Navigating Re-employment During a Pending Labor Dispute: Can We Ask Him to Withdraw?

Dear Professionals,

A few years ago, there was a stay-in strike in our company, and in this connection, we dismissed 8 employees. Subsequently, they jointly raised a dispute which is now pending before the labor court (batch case 14 to 21). One of these dismissed employees has now approached the management seeking re-employment. The management is considering his request due to his family situation and children's education.

Re-employment During Ongoing Legal Dispute

My question is, how can we re-employ him when the case is still pending before the labor court? Can we ask him to withdraw the case? The dispute was jointly raised by 8 employees as a batch case. In this situation, would it be possible for him to break away from the batch case and withdraw from the labor court? Please advise.

Regards, Madhan S

As the joint dispute filed by your 8 dismissed employees is pending before the Labour court, it is not recommended to re-employ one of the 8.

Dear Madan,

Pendency of an industrial dispute in any judicial forum is not a bar to its out-of-court settlement if both parties are willing to do so. In such a situation, both parties can file a joint memo with a copy of the bilateral settlement before the Labor Court, requesting a consent award or dismissal of the dispute as withdrawn.

If the forum is a High Court or the Supreme Court, the appellant may withdraw the appeal due to the out-of-court settlement.

This procedure is equally applicable to non-employment cases filed under section 2-A(2) of the Industrial Disputes Act, 1947, whether filed individually or jointly by the concerned workmen or by a trade union under section 2(k) on behalf of the workmen.

Regarding the current case, as the cause of action for the dismissal of all 8 workmen is the same, there should be an acceptance of the misconduct and a request for reinstatement from the workmen. It is also important how the employer plans to regularize the period of non-employment and ensure continuity of past service before dismissal. If all these aspects are included in the bilateral settlement with each individual workman, it will not adversely affect the management's position in the collective case.

Please let me know if you need any further assistance or clarification.

What will be the impact of the settlement on the case filed by the remaining 7 employees? Will it help them to show that the management's actions were malafide since they took one of them back?

Dear Saswat,

Yours is a very valid question. The reason for the dismissal of the 8 workmen is cited as their stay-in strike. A strike by workmen in any form, in contravention of either section 22 or section 23 of the Industrial Disputes Act, 1947, would be illegal. Particularly, if any workman stays within the premises of the establishment beyond his working hours without authorization, it amounts to criminal trespass, which is certainly serious misconduct. When 8 workmen do this in a concerted manner, such an act would be an illegal strike and criminal trespass as well. If something untoward happens to the striking workmen, other employees, or to any property of the employer, it will have serious repercussions on the whole. Therefore, they would have been removed from the premises with the help of the Police only. Even if they had come out on their own, it cannot mitigate the gravity of the misconduct. As such, the punishment of dismissal would have been awarded to them after due disciplinary proceedings only. Even if the dismissal is a summary one without conducting formal disciplinary proceedings against them due to commotion, the employer can choose to conduct the inquiry before the Labor Court.

Coming to the point raised in your query, yes, the latter action of taking back one of the dismissed can affect the case of the others in one way or another. It depends on the material circumstances leading to the settlement and its conditions, which I have outlined in my previous reply. Dismissal of an employee from service, despite being a deterrent, is an economic death sentence, and therefore, its reason and mode can be questioned, but not the decision of reinstatement of a dismissed employee subject to certain conditions under mitigating circumstances later.

Management's Consideration for Re-employment

Very good interaction and suggestions. Here, I would like to add a point for management to consider. Is the management willing to re-employ others too if they approach in the same way? The stand to be taken by management is crucial here, as all 8 were dismissed for the same cause of action and gravity. If the management shows partiality, it will become a problem. Otherwise, settling with one would pave the way for others to follow and close the matter at court.

I feel if management can get feelers from the other 7, they can act in a concrete manner without raising any further disputes.