We are (Contractor). One of our employees filed a labor case against us regarding "Non-payment of wages and termination from the job," but we have paid his salary. He worked with us from 15th November 2017 to 18th June 2018. He didn't complete 240 days of working with our organization. Now, we want to know what we can do legally. We need advice.
From India, Delhi
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From India, Delhi
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Firstly, clarify a few things. Was he given an appointment letter, payslip, or identity card by the contractor? Why did the contractor remove him? Did he issue a termination letter? And why are you worried about the 240-day clause for a contract worker and the legal clauses/implications.
From India, Hyderabad
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202From India, Hyderabad
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Mr. Venkata Vamsi Krishna Patnaik, they only provided an ID card. They didn't remove or terminate that employee. The employee willingly went to his hometown without any leave application or intimation. However, after that, the contractor didn't send any warning letter or any type of communication. Now, the employee is saying the contractor removed him without any notice.
I want to know about the 240-day clause...
From India, Delhi
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I want to know about the 240-day clause...
From India, Delhi
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Dear Ashish,
I suggest that you review section 25B of the Industrial Disputes Act, 1947, and section 2A of the Payment of Gratuity Act, 1972. Both sections are almost similar in defining the concept of continuous service. Simply put, to determine whether a workman/employee has rendered continuous service under the same employer/establishment within a period of 12 consecutive calendar months, it is essential to confirm whether he has worked for a minimum of 240 days. These 240 days include not only the actual number of days he worked but also the days of interruptions due to holidays, authorized leave, lay off, lockout, strike (which is not illegal), and absence due to temporary disablement.
Please ensure you understand these provisions thoroughly.
Thank you.
[Your Name]
From India, Salem
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I suggest that you review section 25B of the Industrial Disputes Act, 1947, and section 2A of the Payment of Gratuity Act, 1972. Both sections are almost similar in defining the concept of continuous service. Simply put, to determine whether a workman/employee has rendered continuous service under the same employer/establishment within a period of 12 consecutive calendar months, it is essential to confirm whether he has worked for a minimum of 240 days. These 240 days include not only the actual number of days he worked but also the days of interruptions due to holidays, authorized leave, lay off, lockout, strike (which is not illegal), and absence due to temporary disablement.
Please ensure you understand these provisions thoroughly.
Thank you.
[Your Name]
From India, Salem
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Dear Ashish Patnaik & Respected Umakanthan Sir,
For academic interest, I share the computation of 240 days working. For the computation of 240 days working in the 12 calendar months, it means beginning from any day of any month of a year and ending in the next year. Unpaid Sundays and Holidays cannot be taken into account for calculating the actual working days of a workman. For the reckoning of continuous service of 240 days in 12 months, it is to be moved backward from the date of termination.
240 days of continuous service, if not rebutted, will be deemed correct. No relief will be granted if the workman has worked for 239 days. Even daily wagers who have worked for more than 240 days are entitled to job security under the Industrial Disputes Act.
Regards,
From India, Andheri
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For academic interest, I share the computation of 240 days working. For the computation of 240 days working in the 12 calendar months, it means beginning from any day of any month of a year and ending in the next year. Unpaid Sundays and Holidays cannot be taken into account for calculating the actual working days of a workman. For the reckoning of continuous service of 240 days in 12 months, it is to be moved backward from the date of termination.
240 days of continuous service, if not rebutted, will be deemed correct. No relief will be granted if the workman has worked for 239 days. Even daily wagers who have worked for more than 240 days are entitled to job security under the Industrial Disputes Act.
Regards,
From India, Andheri
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My dear friend from Andheri,
Every part of your answer is quite okay except for the exclusion of unpaid Sundays and holidays from the calculation of continuous service under Section 25B of the Industrial Disputes Act. Perhaps, knowingly or unknowingly, the narrow interpretation may have been influenced by the judgment of the Madras High Court in A. Parthasarathi v. Management of Standard Motors Products of India Ltd (1979 Lab I. C 136), which held that the meaning of the phrase "actually worked" cannot be extended beyond what is stated in the Explanation to clause (2) of Section 25-B.
On the contrary, the Supreme Court in Workmen of American Express International Banking Corporation v. A.E.I.B.Corporation (1985-II-LLJ-539) ruled that the expression "actually worked under the employer" does not refer only to days when the workman physically works using tools like a hammer and sickle or a pen, but includes all days during which the employee was in the employer's service. Therefore, the Supreme Court concluded that Sundays and other holidays should be considered as days "actually worked". Furthermore, the Court noted that the Explanation serves only to clarify, as all Explanations do, and should not be used to restrict the scope of the main provision.
Kind regards,
[Your Name]
From India, Salem
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Every part of your answer is quite okay except for the exclusion of unpaid Sundays and holidays from the calculation of continuous service under Section 25B of the Industrial Disputes Act. Perhaps, knowingly or unknowingly, the narrow interpretation may have been influenced by the judgment of the Madras High Court in A. Parthasarathi v. Management of Standard Motors Products of India Ltd (1979 Lab I. C 136), which held that the meaning of the phrase "actually worked" cannot be extended beyond what is stated in the Explanation to clause (2) of Section 25-B.
On the contrary, the Supreme Court in Workmen of American Express International Banking Corporation v. A.E.I.B.Corporation (1985-II-LLJ-539) ruled that the expression "actually worked under the employer" does not refer only to days when the workman physically works using tools like a hammer and sickle or a pen, but includes all days during which the employee was in the employer's service. Therefore, the Supreme Court concluded that Sundays and other holidays should be considered as days "actually worked". Furthermore, the Court noted that the Explanation serves only to clarify, as all Explanations do, and should not be used to restrict the scope of the main provision.
Kind regards,
[Your Name]
From India, Salem
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PAYMENT OF WAGES ACT 2009.doc