Can an employee approach the Labour Department after sending a legal notice which has been duly replied to regarding the termination of his temporary employment after the completion of his term and inadmissible medical claims after about one year?
An employee was appointed as a temporary employee for one year (ASTHAI NIYUKTI). After completing his term, he was not given further employment. He served a legal notice after one year of completing his term of appointment. A reply to the legal notice was provided. Instead of approaching the Labour Court, he submitted a complaint at the Chief Minister's Window. As a result, the Labour Department has sent a notice to the company to appear and reply regarding the worker's complaint.
NOW THE QUESTION IS:
1) Can the Labour Department take cognizance of the complaint when a detailed reply has already been sent in response to the employee's legal notice?
2) When the employee has already taken legal action instead of seeking conciliation, can the employee now approach the Labour Department?
From India, Delhi
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An employee was appointed as a temporary employee for one year (ASTHAI NIYUKTI). After completing his term, he was not given further employment. He served a legal notice after one year of completing his term of appointment. A reply to the legal notice was provided. Instead of approaching the Labour Court, he submitted a complaint at the Chief Minister's Window. As a result, the Labour Department has sent a notice to the company to appear and reply regarding the worker's complaint.
NOW THE QUESTION IS:
1) Can the Labour Department take cognizance of the complaint when a detailed reply has already been sent in response to the employee's legal notice?
2) When the employee has already taken legal action instead of seeking conciliation, can the employee now approach the Labour Department?
From India, Delhi
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Dear Raj,
Replies to your questions are as follows:
(1) Can the Labour Department take cognizance of the complaint when a detailed reply has already been sent by way of a reply to the legal notice of the employee?
Reply: Even if the employee serves the notice to the employer before approaching the labour office, the labour officer has to consider the matter that comes to their table. While the labour officer is a government functionary, the lawyer is a professional who works in a private capacity. The rebuttal given to the lawyer could come in handy while giving a reply to the labour officer. By the way, the labour officers use their discretion, and their decisions are not necessarily against the employers. Even if the labour officer rules against the decision of the employer, and the employee approaches the labour court, you can defend your case.
(2) When the Employee has already adopted a Legal course of action instead of conciliation, can an employee approach the Labour department now?
Reply: The employee has just served a lawyer's notice. The employee has not filed a suit against the company. The receipt of the notice cannot become an impediment to the conciliation. You can approach the employee for reconciliation even now. Nevertheless, if your company has followed a proper legal process, then what is there to reconcile?
Final comments: You have approached this forum with your questions. However, I wish you had given background information on the case. You have mentioned that the employee was employed as a temporary worker for one year. Did your company issue an appointment letter to the company, and if yes, what were the employment terms and conditions?
Second, how was the employee communicated that his employment would be discontinued? Do you have proof of communication?
Third, in the first paragraph, you say that the employee has raised inadmissible medical claims. But before discontinuation of the employment, and during the Full and Final Settlement (FFS), did your company obtain a signature from the employee stating no claims were pending with the company?
Thanks,
Dinesh Divekar
From India, Bangalore
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8034Replies to your questions are as follows:
(1) Can the Labour Department take cognizance of the complaint when a detailed reply has already been sent by way of a reply to the legal notice of the employee?
Reply: Even if the employee serves the notice to the employer before approaching the labour office, the labour officer has to consider the matter that comes to their table. While the labour officer is a government functionary, the lawyer is a professional who works in a private capacity. The rebuttal given to the lawyer could come in handy while giving a reply to the labour officer. By the way, the labour officers use their discretion, and their decisions are not necessarily against the employers. Even if the labour officer rules against the decision of the employer, and the employee approaches the labour court, you can defend your case.
(2) When the Employee has already adopted a Legal course of action instead of conciliation, can an employee approach the Labour department now?
Reply: The employee has just served a lawyer's notice. The employee has not filed a suit against the company. The receipt of the notice cannot become an impediment to the conciliation. You can approach the employee for reconciliation even now. Nevertheless, if your company has followed a proper legal process, then what is there to reconcile?
Final comments: You have approached this forum with your questions. However, I wish you had given background information on the case. You have mentioned that the employee was employed as a temporary worker for one year. Did your company issue an appointment letter to the company, and if yes, what were the employment terms and conditions?
Second, how was the employee communicated that his employment would be discontinued? Do you have proof of communication?
Third, in the first paragraph, you say that the employee has raised inadmissible medical claims. But before discontinuation of the employment, and during the Full and Final Settlement (FFS), did your company obtain a signature from the employee stating no claims were pending with the company?
Thanks,
Dinesh Divekar
From India, Bangalore
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Legal course of action is different from conciliation. You have only responded to the notice sent by the employee through an advocate. The labour department is unaware of it, and even if it is made known to him, he can proceed with the complaint given by the employee. It may not be maintainable because if the terms of appointment provide for a fixed term, then no way the employee can claim extension or regularization. If the employee is not fit for work, nobody can advise you to hire you. But the process should be followed.
Therefore, you should appear before the appropriate officer in the Labour Department and produce the document to establish that he was appointed on a FTC for one year which would in any case be terminated automatically without any communication. But make sure that you had not issued any stigmatic order to terminate him. A simple service order saying that you have been relieved from service following clause No.....of the appointment order would be sufficient to discharge him whereas if you had put unnecessary reasons like non-performance, submission of inadmissible medical bills, etc., then the order will become stigmatic and then you may have to defend it.
From India, Kannur
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Therefore, you should appear before the appropriate officer in the Labour Department and produce the document to establish that he was appointed on a FTC for one year which would in any case be terminated automatically without any communication. But make sure that you had not issued any stigmatic order to terminate him. A simple service order saying that you have been relieved from service following clause No.....of the appointment order would be sufficient to discharge him whereas if you had put unnecessary reasons like non-performance, submission of inadmissible medical bills, etc., then the order will become stigmatic and then you may have to defend it.
From India, Kannur
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In case of any termination, the legal recourse available for a workman is to raise an industrial dispute under the ID Act before the Conciliation Officer. Whether a temporary workman can raise an industrial dispute or not is altogether a different question. It is based on the terms and conditions and various other extenuating factors. Serving a legal notice and replying to the said notice do not matter; it will have no impact at all. The Labour Department, on receipt of a letter from the CM Cell, has the power to take action against the same by summoning the employer. We need to see the facts and circumstances of the case, as Mr. Madhu mentioned.
From India, Chennai
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From India, Chennai
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No one can stop the actions of an aggrieved person. Whether it's maintainable or not is a different question. If you are called for conciliation by the labor department, you (or your advocate, if permissible) have to appear and present your side of arguments. Much would depend on the documents in support of your stand.
From India, Bangalore
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From India, Bangalore
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