Is it legally wrong to make people work on 15 aug & 26 jan?

Software Engineer

A very large US MNC with its IT operations in Pune is making people work on 26th January without their will or consent. Is it legally wrong to stop Indians right to enjoy Independence and Republic days. These are two national holidays.

I want to file FIR against this MNC as I have timesheet to support this but I am in Ahmedabad. What sections will apply?

 
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FIN

(A) The IT MNC is under the preview of SE Act of the state of Maharashtra.

You may go thru the clauses/sections of the Act in particular Sec 35: (3) and (4)

The Bombay Shops and Establishments Act, 1948

2.  Definitions.

(11)  "Holiday" means a day on which an establishment shall remain closed or on which an employee shall be given a holiday under the provisions of ihis Act

(13) "Leave" ^means leave provided for in Chapter VII of this Act

(15)Local authority" means a body specified in Schedule I-A and includes  any other  body which the State Government may, by notification in the  Official Gazetpfe, declare to be a local authority for the purposes of this Act];

(30)  "Wages" means wages as defined in the Payment of Wages Act,  1936 (IV

of 1936);

14.  Daily and weekly hours of work in shops and commercial establishment.-

18.    Holidays in a week in shops and commercial establishments,-  [(l) Every Shop and commercial establishment shall remain closed on one day of the week. [Except where the day is fixed under the provisions of sub -section (1B), the employer shall prepare] a calendar or list of such closed days at the beginning of the year, notify such calendar or list to the Inspector and specify it in a notice prominently displayed in a conspicuous place in the shop or commercial establishment:

CHAPTER VII

Leave with Pay and Payment of Wages

35.  Leave.-

(3)  If an employee entitled to leave under sub -section  (1)  [or (1-A)  is refused the leave, he may give intimation to the Inspector o r any other officer authorised in this behalf by the  [State]  Government regarding such refusal. The Inspector shall enter such intimation in a register kept in such form as may be prescribed. 16

[The employee shall also send a copy of such intimation to his employer and, thereupon, the employee shall be entitled to carry forward the unavailed leave without any limit.

(4) Notwithstanding anything contained in this section, every employee, irrespective of his period of employment, shall be entitled to additional hol iday on the 26th January, 1st  May, 15th August and 2nd  October every year. For holiday on these days, he shall be paid wages at a rate equivalent to the daily average of his wages (excluding overtime), which he earns during the month in which such compulsory holidays falls:Provided that the employer may require any employee to work in the establishment on all or any of these days, subject to the conditions   that  for such work  the employee shall be paid double the amount of the daily average wages and also leave on any other day in lieu of the compulsory holiday.

38. Application and amendment of the Payment of Wages Act.

^[ЗВ-В.  Application of Industrial Employment (Standing Orders) Act to  .

establishments.-

You may also go thru: “Payment of Wages Act”:

2. Definitions.

3*[(vi) "wages" means

(b) any remuneration towhich the person employed is entitled in respect of overtime work

or holidays or any leave period;

13A. Maintenance of registers and records.

17. Appeal.-

Generically speaking: It is felt that the company has to abide by the National and Festival Holidays Act.

You can find court cases on this subject at:

http://indiankanoon.org/search/?formInput=national%20holidays%20act

e.g.

Supreme Court of India

Indian Oxygen Ltd vs State Of Bihar & Ors on 16 February, 1990:

At Page2:

“this Court. HELD: Section 3 of the Bihar Industrial Establishments (National and Festival Holidays and Casual Leave) Act, 1977 provides for three National holidays”

Probably IN Maharashtra:

National Holidays are. 15th August - our independence day, 26th Jan - Our republic day, 2nd October - Gandhi Jayanti and 1st may - labor day and Maharashtra day.

(NATIONAL AND FESTIVAL HOLIDAYS27


Republic Day (January 26), Independence Day (August 15) and Gandhi Jayanti (October 2) are the three national holidays observed in India. On these days all institutions, irrespective of under which law they are covered, or whether they are public or private organizations or MNCs should necessarily remain closed.

The festival holiday are decided based on the local festival of that locality and are granted)

Employers obligation is to pay double the wages to the employees who works on national and festival holidays, and compensatory off wherever applicable.

Statement of National and Festival Holidays to be sent to the Labor Inspector and copy of the same to be displayed on Notice Board.

Permission is given by assessing whether the organization is involved in continuous process where production can not be stopped.

You need to get the gazette of holidays from Commissioner of Labor from your state.

Dept of Labor Maharashtra can be accessed at:

http://www.mahashramm.gov.in/dol/index_dol.html#

The question arises whether the company in question communicates in writing which employee shall have to work on National Holidays implying that the working is pre sanctioned, and whether the company circulates the policy on compensation and compensatory off for working on a National Holiday e.g. the employee shall have to avail the compensatory off within a year???? E.g. as in Attachment.

 

Thus you may check if the Inspector has granted any permission to the company to remain open and work on National Holidays.

 

(B) Maharashtra IT/ITES Policy-2009

3.1.3 Initiatives related to Laws

1. IT-ITES Units will continue to benefit from:

1) Relaxations under the Shops and Establishment Act with regard to working hours, work shifts and employment of women.

5. IT-ITES units (other than IT hardware and Telecom hardware manufacturing units) will be treated as continuous process units for the purposes of power supply.

 

If the IT units are declared continuous process units and needed to work on National Holidays the concerned Authority might have granted approval.

You may run a check on the facts and probe to find the lapses and violations.

Thereafter you can proceed.

If you wish to avail the services of LCI lawyer you can conduct search at;

http://www.lawyersclubindia.com/lawyers_search/#.UReR1Tdbfvo

The experts working at Pune and Maharashtra can provide deep insights.

e.g.

jagadish paranjape

darshana sawant

The IT union can also help you.

IT/BPO Voice of India | Facebook

http://www.unitespro.org/

The Indian Headquarters at Bangalore

Prithviraj Lekkad - President, UNITES Professionals India
Karthik Shekhar - General Secretary, UNITES Professionals India
#6/2, 1st Main, Next to Kodava Samaj, Vasanthnagar, Bangalore - 560 052
Phone: + 91 - 80 - 2235 5959 . 4123 5499
Email: contact@unitespro.org / unitesprofessionals@gmail.com

Mumbai
Sagar C
10/12, B.S.MARG, FORT, MUMBAI-23
Email: contact@unitespro.org

 



Attached File : 1035492699 the bombay shops establishments act.pdf, 1035492699 maharashtra itpolicy 2009.pdf downloaded 476 times

Total likes : 1 times

 
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Software Engineer

My Agency is a Subcontractor to this MNC and not having direct contract with them. Yet my resources have been wrongfully made to work on 26 January.  Can I still sue them on the basic fact of violation of labor laws despite not having direct contract with them?

Or can I only take action against company whom I supplied personnel who worked at this Pune based large retailer IT ODC.

 
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An excellent article which deals with employee rights. In this regard, we need more help from best essays au  to take expert opinion. In my view you will wait for some time to get a correct advice.

 
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Server administrator

Can we file a case against the IT\ITES company of Maharashtra if they do not provide leave/payment for national and state holidays?

 
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FIN

As per essence of enactments and case laws one can.

However relate your matter and act with cool mind.

 

 
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Server administrator

Thanks for quick reply. Can someone help with some guidance?

 
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Server administrator

There is one pvt ltd IT ITES company in maharashtra mumbai. Which doesn't provide national or state leaves. Please guide me with procedure. How I can proceed we are 1000+ employees. 

 
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FIN

One enactment applicable in state of Maharashtra  that applies to such companies has been posted above, with extent clauses.

 

 
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Scientist/Engineer

It is not illegal to ask a person to work on 15th August or 26th January. The stipulation is that the employee should be given paid off on these days. If any employee is compelled to work on any of the holidays, he must be adequately compensated. The compensation could be cash compensation or a compensatory off. There are establishments which work continuously with no off-days or holidays for the establishment. Examples are the Railways, bus services, airline services, continuous chemical processes, hotel services and many others. In such establishments the requirements are that each employee should be given a certain minimum number of paid off days in a year with adequate rest days between work days. In the case of a contrator or sub-contrator holidays will be governed by the terms of the contract. Within an establishment it will depend on the terms of employment. If you are travelling by train  from Mumbai to Delhi and the train reaches Kota on the morning of 26th of January what would you expect the driver, guard, station masters and other railway employees to do? Shall they take off and enjoy 26th January leaving you in the train for the day?

 
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