Facing Unfair Transfer and Salary Issues: How Can I Legally Challenge My Employer?

Due to misbehavior by my manager towards me, a complaint was escalated to HR to intervene, and a complaint was lodged before the DLC. HR acted otherwise and issued a transfer order from Dehradun to Delhi, deliberately backdating it. The same was challenged before the DLC. I have not joined at the transfer location; in fact, I am continuing my work at my present headquarters in Dehradun. This information has been communicated to the company. The company is stating it is illegal and has stopped my salary since March 15. However, I am in regular touch with the management through daily reports of work at Dehradun, phone calls, letters, and meetings set up through a legal forum.

Questions Regarding Employment Issues

1. Can my employer mark me absent?
2. How should I lodge a complaint of non-payment of wages, and what evidence should be stated in the application?
3. How can the employer state my work is illegal at Dehradun when the transfer order is being challenged before the DLC?

Regards

You cannot challenge your transfer order if it is mentioned in your appointment order. Further, you need to report to Delhi and claim non-payment of salary before DLC. Based on the direction of DLC, you may act upon it. Before all, you better consult a good labor lawyer in your area and get his opinion about your case.

Dear Mr. Kumaracme,

First of all, sincere thanks for your prompt reply and for providing the following information to help me better understand the situation:

1. A complaint was lodged with the DLC before the transfer order, as the company manager had threatened me. The complaint was made to the DLC to prevent victimization or any malicious actions, as it is also mentioned in my appointment letter.

2. There is a 20-day gap between the actual delivery of the transfer order to me and the date mentioned on the letter. The letter has a backdate printed on it with malicious intent to conceal facts. Furthermore, the transfer letter was delivered to me by a private courier after the complaint had already been lodged with the DLC.

3. The transfer order is being challenged as a retaliatory action by the management to penalize the worker. The company insists that it is a business requirement decision. To date, I have not reported to Delhi and have informed the employer that the transfer order is malicious. It has been challenged before the DLC, and I will await the final verdict or directions from the DLC. Meanwhile, I will continue working at my current headquarters in Dehradun.

4. The employer claims my salary has been stopped illegally since March 2015.

5. I now wish to file a case for non-payment of wages. I need assistance on how to proceed.

Thank you.

Regards

Legal Implications of Changing Service Conditions During a Dispute

It is illegal to change the service conditions of an employee while a dispute is pending before a conciliation officer, i.e., DLO. This follows Section 33(3) of the Industrial Disputes Act, which categorically states that a protected workman should not be subjected to any change in service conditions.

Now, this right of a protected workman (a trade union representative recognized as such by the management following the ID Act) is available to workers other than protected workers, provided they are going to be beneficiaries of the award or settlement of the said dispute under conciliation. This means if you have any dispute that has not been resolved within the organization but has been escalated to the District Labour Officer and is pending, any move by the management to transfer you from your current place of work to a distant location will be viewed as victimization, which is illegal. This was held in cases like New India Motors vs. Morris (AIR1960 SC 875) and Premier Tyres Ltd vs. Bhaskaran Nair (1979 Lab IC 549, Ker).

It is immaterial whether the employee is a protected workman or not. If there is any grievance, it should be given importance, which is why a Grievance Redressal Committee functions within the organization. If a grievance remains unsolved, the remedy is not to victimize the employee by transferring them to a location far from their hometown.

Nothing stated above will be applicable if the employee is working in a managerial role. However, in the present case of discussion, I am sure the matter concerns a non-managerial role, which is why it has been escalated to the DLO.

Regards,
Madhu.T.K

Thank you very much, sir. How should I proceed to claim non-payment of wages? My employer has used the excuse of a malafide transfer order to stop my salary.

Thank you very much, Mr. Madhu, for your valuable information. I am seeking advice on how to address the issue of non-payment of wages by my employer. My salary has been withheld on the grounds of not relocating to a new work location. Despite my repeated attempts to explain the situation to my employer, they have been unyielding and insist on my relocation.

Regards

You can approach the Labour Department for this as well. Since a conciliation process is already in progress, you won't require many formalities to be completed. Inform the same Labour Officer/Commissioner, as the case may be, and proceed further.

Madhu.T.K

Dear Mr. Madhu,

As per the Payment of Wages Act 1936, the workman's salary clause is currently set at 18000/-. However, in my case, it is 18377/-, which exceeds the ceiling clause. In this regard, could you please advise me under which act I should file a case for non-payment of wages?

Regards

I find certain unexplained gaps in the post. The individual has not mentioned the capacity of her employment—whether a workman as per Sec.2(s) of the ID Act, 1947. Even if she is a workman, the nature of the complaint filed to the DLC is not mentioned. Other than the matter of non-employment like dismissal or discharge, a workman is prevented from raising a dispute about his/her other kinds of grievances without the espousal of a Trade Union.

Views on Sec.33 of the ID Act, 1947

Regarding the views of Madhu about the operation of Sec.33 of the ID Act, 1947, supported by the judicial decisions aptly cited by him, the above-mentioned blanks in the post compel me to take a contrary view on the following grounds: Sec.33 can be invoked only when an industrial dispute is pending conciliation or adjudication before the concerned authorities. A letter of complaint to a Conciliation Officer by an individual about the harassment meted out by the superior cannot, ipso facto, take the character of an industrial dispute. The admission of the complaint by the Officer and the inquiry or investigation done by him cannot be an act of conciliation.

Transfer as an Incidence of Service

Transfer is an incidence of service. Of course, it is correct and true that it should not have been done by the employer with malafide intention of victimization or a colorable exercise of the power vested in him in the contract of employment. This has to be proved by the affected employee.

The action that appears to me appropriate at this juncture is the individual should obey the orders of transfer and join forthwith in the new station of posting so as to avoid further disciplinary action on this score. She may then raise a dispute u/s 2(k) of the ID Act through her Trade Union if she is a workman.

Dear Sir, you have really highlighted a few important aspects of this thread, and the following are the complete details of the issue:

1. First, it is clear that my employment is classified as workman under the Act, as there is no supervision or managerial role duties performed by me.

2. My case history began in 2010-11 when I, along with 3 other company workmen colleagues, lodged a complaint before the DLC through our local union, alleging a violation of the SPE Act 1976. Just after the complaint was lodged, the employer acted retaliatory and transferred one workman among us to a distant place, citing business requirements. The same transferred workman lodged a separate complaint before the DLC, alleging a malafide transfer order. This case is still pending before the labor court, and the employee has not joined the transferred place to date (4-5 years have passed). During the investigations by the DLC, the employer was found guilty of SPE (Sales Promotion Employee) Act 1976 violations and recommended punitive action against the Managing Director. The employer approached the high court and obtained a stay of the punitive case proceedings. This case is still pending.

3. The aftermath of all this was that as the senior-most employee, I was subjected to discrimination and harassment in the name of sagging sales targets. I was called alone to review meetings, and pressure was built on me to withdraw all the pending cases against the company or face consequences. Being a workman and fearing job loss if I raised my voice, I handled the situation patiently and refused to succumb to management pressure. As a result, the company's Senior Manager humiliated and insulted me in an open meeting (witnessed by 40-45 employees) and threatened me with victimization.

4. I opposed this act of the manager and raised the issue to HR on 28-12-2014. A complaint was lodged before the DLC on 30-12-2014 under sec 10 read with sec-33 of the Industrial Dispute Act 1947, apprehending victimization.

5. My complaint was received on 30-12-2014 by the DLC, but initially, it was under investigation, and the first notice was served on 03-01-2015 to the employer.

6. On 12-01-2015, I received my transfer order dated 23-12-2014 via a private courier, and I communicated this to the DLC as a retaliatory action.

7. In response to my complaint, the actual date of conciliation proceedings began on 12-02-2015. I believe that at the initial stage of the complaint, the DLC was conducting an investigation.

8. The next step taken by the employer was to stop my salary from March 2015.

9. Currently, conciliation proceedings are ongoing before the DLC, where the employer is adamant about business transfer, and I am alleging malafide, with no probability of a mutual decision.

10. I am very clear that if I join at my transferred place, the company will certainly victimize me because of the employer's attitude that I have been facing for the last 3-4 years. I have not given them any reason to pinpoint any deficiencies in my duties. If I join at the new place, the employer surely has a pre-plan to trap me somewhere.

11. Kindly suggest how to proceed further. I have the courage to fight and survive without a salary, as my family's support is there. However, I need legal guidance to proceed.

Regards

Dear friend, I appreciate your firm conviction for seeking justice and your indomitable spirit to fight against all odds. However, I would like to convey my personal views based on my experience as an Enforcement Officer under the Sales Promotion Employees (Conditions of Service) Act, 1976 for a period of time and as a Conciliation Officer under the Industrial Disputes Act, 1947 for a considerable length of time.

Background of the S.P.E. Act 1976

The S.P.E. Act 1976 was enacted, as stated in the accompanying Bill, in response to the Supreme Court's judgment in MAY & BAKER (INDIA) Ltd. v THEIR WORKMEN (1961-II-LLJ-94). Unfortunately, it is one of the least enforced labor laws due to the dispersed placement of employees nationwide, in contrast to the centralized location of employers' headquarters. Despite specific provisions under section 6(2) extending dispute resolution to sales promotion employees, the legal complexities arising from conflicting judicial decisions have emboldened employers in industrial dispute matters involving their sales promotion employees. The judgment of the Constitution Bench in H.R. ADAYANTHAYA Vs. SANDOZ (INDIA) Ltd. (1994 AIR 2608), predating the S.P.E. Act, 1976, still serves as a defense for employers. However, the honorable Kerala High Court in LUPIN Ltd. Vs. G.SURESH AND ANOTHER (2008-I-KLJ 68) has categorically ruled that sales promotion employees are considered workmen under the I.D. Act, 1947.

Considerations for Your Situation

Based on your posts, it appears that your employer is quite obstinate and may exploit the legal process to cause delays and mental distress. Therefore, why not consider transferring stations under protest without prejudice to the existing dispute?

Kind regards

Thank you very much, sir. I am considering the option of joining at my transferred place, but I have some serious concerns:

1. My past experiences include instances where employers have attempted to trap me but failed. I have been an outstanding performer since June 2000.

2. At my current HQ, I have the full support of the local union, which I will lose at the new HQ.

3. The employer shows no interest in me and seems eager to let me go, especially as HR is annoyed with me due to legal cases. Therefore, the likelihood of facing harassment and discrimination may increase at the new HQ. As a newcomer, they could assign me difficult tasks and overload me with assignments under the guise of meeting targets.

4. The employer has already employed their most potent weapons against me, such as transfers and stopping my salary. They anticipate that I will yield due to financial constraints.

5. There is a possibility that they may relocate me to a remote location once I transfer to the new HQ. This poses another issue. In private sector jobs, unlike government positions, such challenges are common.

I appreciate your advice, but my practical experiences prevent me from following it. My manager has even threatened me with victimization or forced resignation.

Regards

Dear Sir,

Kindly update me on the procedure regarding lodging a case of non-payment of wages. Is there a salary ceiling for workmen? In my case, my basic salary is 18,377/-. If yes, is the same applicable to sales promotion employees?

Thank you.

Understanding Your Current Employment Status

Once, Peter Drucker said: "Doing the right thing is more important than doing the thing right!" I can very well understand your present precarious position wantonly created by your management. Keep aside the harassment being meted out to you as a measure of victimization and the possibility of the outcome of the long-drawn battle in your favor.

What is your employment status now? As of the date, you are an employee under orders of transfer, but in defiance of the orders, you are continuing in the present position on your own. It is nothing but acting without authorization, and as such, legally, it cannot entitle you to wages or salary as usual. Therefore, the question of claiming wages under Section 15 of the Payment of Wages Act, 1936 (the current ceiling is Rs. 10,000 per month w.e.f 08-08-2007) or under Section 33C(1) or 33C(2) of the ID Act, 1947 is out of focus.

What you’ve described in your last post are your apprehensions—maybe real and most possible. But if you would like to be an ultimate winner, you should remember when to crouch down in an encounter with a mighty foe.