Your functions will come under the scope of workman since you do not have any administrative or managerial authority. Moreover your work is both skilled and technical. It is clerical in nature in one way. As such, you will not come under the exclusion part of the definition of workman. In H.R. Adyanthaya v. Sandoz (India) Ltd., AIR1994 SC 2608, the Supreme Court held that to be a workman, a worker would have to not only show that he is not covered by the exceptions, but must also show that he is employed in one of the main categories. You can very well establish that your work is technical as well as clerical but does not involve any administrative or managerial function of leave approval, performance appraisal or initiating disciplinary action.
The Supreme Court has said that the quantum of salary would be irrelevant to decide whether or not a person is a ‘workman’ under the ID Act (Devinder Singh v. Municipal Council, Sanaur, AIR2011SC 2532) and therefore, the exclusion by way of salary will not apply in practice.
From India, Kannur
4248The Supreme Court has said that the quantum of salary would be irrelevant to decide whether or not a person is a ‘workman’ under the ID Act (Devinder Singh v. Municipal Council, Sanaur, AIR2011SC 2532) and therefore, the exclusion by way of salary will not apply in practice.
From India, Kannur
Hi Madhu Sir,
Although I am thanking you too late nonetheless it's sincere one for clarifying in detail as always about my work categories for the purpose of sec 2(s) of IDA.
There is some confusion about territorial jurisdiction of Labour Court, you believe that it should be Muzaffarpur i.e. my native and place of work as I was doing WFH as mentioned in my offer letter but KK Sir has of opinion that it should be Mumbai i.e. place of company's office.
Since remote work aka WFH, a remote phenomena, I don't think there will be many case laws available.
But I am requesting to all learned members of forum especially Madhu Sir and KK Sir to clear the confusion as in which labour Court doors should I knock supported by case laws if any and as per as interpretation of existing laws since my case is classic and entangled one as I was hired by company A located in Mumbai later acquired by company B operating in India from Noida office and my place of work is Muzaffarpur, my native town since job is remote.
Thanks.
From India, Patna
Although I am thanking you too late nonetheless it's sincere one for clarifying in detail as always about my work categories for the purpose of sec 2(s) of IDA.
There is some confusion about territorial jurisdiction of Labour Court, you believe that it should be Muzaffarpur i.e. my native and place of work as I was doing WFH as mentioned in my offer letter but KK Sir has of opinion that it should be Mumbai i.e. place of company's office.
Since remote work aka WFH, a remote phenomena, I don't think there will be many case laws available.
But I am requesting to all learned members of forum especially Madhu Sir and KK Sir to clear the confusion as in which labour Court doors should I knock supported by case laws if any and as per as interpretation of existing laws since my case is classic and entangled one as I was hired by company A located in Mumbai later acquired by company B operating in India from Noida office and my place of work is Muzaffarpur, my native town since job is remote.
Thanks.
From India, Patna
Though for filing a compliant under the ID Act, there is no reference as to what is the territorial jurisdiction, a workman can file it in the place where he has been working. There are cases in support of this. The Delhi High Court has observed that the situs of a workman’s place of employment is a determinative factor in conferring territorial jurisdiction on a labour court although not specified in the Industrial Disputes Act. Please refer J Balaji Vs the Hindu. Recently, myself have challenged the act of an employer to make it convenient for the workman to file it in the place where he was working prior to his termination and the appropriate authority had ratified it also even when the appointment order had a clause that all the disputes would be addressed in courts in Delhi. It is not possible for a workman to go and file a dispute in a place where the HQ of the company is located.
From India, Kannur
From India, Kannur
Many Thanks Madhu Sir for resolving this confusion. I must appreciate your strong hold over Indian Jurisprudence especially Labour Laws and they way you impart your wisdom upon others. Truly commendable.
But Sir, I want to highlight another confusion.
Their Appointment letter is standard format used for all the employees be it permanent or contractual (who get posted at various client site) where they have mentioned as follows:-
2. Place of work. Your immediate posting will be at the Registered Office of the Company. However,
depending upon the needs of the organization you may be transferred/ deputed/assigned to any
job in any department/location of our company or to any of our associate subsidiary companies /
client in India or abroad with no extra remuneration and you will be governed by the terms and
conditions of that respective location.
But the fact is they are totally remote company, none of their on-roll employees work from Mumbai office.
And this is also a fact that they have mentioned in their offer letter to me, under Benifits Heading as follows:-
Imagine having monthly departmental goals to ensure work-life balance!
• 30 vacation days per year.
• Additionally, there is paternity and Marriage Leave
• Work from home and Flexible Working Hours
I also have in my possession their Job Advertisement posted by Vineet Kotian (My immediate manager at that time) to which I applied by mailing my CV to Vineet and eventually became their employee. The link of said job posting as below:-
https://www.linkedin.com/jobs/view/2989580294
In above link it's clearly written Remote - Full Time.
So Sir, if I file a case in my place of work i.e. my native, they will quote clause of Appointment Letter although I have many proofs that they are fully remote company. Kindly guide me Sir, will given material in my possession pertaining to their job is enough to convince Labour Commissioner and will it be taken for conciliation for the purpose of Sec 2A of IDA?
Thanks in Advance.
From India, Patna
But Sir, I want to highlight another confusion.
Their Appointment letter is standard format used for all the employees be it permanent or contractual (who get posted at various client site) where they have mentioned as follows:-
2. Place of work. Your immediate posting will be at the Registered Office of the Company. However,
depending upon the needs of the organization you may be transferred/ deputed/assigned to any
job in any department/location of our company or to any of our associate subsidiary companies /
client in India or abroad with no extra remuneration and you will be governed by the terms and
conditions of that respective location.
But the fact is they are totally remote company, none of their on-roll employees work from Mumbai office.
And this is also a fact that they have mentioned in their offer letter to me, under Benifits Heading as follows:-
Imagine having monthly departmental goals to ensure work-life balance!
• 30 vacation days per year.
• Additionally, there is paternity and Marriage Leave
• Work from home and Flexible Working Hours
I also have in my possession their Job Advertisement posted by Vineet Kotian (My immediate manager at that time) to which I applied by mailing my CV to Vineet and eventually became their employee. The link of said job posting as below:-
https://www.linkedin.com/jobs/view/2989580294
In above link it's clearly written Remote - Full Time.
So Sir, if I file a case in my place of work i.e. my native, they will quote clause of Appointment Letter although I have many proofs that they are fully remote company. Kindly guide me Sir, will given material in my possession pertaining to their job is enough to convince Labour Commissioner and will it be taken for conciliation for the purpose of Sec 2A of IDA?
Thanks in Advance.
From India, Patna
The territorial jurisdiction when an employee is working from home, termination was served at that place, should never be the place where the Head Office of the establishment is situated. The appointment order may contain such clauses by which an employee shall be transferred to other places. But in the absence of a 'course of action' or any communication that the employee has been transferred and again without the employee joining that office, the jurisdiction will not change. As such your place of posting is the place where you were working and the place to which the termination was served and nothing else.
From India, Kannur
From India, Kannur
Hi Madhu Sir,
Thanks from my core of heart from helping me throughout with you legal acumen.
Sir,
Kindly clear doubts of my amateur reading of judgement of the case you mentioned.
Excerpts:-
"...and his services were terminated from Chennai, it is clear that the cause of action arose within the jurisdiction of Chennai"
Also in my case termination mail was issued from their only one office in India i.e. from Mumbai. As such i have not received any termination letter (Hard Copy) to my native i.e. Muzaffarpur since Full and Final Settlement is not done at my behest citing matter is sub judice, so i asked them to postpone FnF for now.
Also in my appointment letter there is clear mention of my place of posting is Mumbai, i just have 2 courier slips of their laptop pick-up, and Offer letter which mention "Work from Home" under benefits section, one mail chain in which there is communication with company pertaining to laptop pick up from my house and one Job Posting which clearly mentions remote.
So, please correct my naive reading of judgement and please evaluate proofs in my possession and let me know, whether i would be able to convince LEO(C) of Muzaffarpur, will he have acumen like yours and patience to hear me out and will he accept my complaint under 2A of IDA. Since case laws don't exist pertaining to jurisdiction in remote work or work from home (since this is recent phenomena) in General and my case in particular where appointment letter clearly mentions that the place of posting is Mumbai.
Please Note - He is just a LEO(C) of Muzaffarpur, Bihar not like very rational, upright and bright legal mind like some High courts and Supreme Courts Judges.
Please enlighten me one more time as you have continuously doing this noble and compassionate act.
Thanks.
From India, Patna
Thanks from my core of heart from helping me throughout with you legal acumen.
Sir,
Kindly clear doubts of my amateur reading of judgement of the case you mentioned.
Excerpts:-
"...and his services were terminated from Chennai, it is clear that the cause of action arose within the jurisdiction of Chennai"
Also in my case termination mail was issued from their only one office in India i.e. from Mumbai. As such i have not received any termination letter (Hard Copy) to my native i.e. Muzaffarpur since Full and Final Settlement is not done at my behest citing matter is sub judice, so i asked them to postpone FnF for now.
Also in my appointment letter there is clear mention of my place of posting is Mumbai, i just have 2 courier slips of their laptop pick-up, and Offer letter which mention "Work from Home" under benefits section, one mail chain in which there is communication with company pertaining to laptop pick up from my house and one Job Posting which clearly mentions remote.
So, please correct my naive reading of judgement and please evaluate proofs in my possession and let me know, whether i would be able to convince LEO(C) of Muzaffarpur, will he have acumen like yours and patience to hear me out and will he accept my complaint under 2A of IDA. Since case laws don't exist pertaining to jurisdiction in remote work or work from home (since this is recent phenomena) in General and my case in particular where appointment letter clearly mentions that the place of posting is Mumbai.
Please Note - He is just a LEO(C) of Muzaffarpur, Bihar not like very rational, upright and bright legal mind like some High courts and Supreme Courts Judges.
Please enlighten me one more time as you have continuously doing this noble and compassionate act.
Thanks.
From India, Patna
And please Madhu Sir, forgot to mention, its a sincere request to please give me few more case laws akin to my situation.
From India, Patna
From India, Patna
And please Madhu Sir, kindly read my above comments in light of the fact that I have spoken to LEO(C), Gaya, a district of Bihar and he was totally ignorant and unsure about remote working and jurisdiction and he kept insisting that since Company is in Mumbai, you case will come under jurisdiction of Mumbai Labour Court and after my elaborate narration of facts and my strong convincing he asked does your company has office in Bihar then he switched to another tune and said while filing case through Samadhan portal put name of your company and put your address in place of address of establishment. My whole point is that he was not really a bright officer having sharp legal acumen and gullible. I may encounter similar kind of officer in Muzaffarpur also who knows?
From India, Patna
From India, Patna
The very purpose of appointing an Officer in the labour department is to listen to the grievances of workers. It is not possible for a worker to go and file a complaint before the officer in the place where the HO of the company is located. In the absence of a territorial jurisdiction to address a worker complaint under any law, say ID Act, the jurisdiction will be decided practically. If he (the Officer you approached) cannot understand this basic thing, I am afraid, how can be find a solution for the issue?
LEO (C), I presume he is Labour Enforcement Officer (Central), is not the appropriate person to act as conciliation officer but you can approach the Asst labour Commissioner/ ALC (C). Enforcement officer is an officer appointed to ensure compliance or enforcement of labour laws by making visits to various industries and establishments. Since it is a matter of ID Act, you can approach the state labour department.
Please also refer Paritosh Kumar Pal Vs State of Bihar (1984 Lab.IC.1254 Pat) in which it was observed that situs of employment of the workman will decide the territorial jurisdiction of the Tribunal.
From India, Kannur
LEO (C), I presume he is Labour Enforcement Officer (Central), is not the appropriate person to act as conciliation officer but you can approach the Asst labour Commissioner/ ALC (C). Enforcement officer is an officer appointed to ensure compliance or enforcement of labour laws by making visits to various industries and establishments. Since it is a matter of ID Act, you can approach the state labour department.
Please also refer Paritosh Kumar Pal Vs State of Bihar (1984 Lab.IC.1254 Pat) in which it was observed that situs of employment of the workman will decide the territorial jurisdiction of the Tribunal.
From India, Kannur
Thanks a lot Madhu Sir,
Sir,
As I got information from somewhere that GOI has made Samadhan Portal compulsory atleast for all conciliatory officer pertaining to any labour issues. So, even I make offline complaint, it's necessary for conciliatory officer to lodge this to said portal and keep portal updated for any entire conciliatory life cycle. Can you please verify this whether it's true or not.
Also in Samadhan portal, LEO(C) only is listed as conciliatory officer for Muzaffarpur - My native and working place whereas ALC(C) is listed as conciliatory officer for Patna district, capital city of Bihar and 70 km from Muzaffarpur. What should I do in this situation? Please help me Sir one more time.
As per my knowledge, there is no ALC in Muzaffarpur.
From India, Patna
Sir,
As I got information from somewhere that GOI has made Samadhan Portal compulsory atleast for all conciliatory officer pertaining to any labour issues. So, even I make offline complaint, it's necessary for conciliatory officer to lodge this to said portal and keep portal updated for any entire conciliatory life cycle. Can you please verify this whether it's true or not.
Also in Samadhan portal, LEO(C) only is listed as conciliatory officer for Muzaffarpur - My native and working place whereas ALC(C) is listed as conciliatory officer for Patna district, capital city of Bihar and 70 km from Muzaffarpur. What should I do in this situation? Please help me Sir one more time.
As per my knowledge, there is no ALC in Muzaffarpur.
From India, Patna
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Termination-emp loyment_563.pdf
Termination letter.doc