Labour Law & Hr Consultant
Consultant In Legal Matters
Sr Vice President
There are two kinds of misconduct .Major and Minor. A major penalty cannot be imposed for a minor misconduct (even if proved), therefore I do not think they can terminate him. Even if terminated he can seek recourse in higher courts and get reinstated.
Now to the point of his leaving the Union Post. This is a dicey situation. In my opinion Santosh is correct in hanging on to the post.(I think he realised his mistake of not contesting elections during last 3 years when he received his first charge sheet of sleeping on duty) My advice would be do not resign from the post otherwise he will be a sitting duck for action.
However this would not please the management and from what I read about the other Union leaders, the Union itself appears to be one out to please the management and without any spine or fighting spirit. I would not be surprised if the management cohorts with the other office bearers and seeks his removal for anti union activities as may be required according to the bye laws.
Santosh should approach the higher ups in the Union's affiliated bodies and plead his case and assure his safety for the rest of his service period,
This is all I can think off, Hope this helps
blog: Shooting from the hip
1st September 2014 From India, Delhi
If the Companies is in Maharashtra then the mangement totally voileted the MRTU AND PULP law by forcing Santosh to give undertaking that he would not be part of Office Bearers .As per the law this is Unfair Labour Practice on the part of Mangement to prevent the legal right of worker to form an Union and To collect.
You can file the case against Management.
Sleeping on duty merely not prove the punishment of dismissal as one might be not feeling well at the circumstances.You can challenge the decision if they initiated for.
What inquiry report says?
Please check once the statement given by Santosh during the inquiry.
1st September 2014 From India, Pune
Thank you very much for your quick response. I am in agreement with your observations and suggestions.
I am happy that atleast Santosh is not moving in wrong direction and keeping semblance of good discipline responsible worker and union leader which he has been always... I would like to know in specific if he could individually file a complaint against few management officers of harassment/victimization or a case under Human Rights commission and I don't have much awareness and knowledge about it...
6th September 2014 From India, Mumbai
8th March 2015 From India, Salem
1. He did not have even witnesses of co-workers to challenge even petty charges of sleeping. What to say of expecting of garnering support in union activities. He does not appear to have any legal expert assistance at his backing.
2. He did not challenge the action of management regarding getting signed the undertaking that he will not participate in union activities. It is patently unfair labour practice under Industrial Disputes Act and would have imposed punishment upon management and further direction would have been given by court to deter using unfair labour practice and victimization.
3. The union should have engaged a proper legal expert to counter all victimization and anti union activities of management.
4. He should have roped in big union leaders to seek their guidance time to time and organized meetings of workers with them.
5. He should have organized legal strikes against unfair labour practices and victimization practiced by management.
6. He is a protected workman and under section 33(3) of the ID Act no action of punishment of dismissal or otherwise or change in condition of service can be taken without permission of the Court.
7. If he is performing his duties normally, then cooking up false charges against him is also a part of unfair trade practice and victimization.
8. He should have made peer workers known that today it is his turn tomorrow someone out them will be victim so remain united but not do anything illegal. That has to be cicumspected before taking any action on the part of union.
9. It is not so easy to terminate a union leader under the labour laws.
10. The management should have been realized that it is in the interest of company that both union and management should work in harmony.
11. A weak union exhibits low morale of workers.
8th March 2015 From India, New Delhi
#AnonymousIt needs emphasis that the concept of workman is understood in common parlance as blue collared job holder person but one should be clear that a technical software engineer or other technical engineer working in a MNC is the grassroot level workforce which produces the product of the company. They are also covered within the definition of workman laid down under the Industrial Disputes Act. Thus a strong labour union can safeguard their financial, job security and upbringing of morale, collective bargaining and reduction in arbitrariness of management. Weak union as described in the query will lead to exploitation of work force. Here the Santosh badly performed by not evoking the spirits of workforce. There are many other undescribable factors which led him to bring to such awkward situation.
8th March 2015 From India, New Delhi