled in this respect. According to Section 25FF of Industrial Disputes Act the transferor is liable to pay compensation to such employees and not the purchaser. It was settled by Supreme Court in the case of Anakapalla Co-oporative Agricultural and Industrial Society vs. It’s Workmen. 1962 (II) LLJ 629. Supreme Court in the case of New Horizon Sugar Mills Ltd. Ariyur vs. Ariyur Sugar Mills Staff Walfare Union. 2009 LLR 1320 has also decided in the same direction.

Though Industrial Tribunal/Labour Court has discretionary powers under Section 11A of the I.D. Act to interfere with the punishment imposed by the employer if it founds the punishment disproportionate to the gravity of the misconduct, but these powers are to be exercised with restraint by giving sound reasons in case of reducing the punishment with justification. Gujarat High Court in the case of State Bank of India vs. T.M. Solanki. 2008 (II) LLJ 274 has held that if somebody after committing the misconduct pleads guilty, then, he does not challenge the charge.

Confession of misconduct would not provide a reasonsable, legal and valid ground to the labour court to interfere with the punishment imposed by the employer. In this case labour court has observed that punishment was excessive because the employee had admitted the guilt before the court.

The central idea behind the issue is that the employee against whom the disciplinary proceedings are drawn, he should be able to understand as to what is written in the proceedings. This is also a part of principles of natural justice. The employee should sufficiently establish that by using a particular language in the enquiry has caused prejudice to him. Only then the enquiry may be declared as invalid. Madras High Court in the case of Management of Cheran Transport Corporation Ltd., Coimbatore vs. P.O. Industrial Tribunal. 2002 LLR 773 has held that when the enquiry proceedings were held in tamil language and the workman did not know tamil and his request about his representation by a person knowing tamil language was also rejected by the Enquiry Officer, then it is sufficient prejudice caused to workman and enquiry was declared vitiated.

Bombay High Court in the case of Nandini Mehta, Prop. of M/s. Layovak Laboratories vs. Smt. Amol Kate. 2004 LLR 111 has held that when the model standing orders provide about choice of language to be used in the enquiry proceedings and the choice was not given to the workman and enqiury proceedings were drawn in english language, the enquiry declared invalid even after the employee participated in the enquiry, did not object about the english language, did not raise any objection because it will not be construed to the effect that the employee had waived his right to get opportunity about language of proceedings under the model standing orders mendating the Enquiry Officer to affored opportunity to the employee about the choice of the language.

In another case Bombay High Court in the case of Shashikant M. Sable vs. Advani Oerlikon Ltd. 2009 LLR 30 held that the enquiry cannot be held to be conducted illegaly when the employee was allowed to be represented by a person of his choice and no objection was raised by him about the english language used in the enquiry proceedings. Bombay High Court in the case of National Organic Chemicals Ltd. vs. Pandit Ladaku Patil. 2009 LLR 219 (SN) has held that at when the workman studied in english senior secondary school examination and the whole work of the company was done in english language, the enquiry proceedings in english language cannot be said to have caused prejudice to the employee simply because it were not done in marathi language. In this case the employee was provided a translated copy of the charge-sheet on his request and thereafter all proceedings were fully explained to him marathi language before being recorded in english.

It depends on facts and circumstances of each case. Gujarat High Court in the case of Integrated Child Development Service Officer vs. Hemaginiben Bakulbhai Vyas. 2009 LLR 1184 has held that when an employee has resigned in her own hand writing and it was accepted on the same day, the employee cannot wriggle out the same. In such case order of awarding reinstatement with 60% back-wages was set aside by the high court.

Since show cause notice has alredy been issued and disciplinary proceedings do not equate with criminal proceedings and law of evidence does not apply on enquiry proceedings. You are not required to frame any charges or issue charge-sheet to the employee. Disciplinary proceedings are nothing but a fact finding mission with an objective to provide reasonable opportunity of hearing to the employee against whom there are charges of misconduct. Supreme Court in the case of Cholan Roadways Ltd. vs. G. Thirugnanasambandam. 2005 LLR (SN) 302 and Karnataka High Court in the case of St. Thomos Mission Hospital vs. State of Kerala. 2007 LLR 610 have held in the same direction.

When the factory is working round the clock and workers are working in shifts, it is required that workers performing same nature of work in different shifts are required to be rotated. The Factories Act does not specify any time frame after which a shift should rotate. It is for the factory manager to classify the workers in to groups and sub-groups (relays) according to the nature of work and to fix the timings of the shifts and decide the routine of shifts in which these groups and relays of the workers shall be required to work.

The work arrangement in shifts is required to be notified by the manager alongwith peridocity of change of shifts as per provisions of Section 61 of the Factories Act. So, it would be against the spirit of law if few workers are permanently kept in night shift.

ESI will not be payable on the amount paid towards material cost, machinary and other expenses except the employee wages paid to them by the contractor. Karnataka High Court in the case of Regional Director, ESI Corporation, Bangalore vs. Management of Shagil Precision India. 2009 LLR 72 has held that the amount paid to the contractor towards other items accept employee wages will not come under the definition of wages to attract ESI contribution.

Yes! He can be appointed as Enquiry Officer to conduct the enqiury. Kindly also check your serivce rules/certified standing orders before taking the decision of appointment of Enquiry Officer. There should not be any bar in such respect in your rules. Supreme Court in the case of Biecco Lawrie Ltd. vs. State of West Bengal. 2009 LLR 1057 has held that advocate of the employer of the company can also be a Enquiry Officer. Mere fact of his being a company advocate would not vitiate the enquiry and it cannot be considered as biased and partisan who favoured the management and was partial towards the management of the company. The biasness of the E.O. has to reflect on the enquiry record.

Jan 2020

Yes! If you are finding it difficult to continue the losses, you can very well reduce the workers numbers by complying with the provisions of retrenchment under I.D. Act. In case the number of workmen employed are more than 100, you need to apply to government for approval otherwise there is no need.

It is well settled principle that it is the right and with in the managerial discretion of employer to organise and arrange his business in the manner he considers best. So long as that is done bonafide it is not competent of the tribunal to question its propriety. If the scheme of such re-organisation results in surplusage of employees, no employer is expected to carry the burden of such economic deadwood and retrenchment has to be accepted as inevitable. It is to be taken care of that it should not result into victimisation or unfair labour practice.

So, as far as your decision to retrench surplus workers by compying the relevant provisions is, there should be no problem. The Bombay High Court in the case of New Haven Steel Ball Corporation Pvt. Ltd. vs. Ramnarayan Kera Yadav, 1998 LLR 1134 has held in the same direction.

Yes! Disciplinary authority can very well differ with the findings of the Enquiry Officer but he has to record the reasons of difference with the findings. Disciplinary authority cannot simply mention the difference and passed the order of punishment. The employee cannot be punished simply on the basis of mere difference of opinion. This has so been held by the Patna High Court in the case of Ravi Bhusan Prasad vs. Bihar State Co-operative Marketing Union, 1998 Lab IC 1820.

Moreover the disicplinary authority is also under obligation to communicate to the delinquent employee about his difference from the findings of the Enquiry Officer and provide an opportunity to employee to offer his explanation before passing any order of punishment. (Hari Shankar Srivastava vs. Commissioner of Food, 2012 LLR 343 (All H.C.)

Yes! If you go through the definition of worker under Factories Act you will find that there is a mentioned of “including contractor”, which means that a worker even engaged through contractor working in the factory is a worker for the purpose of the Factories Act and the total number of workers including contractor workers should reflect in your factory licence.

Moreover, all the benefits provided to the regular workers of the company are also to be extended to the contractor workers like canteen, safety, leaves and holidays, overtime, health etc. Andhra Pradesh High Court in the case of Government of Andhra Pradesh vs. Bhadrachalam Paper Board Ltd., 1989 I LLN 338 has also held in the same direction.

No! Standing orders certified under the provisions of industrial employment (S.O.) Act, 1946 and rules thereunder are very much valid and will remain valid. It makes no difference whether there was union at that time of certification or now it has been formed.

Standing orders central rules provide the complete mechanism of certification of draft standing orders submitted by the employer. Almost every state has its own rules of standing orders providing the complete process. Rule 6 provides that if there is a union in the establishment at the time of submission of draft of standing orders the Certifying Officer will forward a copy of the draft of standing orders to the union with the prescribed notice.

Rule (b) of 6 also provide that where there is no union, he will call a meeting of workmen to select 3 representatives, to whom he shall upon their election forward a copy of draft S.O. with the prescribed notice. So, if union comes into existence after certification of standing orders, it cannot get it declared invalid but certainly can move for amendment in the certified standing orders where the union feels so.

However, the amendment/modification can be done after the expiry of 6 months from the date on which standing orders came in to operation. If there is an agreement between the employer and the workmen/union, modification/amendment can be done even before expiry of period of 6 months.

Section 4 (6) of the Act provides the grounds on which gratuity of an employee can be forfeited. The grounds are termination of service for riotous or disorderly conduct or any act of violence. It also encludes termination due to any offence involving moral turpitude. Such offence should be committed by the employee during the course of employment.

The charge-sheet should contain all or any of the above charges of misconduct on which termination is done. If there are no such charges, gratuity cannot be forfeited. Bombay High Court in the case of Bombay Gas Public Ltd. Company vs. Papa Akbar 1990 LLR 118 has so held.

Karnataka High Court in the case of J.P. Michael D’ Souza vs. Appellate Authority Bangalore, 2002 LLR 7 has held that before passing the order of forfeiture of gratuity employer must give a notice to the concerned employee in this regard. In case of dispute, employer is under obligation to justify the forfeiture as to what process he has adopted. This has so been held by the Allahabad High Court in the case of Hindalco Industies Ltd. vs. Appellate Authority 2004 LLR 690.

Recently Interpreting Section 4(6)(b)(ii) of the Payment of Gratuity Act, the Supreme Court in the case of Union Bank of India vs. CG Ajay Babu, 2018 LLR 1051 has held that forfeiture of gratuity on the ground of misconduct which constitutes an offence involving moral turpitude, is permissible only if he is convicted by a court of competent jurisdiction for the said offence. Court also observed that forfeiture of gratuity is not automatic on dismissal from service; but it is subject to sub-Sections (5) and (6) of Section 4 of the Payment of Gratuity Act, 1972.

No! The postal remark on the envelope ‘not found’ indicates that the charge-sheet was not tendered by the postman to the employee. It cannot be legally treated to have been served as observed by the Supreme Court in the case of Union of India vs. Dinanath Shantaram Karekar, 1998 LLR 1097.

Court has further held that the notice could not be treated to have been served upon the employee since there was no effort made to serve the show cause notice upon the employee personally or by registered post. Publication of the notice in a newspaper not shown to be popular and likely to be read by the public in the area or locality where the employee lived could not be treated as proper service on the employee.

Yes! You can very well withdraw the order which you might have issued earlier about allowing the union office bearers not to be present and work. Madras High Court in the case of Tamilnadu Civil Supplies Corporation, 1998 LLR 1050 has held that there is no legal provision by which an employer can be directed to pay its employees without doing work.

Dec 2019

It all depends how and what your standing orders/service rules define about the misconduct and its instances. It has to be seen in broader perspective. One aspect is that you have to differentiate between an act/mission committed by the employee during working hours and rest period. Rest period is not working period. Other aspect is what acts you have defined as misconduct in your certified standing orders/service rules. Be it under Shops and Commercial Establishment Act or Factories Act, every employee is required to be given rest interval of at least half an hour after maximum working of 5 hours. Though, this rest period is for him to consume in a way he wants but subject to certain limitations. His act/behaviour even during rest period has to be in parameters of discipline. So, to bring it under purview of misconduct to take disciplinary action, first it has to be mentioned as misconduct and also should be during duty/working hours and has nexus with the discipline in the establishment. If it is not mentioned, you cannot take any disciplinary action. Madras HC in the case of M. Marimuthu vs. G.M., State Bank of India. 2010 LLN 454 has held that misconduct not supported by service rules, cannot be basis of disciplinary action.

Even if it is mentioned and it is committed not during duty/working hours, having no direct nexus with the discipline of the establishment it may not be sufficient cause to take disciplinary action and impose punishment. Mad. HC in the case of D. Thomas Franco Rajendra Dev vs. The Disciplinary Authority, State Bank of India, 2013 LLR1065 has held that peaceful demonstration during luch break will not amount to misconduct warranting disciplinary action.

However, certain acts have also to be seen in terms of its impact over the work environment of the organisation. If a security guard is found sleeping sitting on his chair during rest period after taking lunch, what would be the impact of such act? If a receptionist is found taking a nap sitting on her chair at the front office during her rest period where guests come regularly to visit co. officials, how would you take it?
So, It would be advisable to regularly update your service rules/standing orders in tune with changing social contexts.

Activities run by the charitable trust are very well covered under different Act related to employment and welfare. Industrial Disputes Act is applicable on your canteen, school and hospital in terms of expanded definition provided by S.C. in Banaglore water supply case. So, the employees employed by your respective establishments are under legal obligation to make compliance of various provisions of I.D. Act.

Since, school, canteen/food outlets and hospitals are declared scheduled employment in almost all states, Minimum Wages Act is applicable. It means all your establishments are under obligation to pay at least minimum wages to all their employees as per notifications issued from time to time. It makes no difference whether you make profits out of it or not.

EPF Act on such establishments run by trust is also applicable. However, Charitable trusts not earning any profits through their activities were made exempted vide notification F. No. S.35014/1/2010-SSII dated 14th May, 2010 for a period up to 31st March, 2015. After that there is no such extension of exemption available on official website of EPFO. The schools and hospitals run by such trust were not exempted.

ESI Act is also applicable on activities run by your charitable trust.

Payment of Gratuity act has also been made applicable vide notification SO No. 2218 dated 22.08.1997 under section 1(3)(C) of the POG Act issued by Central Govt to trusts and societies. Payment of Bonus Act will be applicable to such activities only if they are established for the purpose of Profit otherwise will be exempted under sec. 32(c) of the Act.

Industrial Disputes Act 1947 which is applicable on industries and the definition of industry is very wide, and I presume it is applicable on your organisation also, there is sec. 9C which provides about setting up such mechanism. It is mandatory if your organisation employs twenty or more workmen. The details of setting up the mechanism process is:

(1) Every industrial establishment employing twenty or more workmen shall have one or more Grievance Redressal Committee for the resolution of disputes arising out of individual grievances.

(2) The Grievance Redressal Committee shall consist of equal number of members from the employer and the workmen.

(3) The chairperson of the Grievance Redressal Committee shall be selected from the employer and from among the workmen alternatively on rotation basis every year.

(4) The total number of members of the Grievance Redressal Committee shall not exceed more than six:

Provided that there shall be, as far as practicable one woman member if the Grievance Redressal Committee has two members and in case the number of members are more than two, the number of women members may be increased proportionately.

(5) Not with standing anything contained in this section, the setting up of Grievance Redressal Committee shall not affect the right of the workman to raise industrial dispute on the same matter under the provisions of this I.D. Act.

(6) The Grievance Redressal Committee may complete its proceedings within thirty days on receipt of a written application by or on behalf of the aggrieved workman.

(7) The workman who is aggrieved of the decision of the Grievance Redressal Committee may prefer an appeal to the employer against the decision of Grievance Redressal Committee and the employer shall, within one month from the date of receipt of such appeal, dispose of the same and send a copy of his decision to the workman concerned.

1. As per section 13, upon registration, a trade union becomes a legal entity and as a consequence, it gets perpetual succession and a corporate seal, it can acquire and hold movable and immovable property, contract through agents, and can sue and get sued.

2. Under section 15 a registered trade union has a right to establish a general fund.

3. Under section 16, a registered trade union has a right to establish a political fund. Subscription to this fund is not necessary for a member.

4. Under section 17, 18, and 19 a registered trade union gets immunity in certain criminal, civil, and contractual proceedings.

5. Under section 24, trade unions have the right to amalgamate.

6. Under section 28-F, the executive of a registered trade union has a right to negotiate with the employer the matters of employment or non-employment or the terms of employment or the condition of labour of all or any of the members of the trade union and the employer shall receive and send replies to letters and grant interviews to such body regarding such matters. It further provides that the executive is entitled to post notices of the trade union meant for its members at any premises where they are employed and that the employer shall provide reasonable facilities for that.

Aug 2019

Section 59 (1) of the Factories Act provides that worker would be entitled to wages in respect of overtime work at the rate of twice his ordinary rate of wages.
Sub-section 2 of Section 59 explains that ordinary rate of wages means basic wages plus such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of food grains and other articles, as the worker is for the time being entitled to, but does not include a bonus and wages for overtime work.

Supreme Court in the case of Union of India vs. Suresh C. Baskey (1996) 1 SCC 701 has held that “The overtime allowance has to be computed on the basis of the ordinary rate of wages. Sub-section (2) of Section 59 of the Act defines ordinary rate of wages to mean the basic wages plus such allowances as the worker is for the time being entitled to, but does not include the bonus and wages for overtime work. In other words, the ordinary rate of wages is the basic wages plus the allowances to which a worker is entitled for the time being. If a worker is not entitled to a particular allowance the same cannot be included in the ordinary rate of wages”.

Madras High Court in the case of Heavy Vehicles Factory vs. Union of India 2012 (132) FLR 1052 has held that on the basis of the opinion of legal adviser to the Ministry excluding HRA (House Rent Allowance), City Compensatory Allowance, Transport Allowance and Small Family Allowance for the purpose of calculation of overtime has no legal sanctity in the absence of any rule to exclude the aforesaid allowances from the definition of basic wage when the Section excludes only two items viz, bonus and wages for overtime work, would be illegal.

Kerala High Court in the case of V.E. Jossie vs. The Flag Officer Commanding 2011 (131) FLR 332 has held that “we are of the view that Section 59(2) does not authorise payment of extra wages for overtime work including the four items referred above (Reference is about allowances namely HRA, CCA, TA and Small Family Allowance, which are either compensatory or incentive in nature). What is clear from sub-section (1) of Section 59 is that in respect of overtime work, a worker is entitled to wages at the rate of twice his ordinary rate of wages. Sub-section (2) does not define the allowance that should be included along with the basic wages to constitute ordinary wages. In our view, the ordinary rate of wages referred to in the sub-section do not convey any special meaning to it except the literary meaning, which is the pay and allowances paid for the worker. Obviously, allowances like DA form part of wages. Besides ordinary rate of wages, employees are given compensatory allowances and also allowances which are in the form of incentives. These allowances are not uniformly payable to each and every employee engaged for work and on the other hand, these allowances are varying for different employees and eligibility depends on the location of employment”.

In view of the analysis provided by Supreme Court and High Courts in the above cases, only those allowances would be excluded for the purpose of calculation of OT (overtime) wages which are compensatory or incentives in nature. If the HRA is paid uniformly to all employees, which is not compensatory in nature, would be included for the purpose of calculation of OT. It is also to be seen that whether the employee is entitled to HRA as per his service conditions. If that is so, HRA will be included for OT calculation, because it is fixed and not incentive or compensatory in nature.

It is not a minor misconduct. Actually it is about work culture we create in our organization. I am of the view that refusal to work by an employee or disobeying the lawful and reasonable instructions is the most serious and grave misconduct for termination is justified. It is because the employee by resorting to disobeying the instructions and refusing to work is basic breach of employment contract. It also helps encouraging others to follow the same path. If it is ignored, it may bring serious consequences as far as productivity and work culture is concerned. All. HC in the case of Hindalco Pragatisheel Mazdoor Sabha, Renukoot, Mirzapur vs. State of U.P. 1992 LLR 24 has held that the charge against the workman was not that he was negligent in his work. It was of insubordination and disobedience. Where the workman declines to obey the specific orders or instructions of his superiors, it would not be case of mere neglect of work but would be one of willful insubordination or disobedience. Court said that the refusal by the workman of clear instructions was persistent and punishment of termination was not shockingly out of proportion. Bombay HC in the case of Eknath Laxman Parab vs. Alkem Laboratories 2003 LLR 140 has also held that termination would be justified when workman refused to load the material and obstructed, restrained others also to do the job and tried to assault the senior.

If the daily wager female has worked at least 80 days with you, she will be entitled to maternity leave. There is no such distinction provided in the maternity benefit Act. HP HC in the case of State of HP vs. Sudesh Kumari 2015 I CLR 214 has held that in law there is no difference between female regular employee and contractual/adhoc employee. Even the woman employee working on contract is also entitled to the maternity benefit as held by Kerala HC in the case of Rakhi vs. State of Kerala 2018 LLR 601; Smt. Kavita Pant vs. State of Uttrakhand 2017 (152) FLR 796; 2017 LLR467; Smt. Dr. Deepa Sharma vs. State of Uttrakhnad 2017 (153) FLR 11; Mrs. Priyanka Gujarkar Shrivastava vs. Registrar General 2017 Lab IC 1646 (MP. H.C.). Simply because being casual labour, and her uncertainty about joining back after availing maternity benefit, employer cannot dent her benefit.

Madras HC in the case of L. Kannaki vs. Secretary to Government, Chennai, 2012 (133) FLR 48 (Mad. H.C.) has held that a woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard work as it may be detrimental to her and foetus health.

Yes! Deciding about the working hours schedule is the prerogative of management/ employer. The management can adjust or vary the hours of work of the employees within the limits prescribed by law. Nature of work of employees engaged in administrative/ commercial or other related work in entirely different from the nature of work employee’s discharge in manufacturing activities. More over the work of administrative people is not linked with manufacturing activities. Both plant people and administrative people can have different set of work timings. Madhya Pradesh High Court in the case of A.F. Verghese and Others vs. Bharat Aluminium Company Ltd. and Another, 1986 (69) FJR 394 has held that the equality before law does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances on the same position as the varying needs of different classes of persons constitute violation of article 14 of the Constitution. The management can adjust or vary the hours of, work of the employees within the limits prescribed by law. Since the working of the clerical staff in the administrative side are not directly concerned with the working of the plant as they have different sets of working hours, there is no violation of articles 14 or 16 of the Constitution in fixing different working hours for clerical staff.

Jul 2019

Yes! Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Govt. need not wait until such a procedure has been completed. If the Govt. Feels the urgency, it can “at any time” decides to refer the dispute for adjudication without waiting for conciliation proceedings to begin or to be completed as held by S.C. in the case of Western India Match Co. Ltd. Western India match Co. Workers union AIR 1970 SC 1205.

The power under Sec. 10(1) of I.D. Act is independent of and not controlled by the procedure laid in sec. 12(5) of the Act. A reference can be made irrespective of whether any conciliation have at all been initiated or whether they are pending as it is not necessary that the conciliation proceedings should precede a reference except in case of a dispute relating to public utility service as held by Karnataka HC in the case of Sambhu Vaidyan vs. Industrial Tribunal (1961) II LLJ 476. But Guj. HC in the case of Avon Services Pvt. Ltd. (1979) 2 SCR 45 and Adam Ji M. Badri vs. Labour Officer (1981) I LLJ 367; 1981 Lab IC 78 has held that even where the dispute is related to public utility service, Govt can make a reference of the dispute without waiting of the report of conciliation Officer. A reference can be made irrespective of any report of the Conciliation Officer.

No! It will not be treated as new factory. And you are not required to obtain one more licence for the new shed. Yes, You are required to obtain fresh drawing plans approval from the factories Department for the new construction. It will be amendment in the original factory drawing approved earlier by the department authorities. You will also be required to amend your existing factory licence in terms of power usage and increase in number of workers.

It is because as per definition provided under sec.2 (m) of factories Act, Factory means any premises including precincts thereof. S.C. in the case of Ardeshir H Bhiwandiwala vs. state of Bombay ( Now Maharashtra) 1961 II LLJ 77 has held that the word premises used in the definition is a generic term meaning open land or land with building or building alone. Gujrat HC in the case of Swastik Textile trading Company Ltd. Vs. Union of India 1965 II LLJ 254 has also held that the expression “premises” is a wide expression and takes within itself not merely a building but a series of building also. The true test for the purpose of determining whether a particular place is or is not a “premises including precincts thereof” is whether the place is such as is defined by metes and bounds. It cannot be disputed that the aforesaid expression does not merely include a building, but also the place surrounding it, such as the compound. The aforesaid expression, therefore, takes within its connotation not merely the building, but also the open area or the compound round about that particular building.

Yes. It will sustain. A person employed in hotel or in any commercial establishment registered under the respective shops Act of the state, falls within the purview of “employee” under shops Act as he is employed wholly or principally in or in connection with the establishment. Raj. HC in the case of G.M. Lake Palace, Udaipur vs. Ranjit Singh 1993 II LLJ 1098 has held that Steward cum dining supervisor fell within the definition of employee under Shops Act as there is no occasion to look into the extended meaning given to the term “employee” under the later part of the provision including even those clerical or other staff of a factory or industrial establishment who fall outside the purview of the Factories Act.

Court also held that there is no repugnancy between the State shops Act and Industrial Disputes Act. Where the central legislation is not intended to be exhaustive, State is free to enact in the same field providing for additional matters. Even if there is a conflict between state shop Act and the Industrial Disputes Act, Shop Act would prevail.

Sec. 20 of ID Act has the answer of your question. It says that conciliation proceeding is deemed to have commenced when the notice of strike or lockout is received by the conciliation officer in terms of Public utility service under Sec. 22(1) of the Act. The proceedings are deemed to be concluded on the date either when the settlement is signed by the parties or if not settled, the failure report of the conciliation officer is received by the appropriate Govt. Sec. 12 (4) of the Act casts a duty on the conciliation officer to send a report to the Govt. after closure of investigation, about the steps taken by him to settle the dispute and reasons why settlement could not be arrived at. Supreme Court in the Case of Lokmat Newspapers Pvt. Ltd. vs. Shankaraprasad 1999 II LLJ 600 has discussed and analysed these provisions. Court has held that a mere look at sec. 20 of the I.D. Act shows that in case of public Utility services referred to in Sec. 22 (2) , the conciliation proceedings shall be deemed to have commenced on the date on which a notice of strike or lockout is received by Conciliation Officer. That deals with the commencement. Sec. 20 (2) talks about the conclusion of conciliation proceedings. The legislature has created a legal fiction. It says that in case where no settlement is arrived at, the proceedings shall be deemed to have concluded when the failure report is received by the Appropriate Govt. So the whole period between commencement and receipt of failure report by Govt. would be deemed when the proceedings are pending and Sec. 33 of the ID Act would be in operation.

Occupier! When there is no factory manager appointed and only occupier is declared, in case of violation of provisions of Factories Act, occupier will be held responsible. Allahabad High Court in the case of Kamal Kishore Jhunjhunwala vs. Prescribed Authority Under Payment of Wages Act, 1976 (32) FLR 345 has held that in the absence of a manager designated under Section 7 of the Factories Act, the responsibility of payment of wages will be of the occupier of the factory. The definition of the occupier itself indicates that it is he who has the ultimate control over the affairs on the factory. In the same way, in case of any violation of provisions of Factories Act, when there is no manager, occupier will be responsible.

Jun 2019

No! A charge-sheet issued to a workman cannot replace the need of enquiry when not responded by employee. When a charge-sheeted employee fails to submit his explanation to the charge-sheet or the submission of a reply, even if it is written in the charge-sheet that in case of failure to submit the reply to the charges, it would be deemed as acceptance of charges as true, and thus for all practical purposes tantamount to a ‘no contest’ would not be sufficient or adequate proof of the guilt of the employee. In one case- Sri Ram Verma vs. Distt. Asstt. Registrar 1987 (54) FLR 715, while submitting the reply, the workman sought the inspection of certain documents. The employer directed the branch manager for compliance with a copy to the employee by registered post. The employee, however, managed to avoid the service thereof and the notice requiring explanation of the employee was published in a weekly hindi newspaper but again there was no response from the employee. The employer passed a resolution to the effect that the employee has failed to avail the opportunity afforded to him to contest the charge-sheet and rebut the charges hence he should be dismissed from service. The High Court while holding that charge-sheet cannot be a substitute for an enquiry, directed the employer to proceed further in respect of disciplinary proceedings from the stage where the case was before the said resolution was passed.

No! Sec. 2A (3) of Industrial Disputes Act provides the time period of three years for submitting the claim before the labour court from the date of discharge, dismissal or termination. As you have said that workman has submitted the claim challenging the termination after period of three years from such date of termination, such claim is not maintainable and labour court has no jurisdiction to adjudicate such time barred industrial dispute. Because provisions of limitation Act are not applicable in matters of Industrial disputes. Labour court even does not have powers to condone the delay in submitting the claim by challenging his termination. Kerala HC in the case of ITC Infotech India Ltd. Vs. Venkataramana Uppad 2016 LLR 477 has held that Sec. 2A (3) clearly indicates that the claim petition in case of discharge, dismissal or termination is to be filed before expiry of three years from the date of termination. Sec. 2A of the Act is mandatory in view of its language being plain and unambiguous. S.C. in the case of Naziruddin vs. Sitaram Agarwal 2003 SCW 908 has held that court cannot add or subtract the words to a statute or read something into which it is not there. It cannot rewrite or recast legislation. Real intention of the legislation must be gathered from the language used hence, condoning delay is not justified in view of Sec. 2A (3) of the Industrial Disputes Act.

Since you have retired him as per terms of appointment after completing retirement age and he has also accepted the same without any objection or protest, the matter stands in your favour. Retirement is different from discharge, dismissal or termination. So first of all, such claim petition of retired employee under sec. 2A is not maintainable. Secondly retired workman does not fall under the definition of the workman as per sec. 2(s) of the Industrial disputes Act. To take benefit of sec 2A, the person has to qualify himself as workman. Calcutta HC in the case of Hindustan Lever Ltd. Vs. IV Industrial Tribunal 2007 II CLR 97 has held that retired employee is not workman so dispute raised by such person cannot be termed as industrial dispute. Plain reading of Sec. 2(s) of I.D. Act would indicate that a retired person was not intended to be included in the said section.

Moreover, the dispute of legality and justifiability of an employer on reaching the age of superannuation under the rules is not one relating to termination or retrenchment nor it is a dispute connected with or arising out of termination of service or retrenchment. It cannot be deemed to be an industrial dispute coming within the scope of Sec. 2A. Orissa High Court in the case of Gauri Charan Kanungo vs. Industrial Tribunal (1978) I LLJ 276; 1977 Lab IC 1154 has held that the reference specifically raising question regarding validity and justifiability of the order of superannuation which is different in nature and complexion from question of termination of service or retrenchment, cannot be a subject matter of a reference at the instance of individual employee.

No! Under Industrial Disputes Act, The whole scheme of resolving the dispute revolves around the basic pre condition of employer employee relationship. Unless the person is a workman having employer employee relationship cannot raise dispute against company in which he has not been appointed. It is the existence of jural relationship which decides the jurisdiction. The court cannot assume this crucial fact. S.C. in the case of Punjab National Bank vs. Ghulam Dastagir (1978) I LLJ 312; 1978 Lab IC 519 has held that a driver engaged and paid by an officer of the company in an industry is not a workman who can raise the industrial dispute. S.C. in the case of Puri Urban Co-Op. Bank vs. Madhusudan Sabu (1992) II LLJ16 has also held that only a workman can invoke the machinery of the Act.

No! The word “employment and non employment” are of the widest amplitude in the definition of Industrial dispute under sec. 2 (k) and have been put in juxta-position to make the definition thoroughly comprehensive The words “in connection with” widen the scope of the dispute and do not restrict by any means as held by S.C. in the case of Western India Automobile Association vs. Industrial Tribunal (1949) I LLJ 245.

Dispute regarding the refusal to employ the person who were promised to be employed is not connected with the employment or non employment within the meaning of industrial dispute as defined in sec. 2(k) of the I.D. Act as held by S.C. in the case of Workmen of Nilgiri Co-Op. Marketing Society vs. State of Tamil Nadu (2004) II LLJ 253. A person who was merely offered appointment but was not allowed to join the service by not accepting his joining report, such a person is not a workman so as to be entitled to raise a dispute as “employer employee relation” is absent. S.C. in the case of Bongaigaon Refinery and Petro Chemicals Ltd vs. Samijuddin Ahmed (2001) II LLJ 1149 has held that reference of such dispute by Govt. was not required or warranted.

May 2019

No! in case of illegal termination , now automatic reinstatement with back wages in no more a rule. S.C. in the case of Raj kumar vs.jalgaon Minicipal Corporation 2013 LLR305 has held that reinstatement is not must for every sacked worker. Calcutta Hc in the case of Bata India Ltd. Vs.Fourth I.T West Bengal 2011 LLR 68 has held that even in the case of illegal termination reinstatement with back wages is no longer a rule.When the termination of a workman is set aside, his reinstatement either with or without back wages is not a rule of thumb and can be deviated by the courts depending upon the merits of each case. There are some of the cases where High Courts have set aside the reinstatement of a workman as awarded by the Labour Court or the Industrial Tribunal. Madras HC in the case of M.V. Sivaji vs. Godrej and Boyce Manufacturing Co. Ltd., Madras and another, 1998 LLR 483 has held that reinstatement of a typewriter mechanic dismissed for forging signatures of the customers is liable to be quashed. In another case Kerala HC, S. Raveendranath Kamoth vs. Presiding Officer, Labour Court and another, 1998 LLR 632 had held that reinstatement will not be appropriate relief to a workman who has been guilty of late coming, neglecting his duties and abusing the Director of the Company. Also reinstatement of a workman guilty of stoppage of work and assaulting the Asstt. Manager and Canteen Contractor has been set aside by the Madras HC even when his past record has been satisfactory. In another case, the Delhi HC, India Tourism Development Centre vs. Presiding Officer, Labour Court and others, 2000 (85) LLR 62 has held that the reinstatement of a workman guilty of habitual absence from duties will not be justified. In addition to above, there are many other judgments oft he Supreme Court and the High Courts where by the reinstatement has been held not to be justified. More over, Now the courts have started awarding lump sum compensation in place of reinstatement and back wages.

Apr 2019

The officer/person who has ultimate control over the affairs of the establishment will be the principal employer and will be responsible for compliance of the Act and the Scheme thereto. In the case of Regional Director ESIC vs. Fact Engineering works 2003 LLR 619, Kerala HC has held that an officer or the manager of the factory, who were at all material times persons in charge of and were responsible to the company for the conduct of its business and as such, they were the principle employers in respect of the factory of the company within the meaning of Section 2(17) of the Employees’ State Insurance Act.

If you feel, that there were no sufficient reasons to declare lockout and court may declare it illegal, there is probability of awarding full wages to employee for the period of lock out as held by various High courts including Delhi HC in the case of Hotel Hans Pvt. Ltd. vs. Delhi Admn. 1991 LLR 191. However, there is another case where Bombay HC in the matter of General Kamgar Union vs. Acme Bobbins and shuttles P Ltd. 1982 II LLN 700 has held that where the lock out is held illegal, payment of full wages should be normal rule. However, In cases, where the workmen found to have misbehaved during the period of lock out, which was also held to be illegal, then the proper course is to hold that the blame must be apportioned half and half between the two parties and consequently, the workmen should be held entitled to half wages for the period of lock out.

Yes. The Labour court or the Industrial tribunal is empowered to set aside the ex-parte award provided there is a sufficient cause for non-appearance of a party to the dispute. Bombay HC in the case of Obedur Rehaman Sheikh vs. Suresh J. Khade 2001 LLR 648 has held that ‘sufficient cause’ for setting aside Ex-Parte award be given a wider meaning to ensure justice Delhi HC in the case of J. E. International vs. S. K. Minocha 1997 LLR 262, has held that service of notice is important question. Even after expiry of 30 days of award publication, court should re examine the question of service of notice after affording opportunities to parties. S.C. in the case of Sangham Tape Company vs. Hans Raj 2004 LLR1098 has held that labour court can set aside the Ex-parte award only when application is moved within 30 days of its publication. Delhi HC in the case of V.P. Sharma vs. Polc-X 2000 LLR 44 has held that there is no bar for the high Court to set aside the ex- Parte award even after expiry of 30 days of publication. S.C. in the case of Kapra Mazdoor Ekta Union vs. Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd. 2005 LLR 765 has held that Labour court does not become Functus Officio and thus empowered to recall the award till the expiry of its 30 days of its publication.

Yes! The law is very well settled that right to get minimum wages is included in the right to life hence its non payment would amount to breach of article 23 of the constitution as held by Jharkhand HC in the case of Mohiuddin Khan vs. State of Jharkhand 2012 LLR (SN) 1119. An employer must pay the wages even when he is not in a position to pay the same as held by Delhi HC in the case of Tool Room & Training Centre vs. Delhi Industrial security Guards 2011 LLR 827. S.C. in the case of Kapila Hingorani vs. State of Bihar 2003 LLR 628 has held that a right to carry on business is subject to compliance of constitutional obligations and as such financial stringencies may not be a ground for non payment of wages to the employees. AP High Court in the case of Andhra Pradesh Hotels Association vs. Govt. of Andhra Pradesh 2002 LLR 1122 has also held that If an employer can’t pay minimum wages, he has no right to run the industry.

As far as your second question is concerned, employer is not liable to pay VDA if the wages are more than minimum wages. More particularly, when the total wages are more than the revised minimum wages, then there is no liability to comply with the revised wages or VDA as held by AP High court in the case of Ramakrishna Pharmaceuticals vs. State Authority under Minimum Wages Act 2002 LLR 988.

Yes! A part-time employee is very much covered under the EPF Act. The Employees’ Provident Funds Act makes no distinction between part-time and whole time employee and as such it could not be held that the EPF & MP Act does not apply in respect of a part-time employee. SC in the case of Ahmedabad Mfg. and Calico Printing Co. Ltd. vs. Ramtahel Ramanand 1972 Lab IC 864 has held that when a sweeper is engaged for twice or thrice a week, a night watchman who kept watch on other shops in the locality and a gardener who came for work ten days in a month will be deemed as employee in order to attract the applicability of the EPF Act. Raj. HC in the case of Railways Employees Co-operative Banking Society Ltd vs. Union of India 1980 Lab IC 1212 has held that a part time employee engaged in a work incidentally connected with the work of establishment is an employee under the EPF Act.

No! It is the liability and duty of the occupier of the factory owned by a Company to comply with the provisions of the Factories Act and not of the Chairman or Managing Director. In one case, the Inspector of Factories prosecuted chairman and also the Managing Director of the Company for non-maintenance of leave register with wages register and not displaying notice of period of work. High Court decided that the obligation to maintain the aforesaid registers is of the manager or the occupier and manager as held by Bombay HC in the case of Shyam Madanmohan Ruia vs. State of Maharashtra 2000 LLR 387. The relevant provisions of the Factories Act do not cast the liability on either the Chairman or the Managing Director nor even on the Company. In the case of State of Maharashtra vs. Sampatlal Mansukh Bothara 1992 LLR 151, Bombay HC has held that obligation to maintain registers is of manager and not of occupier. In this respect prosecution of occupier for this violation is illegal.

There are variety of factors such as unity of purpose, the place of business being common, several documents being common such as letter heads, telephone numbers etc. being the same.

Though there cannot be a straight jacket formula but following parameters can be kept in mind to assess the clubbing of two or more units. The case of Andhra Pradesh Cement Co. Ltd vs. RPFC 1988 (2) LLJ 453 can also be referred. The parameters are as follows:.

1. Geographical proximity (i.e. vicinity, bonafides in keeping the units apart).

2. Source of finance (i.e. whether source of finance is same).

3. Unity purpose (i.e. production and business, inter-related business).

4. Unity of ownership (i.e. management & control).

5. Unity of labour (i.e. transferability of employees).

6. Supervision and control (Whether managed by same person).

7. Service conditions of workmen (i.e. rules applicable for employment contract, if any).

8. Functional integrality (i.e. integrated whole-part and parcel of main unit, primary and dominant activity and subsidiary, minor, incidental).

9. General (i.e. books of accounts/ similarity of nomenclature).

Feb 2019

Yes! you can do. The facts as you have narrated indicate that workman is still on extended probation. While terminating his services, if you cast any stigma or charge against him, then you will be required to initiate disciplinary action and only after establishing the misconduct, you may terminate him, even though he is on probation. But, if while discharging, there is no stigma, your action will not be suffering from any illegality. You will not be required to undertake any inquiry. Punjab & Haryana HC in the case of Jitender kumar vs. P.O. Industrial tribunal, Gurgaon, 2014, LLR985 has held that the management will be within its right to discharge the workman from his services in view of his conduct during extended probation period without any stigma. In this case the probation period was extended with the advice to improve his work and conduct. Court held that in such case no retrenchment compensation or notice pay is to be paid to the probationer while terminating the probationary services. Court also held that no regular domestic enquiry is required while effecting termination of services of probationer when the termination is neither stigmatic or against the conditions of employment.

Supreme court in the case of Pavenendra Singh Verma vs. Sanjay Gandhi PGI of medical Sciences and another (2002) SCC 520,Parshotam Lal Dhingra vs. Union Of India (1974)2 SCC831 have held that the employer has to satisfy himself as to the competence of the probationer before confirmation. The language of the discharge order of a probationer should not contain any charge or commission of misconduct. It should be a simple discharge letter without casting any aspersion.

You have not disclosed the details of incentive scheme and terms of agreement but whatever, you have indicated, it is apparent that your incentive amount will attract PF contribution. Because you have agreed in the agreement that a minimum amount of incentive will be paid to all workmen, which indicate that it has no link with extra performance or output. Gujrat HC in the case of Deepak Nitrite ltd vs. Regional Provident Fund Commissioner 2017 LLR 489; 2017 II CLR816 has clearly provided the characteristics of genuine and non genuine incentive schemes. Any incentive scheme having following characteristics would fall within the definition of Basic wage of EPF Act.

(i) If the production incentive scheme does not expressly prescribe the minimum level of production, required to be crossed for becoming eligible for production incentive.

(ii) If amount of production incentive is not paid for additional or more production but it is paid for entire production.

(iii) If there is no linkage between payment of incentive and extra work input and output.

(iv) If the Scheme guarantees minimum incentive amount irrespective of level production to all workmen and irrespective of presence or absence of the concerned workman.

(v) If the amount of production incentive is payable to all workmen without having regard to the individual output/input or attendance or absence.

(vi) When the ESI contribution is deducted from the amount of production incentive;

Any incentive/production incentive would not be a part of ‘basic wages’ as defined under Section 2(b) of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 if it is having the following characteristics:-

(i) If under the Production incentive or bonus scheme, the payment is made to those who give ‘extra output’ i.e., more than normal level, achieved by extra input resulting into extra output.

(ii) If it is paid for superior performance in addition to wages.

(iii) If such a payment is having direct nexus and linkage with degree of extra work resulting into more output.

(iv) If the workman who does not contribute in giving extra output due to any reason, cannot earn any incentive or paid any extra amount.

(v) If the incentive, as paid, varies in proportion to extra production or output, depending upon extra input and output.

(vi) When the ESI contribution is deducted from the amount of production incentive

Interim relief paid to an employee falls under the definition of wages U/S 2(22) of ESI Act. Supreme court in the case of Employees State Insurance Corporation vs. Manglam publications 2017 III CLR 480 has held that such amount cannot be treated as ex-gratia payment.

No! you are not liable to pay any ESI contribution in respect of employees of that shop. Madras HC in the case of Employees State Insurance Corporation, Chennai vs.I.T.C.Ltd. 2017 III CLR 435 has held that workers working in shop of third parties under licence from hotel management within the premises would not fall under the definition of Sec. 2(9) of ESI Act and cannot be termed as employee, because there is no supervision or consistency of vigil by the principal Employer.

Such accident will be deemed as an accident during and in the course of employment and you will be liable to pay compensation in such matter. Gauhati HC in the case of management of Hathikoli Tae Estate vs., Smt. Rita Bhumij 2017 LLR 449 has also held that such an accident where tree fell on an employee while coming out of the bunglow of the compound causing fatal injury while on duty, will be deemed as accident during and in the course of employment. Employer cannot avoid paying compensation under the guise of “act of God”. Every incident does not operate as an excuse from liability. Court also held that there is no such provision in the Act by which the employer can be exempted from paying the compensation where he has employed his kin in his place on compassionate ground. Supreme Court in the case of Divisional controller KSRTC vs. Mahadevi Shetty 2003 (3) T.A.C. 284, has also held in the same direction.

Jan 2019

Section 13 of POSH Act states that on completion of enquiry the internal committee shall provide a report of its findings to the employer… It clearly indicates that the law talks of only one report and not more than one, which means all members of the internal committee have to make concensus on the findings of the inquiry and prepare one report only. Members have no scope in law to submit their independent reports. Bombay high court in the case of Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University, 2014 SCC Online Bom. 814 have also held that when law envisages submission of its findings by the inquiry committee, an individualistic appreciation would not be sufficient to meet the legal requirements. A combined report by all the members on the inquiry committee is a must.

Law in this respect implies a singular number and therefore, a combined single report is a must, because section 13 speaks of IC as one entity. It is expected that IC has to function as a single body. In your case it appears that there is absence of spirit of co-operation between the IC members. Your both reports are liable to be discarded being unsustainable.

Yes. Workman, even after receiving the full and final payment of retrenchment, can challenge his termination and raise industrial dispute. There is no bar in law which may prevent workman to challenge the management order after receiving the payment. Allahabad high court in the case of Umesh Chandra Pandey vs. State of UP, 1991 LLR 638 has held in the same direction. Supreme Court in the case of Nar Singh Pal vs. Union of India, 2000 LLR 577 has also held that even after receiving the compensation and encashment of cheque towards full and final payment will not debar the workman from challenging the justification of his retrenchment.

The completion of 240 days has to be in the year preceding the termination of the employee to avail the benefit under section 25F of the ID Act. Continuous service has been defined in section 25B of ID Act. For the purpose of computation of period of 240 days in a year, it is not necessary for the employee to be in service of the employer for the whole one year and secondly that the period of 240 days may not be period of continuous 240 days and it is sufficient if total number of 240 days is calculated with reference to a period of 12 months. In other words the employee should be under service of total number of any 240 days in a period of continuous 365 days. For example if an employee has worked for different small periods in last 2-3 years, then his 240 days has to be counted back from the last day of working in total 365 days of such small periods. Bombay high court in the case of Union of India through Divisional Railway Manager, Mumbai vs. Jairaj N. Shetty, 2003 LLR 1142 has held in the same direction. Supreme Court in the case of Surendra Kumar Verma vs. Central Govt. Industrial Tribunal, AIR 1981 SC 422 has also held that continuous service does not mean that it should be continously from day to day during the year but it can be during a period of one year and what is necessary is to ascertain whether in a year the employee has worked for 240 days.

Suspension allowance is to be paid @50% on basic wages and other allowances which means total salary. Because when a person remains on leave, he is paid full salary of that day including basic and allowances. Bombay high court in the case of Association of Engineering Workers vs. Permanent Magnets and another, 1999 LLR 1169 has also held that house rent allowance will be taken into consideration for the purpose of calculation of suspension allowance.

Yes! You can very well remove his name from the muster roll from 1.12.18 and send his full and final settlement at his address by Registered post. There is no impact of his ESI medical leaves during this period because his last day of employment was prefixed and automatic. Section 73 of ESI Act prohibits an employer to dismiss, discharge or reduce or otherwise punish the employee during the period he is in receipt of sickness benefits or maternity benefits. Your case does not fall in any of the above categories. Supreme court in the case of Buckingam & Karnataka Company Limited vs. Venkatiah, 1963 (2) LLJ 638 has held that if the termination of service of an employee follows automatically either from the contract or from standing order, section 73 from the ESI Act does not apply in such case even if the employee remained sick during the last days of his service and was in receipt of sickness of disablement benefit. Rajasthan high court in the case of Raj Singh vs. Judge, Labour Court, 1996 LLR 61 has also held that there will be no prohibition of section 73 of ESI Act when the termination of an employee is automatic.

Principles of natural justice demand fair opportunity to be given to the workman while conducting enquiry against him on account of alleged misconducts. It is also established that enquiry is to be conducted as per terms of employment or service rules/standing orders applicable or any award or agreement. In your case you have followed the model standing orders because it is applicable on your establishment. It is also established that workman has no inherent right to be represented by advocate or trade union leader. Since inquiry officer has not accepted the demand of workman of representation either through advocate or trade union leader or co-worker in the absence of provision for such assistance in model standing orders, there is no such illegality is committed. Madras high court in the case of Muthuraman S. and others vs. Presiding Officer, Labour Court, Madurai, 2003 LLR 1049 has also held that such denial of representation in enquiry when there is no such provision in the model standing orders will not vitiate the enquiry. Also the enquiry will not be invalid on the ground that copy of the enquiry proceedings were not furnished to him to each day of hearing since there was no such rule of order in the model standing orders. You can also refer Board of Trustees of Port Trust Bombay vs. Dilip Kumar, 1983 LIC, 419 and Derby Textiles Limited vs. Mahamantri, Derby Textiles Karamchari, 1991 LLR 329 (Raj. H.C.)

Jun 2016

The Conciliation Officer has only administrative powers and not the adjudicatory powers. He cannot refuse to refer a dispute simply on the ground of decision taken by him. In your case it may be correct that teacher is not a workman but on the basis of this view Conciliation Officer has no power to refuse to refer the dispute and reject the application of the terminated teacher. You can raise this plea before the appropriate labour court. Conciliation Officer cannot assume the adjudicatory powers of the court. Allahabad High Court in the case of Riyan International School Karamchari Sangh vs. State of U.P. 2008 LLR 1261 has also held in the same direction.

No! Section 25B of the ID Act does not contemplate any such basis of calculation where double duty in single day is to be counted as two days for the purpose of calculation of 240 days working of continuous service. Madras High Court in the case of Tamil Nadu State Transport Corporation vs. N. John Henri Raj 2008 LLR 1208 has held that while calculating 240 days in preceeding calendar year, the double working of a workman on a day will not be taken into consideration since it is only for the purpose of overtime payment and not for reckoning of continuous service. So in your case you appears to be legally sound but it may be your responsibility to produce evidence in the court that the workman has not completed 240 days of continuous service.

May 2016

No! in case of illegal termination , now automatic reinstatement with back wages in no more a rule. S.C. in the case of Raj kumar vs.jalgaon Minicipal Corporation 2013 LLR305 has held that reinstatement is not must for every sacked worker. Calcutta Hc in the case of Bata India Ltd. Vs.Fourth I.T West Bengal 2011 LLR 68 has held that even in the case of illegal termination reinstatement with back wages is no longer a rule.When the termination of a workman is set aside, his reinstatement either with or without back wages is not a rule of thumb and can be deviated by the courts depending upon the merits of each case. There are some of the cases where High Courts have set aside the reinstatement of a workman as awarded by the Labour Court or the Industrial Tribunal. Madras HC in the case of M.V. Sivaji vs. Godrej and Boyce Manufacturing Co. Ltd., Madras and another, 1998 LLR 483 has held that reinstatement of a typewriter mechanic dismissed for forging signatures of the customers is liable to be quashed. In another case Kerala HC, S. Raveendranath Kamoth vs. Presiding Officer, Labour Court and another, 1998 LLR 632 had held that reinstatement will not be appropriate relief to a workman who has been guilty of late coming, neglecting his duties and abusing the Director of the Company. Also reinstatement of a workman guilty of stoppage of work and assaulting the Asstt. Manager and Canteen Contractor has been set aside by the Madras HC even when his past record has been satisfactory. In another case, the Delhi HC, India Tourism Development Centre vs. Presiding Officer, Labour Court and others, 2000 (85) LLR 62 has held that the reinstatement of a workman guilty of habitual absence from duties will not be justified. In addition to above, there are many other judgments oft he Supreme Court and the High Courts where by the reinstatement has been held not to be justified. More over, Now the courts have started awarding lump sum compensation in place of reinstatement and back wages.

Feb 2016

The Conciliation Officer has only administrative powers and not the adjudicatory powers. He cannot refuse to refer a dispute simply on the ground of decision taken by him. In your case it may be correct that teacher is not a workman but on the basis of this view Conciliation Officer has no power to refuse to refer the dispute and reject the application of the terminated teacher. You can raise this plea before the appropriate labour court. Conciliation Officer cannot assume the adjudicatory powers of the court. Allahabad High Court in the case of Riyan International School Karamchari Sangh vs. State of U.P. 2008 LLR 1261 has also held in the same direction.

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