Applicability of section 33(1)(a)
skg
(Querist) 01 February 2013
This query is : Resolved
Dear experts
A company having a offices at one place in delhi and a factory at different place in delhi.
A workman posted at the factory performing clerical work is fighting his illegal case of termination at delhi for the last 2 years to be reinstated with full backwages including unpaid increments of two years,continuity of service and consequential benefits.
In the meantime management thru an application prayed for amendment of their WS stating that the aggrieved workman can not be reinstated at Delhi since now the factory where he was lastly posted has been shifted to uttarakhand and other workman have taken their full and final and now their is no operation at this factory.This fact should be taken on record in their WS.
Managment also offered a fresh employment mentioning that if the aggrieved workmen is still unemployed he can rejoin but on same terms and condition of his previous appointment letter at their factory located in Maharashtra without prejudice to their right and contention in this case going on at Delhi?
My question to the experts is that
1) whether when a case is pending adjudication in Delhi (where workman wants reinstatement), by shifting the place of posting and offering fresh employment to a far away place on same terms and condition without employer's prejudice to the right and contention in the case, will be a
contravention of section 33(1)(a) during pendency of the case
2)whether it will constitute an alteration in condition of service since
a) his continuity of service on which long term benefits depends is broken as they say that offer is fresh,
b) he after passing of two years is being offered salary of that time when he was terminated and
c)this fresh offer of employment is given without express permission of court where the case is pending.
3)whether without mentioning/adding working conditions of factory of Maharashtra in the old appointment letter contravention of section 33(1)(a) have occured keeping in view that one of the office of delhi is still functional
4) whether this offer of employment smells of unfair labour practice or is fair in eyes of law.
pls provide your expert and valuable opinion with case laws specifically covering section 33(1)(a).
rgds
skg
Nadeem Qureshi
(Expert) 01 February 2013
Dear Querist
you should consulted with a lawyer personally or over the phone. you are able to pay consultation fee of a lawyer.
skg
(Querist) 01 February 2013
Dear Mr. Nadeem,
It appears that you are not aware of real purpose of this reputed forum/site which provides help to normal public in interacting with law experts and not for promoting their services.
I do not think that you as an expert are paying any fees to lawyersclubindia.com for giving opinions.
It also appear that Labour and service matter are not your area of specialization
V R SHROFF
(Expert) 01 February 2013
The offer given for employment should be accepted. Shifting charges and inconveniences can be claimed as perquisites, as schooling, other amenities will have to be adjusted, it causes lots of inconvenience , shifting employee far off.
No ULP, as it happens in majority of factory / office shifting, but as matter was in court, the element of revenge cannot be ruled out, and employee have to be extra alert.
Salary should be revised as per two years of inflation+ extra house rent and other cost of residence.
Raj Kumar Makkad
(Expert) 02 February 2013
1. No, It do not violate the provision as contained in section 33 (a) (i) in any way rather this is bonafide on the part of the management.
2. The management is already offering that the fresh appointment is being offered pending the case which includes that if court otherwise decides the matter in favour of the workman, entire benefits of the continuity of service shall be provided to him so this is not a change or alteration in the right of the court or the management or the workman.
3. As the workman was posted at factory and not in office so even if an office is working in Delhi, it shall not provide a specific right to the workman to claim his appointment there. As the appointment in Maharashtra is being offered afresh so it is required to provide the terms and conditions thereto.
4. This is very unik situation which can neither be termed as unfair labour practice nor can be termed as fair.
It has been drafted after a thorough and wise-fully thought. If workman accepts this offer, his weight in contest shall definitely reduce and same is situation with the management.
skg
(Querist) 02 February 2013
Dear Makkad Sir and Shroff sir,
Thanks for extremely valuable advises.
Two thing I forget to mention that
1) there is a working condition of second and fourth saturdays off in every month for both office and the factory of delhi but at the factory of Maharashtra there is six day working in every week of the month
2) Company do not want to give terms and condition by saying that it is on same terms and condition of his earlier appointment letter issued from delhi office
In this case is there any contravention of section 33(1)(a) or it can be still assumed that offer is bonafide and not malafide to remove the workman so that he can't pursue his case of intervening period at delhi individually with personal attention as he want to present in each hearing and company has not mentioned in writing that they will give paid leaves and expenses during his visit to attend the case from maharashtra to delhi.
Raj Kumar Makkad
(Expert) 02 February 2013
Such suppression of material things definitely do come within the terms of section 33 (1) (a).
