Dear Seniors,
If the workman worked for more than 5 years in a company and failed to complete 240 days prior to being retrenched by the employer, then in the said case, as the workman failed to complete 240 days in the preceding year, can the employer avoid the procedure under Section 25 of IDA despite the fact that all the remaining periods of 5 years the workman completed 240 days in all the years?
Thanks in anticipation...!!!
From India, Pune
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494If the workman worked for more than 5 years in a company and failed to complete 240 days prior to being retrenched by the employer, then in the said case, as the workman failed to complete 240 days in the preceding year, can the employer avoid the procedure under Section 25 of IDA despite the fact that all the remaining periods of 5 years the workman completed 240 days in all the years?
Thanks in anticipation...!!!
From India, Pune
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Dear Prashant,
I hope the following section will address your query:
Section 25F in The Industrial Disputes Act, 1947
25F. Conditions precedent to retrenchment of workmen - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until:
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
Thanks,
V K Gupta
From India, Panipat
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I hope the following section will address your query:
Section 25F in The Industrial Disputes Act, 1947
25F. Conditions precedent to retrenchment of workmen - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until:
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
Thanks,
V K Gupta
From India, Panipat
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The 240 days are not counted only for the year just prior to retrenchment. If the employee has completed 240 days in any one year, he cannot be retrenched without complying with sec 25F/25N of the ID Act.
Varghese Mathew
From India, Thiruvananthapuram
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Varghese Mathew
From India, Thiruvananthapuram
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Dear Prashant,
Now, I would like to further clarify that if you retrench an employee, no other person can be appointed to that post. If you have to refill that post, the person who was retrenched would have to be given the opportunity to be appointed. If he refuses in writing, only then will you be able to appoint another person to that post. Therefore, if you retrench any person, careful consideration, action, and implementation are required. "Retrenched" means that you have abolished the post.
OK
Thanks,
V K Gupta
From India, Panipat
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Now, I would like to further clarify that if you retrench an employee, no other person can be appointed to that post. If you have to refill that post, the person who was retrenched would have to be given the opportunity to be appointed. If he refuses in writing, only then will you be able to appoint another person to that post. Therefore, if you retrench any person, careful consideration, action, and implementation are required. "Retrenched" means that you have abolished the post.
OK
Thanks,
V K Gupta
From India, Panipat
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Dear Prashant,
One point to consider further before retrenching an employee is the seniority of the employee in the category. The principle of 'LAST COME FIRST GO' should be followed. In other words, you cannot pick and choose. Please refer to Section 25G of the Act.
You might be thinking that I am writing in pieces. In fact, Section 25 of the ID Act is long and crucial and cannot be understood in one go. So please don't mind.
Thanks,
V K Gupta
From India, Panipat
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One point to consider further before retrenching an employee is the seniority of the employee in the category. The principle of 'LAST COME FIRST GO' should be followed. In other words, you cannot pick and choose. Please refer to Section 25G of the Act.
You might be thinking that I am writing in pieces. In fact, Section 25 of the ID Act is long and crucial and cannot be understood in one go. So please don't mind.
Thanks,
V K Gupta
From India, Panipat
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Dear Prashant,
As per the ID Act, retrenchment benefits of 15 days' average pay for every completed year or any part exceeding six months are to be provided to the retrenched workmen. Please consider those years in which the workmen fulfill the condition of a completed year, i.e., 240 days.
If a workman has completed 240 days in all of the past 4 years and has not completed 240 days in the last year, then the benefits for the 4 years should be paid to the workmen.
Thanks
From India, Mumbai
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As per the ID Act, retrenchment benefits of 15 days' average pay for every completed year or any part exceeding six months are to be provided to the retrenched workmen. Please consider those years in which the workmen fulfill the condition of a completed year, i.e., 240 days.
If a workman has completed 240 days in all of the past 4 years and has not completed 240 days in the last year, then the benefits for the 4 years should be paid to the workmen.
Thanks
From India, Mumbai
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Dear Prashant,
Let me point out that the retrenchment issue doesn't relate to Section 25 of The Industrial Disputes Act, 1947 as mentioned by you. Section 25 of The Industrial Disputes Act, 1947 deals with the 'Prohibition of financial aid to illegal strikes and Lockouts'. Chapter VA & Chapter VB contain Section 25A to Section 25S, which deal with retrenchment and other related issues. Chapter VA is applicable to industrial establishments in which fewer than fifty workmen have been employed or to industrial establishments that are of a seasonal character or in which work is performed only intermittently, whereas Chapter VB deals with an industrial establishment employing not less than one hundred workmen in the preceding twelve months.
As regards your query relating to retrenchment, Sh. V. K. Gupta has nicely explained the provisions. Section 25F(b) clearly mentions that if a workman completes continuous service of more than one year and thereafter any part in excess of six months shall be counted as one year for the purpose of granting retrenchment compensation.
I hope I have been able to answer your query.
BS Kalsi
Member since Aug 2011
From India, Mumbai
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Let me point out that the retrenchment issue doesn't relate to Section 25 of The Industrial Disputes Act, 1947 as mentioned by you. Section 25 of The Industrial Disputes Act, 1947 deals with the 'Prohibition of financial aid to illegal strikes and Lockouts'. Chapter VA & Chapter VB contain Section 25A to Section 25S, which deal with retrenchment and other related issues. Chapter VA is applicable to industrial establishments in which fewer than fifty workmen have been employed or to industrial establishments that are of a seasonal character or in which work is performed only intermittently, whereas Chapter VB deals with an industrial establishment employing not less than one hundred workmen in the preceding twelve months.
As regards your query relating to retrenchment, Sh. V. K. Gupta has nicely explained the provisions. Section 25F(b) clearly mentions that if a workman completes continuous service of more than one year and thereafter any part in excess of six months shall be counted as one year for the purpose of granting retrenchment compensation.
I hope I have been able to answer your query.
BS Kalsi
Member since Aug 2011
From India, Mumbai
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Dear Verghese Mathew, V.K. Gupta, and BS Kalsi,
I appreciate and thank you for your contribution and for educating the members on the various provisions under the Labour Laws. It is heartening to know that our government has made several enactments for the welfare and security of employees.
However, it can be seen that companies are blatantly violating these provisions. It is sad that employees do not stand up for their rights. I think some NGOs with seasoned HR professionals can do something positive to reduce such violations and provide succor to the affected employees.
Warm regards.
From India, Delhi
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I appreciate and thank you for your contribution and for educating the members on the various provisions under the Labour Laws. It is heartening to know that our government has made several enactments for the welfare and security of employees.
However, it can be seen that companies are blatantly violating these provisions. It is sad that employees do not stand up for their rights. I think some NGOs with seasoned HR professionals can do something positive to reduce such violations and provide succor to the affected employees.
Warm regards.
From India, Delhi
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Dear All,
This is not the end of this chapter but to close, I would say that IT IS EASY TO GET RID OF A WIFE BUT IT IS DIFFICULT TO GET RID OF AN EMPLOYEE.
One more point I may point out is that if an employee is terminated after the inquiry, it is the management's responsibility to first present their evidence and prove their inquiry and case. The employee only has to defend and point out the deficiencies in the inquiry proceedings. Thus, it becomes very difficult to prove that the inquiry was fair, proper, and that adequate opportunity was granted to the delinquent.
If an employee is given retrenchment compensation short of Rs. 5, the court will send the employee back, treating the compensation as no legal compensation. Subsequently, any payment cannot rectify the order.
Thanks for the appreciation and.....
V K Gupta
From India, Panipat
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This is not the end of this chapter but to close, I would say that IT IS EASY TO GET RID OF A WIFE BUT IT IS DIFFICULT TO GET RID OF AN EMPLOYEE.
One more point I may point out is that if an employee is terminated after the inquiry, it is the management's responsibility to first present their evidence and prove their inquiry and case. The employee only has to defend and point out the deficiencies in the inquiry proceedings. Thus, it becomes very difficult to prove that the inquiry was fair, proper, and that adequate opportunity was granted to the delinquent.
If an employee is given retrenchment compensation short of Rs. 5, the court will send the employee back, treating the compensation as no legal compensation. Subsequently, any payment cannot rectify the order.
Thanks for the appreciation and.....
V K Gupta
From India, Panipat
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Hi Mr. Rajkumar,
The problem is not entirely on law, but on political executives. The Honorable Supreme Court had expanded the definition of 'industry' in 1976. However, in the Industrial Disputes Act, the legislature has not incorporated it, even though an amendment was made in 1982 (not yet implemented). Section 4A of the Payment of Gratuity Act provides for compulsory insurance since 1987, but it is still not enforced.
Chapter 11B in 1982 provided for grievance machinery but was not implemented until another amendment in 2010.
The Kerala Government included hospitals in the Minimum Wages Act in 1999 but did not fix the minimum wage for the employees until 2009 due to pressure from management. The government started prosecution against some hospitals that did not pay the minimum wage. They obtained a stay, and the government did not go for an appeal fearing a loss of votes from vote banks that run the majority of hospitals. Such examples are available from many states.
Even if any official shows the courage to enforce the law, the result is similar to that of Mr. Ashok Khemka and Ms. Durga Nagpal.
It is noteworthy how quickly politicians make laws to bypass Supreme Court orders on the Right to Information Act and disqualification of criminal politicians from elections.
Varghese Mathew
From India, Thiruvananthapuram
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The problem is not entirely on law, but on political executives. The Honorable Supreme Court had expanded the definition of 'industry' in 1976. However, in the Industrial Disputes Act, the legislature has not incorporated it, even though an amendment was made in 1982 (not yet implemented). Section 4A of the Payment of Gratuity Act provides for compulsory insurance since 1987, but it is still not enforced.
Chapter 11B in 1982 provided for grievance machinery but was not implemented until another amendment in 2010.
The Kerala Government included hospitals in the Minimum Wages Act in 1999 but did not fix the minimum wage for the employees until 2009 due to pressure from management. The government started prosecution against some hospitals that did not pay the minimum wage. They obtained a stay, and the government did not go for an appeal fearing a loss of votes from vote banks that run the majority of hospitals. Such examples are available from many states.
Even if any official shows the courage to enforce the law, the result is similar to that of Mr. Ashok Khemka and Ms. Durga Nagpal.
It is noteworthy how quickly politicians make laws to bypass Supreme Court orders on the Right to Information Act and disqualification of criminal politicians from elections.
Varghese Mathew
From India, Thiruvananthapuram
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