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Radhakrishna (Senior Software engineer)     16 March 2013

Are software engineers entitled under labor laws

I may have posted this thread in wrong Sub Category, so request admin to make this correction.

 

I want to know that are Indian Software Engineers covered under labour laws?

 

Also, I was laid off twice from my job, for no reasons, which if a lawyer looks into this, I will explain to him/her.

 

And is it possible for me to sue my employers now, as first lay off which I had to face in 2009 and the second one happened last year in Octorber 29,2012.

 

Thanking everyone to showing interest in my case.



Learning

 14 Replies

Kumar Doab (FIN)     16 March 2013

Designation alone does not decide employee is a workman or not.

There have been queries the employees in IT sector would be in “Exempt” or “non Exempt” categories for the purpose of OT. This becomes complicated as IT companies in India have been decorating employees with fancy, flasshy and confusing designations.

The concept related to the industry and HR has been imported from across the Globe majorily from US, however if look at the litigations and result of litigations from states like California you would find that clear verdicts have been given, on which designation is covered under Labor law or any other law…..

There are no generic answers but pertaining to a specific employee there would be specific answers which a competent and experienced lawyer can provide. Meeting such lawyer would be meaningful and useful.

In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Industrial Employment Standing Orders Act, …. So, if the employee falls within the definition which has been provided under these enactments, then he would be protected to that extent.

The IT companies are covered under SE Act and the enactment does not indiscriminate between a workman or non workman.

The SE Act of many states is so employee friendly e.g. Bombay, AP, Delhi etc…to name a few. There are many threads at LCI and many employees have been able to secure relief under SE Act e.g;

https://www.lawyersclubindia.com/forum/Suit-claiming-damages-and-criminal-case-60347.asp

https://www.lawyersclubindia.com/forum/Unfair-discharge-75893.asp

In some states, as per IT policy of the state, IT companies were granted blanket exemptions from the provisions of IESO Act, while some states did not grant such exemption.

State of Karnataka had granted such exemption, and it had ended the exemption in April as per some publications. As per representations by the representatives of the IT industry that IT industry requires standing orders specific to the needs pf the Industry, the state Govt. of Karnataka had instructed all companies to submit their draft standing orders to the Certifying Officer (DLC) by Dec2012 for certification by March 2013.

Before the standing orders are certified, the certifying officer shall invite representatives of employees, union of employees too for consultation and objections.

 This is THE TIME to unite all IT employees of Karnataka to ensure that favorable standing are framed, and then certified and then disperse and propagate to other states.

IT employees are IT savvy and can contact and communicate effectively thru portals like face book and others.

The trade unions have been calling upon the employees of the IT industry to organize and form unions.

The contact details of officials of Dept. of Labor/SE Inspectorate, IESO Act/ Model Standing Orders under the Act may be available at Dept. of Labor website of your state.

The Lay off has been discussed in many threads at LCI.

There are rules pertaining to lay off e.g;

https://www.lawyersclubindia.com/forum/Termination-from-private-service-by-giving-two-month-s-basic-75951.asp

 

Many of the employees from IT sector have initiated threads at LCI, you may go thru these and get in touch with them and UNITE e.g:

https://www.lawyersclubindia.com/forum/Medical-leave-policy-76684.asp#.UUSE0kpFZ_4

There specific issues haunting IT employees and probably it is the biggest sector that would be contributing to litigations related to Labor/service matters and hence more and more numbers of Lawyers specializing in matter related to IT industry would be coming up.

It is always better to have access to a competent and experienced lawyer and obtain legal advice in time before falling in legal traps.

Dealing with employer has become a game of chess. It is better to learn and master it and be master of the game.

BE SMART.


Attached File : 569778924 union and it sector real-time-chap-03.pdf, 569778924 trade unions in karnataka.doc, 569778924 list of labor officials in banglore.doc downloaded: 192 times
1 Like

Kumar Doab (FIN)     16 March 2013

Attached.


Attached File : 569778924 karnataka to have cutomised stabding orders for it.doc, 569778924 idpadfinalreport.pdf downloaded: 178 times
1 Like

Radhakrishna (Senior Software engineer)     16 March 2013

Hi Kumar Doab,

 

Thanks a lot for the response and enlightening me.

 

Radhakrishna (Senior Software engineer)     16 March 2013

But customised standing orders mean that again those industry captains will have their ways. This cannot be accepted, as we don't want to work for more than 8 hours. I think that IT guys/girls are more stressed out, and believe me, this is real.

Sudhir Kumar, Advocate (Advocate)     17 March 2013

Nothing more to add

Radhakrishna (Senior Software engineer)     17 March 2013

If I can get a lawyer for fighting my case, I will explain him/her the entire scenario. Infact, I have now realized that these two firms have exploited me, and my second firm even lowered my salary, beause the project for which I was supposed to be hired, went to china, and what I was supposed to get, I did not get. But since they had rolled out the offer, hence, they did not deny my employment. 

Kumar Doab (FIN)     17 March 2013

You have posted that:

“But customised standing orders mean that again those industry captains will have their ways. This cannot be accepted, as we don't want to work for more than 8 hours. I think that IT guys/girls are more stressed out, and believe me, this is real.”

IT employees are IT savvy and can contact and communicate effectively thru portals like face book and others. IT employees had started an intiative:

IT/BPO Voice of India | Facebook

---Before the standing orders are certified, the certifying officer should invite representatives of employees, union of employees too for consultation and objections.

So organize IT employees and educate them to unite and form their union-works committees, in their respective companies, get these recognized (7-15 members are required to form a union. Local Trade union leaders, labor lawyer/law firms can explain the details and help too) and get affiliated with bigger trade unions.

You must involve the (good and favoring) senior, seasoned, experienced trade union leaders to hold sessions with employers and DLC.

Get in touch with certifying Officer: DLC (Deputy Labor Commissioner) immediately and submit memorandum (trade union can do it) that till employees from all companies are not properly held standing orders may not be certified.

Employees can chase the staff in o/o DLC in each city to know for how many companies the draft standing orders are received and who/which ( names and addresses)  and how many employees from each company have been invited for discussion/objections on standing orders. You can chase thru RTI also.

You may go thru the attachments e.g.; (Works Committee is Authority)

 

 

 

---The max. number of hours and employee can put to work and OT and wages for OT have been well explained in SE Act applicable to IT companies. Then there are relevant clauses in the SE Act which employee should understand and memorize.

e.g:

SE Act Delhi:

8.      EMPLOYMENT OF ADULTS, HOURS OF WORK.

10.  INTERVAL FOR REST AND MEALS

11.  SPREAD OVER

17.  PERIOD OF REST (WEEKLY HOLIDAY)

18.  WAGES FOR THE HOLIDAY.

19.  TIME AND CONDITIONS OF PAYMENT OF WAGES.

20.  DEDUCTIONS WHICH MAY BE MADE FROM WAGES.

21.  CLAIMS RELATING TO WAGES.

22.  LEAVE.

23.  WAGES DURING LEAVE.

30.  NOTICE OF DISMISSAL.

34.  EMPLOYER TO FURNISH LETTERS OF APPOINTMENT TO EMPLOYEES.

35.  INSPECTION OF REGISTERS AND CALLING FOR INFORMATION.

37.  POWERS AND DUTIES OF INSPECTOR:

COMMENTS

(b) Duties of the Inspector

(i)  that in dispensing with the services of an employee the provision of the Act and Rules have been complied with and no  dues payable under the Act or Rules have been withheld;

41.  WILFULLY MAKING FALSE ENTRIES.

The employee may log onto the Dept. of Labor website of the state and download the SE Act, IESO Act, Model Standing Orders, Payment of Wages Act, ID Act, Address/contact details of the Labor Officials e.g: Inspector/Chief Inspector under SE Act, Wages Inspector, ALC/DLC, Trade Unions and their leaders…….

If you still find any difficulty, write down your state and we will try to help.

 

---The working hours, time, wage rates etc are also mentioned in IESO/Model Standing Orders….

If you wish to avail the services of LCIO lawyer you can conduct search at:

https://www.lawyersclubindia.com/lawyers_search/#.UUVSq0pFZ_4

If you still find any difficulty, write down your city and state and we will try to help.

Educate and circulate to as many employees as possible.


Attached File : 569871917 works committe is authority under id act.pdf, 569871917 delhi shops & establishments act, 1954.pdf downloaded: 152 times
1 Like

Sudhir Kumar, Advocate (Advocate)     17 March 2013

well explained by Mr Doab

Radhakrishna (Senior Software engineer)     17 March 2013

Hi Mr Kumar Doab,

 

Thanks a lot for detailed explanation.

 

And I stay in Bangalore City. I am ready to give my case to lawyer in this city, who would be referred by people in this Forum.

 

Once again, Thanks a lot for helping me.

 

Regards,

Radhakrishna

Radhakrishna (Senior Software engineer)     17 March 2013

Hi Mr Kumar Doab,

 

Thanks a lot for detailed explanation.

 

And I stay in Bangalore City. I am ready to give my case to lawyer in this city, who would be referred by people in this Forum.

 

Once again, Thanks a lot for helping me.

 

Regards,

Radhakrishna

Kumar Doab (FIN)     17 March 2013

Bangalore is in Karnataka.

Regret do not any lawyer in Bangalore.

You may visit a competent and experienced labor consultant/service lawyer at your location. Labor law/service law is altogether different specialization/field. In each city there are few/limited labor consultants/service lawyers. They are experts in this field, they are well known, and they take up only such cases. Some of them may have their preference to take up employer side or employee side cases.

You may show all of your docs and give inputs in person and spend quality time with your lawyer and understand the merits in your case and other nuisances and finer aspects for your case.

If you wish to consult a LCI lawyer specializing in this field you can conduct search at:

https://www.lawyersclubindia.com/lawyers_search/#.UUVSq0pFZ_4

Your near and dear ones can also recommend a good lawyer to you.

You have to firm up the terms etc with your lawyer on your own.

Valuable advice of learned experts/members is sought.

Kumar Doab (FIN)     03 July 2016

Certified copy of the decision can be obtained from concerend labor Court under RTI also.

 

Chennai court says software engineers are workmen, orders HCL to reinstate sacked employee

May 10, 2016, 
 
CHENNAI: In a blow to the booming software industry, a Chennai court has quashed the dismissal of a software engineer and ordered HCL to reinstate him with full salary, back wages and seniority on the ground that software engineers are workmen enjoying statutory protections.

"It cannot be denied that the job of an engineer in a software company involves skills and technical knowledge. Therefore, it can be easily concluded that the job of a software engineer can be termed as skilled or technical one," said I additional labour court presiding officer S Nambirajan.

The case relates to an application filled by K Ramesha, who worked as a senior service programmer for HCL Technologies Limited.

He had been on probation for a year and his service was confirmed on February 26, 2010. His salary was received, and he was also given certificate of appreciation in the following years. 

Trouble began on January 22, 2013 when his services were terminated. The reason: His performance was not satisfactory and he had not shown any improvement despite counselling.

Ramesha questioned his removal, and his counsel argued that no explanation had been called by the company, no charge memo had been given and no enquiry had been conducted before the termination order was issued.

HCL argued that the labour court had no jurisdiction to entertain the application at all, as Ramesha was not a workman. He had been exempted from the definition of the term "workman," it said.

Rejecting the company's objections, the judge said the software engineer was indeed a workman. According to the Industrial Disputes Act, "workman" means any person employed in any industry doing any manual unskilled, skilled, technical, operational, clerical, or supervisory work, for hire or reward, whether the terms of employment be express or implied.

His order read: "The company has not produced any evidence to show that failure to improve the performance or failure to measure up to the expectations or standing orders of the company would amount to an act of misconduct. It is not known whether the company has any service rules and regulations, and it has not produced any materials to show what acts constitute misconduct."

"In Clause 6 of the appointment order, it is stated that the service of the petitioner can be terminated by giving a 30-day notice or by payment of one month's salary in lieu of notice without assigning any reasons. But the appointment order of the company does not contain any provision to show that failure to improve the performance would result in dismissal of the employee. Nor is there any provision to show that failure to improve the performance is tantamount to misconduct. Even assuming that it is an act of misconduct a punishment of dismissal is too harsh to sustain," the order said.
 
 
 
 
 

https://huntnews.in/p/detail/3095563391822923?xlang=en&uc_param_str=dnfrpfbivesscpgimibtbmntnijblauputoggdnw&pos=1462876560268&channel=education&chncat=category_english

 

Thiru Vids   10 March 2021

Please share case ID or CNR or Diary number of this Labor court case

avadhesh Paliwal   27 March 2021

THERE IS TOTAL LABOUR LAW STUDY ARE THERE


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