Employee sue his/her Employer

This article by Shital Darak Mandhana, pursuing M.A. in business law from NUJS, Kolkata, discusses the instances under which an employee can sue his/her employer. 

There are many instances wherein an employee of the company can sue his/her employer. Let us see a few of them:

When a woman is a victim of sexual harassment at her workplace, what is she supposed to do?

It is the company’s responsibility to take care of such matters.

According to “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”, the employer is required to constitute an Internal Complaints Committee (ICC) where there are more than 10 employees working in the Company. Half of the members of this committee must be women. What if the employees are less than 10? You can approach Local Complaints Committee which has to be formed by every District Officer in the district concerned. However, the aggrieved can file a criminal complaint instead of approaching the Internal/ Local Complaints Committee.

What should a woman do if she is aggrieved by the sexual harassment at workplace?

Step 1: A woman alleging sexual harassment must make a complaint to Internal Complaints Committee (ICC) within 3 months of the date of incident. This time limit can be further extended if she was prevented from filing the complaint or due to any other grave reason.

Step 2: Upon receipt of the complaint, the ICC must proceed to make an inquiry. This inquiry must be completed within 90 days. When the complaint is ongoing, upon written request of the complainant, the woman may be transferred to another workplace or granted leave for a period of up to three months.

Step 3: Where the ICC finds that the allegations against the respondent are proven, it must submit a report to the employer to:

  • Take actions against the sexual harassment as per the act,
  • Deduct from the salary or wages of the respondent such sums as may be considered appropriate,
  • Take action which may include suspension, termination, mediation or other appropriate action as the ICC sees fit.

Step 4: If a complaint has been proved, the aggrieved woman is compensated such amount depending on the mental trauma, pain, suffering, emotional distress, medical expenses incurred, financial status of the respondent, loss in career opportunity due to the incident, and the feasibility of such payment in lump sum or in instalments.

If the complaint involves only allegations of physical contact, sexual favours, showing pornography etc., it would amount to charges which are bailable in nature. On the other hand, use of criminal force will invite non-bailable charges.

Let us see few cases of sexual harassment:

Meenakshi vs University Of Delhi & Ors. on 5 July, 2011

N.N.S. Rana vs Union Of India (Uoi) And Ors. on 24 October, 2003

What actions can you take if your employer does not pay salaries or fails to deposit TDS or PF?

For unpaid salary, you can approach the Labour Commissioner, who will further hand over the matter to the court, in case Labour Commissioner is not able to handle the matter. The employee can make an application to the Labour Court under Section 33 (C) of The Industrial Disputes x Act, 1947. (Refer Case law: Sant Raj & Anr vs O.P. Singla & Anr on 9 April, 1985).

The definition of workman under the Industrial Disputes Act includes a part time employee (Case law: Yashwant Singh Yadav vs State Of Rajasthan And Ors. on 12 April, 1989)

Also, such an application should be made within one year from when the money becomes due from the company. All other benefits such as Provident Funds under “Employees’ Provident Funds and Miscellaneous Provisions Act, 1952”, capable of being computed in terms of money, shall also be included in the amount to be recovered. An employer who contravenes, or makes default in complying with the provisions of this Act, shall be punishable with imprisonment for a term which may extend to 3 years but which shall not be less than 1 year and a fine of ten thousand rupees in case of default in payment of the employees’ wages which shall not be less than 6 months and a fine of five thousand rupees, in any other case.

If you are an employee above the executive level or a manager and above, you can also file a case against the Company in the Civil Court.

In case of fraudulent practices by the company under section 447 of Companies Act, 2013, you can always approach Registrar of Companies and intimate them of the fraudulent activities of the company.

If for a period of one day in a year, 20 or more persons were employed in the establishment that will be sufficient to attract the provisions of the Act (Case Law: Ramanujam Press Represented By … vs The Regional Provident Fund … on 19 June, 1969)

As the power of regional PF commissioner to impose damages is a quasi-judicial function, an order under section 14(B) must be a speaking order containing the reasons in support of it (Case law: Organo Chemical Industries & Anr vs Union Of India & Ors on 23 July, 1979)

What will you do if your employer doesn’t pay you gratuity?

According to section 8 of the “Payment of Gratuity Act, 1972, in case the employer doesn’t pay the gratuity within the prescribed time to his employee (or nominee), the aggrieved employee can apply for redressal to the controlling authority. The controlling authority after investigation will issue a certificate for that amount to the Collector, who shall recover the same, together with compound interest at such rate specified by the Central Government. In case of delayed remittances of contributions, administrative / inspection charges by an employer, he has to pay both interest and damages for the period of delay.

According to section 11 of the “Payment of Gratuity Act, 1972, where the amount of gratuity has not been paid, or recovered within 6 months from the expiry of the prescribed time, the appropriate Government shall authorise the controlling authority to make a complaint against the employer, whereupon the controlling authority shall, within 15 days from the date of such authorisation, make such compliant to a magistrate having jurisdiction to try the offence.

According to section 9 of the “Payment of Gratuity Act, 1972, if the employer fails to pay the gratuity, he shall be punishable with imprisonment for a term which shall not be less than 6 months but which may extend to 2 years, unless the court trying the offence for reasons to be recorded by it in writing, is of the opinion that lesser term of imprisonment or imposition of a fine would meet the ends of justice.

Here “Controlling Authority” means an authority appointed by the appropriate Government.

In case of rival claimants to gratuity under the Payment of Gratuity Ac, civil court has jurisdiction to go into disputed matter (Asha Devi Jauhar vs. Sharda Dcvi 197g rr LLI 345)

Merely stating that the employees went on an illegal strike and thereby caused a heavy loss to the company is not a ground for denying gratuity (Refer case law: Bombay Gas Public Ltd. Co. vs Papa Akbar And Another on 18 September, 1989)
What should a women employee do if her employer doesn’t pay for her leaves she is entitled to during pregnancy or she is dismissed from her job without genuine reason? The Maternity Benefit Act, 1961, comes into picture!

According to Section 12 of Maternity Benefit Act, 1961, if a woman employee is discharged or dismissed from work without sufficient cause during her pregnancy, she may appeal to such authority as may be prescribed, and the decision of that authority on such appeal shall be final.

In case the payments are not been made by the employer to the woman employee, she can make a compliant to the Inspector. The Inspector may make an inquiry on the receipt on the complaint and if satisfied- may pass such orders as are just and proper. If the employee is aggrieved by the decision of the Inspector, she may appeal to the prescribed authority. However, the decision of the prescribed authority shall be final.

As per Section 21 of The Maternity Benefit Act, 1961”, If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees.

There is nothing in the Maternity Benefit Act which entitles only regular women employees to benefit of maternity leave. Those engaged on casual basis or muster roll are also entitled. (Refer Case law: Municipal Corporation Of Delhi vs Female Workers (Muster Roll) And … on 8 March, 2000).

The computation of maternity benefit in case of female worker engaged on a daily wage basis has to be made for all the days including Sundays and rest days which may be wage less holidays (Refer case law: B. Shah vs Presiding Officer, Labour Court, … on 12 October, 1977).

When do Employers need to compensate an Injured Employee?

The Workmen Compensation Act, 1923 requires employers to compensate an employee if the employee is injured while performing their duties during work hours. The compensation is paid depending on the kind of disability. The four categories of disability are death, permanent total disability, permanent partial disability and temporary disability.

If the employer and injured employee cannot come to an agreement on compensation, the dispute will be settled in a court of law.

For entitlement to compensation under the Act, the first condition is that the workman must suffer from a personal injury and that must be caused by an accident, and the second condition is that the accident must arise out of and in the course of employment (Refer case law: Laxmibai Atmaram vs Chairman And Trustees, Bombay … on 15 July, 1953) (Bhagwanji Murubhai Sodha And Ors. vs Hindustan Tiles And Cement … on 10 December, 1974)

The Factories Act, 1948:

Chapter IV of “The Factories Act, 1948” provides for safety standards for the workers in the factory. Any worker who is engaged in dangerous operations as per section 87 of the Factories Act, 1948, resulting in serious bodily injury, the contravention of any of such provisions shall make the occupier and the manager of the factory liable to a fine which shall not be less than Rs. 25,000 in case of an accident causing death or serious bodily injury and a fine of Rs. 5,000 in case of accident causing serious bodily injury.

When the owner of the premises leases its premises to different occupiers for use as separate factories, the owner of the premises shall be responsible for the provision and maintenance of common facilities and services as provided under chapter III (Cleanliness) and chapter IV (Safety). If any owner contravenes any of the provisions of this act, he shall be liable for a general penalty under section 92 of the factories act, 1948. During such case, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to one thousand rupees for each day on which the contravention is so continued.

All workmen who quit their employment would be entitled not only to accumulated leave from the previous calendar years but also to leave attributable to the period of work during the calendar year in which they quit their employment (Refer case law: Suhrid Geigy Ltd., Baroda vs State Of Gujarat And Anr. on 20 April, 1978).

The claim for overtime wages under Factories Act is maintainable only for work done beyond 9 hours in a day or 48 hours in a week and not otherwise (Case law: Clothing Factory, National … vs Union Of India By Its Secretary, … on 20 April, 1990).

What happens when an Employer doesn’t pay equal remuneration to men and women for the same/ similar kind of work?

According to “Equal Remuneration Act, 1976” an employer should pay equal remuneration to both men and women if their work is of similar nature. Also, no discrimination should be made while recruiting men and women workers for the same or similar kind of nature of work or in any kind of service subsequent to recruitment such as promotions, trainings or transfer against any woman should be made except where the employment of women in such work environment is prohibited or restricted by or under any law for time being in force.

If any employer:

  • Makes any recruitment in contravention of the provisions of this Act, or
  • Makes any payment or remuneration at unequal rates to men and women worker, for the same work or work of similar nature, or
  • Makes any discrimination between men and women in contravention of the provision of the Act, or
  • Omits or fails to carry out any direction made by appropriate Government,

He shall be punishable with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with imprisonment for a term which shall be not less than three months but which may extend to one year or with both for the first offence, and with imprisonment which may extend to two years for the second and subsequent offences.

If the lady stenographers were paid less than the male stenographers for the same work or work of a similar nature, then it would amount to discrimination on the ground of sex (Referring case law: Mackinnon Mackenzie & Co. Ltd vs Audrey D’Costa & Anr on 26 March, 1987)

The principle of equal pay for equal work id not applicable to professional services (Refer Case law: Dr. C. Girijambal vs Govt. Of Andhra Pradesh on 11 February, 1981)

What if the wages are not paid by the Employer to his Employee?

According to section 13 of “The Minimum Wages Act, 1948” in regard to fixed hours for a normal working day, the appropriate Government may:

  • Fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals
  • Provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest
  • Provide for payment for work on a day of rest at a rate not less than the overtime rate.

If the employer fails to pay such amount to the employee, or pays less than the amount fixed as per the above provision (section 13) or contravenes any of the rules of this section,

He shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Payment of wages less than minimum wage on the ground of less performance or output is illegal (Case law: Bandhua Mukti Morcha vs Union Of India & Others on 16 December, 1983)

Attendance bonus is the nature of an incentive. It is an additional payment made to the workmen as a means of increasing production. It cannot be treated as part of the minimum wage fixed under the Act (Refer case law: Manganese Ore (India) Ltd vs Chandi Lal Saha And Ors on 1 November, 1990)

From where can an Unemployed get information of vacancy in an Establishment and what if such information is not provided?

According to section 4 of “The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959”,

  • The employer in every establishment in public sector in that State or area shall, before filling up any vacancy in any employment in that establishment, notify the vacancy to such employment exchanges.
  • The appropriate Government may, by notification in the Official Gazette, require that from such date as may be specified in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sector shall, before filling up any vacancy in any employment in that establishment, notify the vacancy to such employment exchanges, and the employer shall thereupon comply with such requisition.

If any employer fails to notify to the employment exchanges prescribed for the purpose any vacancy in contravention of sub- section (1) or sub- section (2) of section 4, he shall be punishable for the first offence with fine which may extend to five hundred rupees and for every subsequent offence with fine which may extend to one thousand rupees.

Let us understand establishment with the help of case law:

Although the cosmopolitan Club, Madras is not a profit-making concern, it is an ‘establishment’ under the Act (Refer case law: Cosmopolitan Club vs District Employment Officer on 16 December, 1966) The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 is applicable to government establishments and there is nothing in the Act to compel the employer to employ those persons only who have been sponsored by the employment exchange (Refer case law: Union Of India & Ors vs N. Hargopal & Ors on 13 April, 1987).

What can you do if your employer doesn’t pay you bonus you are entitled to?

The Payment of Bonus Act, 1965 will help you recover the bonus from your employer.

According to section 21 of “The Payment of Bonus Act, 1965, where any money is due to an employee by way of bonus from his employer under a settlement or an award or agreement, the employee himself or any other person authorized by him in writing in this behalf, or in the case of the death of the employee, his assignee or heirs may make an application to the appropriate Government or such authority as the appropriate Government may specify in this behalf, is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrears of land revenue.

Every such application shall be made within one year from the date on which the money became due to the employee from the employer.

In case there is a delay in filing an application with the appropriate Authority beyond 1 year, the case will be entertained, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

Right to forfeit bonus has to be confined only to the accounting year in which act of misconduct was committed and not earlier or succeeding accounting years. (Himalaya Drug Co. Makali vs Ii Additional Labour Court, … on 3 January, 1986).

According to section 14 of the Act, an employee shall be deemed to have worked on the days on which he has been laid off. During the period of lay off, he is paid lay-off compensation which is not excluded from the purview of the definition of wages under the Act. He is therefore entitled to be paid bonus for the period. (Case Law: Mohankumar vs Dy. Labour Commissioner on 22 March, 1996).

For the purpose of this Act, employee means “any person (other than an apprentice) employed on a salary or wage not exceeding ten thousand rupees per mensem (month) in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied. (The amount of Rs. 10,000 has been amended to Rs. 21,000 in the Payment of Bonus (Amendment) Act, 2015).

Can an Employee claim for delayed payment of wages or for unnecessary deductions from wages?

YES! Let us see what section 15 of “The Payment of Wages Act, 1936” says:

The appropriate Government may be notification in the Official Gazette appoint an appropriate Officer of Central/ State Government, a Presiding Officer of any Labour Court of Industrial Tribunal etc as the Authority to hear and decide the claims arising out of deductions from the wages or delay in the payment of wages, including all matters incidental to such claims.

Where any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorized in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed may apply to such authority for the claims.

Every such application shall be presented within 12 months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be. The delay beyond 12 months shall be entertained if the applicant satisfies the authority that he had sufficient cause for not making the application within such period.

After hearing the claims of the applicant and after such further enquiry, if necessary, direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding three thousand rupees but not less than one thousand five hundred rupees in the latter, and even if the amount deducted or the delayed wages are paid before the disposal of the application, direct the payment of such compensation, as the authority may think fit, not exceeding two thousand rupees.

The authority constituted under section 15 of The Payment of Wages Act is empowered to investigate into the reasons for the absence and under what circumstances an employee was absent from attending to his duty, and wages for absence from duty cannot be deducted if the workmen were prevented from attending to their duties by organizers of bandh. (Kothri (Madras) Ltd. vs Second Additional … on 5 June, 1989).

For the purpose of this Act, “employed person” includes the legal representative of a deceased employed person.

The authority under the Payment of wages Act has no jurisdiction to interfere with the orders to stop increments passed under disciplinary proceedings (General Manager, Punjab … vs Swaran Singh, Conductor on 27 November, 2000)

What should an Insurance Corporation do in case excess of sickness benefits are availed by the Employee due to the negligence of Employer?

Why are we talking about an Insurance Corporation under this subject? Because as per “The Employees’ State Insurance Act, 1948”, an insurance Corporation falls under the definition of Employee. (Referring case law Hyderabad Asbestos Cement … vs E.S.I. Court And Anr. on 5 December, 1975) The definition is inclusive one. The meaning will be clearer through this definition (Section 2(9) of The Employees’ State Insurance Act, 1948).

Where the Corporation considers that the incidence of sickness among insured persons is excessive by reasons of:

Negligence of the owner or occupier of the factory or establishment to observe any health regulations due to sanitary working conditions.

The Corporation may send to the owner or occupier of the factory or establishment or to the owner of the tenement or lodgings, as the case may be, a claim for the payment of the amount of the extra expenditure incurred by the Corporation as sickness benefit; and if the claim is not settled by agreement, the Corporation may refer the matter, with a statement in support of its claim, to the appropriate Government.

If the appropriate Government is of opinion that it is prima facie case for inquiry is disclosed, it may appoint a competent person or persons to hold an inquiry into the matter.

If upon such inquiry it is proved to the satisfaction of the person or persons holding the inquiry that the excess in incidence of sickness among the insured persons is due to the default or neglect of the owner or occupier of the factory or establishment or the owner of the tenements or lodgings, as the case may be, the said person or persons shall determine the amount of the extra expenditure incurred as sickness benefit, and the person or persons by whom the whole or any part of such amount shall be paid to the Corporation.

The employer can be asked to pay contribution towards ESIC even after closure of the business and cannot escape liability on the ground that he had not deducted employees’ contribution from the wages. (Refer Case law: Employees State Insurance … vs Hotel Kalpaka International on 15 January, 1993).

If the employee has been suspended on improper grounds, what can s/he do and what actions can be taken?

Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance according to section 10A of “Industrial Employment (Standing Orders) Act, 1946”:

  • At the rate of 50% of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and
  • At the rate of 75% of such wages for the remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.

But if there is a dispute regarding the subsistence allowance or in case the suspension is improper and without just and reasonable cause, the workman may refer the dispute to the Labour Court constituted under the Industrial Disputes Act, 1947 within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situated and the Labour Court to which the dispute is so referred shall, after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties.

However, if the provisions relating to payment of subsistence allowance under any other law for the time being in force are more beneficial, then the provisions of such other law shall be applicable.

Suspension pending domestic enquiry is not punitive in character, only the relationship of master and servant remains in abeyance for a temporary phase (Case law: D. Uthirakumaran vs Government of Tamil Nadu and Anr. On 29 July, 1988).

Even in the absence of rules and regulations providing for suspension or payment of subsistence allowance during the period of suspension, the employer was bound to pay the subsistence wages during the period of suspension (Refer case law: The Management, Krishnaveni … vs I.P. Punnaivanam And Anr. on 22 September, 1989).

What protection is available to the Workmen working in the Mines?

Under “The Mines Act, 1952”, an Inspector is appointed which includes District Magistrate for the purpose of exercising any power or performing any duty which is empowered by this Act to exercise or perform the duties. The Inspectors have the power to write a notice to the owner of the mine if they sense any kind of threatening or danger concerned with the mine and should remedify the same in the prescribed time as specified in the notice according to Section 22(8) of The Mines Act, 1952.

If the Owner or Manager of the Owner of the Mine fails to take any action in spite of the notice, the Chief Inspector can prohibit the employment of the people if the mine is not safe enough according to him for the people working in the mine.

If the appointed Inspector finds that the persons employed in the mine have caused injury due to the negligence of the Owner, he shall be punishable with imprisonment which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

The Owner of a mine shall be prosecuted and punished under this Act for any offence for which the owner of a mine is punishable.

However, no prosecution shall be instituted against any owner of mine under this Act except at the instance of the Chief Inspector or of the district magistrate or of an Inspector authorized in this behalf by general or special order in writing by the Chief Inspector.

Provided that in respect of an offence committed in the course of technical direction and management of a mine, the district magistrate shall not institute any prosecution against an owner, agent or manager without the previous approval of the Chief Inspector.

This means that the worker will have to approach the Chief Inspector/ District Magistrate/ Inspector if s/he is aggrieved by the orders/ decisions of the Owner or the agent or the manager of the owner of the mine.

The definition of mine is very wide. It includes every kind of operation. Mine includes a quarry.

However, “mine” does not include office of a mine even though situated at the surface of the mine itself (Refer case law: M/S. Serajuddin & Co vs Their Workmen on 19 March, 1962).

Can the workers of trade union sue the employer if there is no settlement between the trade union and the employer?

Section 28L of Chapter IV of “The Trade Unions Act, 1926” provides for protection of action to the workers of trade union. It says that no suit, prosecution or other legal proceeding shall lie against any worker for anything which is in good faith done or purported to be done under this Act. There is nothing in the Trade Unions Act or the rules made thereunder which confers absolute right to be admitted as a member of a particular trade union. (Refer case law: Mohd. Ibrahim v. Asansol Iron and Steel Workmen Union 1954 I LLJ 1).

Further, The Industrial Disputes Act, 1947, provides for settlement of dispute between the parties through collective bargaining, arbitration and conciliation and lastly through labour court.

Firstly, the employers will try to resolve the dispute by collective bargaining that is the dispute is resolved amicably by agreement rather than coercion. If both the parties fail, then union may go on strike. Thereafter, arbitrator is appointed who will try to settle the dispute without court intervention. If the labour dispute cannot be settled via arbitration, then the workers can refer the case by a written agreement to a labour court, industrial tribunal or national tribunal for adjudication or compulsory arbitration. A final ruling on the industrial dispute must be made within six months from the commencement of the inquiry. A copy of the arbitration agreement signed by all parties is then forwarded to the appropriate government office and conciliation officer pursuant to which the government must publish the ruling in the Official Gazette within one month from receipt of the copy. The decision of the Government shall be final and binding on the parties.

The Registrar of Trade Unions has no authority or power under section 28 to decide any dispute between the rival office bearers of a trade union. His power under the section is restricted to make enquires and come to his own conclusion in the matter for the purposes of maintenance of record of office bearers of the union (Ratan Kumar Dey v. Union of India 1999 LIC 531).

Not being a permanent employee, what can an Apprentice or Contract Labour do if he is aggrieved by the acts of the employer?

Let us first understand the meaning of Apprentice according to “The Apprentices Act, 1961”. ‘Apprentice’ means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship.

Let us understand this with the help of a case law:

An apprentice appointed under the Apprentices Act would not become apprentice for the purpose of section 2(s) of the Industrial Disputes Act. Under the2 statutes, the expression “apprentice” is used with a different connotation and meaning. (Referring case law: Tannery And Footwear Corporation …vs Labour Court And Ors. on 18 March, 1993).

According to section 20 of The Apprentices Act, 1961, any disagreement or dispute between an employer and an apprentice arising out of the contract to apprenticeship shall be referred to the Apprenticeship Adviser for decisions.

Any person aggrieved by the decision of the Apprenticeship Adviser may, within thirty days from the date of communication to him of such decision, prefer an appeal against the decision to the Apprenticeship Council and such appeal shall be heard and determined by a committee of that Council appointed for the purpose. The decision of the Committee shall be final.

An apprentice is a trainee and not a worker and provisions of any labour law do not apply to him unless they are specifically made available to him. (Referring case law: Employees’ State Insurance Corporation, Bombay v. Indian Hume Pipe Company Ltd., Bombay).

As per the above case law, it is clear that an apprentice cannot take the employer to the labour court.

Now let us understand the meaning of Contract Labour as per “Contract Labour (Regulation and Abolition) Act, 1970”.

A workman shall be deemed to be employed as “contract labour” in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer.

A contract labour is one who hires and supplies contract labour to an establishment or undertaking to produce a given result. (Referring case law: State of Gujarat v. Vogue Garments 1983 I LLJ 255).

According to section 15 of Contract Labour (Regulation and Abolition) Act, 1970, any dispute between the contract labour and the contractor/ employer shall be referred to the appellate officer who shall be a person nominated in this behalf by the appropriate Government.

On receipt of an appeal under sub-section (1), the appellate officer shall, after giving the appellant an opportunity of being heard dispose of the appeal as expeditiously as possible.

Government as a principal employer will be responsible for enforcement of those amenities where contractor engaged by it for executing its construction project fail to provide the amenities to its workers. (Referring case law: People’s Union for Democratic Rights v. Union of India 1982 3 SSC 235) In no case, the contract labour can take the employer to the labour court.

Conclusion:

From the above discussion we understand that our law is for all be it a subordinate or his boss. There is a vast opportunity for the aggrieved to knock the doors of the court of law and take the help of the same to come out of the dispute/ disagreement. But mere dismissal of a complaint does not make the employer liable for the acts. The employee/aggrieved person should provide documentary proof to the court of law in order to prove the bad faith of his/ her employer.

2 COMMENTS

  1. All those who are above 24k salary bracket are not covered by any of the labour laws. Going to civil court is the only option for them in case of non-payment of their full and final settlement amounts by their employers. In case if such an ex-employee is unemployed, it becomes all the more difficult for him to take the legal route, since he is at his lowest income and savings levels in such circumstances. Moreover, judicial system in India as well as judges don’t believe in “Justice delayed is justice denied” theory at all. Law pertaining to salary payouts of employees in above 24K bracket is clear about the timing of payslip disbursements. However, strangely it is silent on timing by which salary should be paid to employee. Tons and tons of Vijay Mallyas in our country are exploiting this particular ambiguity in law to usurp the dues of their employees and have been enjoying their lavish ugly luxurious pomp and show of wealth.

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