Dear Gurunadh, if you have gone through various replies to the thread you should not have resorted to such beautiful words from the artificial intelligence or ChatGPT. Please have the patience to read the posts/ replies and then give some inputs which others have not given. That would benefit Rahul very much.
From India, Kannur
4248From India, Kannur
Hi Madhu Sir,
It's pertaining to your 2nd last post dated 25th Dec. Sir, any word would be insufficient to say you Thanks.
Sir, I am extremely grateful and admirer of your sharp and intelligent legal acumen and way you express it which makes it very easy to understand by reader and at the same time giving very honest opinion about my legal standing viz-a-viz my case.
Sir, 2 questions also 🙂.
1. If any company A is completely overtaken by company B, then what is legal standing of Employment Contract with company A? Will it still remains valid?
2. What is legal position of 'At-Will employment contract'? Is it valid?
Salute Sir.
Just FYI - As you suggested, I met DLC of my district couple of days ago and it was fruitful. He said that 1st step is to send notice to all respondents which he will do in couple of days.
From India, Patna
It's pertaining to your 2nd last post dated 25th Dec. Sir, any word would be insufficient to say you Thanks.
Sir, I am extremely grateful and admirer of your sharp and intelligent legal acumen and way you express it which makes it very easy to understand by reader and at the same time giving very honest opinion about my legal standing viz-a-viz my case.
Sir, 2 questions also 🙂.
1. If any company A is completely overtaken by company B, then what is legal standing of Employment Contract with company A? Will it still remains valid?
2. What is legal position of 'At-Will employment contract'? Is it valid?
Salute Sir.
Just FYI - As you suggested, I met DLC of my district couple of days ago and it was fruitful. He said that 1st step is to send notice to all respondents which he will do in couple of days.
From India, Patna
Good.
The answer to your query is that when an existing establishment is taken over by another unit, there will be a tri partite settlement, the employer of the company A which will get liquidated by means of acquisition by company B , employer of the company B and the employees of company A, in which the service conditions will be discussed and settled. The important thing is that there should be an understanding about the treatment of service for future gratuity and compensation under ID Act. If the Compnay B does not agree to consider the service for these things, there should be option for payment of compensation and gratuity before the take over happens. Moreover, in the case of companies other than sole proprietorships and partnerships, the acquisition will be on the basis of a Court Order.
From India, Kannur
The answer to your query is that when an existing establishment is taken over by another unit, there will be a tri partite settlement, the employer of the company A which will get liquidated by means of acquisition by company B , employer of the company B and the employees of company A, in which the service conditions will be discussed and settled. The important thing is that there should be an understanding about the treatment of service for future gratuity and compensation under ID Act. If the Compnay B does not agree to consider the service for these things, there should be option for payment of compensation and gratuity before the take over happens. Moreover, in the case of companies other than sole proprietorships and partnerships, the acquisition will be on the basis of a Court Order.
From India, Kannur
Thanks a ton Madhu Sir for such a lightning fast response yet accurate and to the point while addressing the query in comprehensive manner.
Also I forgot to add to my last comment pertaining to your response posted on 25th Dec.
The usual communication has been in my company through mail but important documents always accompanied by digitally signature by authorities like my Offer Letter, Appointment,Letter, My increment letter etc. came in form of PDF attachment digitally signed by top management. This format has been the universal mode of all important communications by company.
Just FYI.
From India, Patna
Also I forgot to add to my last comment pertaining to your response posted on 25th Dec.
The usual communication has been in my company through mail but important documents always accompanied by digitally signature by authorities like my Offer Letter, Appointment,Letter, My increment letter etc. came in form of PDF attachment digitally signed by top management. This format has been the universal mode of all important communications by company.
Just FYI.
From India, Patna
Hi Sam,
This question is already answered by extremely learned Madhu Sir.
But let me also try my to answer your query.
As per sec 2(s) of ID Act, I am just reproducing from indiakanoon site
workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, dischasrge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950 ), or the Army Act, 1950 (46 of 1950 ), or the Navy Act, 1957 (62 of 1957 ); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding 10 thousand per month or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Even if someone not included in above 4 exclusion doesn't automatically becomes a workman, his work must be among manual, unskilled, skilled, technical, operational
Supervisor I purposefully not included because there is less chance to him getting 20K pm.
The Managerial or supervisory test is you must be not doing below activities for qualified for a workman
a. Sanction their subordinates’ leave;
b. Take disciplinary action against subordinates;
c. Distribute work; or
d. Bind the employer by taking decisions on behalf of the employer.
If a Technical Recruiter is not doing above 4 activities and he is doing any manual, unskilled, skilled, technical, operational, clerical will fall under definition of workman.
The usual JD of a Technical Recruiter is to prepare JDs, understand the requirements mentioned in the JD, post the JD through various job portal, source the suitable candidates, pre-interview for the purpose of fitment all applying his technical skills. Also keep updating internal ATS database, coordinating interview, preparing report, sending status report to management, all falling under clerical work.
So, His job falls under Technical, Skilled & Clerical in nature. Therefore he is a workman under IDA.
I have attached a sample JD of Technical Recruiter and read his roles and responsibilities carefully.
It's better you read Madhu Sir's post in this thread.
Thanks.
From India, Patna
This question is already answered by extremely learned Madhu Sir.
But let me also try my to answer your query.
As per sec 2(s) of ID Act, I am just reproducing from indiakanoon site
workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, dischasrge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950 ), or the Army Act, 1950 (46 of 1950 ), or the Navy Act, 1957 (62 of 1957 ); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding 10 thousand per month or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Even if someone not included in above 4 exclusion doesn't automatically becomes a workman, his work must be among manual, unskilled, skilled, technical, operational
Supervisor I purposefully not included because there is less chance to him getting 20K pm.
The Managerial or supervisory test is you must be not doing below activities for qualified for a workman
a. Sanction their subordinates’ leave;
b. Take disciplinary action against subordinates;
c. Distribute work; or
d. Bind the employer by taking decisions on behalf of the employer.
If a Technical Recruiter is not doing above 4 activities and he is doing any manual, unskilled, skilled, technical, operational, clerical will fall under definition of workman.
The usual JD of a Technical Recruiter is to prepare JDs, understand the requirements mentioned in the JD, post the JD through various job portal, source the suitable candidates, pre-interview for the purpose of fitment all applying his technical skills. Also keep updating internal ATS database, coordinating interview, preparing report, sending status report to management, all falling under clerical work.
So, His job falls under Technical, Skilled & Clerical in nature. Therefore he is a workman under IDA.
I have attached a sample JD of Technical Recruiter and read his roles and responsibilities carefully.
It's better you read Madhu Sir's post in this thread.
Thanks.
From India, Patna
Sorry Sam, Supervisor salary ceiling is 10K per month, I mistyped 20 K. And missed attaching JD so attaching now
From India, Patna
From India, Patna
Respected Madhu Sir,
My conciliation process starts next week.
My company will say that I am not a workman.
So, Burden of Proving I am workman will fall on me or Burden of proving i am not a workman will fall on Employer?
Since they have blocked my account - Mail, Chat, all their applications suddenly and without any intimation and i never in my dream thought it will happen so i have not collected any proofs.
Luckily i have 2-3 documents including their JD which they posted on job site and few mails which i am attaching. Kindly go through this and please advise me whether i will be able to establish that i am a workman with these few documents?
Fact is in Company i didn't have any subordinates reporting to me so, never sanctioned leave, never took any disciplinary actions, never distributed any work. But how i am going to establish these facts?
Also, They might do some mischief and plant some evidence in system.
Thanks,
Rahul - my Pen name.
From India, Patna
My conciliation process starts next week.
My company will say that I am not a workman.
So, Burden of Proving I am workman will fall on me or Burden of proving i am not a workman will fall on Employer?
Since they have blocked my account - Mail, Chat, all their applications suddenly and without any intimation and i never in my dream thought it will happen so i have not collected any proofs.
Luckily i have 2-3 documents including their JD which they posted on job site and few mails which i am attaching. Kindly go through this and please advise me whether i will be able to establish that i am a workman with these few documents?
Fact is in Company i didn't have any subordinates reporting to me so, never sanctioned leave, never took any disciplinary actions, never distributed any work. But how i am going to establish these facts?
Also, They might do some mischief and plant some evidence in system.
Thanks,
Rahul - my Pen name.
From India, Patna
If the employer is saying that you would not come under the scope of ID Act, he has to produce the evidences. If you are confident that your work was mainly and solely clerical, why do you worry? face the hearing. I am sure that the employer will ask for adjournment in the first hearing so that they can get a little more time.
From India, Kannur
From India, Kannur
Respected Madhu Sir,
Other learned members can also pitch in.
Sir,
Out of 4 exclusions under sec 2(s) of ID Act which gives definition of workman, exclusion no 3 read as follows:
(iii) who is employed mainly in a managerial or administrative capacity; or
So, my question is what was intention of legislature or court interpretations that is to treat
i) managerial and administrative belonging interchangeably to same class
Or
ii) Each of two as a distinct independent class?
If 2nd view is correct than what is meaning of employed in 'Administrative' capacity? What exactly is legal meaning of 'Administrative'?
Kindly clear my confusion with your profound wisdom.
Thanks.
From India, Patna
Other learned members can also pitch in.
Sir,
Out of 4 exclusions under sec 2(s) of ID Act which gives definition of workman, exclusion no 3 read as follows:
(iii) who is employed mainly in a managerial or administrative capacity; or
So, my question is what was intention of legislature or court interpretations that is to treat
i) managerial and administrative belonging interchangeably to same class
Or
ii) Each of two as a distinct independent class?
If 2nd view is correct than what is meaning of employed in 'Administrative' capacity? What exactly is legal meaning of 'Administrative'?
Kindly clear my confusion with your profound wisdom.
Thanks.
From India, Patna
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Termination-emp loyment_563.pdf
Termination letter.doc