UNIT 7-8 Flashcards
2
what is continious service?
SECTION 66
it is the uninterrupted service of a worker which can include the duration of service being interrupted due to Sickness, Authorised Leave, accident, a LEGAL strike lockout or lay off, temporary disability due to accident arising out of course of employemnt and in females- during the maternitiy period not exceeding maternity benefits act
if a worker is not in continous service for a period of 1 yr or 6 mo as required, then they will be considered as DEEMED to be in continous service IF:
1. worked not less that 190 days ./ 95 days
2. if employed below ground then 240 days or 120 days as they case may be
important to define this because workers in continous service are eligible for benefits such as gratuity, leave pay and Provident Fund
SECTION 66
section 67 of Industrial Relations code 2020
Section 67
- provides for lay-off compensation to workers who have been employed in an industrial establishment for** not less than one year**
Lay-off means the failure, refusal or inability of an employer to give employment to a workman on a working day and for reasons not due to any fault of the workman himself.
Lay-off compensation is payable to a workman for all days during which he is laid-off, except for
weekly holidays. The rate of lay-off compensation is 50% of the** total of the basic wages** and allowance that would have been payable to the workman, had he not been laid-off.
BUT:
- layoff compensation only applies if layoff period was more than 45 days out of 12 months
- if per section 70 of this act, the employer rentrenches the workman after 45 days of lay off, then the layoff compensation of past 12 mo provided to workamn** can be set off against the retrenchment compensation**
further a workers definition does not typically include casual worker or badli worker but in this section if a badli worker has worked for 1 yr continous service, they will cease to be considered as just badli worker
for section 67-69 what is included in defining industrial establishemnt
these sections do NOT apply to:
1. to industrial establishments in which less than 50 workers on an average per working day have been employed in the preceding calendar month; or
- establishments of seasonal character or in which work is performed intermittently.
67-68 industrial estasblishemtn definition expands to INCLUDE:
1. Factory of Factories Act,
2. mines under Mines Act,
3. plantation under Plantations Labour Act,
SECTION 69. Workers not entitled for compensation in certain cases.
No compensation shall be paid to a worker who has been laid-of if :
1. He refuses to accept alternative employment in the same establishment or in another establishment belonging to the same employer and this alternate employment requires no additional skills and worker is capable of doin git plus the wage is the same as normal
2. he doesnt appear for work during working hours atleast once a day
3. laying-off is due to a strike or slowdown of production by workers in another part of the establishment and doesnt affec tthe worker in question
Section 70 conditions for retrenchment
No worker employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer unt
1. worker has been given 1 month notice w reasons for retrenchment and the notice period has expired, in lieu o fnotice they can be given wages for notice period duration
2. The second step is to pay the worker compensation at the time of retrenchment.
The compensation is equivalent to 15 days’ average pay for every completed year of continuous service or any part thereof in excess of six months.
The third step is to serve notice of the retrenchment on the appropriate government or such
authority as may be specified by the appropriate government by notification.
Procedure for retrenchments
Section 71:
“last come, first
go” in retrenchment. This means that when an employer is retrenching workers, he must ordinarily
retrench the worker who was the last person to be employed in that category, unless for reasons
to be recorded the employer retrenches any other worker.
Reemployment of retrenched worker.
72
if the employer retrenches workers and within 1 year from that he is hiring new workers then the employer must give preference to the retrenched workers that are citizens of india first. the retrenched workers who offfer themselves for employment will have first preference
Compensation to workers in case of transfer of establishment.
Section 73 protects the rights of workers
in the event of a change of ownership or management of their establishment. The section states that if a worker has been in continuous service more than 1 year at an establishment
immediately b4 the transfer of ownership or management, they shall be entitled to notice and
compensation in accordance with section 70 of the Act, as if they had been retrenched.
EXCEPTIONS:
1. If the service of the worker has not been interrupted by the transfer
2. If the terms and conditions of service applicable to the worker after the transfer are not in any way less favourable to the worker than those applicable to them immediately before the transfer.
3. If the new employer is, under the terms of such transfer or otherwise, legally liable to pay to the worker, in the event of their retrenchment, compensation on the basis that their service has been continuous and has not been interrupted by the transfer.
In other words, if a worker is in the same position after the transfer as they were before, and their new employer is legally liable to pay them compensation in the event of their retrenchment, then they are not entitled to notice and compensation under section 73.
section 74
Sixty days’ notice to be given of intention to close down any undertaking. 74.
1. anyone closing doen business to give 60 days notice to appropriate govt stating reasons for closure
2. does not apply to business w less than 50 workers, or construction project business
3. notice requirement may be waived by AG if the exceptional circumstance such as death of employer , natural disaster
section 75
If an establishment is closed down for any reason, workers who have been in continuous service for at least one year are entitled to notice and compensation, as if they had been retrenched
1. if closing due to unavoidable circumstance: compensation no more than avg pay of 3 month s
2. Unavoidable circumstances do not include financial difficulties, accumulation of unsold stocks, expiry of lease or license, or exhaustion of minerals in the case of mining
operations.
Workers employed in an undertaking set up for the construction of buildings, bridges, roads, canals, dams, or other construction work, are not entitled to any compensation under clause (b) of section 70, if the undertaking is closed down on account of the completion of
the work within two years from the date on which it was set up.
However, if the construction work is not completed within two years, the workers are entitled to notice and compensation under section 70 for every completed year of continuous service, or any part thereof in excess of six months.
section 75 MINERS
workers in a mining operation that is closed down due to exhaustion of minerals are not entitled to any notice or compensation, if:
o The employer provides them with alternative employmen at the same remuneration and terms of service, within a radius of 20 kilometers from the closed-down establishment.
o The service of the workers is not interrupted by such alternative employment.
o The employer is legally liable to pay compensation to the workers on the basis of continuous service, in the event of their retrenchment.
Kairbetta Estate v Rajamanickam AIR 1960 SC 893
Therefore, we hold that the lock-out in the present case was not a lay-off, and as such the respondents are not entitled to claim any lay-off compensation from the appellant. Incidentally we would like to add that the circumstances of this case clearly show that the lock-out was fully justified. The appellant’s Manager had been violently attacked and the other members of the staff working in the lower division were threatened by the respondents. In such a case if the appellant locked out his workmen no grievance can be made against its conduct by the respondents.
Employers in Relation to Digwadih Colliery v. Their Workmen, AIR
1966 SC 75
elaborates on the understanding of continious service
A badli workman worked as the appellant’s employee for more
than 240 days, with interruptions. and then was retrenched without notice or compensation/ wages for the required duration per industrial disputes act.
it was argued that they would not be considered as worker with continious service as there were interruptions in their service period.
court clarfied that Service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. continious service does not translate to uninterrupted service
Workmen of American Express International Banking Corporation v
Management of American Express International Banking Corporation,
(1985) 4 SCC 71
This expression, according to us, cannot mean those days only when me workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc.
so when counting the 240 days requirement, all paid holidays and sundays should also be included to allow the worker to qualify as continious service
Krishna Bhagya Jala Nigam Limited v Mohammed Rafi,
However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc.Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.”
