Facing Unpaid Dues and Unjust Termination: How Can I Draft a Strong Email for My Labor Hearing?

I have raised my grievance with the Labour Commissioner's office of Mumbai regarding non-receipt of dues and illegal termination from the company.

I was absent from 15 Jan to 26 Feb due to my father's hospitalization and death on 14 Feb 2020. I informed the office about my situation over the phone and that I would not be coming to work as I am the only son responsible for looking after my family. I provided them with all medical bills and death certificates as proof of my absenteeism. My absence was due to my situation and genuine intention.

On 29 Jan, I was not absconding; I also visited the office to request additional leave days. However, the CEO made me wait for 4 hours and did not show up. I intended to resume work from 27 Feb 2020, but the company kept me on hold without pay. They neither asked me to leave nor did I submit a resignation. I repeatedly contacted the office to allow me to resume duty, but they kept delaying the process. Eventually, in July, I emailed them to reinstate me. After 4 days, they responded saying my services were no longer required. I was not given any show cause notice, warning letter during my absence, or any opportunity to present my case as per the principles of natural justice. My confirmation letter states a clause requiring a 3-month notice period from either party before closure.

They failed to provide me with a Full and Final settlement sheet or a No Dues certificate. Upon replying to their email on the same day and sending 9 reminders for a response, they blocked my email. I then sent a legal notice through my advocate. In response, they claimed my allegations were false without providing any evidence. Subsequently, I filed a grievance with the Labour Commissioner of Mumbai. Despite three scheduled hearings, no one from the company's management has attended. It appears they are intentionally delaying my case with malafide intent.

I have my 4th hearing on 9 Dec 2020.

Any expert suggestions are welcome. I request assistance in drafting a strong email to the Labor Commissioner, with a cc to the company, addressing my situation. Can anyone help me?

Next Steps in Addressing Termination

You need to be present on the next date and emphasize the reference to your termination without giving any further opportunity to the management. At this point, making any written submission to the Labour Commissioner is not likely to make much of a difference, as he would immediately forward it to the management for comments, causing a delay of about a month. Since your representation is already with the commissioner, the better course of action would be to make an oral representation alone.

Challenging the Termination

As the management claims they have discharged you, they should have at least paid for the notice period. Since that has not been done, you need to challenge the termination before the Labour Court without wasting time. You may engage a good lawyer practicing in labor law to take up your case.

Non-payment of Dues and Benefits

Forget about the notice period pay of 3 months; they have not paid for my actual working days from 14 January 2020 till 16 July 2020. They have withheld my wages and have not settled my full and final (FNF) dues until today.

On 16 July 2020, they paid an amount (x amt) which is less than what I am owed for the 14 days I worked. Additionally, I was eligible for medical, LTA, bonus, and other benefits as per the confirmation letter received from the company, but they have not paid those on a pro-rata basis.

Upcoming Hearing and Legal Assistance

Tomorrow marks my 4th hearing, which may be the last, and it is likely that no one from the company will be present. What should I ask the labor officer in this situation?

I am unable to hire a lawyer as I have been unemployed since February 2020. The prolonged lack of income, coupled with the passing of my father, has caused me significant distress and depression.

I am seeking legal assistance on a pro bono basis. Once I recover the dues from the company, I will be able to pay a reasonable fee.

Regards,

Mahesh

Dear Labour Officer, I am writing to express my concern regarding the unreasonable absence of the Company, which is causing a delay in reaching a final decision. I respectfully request you to consider acting ex parte in accordance with the rules governing such circumstances. While the Company may be able to afford this delay, for the complainant, this matter holds significant individual importance. Thank you for your attention to this matter.

Sincerely

Dear Mahesh, it is not mentioned whether you were employed in the establishment in the capacity of a workman, supervisor, or manager.

In case you were a workman

Whether it is a general complaint including non-payment of salary or a dispute raised under Section 2-A(1) of the ID Act, 1947.

If it's a general complaint, it is better to submit a formal dispute under Section 2-A(1) forthwith and request the Officer to initiate conciliation proceedings. A formal dispute under Section 2-A(1) is essentially a petition addressed to the conciliation officer stating that you were employed as [position] in the company [name] from [start date] and with effect from [termination date], the management terminated your services without any show cause notice and domestic inquiry. Therefore, this petition under Section 2-A(2) of the IDA, 1947 demands reinstatement with back wages, continuity of service, and all attendant benefits.

The officer has to submit his failure report within 45 days from the date of receipt of your petition in case he is not able to bring about an amicable settlement due to whatever reasons, including non-participation by the management.

Designation and Workman Status

My designation is Senior Officer, but it's just a title. I joined as a newly confirmed employee on 10/10/2019, having previously worked in the same company from October 2015 to July 2018. I was in the payroll department, preparing salaries for housekeepers, with no direct or indirect supervisory power, and no one reporting to me. The company states that my designation is Officer and that I am not a workman. However, I disagreed, stating, "Further to the statement framed by the company that I am not a workman as defined under section 2(s) of the Industrial Disputes Act, 1947, as my designation is 'Officer.'"

According to the decision of the Honorable court of law, an officer is considered a workman. Neither managing nor supervising others, one will be a "workman" under the Industrial Disputes Act, as neither the designation nor the salary decides whether the employee is a workman or not.

Current Situation and Request for Advice

I am currently sitting outside the Labour Officer's cabin for the 4th hearing, and still, no one has come from the company management. Please advise on what I should ask next. I am completely confused and unsure of what to do. 

Regards, Mahesh Vishwakarma.

Designation or salary cannot be the deciding factor to determine whether an employee is a workman under section 2(s) of the IDA, 1947 by simply ignoring the predominant nature of the duties performed by him or her.

If the facts preceding your non-employment are correct, the management seems to be highly inconsiderate towards the unforeseen difficulties in family life faced by an employee and his filial devotion to his parents. Besides, their act of terminating your services for absence during the course of the lockdown is not only illegal but violative of the Government's restrictions issued under the Disaster Management Act, 2005.

Appraise the Conciliation Officer of all these legal positions and request him to issue a final conciliation notice to the Management by registered post.

Dear Umakanthan M Sir, thank you so much for your quick reply . The labor officer handling my case is not present today. The clerk outside her cabin told me to wait. Yesterday, the company sent a letter with the office peon, but the clerk at the labor office did not accept the letter and told me to come today for the hearing.

Still, management has not arrived. They are actually harassing me and delaying my case. Also, my case is from before the lockdown was declared in India. I would like your suggestion on what I should ask for—reinstatement with back wages or only my settlement and compensation. I have not rendered my service since February 2020 as they have kept me on hold. If they had terminated or removed me when I was absent in January or February, I could have joined a new company before the lockdown. However, they kept me active in the company and did not mark my exit date in the PF portal. Their intention is to torture and harass me as I am very poor.

I have read that even though no service is rendered, the illegal termination of service amounts to reinstatement with full back wages as per a Supreme Court decision. Is this true, sir? Kindly advise.

Regards,

Mahesh Vishwakarma

Fifth Hearing at the Labour Commissioner's Office

So I went to the 5th hearing on 21st Dec 2020 at the Labour Commissioner's office in Mumbai. Even at the 5th hearing, no one from the company's management came. The Labour officer has issued a closure report and advised filing a complaint for Unfair Labour Practice (ULP) as it takes less time than Section 2A. I don't know what ULP is and have no information about it.

Does My Period of Service Matter?

Also, does my period of service matter? I worked for over 3 months but as a permanent and confirmed workman since I had previously served 3 years from 2015 to 2018.