EER - Layoff & Retrenchment (9-12) Flashcards
“industry” definition
s2(j)
any business, trade, manufacturing, undertaking, calling of ee’s and any calling, service, employment, handicraft or ind occupation of avocation of workmen
s/o bombay v. hospital mazdoor sabha
laid down triple test for determination of industry
triple test
- co-op between ee and er
- to satsify material needs and wants
- systematic activist
layoff definition
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
explanation for layoff
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
Central India Spinning, weaving & Manufacturing Co. Ltd., Nagpur v. State Industrial Court
the unemployment has to be on account of a cause which is independent of any action or inaction on the part of the workmen
Nutan Mills Ltd., Ahmedabad v. ESIC,
EER is continued, but the contract of employment is suspended
Non-Application of Chapter VA
- 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.
industrial establishment
(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
claimant should come within the definition of workman
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
layoff compensation
half of basic wages and dearness allowance
continuous service of one year
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.
Continuous service of six months
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.
interruption on
account of any of the following reasons will still deem such service to be
uninterrupted
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.
APSRTC v. LakshmojiRao
daily wager cannot claim regularity retrospective
no compensation shall be paid to a workman who has been laid off if
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.
Associated Cement Co v Workmen
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.
Tatanagar Foundry Co v. Their Workmen
a lay-off declared mala fide by the employer or to victimize the workmen or for some other ulterior purpose is not lay-off
Prohibition of lay-off in industries where chapter V-B is applicable-
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.
retrenchment
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
cases in which termination of services amount to retrenchment
failure to pass confirmation test
unauthorized absence from duty
on account of recession and reduction of volume of work
probationer of unsuitability
State bank of India V. N Sundaramoney
The words “for any reason whatsoever” was interpreted to
mean whatsoever be the reason every termination spells retrenchment
Hindustan Steel Ltd V. State of Orissa
Termination of service In terms of employment is not retrenchment.
D C & Mills V. Sambhunath
striking off the name of a workman from the rolls amounted to retrenchment
Santosh Gupta v State Bank of India
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.
Kurukshetra University V. Prithvi Singh
punishment after holding a departmental enquiry and therefore, the termination in question could never be regarded as “retrenchment”.
Condition for valid retrenchment
- continuous service of 1 year
- 1 month notice or 1 month pay
payment of retrenchment compensation
notice to appropriate govt
retrecnhment compensation
15 days average pay for every completed year of service and any part of it exceeding 6 mos.
Retrenchment Procedure Applicability
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
Re-employment of retrenched workman
- workman should have been ‘retrenched’
- not the dismissed, discharged or Superannuated
- offer himself for re-employment
Haryana State T C C W Store Ltd. v. Ram Niwas
employment was terminated in view of the contract and the purpose of the contract was also over, the termination was not retrenchment
Uptron India Ltd. v. Shammi Bhan
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
Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court
SC held that the latter (wider) view was correct, Surplus labour theory was rejected
