Termination when case is pending in court
Querist :
Anonymous
(Querist) 15 December 2010
This query is : Resolved
can any organisation or institution terminate the suspended Employee wHOSE CASE IS STILL PENDING IN THE COURT?
Kirti Kar Tripathi
(Expert) 15 December 2010
where the case is pending is not clear. however, if any industrial dispute in which the concerned workman is directly or though other workmen is party is pending before any conciliation board, labour court, industrial tribunal or national tribunal, the permission of concerned borad, court or tribunal is necessary is necessary under Section 33 of the ID Act.
Querist :
Anonymous
(Querist) 15 December 2010
can i have any legal document regarding this?
Kirti Kar Tripathi
(Expert) 15 December 2010
you may go through Section 33 of any commentary of ID Act.
Swami Sadashiva Brahmendra Sar
(Expert) 15 December 2010
Mr. Kirtikar is right. Moreover, If the case is not under ID Act, mere pendency of a case does not prohibit the disciplinary authourity to terminate an employee after completion of regular inquiry, unless further action was stayed by the Court.
Ahmed Daud Girach
(Expert) 15 December 2010
Suspension itself primafagie show gravity of offence so one can be terminated after departmental inquiry provided there is no stay order of any court.If ID act applies it is mandatory for employer to get approval from asst.commisioner of Labour of respective area under Sec.33 of ID Act.Withut approval termination is void.
Kirti Kar Tripathi
(Expert) 16 December 2010
no permission is required from Board, Court or Tribunal as the case may. The Labour Commission, Deputy Labour Commissioner, Additional Labour Commissioner and/or Assistant Labour Commission have no power to grant or refuse permission under Section 33 of the ID Act. It is only machineries provided in the Act have power under the said Act.
Kirti Kar Tripathi
(Expert) 16 December 2010
I mean permission is required from Board, Court or Tribunal as the case may be.
Advocate. Arunagiri
(Expert) 16 December 2010
No permission from the Board is necessary for termination of an employee.
Kirti Kar Tripathi
(Expert) 16 December 2010
I do not agree with Mr. Barman in this regard. The provisions of Section 33 of the Act runs as under
3.Conditions of service, etc., to remain unchanged under certaincircumstances during pendency of proceedings.
1*[33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.- (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before 2*[an arbitrator or] a Labour
Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall--
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute,
save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute 2*[or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],--
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
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1. Subs. by Act 36 of 1956, s. 21, for s. 33 (w.e.f. 10-3-1957).
2. Ins. by Act 36 of 1964, s. 18 (w.e.f. 19-12-1964).
181.(3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute--
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman,
save with the express permission in writing of the authority before which the proceeding is pending.
Explanation.--For the purposes of this sub-section, a "protected workman", in relation to an establishment, means a workman who, being
1*[a member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub-section (3)
shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.
(5) Where an employer makes an application to a conciliation officer, Board, 2*[an arbitrator, a] labour Court, Tribunal or
National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, 3*[within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit:]
4*[Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit:
Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.]
The said provision is clear that even before Board, the permission is necessary.
