Labour urgent help required
Adv. karinamishra
(Querist) 06 April 2014
This query is : Resolved
departmental inquiry was held by the company by considering a complainant as an officer. the complinant was found guilty in the said inquiry. the complainant approached the labour court for seeking relief for not giving him fair oppotunity also depriving company for terminating his services and not to evict him from company quarter which is provided by the company. however the company opposed the application of the complainant that the complainant has no right to seek relief in the labour court as he is comes into officer catagory and labour court has no jurisdiction to try his application. however labour court decided the application and rejected the application of the complainant. the court deciding decided the application without considering the jurisdiction issue. the said order was given o 25th march 2014 and the complainant received the certified copy of said order on 3rd march 2014.. in the order it is mentioned that the said order would cum into effect from 9th april 2014.
whether the departmental inquiry valid as it was held considering the accused as an officer and not a workman/ employee. whether it is presumed that the accused is an employee /workman and not an officer as the labour court decided his application .
now what is the remedy for complainant? whether he should review the said order or go for revision. Plz suggest.
Guest
(Expert) 06 April 2014
Being of the executive level officer, his case lied in HC, not in labour court, as he was not a workman. There is a difference between workman and employee. The term "employee" is a wider term that includes all category of staff of the organization, including the top management, while only non-executive employees fall within the scope of workman category.
One small error also appears in description of your query. Certified copy of said order, dated 25th March is not possible to be received on 3rd march, being earlier than the date of the order. So, one of the dates can be wrong, either 25th March or the 3rd march.
Further, you have not mentioned, what specific reason has been quoted by the labour court in rejecting the case of the complainant.
Still further, you have also not mentioned whether the officer appealed to the departmental appelate authority or not against the penalty orders of the disciplinary authority terminating his service.
So, any opinion about remedy can be possible to be formed only on going through the whole of the documents pertaining to the charge sheet, departmental inquiry, penalty order, appeal (if any) made against the penalty order of the disciplinary authority, petition in labour court and the judgment of the labour court.
Devajyoti Barman
(Expert) 06 April 2014
What is his salary? Must be more than Rs.10,000/- pm.
If he is not a blue collar employee then his case indeed lies in High Court or Service Tribunal, not in Labour Court.
Rajendra K Goyal
(Expert) 06 April 2014
Consult a local lawyer dealing in service matters.
Guest
(Expert) 06 April 2014
It is OK, but what about other things that I pointed out?
Adv. karinamishra
(Querist) 06 April 2014
ealier also departmental inquiry is conducted on him court has referred it.
court has come to conclusion that departmental inquiry is held in fair manner.
Adv. karinamishra
(Querist) 06 April 2014
according to court no prima facie case is made out by him no balance of convinience is in favour of him. irreparable loss cause to company. but if nothing will done then he will loose his job.
Adv. karinamishra
(Querist) 06 April 2014
He is a security officer. cant have power take any decision by his own. no supervisory powers lies with him.
court had not stated anything in order whether he his workman or not.
issue of jurisdiction raised by company which is not decided by court and passed final order.
Adv. karinamishra
(Querist) 06 April 2014
the present complaint is filed for alleged unfair labor practice under Item-1 (a),(b),(c),(d),(f)and(g) of the MRTU and PULP ACT,1971.
court held that prima facie there is nocase of victimization or colourable exercise of employers right or of penalty for false reasons or of utter disregard of the natural justice in the conduct of domestic enquiry or undue haste or of shockingly disproportionate punishment for misconduct of a minor or technical character.
the complainant has right to challenge the order, if aggrieved before appropriate forum.
Adv. karinamishra
(Querist) 06 April 2014
the present complaint is filed for alleged unfair labor practice under Item-1 (a),(b),(c),(d),(f)and(g) of the MRTU and PULP ACT,1971.
court held that prima facie there is no case of victimization or colourable exercise of employers right or of penalty for false reasons or of utter disregard of the natural justice in the conduct of domestic enquiry or undue haste or of shockingly disproportionate punishment for misconduct of a minor or technical character.
the complainant has right to challenge the order, if aggrieved before appropriate forum.
Devajyoti Barman
(Expert) 06 April 2014
Case does not lie before labour court. Appeal shall have no merit.
Adv. karinamishra
(Querist) 06 April 2014
How employer-employee relation can be proved? whether having EPF account sufficient to prove that the person is an employee and he can seek remedy in the labor court. Reliefs prayed in the present case are 1. Not to terminate the employee from his service till the final decision on the complaint. 2. not to evict the employee from the allotted quarters given by the company. 3. that the respondent's inquiry officer has not given fair opportunity on the ground of natural justice and completed the inquiry without giving him fair chance. court to order the respondents to complete the inquiry lawfully.
Adv. karinamishra
(Querist) 06 April 2014
How employer-employee relation can be proved? whether having EPF account sufficient to prove that the person is an employee and he can seek remedy in the labor court. Reliefs prayed in the present case are 1. Not to terminate the employee from his service till the final decision on the complaint. 2. not to evict the employee from the allotted quarters given by the company. 3. that the respondent's inquiry officer has not given fair opportunity on the ground of natural justice and completed the inquiry without giving him fair chance. court to order the respondents to complete the inquiry lawfully.
Guest
(Expert) 07 April 2014
Right from the beginning the case took a wrong direction by filing in the labour court instead of the HC, which is the competent court to take up cases pertaining to the managerial executives.
Now, since he is not yet terminated, take stay on the issue of termination. Also, if prescribed in departmental rules of inquiry, ask him to submit appeal to the departmental appellate authority on merits of the case and also if there is any procedural lapse in the inquiry proceedings, otherwise case in HC may also flop on the ground of not exhausting the departmental channels.
If your client falls within the category of managerial executive (supposedly being so, as an officer), the judgment of labour court seems to be invalid, as that court seems to have delivered judgment even when the case did not fall within their competence to decide its competence the matter being not related to a workman. That issue is required to be taken up in appeal to the appellate labour court to get that annulled in principle.
Don't mix up case of disciplinary proceedings with that of the eviction from the querter. You may take a stay on eviction from quarter separately, as organisational authorities are not bound to allow him to live in the quarter even during pendency of appeal to departmental appellate authority.
If the appeal is dismissed then file a petition in the HC, as the case actually falls within the jurisdiction of HC that being related to a managerial incumbent.
Guest
(Expert) 07 April 2014
You are trying to mix-up several things together. Question arises, what do you interpret about employer-employee relationship? Has that been denied by the company in any document? If denied, just quote that statement. If not, where is the need to prove that?
Adv. karinamishra
(Querist) 07 April 2014
the inquiry was conducted under the own rules and regulations which are not certified in such case inquiry is illegal or not?
If the companys rules are not certified then officers inquiry can be conducted under model standing order?
In the company there is separate rule for officer and workers for tackling disciplinary issues ?
what is limitation to file revision in Industrial court? suggest some case law if any?
Adv. karinamishra
(Querist) 07 April 2014
The complainant is security officer in Public Sector unit under state government. security officers supervisory powers are seized, granting of leave, allotting overtime etc. is not allowed to the officer then he comes under the managerial cadre or worker?
Devajyoti Barman
(Expert) 07 April 2014
thread is dragged for no reason. You are already advised in detail, now stop repeating query on same topic.
Guest
(Expert) 08 April 2014
You seem to be again in a confused state about certified standing orders (CSO) and the departmental rules of inquiry. While CSO is applicable only in the case or workers, i.e., non-executive class of employees, executive/ officer class of employees are not covered under the CSO. A separate set of conduct, disciplinary and inquiry rules are used for the executive class, for which no certification is required from any state suthority, like a CSO.
About the security officer being an executive or non-executive, as per your own description he belongs to executive class, as the term "officer" itself denotes. Irrespective of seizing of his powers, if he supervises the work of other security personnel, he falls within the category of the executive class.
So, before launching any case, you are required to make the most necessary distinctions as per the rules on the issue according to the category of the employee.
