Jurisdiction
Reshma K
(Querist) 14 January 2010
This query is : Resolved
I am confused as to which cases come before labour court and which before industrial tribunal. Can you pls explain the difference between labour court and industrial tribunal.
Also in the case of dispute of a software employee regarding dismissal, retrenchment, which court does he approach, since the industrial disputes act deals with Workman and the software employee is not a workman. Can you pls provide some comprehensive details on this.
H. S. Thukral
(Expert) 15 January 2010
There are schedules with the ID Act providing the matters to be decided by Industrial Tribunal and Court. After going through the list of matters you can see the jurisdiction of both. In case of dismissal a workman can approach the labour court directly where it is provided or through the appropriate government by way of a reference. The labour court shall decide when objected to by the employer, the status of the claimant as to workman under the ID Act. If LC decides against it, then it is not vested with the jurisdiction to proceed further on merit of termination order.
Guest
(Expert) 15 January 2010
There are two methods for a case to reach either Labour Court / Industrial Tribunal. The First method is by way of reference from the Labour Department and the second method is by directly filing the case in the concerned Labour Court. For filing a case directly in the Labour Court, only dismissal/ termination / retrenchment cases can be filed directly, that too only in some States. For example in Delhi, those cases can be directly filed in the Labour Court and not in the Industrial Tribunal. In respect of reference cases, depending upon the subject matter and number of workmen involved, the State Government (Labour Department) refer the cases either to Labour Court / Industrial Tribunal. Whereever, the matter will be referred, we will present our case before that particular forum. In the Industrial Disputes Act, 1947, there are schedules. In the Schedule, it has been clearly mentioned which subject matters have to go to Labour Court and which matters have to go to Industrial Tribunal and refer them and you will get better idea.
In the case of software employee termination (if he comes within the definition of workman), if that particular State allows direct filing, then the case has to be filed in Labour Court.
Reshma K
(Querist) 15 January 2010
Thanks for the replies.Mr. Prabhkar, can the software employee come within the definition of workman.
B K Raghavendra Rao
(Expert) 15 January 2010
Software employee drawing salary more than what is prescribed in the Industrial Disputes Act does not come within the purview of labour court. Normally the salary of the software employees exceed this limit.
He has to file a civil suit (Original Suit) under Order 7 Rule 1 of Civil Procedure Code.
H. S. Thukral
(Expert) 16 January 2010
Software employees would not come under the definition of workman not because of salary as wrongly suggested by Sh. Rao but because the work they perform involves innovation, independence and is not covered by the types of work mentioned in section 2(s) of the ID Act. However there is no hard and fast rule which can be applied by saying that a particular person is a software employee hence not a workman within the meaning of Industrial Dispute Act. As I said earlier, it is a question of fact and law and it is to be seen what are the main duties assigned to an employee. An employee designated as Accounts Officer can be a workman or not depending upon the functions performed by him. I repeat salary /designation is no consideration in determining the status of an employee under the Act.
