raj 30 November 2016

No Termination nor Resignation

Dear all,
I was working as a Manager - Sales and Marketing for a Limited Company (its a BIG company) and was on probation for almost a year and I was asked to resign from the job without any specific reason. I did not resign so they did not let me do my online attendance and did not let me enter the office.

The offer letter states that if an employee remains absent for 7 days then he is automatically terminated.

I filed a complaint with the labour commissioner within 7 days of my last day of work. Then I was asked to fill up a form for Industrial Dispute Act 1947 (section 2-A) for getting back my job and back wages. The Labour Commissioner set 4 hearing dates in 6 months but the Company people did not come to resolve the issue, then the labour commissioner referred the case to the labour court viz ID ACT 1947. Now the case is in the labour court and its been 6 Months now. Hearing dates are being given and the next hearing is on 8/12/16.

The Company's lawyer has argued that as my position is of Managerial level I does not come under industrial Dispute ACT 1947 viz (section 2-S)

Company's Lawyer also stated to the Labour Court " That the appellant/ Employee is guilty of "Suppresio Veri" and "Suggestio Falsi" as he had deliberately suppreseed the relevant and material facts from this Honble Court and had not approached with clean hands.Thus on this ground also appeal is liable to be dismissed.

Its been more than a year since this incident and I am still unemployed and going through depression. I am undergoing treatment for depression since last 2 months in Government Hospital (depression spanning for 8 months now according to the analysis).

I have not been paid my 3 months salary so it does comes under the Labour Court under Section 33 (C) of the Industrial Dispute Act, 1947

I have researched online and my case does not comes under Industrial Dispute Act, 1947 because of my Managerial Position and My Salary being more than 10000.

Now I want to file a case in the civil court, of course by the permission (leave) of the labour court.

What Application should I file with the labour court ie how should I withdraw the case and how should I countinue the case for my pending salary (section 33-C)

Kindly refer me the sections of the Civil Procedure Code to file the case in the Civil Court.

Can I approach the Civil court through Rule 9 of the Civil Procedure Code?

Kindly let me know if I should go with the mental harassment and depression issue and which section of the Civil Procedure code to file for that?

I want to fight for the humiliation that I was subjected to and the depression that I am going through.

Can I ask for a lumpsum amount for the harassment OR the court decides on that?

Please guide me to fight my case in the Civil Court as I am fighting it alone without a lawyer.

Thanks and Regards

Reply Follow

11 Replies

Kumar Doab (FIN) 30 November 2016

The designation and salary alone does not decide person is workman or not!

The lawyer of OP’s has stated whatsoever he/she could to defend the interest of his/her client. This is usually what is stated.

Kumar Doab (FIN) 30 November 2016

Apparently you have not consulted a very able counsel specializing in Labor/Service matters before acting on your own.

Your counsel could have examined your duties on record and opined if you are covered by the:

-- def. of ‘Workman’ as in ID Act,

-- ‘Employee’ as in Shops & Esbs Act ( if your dept/div/office/establishment is covered by the Act),

--Payment of Wages Act ( as per def. of wages in the Act. This Act does not discriminate between ‘Workman’ and ‘Non Workman’)

And/or:

-- if you should approach Civil Courts for damages………………….Civil Courts can decide reinstatement depending upon merits.

--filed complaint u/s406, 420

--filed winding up petition

Kumar Doab (FIN) 30 November 2016

Even a supervisor (by designation) irrespective of the salary is a workman.

Andhra High Court

Coromandal Fertilizers Ltd. vs P. Venugopal And Ors.

https://indiankanoon.org/doc/63515/

Attached File : 60926 20161130111905 682932109 even a supervisor by designation irrespective of the salary is a workman.docx downloaded: 88 times

Kumar Doab (FIN) 30 November 2016

Approach a very able counsel specializing in Labor/Service matters at your location.

(Guest)

You have been rightly guided by Mr. Kumar. Kindly approach an able counsel to handle your case.

raj 30 November 2016

Thank You Sir (all) for the reply.

I am hereby quoting you from the bombay high court :

In this connection Bombay High Court in Union Carbide vs. Samuel (1999) and Supreme Court of India have led down certain criteria for determine whether a person is workman or not. Can his decision bind the employer? Does he have power to sanction leave? Does he have power to appoint? Can he examine quality? Can he assign duty? Can he indent material? Can he recommend leave? Are any person working under him? Does he supervise work? Does he write C.R?

My duties was of superviser level

Below are my answers as to my duties in connection with the Bombay High Court and Supreme Court

Criteria :

My decision was not binding for the employer
I was not having any powers to sanction leave
I was not having any powers to appoint
I was not examining quality
*** I do use to assign duties to my subordinates
I was not indenting material
*** I was recommending leave
*** Persons were working under me
*** I do use to supervise work
I was not writing C.R.
*** I was also doing the work of an executive ie going into the filed, meeting clients.

raj 30 November 2016

Thank you for the reply Sir.

have posted the quote from the bombay high court.

Kindly go through it.

I will definitely take your advice.

Kumar Doab (FIN) 30 November 2016

I have discussed the parameters in many threads earlier and have invariably suggested that: ‘Online discussions have its own limitations’.

Generically speaking: Recommending and sanction are two different parameters……………..

You might be a paper pusher…..................

It shall be just and proper for you to discuss in person with your counsel and show the actual record that you and your employer has i.e. duties in practice and on record….., and your counsel to opine in person to you.

Samarpan (M)99958670740 (Free legal advice and legal aid cell) 01 December 2016

Don't take hasty decision to come to conclusion whether you are a workman or not and I.D. Act is applicable or not. Take assistance of labour law expert on this particular point before withdrawing case from Labour Court and filing it in Civil Court.