Tag Archives: Legal Issues

Legal Tip :- Representation by a lawyer in enquiry rightly denied when the management is not represented by a legally trained person

2 Dec

Some workmen were found guilty of misconduct.

The management initiated an enquiry proceeding.

The enquiry was conducted by the management  about the alleged guilt of the workmen.

During the course of the enquiry, the workmen sought the assistance of a lawyer to help them in the enquiry proceedings.

But this plea was rejected by the enquiry officer.

The contention of workman was that the Presenting Officer was an experienced Personnel Manager and the workmen were illiterate and therefore they were not in a position to defend the charges leveled against them and so they should have been given the assistance of a lawyer.

The management contended that the Presenting Officer  was not a duly trained or experienced person in law and there was also no rules and regulation to the effect that the workmen in such type of enquiry would be entitled to get the assistance of a lawyer.

The Supreme Court held that when the management is not represented by a legally trained person, the workmen have no right to be represented by a lawyer.

Regards,

Pinal Mehta

Workmen Compensation Act – Explained

15 Nov

The Workmen�s Compensation Act, aims to provide workmen and/or their dependents some relief in case of accidents arising out of and in the course of employment and causing either death or disablement of workmen.

It provides for payment by certain classes of employers to their workmen compensation for injury by accident.

WHO IS A WORKMAN

Workman means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer�s trade or business) who is-

  1. a railway servant as defined in section 3 of the Indian Railways Act, 1890 not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

  2. employed in any such capacity as is specified in Schedule II,

Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing.

The provisions of the Act have been extended to cooks employed in hotels, restaurants using power, liquefied petroleum gas or any other mechanical device in the process of cooking.

EMPLOYEES ENTITLED TO COMPENSATION

Every employee (including those employed through a contractor but excluding casual employees), who is engaged for the purposes of employer�s business and who suffers an injury in any accident arising out of and in the course of his employment, shall be entitled for compensation under the Act.

EMPLOYER�S LIABILITY FOR COMPENSATION (ACCIDENTS)

The employer of any establishment covered under this Act, is required to compensate an employee :

  1. Who has suffered an accident arising out of and in the course of his employment, resulting into (i) death, (ii) permanent total disablement, (iii) permanent partial disablement, or (iv) temporary disablement whether total or partial, or

  2. Who has contracted an occupational disease.

HOWEVER THE EMPLOYER SHALL NOT BE LIABLE

  1. In respect of any injury which does not result in the total or partial disablement of the workmen for a period exceeding three days;

  2. In respect of any injury not resulting in death, caused by an accident which is directly attributable to-

  1. the workmen having been at the time thereof under the influence or drugs, or

  2. the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

  3. the willful removal or disregard by the workmen of any safeguard or other device which he knew to have been provided for the purpose of securing the safety of workmen.

  4. The burden of proving intentional disobedience on the part of the employee shall lie upon the employer.

  5. when the employee has contacted a disease which is not directly attributable to a specific injury caused by the accident or to the occupation; or

  6. when the employee has filed a suit for damages against the employer or any other person, in a Civil Court.

CONTRACTING OUT

Any contract or agreement which makes the workman give up or reduce his right to compensation from the employer is null and void insofar as it aims at reducing or removing the liability of the employer to pay compensation under the Act.

WHAT IS DISABLEMENT

Disablement is the loss of the earning capacity resulting from injury caused to a workman by an accident.

  • Disablement�s can be classified as (a) Total, and (b) Partial. It can further be classified into (i) Permanent, and (ii) Temporary, Disablement, whether permanent or temporary is said to be total when it incapacitates a worker for all work he was capable of doing at the time of the accident resulting in such disablement.

  • Total disablement is considered to be permanent if a workman, as a result of an accident, suffers from the injury specified in Part I of Schedule I or suffers from such combination of injuries specified in Part II of Schedule I as would be the loss of earning capacity when totaled to one hundred per cent or more. Disablement is said to be permanent partial when it reduces for all times, the earning capacity of a workman in every employment, which he was capable of undertaking at the time of the accident. Every injury specified in Part II of Schedule I is deemed to result in permanent partial disablement.

  • Temporary disablement reduces the earning capacity of a workman in the employment in which he was engaged at the time of the accident.

ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

An accident arising out of employment implies a casual connection between the injury and the accident and the work done in the course of employment. Employment should be the distinctive and the proximate cause of the injury. The three tests for determining whether an accident arose out of employment are:

  1. At the time of injury workman must have been engaged in the business of the employer and must not be doing something for his personal benefit;

  2. That accident occurred at the place where he as performing his duties; and

  3. Injury must have resulted from some risk incidental to the duties of the service, or inherent in the nature condition of employment.

The general principles that are evolved are:

  • There must be a casual connection between the injury and the accident and the work done in the course of employment;

  • The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury;

  • It is not necessary that the workman must be actually working at the time of his death or that death must occur while he was working or had just ceased to work; and

  • Where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury it would be enough for the workman to succeed. But where the accident involved a risk common to all humanity and did not involve any peculiar or exceptional danger resulting from the nature of the employment or where the accident was the result of an added peril to which the workman by his own conduct exposed himself, which peril was not involved in the normal performance of the duties of his employment, then the employer will not be liable.

COMPENSATION IN CASE OF OCCUPATIONAL DISEASES

Workers employed in certain types of occupations are exposed to the risk of contracting certain diseases, which are peculiar and inherent to those occupations. A worker contracting an occupational disease is deemed to have suffered an accident out of and in the course of employment and the employer is liable to pay compensation for the same.

Occupational diseases have been categorised in Parts A, B and C of Schedule III. The employer is liable to pay compensation:

  1. When a workman contracts any disease specified in Part B, while in service for a continuous period of 6 months under one employer. (Period of service under any other employer in the same kind of employment shall not be included),

  2. When a workman contracts any disease specified in Part C, while he has been in continuous service for a specified period, whether under one or more employers. (Proportionate compensation is payable by all the employers, if the workman had been in service under more than one employer).

If an employee has after the cessation of that service contracted any disease specified in the said Part B or Part C, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of the Act.

CALCULATION OF COMPENSATION

The amount of compensation payable by the employer shall be calculated as follows:

(a) In case of death. – 50% of the monthly wages X Relevant Factor or Rs. 50,000, whichever is more. And Rs. 1000 for funeral expenses.

(b) In case of total permanent disablement Specified under Schedule I – 60% of the monthly wages X Relevant Factor or Rs. 60,000, whichever is more.

(c) In case of partial permanent disablement specified under Schedule I – Such percentage of the compensation payable in case (b) above as is the percentage of the loss in earning capacity (specified in Schedule I)

(d) In case of partial permanent disablement not specified under Schedule I .-Such percentage of the compensation payable in case (b) above, as is proportionate to the loss of earning Capacity (as assessed by a qualified medical practitioner).

(e) In case of temporary disablement (whether total or partial). – A half-monthly installment equal to 25% of the monthly wages, for the period of disablement or 5 years, whichever is shorter.

WHEN COMPENSATION TO BE DEPOSITED WITH COMMISSIONER ?

The amount of compensation is not payable to the workman directly. It is generally deposited alongwith the prescribed statement, with the Commissioner who will then pay it to the workman. Any payment made to the workman or his dependents, directly, in the following cases will not be deemed to be a payment of compensation:

  1. in case of death of the employee;

  2. in case of lump sum compensation payable to a woman or a minor or a person of unsound mind or whose entitlement to the compensation is in dispute or a person under a legal disability.

Besides, compensation of Rs. 10 or more may be deposited with the Commissioner on behalf of the person entitled thereto.

The receipt of deposit with the Commissioner shall be a sufficient proof of discharge of the employer�s liability.

AMOUNTS PERMISSIBLE TO BE PAID TO THE WORKMAN/ DEPENDENTS DIRECTLY

Following amounts may be paid directly to the workman or his dependents:

  1. In case of death of the workman, any advance on account of compensation upto [an amount equal to three months� wages of such workman] may be paid to any dependent.

  2. In case of lump sum compensation payable to an adult male worker not suffering from any legal disability.

  3. In case of half-monthly payments payable to any workman.

REGISTRATION OF AGREEMENTS OF COMPENSATION

  1. Where the amount payable as compensation has been settled by agreement a memorandum thereof shall be sent by the employer to the Commissioner, who shall, on being satisfied about its genuineness, record the memorandum in a registered manner.

  2. However where it appears to the Commissioner that the agreement ought not to be registered by reason of the inadequacy of the sum or amount, or by reason that the agreement has been obtained by fraud or undue influence or other improper means he may refuse to record the agreement and may make such order including an order as to any sum already paid under the agreement as he thinks just in the circumstances.

  3. An agreement for payment of compensation which has been registered shall be enforceable under this act notwithstanding anything contained in the Indian Contract Act, or any other law for the time being in force.

EFFECT OF FAILURE TO REGISTER AGREEMENT

When a memorandum of any agreement is not sent to the Commissioner for registration, the employer shall be liable to pay the full amount of compensation, which he is liable to pay under the provisions of this Act.

FILING OF CLAIMS

A claim for the compensation shall be made before the Commissioner.

No claim for compensation shall be entertained by the Commissioner unless the notice of accident has been given by the workman in the prescribed manner, except in the following circumstances:

  1. in case of death of workman resulting from an accident which occurred on the premises of the employer, or at any place where the workman at the time of the accident was working died on such premises or such place or in the vicinity of such premises or place;

  2. in case the employer has knowledge of the accident from any other source, at or about the time of its occurrence;

  3. in case the failure to give notice or prefer the claim, was due to sufficient cause.

LIMITATION

Workman, to the Commissioner, may file the claim for accident compensation in the prescribed form, within 2 years from the occurrence of the accident or from the date of death. The claim must be preceded by

(i) a notice of accident, and
(ii) the claimant-employee must present himself for medical examination if so required by the employer

ATTACHMENT AND ASSIGNMENT OF COMPENSATION

No compensation payable under this Act, whether in lumpsum on half-monthly payments, can be attached, charged or passed on to any person other than workman by operation of law, nor can it be setoff against any other claim

DUTIES OF EMPLOYERS / EMPLOYEES

  • To pay compensation for an accident suffered by an employee, in accordance with the Act.

  • To submit a statement to the Commissioner (within 30 days of receiving the notice) in the prescribed form, giving the circumstances attending the death of a workman as result of an accident and indicating whether he is liable to deposit any compensation for the same.

  • To submit accident report to the Commissioner in the prescribed form within 7 days of the accident, which results in death of a workman or a serious bodily injury to a workman.

  • To maintain a notice book in the prescribed from at a place where it is readily accessible to the workman.

  • To submit an annual return of accidents specifying the number of injuries for which compensation has been paid during the year, the amount of such compensation and other prescribed particulars.

DUTIES OF EMPLOYEES

  • To send a notice of the accident in the prescribed form, to the Commissioner and the employer, within such time as soon as it is practicable for him. The notice is precondition for the admission of the claim for compensation.

  • To present himself for medical examination, if required by the employer.

APPEAL / BAR TO CIVIL REMEDY

An appeal against and order of the Commissioner lies to the High Court, within 60 days of the order. The employer is required to deposit the compensation before filing the appeal.

No right to compensation in respect of any injury shall exist under this act if he has instituted in Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workmen in any Court of law in respect of any injury –

  1. if he has instituted a claim to compensation respect of the injury before a Commissioner; or

  2. if an agreement has come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of his Act.

Regards,

Pinal Mehta

Legal FAQs

15 Nov

Here are some questions that are frequently asked by HR
Q1. Is Bonus right of every employee. For calculating bonus does the interest earned by Company in FDRs is also to be counted.

A. Bonus is something given in addition to what is usual or strictly due; money or anything given in addition to an employee’s usual pay or salary. The payment of Bonus Act 1965 provides for payment of bonus to persons employed in a factory and in every other establishment employing twenty or more persons. In calculating bonus, interest earned by a company on fixed deposits is to be excluded.

Q2. I am a Research Scientist working in University of Delhi. I have been working on various projects for a period of five years. Do I have a right to be regularized?

A. Being a Research Scientist though you don’t have a right to be regularized but your association with the University should be given due consideration at the time of the appointment .You stand a better chance than any other candidate.

Q3. I am a Lecturer in a College, Delhi. A person has been appointed as a Lecturer of History in my college. The person who has been appointed as not even studied History as a specialized subject in his graduation. Can his appointment be challenged ?

A. Yes, you can challenge the appointment on the ground of lack of proper qualification by filing a Petition in this regard.

Q4. I am in Government Servant working in Ministry of Defence. A Departmental Enquiry was ordered against me. I was not convicted by the report of the enquiry. My senior had again ordered enquiry into the same charges. Can he do so?

A. Your senior has no power whatsoever to order another enquiry on the basis of the same facts and materials against you. But in case some new facts and materials come into light such enquiry can be ordered.

Q5. I had been working in Pvt. Ltd. Company for 2 and half years as a permanent employee. As per the company rules I was eligible for medical and LTC benefits. When I leave the job they suppose to give me the whole Medical and LTC benefits plus 15 days salary. I had served one month notice also. They promised me to pay after some time since the financial condition of the company was not good at that time. After repeated telephonic reminder and subsequent letters they kept quiet. It is almost 2 years since then, and I came to know that this company continue to do such things with other employees also. What I can do now? Can I still get money back?

A. Yes, you can claim all the benefits, which the company has not paid you after your resignation. You can file a civil suit against the company and claim those dues. In case you are a “workman” within the definition of Industrial Disputes Act, you can file a petition under Section 33 (c) (ii) of the said Act and claim your benefits.

Q6. I am working with a government enterprises company since last 7 years on a contract basis. They renewing my contract on every year. Relation are good with my employer, but if they are not continuing my job in any case what I will do. Is there any chance to see them?

A. From your query it is not clear in which category of employment are you working, Whether you are in the “Workman” category or you are in the “Management” Cadre and whether you are employed on contract basis or otherwise. In case you are in the Management category, then the Company has every right to enter into an agreement with you on a contractual basis and continue your job till the time they want. In case you are working in the office staff then in case the company does not renew your contract then you can approach the Labour Court under the provisions of Industrial Disputes Act and seek appropriate remedy. You can ask for regularization under the Industrial Disputes Act if you are a workman as defined under the said Act.

Q7. Can any employer send his employee on forced leave for not to initiate disciplinary proceeding but to legally punish him?

A. The employer can not send an employee on forced leave without initiating any disciplinary proceedings against an employee. Only after necessary show cause or charge sheet has been issued and after holding disciplinary inquiry or proceedings, the employer can legally punish you. If the employee fails to receive the payment from the employer after having entered into full and final settlement of the account, the employee can file a civil suit for recovery of office dues. In case gratuity has not been paid then the employee can proceed under the provisions of Payment of Gratuity Act and then in case Provident Fund has not been released after the employee leaving, then he can proceed under the provisions of the Provident Fund Act.

Q8. What does an employees do if his employer does not make his full and final settlement of Account, once the employee leave or is forced to leave the service in the private sector. How soon and with what documents the employees should fight the case?

A. If the employee fails to receive the payment from the employer after having entered into full and final settlement of the account, the employee can file a civil suit for recovery of office dues. In case gratuity has not been paid then the employee can proceed under the provisions of Payment of Gratuity Act and then in case Provident Fund has not been released after the employee leaving, then he can proceed under the provisions of the Provident Fund Act

Q9. How to get my passport back from my previous employer?

A. It is not clear from your question, in what capacity the previous employer is holding the passport. However, it is advisable to send a letter in writing to the previous employer for return of passport. If he still does not return the same, you can lodge a criminal complaint with local police station.

Q10. What are my rights if a contract has no mention of salary breakups and the employers PF is included as part of the Gross Salary?

A. There is nothing illegal if there is no mention of salary breakup and employers PF included as part of the Gross Salary. The PF can be deducted as a Contribution of employee from the Gross Salary. In addition the employer has to contribute his share of PF subject to maximum privilege prescribed in Section 6 of Act.

Q11. My company is not relieving me. I have got a job elsewhere and want to quit the notice period of one month expired one week ago. What can/should I do?

A. If one month notice period has expired as prescribed in the contract of employment, intimate to your employer in writing that as notice period has already expired you will stop coming to their office from ______ (specific date) and also write about settling your accounts.

Q12. Kindly give the citation of the latest ruling given by Supreme Court wherein promotion has been declared as the fundamental right. The Article was published in the newspaper but no reference to the citation is available.

A. The citation and the ratio of the case you have asked for is given hereunder : Ajit Singh II v. State of Punjab, (1999) 7SCC 209 : 1999 SCC (L&S) 1239 “The word “employment ” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered ” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion , which is his personal right.” (para 22) “It is not possible to accept the view expressed in Ashok Kumar Gupta ,(1997) 5 SCC 201 and followed in Jagdish Lal, (1997) 6 SCC 538 and other cases, if it is intended to lay down that the right guaranteed to employees for being “considered” for promotion according to relevant rules or recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right.” (Para27)

Q13. Today if I get a job and leave then they will crib about it and would refuse to pay my severeance benefits, which to me is nothing unreasonable but the cost of closing down the office and leaving people to look out for a job and unsetting. In the current circumstances, badly hit as I am, how can I safeguard my interests and make sure that I do not loose my benefits if I have to leave early.

A. You have not disclosed about your term and condition of Employment. Anyhow if the company terminates your services and they have to pay the severeance benefit as the contract. If as per the terms and conditions of your contract or service if no severeance amount or benefit is payable on resignation then you can demand the same from the company if you resign from the service. However if the company has paid the severeance benefits to other employees who have resigned then in that case if you file a case in the court of law on the ground that other person or employees have been paid the severeance benefit after they have resigned and you are accordingly entitled then you must get this severeance benefit. It is advised that persons who have resigned and have been paid severeance benefits you can collect the documents from them to show that severeance benefits were paid to the employees who have resigned from the company .

Q14. I wish to know the consequences of breach of employment bond given by an employees: On the employee himself, On the company that employs him subsequently. If the bond states that the employees can be used for criminal breach of trust on breach of the bond, how enforceable is this clause?

A. As regard the breach of the employment bond given by an employee in this regard it is advised that if an employee has signed a bond after he get specialized training from the company then a civil case can be filed against him for recovery of the amount mentioned in the bond if there is any breach. As regard the company that employs him subsequently, there is no liability of the company, which employs him subsequently. Breach of bond is not criminal breach of trust it is of civil consequences and that also have to be proved in the Court of Law. In no manner it can be termed as criminal breach of trust.

Q15. A Writ Petition was duly filed and was admitted by Honorable High Court in Oct. 1994 against wrong and illegal dismissal orders of State Bank of India and for my reinstatement too. But nothing has been done so far inspite of my various request and reminders. In this regards, what immediate step I should take to get maintenance allowances or nurse my family smoothly as well as to meet highly legal expenses till disposal of the said writ?

A. When a writ petition is filed against the illegal dismissal on termination of service legally it is not possible by any court to grant any maintenance allowance or legal expenses till disposal of the writ petition. There is no precedent in this regard nor any court pays the maintenance allowance. The only remedy available to you is to file an application for early hearing and get the matter decided as early as possible.

Q16. A civil appeal against recovery orders in lying pending in Honorable High Court. At present, neither there is any movable/immovable property in my name nor I am in position to pay the amount of recovery as ordered by Single Judge Bench or likely to be ordered in futures. Under these circumstances, what maximum severe action can be taken by this Court, in case, my appeal is not decided in my favour onwards? What are the point & steps/measures in defense in that position?

A. You have not disclosed in your query as to what order has been passed by the Appellate Court. Whether any stay has been granted by the Appellate Court or not. If any stay has been granted then what conditions. Normally when any appeal is admitted or put for hearing the Appellate Court always passes an order for payment of decretal amount with a condition that the decree holder can withdraw the amount on furnishing some security. If any order has been passed in this regard by the Appellate Court then you have to deposit the amount. If you don’t deposit the amount then normally the appeal is dismissed. If the decree passed is totally illegal then in that case you can tell the court that no amount is payable. And you also pray to the court that you are in very bad financial condition otherwise your appeal will be dismissed.
If you have any questions please post over here….

Regards,

Pinal Mehta

Legal Tip of the Day

15 Oct

Legal Tip of the Day

An employer can be prosecuted for obtaining undertaking from an employee that she will not claim maternity benefit on her third delivery

Under Maternity Benefit Act, a female employee will be entitled  to such benefits without any ceiling on number of deliveries since special care and assistance of motherhood is one of the basic rights.If an employer takes an undertaking from an employee that she will not claim maternity benefit on her third delivery, such employer can be prosecuted.