Dear All
I have two small questions and request you to enlighten me on the same asap.
1.A "Driver " was Dismissed for the proven serious misconduct from the services of a company after following due process of law such as Counselling,issuing Warning Letters/Show Cause Notice /Charge Sheet and finally after conducting the Domestic Enquiry by an independent EO ,in which all his misconducts were proved .
However, after his dismissal ,his Union approached Commissionner of Labour's Office in Mumbai ,who in turn wrote a letter to the Company ,to take the Driver back in service with back wages.
Is Labour Commissionner's Office authorised to give such instructions and if so ,what legal stand the company should take?
2.A Senior Manager of the company having managerial powers/authority ,was terminated for misconduct after giving Show cause Notice ,the reply of which was not found satifactory by the company .However, no Charge Sheet was given nor Domestic Enquiry was conducted by the company .
After the termination ,what legal course of action he can take against the company .
I will be grateful if some of my experienced professional colleagues can give proper guidance on these matters.
Thanking you
With Kind Regards
H.Dattaram ,Mumbai
From India, Mumbai
45I have two small questions and request you to enlighten me on the same asap.
1.A "Driver " was Dismissed for the proven serious misconduct from the services of a company after following due process of law such as Counselling,issuing Warning Letters/Show Cause Notice /Charge Sheet and finally after conducting the Domestic Enquiry by an independent EO ,in which all his misconducts were proved .
However, after his dismissal ,his Union approached Commissionner of Labour's Office in Mumbai ,who in turn wrote a letter to the Company ,to take the Driver back in service with back wages.
Is Labour Commissionner's Office authorised to give such instructions and if so ,what legal stand the company should take?
2.A Senior Manager of the company having managerial powers/authority ,was terminated for misconduct after giving Show cause Notice ,the reply of which was not found satifactory by the company .However, no Charge Sheet was given nor Domestic Enquiry was conducted by the company .
After the termination ,what legal course of action he can take against the company .
I will be grateful if some of my experienced professional colleagues can give proper guidance on these matters.
Thanking you
With Kind Regards
H.Dattaram ,Mumbai
From India, Mumbai
1A Driver
It appears that the company was not represented at Labour Commissioner office.
Put up your side of the incident and your actions-inquiry,show cause replies there to etc.
Decisions are always made hearing both sides and then applying principles of law and justice.
2A Manager
Law of natural justice not fully applied.
Manager could challenge decision of termination as one sided and not based on full facts.
From India, Pune
It appears that the company was not represented at Labour Commissioner office.
Put up your side of the incident and your actions-inquiry,show cause replies there to etc.
Decisions are always made hearing both sides and then applying principles of law and justice.
2A Manager
Law of natural justice not fully applied.
Manager could challenge decision of termination as one sided and not based on full facts.
From India, Pune
Labour commissioner does not prima facie has jurisdiction to adjudicate upon the dispute. He can only refer the matter to labour court for adjudication of dispute under section 10 of the ID Act or see the Bombay Act.
As regards the Manager's termination, the Manager can seek reinstatement as stated by Mr. Nath Rao that principles of natural justice were not followed. If that be so it is violative of section 66 of Bombay Shops and Establishment Act since one month's wages have not been paid to the Manager.
Thanks
Sushil
From India, New Delhi
As regards the Manager's termination, the Manager can seek reinstatement as stated by Mr. Nath Rao that principles of natural justice were not followed. If that be so it is violative of section 66 of Bombay Shops and Establishment Act since one month's wages have not been paid to the Manager.
Thanks
Sushil
From India, New Delhi
Hi
Colleagues have given the opinion that Labour commissioner a such do not have power to reinstate workman. There should have been notice to the employer for conciliation proceedings. The management should have attended and filed a counter before conciliation authority.
Regards
R Rajasekaran
From India, Chennai
Colleagues have given the opinion that Labour commissioner a such do not have power to reinstate workman. There should have been notice to the employer for conciliation proceedings. The management should have attended and filed a counter before conciliation authority.
Regards
R Rajasekaran
From India, Chennai
Dear Mr.Dattaram,
In case of the driver, did the conciliation officer not call you to verify the facts? If so, you can give the facts in writing asking him not to interfere in the termination. However, if he has given a failure report, i.e. inability to bring about an amicable settlement between employer and employee, he will refer the matter to labour court for adjudication. He has no powers to compel you to take the driver back, you can decline to take him back.
Secondly, if the senior manager was doing managerial and administrative nature of duties, he will not come within the ambit of workman u/s 2 (s) of IDA hence cannot approach the Labour Court. However, since you are located in Mumbai MRTU & PULP Act applies, he may seek exparte adinterim relief against you from the court, so file a caveat in the Industrial and Labour Courts for abundant precaution, so that they will not proceed without hearing you.
From India, Pune
In case of the driver, did the conciliation officer not call you to verify the facts? If so, you can give the facts in writing asking him not to interfere in the termination. However, if he has given a failure report, i.e. inability to bring about an amicable settlement between employer and employee, he will refer the matter to labour court for adjudication. He has no powers to compel you to take the driver back, you can decline to take him back.
Secondly, if the senior manager was doing managerial and administrative nature of duties, he will not come within the ambit of workman u/s 2 (s) of IDA hence cannot approach the Labour Court. However, since you are located in Mumbai MRTU & PULP Act applies, he may seek exparte adinterim relief against you from the court, so file a caveat in the Industrial and Labour Courts for abundant precaution, so that they will not proceed without hearing you.
From India, Pune
Friend,
Labour Commissioner has to just conciliate the dispute but he cannot pass an order of reinstatement. He has to forward the failure report to the Appropriate Authority for further action. Your company can refuse to accept the order and refer the matter to tribunal for adjudication.
Senior manager cannot approach labour authority as he is not a workman but he can claim damage through Civil Court.
Regards,
C S Thanky
From India, Mumbai
Labour Commissioner has to just conciliate the dispute but he cannot pass an order of reinstatement. He has to forward the failure report to the Appropriate Authority for further action. Your company can refuse to accept the order and refer the matter to tribunal for adjudication.
Senior manager cannot approach labour authority as he is not a workman but he can claim damage through Civil Court.
Regards,
C S Thanky
From India, Mumbai
Hello,
Labour Commissioner has NO authority to direct reinstatement. As rightly said by Csthanky, the Commissioner's job is ONLY to conciliate and in case of failure, to refer the matter to adjudication.
As to the second question, if the senior manager (despite his designation or salaries) is not a WORKMAN under the Industrial Disputes Act 1947 he has NO remedy under the labour law. Depending upon the facts he may be able to approach the civil courts for remedy against "breach of contract". But in our country this is a hopelessly indeterminate process and makes the lawyers rich and one waits endlessly for the "justice". The concerned individual must take the call. Personally I would have put this matter behind and would have started identifying ways to create, safe guard and protect my future for myself and my family, instead of sacrificing peace and harmony for which I work to exist!
Regards
samvedan
June 20, 2015
--------------------
From India, Pune
Labour Commissioner has NO authority to direct reinstatement. As rightly said by Csthanky, the Commissioner's job is ONLY to conciliate and in case of failure, to refer the matter to adjudication.
As to the second question, if the senior manager (despite his designation or salaries) is not a WORKMAN under the Industrial Disputes Act 1947 he has NO remedy under the labour law. Depending upon the facts he may be able to approach the civil courts for remedy against "breach of contract". But in our country this is a hopelessly indeterminate process and makes the lawyers rich and one waits endlessly for the "justice". The concerned individual must take the call. Personally I would have put this matter behind and would have started identifying ways to create, safe guard and protect my future for myself and my family, instead of sacrificing peace and harmony for which I work to exist!
Regards
samvedan
June 20, 2015
--------------------
From India, Pune
Dear Dattaram,
Your narration of the Union's approach to the Labour Commissioner seems a bit lacking of specificity of their attempt for redressal. That makes the initial doubt raised by Nathrao about the possible non-representation of the Management a valid one. In the cases of any legal punishment particularly like that of termination of services of an influential member of their Trade Union, it is quite common that the union will approach the top most officer or a higher officer of the Commissionarate of Labour seeking clemency as a first step in stead of raising a dispute and the officer, out of his long acquaintance with the Union, may also be inclined to do something in the matter like lesser punishment in the place of dismissal and call for a preliminary enquiry in this regard. When there is no response from the Management, in order to appease the Union, he might have tendered such an advice. Otherwise, no power of giving such directions to the employer is vested with the conciliation officer as opined by Sushil and other friends. If my above presumption is correct in the light of actual happenings, you can write back to the Commissioner of your inability to comply with his advice/directions and ask him to advise the Union/workman to raiise a formal dispute u/s 2-k or 2-A of the Industrial Disputes Act,1947 as the case be..
From India, Salem
Your narration of the Union's approach to the Labour Commissioner seems a bit lacking of specificity of their attempt for redressal. That makes the initial doubt raised by Nathrao about the possible non-representation of the Management a valid one. In the cases of any legal punishment particularly like that of termination of services of an influential member of their Trade Union, it is quite common that the union will approach the top most officer or a higher officer of the Commissionarate of Labour seeking clemency as a first step in stead of raising a dispute and the officer, out of his long acquaintance with the Union, may also be inclined to do something in the matter like lesser punishment in the place of dismissal and call for a preliminary enquiry in this regard. When there is no response from the Management, in order to appease the Union, he might have tendered such an advice. Otherwise, no power of giving such directions to the employer is vested with the conciliation officer as opined by Sushil and other friends. If my above presumption is correct in the light of actual happenings, you can write back to the Commissioner of your inability to comply with his advice/directions and ask him to advise the Union/workman to raiise a formal dispute u/s 2-k or 2-A of the Industrial Disputes Act,1947 as the case be..
From India, Salem
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Termination-emp loyment_563.pdf
Termination letter.doc