Dear All,
At the end of it all I am in position where I can say that I stand more confused then before. I had a question where I wanted to know under which section of ID Act 1947 (definitely not 2k and 33 (2C)) can an employee raise a dispute in case the dispute doesn't fall under sec 2A.
Let's take an example;
An employee is aggrieved of the fact that the management has not made him permanent in spite of working for 10 years in that company as a casual worker. Now whether an employee should be made permanent or not is surely the management prerogative(in absence of any settlement between the management and union) but the employee in this case can surely feel aggrieved and want to raise a dispute against the management of unfair labour practice. Now here comes the confusion..... , he cannot find respite through sec 2A, so what would be his option in that case. He has to file a case against the management but under which sec? Remember, if he doesn't have a case his case won't reach the level of conciliation, arbitration or adjudication or whatever.
I think this time I have made myself clear.
Regards
From India, New Delhi
10At the end of it all I am in position where I can say that I stand more confused then before. I had a question where I wanted to know under which section of ID Act 1947 (definitely not 2k and 33 (2C)) can an employee raise a dispute in case the dispute doesn't fall under sec 2A.
Let's take an example;
An employee is aggrieved of the fact that the management has not made him permanent in spite of working for 10 years in that company as a casual worker. Now whether an employee should be made permanent or not is surely the management prerogative(in absence of any settlement between the management and union) but the employee in this case can surely feel aggrieved and want to raise a dispute against the management of unfair labour practice. Now here comes the confusion..... , he cannot find respite through sec 2A, so what would be his option in that case. He has to file a case against the management but under which sec? Remember, if he doesn't have a case his case won't reach the level of conciliation, arbitration or adjudication or whatever.
I think this time I have made myself clear.
Regards
From India, New Delhi
Dear Awvik, Definetly, he can raise the dispute under the provision of ID act 1947. Regards, Rajasekaran.MK.
From India, Madras
From India, Madras
Dear Mr Panda, you have to follow the minimum wages of Haryana as your works is falling in Gurgaon. The Employees are working in Haryana so Haryana MWA is applicable. The second issue of P.F and E.S.I, although you are registered in Delhi, but the ESI despensery should be nearby your employees workstation.
From India, Delhi
From India, Delhi
Dear Awvik,
Allegations of unfair labour practice can render the person concerned liable for prosecution u/s 25 U of the ID Act (Chapter V C) If the complaint is proved, the person found guilty will be liable for imprisonment for a maximum term of 6 months or with fine which may extend to Rs 1000/- or both.
Regarding Liability for non payment of OT, a complaint to the Inspector of Factories/Labour Inspector should set the ball rolling under the Factories act/Shops & Estt Act. However, the individual employee will be within his rights to move the Labour Court u/s 33 C (2) of the ID Act for recovery of money due. But prima facie he has to establish before the court that he is entitled to amount claimed. In Central Bank of India Vs P.S Rajagopalan case (1963) II LLJ Justice Gajendragadkar of the Hon'ble Supreme Court of India had held that Sec 33 C (2) of the ID Act empowers the Labour Courts to try claims by workmen which fall outside the purview of settlements and awards. However only pre-existing rights can be enforced under this section.(Dispute of Right as opposed to Dispute of Interest) in East India Coal Co Ltd vs Rameshwar (1968) I LLJ SC it was held that the Labour Court has jurisdiction to compute Bonus under the Bonus Scheme of the Coal Mines PF & Bonus Scheme 1948. Claim for OT allowance under the statute can be entertained by the Labour Court u/s 33 C (2) as per the ratio in Shivaji Gulabrao Bhoite v B.N Biscuit Confectionary Works (1988) II LLJ Bom DB
From India, Madras
Allegations of unfair labour practice can render the person concerned liable for prosecution u/s 25 U of the ID Act (Chapter V C) If the complaint is proved, the person found guilty will be liable for imprisonment for a maximum term of 6 months or with fine which may extend to Rs 1000/- or both.
Regarding Liability for non payment of OT, a complaint to the Inspector of Factories/Labour Inspector should set the ball rolling under the Factories act/Shops & Estt Act. However, the individual employee will be within his rights to move the Labour Court u/s 33 C (2) of the ID Act for recovery of money due. But prima facie he has to establish before the court that he is entitled to amount claimed. In Central Bank of India Vs P.S Rajagopalan case (1963) II LLJ Justice Gajendragadkar of the Hon'ble Supreme Court of India had held that Sec 33 C (2) of the ID Act empowers the Labour Courts to try claims by workmen which fall outside the purview of settlements and awards. However only pre-existing rights can be enforced under this section.(Dispute of Right as opposed to Dispute of Interest) in East India Coal Co Ltd vs Rameshwar (1968) I LLJ SC it was held that the Labour Court has jurisdiction to compute Bonus under the Bonus Scheme of the Coal Mines PF & Bonus Scheme 1948. Claim for OT allowance under the statute can be entertained by the Labour Court u/s 33 C (2) as per the ratio in Shivaji Gulabrao Bhoite v B.N Biscuit Confectionary Works (1988) II LLJ Bom DB
From India, Madras
Dear all,
This has reference to the queries raised with respect to Industrial Disputes and some of the clarifications given thereto. I am afraid some clarifications are further needed.
A worker can raise an Industrial dispute directly on only two counts:
1. Under Sec 2A in connection with his Dismissal, Discharge, Retrenchment or Termination.
2. Under Sec 33C (2) of the Act to claim any money or any benefit that can be computed in terms of money under a settlement or award or under Chapter V A or Chapter V B. Non-payment of OT wage, customary allowance, leave encashment etc. can be claimed by the workman by filing a ‘claim petition’ directly before the labour court. And he can represent himself in the labour court.
Any other dispute has to be raised by the Union of which he is a member or a group of workmen under Sec 2(k) .Such disputes are raised by filing a petition before the Labour Officer or such other conciliation officer or board as the appropriate govt has decided.If the conciliation fails, the authority concerned will send the failure report to the Labour Dept, which will refer the dispute for adjudication before Labour court or Tribunal. The Labour dept has the discretion to refer or refuse to refer disputes; but as per the law established by the Supreme Court such discretionary power cannot be capriciously and unreasonably exercised. The petitioner Union can file a writ in the High court and get an order for reference in case the dept has not done it even after reasonable time and the dispute is not frivolous in nature.
Regards,
Sanu Soman
From India, Madras
This has reference to the queries raised with respect to Industrial Disputes and some of the clarifications given thereto. I am afraid some clarifications are further needed.
A worker can raise an Industrial dispute directly on only two counts:
1. Under Sec 2A in connection with his Dismissal, Discharge, Retrenchment or Termination.
2. Under Sec 33C (2) of the Act to claim any money or any benefit that can be computed in terms of money under a settlement or award or under Chapter V A or Chapter V B. Non-payment of OT wage, customary allowance, leave encashment etc. can be claimed by the workman by filing a ‘claim petition’ directly before the labour court. And he can represent himself in the labour court.
Any other dispute has to be raised by the Union of which he is a member or a group of workmen under Sec 2(k) .Such disputes are raised by filing a petition before the Labour Officer or such other conciliation officer or board as the appropriate govt has decided.If the conciliation fails, the authority concerned will send the failure report to the Labour Dept, which will refer the dispute for adjudication before Labour court or Tribunal. The Labour dept has the discretion to refer or refuse to refer disputes; but as per the law established by the Supreme Court such discretionary power cannot be capriciously and unreasonably exercised. The petitioner Union can file a writ in the High court and get an order for reference in case the dept has not done it even after reasonable time and the dispute is not frivolous in nature.
Regards,
Sanu Soman
From India, Madras
DEAR FRIENDS,
Let me first take up the question relating to payment of mw to the workmen employed in the Haryana Works of the company having its registered office at Delhi.I concur with the views of Mr.MADHU and others to the extent that it is the place of work that determines jurisdiction.However, I would like to differ slightly because the questioner has clearly stated that the Delhi rates of m.w are higher than that of Haryana and the company already started implementing the Delhi rates.to the Haryana Works. .Therefore, in my opinion, you cannot switch over to a lesser rate now on the basis of territorial jurisdiction and other allied reasons.
Coming to the question of raising of an industrial dispute u/s 2k of the I.D Act,1947 regarding the grievances of an individual workman concerning his employment, as already said by the learned members, espousal by a Trade Union, not necessarily a registered one, is essential.However, if the issues are covered by a Statute and a specific mechanism for redress is provided for therein and recourse to alternative remedy is barred either expressly or impliedly, you cannot raise an industrial dispute under the I.D Act.For example, non-payment of gratuity and non-payment of O.T wages.In the former case, you can file a claim for recovery of gratuity under Se 8 of the Payment of Gratuity Act,1972.before the concerned Controlling Authority only and in the latter, you can file a claim under Se 15 of the Payment of Wages Act,1936 before the Authority or a claim u/s 33C(2) of the I.D Act as per your choice.But, it should always be remembered that claims u/s 33C(2) is only in the nature of execution proceedings.
From India, Salem
Let me first take up the question relating to payment of mw to the workmen employed in the Haryana Works of the company having its registered office at Delhi.I concur with the views of Mr.MADHU and others to the extent that it is the place of work that determines jurisdiction.However, I would like to differ slightly because the questioner has clearly stated that the Delhi rates of m.w are higher than that of Haryana and the company already started implementing the Delhi rates.to the Haryana Works. .Therefore, in my opinion, you cannot switch over to a lesser rate now on the basis of territorial jurisdiction and other allied reasons.
Coming to the question of raising of an industrial dispute u/s 2k of the I.D Act,1947 regarding the grievances of an individual workman concerning his employment, as already said by the learned members, espousal by a Trade Union, not necessarily a registered one, is essential.However, if the issues are covered by a Statute and a specific mechanism for redress is provided for therein and recourse to alternative remedy is barred either expressly or impliedly, you cannot raise an industrial dispute under the I.D Act.For example, non-payment of gratuity and non-payment of O.T wages.In the former case, you can file a claim for recovery of gratuity under Se 8 of the Payment of Gratuity Act,1972.before the concerned Controlling Authority only and in the latter, you can file a claim under Se 15 of the Payment of Wages Act,1936 before the Authority or a claim u/s 33C(2) of the I.D Act as per your choice.But, it should always be remembered that claims u/s 33C(2) is only in the nature of execution proceedings.
From India, Salem
Dear Awvik,
As you rightly pointed Section 2-A was inserted to provide specific relief to workman in case of dismissal, discharge, termination and termination.
As you are aware Section 9C provides for settlement of individual disputes. Section 9C - Setting up of Grievance Redressal Machinery (1) Every industrial establishment employing twenty or more workmen shall have one or more Grievance Redressal Committee fr the resolution of disputes arising out of individual grievances. (As amended with effect from 15-9-2010)
I think you are concerned with settlement of individual disputes. Conciliation, Arbitration and Adjudication are the settlement machineries. Grievance handling machinery redresses the grievance and does not allow it to become a dispute.
From India, Madras
As you rightly pointed Section 2-A was inserted to provide specific relief to workman in case of dismissal, discharge, termination and termination.
As you are aware Section 9C provides for settlement of individual disputes. Section 9C - Setting up of Grievance Redressal Machinery (1) Every industrial establishment employing twenty or more workmen shall have one or more Grievance Redressal Committee fr the resolution of disputes arising out of individual grievances. (As amended with effect from 15-9-2010)
I think you are concerned with settlement of individual disputes. Conciliation, Arbitration and Adjudication are the settlement machineries. Grievance handling machinery redresses the grievance and does not allow it to become a dispute.
From India, Madras
Dear MR.Kutty,
Thank u so much for your response in the back-drop of the amended provisions of Se 9-C of the I.D Act,1947.But only one simple correction --- As per Se 9C (5), the setting up of the so called Grievance Redressal Committee cannot affect the right of the workman to raise an industrial dispute on the same matter.However before taking recourse to raising a dispute, he has to exhaust the remedy provided for u/s 9 C. If we carefully analyze the scheme of the I.D Act,1947 we will understand that the spirit of the Act is prevention and resolution of industrial disputes through collective bargaining between the partners of production. The provisions for the formation of Works Committee u/s 3 and the Grievance Redressal Committee u/s 9C as well as the constitution of Board of Conciliation u/s 5 are the pointers to this end.That's why it is said in lighter vein that the worst settlement is better than the best Award.
From India, Salem
Thank u so much for your response in the back-drop of the amended provisions of Se 9-C of the I.D Act,1947.But only one simple correction --- As per Se 9C (5), the setting up of the so called Grievance Redressal Committee cannot affect the right of the workman to raise an industrial dispute on the same matter.However before taking recourse to raising a dispute, he has to exhaust the remedy provided for u/s 9 C. If we carefully analyze the scheme of the I.D Act,1947 we will understand that the spirit of the Act is prevention and resolution of industrial disputes through collective bargaining between the partners of production. The provisions for the formation of Works Committee u/s 3 and the Grievance Redressal Committee u/s 9C as well as the constitution of Board of Conciliation u/s 5 are the pointers to this end.That's why it is said in lighter vein that the worst settlement is better than the best Award.
From India, Salem
Dear Umakanthan ji,
Thanks for your post. I fully agree with you. My intention is always to resolve the issue on three points. The issue should be resolved (1) at the least possible time (2) with least cost and (3) with least and less cumbersome procedure. When you have a remedy under Section 9-C, why not try that ? Why should the workman go to Conciliation or arbitration or adjudication when he can make a try to settle it at his establishment level itself.
I have not over looked Section 9-C(5). Resorting to alternate remedy is not prohibited. Hence the workman may proceed under ID Act 1947.
From India, Madras
Thanks for your post. I fully agree with you. My intention is always to resolve the issue on three points. The issue should be resolved (1) at the least possible time (2) with least cost and (3) with least and less cumbersome procedure. When you have a remedy under Section 9-C, why not try that ? Why should the workman go to Conciliation or arbitration or adjudication when he can make a try to settle it at his establishment level itself.
I have not over looked Section 9-C(5). Resorting to alternate remedy is not prohibited. Hence the workman may proceed under ID Act 1947.
From India, Madras
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