Labour Law & Hr Consultant
Statutory Compliance
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Consultant In Legal Matters
Sr Vice President
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Dear Seniors,

Here is interesting case for IR/HR professionals and I request your valuable guidance to deal the matter. Santosh is union leader and working in a MNC company for last 25 years. Several times he had been active participant of workmen wage negotiations agreement as president of the legally registered union. However Management never appreciated Santosh as Union leader and has been on look out for every single opportunity to cow him down especially in past three years when he opted to be out of union activities. He has been very witty and never could be caught doing wrong more so Management did not do it openly till recently as he had been President of employees union on and off during his service till recently.

About three years ago when he was not union office bearer he was issued charge sheet for sleeping charges and domestic enquiry was conducted and proved to be guilty and was coerced to be terminated. As the circumstances were not favoring Santosh gave under taking of not repeating such or similar misconduct including he would not be contesting union election in future and desist from union activities for minimum next two years. Management got this undertaking on Rs. 100 stamp paper and witnesses were then union office bearers as part to this undertaking. Management exhibited a notice informing employees in general about the commitment of Santosh to management and the consequences he would suffer in case of default. The notice continues to be on the notice board for more than two years which is shear harassment to Santosh.

Recently as the two years period expired Santosh contested the union elections and got elected but this time not as a President but as a general member of the union body. Management had sent loud feeler to Santosh not to contest union elections and now to the newly elected panel of not holding the discussions unless they bar the Santosh from their Union panel. New union panel asked Santosh to resign as a union panel member due to managements insistence and this would facilitate co-opt any other member of their choice to complete the union panels minimum number as per bylaws. Santosh explained the union panel he would not resign but would cooperate with them by opting to be not in the union panel as active member. Management being unhappy about this hooked Santosh in small petty matter such as breaking the queue in the employee canteen during the lunch recess and second case of arguing with security for lodging the complaint against him of breaking the queue in the canteen.

Because of coercive tactics and out of sheer power of position the concerned officers and that they are successful in creating a terror to not stand up and support Santosh he is helpless and that his union committee too is not able to extend support out of fear and harassment form the management he is singled out Santosh is being vehemently victimized and not able to take fight with management fearing of a captive punishment. .

Request what lawful remedies are available to Santosh and if really he could be terminated assuming that Santosh so far has tried all other options except falling on the feetís of the concerned officials or o sot say management. .

Thanking you in anticipation of your valuable advices.

W Narendra

From India, Mumbai
Hi there,

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

Robin Varghese

blog: Shooting from the hip

From India, Delhi
At the out set,i confirmed to know that the management of Company,Specially HR Management is not aware of legal obligation under ID Act .
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.
Mangesh Wakodkar

From India, Pune
Hi Robin,
Greetings !!!
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...

From India, Mumbai
Dear friend
I have sent a personal mail- do not antagonize anyone and do not seek any redressal anywhere for the moment. Try to sort out this issue as per my advice if you agree with it.
All the best
Robin Varghese

Blog: Shooting from the hip

From India, Delhi
One can not have the cake and eat it too! - only this proverb comes to my mind after going through the story of Santhosh, the union leader who is actively inclined towards the protection of the interests of his union members and Santhosh, an ordinary workman who is in dire necessity of keeping his self-esteem and the means of livelihood intact. The singling out of Santhosh and the insinuations and insults hurled up on by the management and the moot witnessing of the same by the union as a body is only indicative of the fact that the union is a mere puppet in the hands of the management. There may be a section of sensitive workmen but they seem to be a microscopic minority. The first and foremost essential quality of a leader particularly a trade union leader is the ability to lead the followers and not follow them just for the sake of his apparently exalted status. If not one has to keep himself aloof from such activity. Union leaders are not groomed by workmen but by managements and that is how the great trade union leaders happen to be mostly dismissed employees. Leadership can not be a trait of mere unmindful bravery but of the ability to employ tactics in confrontation and conflict resolution whenever necessary. In my long career as a Conciliation Officer I've seen a number of good-hearted and straight-forward and highly knowledgable trade union leaders as well as managers messing up the entire things because of their talkative nature that sowed deep down negative impressions in the minds of the other side. Essentially, a lot of learning on the part of workmen and a lot of unlearning on the part of managers are very much required when they are part of any negotiation team. The intermittant presence of Santhosh in the bargaining team as narrated in the post compels me only to infer that things went only the way the management wanted irrespective of his presence or absence and even then the management is bent upon harassing him is a point for introspection only by Santhosh, the individual. So, dear Narendra, have a dispassionate introspection whether you are the Santhosh or not and decide for yourself!!!
From India, Salem
Where Santosh the union leader faltered in loosing his status and image as a president of the Union:

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.



From India, New Delhi
It 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.
From India, New Delhi
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