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
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4482In 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
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Hi Madhu Sir,
Although I am thanking you too late, nonetheless, it's a 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 the territorial jurisdiction of the Labour Court. You believe that it should be Muzaffarpur, i.e., my native place of work, as I was doing WFH as mentioned in my offer letter. However, KK Sir is of the opinion that it should be Mumbai, i.e., the place of the company's office. Since remote work, aka WFH, is a remote phenomenon, I don't think there will be many case laws available.
I am requesting all learned members of the forum, especially Madhu Sir and KK Sir, to clear the confusion about which Labour Court doors I should knock on, supported by any case laws and the interpretation of existing laws. My case is classic and entangled as I was hired by company A located in Mumbai, later acquired by company B operating in India from the Noida office, and my place of work is Muzaffarpur, my native town since the job is remote.
Thanks.
From India, Patna
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Although I am thanking you too late, nonetheless, it's a 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 the territorial jurisdiction of the Labour Court. You believe that it should be Muzaffarpur, i.e., my native place of work, as I was doing WFH as mentioned in my offer letter. However, KK Sir is of the opinion that it should be Mumbai, i.e., the place of the company's office. Since remote work, aka WFH, is a remote phenomenon, I don't think there will be many case laws available.
I am requesting all learned members of the forum, especially Madhu Sir and KK Sir, to clear the confusion about which Labour Court doors I should knock on, supported by any case laws and the interpretation of existing laws. My case is classic and entangled as I was hired by company A located in Mumbai, later acquired by company B operating in India from the Noida office, and my place of work is Muzaffarpur, my native town since the job is remote.
Thanks.
From India, Patna
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Though for filing a complaint under the ID Act, there is no reference as to what the territorial jurisdiction is, 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 labor court although not specified in the Industrial Disputes Act. Please refer to J Balaji Vs the Hindu.
Recently, I have challenged the action 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 even when the appointment order had a clause that all 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 headquarters of the company is located.
From India, Kannur
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Recently, I have challenged the action 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 even when the appointment order had a clause that all 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 headquarters of the company is located.
From India, Kannur
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Many thanks, Madhu Sir, for resolving this confusion. I must appreciate your strong hold over Indian Jurisprudence, especially Labour Laws, and the way you impart your wisdom upon others. Truly commendable.
But, Sir, I want to highlight another confusion. Their appointment letter is a standard format used for all employees, be it permanent or contractual (who get posted at various client sites), 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/clients in India or abroad with no extra remuneration, and you will be governed by the terms and conditions of that respective location.
However, the fact is they are a totally remote company, and none of their on-roll employees work from the Mumbai office.
It is also a fact that they have mentioned in their offer letter to me, under the Benefits 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 to the said job posting is below:
https://www.linkedin.com/jobs/view/2989580294
In the 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 place, they will quote the clause of the Appointment Letter, although I have many proofs that they are a fully remote company. Kindly guide me, Sir. Will the material I have in my possession pertaining to their job be enough to convince the Labour Commissioner, and will it be taken for conciliation for the purpose of Sec 2A of IDA?
Thanks in advance.
From India, Patna
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But, Sir, I want to highlight another confusion. Their appointment letter is a standard format used for all employees, be it permanent or contractual (who get posted at various client sites), 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/clients in India or abroad with no extra remuneration, and you will be governed by the terms and conditions of that respective location.
However, the fact is they are a totally remote company, and none of their on-roll employees work from the Mumbai office.
It is also a fact that they have mentioned in their offer letter to me, under the Benefits 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 to the said job posting is below:
https://www.linkedin.com/jobs/view/2989580294
In the 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 place, they will quote the clause of the Appointment Letter, although I have many proofs that they are a fully remote company. Kindly guide me, Sir. Will the material I have in my possession pertaining to their job be enough to convince the Labour Commissioner, and will it be taken for conciliation for the purpose of Sec 2A of IDA?
Thanks in advance.
From India, Patna
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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
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From India, Kannur
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Hi Madhu Sir,
Thanks from the core of my heart for helping me throughout with your legal acumen.
Sir, kindly clear doubts regarding my amateur reading of the judgment 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."
In my case, the termination mail was issued from their only office in India, i.e., from Mumbai. As such, I have not received any termination letter (hard copy) at my native place, Muzaffarpur, since the Full and Final Settlement is pending at my request, citing the matter is sub judice. Therefore, I asked them to postpone the FnF for now.
In my appointment letter, it clearly mentions that my place of posting is Mumbai. I only have two courier slips for their laptop pick-up, the offer letter which mentions "Work from Home" under benefits section, one mail chain detailing communication with the company regarding laptop pick-up from my house, and one job posting which clearly mentions remote work.
Please correct my naive reading of the judgment and evaluate the proofs in my possession. Let me know if I would be able to convince the LEO(C) of Muzaffarpur. Will he have the acumen and patience to hear me out and accept my complaint under 2A of IDA? Since there are no case laws pertaining to jurisdiction in remote work or work from home (due to its recent emergence) in general, and specifically in my case where the appointment letter clearly states that the place of posting is Mumbai.
Please note that he is just a LEO(C) of Muzaffarpur, Bihar, not like the very rational, upright, and bright legal minds found in some High Courts and Supreme Courts.
Please enlighten me once more, as you have continuously done this noble and compassionate act.
Thanks.
From India, Patna
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Thanks from the core of my heart for helping me throughout with your legal acumen.
Sir, kindly clear doubts regarding my amateur reading of the judgment 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."
In my case, the termination mail was issued from their only office in India, i.e., from Mumbai. As such, I have not received any termination letter (hard copy) at my native place, Muzaffarpur, since the Full and Final Settlement is pending at my request, citing the matter is sub judice. Therefore, I asked them to postpone the FnF for now.
In my appointment letter, it clearly mentions that my place of posting is Mumbai. I only have two courier slips for their laptop pick-up, the offer letter which mentions "Work from Home" under benefits section, one mail chain detailing communication with the company regarding laptop pick-up from my house, and one job posting which clearly mentions remote work.
Please correct my naive reading of the judgment and evaluate the proofs in my possession. Let me know if I would be able to convince the LEO(C) of Muzaffarpur. Will he have the acumen and patience to hear me out and accept my complaint under 2A of IDA? Since there are no case laws pertaining to jurisdiction in remote work or work from home (due to its recent emergence) in general, and specifically in my case where the appointment letter clearly states that the place of posting is Mumbai.
Please note that he is just a LEO(C) of Muzaffarpur, Bihar, not like the very rational, upright, and bright legal minds found in some High Courts and Supreme Courts.
Please enlighten me once more, as you have continuously done this noble and compassionate act.
Thanks.
From India, Patna
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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
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From India, Patna
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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. He kept insisting that since the Company is in Mumbai, your case will come under the jurisdiction of the Mumbai Labour Court. After my elaborate narration of facts and my strong convincing, he asked, "Does your company have an office in Bihar?" Then he switched to another tune and said, "While filing a case through the Samadhan portal, put the name of your company and your address in place of the address of the establishment." My whole point is that he was not really a bright officer, having sharp legal acumen and being gullible. I may encounter a similar kind of officer in Muzaffarpur also. Who knows?
From India, Patna
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From India, Patna
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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 territorial jurisdiction to address a worker complaint under any law, such as the ID Act, the jurisdiction will be decided practically. If he (the Officer you approached) cannot understand this basic thing, I am afraid, how can he find a solution for the issue?
LEO (C), I presume he is Labour Enforcement Officer (Central), is not the appropriate person to act as a conciliation officer, but you can approach the Asst Labour Commissioner/ ALC (C). An 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 the ID Act, you can approach the state labour department.
Please also refer to Paritosh Kumar Pal Vs State of Bihar (1984 Lab.IC.1254 Pat) in which it was observed that the situs of employment of the workman will decide the territorial jurisdiction of the Tribunal.
From India, Kannur
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LEO (C), I presume he is Labour Enforcement Officer (Central), is not the appropriate person to act as a conciliation officer, but you can approach the Asst Labour Commissioner/ ALC (C). An 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 the ID Act, you can approach the state labour department.
Please also refer to Paritosh Kumar Pal Vs State of Bihar (1984 Lab.IC.1254 Pat) in which it was observed that the situs of employment of the workman will decide the territorial jurisdiction of the Tribunal.
From India, Kannur
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Thanks a lot Madhu Sir,
Sir, As I got information from somewhere that GOI has made Samadhan Portal compulsory at least for all conciliatory officers pertaining to any labor issues. So, even if I make an offline complaint, it's necessary for the conciliatory officer to lodge this to the said portal and keep the portal updated for the entire conciliatory life cycle. Can you please verify whether this is true or not?
Also, in the Samadhan portal, LEO(C) only is listed as the conciliatory officer for Muzaffarpur - my native and working place, whereas ALC(C) is listed as the conciliatory officer for the Patna district, the 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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Sir, As I got information from somewhere that GOI has made Samadhan Portal compulsory at least for all conciliatory officers pertaining to any labor issues. So, even if I make an offline complaint, it's necessary for the conciliatory officer to lodge this to the said portal and keep the portal updated for the entire conciliatory life cycle. Can you please verify whether this is true or not?
Also, in the Samadhan portal, LEO(C) only is listed as the conciliatory officer for Muzaffarpur - my native and working place, whereas ALC(C) is listed as the conciliatory officer for the Patna district, the 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