Harsh Kumar Mehta
Consultant In Labour Laws/hr
Tushar.swar
Manager - Human Resource
Adv. Manoj Liyonzon
Lawyer, Chennai
CaPulkit
Practicing Chartered Accountant
Sourav.rubi@gmail.com
Hr , Ir , Complainces
Hrkpati
Sr.manager Hr & Legal
Asnath
Hr Consultant
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
9871103011
Private Consultant On Labour Laws
Lalit Thakkar
Systems Consultant
Vineet8860410213
Sr. Project Engineer
+3 Others

Thread Started by #vineet8860410213

Respected Seniors,

I am working as senior project engineer (construction) with a pvt. Ltd. Company based at delhi. During the official working hours on dated 05/sep/2013 at 12.30 pm (afternoon) I had a serious injury by falling down from the staircase at company’s construction site and I was rushed to hospital by coworkers and was admitted to ICU and a major surgery was conducted in my right leg and a titanium rod and accessories were transplanted in my leg. In spite of my repeated requests with the company’s management by emails, letters and telephonically conversations, the company has neither release my salary nor given pending medical dues. They are intentionally & deliberately adopting the delaying tactics. After a long time of months I was informed by email that I should come personally to head office for amicable settlement but on the visit to there office I was threatened with dire consequences. In resulting this I have forwarded a legal notice for the pending salary and medical dues. In reply to that notice I have been communicated in writing that I’ll not be paid my salary from September 2013 to till date and medical dues can be settled on humanitarian ground.

Please advice me that what action should I take as per the law applicable for an employee.

Thanks & regards

Vinit soni

8860410213
14th April 2014 From India, New Delhi
Dear Vinit,
As you said that, you had met with acciden at construction side, so, during your visite/ roaming at site, did you follow the all safety rules as per the comapny policy or not..?
if you have not followed, then your in to the fault.
but, however, accident done on duty, so, company is bound to give benfits, as you said you send them a notice regardin the same, so, i belive that, you must have fowarded with consultant of advocate, so, as they reply back to you, whether any reason have they mentioned to refuse to give you the benefits..? what your advocate says on their reply..?
14th April 2014 From India, Mumbai
respected tushar sir,

1st of all thanks for your advice.as you inquired about the safety rules, this is for information that i was following all the safety rules like safety helmet, safety shoes, safety jacket etc. as prescribed. actually CHALLI ( in hindi we can say wooden jaali ) installed was loose and shaky so which resulted into my falling in stairs.this was because of negligence of safety department appointed at site for safety of us.i would like you mention that no insurance was made to cover the safety risk at construction site as per workman compensation act.instead of having sympathy with me for this accident the management was trying to back out from the responsibility.in order to justify the non payment of my pending salary and medical dues the management is trying a gimmick of poor performance where as no written communication has been given to me nor i have acknowledge any.the advocate is of the opinion that we should file a suit for claiming the pending dues/salary and compensation for temporary physical disability(because still i am under medical treatment) as applicable the labour laws.kindly keeping in view all the facts and circumstances please advice me the optimum solution in the matter.

thanks and regards

vineet soni
14th April 2014 From India, New Delhi
Hello Vineet Soni,
Going legal is the only way in your case.
However, suggest choose your advocate carefully.
While I DON'T mean to cast any doubts on your advocate, it's better to be cautious earlier than later. I know of cases where the defendent's advocates have cut backdoor deals with employers & the employee gets to know of it until it's too late.
Also see IF you can insist on any timeframe for the court case with your advocate--going by what you mentioned, the Company, most likely, will prefer to go legal than have any out-of-court settlement. Else, it could go on & on for years.
All the Best.
Rgds,
TS
14th April 2014 From India, Hyderabad
Except filing a case in civil court, there is no provisions in labor law to proceed against employer for nonpayment of salary to a person with wages above Rs 18000/-pm.Similarly no action is possible for a non-workmen under ID Act 1947.
Varghese Mathew
09961266966
14th April 2014 From India, Thiruvananthapuram
Whether worker as per ID Act or an employee out of the purview of the Act, you are eligible for full salary and Medical Facilities for the period of treatment and recovery period because the injury belongs to while on duty and while at work accident injury.
The management is bound to pay the salary, medical expenses till the treatment and thereafter compensation for the loss of earning capacity due to the accident injury disability..
Please consult advocate and issue legal notice.
14th April 2014 From India, Hyderabad
Dear Vinit,
As you said that, said incident happen due to neglegence of safety rule not follow by them, so, can you just tell, at time of this incident, any police case or FIR, has been done..? if yes, & it is clear mentioned that, the reason of accident, so, that will be the strongest evidence for you to file suit against them.
15th April 2014 From India, Mumbai
Mr VINEET is Sr Project Engineer and is not a workmen under ID Act.Hence his case is not falling under Industrial Disputes Act.He will get benefits under EC Act provided he falls under the definition of Employee as per Schedule 11 of EC Act.If so ,even the negligence is not a bar as per Sec 3 b of the E C Act if the injury result in TPD.
Varghese Mathew
09961266966
16th April 2014 From India, Thiruvananthapuram
#Anonymous
The action by the company is as follows :-
1. Formation of Inquiry committee to inquire into circumstances into which the Employer met with an injury while on duty.
2. Submission of report by the inquiry committee with findings and recommendations to ensure that no such incident is committed in future.
3. Accident of the employee is attributed to the company, since the employee was on duty during the time of accident.
4. Opinion of Medical Officer, to further Justify that the employee's retention in company. If retained, limitations of duties to be performed by the employee due to accident.
5. If retention is not possible , disability compensation is attributed to the company.
Under all circumstances, the employee is entitled for full salary during the hospitalization. This is as per rules of the country.
Thanks and regards
Brijendra Singh Mathuria
HR & Admin Manager
CPS Shapers
16th April 2014 From India, Mumbai
Dear Vineet,,

Since you have mentioned that you have been working with a construction company based at delhi and while on duty, you have met with an accident at company’s construction site. Since your company is engeged in construction activity hence I suppose it is covered under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act,1996 and Delhi Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules,2002 are applicable to your empoyer.If you visit website of Delhi labour dept on Delhi Government Portal you will find the applicapility of the Act & Rules, which reads as under:-

The Act applies to every establishment, belonging to or under the control of government, any body corporate or firm, an individual or association or other body of individuals which or who employs building workers in any building and other construction work and includes an establishment belonging to a contractor which employs, or had employed on any day of the preceding 12 months, 10 or more building workers in any building or other construction work, but does not includes an individual who employs such workers in any building or construction in relation to his residence the total cost of such construction not being more than Rs. 10 lakhs.

You can examine the applicapility of the Act to your construction company. If the same is applicable and your employer has not taken Registration from the concerned authority and has not given the notice of commencement of the construction work, he is going to have a tough time. The Act has laid down heavy penalties for the convtravention of the its provisions so much so that the inspector has powers to prohibit the working ,if the laid down safety and health norms are not complied with.

As regards your dues and accidental compensation are concerned, your employer is bound to pay the both.Your employer was supposed to send a notice of accident in Form XIV under Rule 210 (7) to the Chief Inspector of Building and construction, Delhi within four hours in case of fatal accident.

Since you have already approached them and they are reluctant to clear your dues, I advice you to lodge a complaint with the Chief Inspector of Building and construction, Delhi giving all the details of accident and copies of the medical treatment undergone in the hospital.I am sure this will work.

BS Kalsi

Member since Aug 2011
16th April 2014 From India, Mumbai
I don't know who is your employer exercising this kind of high handedness in settling a legitimate claim arising our of an accident to an employee while on duty. Workman's Compensation Act covers all the employees who are out of the purview of ESIC and you seem to be falling in this category. Well, stubborn as you employer appears to be, you have to initiate legal action to claim the compensation which will include the expenses for medical treatment, loss of wages and benefit for disability, if any. Please avail of the services of a 'good' lawyer.
Lalit Thakkar
16th April 2014 From India, Surat
I agree with the views of Mr. Lalit Takkar.

If you are drawing lessthan rs.15000/- per month you will be covered under ESI Act under which it is mandatory for your employer to send an accident report within 24 hrs. From yopur narration that your employer did not bother about yopur injury. you may not be covered under ESI Act.

Therefore, Employee Compensation Act, 1923 applies to you and your employer is liable to pay compensation and incurr full medical expenses. For the temporary diablement period you are entitled for 50% of your salary as compensation. After your surgey, if looss of earning capcity has resulted, appropriate compensation is payble by your employer with the deduction of already paid 50% salary called half-monthly payment which is not p[aid in your case and therefore it is irrelavant. Please approach the Employee Compensation Commissioner of the area in which your site is located and file your claim along with your mmediacl bills and medical certificates. A designated officer of the Labour Department like, Dist Labour Officer or Asst Commissioner of Labour or Dy Commissioner will normally be designated as Employee Compensation Commisioner. Please meet in person the Employee Compensation Commisioner of the area and ask for help and he would guide you. Normally, some advocates practice Employee Compensation cases whose details may also be got from the Labour Department.

You will not be entiled to salary during the period of your temporary disableemnt under the said Act.
17th April 2014 From India, Madras
Dear Vineet
there are provisions to
-Lodge a criminal complaint upon officials who threatened you. (with help of a lawyer)
-File a suit for recovery of pending salary along with interest.
-On the same seek compensation for damages.
17th April 2014 From India, Chennai
Mr Kalsi,
Please refer to the definition of Construction worker under BOCOW Act.I think the person suffered accident is not a construction worker.I have all sympathy for him .Let him get well soon.
Varghese Mathew
09961266966
17th April 2014 From India, Thiruvananthapuram
Hai vinitji, i hv gone through the situation in this juncture u better to approach labour commission for natural justice of law.
17th April 2014 From India, Visakhapatnam
Dear Varghese
I appreciate your observation and you are right in pointing out the doubt.Since victim being a senior person,the mail may not hold good in his case. In that case he should approach the Commissionser,appointed under the Employee's Compensation Act. After the enlagement of the scope, such persons are covered under Schedule II of the Act. In this case,the employer is required to send an Accident report to the Commissioner of the Area.If an employer does not make a report, the injured person is within his right to approach and file an application before the Commissioner.
BS Kalsi
Member Since Aug 2011
18th April 2014 From India, Mumbai
Dear Vineet,
Approach your nearest Labour Commisioner. Discuss your issue and lodge a official complaint ,
also take the help of a resourceful lawyer. I am sure your issues will get resolved & your will get
your dues and compensation / medical expenses soon.
Take care,
Sourav Mukherjee
19th April 2014 From India, Bangalore
Dear Mathew As Mr.AK Tiwari said, particularly EC Act missed many issues. Once it appears in court of law, natural justice only will be adjudicated.
19th April 2014 From India, Guwahati
Company has to pay you since the event occured while performing the official duties.
21st April 2014 From India, Bangalore
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23rd April 2014 From India, Kolkata
Dear sujoyroy,
In the instant thread we have been discussing a serious issue, which relates to "legal advice for a mishappening at site" raised by one of the citeHR member.Suddently you have intiated a new issue of mother-child relationship,which is completely unconnected with the ongoing thread.The senior members of this Forum have been time & often advising the members to intiate a new thread on new subjects, In that case the continuity of ongoing subject remains unbroken and members' option for the contributing their views or opinion remains open.You will appreciate that if one thread contains different issues,it creates more confusion than the solution to the problem,which queriest looks for.
BS Kalsi
Member since Aug 2011
23rd April 2014 From India, Mumbai
respected seniors,

as advised i have filed a case against management in the labour court of delhi. today i accompanied my advocate for filing the case in the above mentioned labour court but they have refused to even accept my papers by informing me that this case can not be filed in the labour court of delhi because my gross salary was more than 18000/- and further asked me to file a civil case in the matter because ur case is not under id act, moreover, they further advised me to approach the labour court faridabad, if they accept the case. it is very interesting to note that in one way they are claiming that this case can not be admitted because my salary is more than 18000/- on other hand they are asking me to approach labour court faridabad. i m quit confused.i would like to add my appointment letter was issued to me from delhi but my working construction site was at faridabad where this mishappening happened.my gross salary on the last day of working was rs.fifty thousand only per month.as per the clause no.7 of appointment letter ANY DISPUTES BETWEEN YOUR SELF AND THE COMPANY CONCERNING OR RELATING TO OR ARISING OUT OF THIS CONTRACT SHALL BE SUBJECT TO THE JURISDICTION OF DELHI AND BE DETERMINED BY THE COURT OF COMPETENT JURISDICTION IN DELHI ONLY.

please help me with a professional advice because i m not getting the right direction to come out of this mess.

thanks and regards

vinit soni

8860410213
29th April 2014 From India, New Delhi
I posted the sane as above on 14th April 2014. Varghese Mathew
29th April 2014 From India, Thiruvananthapuram
Sir(s),

1.The officer of the Construction Company, who started this thread for suggestions from seniors as per facts furnished by him is neither a "workman" under Industrial Disputes Act,1947, nor an "employee" under the provisions of The Employees' Compensation Act, 1923. Section 58 of The Building & Other Construction workers (Regu. of Employment and conditions of Service) Act, 1996 entitles the "building workers" for compensation under said Act. But the Officer, in my opinion, is not a "building worker" as defined under The Building & Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. Sections 44 & 45 of this Act lays down specifically about the responsibilities of the employers under the Employee's Compensation Act, 1923, but the same applies only for "building worker" as defined under section 2(e) of said Act.

2. In addition, in my opinion, as pointed out in above remarks the construction site is located at Faridabad. Therefore, the jurisdiction of Delhi labour Court is doubtful since the building construction site located in Faridabad is required to comply with the rules or Act as applicable in Faridabad/Haryana. In my opinion, any para of agreement between employer and employee regarding jurisdiction of any court with reference to provisions specifically made in the laws has no meaning and is not enforceable.

3. I understand that Sh.Varghese Mathew, has rightly mentioned the correct legal position in his remarks earlier in this thread. So far as I understand, the labour laws are helpful only in respect of employees or workers etc. as defined in the various laws and while defining such words as "employee" or "worker" the officers of higher level or middle level working in supervisory or managerial etc. level as left out by raising also limit of wages and left either at the mercy of the employers or left to go to a long long spell of litigation in a civil suit.
29th April 2014 From India, Noida
Hello Vinit Soni,
This thread has been referred to the Legal Members of this Forum for their expert suggestions.
But, prima facie, I think your advocate should have alerted you on the legal position of the issues you mentioned--where to file the case & whether you can move the Labor Court at all--even BEFORE the step presently taken.
Suggest wait for the Legal members to respond.
Rgds,
TS
30th April 2014 From India, Hyderabad
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