Id act 1947 doubt!!
crpc
(Querist) 28 April 2020
This query is : Resolved
Hon'ble All Learned Advocates
I have a short query from labour experts as-
As per Industrial Act 1947, Section 5
5*(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and
for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or as a consequence of,
9 that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-- (i) who
is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957) or (ii) who
is employed in the police service or as an officer or other employee of a prison or (iii) who is employed mainly in a managerial or
administrative capacity or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred
rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him,
functions mainly of a managerial nature.
In above referenced ...managerial and administrative capacity employee has been excluded. Now my question is-
what law/act/article will govern the dispute of illegal activities like forgery / illegal termination / exploitation / harassment happened with managerial and administrative capacity employee ?
Regards.
Ankur
Raj Kumar Makkad
(Expert) 28 April 2020
You have not posted the real facts necessitating to post the present thread without which it shall remain an imaginary reply may not fit to you, however, if the employees, who hold managerial posts, if are subjected to the violation of the terms mentioned in their appointment letter, may go to civil/criminal court, as the case may be. In soe circumstances, if the employer do come within the ambit of the State, writ petition in the high court can also be filed.
Better to post the true facts.
crpc
(Querist) 28 April 2020
Honble Makkad Ji
Actually I searched judgements for this case, I found several plenty of judgements but I did not find even a single order/judgement for this case from any HC/SC/Local courts ? I found either for workman category or for case where permanent injury or death has happened.
Can you kindly help here? I doubt on this as I tried both civil or labor advocates even via reference but they are not accepting possibly due t o this complication ?
Can you kindly help here ?
For ref you can use https://www.lawyersclubindia.com/experts/h-716551.asp my old query for same.
Regards.
Ankur
Raj Kumar Makkad
(Expert) 29 April 2020
Every judgment/citation depends upon the facts of the case. Until and unless you post the facts, how and which judgment may be searched for you?
What is the problem being faced by you which could not be resolved by many lawyers as per you? Can I know in brief?
Dr J C Vashista
(Expert) 29 April 2020
Since the Managerial and administrative staff is not a "workman" they are governed by the provisions of respective service rules framed by the company / employer, which were accepted by the employee at the time of appointment.
Judgment/citation depend upon facts of the case.
Rajendra K Goyal
(Expert) 29 April 2020
It is better please post the facts of the problem for reply.
crpc
(Querist) 29 April 2020
Hon'ble Learned Advocates,
Rajendra Ji,
Please find my true facts on
https://www.lawyersclubindia.com/experts/h-716551.asp
Makkad Ji,
I searched for a judgement where compensation granted to the managerial /administrative employee...but among 100 none of this nature found.
Dr JC Vashishth Ji,
What is employer perform other laws violation i.e.
1. forgery with records by putting fake data.
2. Allocating technically infeasible / impossible task and putting lowest rating knowingly by manager just to save his skin.
3. Asking for output without providing even minimum required resources.
4. Termination without any notice.
5. Threating by asking to opt in termination /resignation within 10 minutes.
Does it mean that for a administrative / managerial employee ,employer can perform any of illeagal activity ?
If yes then how it can be possible by GoI/SC/Constitution and then where is equality remains ??
If not then will you say that other then death/injury , any threat / torchure /harrassment legally allowed for employer ??
At stage of employement i considered only within leagal sphere will be done by employer, if illegal then without workman what allowed for employee who were targeted and affected massively ?
Regards.
Ankur
P. Venu
(Expert) 29 April 2020
The remedy lies in approaching a civil court.
crpc
(Querist) 29 April 2020
The problem I faced:
Labor advocates stating due to ID Act exemption it is not maintanaible in labor court.
Civil advocates are asking its labor court matter, please approach labor advocates.
Now what to do?
Regards.
Ankur
Raj Kumar Makkad
(Expert) 29 April 2020
Violation of the terms of the appointment is a civil remedy as per Specific Relief Act. Workman can avail the provisions of ID Act whereas the persons working on administrative posts are entitled to invoke the general law.
Rajendra K Goyal
(Expert) 30 April 2020
Civil court need to be moved in the case if the person is not covered under the definition of workman under ID Act.
Raj Kumar Makkad
(Expert) 30 April 2020
The Specific Relief Act 1963 ("the Act") sets out the remedies available to parties whose contractual or civil rights have been hampered. The Act comes into play when an actual damage for non-performance of a contractual obligation cannot be measured or the monetary compensation would not suffice.
The Party affected can move to the court for directing the other Party to fulfil the obligations or requirements under the contract.
The Specific Relief Act, 1963 provides for a Specific performance of a contract in absence of monetary relief, which makes it an Alternative remedy. Till now the courts had a discretionary power, whether to grant such relief of specific performance or not. This used to increase the uncertainty of contracts and contractual reliefs.
The aforesaid act stands amended vide Specific Releif Act (amendment) Act, 2018, Section 10 of which talks about the cases in which the specific performance of a contract is enforceable.
Section 10 of the principal act has been substituted and now it states that the specific performance will now be enforced by the court subject to Section 11(2), 14 and 16.
The substituted Section 10 is "Specific Performance of Contracts"
"The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16."
Comment: The amendment in Section 10 has now reduced the discretionary jurisdiction of the Court in granting specific performance of contract. The amendment now seeks to mandate every Court to grant specific performance of contract as a general rule rather than making it an exception.
Earlier the Courts, due to the discretionary power, would opt for granting damages instead of Specific performance but the amendment seeks to change to change that power by making Specific performance a mandate.
Rajendra K Goyal
(Expert) 01 May 2020
For any forgery action under criminal law has to be initiated, for illegal termination and any other civil act case through civil court can be initiated. discuss in detail with local lawyer.
Raj Kumar Makkad
(Expert) 01 May 2020
There is no iota of criminal action in the gven facts so there is no use to advise accordingly. The civil suit is very well maintainable in the given facts which has already been advised to you.
Rajendra K Goyal
(Expert) 02 May 2020
The author,
If the employer has used fake data / information in any government related document / tax return the fact may be taken accordingly by lodging complaint with the concerned department.
Raj Kumar Makkad
(Expert) 02 May 2020
We are concerned only with the facts as narrated by the author. If he has not told anything about criminal act, the question of giving advice thereupon has no relevance. If this goes on then each and every section should also be told to the author with the judgments of different courts and so on.
Rajendra K Goyal
(Expert) 03 May 2020
In case the author is proceeding against the employer, filing complaint with the tax department / other governments for violation of the rules can be taken as pressure tactics.
Raj Kumar Makkad
(Expert) 03 May 2020
There is no whisphering in any word of the author that the employeeor employer is filing any complaint with the the tax department/other government authority for violation of any rules hence there is no ocassion to stretch the issue without having any fact thereto. There may be in future but as on day, nothing is there so better to attend the query only up to the facts before us.
Rajendra K Goyal
(Expert) 04 May 2020
It is always better for any litigant to proceed aggressively against the other party, management in this case.
