Contract Worker Seeking Permanent Position: How Should We Address This Situation?

Hello, this is Satya, and I am working in a government factory. Until yesterday, there were no problems, but now there is a contractual laborer working as a computer operator for 2 years near my boss. He has been handling all the official jobs that are of a permanent nature. My colleagues and I were impressed with his work, so we provided him with an experience certificate. However, I have now learned that he is seeking a permanent job. He claims to have the experience certificate with him and also possesses a gate pass that permits him to undertake a typing test for the first time. This implies that he underwent an interview before joining and is working under a manager, not following the contractor's instructions.

Please provide me with a better solution to resolve this labor issue.

Thank you.

Issuing Experience Certificates for Contractual Laborers

Actually, the experience certificate should be issued by the contractor as the individual works under them. However, I have provided it myself, which demonstrates that the person works under my supervision.

Experience certificates are typically issued by the HR department only upon a written request. Considering that this person works under me, I decided to provide a certificate using our company letterhead, duly stamped with my name and designation.

There was no need for any approval initially, but later I learned that the Vigilance department has instructed not to issue any type of experience certificate to contractual laborers.

Regards

You are fortunate that management is not taking any action against you for issuing the certificate. Had you sought approval, your request would not have been granted, as your seniors are well aware of the implications. As you have rightly pointed out, the experience certificate should have been issued by the contractor.

As things stand, the person has also retained the "gate pass in which it is written to allow him for the first time for typing testing." This proves that the principal employer had a say in the selection of the contractual employee. Moreover, he has been working for two years continuously, which is also proved by your certificate.

Your question is: "So, please give me a better solution to get rid of this labor."

Unfortunately for you, as things stand, if the person goes to court, an order in his favor shall be passed, as it is very clear that it is a "sham" contract and the worker is working directly under the principal employer. This is the view that courts have generally taken with regards to the Contract Labor (Regulation and Abolition) Act 1970. The only recourse available to your company is to delay the matter by appealing to higher courts of judiciary.

Anyway, you should be happy that you shall be blessed by him and his family for helping him get his job regularized.

Warm regards.

Addressing the Issue of Certificate Misuse

There are various ways to address this issue. Many of these approaches may not be ethical but could be necessary to prevent the misuse of the certificate that was provided. However, it is best not to discuss these methods on this forum as we do not support unethical behavior here.

Significance of a Gate Pass

On the other hand, simply possessing a gate pass to a test does not hold much significance by itself. It could be a situation where the individual failed the test but was still offered a job by the contractor. The job may be considered ongoing unless specified otherwise in the certificate. However, when the matter is brought to court, the circumstances will be examined comprehensively, and it seems likely that the individual may have a strong case in their favor.

Reporting the Issue

In your situation, you are facing a significant problem. It is imperative that you promptly report this issue to both your manager and the HR department. They will determine the appropriate course of action to take. However, issuing a certificate without proper authorization may result in the loss of your job.

Vigilance will undoubtedly not be pleased with this situation. If you choose not to report it now, there is a high probability that you will lose your job when the matter surfaces.

I am not familiar with your company's policies or the stance that management may adopt, but it appears that you are caught between a rock and a hard place.

Regards.

Raj,

If the matter does go to court, it is likely the vigilance department will insist on action against him. His getting blessings from the contract employee is a small comfort for someone suddenly without a job.

I totally agree with you on this. I also appreciate the fact that you had the courage to say the harsh realities about the consequences that I did not have the heart to convey! This act would indeed land the person in real trouble with the company. Moreover, since this is a government organization, once the person is charge-sheeted and a departmental inquiry is initiated against him, he cannot be relieved even if he tries to resign upon getting a better job elsewhere. The only recourse would be to report and accept the matter; and the disciplinary authority can impose a mild punishment like a warning, censure, or withholding of promotion.

Warm regards.

I would like to suggest the following in your defense if the matter is taken to court.

1. Please check if you have a valid contract subsisting between your company and the contractor, wherein there is a specific mention about the type of services offered by the contractor and a service level agreement such as the duration of this service, a clause by which the contractor indemnifies the principal employer in the event of litigations of this sort.

2. Also, look for evidence like salary slips, ESI, PF numbers given by the contractor to this employee in question in support of your defense.

Best Regards,
Raammohan.K

An interesting point, Raj. Since the certificates are only to be issued by HR and the person issuing it was not authorized, and also the employee was not even working for him (he was handling computer data entry work for his boss), would this amount to unauthorized certificates and therefore be invalid? If I were the boss, I would immediately suspend him and initiate an inquiry under the corrupt practices act (or whatever the law is in force) to see if the certificate was given in exchange for money.

The matter is very simple: the contract labor is only on deemed deputation to your company for a certain period for which you have selected him/her on the basis of an interview. After the completion of his/her period of deputation, you have given an experience certificate based on which he cannot claim any job in your company. If you have any contracts with the contractor or written communication, then send a legal notice to the contractor claiming damages, and I am sure the contractor will realize his mistake.

With best regards.

I do not know why everyone tries to scare you. Just because a contract laborer is working continuously for a long time, it does not give him any prescriptive right to claim permanent absorption. The Supreme Court in the Sail waterfront workers case (5-member bench) said so. Unless the employment in which the contract laborer is/was working is prohibited and notified under Section 10 of the CL(R&A) Act, 1970, he cannot claim permanent absorption. Of course, employing a person continuously as a contract laborer for such a long period, the principal employer is liable to be punished under the Act, but it does not give the contract laborer employment.

Further, employment in government organizations is regulated by rules and regulations, and nobody can claim employment outside of the said rules simply based on an experience certificate.

Regards.

Could you please go through the discussion that took place in the forum earlier from this link on a similar subject? www.citehr.com  Human Resource Management

Of course, the querist's problem is slightly different, and much would depend on the tendencies of the actions and reactions of the persons involved and the management. For the present, I prefer to wait and watch.

Regards,

However, without scaring you with ifs and buts, I would suggest that in the worst-case scenario, the attached Supreme Court judgment could possibly help you understand how this case could be taken further. This is in relation to the question of whether a contract laborer with 240 days of continuous service/work could claim permanency. Of course, it might touch upon only a few aspects.

Thank you.

I do not see the relevance of the stated case law to the post in this thread. Please explain.

It was wonderful to have all of your comments, and I am also of the same opinion. However, there is one more important thing we have to consider – has the contractor issued any letter to the individual? If yes, then what clauses has he included or any other instructions that have been issued by the contractor, etc.? If the case goes to court, the court will review all the points, and the decision will be based on that. In this scenario, the CLA (Contract Labor Act) is also applicable, as the company is a government body, and they must have policies in place that can definitely protect the interests of the company.

Thank you.