Labour Law & Hr Consultant
Industrial Relations And Labour Laws
2nd July 2015 From India, New Delhi
First of sincere thanks for your prompt reply,and adding following information to have better understanding-
1-Complaint was lodged before DLC prior to transfer order ,as company manager had threatened me ,so same was complained to the DLC apprehending victimisation or malafide action(yes , it is true in my appointment letter is mentioned ).
2- there is a gap of 20 days between actual delivery of transfer order to me and date mentioned on said letter (as back date is printed on letter with malice intention to hide facts) and transfer letter was delivered to me by private courier after the complaint was already lodged before DLC.
3- Same (transfer order) is also challenged as a retaliatory action by the management to punish the workman ,but company is repeatedly stating business requirement decision ,till date I have not joined at Delhi and communicating to the employer ,transfer order is malice ,challenged before DLC and will wait for the final verdict or directions of DLC and till then will continue to work at my present hq.,Dehradun.
4-employer is stating illegal and stop my salary since march2015.
5- now I want to lodge the non payment of wages case ,need help how to proceed?
4th July 2015 From India, Dehra Dun
It is immaterial whether the employee is a protected workmen or not. If there is any grievance, the same should be given importance and that is why a Grievance Redressal Committee is functioning in the organisation. If a grievance remains unsolved, the remedy is not to victimise the employee by transferring to a location which is far away from his home town.
Nothing above said will be applicable in case the employee is working in a managerial role. But in the present case of discussion, I am sure, that the matter would be of non managerial and that is why the matter has been escalated to DLO.
4th July 2015 From India, Kannur
4th July 2015 From India, Dehra Dun
As per payment of wages act 1936 ,workman salary clause which is currently 18000/-,where as in my case it is 18377/-,which is exceeding the ceiling clause of ,so under which act, I should suit the non payment of wages case.
6th July 2015 From India, Dehra Dun
Regarding the views of Madhu about the operation of Sec.33 of the ID Act,1947 supported by the judicial decisons aptly cited by him, the above-mentioned blanks in the post compells me to take a contrary view on the following grounds:- (1) Sec.33 can be invoked only when an industrial dispute is pending conciliation or adjudication before the concerned authorities.(2) A letter of complaint to a Conciliation Officer by an individual about the harassment meted out by the superior can not, ipso facto take the character of an industrial dispute.(3) The admission of the complaint by the Officer and the enquiry or investigation done by him can not be an act of conciliation.
Transfer is an incidence of service. Of course it is correct and true that it should not have been done by the employer with malafide intention of victimisation or a colourable exercise of the power vested in him in the contract of employment. This has to be proved by the affected employee.
The action appears to me appropriate at this juncture is the individual should obey the orders of transfer and join forth with in the new station of posting so as to avoid further disciplinary action on this score. She may then raise a dispute u/s 2(k) of the ID Act through her Trade Union, if she is a workman.
6th July 2015 From India, Salem
You have really highlighted few imp aspects of this thread,and following is the complete details of the issue-
1-First this is clear my employment is workman as per the Act , as there is no supervision or managerial role duties performed by me.
2-My case history started in 2010-11, when me along with 3 other company workmen colleagues lodged complaint before the DLC through our local union ,alleging violation of SPE act 1976.Just after the complaint was lodged within first notice issued to the employer ,employer acted retaliatory and transferred one workmen among us to distant place stating business requirement.
Thereafter same transferred workman lodged separate complaint before DLC ,alleging malafide transfer order and same case is still pending before labour court and employee have not joined till date at transferred place(4-5 years have been passed)
Same time during investigations by the DLC employer was found guilty of of SPE(sales promotion employee) Act 1976 violations and recommend punitive action against the employer Managing director.Employer approached the high court and took stay of the said punitive case proceeding,same case is still at pending status.
3-----After affect of all this was that thereafter I being the senior most ,was subjected to discrimination ,and harassment on the name of sagging sales targets and even was called alone in review meetings and a pressure was built on me to ensure the withdrawal of all these pending case against the company or ready to face consequences. Being a workmen and fear of losing the job in case I raise the voice,I patiently handled the situation and not succumbed to management pressure and ultimately refuse to do so. Resulting company Sr. Manager humiliate and insult me in open meeting(40-45 employee of the company witnessed) and threatened me the of victimisation .
4-----this act of manager I opposed and raise the issue to HR on 28-12-2014 and complaint was lodged before DLC on 30-12-2014 under sec 10 read with sec-33 of Industrial Dispute Act 1947 ,apprehending victimisation.
5 -my complaint was taken on 30-12-2014 by DLC but at initial stage it was under investigation and first notice was served on 03-01-2015 to the employer.
6-------On 12-01-2015 I received my transfer order dated 23-12-2014 by private courier , and same I communicated to the DLC as a retaliatory action.
7- In response to my complaint the real date of conciliation proceeding started on 12-02-2015 ,I think at initial stage of complaint it was just investigation done by the DLC.
8-Next step taken by the employer is to stop my salary from March 2015,
9-currently conciliation proceedings are going on before DLC ,where employer is adamant to business transfer and myself is on other side alleging malafide ,no probability of mutual decision.
10-Myself is very clear in case I joined at my transferred place,company will certainly victimise me any how,because this attitude of the employer I am facing for the last 3-4 years.It is me who was not giving them any deficiency on my part to pin point at my duties.Incase I join at new place ,employer have sure pre plan to trap me somewhere .
11--kindly suggest me how to proceed further, I have the guts to fight and survive without salary as my family support is there ,but I need is legal guidance to proceed .
6th July 2015 From India, Dehra Dun
I appreciate your firm conviction for getting justice and indomitable spirit to fight against all odds.
However, I would like to convey my personal views out of my experience as an Enforcement Officer under the Sales Promotion Employees ( Conditions of Service) Act,1976 for some time and as a Conciliation Officer under the Industrial Disputes Act,1947 considerably for a long time.
The S.P.E Act.1976 was brought on the statute book, as the statement of objects and reasons accompanying the Bill shows, as a result of the Supreme Court's judgment in MAY & BAKER (INDIA) Ltd., v THEIR WORKMEN ( 1961-II-LLJ-94 ). Unfortunately it is the one of the poorly enforced labour legislations due to the scattered placement of the employees across the entire length and breadth of the country in contra-distinction of the location of the headquarters of the employers elsewhere. In addition to this,though there is a specific provision u/s 6(2) extending the provisions of dispute resolution to the sales promotion employees also by incorporation and subsequent amendment in 1986 removing the salary ceiling for the definition of sp employee, the legal hassle created by the conflicting judgments of various higher judicial forums results in reinforcing the cavalear attitude of the employers in matters of industrial disputes involving their sales promotion employees and acting as a detterent for even ventelating their grievances among the employees. Though pronounced very earlier to the passing of the SPE Act,1976 and despite its subsequent amendments, the ratio decidendi of the judgment of the Constitution Bench in H.R.ADAYANTHAYA Vs. SANDOZ (INDIA) Ltd.,(1994 AIR 2608) still acts as a point of defence to the employers. However, the hon'ble Kerala High Court in LUPIN Ltd., Vs. G.SURESH AND ANOTHER ( 2008-I-KLJ 68 ) categorically held that the SP Employee would be a workman u/s 2(s) of the I.D Act,1947 for redressal of his employment grievances based on the principle that legislation by incorporation is an accepted method of Law.
From your posts it can be very well inferred that your employer is very stubborn and he may try to take advantage of exhausting all stages of litigation and as such you will be the sufferer of delays and other associated mental tortures.So, why not you consider joining in the transferred station under protest without prejudice to the dispute already raised?
13th July 2015 From India, Salem
1- My past experience and incidences where employer have already tried their best to trap me but failed ,and they may succeed in their efforts to trap me at new HQ.( I am a outstanding performer since June 2000)
2-at my present Hq I am having full support of local union which I will loose at new HQ.
3-Employer is not interested in me at all and they want to get rid of me any how(HR is annoyed with me because of legal cases) .So probability of my harassment and discrimination will increase at new HQ as being new to new HQ they can subject me the tasks of difficulties and overload me with assignments on the name of targets.
4-employer has already used their weapon what the maximum they could harm to me I.e transfer and salary stop and they are expecting I will succumb now due to financial constraints .
5-They can further transfer me to distant place once I join at transferred HQ,again issue? .You know private job problems ,it is not govt job.
Any how I respect your suggestion but my practical experience donot allow me ,because manager has threatened me of my victimisation or give resign.
13th July 2015 From India, Dehra Dun
Kindly also update me the procedure regarding lodging the case of non payment of wages and is there salary ceiling for workman ( in my case my basic salary is 18377/-) ,if yes ,is same is applicable to sales promotion employee?
13th July 2015 From India, Dehra Dun
Once Peter Drucker said: " Doing the right thing is more important than doing the thing right! ". I can very well understand your present precarious position wantonly created by your Management. Keep aside the harassment being meted out to you as a measure of victimisation and the possibility of the outcome of the long-drawn battle in your favour. What is your employment status now? As on the date, you are an employee under orders of transfer but in defiance of the orders, you are continuing in the present position on your own. It is nothing but acting without authorisation and as such legally it can not entitle you for wages or salary as usual. Therefore, the question of claiming wages u/s 15 of the Payment of wages Act,1936 ( the current ceiling is Rs.10000/p.m w.e.f 08-08-2007) or u/s 33C(1) or 33C(2) of the ID Act,1947 is out of focus. What all you've described in your last post are your apprehensions - may be real and most possible. But if you would like to be an ultimate winner, you should remember when to crouch down in an encounter with a mighty foe.
15th July 2015 From India, Salem