Dear Vrushy,
No doubt all industrial establishments in India come under the purview of the Industrial Disputes Act, 1947. All such disputes are supposed to be resolved under this act.
Before jumping to any conclusion, you are supposed to examine the following issues:
1. Do you have a case to call the strike illegal?
2. Whether the issue related to the strike is not acceptable or cannot be resolved.
3. Whether the management is so adamant to call the strike illegal?
4. Whether the employees are working on a contract or permanent basis?
5. Whether your industry has separate service/disciplinary rules?
If you and your management are keen on termination by declaring the strike illegal, nothing forbids the management to do so and terminate the employees as per the law. But as an HR manager, the onus lies on you to bear the aftereffects of a prolonged legal battle, settlements through Labour courts, and also Civil courts. This will be a long-drawn process.
Secondly, as an HR manager, you should consider social responsibility as well. By terminating the striking employees, you will be robbing them of their livelihood. Will it be the right step to punish them? What will happen to their future life? Termination means it is a punishment for indiscipline; therefore, terminated employees may not be eligible for any gratuity. They will only get PF savings.
If the management is not interested in keeping the litigants and is interested in replacing the veteran litigants, this can be done by inviting them to reconciliation and giving them a warm handshake. This may lead to paying some compensation for the loss of the job and also saving the man-hour loss. By doing so, the management can save face, stabilize its production, rework its production strategy, employ fresh young labor, or get its work done through private players.
The third option is to examine the issue in a calm and transparent manner so that disputes can be resolved peacefully. This increases the morale of the workmen. Please remember that your industry has earned every penny because of the workers. Therefore, their contribution cannot be ignored. Even though they are rough and litigants, as owners, we have to pardon them and take them back to work.
I hope you may agree with my suggestions.
SPKR
18.9.13
From India, Bangalore
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32No doubt all industrial establishments in India come under the purview of the Industrial Disputes Act, 1947. All such disputes are supposed to be resolved under this act.
Before jumping to any conclusion, you are supposed to examine the following issues:
1. Do you have a case to call the strike illegal?
2. Whether the issue related to the strike is not acceptable or cannot be resolved.
3. Whether the management is so adamant to call the strike illegal?
4. Whether the employees are working on a contract or permanent basis?
5. Whether your industry has separate service/disciplinary rules?
If you and your management are keen on termination by declaring the strike illegal, nothing forbids the management to do so and terminate the employees as per the law. But as an HR manager, the onus lies on you to bear the aftereffects of a prolonged legal battle, settlements through Labour courts, and also Civil courts. This will be a long-drawn process.
Secondly, as an HR manager, you should consider social responsibility as well. By terminating the striking employees, you will be robbing them of their livelihood. Will it be the right step to punish them? What will happen to their future life? Termination means it is a punishment for indiscipline; therefore, terminated employees may not be eligible for any gratuity. They will only get PF savings.
If the management is not interested in keeping the litigants and is interested in replacing the veteran litigants, this can be done by inviting them to reconciliation and giving them a warm handshake. This may lead to paying some compensation for the loss of the job and also saving the man-hour loss. By doing so, the management can save face, stabilize its production, rework its production strategy, employ fresh young labor, or get its work done through private players.
The third option is to examine the issue in a calm and transparent manner so that disputes can be resolved peacefully. This increases the morale of the workmen. Please remember that your industry has earned every penny because of the workers. Therefore, their contribution cannot be ignored. Even though they are rough and litigants, as owners, we have to pardon them and take them back to work.
I hope you may agree with my suggestions.
SPKR
18.9.13
From India, Bangalore
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Dear SPKR, I appreciate the detailed overview you have expressed. It shows your depth in IR matters. Good. The only thing I would like to differ on is that Gratuity will not be forfeited in case of termination on account of an illegal strike. Only the period of the strike will be deducted from the total tenure of service rendered. Gratuity can be forfeited only in case of termination on grounds of moral turpitude. Hope you and all others will agree. Correct me if I am wrong, please. AK Jain HR Personnel NCL, CIL.
From India, New+Delhi
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From India, New+Delhi
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Hello SPKR. You have given a direction relevant to the issue. I too am on the same page with you that a strike situation shall be dealt with from an IR angle, and solutions should be found within the four corners of IR, like negotiation, rather than from the disciplinary angle or legal angle, which may compound the issue. They may be the last resort. Further, the management is not the competent authority to dub a strike legal or illegal, and the legal validity itself is a legal issue involving much legal wrangling. That's why I said in my post that it is a very slippery path, and the employer needs to put each step carefully.
B. Saikumar
From India, Mumbai
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B. Saikumar
From India, Mumbai
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Right Said, you should follow the procedure of domestic inquiry before terminating employee.
From India, Pune
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From India, Pune
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Dear All,
Sai Kumar has stated the provisions of law/procedure following principles of natural justice before termination. Before dismissing, the provisions of Section 33 of Industrial Disputes Act 1947 need to be referred to as the case may attract approval/permission. As the case may be, if any provisions attract Section 33 and dismissal is not followed by the required provisions, the termination will be illegal.
M.N. Sahu
GM (HR)
From India, Vadodara
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Sai Kumar has stated the provisions of law/procedure following principles of natural justice before termination. Before dismissing, the provisions of Section 33 of Industrial Disputes Act 1947 need to be referred to as the case may attract approval/permission. As the case may be, if any provisions attract Section 33 and dismissal is not followed by the required provisions, the termination will be illegal.
M.N. Sahu
GM (HR)
From India, Vadodara
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Dear All,
90% of the workmen around 50 of a factory in Karnataka are on illegal strike and sitting inside the factory for last 8 days by not doing any work. 13 of them are dismissed and illegal strike continues. The management is functional by having an injunction order from Civil court by only 10% of workmen with few contract workmen are working. How do we legally evict this workmen? The factory is functional on Model standing orders. Excluding the principal of “No work and no pay” and disciplinary action, how to put them out legally if they don’t leave? Management is not willing to recognize the Union or discuss with them and without Union, things should move forward. Please share your expertise. If any of you desire to discuss privately you may call me on 9916138191 (Bangalore) or mail me at
.
From India, Bangalore
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90% of the workmen around 50 of a factory in Karnataka are on illegal strike and sitting inside the factory for last 8 days by not doing any work. 13 of them are dismissed and illegal strike continues. The management is functional by having an injunction order from Civil court by only 10% of workmen with few contract workmen are working. How do we legally evict this workmen? The factory is functional on Model standing orders. Excluding the principal of “No work and no pay” and disciplinary action, how to put them out legally if they don’t leave? Management is not willing to recognize the Union or discuss with them and without Union, things should move forward. Please share your expertise. If any of you desire to discuss privately you may call me on 9916138191 (Bangalore) or mail me at
From India, Bangalore
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