Award by labour court & wp at h/c
V.N.K. MENON
(Querist) 08 March 2012
This query is : Resolved
A workman was awarded by Labour Court : reinstatement with full backwages, continuity of service with all consequential benefits. Employer challenged the award in High Court. After 2 years of prolonged litigation the workman was given relief u/s 17-B of I.D. Act and in order to avoid payment of wages at home, the worker was reinstated at wages at the rate decided for the purpose of 17-B which is slightly less than last drawn wages. Whereas other parts of the award remain to be decided by H/C.
My Query is whether the 2 years relief paid u/s 17-B is deductible from pending payment as stated above if matter is decided in favour of workman? If not the ground on which it can be argued.
solicit collective wisdom of friends and experts, pl.
Sudhir Kumar, Advocate
(Expert) 08 March 2012
This query cannot be answered without seeing exact wordings in the court order.
Guest
(Expert) 08 March 2012
Dear Shri Menon,
Section 17-B of ID Act is very clear. According to that wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule is to be paid if the workman had not been employed in any establishment during such period.
So, please clarify, on what account the worker is likely to get less wages than the last drawn wages, as stated in the query?
Kirti Kar Tripathi
(Expert) 08 March 2012
No doubt the workmen is entitled for benefits of Section 17-B, during the pendency of writ petition. The concept of payment of last wages drawn is applicable only when, the workman is not reinstated and matter is pending. Once the workman is reinstated in service during the pendency of the writ petition, he is entitled prevailing wages/salary to the post at the relevant time. The concept of last wages drawn will not apply.
However, adjustment of amount can be made in case, the final judgment is passed in favour of the workman.
V.N.K. MENON
(Querist) 08 March 2012
Mr. Expert Tripathi, Thanks for reply. I also have the same view. In fact, the matter is still pending by adjournment-after-adjournment in H/Court.
Reinstatement was from February 2009 and albeit the employer had been requested to pay present wages, increments, but they are keeping silence over the matter. Which route should be taken for effective remedy and employer can be taken to task.
Could you and/or any other friends suggest some effective route/ method possibly criminal proceeding in trial court.
H. S. Thukral
(Expert) 08 March 2012
In such a case I suggest you move an application in the HC for directions to the employer to pay full wages. I would like to know the contents of the letter of the employer asking the workman to join duties during the pendency of proceedings.
Guest
(Expert) 09 March 2012
Dear Shri Menon,
You may allow the wages at the rate last drawn, as per the provisions of Sec.17-B. However, if the worker has already been reinstated in service his increment case can be postponed till final judgment. Sec.17-B would adequate provide protection to you even if drawal of increment is delayed, as it is purely an administrative function in normal circumstances.
V.N.K. MENON
(Querist) 09 March 2012
Mr. harbhajan, thanks. they took workman by way of new appointment letter with new structure of wages [ which is slightly less than last drawn wages taken into totality] which he received under protest & without prejudice to his rights. Employer had admitted in court that he has been reinstated. Hope this inf will suffice.
Thank u mr. dhingra, for your considered opinion.
NOTE:
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In the meanwhile, i like to tell that services of workman was terminated in july 2002. his p.f. contributions were not deposited in the respective months of january to july 2002 which was admitted vide letter from employer in Sept 2002.
when worker was reinstated in feb 2009, he came to know that the fraud was still continuing. he lodged complaint with CPFC, Delhi, as per EPF & MP Act for prosecution & recovery of damages; which was passed by him to concerned RPFC. Instead of taking action, he conspired with RPFC, and RPFC informed that employer had deposited an amount {which is 200 rupees less than admitted amount in Sept 2002 which was already in default as it was not deposited in respect months in 2002}. There are other acts of conspiracy between them by implication as defined in S.120A IPC which i am not mentioning for brevity.
Employer/ management had/s NOT been paying p.f. to other workmen employed in his other units in collusion with RPFC. Also a graft case is pending against employer. Employer is a chronic law-breaker.
IN SUCH A SITUATION CASE in one Complaint (1) FOR HAVING COMMITTED CRIMINAL BREACH OF TRUST AND FRAUD u/s 405, 24, 25, 420 r.w. 406 and (2)GRAFT / CONSPIRACY u/s 8, 13 of PCA Act r.w. 120-B IPC HAS BEEN FILED IN TRIAL COURT. ACMM had ordered for police investigation after hearing me and is listed for 23.3.12.
ANY ADVICE FROM FRIENDS AS A PRECAUTIONARY MEASURE, IF NEED BE, PL?
Guest
(Expert) 09 March 2012
Dear Shri Menon,
You are welcome.
But with reference to your latest information, probably the management of your organisation, itself, has created some complexity by virtue of making fresh appointment, while on the contrary by declaring in the court to have reinstated the worker. Both, reappointment & reinstatement, are quite different issues.
In case of reinstatement or even by assuming the worker to be in suspended motion within the duration of the court case, your organisation was liable to pay him the last wages rates drawn, which he was drawing while in service before termination. But, when reappointed afresh during the court case, UNLESS he had unconditionally accepted the fresh appointment and was ready to withdraw his case, any lesser wages would not be justified. You may therefore need to weigh the pros & cons of the case in view of the legal position in consultation with your lawyer, if hired for the case.
H. S. Thukral
(Expert) 10 March 2012
As far as breach of EPF is concerned, you have rightly filed complaint under breach of trust penal. Regarding re-appointment how a workman terminated for misconduct is reappointed afresh on lesser wages. What will happen if the award of reinstatement is set aside.? Shall he continue in fresh appointment? This appears to be unique case. Nevertheless I would have preferred to apprise the HC and prayed for directions to employer to pay full wages.
V.N.K. MENON
(Querist) 11 March 2012
Thanks to all friends for their views and opinions.
Best rgds.
menon
Guest
(Expert) 11 March 2012
You are welcome Mr. Menon.
But, to avoid the problems in staff matters, I would like to suggest that besides your HR department, it would be better for your company to hire services of some well experienced service law expert for the future. Complicated staff matters sometimes have to cost very dearly to any organisation. in terms of productivity, efficiency, and economy.
