EER - Layoff & Retrenchment (9-12)

Question 1

“industry” definition

Answer 1

s2(j)
any business, trade, manufacturing, undertaking, calling of ee’s and any calling, service, employment, handicraft or ind occupation of avocation of workmen

Question 2

s/o bombay v. hospital mazdoor sabha

Answer 2

laid down triple test for determination of industry

Question 3

triple test

Answer 3

• co-op between ee and er
• to satsify material needs and wants
• systematic activist

Question 4

layoff definition

Answer 4

s2(gg)(kkk)

the failure, refusal or inability of an employer
on account of shortage of coal, power or raw materials or
the accumulation of stocks or
the break-down of machinery or natural calamity or
for any other connected reason
to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and
who has not been retrenched

Question 5

explanation for layoff

Answer 5

Every workman whose name is borne on the muster rolls
of the industrial establishment and who presents himself for work
at the establishment at the time appointed for the purpose during
normal working hours on any day and is not given employment by
the employer within two hours of his so presenting himself shall be
deemed to have been laid-off for that day within the meaning of this clause

Question 6

Central India Spinning, weaving & Manufacturing Co. Ltd., Nagpur v. State Industrial Court

Answer 6

the unemployment has to be on account of a cause which is independent of any action or inaction on the part of the workmen

Question 7

Nutan Mills Ltd., Ahmedabad v. ESIC,

Answer 7

EER is continued, but the contract of employment is suspended

Question 8

Non-Application of Chapter VA

Answer 8

• less than fifty workmen on an average per working day have been employed in the preceding
  calendar month
• establishments which are of a seasonal character or in which work is performed only intermittently.

Question 9

industrial establishment

Answer 9

(i) A factory as defined in the Factories Act, 1948; or
(ii) A “mine” as defined in the Mines Act, 1952; or
(iii) A “plantation” as defined in the Plantation Labour Act, 1951

Question 10

claimant should come within the definition of workman

Answer 10

should not be badli workman; or casual workman
name must be borne on the muster roll
should not have been retrenched
must have completed not less than one year of continuous service
one year continuous service must be under the same employer

Question 11

layoff compensation

Answer 11

half of basic wages and dearness allowance

Question 12

continuous service of one year

Answer 12

Section 25B(2)(a)
i) Has been in employment for twelve calendar months; and
ii) He has actually worked for not less than:
a) 190 days in the case of employment below ground in a mine;
b) 240 days in any other case.

Question 13

Continuous service of six months

Answer 13

Under Section 25-B(2)(B) a worker must:
i) Have been in employment for a period of six calendar months; and
ii) Have actually worked for not less than 95 days in the case of his employment in underground mine or 120 days in any other case to constitute continuous service for a period of six months.

Question 14

interruption on
account of any of the following reasons will still deem such service to be
uninterrupted

Answer 14

a) Sickness;
b) Authorized leave;
c) Accident;
d) Strike which is not illegal;
e) Lock-out; and
f) Cessation of work which is not due to any fault on the part of the workman.

Question 15

APSRTC v. LakshmojiRao

Answer 15

daily wager cannot claim regularity retrospective

Question 16

no compensation shall be paid to a workman who has been laid off if

Answer 16

Under Section 25E
i. If he refused to accept any alternative employment in the same establishment or in another belonging to the same employer situated nearby which does not require any special skill and that the workman is given similar wages as he getting previously;
(ii) if he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day;
(iii) if such laying-off is due to a strike or slowing-down of production on the part of workmen in another part of the establishment.

Question 17

Associated Cement Co v Workmen

Answer 17

Geographical proximity, unity of ownership, functional integrity, general unity of purpose, can be the tests to find out the true relation between the parts, branches of units. If in their true relations they constitute one integrated whole then they can be said to be one establishment.

Question 18

Tatanagar Foundry Co v. Their Workmen

Answer 18

a lay-off declared mala fide by the employer or to victimize the workmen or for some other ulterior purpose is not lay-off

Question 19

Prohibition of lay-off in industries where chapter V-B is applicable-

Answer 19

No workman shalll be laid off except with the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette
obtained on an application made in this behalf, unless such lay-off is due to shortage of power or to natural calamity, and in the case of a mine, such lay-off is due also to fire, flood, excess of inflammable gas or explosion.

Question 20

retrenchment

Answer 20

S2(oo)
termination by the employer of the service of a workman for any reason whatsoever except.
(a) voluntary retirement
(b) retirement on superannuation;
(c) on ground of continued ill health
(d) as punishment inflicted by way of disciplinary action
(e) genuine closure or take over of the undertaking by another employer
(f) as a result of the non-renewal of the contract of employment between the employer and the workman concerned on the expiry of the contract being terminated under a stipulation contained therein; or

Question 21

cases in which termination of services amount to retrenchment

Answer 21

failure to pass confirmation test
unauthorized absence from duty
on account of recession and reduction of volume of work
probationer of unsuitability

Question 22

State bank of India V. N Sundaramoney

Answer 22

The words “for any reason whatsoever” was interpreted to
mean whatsoever be the reason every termination spells retrenchment

Question 23

Hindustan Steel Ltd V. State of Orissa

Answer 23

Termination of service In terms of employment is not retrenchment.

Question 24

D C & Mills V. Sambhunath

Answer 24

striking off the name of a workman from the rolls amounted to retrenchment

Question 25

Santosh Gupta v State Bank of India

Answer 25

put in more than 240 days service in a year
SC held directing her reinstatement with full back wages held that such termination of service would amount to retrenchment.

Question 26

Kurukshetra University V. Prithvi Singh

Answer 26

punishment after holding a departmental enquiry and therefore, the termination in question could never be regarded as “retrenchment”.

Question 27

Condition for valid retrenchment

Answer 27

• continuous service of 1 year
• 1 month notice or 1 month pay
  payment of retrenchment compensation
  notice to appropriate govt

Question 28

retrecnhment compensation

Answer 28

15 days average pay for every completed year of service and any part of it exceeding 6 mos.

Question 29

Retrenchment Procedure Applicability

Answer 29

25G
- satisfaction of workman def
- satisfaction of industry def
- workman belongs to a particular category of workmen in that est
- agreement contrary to “last come first go” does not exist

Question 30

Re-employment of retrenched workman

Answer 30

• workman should have been ‘retrenched’
• not the dismissed, discharged or Superannuated
• offer himself for re-employment

Question 31

Haryana State T C C W Store Ltd. v. Ram Niwas

Answer 31

employment was terminated in view of the contract and the purpose of the contract was also over, the termination was not retrenchment

Question 32

Uptron India Ltd. v. Shammi Bhan

Answer 32

Over-stayed after Maternity leave – Company terminated the service of the employee on the basis of the standing order which provided for termination of service in such cases. CC held that it amounted to retrenchment

Question 33

Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court

Answer 33

SC held that the latter (wider) view was correct, Surplus labour theory was rejected