Facing Unpaid Arrears After Resignation: How Can I Navigate My Claim Under the ID Act?

I was employed as Sr. Asst. - Accounts and resigned from the company on 12.12.2012. During my tenure, the company entered into a wage settlement agreement with the Workers Union on 31.10.2010, with retrospective effect from 1.12.2008. The benefits of this agreement were extended to me as a non-unionized staff member. Consequently, my salary was revised effective from 01.11.2014 as per the settlement norms. The arrears resulting from the settlement were agreed to be paid by 30.11.2011, which was approved through the BOD's note for non-unionized staff. I was also assigned an assistant who was on the Contractor's payroll and not an employee of the company.

The arrears mentioned above remained unpaid until my resignation, and I did not receive them upon my departure. Therefore, I declined the final settlement that was imposed on me. Subsequently, I consistently followed up on the matter with the company's officers, including the CS, who each time assured me of payment in due course.

I have now approached the office of the Labour Commissioner by filing an application under section 33C(1) of the ID Act. The company has stated that I did not qualify as a "Workman" under section 2(s) of the ID Act. They reasoned that I supervised the work of the assistant and handled leave recommendations/sanctions. Additionally, the company claims that since I was not a member of the Workers Union, my claim is disputable and time-barred as it was not raised within one year.

Your comments are appreciated.

Thanks,

Deepak

Assistant Assignment and Leave Recommendations

From when was the assistant given to you? Have you been recommending his leave applications? Are these leave application forms available with the company?

Workman Status and Wage Revision

The main issue is whether you are a workman, though the profession is a skilled one. Do you have any communication that the benefit of wage revision is applicable to you?

In the case of John Joseph Khokar vs. Bhadange B. S. & ors 1998 (1) LLJ 447 (Bom), it was held that in determining whether a person is a workman or not, the court has to principally see the main or substantial work for which he is employed. Neither designation nor any incidental work done by him will get him outside the purview of this Act. Supervision of the assistant was incidental to your main clerical job. How much supervision did you have to do on the contractual assistant?

Legal Advice and Contesting the Appeal

You need to contact a labor law specialist to see the facts on the ground and advise you. You have grounds to contest the appeal of your company, which prima facie has some good points, but deeper scrutiny may help you get the benefits of wage revision.

In addition to what Mr. Nathrao has rightly observed, I would like to emphasize that the present move of the management in resisting your claim for arrears of wage revision arising out of the settlement, the benefits of which were unequivocally extended already to the non-unionized category, also amounts to approbation and reprobation, which is prohibited. Approbate and reprobate means to accept and reject. One cannot accept the beneficial part of an instrument while rejecting the other part of the same instrument on account of other reasons. The common law doctrine prohibiting approbation and reprobation is a facet of the law of estoppel.

As of now, after revising your salary as per the terms of the settlement, your company is estopped from making such pleas for refusing to pay arrears of wage revision as per the other terms of the same settlement.

Thank you for your valued comments. Assistance was provided for not more than six months. In fact, I was just signing for his attendance on the card, and my job was to impart training. There were no separate leave application forms. The company has not communicated the benefits of wage revision in writing to any of the non-unionized employees. However, I have with me a copy of the Office Memo stating that as a practice, the company revises the salary of non-unionized staff at par with the unionized staff, and the benefits may be given. This note has been signed by members of the BODs.

As you rightly pointed out, my supervision was incidental in nature.

Thanks,
Deepak

From the above post, it can reasonably be concluded that:

Position is clear - the company cannot deny you the benefits of wage arrears. The company can delay your payment but not deny it. Keep pressing the matter.

Thank you, everyone. My hearing is scheduled for the 30th of June. However, what about the company's other contention that I am not a "workman" under section 2(s) of the ID Act?

As a Senior Assistant, if your job were clerical in nature, it would fall under the definition of a worker. The definition of "workman," as provided under Sec. 2(s) of the Act, is as follows: "Workman" is any person (including an apprentice) employed in any industry to perform manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward. This includes individuals whether the terms of employment are express or implied. For the purposes of any proceedings under this act in relation to an industrial dispute, it also includes any such person who has been dismissed, discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute.

Please read the comments by Mr. Umakanthan carefully. They provide you with material to understand that the settlement entered into with the union is equally applicable to you as well.