Dear Professionals, Few years ago there was a stay-in strike in our company and in this connection we have dismissed 8 employees, subsequent they raised a dispute jointly and now it is pending before labour court (batch case 14 to 21). Now one of these dismissed employees approached the management seeking re-employment, considering his family situation and children's education, management is thinking to consider his request.
Now my question is when the case is pending before labour court, how can we re-employ. Can we ask him to withdraw the case? The dispute was jointly raised by 8 employees and it is batch case, in this situation could it be possible for him to break the batch case and withdraw from labour court. Pls suggest.
Regards,
Madhan S
From India, Madras
3Now my question is when the case is pending before labour court, how can we re-employ. Can we ask him to withdraw the case? The dispute was jointly raised by 8 employees and it is batch case, in this situation could it be possible for him to break the batch case and withdraw from labour court. Pls suggest.
Regards,
Madhan S
From India, Madras
Dear Madan,
Pendency of an industrial dispute in any Judicial forum is not a bar on its out-of-Court settlement, if both parties are willing to do so.
In such a situation, both parties can file a joint-memo with the copy of the bilateral settlement before the Labor Court requesting for a consent award accordingly or dismissal of the dispute as withdrawn.
If the forum is any High Court or the Supreme Court, the appellant may withdraw the appeal on account of the out-of-Court settlement.
This procedure is equally applicable to non-employment cases filed u/s 2-A(2) of the IDA,1947 whether individually or jointly by the workmen concerned or by a trade union u/s 2(k) on behalf of the workmen.
Coming to the case on hand, as the cause of action for the dismissal of all the 8 workmen being one and the same, There should be acceptance of the misconduct and request for reinstatement from the workman. It is also important how the employer is going to regularise the period of non-employment, continuity of past service before dismissal. If all these are incorporated in the bilateral settlement with the individual workman, it will not adversely affect the stand of the management in the batch case.
From India, Salem
Pendency of an industrial dispute in any Judicial forum is not a bar on its out-of-Court settlement, if both parties are willing to do so.
In such a situation, both parties can file a joint-memo with the copy of the bilateral settlement before the Labor Court requesting for a consent award accordingly or dismissal of the dispute as withdrawn.
If the forum is any High Court or the Supreme Court, the appellant may withdraw the appeal on account of the out-of-Court settlement.
This procedure is equally applicable to non-employment cases filed u/s 2-A(2) of the IDA,1947 whether individually or jointly by the workmen concerned or by a trade union u/s 2(k) on behalf of the workmen.
Coming to the case on hand, as the cause of action for the dismissal of all the 8 workmen being one and the same, There should be acceptance of the misconduct and request for reinstatement from the workman. It is also important how the employer is going to regularise the period of non-employment, continuity of past service before dismissal. If all these are incorporated in the bilateral settlement with the individual workman, it will not adversely affect the stand of the management in the batch case.
From India, Salem
Umakanthan Sir,
What will be the impact of the settlement on the case filed by the remaining 7 employees.
Will it help them to show that the management's actions were malafide since they took one of them back?
From India, Mumbai
What will be the impact of the settlement on the case filed by the remaining 7 employees.
Will it help them to show that the management's actions were malafide since they took one of them back?
From India, Mumbai
Dear Saswat,
Yours is a very valid question.
The reason for dismissal of the 8 workmen is cited as their stay-in-strike. Strike by workmen in any form in contravention of either section 22 or section 23 of the Industrial Disputes Act,1947 would be illegal. Particularly, if any workman unauthorizedy stays within the premises of the establishment beyond his working hours, it tantamounts to criminal trespass which is certainly a serious misconduct. When 8 workmen do this in a concerted manner such an act would be an illegal strike and criminal trespass as well. If something untoward happens to the striking workmen, other employees or to any property of the employer, it will have its serious repercussions on the whole. Therefore, they would have been removed from the premises with the help of the Police only. Even otherwise had they come out on their own, it cannot mitigate the gravity of the misconduct. As such, the punishment of dismissal would have been awarded to them after a due disciplinary proceedings only. Even, if the dismissal is a summary one without conducting a formal disciplinary proceedings against them due to commotion, the employer can choose to conduct the enquiry before the Labor Court.
Coming to the point raised in your query, yes, the latter action of taking back one of the dismissed can affect the case of the others in one way or the other. It depends on the material circumstance leading to the settlement and its conditions which I have outlined in my previous reply. Dismissal of an employee from service, despite being deterrent, is an economic death sentence and therefore, it's reason and mode can be questioned but not the decision of reinstatement of a dismissed employee subject to certain conditions under mitigating circumstances later.
From India, Salem
Yours is a very valid question.
The reason for dismissal of the 8 workmen is cited as their stay-in-strike. Strike by workmen in any form in contravention of either section 22 or section 23 of the Industrial Disputes Act,1947 would be illegal. Particularly, if any workman unauthorizedy stays within the premises of the establishment beyond his working hours, it tantamounts to criminal trespass which is certainly a serious misconduct. When 8 workmen do this in a concerted manner such an act would be an illegal strike and criminal trespass as well. If something untoward happens to the striking workmen, other employees or to any property of the employer, it will have its serious repercussions on the whole. Therefore, they would have been removed from the premises with the help of the Police only. Even otherwise had they come out on their own, it cannot mitigate the gravity of the misconduct. As such, the punishment of dismissal would have been awarded to them after a due disciplinary proceedings only. Even, if the dismissal is a summary one without conducting a formal disciplinary proceedings against them due to commotion, the employer can choose to conduct the enquiry before the Labor Court.
Coming to the point raised in your query, yes, the latter action of taking back one of the dismissed can affect the case of the others in one way or the other. It depends on the material circumstance leading to the settlement and its conditions which I have outlined in my previous reply. Dismissal of an employee from service, despite being deterrent, is an economic death sentence and therefore, it's reason and mode can be questioned but not the decision of reinstatement of a dismissed employee subject to certain conditions under mitigating circumstances later.
From India, Salem
Very good interaction and suggestions. Hear I would like to add a point for management to consider. Is the management willing to reemploy others too, if they approach in the same way? The stand to be taken by Management is crucial here as all 8 were dismissed for same cause of action and gravity. So if the management show partiality, then it will become a problem. Otherwise, settlement with one would pave way for others to follow and close the matter at court.
I fee, If management can get feelers of others 7, then they can act in a concrete manner without raising any further disputes.
From India, Hyderabad
I fee, If management can get feelers of others 7, then they can act in a concrete manner without raising any further disputes.
From India, Hyderabad
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
W.c.In the course of employment-case law.docx
Employment termination justified in case of long leave.pdf