Hi Friends,
I find myself in a fix and need your help. Ours is a small private limited company. Our MD has a company-owned car, and he has a personal driver to drive the same. Over the last two years, the driver has been misbehaving and habitually absent. A few days back, our MD relieved him of his duty due to the continuous complaints and misbehavior. He then went to the driver's union and claimed that he was an employee of the company and that the company had illegally terminated his services. They put up posters and turned violent as well. He was never an employee of the company, but today he is resorting to violent means and pressuring us. Police complaints etc. have had no effect on their actions.
For your information, our company does not have any drivers on our payroll. I was wondering if all of you with so much experience in HR could guide me on what steps the company should take in this situation.
jeetu
From India, Calcutta
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I find myself in a fix and need your help. Ours is a small private limited company. Our MD has a company-owned car, and he has a personal driver to drive the same. Over the last two years, the driver has been misbehaving and habitually absent. A few days back, our MD relieved him of his duty due to the continuous complaints and misbehavior. He then went to the driver's union and claimed that he was an employee of the company and that the company had illegally terminated his services. They put up posters and turned violent as well. He was never an employee of the company, but today he is resorting to violent means and pressuring us. Police complaints etc. have had no effect on their actions.
For your information, our company does not have any drivers on our payroll. I was wondering if all of you with so much experience in HR could guide me on what steps the company should take in this situation.
jeetu
From India, Calcutta
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Dear Jeetu,
Immediately seek legal advice from a criminal lawyer and a labor lawyer. Probably obtain a stay order of approximately 200 to 300 meters from your premises through the court, submit a copy of the same to the local police station and SP office. The administration will automatically take care of it. Ensure you do all these in consultation with both lawyers.
Regards,
From India, Delhi
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7Immediately seek legal advice from a criminal lawyer and a labor lawyer. Probably obtain a stay order of approximately 200 to 300 meters from your premises through the court, submit a copy of the same to the local police station and SP office. The administration will automatically take care of it. Ensure you do all these in consultation with both lawyers.
Regards,
From India, Delhi
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Dear,
You may see the following passages in a Judgment:
The management of Bank is a nationalized Bank and therefore, they have to follow the procedure prescribed for public appointment while selecting employees. Admittedly, the workmen involved in the industrial dispute did not undergo any selection process whatsoever. Both the workmen stated during evidence that they came to know about the vacancy from others and approached the respective officers. When they approached the Manager of the NRI Branch and W.P.(C).15967/2007 Regional Manager respectively offering their services as drivers, they were interviewed by the Executives, perused their licenses, enquired about their experience as drivers. It was thereafter, the respective officer asked them to join duty. It is also admitted that the Bank was reimbursing the officers, the wages paid to them for their personal drivers. There was nothing on record to show that the Bank had directly paid any wages to the workmen. After appreciating this evidence, Labour Court came to the finding that the very document produced by claimants themselves show that they were engaged as personal drivers of the Officers. The evidence reveals that they were neither appointed nor terminated by the Bank. Bank had not exercised supervision or control over the workmen. They were not paid by the Bank but by the Officers directly. No leave was even applied for or granted by the Bank to these workmen at any time. It is in the light of these overwhelming materials on record, Tribunal came to the conclusion that the workmen were not employees of the Bank but personal drivers of the Officers concerned.
The counsel for the petitioner relied heavily on the decision in Bank of Baroda v. Ghemarbhai Harjibhai Rabari (2005 (2) supreme 628), the facts of which, according to the petitioner, are on all fours with the facts of this case. But I find from that decision that, in that decision, the Supreme Court relied on certain vouchers for payment of wages to the drivers involved in that case to come to the conclusion that the workmen were actually employed by the Bank itself. In this case, vouchers were produced in evidence all of which show that the payment was as reimbursement to the officers who were employing the workmen as personal drivers and there was no direct payment by the Bank to the workmen.
Further, you may see the definition of workman:
Sub-section 13 of section 2 defines employee as under:
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical, or clerical work for hire or reward whether the terms of employment for the purpose of conducting the undertaking entrusts the execution of the whole or any part of any work which is ordinarily a part of the undertaking, to any person otherwise than as the servant or agent of the owner, the owner of the undertaking".
Sub-section 13 of section 2 defines employee as under:
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical, or clerical work for hire or reward whether the terms of employment be express or implied, and includes .......".
In the above cases, they were Nationalized Banks. In your case, you say it is a small Factory and a single Driver and Company-owned car the law will be favorable to the Driver as it is a perennial job and it can be argued to avoid pay-rolling him he was retained as a personal driver. It is better to take him back, bring him on the rolls and if he misbehaves, terminate him after holding an inquiry.
With Regards
Advocates & Notaries & Legal Consultants [HR]
E-mail: rajanassociates@eth.net
-9025792684.
From India, Bangalore
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You may see the following passages in a Judgment:
The management of Bank is a nationalized Bank and therefore, they have to follow the procedure prescribed for public appointment while selecting employees. Admittedly, the workmen involved in the industrial dispute did not undergo any selection process whatsoever. Both the workmen stated during evidence that they came to know about the vacancy from others and approached the respective officers. When they approached the Manager of the NRI Branch and W.P.(C).15967/2007 Regional Manager respectively offering their services as drivers, they were interviewed by the Executives, perused their licenses, enquired about their experience as drivers. It was thereafter, the respective officer asked them to join duty. It is also admitted that the Bank was reimbursing the officers, the wages paid to them for their personal drivers. There was nothing on record to show that the Bank had directly paid any wages to the workmen. After appreciating this evidence, Labour Court came to the finding that the very document produced by claimants themselves show that they were engaged as personal drivers of the Officers. The evidence reveals that they were neither appointed nor terminated by the Bank. Bank had not exercised supervision or control over the workmen. They were not paid by the Bank but by the Officers directly. No leave was even applied for or granted by the Bank to these workmen at any time. It is in the light of these overwhelming materials on record, Tribunal came to the conclusion that the workmen were not employees of the Bank but personal drivers of the Officers concerned.
The counsel for the petitioner relied heavily on the decision in Bank of Baroda v. Ghemarbhai Harjibhai Rabari (2005 (2) supreme 628), the facts of which, according to the petitioner, are on all fours with the facts of this case. But I find from that decision that, in that decision, the Supreme Court relied on certain vouchers for payment of wages to the drivers involved in that case to come to the conclusion that the workmen were actually employed by the Bank itself. In this case, vouchers were produced in evidence all of which show that the payment was as reimbursement to the officers who were employing the workmen as personal drivers and there was no direct payment by the Bank to the workmen.
Further, you may see the definition of workman:
Sub-section 13 of section 2 defines employee as under:
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical, or clerical work for hire or reward whether the terms of employment for the purpose of conducting the undertaking entrusts the execution of the whole or any part of any work which is ordinarily a part of the undertaking, to any person otherwise than as the servant or agent of the owner, the owner of the undertaking".
Sub-section 13 of section 2 defines employee as under:
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical, or clerical work for hire or reward whether the terms of employment be express or implied, and includes .......".
In the above cases, they were Nationalized Banks. In your case, you say it is a small Factory and a single Driver and Company-owned car the law will be favorable to the Driver as it is a perennial job and it can be argued to avoid pay-rolling him he was retained as a personal driver. It is better to take him back, bring him on the rolls and if he misbehaves, terminate him after holding an inquiry.
With Regards
Advocates & Notaries & Legal Consultants [HR]
E-mail: rajanassociates@eth.net
-9025792684.
From India, Bangalore
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Dear Rajan Associates,
Kindly provide complete information on the reference of the judgment. It is a remarkable judgment, especially the last paragraph:
"In the above cases, they were Nationalized Banks. In your case, you say it is a small factory and a single driver with a company-owned car. The law will be favorable to the driver as it is a perennial job. It can be argued that to avoid payrolling him, he was retained as a personal driver. It is advisable to rehire him, bring him onto the payroll, and if he misbehaves, terminate him after conducting an inquiry."
This point regarding a driver operating a company-owned car is often overlooked by managers in an organization, unlike an operator using "company-owned equipment."
Thank you.
From India, Delhi
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Kindly provide complete information on the reference of the judgment. It is a remarkable judgment, especially the last paragraph:
"In the above cases, they were Nationalized Banks. In your case, you say it is a small factory and a single driver with a company-owned car. The law will be favorable to the driver as it is a perennial job. It can be argued that to avoid payrolling him, he was retained as a personal driver. It is advisable to rehire him, bring him onto the payroll, and if he misbehaves, terminate him after conducting an inquiry."
This point regarding a driver operating a company-owned car is often overlooked by managers in an organization, unlike an operator using "company-owned equipment."
Thank you.
From India, Delhi
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Hi,
I am sharing my experience on this matter. I am running a Pvt Ltd Company and had a driver for many years. Though the car is in my name and the driver was on the company's payroll, I have always considered the role of the driver to be very important. Recently, he has left the services due to health reasons and received all his statutory claims. Above all, he is much happier as he was treated as one of the company's staff.
I am sharing these thoughts for the benefit of our members.
Regards,
AVS
From India, Madras
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I am sharing my experience on this matter. I am running a Pvt Ltd Company and had a driver for many years. Though the car is in my name and the driver was on the company's payroll, I have always considered the role of the driver to be very important. Recently, he has left the services due to health reasons and received all his statutory claims. Above all, he is much happier as he was treated as one of the company's staff.
I am sharing these thoughts for the benefit of our members.
Regards,
AVS
From India, Madras
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Dear Rajkumar Sab,
The last paragraph, i.e., "In the above cases, they were Nationalised Banks. In your case, you say it is a small factory with a single driver and a company-owned car. The law will be favorable to the driver as it is a perennial job, and it can be argued that to avoid payrolling him, he was retained as a personal driver. It is better to take him back, bring him on the rolls, and if he misbehaves, terminate him after holding an inquiry." was our view and not that of the Court. The details of the judgment we shall post soon.
With Regards,
Advocates & Notaries & Legal Consultants [HR]
E-mail: rajanassociates@eth.net
9025792684.
From India, Bangalore
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The last paragraph, i.e., "In the above cases, they were Nationalised Banks. In your case, you say it is a small factory with a single driver and a company-owned car. The law will be favorable to the driver as it is a perennial job, and it can be argued that to avoid payrolling him, he was retained as a personal driver. It is better to take him back, bring him on the rolls, and if he misbehaves, terminate him after holding an inquiry." was our view and not that of the Court. The details of the judgment we shall post soon.
With Regards,
Advocates & Notaries & Legal Consultants [HR]
E-mail: rajanassociates@eth.net
9025792684.
From India, Bangalore
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Dear Rajan & Associates,
Thanks for the clarifications - earlier, I was under the impression that it was a part of the judgment! Nevertheless, it would still be interesting to read the full judgment.
Warm regards.
From India, Delhi
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Thanks for the clarifications - earlier, I was under the impression that it was a part of the judgment! Nevertheless, it would still be interesting to read the full judgment.
Warm regards.
From India, Delhi
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Thank you all for the posts. This is to clarify that ours is a medical facility and our MD is a doctor himself. The driver has always been his personal driver. There is no question of any malafide intention on our part as avoiding a company status, etc. He has always been taken care of and gets a salary almost double that of a company driver's salary, i.e., without the perks, etc. He has an advance of around 50,000 as of today and over a period of the last 10 years built his own house with inputs from our MD.
Anyway, it is not important now as he has been misled by certain people into taking these steps and has gone ahead and even threatened the life of our MD and said he would disrupt the activities of the clinic also. So taking him back is totally out of the question.
From India, Calcutta
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Anyway, it is not important now as he has been misled by certain people into taking these steps and has gone ahead and even threatened the life of our MD and said he would disrupt the activities of the clinic also. So taking him back is totally out of the question.
From India, Calcutta
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You have an unfortunate problem.
As you have already seen, this is an HR problem, not legal. You will have to see if you can go to the union and show them evidence that he was never a company employee and details of his behavior. If that does not work, then getting a stay from the court is the option. Perhaps going to the cops with details of the death threat may help goad them to action.
In the end, you may have to do a cash settlement with the union to stop the agitation.
From India, Mumbai
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As you have already seen, this is an HR problem, not legal. You will have to see if you can go to the union and show them evidence that he was never a company employee and details of his behavior. If that does not work, then getting a stay from the court is the option. Perhaps going to the cops with details of the death threat may help goad them to action.
In the end, you may have to do a cash settlement with the union to stop the agitation.
From India, Mumbai
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Dear,
As long as he is working, there is no issue. Now, termination is an issue. The good things you have done for him cannot and will not influence the court in deciding the matter. It will only consider the legality of the termination. That is where you will have to face issues. The union getting involved in this makes it more complicated. It would be better to go for negotiation through an intermediary.
Rajan Associates
From India, Bangalore
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As long as he is working, there is no issue. Now, termination is an issue. The good things you have done for him cannot and will not influence the court in deciding the matter. It will only consider the legality of the termination. That is where you will have to face issues. The union getting involved in this makes it more complicated. It would be better to go for negotiation through an intermediary.
Rajan Associates
From India, Bangalore
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If he has openly threatened your MD with harm to his life, please file an FIR against him with the concerned Police Station. You will require the services of a good Criminal Lawyer to pursue the matter.
If the Drivers' Union has been resorting to violence outside the Clinic or the home of the MD, you may obtain a restraint order from the Court of proper jurisdiction, restraining the Driver and the Union members from holding any kind of demonstration within a radius of 200 meters of the premises where the Clinic (the workplace) and the MD's residence are located. The Police cannot refuse to do so. If they do, then you should approach the higher-ups and get your complaint registered. You will have to take a tough stand.
Best Wishes,
Vasant Nair
From India, Mumbai
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If the Drivers' Union has been resorting to violence outside the Clinic or the home of the MD, you may obtain a restraint order from the Court of proper jurisdiction, restraining the Driver and the Union members from holding any kind of demonstration within a radius of 200 meters of the premises where the Clinic (the workplace) and the MD's residence are located. The Police cannot refuse to do so. If they do, then you should approach the higher-ups and get your complaint registered. You will have to take a tough stand.
Best Wishes,
Vasant Nair
From India, Mumbai
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Dear,
Before entering the negotiation, collect the evidence that is against the driver and based on that, you may enter into a settlement. If no use, do one more thing: find out the reason that makes the unions support that driver and address it. In the future, try to maintain a smooth relationship with unions to avoid this type of situation.
Regards,
PvS.
From India, Madras
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Before entering the negotiation, collect the evidence that is against the driver and based on that, you may enter into a settlement. If no use, do one more thing: find out the reason that makes the unions support that driver and address it. In the future, try to maintain a smooth relationship with unions to avoid this type of situation.
Regards,
PvS.
From India, Madras
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Courts go by evidence and not by sentiments. A judge's duty is to interpret the law in the given circumstances. His interpretation may favor one side of the dispute and go against the other.
So, it is very important that you collect all your evidence and engage in negotiation. Try to offer some terminal compensations as part of the settlement. Get the settlement signed by the driver in the presence of witnesses (Union Leaders). Pay only through a crossed cheque.
If nothing materializes, well, you have the option to go to court and obtain a permanent injunction against the driver and the union.
From India, Chandigarh
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So, it is very important that you collect all your evidence and engage in negotiation. Try to offer some terminal compensations as part of the settlement. Get the settlement signed by the driver in the presence of witnesses (Union Leaders). Pay only through a crossed cheque.
If nothing materializes, well, you have the option to go to court and obtain a permanent injunction against the driver and the union.
From India, Chandigarh
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Can you clarify and confirm the following:
1. The driver was the personal driver of the MD.
2. He was paid his salary by the MD in his personal capacity.
3. The company does not maintain his name in the payroll.
4. The driver was never a part of the company.
5. Have you filed any complaint against the vandalism?
6. Have you approached the executive court for a 144 order?
From India, Calcutta
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1. The driver was the personal driver of the MD.
2. He was paid his salary by the MD in his personal capacity.
3. The company does not maintain his name in the payroll.
4. The driver was never a part of the company.
5. Have you filed any complaint against the vandalism?
6. Have you approached the executive court for a 144 order?
From India, Calcutta
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The driver was the personal driver of MD. He was paid his salary by the MD in his personal capacity. The company does not maintain his name in the payroll. The driver was never a part of the company. We filed a FIR after he put up posters, abused our staff, and threatened them with dire consequences. Then he was joined by two other drivers working in the MD's house for his extended family along with union people. There were multiple episodes of threats to life and property. We kept the local police informed of the developments and got a sec 144 issued in the clinic region.
In spite of this, they again put up posters, threatened, and abused our MD. After all this, they reported to duty in the house and demanded to be reinstated. Our MD told them that after all the threats, he could no longer consider keeping the three of them back as the trust and confidence needed in a driver is lost. He can no longer trust them with the children and grandchildren in the house. Hence, you can come and collect your dues, if any, peacefully. They today threatened to hold a big demonstration in the clinic tomorrow. We have informed the police and arranged a lawyer today.
From India, Calcutta
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In spite of this, they again put up posters, threatened, and abused our MD. After all this, they reported to duty in the house and demanded to be reinstated. Our MD told them that after all the threats, he could no longer consider keeping the three of them back as the trust and confidence needed in a driver is lost. He can no longer trust them with the children and grandchildren in the house. Hence, you can come and collect your dues, if any, peacefully. They today threatened to hold a big demonstration in the clinic tomorrow. We have informed the police and arranged a lawyer today.
From India, Calcutta
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Company Car Policy.doc