Umakanthan53
Labour Law & Hr Consultant
Madhu.T.K
Industrial Relations And Labour Laws
+1 Other

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Due to misbehave by my manager with me ,a complaint was escalated to HR to intervene and complaint was lodged before DLC. ,HR acted otherwise and issued transfer order ,from Dehradun to Delhi, printing deliberately back date .Same was challenged before the DLC, and myself have not joined at transfer place,I fact I am continuing my work at my present Hq-Dehradun and same is communicated to the company ,company is stating it illegal and stopped my salary since March15.But Iam in regular touch with the management through daily reports of work at Dehradun,phone,letters and meeting set legal forum.
1-Can my employer mark me absent?
2-how should I lodge complaint of non payment of wages and what evidences are to be stated in the application?
3-how can employer state my work illegal at Dehradun ,when transfer order is challenged before DLC?

From India, Dehra Dun
you cannot challenge your tranfer order if it is mentioned in your appointment order. Further you need to report to delhi and claim non payment of salary before DLC. Based on the direction of DLC you may act upon. before all you better consult a good labour lawyer of your area and get his opinion about your case.
From India, New Delhi
Dear Mr.Kumaracme,
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?
Thanks
Regards

From India, Dehra Dun
It is illegal to change the service conditions of an employee while a dispute is pending before a conciliation officer, ie, DLO. This follows section 33(3) of the Industrial Disputes Act in which it has been stated very categorically that a protected workman should not be subjected to any change in service conditions. Now, this right of a protected workman ( a trade union representative who has been recognised as such by the management following the ID Act, is available to workers other than protected worker provided he is going to be a beneficiary of the award or settlement of the said dispute under conciliation. That means, if you have any dispute and the same has not been solved within the organisation but has been escalated to the table of District Labour Officer and the same is pending before him, then any move from the management to transfer you from the present place of working to a distant place will be viewed only as as victimisation which is illegal as was held in New India Motors vs Morris (AIR1960 SC 875), Premier Tyres Ltd vs Bhaskaran Nair (1979 Lab IC 549.Ker) etc.

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.

Madhu.T.K

From India, Kannur
Do recommend me all the lagalities available and it’s limitations in context to indian labour laws.
From India, Dehra Dun
Thanks a lot sir,how to proceed further to claim non payment of wages,as employer has taken the excuse of malafide transfer order and stopped my salary.
From India, Dehra Dun
Thanks a lot Mr.Madhu for your kind valuable information ,I wanted to suit the case of non payment of wages against the employer as my salary is being stopped under the excuse of not joining at transferred place. I have stated the facts I front of the employer many times but they are rejecting and extremely adamant to join at new place.
Regards

From India, Dehra Dun
You can approach the Labour department for this also. Since already a conciliation is undergoing you don't require much formalities to be completed. Inform the same Labour Officer/ Commissioner, as the case may be, and proceed further.
Madhu.T.K

From India, Kannur
Dear Mr. Madhu,
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.
Regards

From India, Dehra Dun
I find certain unexplained gaps in the post. (1) The individual has not mentioned the capacity of her employment - whether a workman as per Sec.2(s) of the ID Act,1947 (2) Even,if she is a workman, the nature of the complaint filed to the DLC is not mentioned. Other than the matter of non-employment like dismissal, discharge, a workman is prevented from raising a dispute about his/her other kinds of grievances without the espousal of a Trade Union.

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.

From India, Salem

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