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I had sent legal notice through lawyer to the company against illegal termination. I made demand to reinstate employment and recovery of unpaid salary. However, company didn't reply within timeframe mentioned in legal notice so I made a complaint in labour department. Management was not present in first hearing. Labour department sent another notice stating that if the management will not appear on 11th May, 2018 then labour department will take one sided action against the management.
Suddenly I got reply to legal notice after 50 days in which management informed that they have appointed sole arbitrator to resolve the issue. Date is not finalised yet.
What should I do now?
From India, Delhi
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Dear Rupal,
Are you sure that you were formally terminated i.e by means of written orders by your Company? If "yes", you can simply write back to the Company that since the dispute raised by you is seized of by the Labor officer/Asst. Commissioner of Labor, a competent authority under the Industrial Disputes Act,1947, you are not interested in any alternative redressal through a third party. If you are not skeptical about the present move of the company or need immediate resolution of the dispute at any cost irrespective of its nature, you can co-operate with the management. It is for you to decide.
From India, Salem
Dear Rupal, Please furnish your Designation, Nature of duties Performed,Last drawn Gross Salary?Contents of your Termination letter, whether your Appointment letter includes clause for Arbitration? Details about your Employer
From India, New Delhi
Thank you for reply. My appointment letter includes clause of arbitration. Can I reply to management through email that I am not interested in any alternative redressal through a third party i.e. Sole arbitrator as matter is pending with Labour department?
What action can labour department take if management is not appearing in hearing after many notices?
From India, Delhi
Dear Rupal,
I think that your correct answer to the right question raised by our learned friend Srinath about the capacity of your employment i.e whether an employee in the cadre of workman or supervisory or managerial would determine the further action to the latest move of your management since there is an arbitration clause in the contract of employment. It is a common practice followed by Labor Dept to issue notice to the Management whenever any complaint of non-employment is received. It is only a preliminary enquiry. Luckily, in any case, if the Management comes forward for an amicable settlement of the issue, the Labor Officer may assist the disputants settle the matter among themselves even when the complainant is not a workman. On the contrary, If the management comes with a negative response based on the status of the employment position of the complainant with evidence and questions the jurisdiction of the Officer on that ground, naturally he would advise you to approach the appropriate forum and close the file.
From India, Salem
Dear madam,

I think we are not hitting the bull's eye in our replies in the absence of relevant information such as what is your designation, responsibilities and exact clause relating to so called arbitration in the appointment letter.
I D Act provides for arbitration process and appointment of arbitrator is with joint consent and no one party can unilaterily appoint Arbitrator in labour disputes.
But all this can be looked at after receiving above and other related information.
Regards,
Vinayak Nagarkar
HR -Consultant who
From India, Mumbai
Thank you all for response. I worked as process associate in a Bpo. Arbitration clause is "Any and all disputes arising in connection with the appointment letter and service shall be referred to arbitration which shall be conducted in accordance with the arbitration and conciliation act, 1996 by a sole arbitrator appointed by the General council of the company. The venue of the arbitration shall be Delhi and the language shall be English. You agree to submit yourself to the exclusive territorial jurisdiction of courts at Delhi.
Can I reply to management through email that I am not interested in any alternative redressal through a third party i.e. Sole arbitrator as matter is pending with Labour department?
What action can labour department take if management is not appearing in hearing after many notices?
From India, Delhi
Dear Rupal,
Well, You were a "Business Associate" in a B.P.O. Still, we are not able to understand from that nomenclature whether the incumbent of the post would be a "workman" as defined u/s 2(s) of the Industrial Disputes Act,1947 or not. Simply speaking, a BPO organization performs any process or part of any process of another organization through its own employees. Therefore, right from the General Manager down to the entry level employee performing the out-sourced process activities in such a BPO would be its "business associate" only; hence decide for yourself where and how you fit in. Interestingly, now a days, in Private Sector, particularly in the IT and ITES Companies, the designations are rendered more attractive and fashionable by the usage of catchy phrases like business associate, sales executive, Team lead etc., though the duties they discharge are either basically technical or clerical or simply with some incidental supervisory functions. It is not the designation but the predominant nature of the work performed by the employee is the decisive factor in deciding whether he is a workman or not to seek redress under the ID Act,1947.
Coming to the arbitration clause in your appointment orders, you've not mentioned whether such a clause is included in the appointment orders issued to all employees in the B.P.O. The objective of the Arbitration & Conciliation Act,1996, as I understand, is to comprehensively cover international commercial arbitration and conciliation as also domestic arbitration and conciliation.
From India, Salem
I have sent an email to HR manager yesterday that this matter is pending in Labour department so I am not interested to resolve the dispute through sole arbitrator. However, there is no response from the management yet.
Is a lawyer allowed in Labour department during hearing?
From India, Delhi
No lawyer is allowed in labour department conciliation.
From India, Hyderabad
Dear Friends,
Associate in a BPO is a workmen under Section 2s of the ID Act, hence under jurisdiction of Labour Department. An industrial dispute can be raised by such employee.
Warm Regards
Bharat Gera
HR Consultant
9322404765
From India, Thane
Hi All,
Management submitted reply in Labour department. They challenged jurisdiction of Labour office stating that "there are no documents were annexed with the summons despite there being specific averment in this regard in the summons signed by the Labour inspector. It is submitted that this seems to be a regular practice of this department of issuing summons without providing documentations of the case so as to leave the management at a total loss to understand why the summons have been sent before it.
The summons are also completely silent about the provision of law under which they have sent and the nature of enquiry that is contemplated. It is submitted that if these summons are for conciliation proceedings, the management is not interested in any such conciliation and the matter ought to be closed and dismissed on this date of hearing itself.
I need response to this reply from the management along with format.
From India, Delhi
Dear Rupal,
What is described in the post is indicative of the haphazard manner notices are sent to the parties to disputes by certain Labor Officers. Whenever a notice for enquiry is sent to the employer, it is essential that the copy of the complaint is enclosed so as to enable the employer to offer his remarks. Otherwise one can not find fault with such response from the employers. However, at the same time, the stand of the management about the maintainability of the complaint as well as the jurisdiction of the Labor Officer is totally wrong. The arbitration clause in the appointment orders can not take away the jurisdiction of conciliation under the Industrial Disputes Act,1947. In the case of a dispute raised under the ID Act,1947, the very question whether the complainant is a workman or not is itself, in sum and substance, a dispute which should be decided in adjudication only.
Therefore, I would advise you to file a rejoinder setting forth the above position and request the conciliation officer to issue conciliation notice u/s 12 (1) of the ID Act and if the Management is not still forthcoming with any other option, he can declare that the conciliation failed and on receipt of that failure report, you can file a case u/s 2-A(2) of the Act before the Labor Court for the area.
From India, Salem
Management mentioned in reply that Labour department did mention reason for summons. Management requested to terminate conciliation proceedings by stating " Respondent management is not aware about the reason to summons ". However, they replied in detail as per complaint lodged by me. Moreover, there is always a reason in notice.
1. Can Labour department take action against the management in this case?
2. What will happen to Arbitration proceeding as hearing is going on in labour department? Will it automatically cancelled after a specific time?
From India, Delhi
Management mentioned in reply that Labour department did mention reason for summons. Management requested to terminate conciliation proceedings by stating " Respondent management is not aware about the reason to summons ". However, they replied in detail as per complaint lodged by me. Moreover, there is always a reason in notice.
1. Can Labour department take action against the management in this case?
2. What will happen to Arbitration proceeding as hearing is going on in labour department? Will it automatically cancelled after a specific time?
From India, Delhi
Dear friend,
The duty of a Conciliation Officer under the ID Act,1947 is to bring the parties to the dispute together and discuss the points of their differences in his presence and help them reach an acceptable solution. When it is not possible due to the intransigence of anyone or both, he has to declare that conciliation failed and submit his report to the Appropriate Government setting forth the reasons for failure and recommending further action like reference of the dispute for adjudication or otherwise. Therefore, it is an administrative function only. No Conciliation Officer can take any penal action against any party to the dispute for their rigid stance or non-co-operation.
From India, Salem
The Respondent management submitted written reply to the notice sent by Labour department. I had also submitted response to that reply in next hearing in detail with supporting documents. Now, they denied to submit any further reply to my response.
1. is this a fair practice to not provide response to the Claimant? What could be the reasons behind this?
2. Should I write a letter to Assistant Labour commissioner that because the Respondent management denied to provide response?
3. Is there any option left to settle the dispute outside of the court?
From India, Delhi
Dear Rupal,
Proceedings before a forum for resolution of any dispute is not a seesaw game for the disputants to file complaint, counter, rejoinder, additional counter and so on and on endlessly for each and every imputation. You have raised a dispute and the management filed their counter statement for which you filed a rejoinder - that's all. Now, you have to just allow the Conciliation Officer to suggest alternative solutions if any from his side so as to bring down the points of dispute and persuade you both for an amicable settlement or declare his conciliation failed. Amicable settlement does not mean a win-win situation but a both-gain situation which implies certain sacrifices on both sides. Therefore, do not try to hang on to empty formalities. Decide for yourself what you want finally - reinstatement or compensation for the wrongful termination. Only that can pave the way for an out- of - court-settlement at any stage.
From India, Salem
Dear Rupal, Please clarify whether your application is in Petition Stage or the same is Treated as "ID" with reference Number.If it is in Petition Stage, later on Conciliation Officer will convert the same as ID & hold conciliation proceedings & send Failure Report.The matter will be referred to Labour Court for adjudication by framing issues & relief entitled to the Petitioner.Just because proceedings are held in Conciliation Officers office it can not be construed that Conciliation proceedings are held.What stand Management has taken regarding your Termination? do they consider you as an Employee under ID Act or have they denied that you are not a Workman
From India, New Delhi
Respondent management had submitted their reply in writing that Labour department did mention reason for summons. Management had requested to terminate conciliation proceedings by stating " Respondent management is not aware about the reason to summons ". However, they replied in detail as per complaint lodged by me. Moreover, there is always a reason in notice.
Despite Respondent management request to terminate proceedings, hearing is still going on according to the complaint lodged by me. I was told that may be in next hearing Labour officer will take the final call. Respondent management didn't mention any ID Act in there reply. However, they stated that " Respondent is unwilling to take her back on their rolls ".
1. Can the Labour department take action against the management as they made very serious allegations against the Labour office?
2. Will Labour department refer this dispute to Labour court or it would be my prerogative?
From India, Delhi
Dear Rupal, allegation by the Management against Labour Office has nothing to do with your Petition.If Conciliation ends in Failure, the Conciliation Officer will submit Failure Report to the Govt.There after the matter will be referred to Labour Court for adjudication.
From India, New Delhi
Very interesting discussion.
If am not mistaken, in another post by same poster I had suggested her to trust the Advocate appointed by her and go head as per him.
I could see in this matter, the management is trying to establish that the poster is not a Workman as defined under ID Act and she is governed by the clause of contract on arbitrator.
Always keep in mind that the management is smarter than individual employee.
If I am in the place of poster I will step down to amicable settlement skillfully attending arbitration.
Is there any scope with poster to establish that she is a Workman as defined in ID Act? If so, she should submit her say in conciliation. However, bear in mind, the conciliation officer has no power to decide on it and he has to refer this dispute to adjudication.
From India, Mumbai
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