Labour case related queries
skg
(Querist) 12 November 2009
This query is : Resolved
Dear legal experts
Please proide your useful advice on the following queries related to procedures
followed by a labour court:
From start and upto end What are the stages in a labour case before the award is declared
and nowdays what is the maximum time limit given in our law to finalize a labour case?
What procedure a workman is required to adopt when he get a less salary job after 2 years
of fighting his reinstatement case of illegal termination and the case is still in
progress in the labour court?
Should he withdraw his illegal termination case and file it for recovery of his full salary
and other benefits like retenchment compensation as per sec 25F upto the period he remain
unemployed or owing to his getting less salary he can still continuue the case of
reinstatement with full backwages and consequential benefits?
rgds
skg
Raj Kumar Makkad
(Expert) 12 November 2009
It deptnds upon the facts of the case whether the termination relief to be withdran or not and whether the case for recovery of balance salary/wages be continued nor not. Your counsel is the best judge in this matter. So far time is concerned, there is no limit. As your case is already pending before labour Court so some of the steps it must have crossed. The procedure is all civil cases is almost same. written statement, rejoinder, issues, evidence of the plaintiff/petitioner, evidence of the respondent and argument.
H. S. Thukral
(Expert) 12 November 2009
Kindly elaborate your query. Do you want to say that your employer wants to re-employ you on a job with lesser salary?
skg
(Querist) 12 November 2009
Dear Mr. Thukral,
As you desired the situation is that In order to survive and support the livelihood of him and his family the workmen keep on
trying for other job and his situation of not getting job for 2 years was exploited by
other employers on the pretext that "he has been terminated whether legally or
illegally","there is breakup in his job" and "sitting idle has make his knowledge less in
his areas" and realizing that this situation is also harming his future growth he finally
surrendered and agreed to work on low salary with other employer?
H. S. Thukral
(Expert) 12 November 2009
You can continue with your case in the labour court. The issue may come after reinstatement is Awarded and the question of back wages are compensation arises. You donot have to disclose the factum of your employment to any one particularly at this stage. Procedure is almost same in labour court as any in civil court. There is no time limit but with a proper follow up and avoiding and protesting on un-necessary adjournments. Regarding other points on retrenchment comp. etc pl/ let me know whether it is termination or dismissal.
skg
(Querist) 12 November 2009
Dear Mr. Thukral
You can better judge from the following facts whether this a retrenchment or termination or dismissal.
Initially the workmen was verbally told to resign on his own and in order to obtain his
resignation all his dues like f/f payments gratuity etc. were held and he was not allowed
to resume his duties.When after several telephonic discussion his dues were not settled he
asked for written reasons for his termination and finally he got termination letter from
his employer after 3 months but without any payments and when he asked about his dues he
was again verbally told on telephone that he has to still give his resignation.
Frustrated he hired a lawyer who sent a legal notice under ID Act to his employer
mentioning all these facts.In reply to his notice the employer denied all the allegation
and created new story after consulting their lawyer that he was not a workmen as he was
performing managerial functions and also his wages were more than that specified in Section
2(s).They also created a back date fake letter in which they mentioned that he has been
informed of his termination a month ago in a meeting and hence now after 1 month of that
meeting they are terminating the employee on account of surplusage through this letter
delivered to him by hand in the evening of his termination date in presence of two
witnesses where he has been offered 1 month basic pay in lieu of notice as per conditions
written in his appointment letter.They further mentioned in their reply that the employee
refused to accept that hand delivered termination letter by saying that he will give his
resignation lateron and never came to collect his dues.
The court case began and after two or three dates the employer sent the f/f due and cheques
of gratuity (note that after 15 months of his termination date he received these) at the
employee address mentioning that since you have requested for that hand delivered letter we
are now enclosing the same along with your unclaimed dues.
In their written statement the employer has requested the court to dismiss the case as this
case is not under the jurisdiction of labour court as he is not a workmen therefore not
entitled to any relief under ID Act and secondly due to loss and recession he become
surplus to them and hence he has been terminated without any misconduct.
Now the workmen's lawyer is preparing the rejoinder.
Please give your valuable suggestions/advice which can be added in the rejoinder.
H. S. Thukral
(Expert) 13 November 2009
Your case is of a termination simplicitor. If you are not a workman as defined in the ID Act then in most of the cases the court lean in favour of employer holding that the termination is asper contract. Yet one can challenge it on various grounds before a civil court and claim damamges for breach of contract. However if the employee is a workman under section 2(s) of the ID Act which is question to be determined on the basis of jobs which an employee performs, the termination become illegal in view of the provisions of section 25F of the Act beside others. You have approached the labour court now. Your lawyer would know how to bring you in protection of ID Act but the Labour Court gets jurisdiction only if you are a workman. Once that issue is settled in your favour, termination shall most probably be illegal. You can continue with the dispute because you can not claim retrenchment until you are declared a 'workman'. Keep this fact hidden regarding your employment. The onus is on the employer to prove that you were gainfully employed during the period to avoid payment of back wages.
skg
(Querist) 13 November 2009
Thanks Mr. Thukral for your valuable opinion.
One thing I would like to ask is that the act of employer to hold dues like f/f and even gratuity payment for 15 months after the so called termination as per their framed backdate termination letter(which is also not due to misconduct as admitted by them in their ws)is not a sufficient proof/evidence for court that there is something "Daal mein kaala" and the employer first forced him to resign and when he approached the court converted it to a legal termination case by declaring in ws that he was performing managerial functions.
Can he be punished for criminal offence by holding his Gratuity and not giving him even minimum bonus till date which are statutory dues that can not be held so long under ordinary conditions when termination is without any misconduct
H. S. Thukral
(Expert) 14 November 2009
Once termination is declared illegal the court can award you back wages and continuity of service and in that case you shall be enitiled to all the benifits. But once the employer action is challenged, without proving it untenable, you can not claim benifits attached to your employment. Claiming gratuity at this stage is not advisable. Discuss with your lawyer on moving an application for interim relief.
