I was employed as Sr Asstt - Accounts and resigned the company on 12.12.2012. During the tenure of my service, Company had entered into wage settlement agreement with Workers Union on 31.10.2010 giving restrospective effect from 1.12.2008 and the benefits of which were given to me (non-unionised staff). Accordingly, my salary was revised wef 01.11.2014 as per settlement norms. The arrears arising out of the settlement was agreed to be paid by 30.11.2011.This was effected through BOD's approval note for non-unionised staff. I was also given one asstt who was on Contractor's roll and not company's employee.
The arrears arisen as above remained unpaid until my resignation and I was not paid the same on the date of my relieving. Hence, I rejected the final settlement which was forced upon me. Thenafter, I continuosly followed up the matter with the Company's officers including CS who each time assured me of paying the same in due course.
Now, I have approached the office of the Labour Commissioner filing application u/s 33C(1) of the ID Act. Company have submitted that I was not "Workmen" as per section 2(s) of the ID Act stating reasons that I was supervising the work of Asstt and recommending/sanctioning the leave. Company also says that since I was not the member of Workers Union, my claim is disputable in nature and is time barred as the same was not made within one year.
Pl comment.
Thanks
Deepak
From India
The arrears arisen as above remained unpaid until my resignation and I was not paid the same on the date of my relieving. Hence, I rejected the final settlement which was forced upon me. Thenafter, I continuosly followed up the matter with the Company's officers including CS who each time assured me of paying the same in due course.
Now, I have approached the office of the Labour Commissioner filing application u/s 33C(1) of the ID Act. Company have submitted that I was not "Workmen" as per section 2(s) of the ID Act stating reasons that I was supervising the work of Asstt and recommending/sanctioning the leave. Company also says that since I was not the member of Workers Union, my claim is disputable in nature and is time barred as the same was not made within one year.
Pl comment.
Thanks
Deepak
From India
From when was the asst given to you??
Have you been recommending his leave applications?
Are these leave application forms available with company?
The main issue is whether you are a workman-though profession is a skilled one.
Have you any communication that benefit of wage revision is applicable to you?
In John joseph khokar vs. bhadange B. S. & ors 1998 (1) LLJ 447 (bom) it was held that in determining that whether a person is a workman or not the court has to principally see main or substantial work for which he is employed. Neither designation nor any incidental work done by him will get him outside the purview of this Act.
Supervision of asst was incidental to your main clerical job.
How much supervision did you have to do on contractual asst?
You need to contact a labour law specialist for seeing facts on ground and advising you.
You have grounds to contest the appeal of your compay which prima facie has some good points,but deeper scrutiny may help you get benefits of wage revision.
From India, Pune
3131Have you been recommending his leave applications?
Are these leave application forms available with company?
The main issue is whether you are a workman-though profession is a skilled one.
Have you any communication that benefit of wage revision is applicable to you?
In John joseph khokar vs. bhadange B. S. & ors 1998 (1) LLJ 447 (bom) it was held that in determining that whether a person is a workman or not the court has to principally see main or substantial work for which he is employed. Neither designation nor any incidental work done by him will get him outside the purview of this Act.
Supervision of asst was incidental to your main clerical job.
How much supervision did you have to do on contractual asst?
You need to contact a labour law specialist for seeing facts on ground and advising you.
You have grounds to contest the appeal of your compay which prima facie has some good points,but deeper scrutiny may help you get benefits of wage revision.
From India, Pune
In addition to what Mr.Nathrao has rightly observed, I would like to emphsize that the present move of the Management in resisting your claim for arrears of wage revision arising out of the settlement the benefits of which were univocally extended already to the non-unionized category also amounts to approbation and reprobation which is prohibited. Approbate and reprobate means to accept and reject. One can not accept the beneficial part of an instrument while rejecting the other part of the same instrument on account of other reasons. The common law doctrine prohibiting approbation and reprobation is a facet of the law of estoppel. As of now,after revising your salary as per the terms of the settlement, Your company is estopped from making such pleas for refusing to pay arrears of wage revision as per the other terms of the same settlement.
From India, Salem
From India, Salem
Thank you for your valued comments.
Assistant was given for not more than six months. Infact, I was just signing for his attendance on the card and my job was to impart training. There were no separate leave application forms. Company has not communicated the benefits of wage revision in writing to any of non-unionised employees , however I have with me the copy of Office Memo saying that as a practice company revise the salary of non-unionised staff at par with the Unionised staff and the benefits may be given. This note has been signed by members of the BODs.
As you rightly pointed out that my supervision was incidental in nature.
Thanks
Deepak
From India
Assistant was given for not more than six months. Infact, I was just signing for his attendance on the card and my job was to impart training. There were no separate leave application forms. Company has not communicated the benefits of wage revision in writing to any of non-unionised employees , however I have with me the copy of Office Memo saying that as a practice company revise the salary of non-unionised staff at par with the Unionised staff and the benefits may be given. This note has been signed by members of the BODs.
As you rightly pointed out that my supervision was incidental in nature.
Thanks
Deepak
From India
Thank you all. My hearing is fixed on 30th June. But what about company’s other contention that I am not a "workman" under section 2(s) of the ID Act ?
From India
From India
As Senior Assistant if you job would have been clerical in nature,it fall under definition of worker:
Definition of "workman" , is provided under Sec. 2(s) of the Act is as under:
"Workman" is 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 proceedings 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, discharge or retrenchment has led to that dispute.
Read comments by Mr Umakanthan carefully.
It gives you material to understand that settlement entered into with union is equally applicable to you also.
From India, Pune
Definition of "workman" , is provided under Sec. 2(s) of the Act is as under:
"Workman" is 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 proceedings 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, discharge or retrenchment has led to that dispute.
Read comments by Mr Umakanthan carefully.
It gives you material to understand that settlement entered into with union is equally applicable to you also.
From India, Pune
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ID ACT SEC.33(A) A BRIEF NOTE.pdf
ID Act.doc