Facing Employee Dismissal Challenges: How to Handle Legal Pushback and Next Steps?

Dear All, I have two small questions and request you to enlighten me on the same as soon as possible.

Dismissal of a Driver for Serious Misconduct

1. A "Driver" was dismissed for proven serious misconduct from the services of a company after following due process of law such as counseling, issuing warning letters/show cause notice/charge sheet, and finally after conducting the Domestic Enquiry by an independent EO, in which all his misconducts were proved. However, after his dismissal, his Union approached the Commissioner of Labour's Office in Mumbai, who in turn wrote a letter to the Company, to take the Driver back in service with back wages. Is the Labour Commissioner's Office authorized to give such instructions, and if so, what legal stand should the company take?

Termination of a Senior Manager for Misconduct

2. A Senior Manager of the company, having managerial powers/authority, was terminated for misconduct after giving a show cause notice, the reply of which was not found satisfactory by the company. However, no charge sheet was given, nor was a domestic enquiry conducted by the company. After the termination, what legal course of action can he take against the company?

I will be grateful if some of my experienced professional colleagues can give proper guidance on these matters.

Thanking you,

With Kind Regards,

H. Dattaram, Mumbai

1A Driver

It appears that the company was not represented at the Labour Commissioner's office. Please state your side of the incident, including your actions, inquiries, show cause replies, etc. Decisions are always made after hearing both sides and then applying the principles of law and justice.

2A Manager

The law of natural justice was not fully applied. The manager could challenge the decision of termination as one-sided and not based on the full facts.

Jurisdiction of the Labour Commissioner

The Labour Commissioner does not prima facie have jurisdiction to adjudicate upon the dispute. He can only refer the matter to the labour court for adjudication of the dispute under Section 10 of the ID Act or refer to the Bombay Act.

Manager's Termination and Reinstatement

As for the Manager's termination, the Manager can seek reinstatement, as stated by Mr. Nath Rao, on the grounds that the principles of natural justice were not followed. If this is the case, it is violative of Section 66 of the Bombay Shops and Establishment Act since one month's wages have not been paid to the Manager.

Thanks,

Sushil

Hi,

Colleagues have given the opinion that the Labour commissioner, as such, does not have the power to reinstate a workman. There should have been notice to the employer for conciliation proceedings. The management should have attended and filed a counter before the conciliation authority.

Regards,
R. Rajasekaran

In case of the driver, did the conciliation officer not call you to verify the facts? If so, you can give the facts in writing, asking him not to interfere in the termination. However, if he has given a failure report, i.e., the inability to bring about an amicable settlement between employer and employee, he will refer the matter to the labour court for adjudication. He has no powers to compel you to take the driver back; you can decline to take him back.

Secondly, if the senior manager was performing managerial and administrative duties, he will not fall under the definition of a workman under section 2(s) of IDA and hence cannot approach the Labour Court. However, since you are located in Mumbai, the MRTU & PULP Act applies. He may seek ex parte ad interim relief against you from the court, so file a caveat in the Industrial and Labour Courts for abundant precaution, so that they will not proceed without hearing you.

Friend,

The Labour Commissioner has to just conciliate the dispute, but he cannot pass an order of reinstatement. He has to forward the failure report to the Appropriate Authority for further action. Your company can refuse to accept the order and refer the matter to the tribunal for adjudication.

A senior manager cannot approach the labour authority as he is not a workman, but he can claim damages through the Civil Court.

Regards,
C S Thanky

Labour Commissioner's Authority and Legal Remedies

The Labour Commissioner has NO authority to direct reinstatement. As rightly said by Csthanky, the Commissioner's job is ONLY to conciliate, and in case of failure, to refer the matter to adjudication.

Legal Options for Senior Managers

As to the second question, if the senior manager (despite his designation or salary) is not a WORKMAN under the Industrial Disputes Act 1947, he has NO remedy under the labor law. Depending on the facts, he may be able to approach the civil courts for a remedy against "breach of contract." But in our country, this is a hopelessly indeterminate process that makes the lawyers rich, and one waits endlessly for "justice." The concerned individual must make the call. Personally, I would have put this matter behind and would have started identifying ways to create, safeguard, and protect my future for myself and my family, instead of sacrificing peace and harmony for which I work to exist!

Regards,
Samvedan
June 20, 2015

Union's Approach to the Labour Commissioner

Your narration of the Union's approach to the Labour Commissioner seems a bit lacking in specificity regarding their attempt for redressal. This makes the initial doubt raised by Nathrao about the possible non-representation of the Management a valid one. In cases of any legal punishment, particularly like the termination of services of an influential member of their Trade Union, it is quite common for the union to approach the topmost officer or a higher officer of the Commissionerate of Labour seeking clemency as a first step, instead of raising a dispute. The officer, out of his long acquaintance with the Union, may also be inclined to propose a lesser punishment in place of dismissal and call for a preliminary inquiry in this regard. If there is no response from the Management, in order to appease the Union, he might have tendered such advice. Otherwise, no power of giving such directions to the employer is vested with the conciliation officer, as opined by Sushil and other friends. If my above presumption is correct in light of actual events, you can write back to the Commissioner acknowledging your inability to comply with his advice/directions and ask him to advise the Union/workman to raise a formal dispute under sections 2-k or 2-A of the Industrial Disputes Act, 1947, as the case may be.

Thank you.

Best regards,
[Your Name]