Section 33-a,33 c(2) and 25-h applicability query
skg
(Querist) 01 November 2012
This query is : Resolved
During a labour case (of 2008) of illegal
termination issues framed by LC are
1)whether claimant a workman u/s 2(s),
2)whether termination illegal and
3)relief?
In statement of claim as well as thru his legal notice claimant have claimed certain unpaid benefits declared under employee welfare schemes not given on his full
and final settlement and clearly written in a clause of his appointment letter which says "You will be paid as follows :- Basic salary + ........... + other benefits/facilities applicable to employees of your level in accordance with company's rules/ schemes in this behalf."
After passing of two year of termination i.e in year 2010 and perusing evidences submitted by workman, management before submitting their evidences send a fresh offer of employment to claimant saying that it is on same terms and condition on which he was last working i.e. of year 2008 and to a factory which is 1200 km away from his original factory which have also shifted to some other place.
Also for unpaid benefits claimant have also submitted emails/documentary evidences in court on which management lawyer never asked a single question during cross examination of workman
Now I want experts advice on the fact
1) whether a complaint u/s 33-A against management can be launched since this offer of employment is contravening provisions of section 33(1)(a) on following grounds
A) By giving this fresh offer of employment , gratuity and other service
period based compensations like VRS,
retrenchment compensation etc are directly
affected since he had already become eligible after serving for sixteen years.
B) By giving such type of offer whether
management is guilty of changing/reducing/altering total remuneration of workman and that too when subject matter of dispute also covers claim of unpaid benefits not given on full and final.
2) Whether such type of offer in which salary of year 2008 can be offered in 2010 ignoring the fact that had be been working and not illegally terminated he would have been getting more salary like his working colleagues after two year increments
3) Whether this offer can be considered as re-employment and if so whether this
re-employment is null and void in eyes of law as per provisions of section 25-H since no retrenchment compensation is paid to the terminated workman
4) Whether complaint u/s 33-A as well
recovery of unpaid dues u/s 33 C(2) can be
filed simultaneously in this pending case now at start of Argument stage which is filed u/s 2-A by individual workman
please give your valuable advise pointwise on all these 4 points.
rgds
H. S. Thukral
(Expert) 02 November 2012
Section 33-A is not applicable in the facts and circumstances. First it is only an offer and not an order affecting the service conditions. Secondly the dispute is regarding termination of service. There is no question of change of service condition in post termination period. You can always claim the benefits which are available under terms of employment and can be computed in terms of money.
skg
(Querist) 02 November 2012
Dear Sir Thukralji
If this offer during the pendency of proceedings is not proved as a malafide attempt of management after perusing evidences of workman than will it (as one of the fact of this case) not act as a plus point for management in affecting full backwages judgement to workman on the pleadings of management that he refused the offer of fresh employment by not joining so court should reduce his claim of full backwages as done these days by referring to recent Apex Court judgements.
Adv Raj (High Court)
(Expert) 02 November 2012
First of all please let us know that, have you accepted the new offer/ appointment letter ? If so was it through registered post with acknowledgement ?
Without any delay you should submit the petition in Labour court, so that the companies makes your entry in the same status as you were.
H. S. Thukral
(Expert) 02 November 2012
the employee being gainfully employed or not in the intervening period is considered while awarding back wages but in this case if you refuse re-employment, you have justification. You would not like to work in the organisation at a lower post, perhaps subordinate to your contemporaries. and also would not like to work with the employer who alleged misconduct against you or unceremoniously removed you from service. Moreover the employment being a far away place, you have reason to refuse the same. In my opinion , gainfully employed would not mean that the workman should take every employment coming in his way. I would prefer a letter should go from your side imputing malafides on the part of the management in giving you the said offer..
I shall be glad to re-reply your query if you give me additional facts as to reasons for termination.
skg
(Querist) 02 November 2012
Dear sir Thukralji and Rajji,
The reason for termination was the recession period of 2008 (due to which they pleaded that although they are in profit but their profit got reduced from 34 crores to 8 crores) and surplusage but actually they want to get rid of an old employee.
After sending the new offer of fresh employment a reply in court was also filed by lawyer of claimant that workman can not be expected to relocate at a faraway place when other offices of company in which clerical staff is still working are running in nearby places.
Further before cross examination of workman two employees of company visited workman house on the pretext of advising workman that this case will take long and company will take it to high court and then division bench and this process will consume 10 to 15 years so it is in interest of workman to forget about his previous claims and accept their fresh offer and join them.
At that moment workman told them that this fresh offer is breaking his continuity of service and not clarifying any thing about his unpaid dues so he needs proper appointment letter with these clarified terms and conditions which they have flouted while giving his full and final dues.The two employee returned back by promising that they will talk to management and will send the appointment letter.
Meanwhile during cross examination when workman was asked whether he is willing to accept the offer he said that he is ready to resume his service but could not join after the offer because two employees promised to send him the appointment letter.This statement of workman was denied by management lawyer by saying that no employee visited his house and he is giving false statement.
Again when cross of management take place workman lawyer asked HR manager whether management is not concealing his terms and condition in this offer for which he replied in negative.Again when he asked why management is not interested in giving appointment letter to him they replied that if he had joined that factory he would have got the appointment letter after joining.
