Madhu.T.K
Industrial Relations And Labour Laws
Farukshaikh
Deputy Manager - Hr, Ir And Admin
Kknair
Hr, Ir, Law, Disc. Matters
Premkumar Nair
Manager (hr)-retired
Snsitaram
Agm (p&a)
Khairnarravi
H.r. Manager
+1 Other

Thread Started by #maabhubaneswariss

Hello,
My name is Mr. Abdul Rahim, and i am working as an senior manager in a govt. company. Here the work load is more so i have to keep a assistant for me looking around my jobs. So we took an Annual Maintenance contract through a contractor. And the contractor has appointed a casual labour as my assistant. He prepares Over time for employees, Attendance for officers & employees, drafting letters, approvals, sending files to other departments etc., and his pass is been renewed for every 3 months and he is working with us nearly 2 1/2 years. So now we think of removing him and appoint a permanent employee in his place. So some how he came to know about this and he has gone to labour court and now he is claiming to give him a regular job either it may be permanent or regular.
So now what we have to do for this case.
Please help me, because the contractor was not assigning any jobs to him. He was directly guided by me only and he was working in the same office for 2 1/2 years. And on
15th March 2013 From India, Patnagarh
It is very interesting to note that for a work which has nothing to do with maintenance you have given "annual maintenance contract" and the AMC holder has deputed one person for taking care of your work which is perennial in nature. AMC is normally given to undertake maintenance and service of some assets and for which there will not be any daily inspection by the AMC holder but once or twice in a month depending upon the age and goodness of the asset to be serviced. Here, you have engaged a person to assist your clerical work which should have been carried out by a full time regular employee. That means, engagement of contract labour itself was illegal. Moreover, he has been working under your direct supervision and control. I don't know how he was paid his remuneration. Even if he was getting his salary from the contractor ( if at least for that contract is there!) he can very well establish a master servant (employer employee) relationship between you and him and that would be sufficient to make the contract sham. When a contract is declared to be sham, it becomes very difficult for you to defend and make him out of your establishment.

Regards,

Madhu.T.K
15th March 2013 From India, Kannur
Dear Abdul, I am also agree with Madhu T.K, its very difficult to defend in your case.
15th March 2013 From India, Mumbai
Let me also make a comment on the employee's demand for regular employment. Since the establishment is a public sector undertaking, naturally, the undertaking must be having a procedure for recruitment and selection and the employee in question has not undergone such procedure, say, written test, interview etc, and therefore, it is not possible for him to get a regular employment in the company. Various Courts, including Supreme Court, have ruled that a casual or temporary employee has no right of regularisation in a confirmed post. State of Karnataka Vs. Uma Devi, National Fertilisers Ltd Vs Somvir Singh, RBI Vs. Gopinath Sharma, CIT vs Leena Jain etc are some of the cases in which the Apex court has said that casual, temporary or contract employees do not have right of regularisation since they have not gone through a process of recruitment before they were employed as casual, temporary or contractual, as the case may be. However, compensation for illegal retrenchment would have to be paid.

In almost all cases above referred the employees were directly paid by the employer whereas the present case is a case of sham contract which is considered to be a deliberate attempt to deter rights of workmen/ employees by putting them under a contractor who has actually no role in the operations. In such case it may be possible that the court may order for compensation as per section 25F of the Industrial Disputes Act and also order that in the process of new recruitment to the post, the employee who has been terminated shall be given preference. In Steel Authority of India Ltd Vs National Workers Water Front Union and in Bharat Coking Coal Ltd Vs. Workmen, Bharat Coking Coal Ltd, a similar direction was given by the Apex Court and Jharkand Hight Court.

Madhu.T.K
15th March 2013 From India, Kannur
Dear Abdul As you say that the staff is working with you for 2.5 Yrs. He well familiar with your systems & Policies. instead of hiring other person you can continue with him.
15th March 2013 From India, Nagpur
With due respect to seniors, I wish to put my opinion.
Since the person went to court you may inform court that this person also shall follow the procedure you are determining for other candidates as per your regulations for recruitment and let him compete with others. If he is found suitable its OK, else you will have defense that you followed procedure.
Even if you want to regularize him due to his acquaintance with activities, suggest to follow procedure else it may set a precedent for others to make claims.
17th March 2013 From India, Hyderabad
Dear Abdul: Looking to your difficulties, you may continue with the existing arrangement and not go for replacing the contract labour with regular worker. The legal position goes totally against you. Hence first try to extricate yourself from the current situation and allow the existing set up to continue. In the meanwhile try to bring in the supervisor of the contractor between you and the contract labour and create more and more documents in your support. As pointed out by Madhu Sir, at any rate he cannot have any case for regularising his service. At best he should also be considered and given age relaxation for the period of experience with you.
17th March 2013 From India, Bhopal
Dear Mr. Abdul,

The annual maintenance contract was a sham contract as far as engagement of a person for clerical nature jobs. All the documents and circumstantial evidences are in favour of the person. There is no escape route as per your own admissions. Mr. Madhu has covered provisions of various relevant laws and judgements which give insight to understand the gravity of the problem.

However, since the person has approached the labour court and the court may order for absorption of the person in regular service, except any contrary indepth analysis keeping in view the implications to a government department. If orders for absorption, you may consider his eligibility based on various factors for absorption in a suitable position. In case you don't need his services any more, you can remove him by following the due process of law, i.e. as per the ID Act and the terms of the appointment to be made based on the orders of the court. The judgement in the SAIL matter or Umadevi case won't help you to circumvent.

With due respect to my seniors, I do not suggest for continuing with the existing arrangement, as this may blow up some time which will have more legal implications. I have a suggestion to come out of the situation. You may obtain approval of your department for termination of the contract and convert him as contingent hand initially by advising him to withdraw the case first. Then if you don't want his services at a later stage, you can terminate him by giving due notice as provided under the law.

Regards
17th March 2013 From India, Mumbai
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