Sir, I am working in Delhi Knowledge Development Foundation, a society registered under the Societies Registration Act of XXI, 1860 (Registration No. S/61569/2008) under the Department of Training and Technical Education, Delhi. I have been working as an Executive Assistant on a contractual basis since January 2009 without any breaks. Initially, my salary was consolidated at Rs. 10,000/-, and now it has been enhanced to Rs. 18,000/-.
Sir, it has been five years, and now I want a proper pay scale. Can I present a representation to the President of the Society regarding this matter? Also, could you please inform me if there are any chances of being regularized in the same post in the future if I take any legal steps?
From India, Delhi
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Sir, it has been five years, and now I want a proper pay scale. Can I present a representation to the President of the Society regarding this matter? Also, could you please inform me if there are any chances of being regularized in the same post in the future if I take any legal steps?
From India, Delhi
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Understanding Contract Labour and Its Implications
This is not happening for the first time in your case. Nowadays, it has become common practice for most organizations to hire contract staff. Still, many companies do not seem to understand the purpose of the introduction of the Contract Labour Act of 1971. Contract staff are actually only permitted for incidental work, depending on the number of direct employees, nature of work, etc.
Considering that your work is not incidental and is continuous without any breaks, it indicates that the nature of the work is permanent. Even though it is being performed under a contract, it is against the law as it appears to be a sham of a contract and exploitation of employees.
I have observed that many Assistant Labour Commissioners (ALCs) have rejected Registration Certificate (RC) applications on the same grounds. Additionally, there was a court judgment where a clerk was employed on a contract basis for more than 10 years at a university in India. He fought the case in court and won.
Legal Reference: Section 10, Clause 2
For further clarity, please refer to Section 10, Clause 2: Prohibition of employment of contract labour - Before issuing any notification under subsection (1) in relation to an establishment, the appropriate Government shall consider the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as:
(a) whether the process, operation, or other work is incidental to or necessary for the industry, trade, business, manufacture, or occupation carried on in the establishment;
(b) whether it is of a perennial nature, meaning it is of sufficient duration considering the nature of the industry, trade, business, manufacture, or occupation in that establishment;
(c) whether it is usually done by regular workers in that establishment or a similar one;
(d) whether it requires a considerable number of full-time workers.
Regards,
Tushar Swar
From India, Mumbai
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208This is not happening for the first time in your case. Nowadays, it has become common practice for most organizations to hire contract staff. Still, many companies do not seem to understand the purpose of the introduction of the Contract Labour Act of 1971. Contract staff are actually only permitted for incidental work, depending on the number of direct employees, nature of work, etc.
Considering that your work is not incidental and is continuous without any breaks, it indicates that the nature of the work is permanent. Even though it is being performed under a contract, it is against the law as it appears to be a sham of a contract and exploitation of employees.
I have observed that many Assistant Labour Commissioners (ALCs) have rejected Registration Certificate (RC) applications on the same grounds. Additionally, there was a court judgment where a clerk was employed on a contract basis for more than 10 years at a university in India. He fought the case in court and won.
Legal Reference: Section 10, Clause 2
For further clarity, please refer to Section 10, Clause 2: Prohibition of employment of contract labour - Before issuing any notification under subsection (1) in relation to an establishment, the appropriate Government shall consider the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as:
(a) whether the process, operation, or other work is incidental to or necessary for the industry, trade, business, manufacture, or occupation carried on in the establishment;
(b) whether it is of a perennial nature, meaning it is of sufficient duration considering the nature of the industry, trade, business, manufacture, or occupation in that establishment;
(c) whether it is usually done by regular workers in that establishment or a similar one;
(d) whether it requires a considerable number of full-time workers.
Regards,
Tushar Swar
From India, Mumbai
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I think Ritu's case is different from engagement through a contractor but involves direct employment for a fixed term (FTC). If I am right, you are on a fixed-term contract, unfortunately without any term specified in the contract of employment.
Challenges with Fixed-Term Contracts
The basic problem regarding such kinds of appointments is that the employee should not have gone through the usual recruitment processes, like applying for the job, attending an interview, getting an appointment order, carrying out the joining and induction formalities, etc. In many cases, the courts, including the Apex Court, have stated that those employees who were given employment without following the above recruitment procedures will not get regularization. If their services are terminated, the maximum they can demand is the retrenchment compensation of 15 days' pay for every completed service, with nothing like reinstatement or regularization of service. Therefore, in the present case also, besides a couple of increments and role changes, if the actual/original appointment was not proper, you will be confined to the status of a casual employee only, who seldom gets regularized.
On the other hand, if you had undergone the usual procedures of recruitment by the organization, you can hope to get regularized.
Regards,
Madhu.T.K
From India, Kannur
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Challenges with Fixed-Term Contracts
The basic problem regarding such kinds of appointments is that the employee should not have gone through the usual recruitment processes, like applying for the job, attending an interview, getting an appointment order, carrying out the joining and induction formalities, etc. In many cases, the courts, including the Apex Court, have stated that those employees who were given employment without following the above recruitment procedures will not get regularization. If their services are terminated, the maximum they can demand is the retrenchment compensation of 15 days' pay for every completed service, with nothing like reinstatement or regularization of service. Therefore, in the present case also, besides a couple of increments and role changes, if the actual/original appointment was not proper, you will be confined to the status of a casual employee only, who seldom gets regularized.
On the other hand, if you had undergone the usual procedures of recruitment by the organization, you can hope to get regularized.
Regards,
Madhu.T.K
From India, Kannur
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In my case, with reference to the daily newspaper, I applied to the AIDS Control Society for the position of Executive Assistant. The organization in which I am currently working, DKDF, is also a registered society under the Department of Training and Technical Education. DKDF collects data from the AIDS Control Society and called me for an interview. During the interview, there were approximately ten members present, and a proper interview was conducted along with a typing and skill test. After the interview process, I was selected, and an appointment letter for a six-month contract employment was issued to me. I was also provided with the joining report. After the initial six months, my contract was renewed for another six months with the approval of the competent authority, and this cycle continued. Now, I have been working there for five years without any breaks. The complete details of the case are mentioned above. Please let me know if there is any possibility of regularization or if I can seek legal assistance.
Regards.
From India, Delhi
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Regards.
From India, Delhi
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Though Madhu has clearly pointed out that there is a catena of judgments by the Apex Court on the same line, which termed it as a backdoor entry to the service without following the proper process of recruitment, it seems the basic formalities were done in your case. You can try; however, it would be better to consult a lawyer before doing so.
From India, Delhi
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From India, Delhi
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It is case of regular recruitment and not a casual one and therefore, the post should be regularised. Please go through the bye of the society and take a decision. Madhu.T.K
From India, Kannur
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From India, Kannur
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I am in complete agreement with the views of Mr. T.K. Madhu. Normally, institutes established by the Central/State Governments for the special purpose of creating awareness through effective propagation are manned by people with high academic qualifications in the concerned subject matter. Though such institutes are left to the administrative control of a particular ministry, in order to ensure flexibility in their day-to-day functions, they are formed as independent societies under the Societies Registration Act. However, as rightly pointed out by Madhu, they are governed by their by-laws, which would certainly contain specific articles regarding the number of posts to be created, sources of recruitment, modes of appointment, confirmation of the initially appointed incumbents, and so on.
I do hope that there will be a Governing Committee of the Institute, and its recommendations are normally accepted by the Government. If your initial appointment is well within the norms stipulated in the by-laws and you have a consistent positive performance appraisal, you can make a representation for your confirmation to the Governing Committee through your Head of the Institute. If it is not fruitful, then you can think of a legal remedy based on merits.
Regards
From India, Salem
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I do hope that there will be a Governing Committee of the Institute, and its recommendations are normally accepted by the Government. If your initial appointment is well within the norms stipulated in the by-laws and you have a consistent positive performance appraisal, you can make a representation for your confirmation to the Governing Committee through your Head of the Institute. If it is not fruitful, then you can think of a legal remedy based on merits.
Regards
From India, Salem
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