Injured at Work and Denied Salary: What Legal Steps Can I Take for Justice?

Respected Seniors,

I am working as a senior project engineer (construction) with a Pvt. Ltd. Company based in Delhi. During the official working hours on 05/Sep/2013 at 12:30 PM (afternoon), I had a serious injury by falling down the staircase at the company’s construction site. I was rushed to the hospital by coworkers and was admitted to the ICU, where a major surgery was conducted on my right leg, and a titanium rod and accessories were transplanted.

In spite of my repeated requests to the company’s management via emails, letters, and telephonic conversations, the company has neither released my salary nor provided the pending medical dues. They are intentionally and deliberately adopting delaying tactics. After several months, I was informed by email that I should come personally to the head office for an amicable settlement. However, during my visit to their office, I was threatened with dire consequences. As a result, I have forwarded a legal notice for the pending salary and medical dues. In reply to that notice, I have been informed in writing that I will not be paid my salary from September 2013 to date, and medical dues can be settled on humanitarian grounds.

Please advise me on what action I should take as per the law applicable to an employee.

Thanks & regards,

Vinit Soni

[Phone Number Removed For Privacy Reasons]

As you mentioned that you had an accident at the construction site, did you follow all safety rules during your visit or while moving around the site as per the company's policy? If you did not follow the safety rules, then you are at fault. However, since the accident occurred on duty, the company is obligated to provide benefits. You mentioned that you have sent them a notice regarding the same. I believe you must have also consulted with an advocate. Have they responded to you? Have they provided any reasons for refusing to give you the benefits? What does your advocate say about their response? Please ensure to follow up on this matter promptly.

Thank you.
Regards.

Respected Tushar Sir,

First of all, thanks for your advice. As you inquired about the safety rules, this is for information that I was following all the safety rules like safety helmet, safety shoes, safety jacket, etc., as prescribed. Actually, CHALLI (in Hindi, we can say wooden jaali) installed was loose and shaky, which resulted in my falling on the stairs. This was because of the negligence of the safety department appointed at the site for our safety. I would like to mention that no insurance was made to cover the safety risk at the construction site as per the Workmen's Compensation Act. Instead of showing sympathy for this accident, the management was trying to back out from the responsibility.

In order to justify the non-payment of my pending salary and medical dues, the management is trying a gimmick of poor performance, whereas no written communication has been given to me, nor have I acknowledged any. The advocate is of the opinion that we should file a suit for claiming the pending dues/salary and compensation for temporary physical disability (as I am still under medical treatment) as applicable under the labor laws. Kindly, keeping in view all the facts and circumstances, please advise me on the optimum solution in this matter.

Thanks and Regards,

Vineet Soni

Going legal is the only way in your case. However, suggest choosing your advocate carefully. While I don't mean to cast any doubts on your advocate, it's better to be cautious earlier than later. I know of cases where the defendant's advocates have cut backdoor deals with employers, and the employee gets to know of it only when it's too late.

Also, see if you can insist on any timeframe for the court case with your advocate—going by what you mentioned, the company, most likely, will prefer to go legal than have any out-of-court settlement. Otherwise, it could go on and on for years.

All the best.

Regards,
TS

Legal Recourse for Nonpayment of Salary

Except for filing a case in civil court, there are no provisions in labor law to proceed against an employer for nonpayment of salary to a person with wages above Rs 18,000 per month. Similarly, no action is possible for a non-workman under the Industrial Disputes Act, 1947.

Regards,
Varghese Mathew
[Phone Number Removed For Privacy Reasons]

Employee Rights and Compensation for Work-Related Injuries

Whether you are a worker as per the ID Act or an employee outside the purview of the Act, you are eligible for full salary and medical facilities during the treatment and recovery period because the injury occurred while on duty or due to a work-related accident.

The management is obligated to pay the salary and medical expenses for the duration of treatment and subsequently provide compensation for any loss of earning capacity resulting from the disability caused by the accident.

It is advisable to seek legal advice from an advocate and consider issuing a legal notice.

Regards

As you mentioned, the incident happened due to the negligence of safety rules not being followed by them. Can you please confirm if a police case or FIR was filed at the time of this incident? If it was, and it clearly states the reason for the accident, that would be the strongest evidence for you to file a suit against them.

Understanding Employee Benefits Under the EC Act

Mr. Vineet is a Senior Project Engineer and is not classified as a workman under the Industrial Disputes Act (ID Act). Therefore, his case does not fall under the Industrial Disputes Act. He will receive benefits under the Employees' Compensation Act (EC Act) provided he falls under the definition of an employee as per Schedule II of the EC Act. If so, even negligence is not a bar as per Section 3(b) of the EC Act if the injury results in Total Permanent Disability (TPD).

Regards,
Varghese Mathew
[Phone Number Removed For Privacy Reasons]

Company's Actions Following Employee Injury

The action by the company is as follows:

• Formation of an inquiry committee to investigate the circumstances under which the employee met with an injury while on duty.

• Submission of a report by the inquiry committee with findings and recommendations to ensure that no such incident occurs in the future.

• The employee's accident is attributed to the company since the employee was on duty at the time of the accident.

• Opinion of the Medical Officer to further justify the employee's retention in the company. If retained, limitations of duties to be performed by the employee due to the accident.

• If retention is not possible, disability compensation is attributed to the company.

Under all circumstances, the employee is entitled to full salary during hospitalization. This is as per the rules of the country.

Thanks and regards,

Brijendra Singh Mathuria
HR & Admin Manager
CPS Shapers

Since you have mentioned that you have been working with a construction company based in Delhi and, while on duty, you met with an accident at the company’s construction site, I would like to provide some guidance.

Applicability of Construction Laws

Since your company is engaged in construction activity, I suppose it is covered under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, and the Delhi Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2002, are applicable to your employer. If you visit the website of the Delhi Labour Department on Delhi Government Portal, you will find the applicability of the Act & Rules, which reads as follows:

The Act applies to every establishment, belonging to or under the control of the government, any body corporate or firm, an individual or association or other body of individuals which or who employs building workers in any building and other construction work. It includes an establishment belonging to a contractor that employs, or had employed on any day of the preceding 12 months, 10 or more building workers in any building or other construction work. However, it does not include an individual who employs such workers in any building or construction in relation to his residence, where the total cost of such construction is not more than Rs. 10 lakhs.

Compliance and Penalties

You can examine the applicability of the Act to your construction company. If the same is applicable and your employer has not taken registration from the concerned authority and has not given the notice of commencement of the construction work, he is going to have a tough time. The Act has laid down heavy penalties for the contravention of its provisions, so much so that the inspector has powers to prohibit the working if the laid-down safety and health norms are not complied with.

Dues and Compensation

As regards your dues and accidental compensation, your employer is bound to pay both. Your employer was supposed to send a notice of the accident in Form XIV under Rule 210 (7) to the Chief Inspector of Building and Construction, Delhi, within four hours in case of a fatal accident.

Since you have already approached them and they are reluctant to clear your dues, I advise you to lodge a complaint with the Chief Inspector of Building and Construction, Delhi, giving all the details of the accident and copies of the medical treatment undergone in the hospital. I am sure this will work.

Regards,
BS Kalsi
Member since Aug 2011

I don't know who your employer is, exercising such high-handedness in settling a legitimate claim arising from an accident to an employee while on duty. The Workmen's Compensation Act covers all employees who are outside the purview of ESIC, and you seem to fall into this category. Despite the apparent stubbornness of your employer, you will have to initiate legal action to claim the compensation, which will include expenses for medical treatment, loss of wages, and benefits for any disability. Please seek the services of a "good" lawyer.

Regards,
Lalit Thakkar

I agree with the views of Mr. Lalit Takkar. If you are drawing less than Rs. 15,000/- per month, you will be covered under the ESI Act, under which it is mandatory for your employer to send an accident report within 24 hours. From your narration that your employer did not bother about your injury, you may not be covered under the ESI Act.

Employee Compensation Act, 1923

Therefore, the Employee Compensation Act, 1923 applies to you, and your employer is liable to pay compensation and incur full medical expenses. For the temporary disablement period, you are entitled to 50% of your salary as compensation. After your surgery, if a loss of earning capacity has resulted, appropriate compensation is payable by your employer with the deduction of the already paid 50% salary called half-monthly payment, which is not paid in your case and therefore, it is irrelevant.

Please approach the Employee Compensation Commissioner of the area in which your site is located and file your claim along with your medical bills and medical certificates. A designated officer of the Labour Department like the District Labour Officer or Assistant Commissioner of Labour or Deputy Commissioner will normally be designated as the Employee Compensation Commissioner. Please meet in person with the Employee Compensation Commissioner of the area and ask for help, and he would guide you. Normally, some advocates practice Employee Compensation cases whose details may also be obtained from the Labour Department.

You will not be entitled to a salary during the period of your temporary disablement under the said Act.

There are provisions to:

- Lodge a criminal complaint against officials who have threatened you (with the help of a lawyer).
- File a suit for the recovery of pending salary along with interest.
- Seek compensation for damages.

Please let me know if you need any further assistance.

Thank you.

Please refer to the definition of a Construction Worker under the BOCOW Act. I think the person who suffered the accident is not a construction worker. I have all sympathy for him. Let him get well soon.

Regards,
Varghese Mathew
[Phone Number Removed For Privacy Reasons]

I have gone through the situation. At this juncture, you should consider approaching the labor commission for the natural justice of the law.

Thank you.

I appreciate your observation, and you are right in pointing out the doubt. Since the victim is a senior person, the mail may not hold good in his case. In that case, he should approach the Commissioner appointed under the Employee's Compensation Act. After the enlargement of the scope, such persons are covered under Schedule II of the Act. In this case, the employer is required to send an accident report to the Commissioner of the Area. If an employer does not make a report, the injured person is within his right to approach and file an application before the Commissioner.

Regards,
BS Kalsi
Member Since Aug 2011

Dear Vineet, Approach your nearest Labour Commissioner. Discuss your issue and lodge an official complaint. Also, take the help of a resourceful lawyer. I am sure your issues will get resolved, and you will get your dues, compensation, and medical expenses soon.

Take care,
Regards,
Sourav Mukherjee

Company's Responsibility for Employee Injuries

The company has to pay you since the event occurred while performing official duties.

Respected seniors,

As advised, I have filed a case against management in the labour court of Delhi. Today, I accompanied my advocate for filing the case in the above-mentioned labour court, but they have refused to even accept my papers by informing me that this case cannot be filed in the labour court of Delhi because my gross salary was more than ₹18,000/-. They further asked me to file a civil case in the matter because your case is not under the ID Act. Moreover, they advised me to approach the labour court in Faridabad if they accept the case. It is very interesting to note that, in one way, they are claiming that this case cannot be admitted because my salary is more than ₹18,000/-. On the other hand, they are asking me to approach the labour court in Faridabad. I am quite confused.

I would like to add that my appointment letter was issued to me from Delhi, but my working construction site was at Faridabad where this mishap happened. My gross salary on the last day of working was ₹50,000 only per month. As per clause no. 7 of the appointment letter, ANY DISPUTES BETWEEN YOURSELF AND THE COMPANY CONCERNING OR RELATING TO OR ARISING OUT OF THIS CONTRACT SHALL BE SUBJECT TO THE JURISDICTION OF DELHI AND BE DETERMINED BY THE COURT OF COMPETENT JURISDICTION IN DELHI ONLY.

Please help me with professional advice because I am not getting the right direction to come out of this mess.

Thanks and regards,

Vinit Soni

[Phone Number Removed For Privacy Reasons]

The officer of the Construction Company who started this thread for suggestions from seniors, as per the facts furnished by him, is neither a "workman" under the Industrial Disputes Act, 1947, nor an "employee" under the provisions of The Employees' Compensation Act, 1923. Section 58 of The Building & Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, entitles the "building workers" to compensation under the said Act. But the Officer, in my opinion, is not a "building worker" as defined under The Building & Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. Sections 44 & 45 of this Act lay down specifically the responsibilities of the employers under the Employee's Compensation Act, 1923, but the same applies only to "building workers" as defined under section 2(e) of the said Act.

In addition, in my opinion, as pointed out in the above remarks, the construction site is located in Faridabad. Therefore, the jurisdiction of the Delhi Labour Court is doubtful since the building construction site located in Faridabad is required to comply with the rules or Acts as applicable in Faridabad/Haryana. In my opinion, any paragraph of agreement between employer and employee regarding the jurisdiction of any court with reference to provisions specifically made in the laws has no meaning and is not enforceable.

I understand that Sh. Varghese Mathew has rightly mentioned the correct legal position in his remarks earlier in this thread. So far as I understand, the labor laws are helpful only in respect of employees or workers, etc., as defined in the various laws. While defining such words as "employee" or "worker," the officers of a higher level or middle level working in a supervisory or managerial role, etc., are left out by also raising the limit of wages and left either at the mercy of the employers or left to go through a long spell of litigation in a civil suit.

This thread has been referred to the Legal Members of this Forum for their expert suggestions. However, prima facie, I think your advocate should have alerted you to the legal position of the issues you mentioned—where to file the case and whether you can move the Labor Court at all—even BEFORE the step presently taken. I suggest waiting for the Legal members to respond.

Regards,
TS