Dear Seniors, If the workman worked for more than 05 years in a company & failed to complete 240 days prior to being retrenched by the employer then in the said case as Workman Failed to complete 240 days in the preceding year then can Employer avoid the procedure under section 25 of IDA despite the fact all remaining period of 05 years workman completed 240 days in all the Years?
Thanks in anticipation......!!!
From India, Pune
467Thanks in anticipation......!!!
From India, Pune
Dear Prashant,
I hope, following one section would reply your query:
Section 25F in The Industrial Disputes Act, 1947
25F. Conditions precedent to retrenchment of workmen.- No workman 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 until--
(a) the workman has been given one month' s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
1[
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2[ for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government 3[ or such authority as may be specified by the appropriate Government by notification in the Official Gazette].
Thanks
V K Gupta
From India, Panipat
I hope, following one section would reply your query:
Section 25F in The Industrial Disputes Act, 1947
25F. Conditions precedent to retrenchment of workmen.- No workman 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 until--
(a) the workman has been given one month' s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:
1[
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2[ for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government 3[ or such authority as may be specified by the appropriate Government by notification in the Official Gazette].
Thanks
V K Gupta
From India, Panipat
The 240 days are not counted only for the year just prior to retrenchment.If the employee has completed 240 days in any one year , he cannot be retrenched without complying sec 25F/25N of ID Act.
Varghese Mathew
From India, Thiruvananthapuram
Varghese Mathew
From India, Thiruvananthapuram
Dear Prashant,
Now I would like further clarify that if you retrench an employee, no other person can be appointed on that post. If you have to re-filled that post, the person retrenched would have to be given opportunity(appointed) If he refuses in writing, only then, you will be able to appoint other person on that post. Hence, if you retrench any person, careful consideration, action and implementation is required. Retrenched means, you have abolished the post.
OK
Thanks
V K Gupta
From India, Panipat
Now I would like further clarify that if you retrench an employee, no other person can be appointed on that post. If you have to re-filled that post, the person retrenched would have to be given opportunity(appointed) If he refuses in writing, only then, you will be able to appoint other person on that post. Hence, if you retrench any person, careful consideration, action and implementation is required. Retrenched means, you have abolished the post.
OK
Thanks
V K Gupta
From India, Panipat
Dear Prashant,
One point further, before retrenching an employee, seniority of the employee in the category is also to be observed i.e. principle of 'LAST COME FIRST GO' is to be followed. In other words, you can not follow pick & choose. See Section 25G of the Act.
You must be thinking that I am writing in piece-meals. In fact section 25 of ID Act is long enough and crucial and cannot be made understand in one go. So don't mind.
Thanks
V K Gupta
From India, Panipat
One point further, before retrenching an employee, seniority of the employee in the category is also to be observed i.e. principle of 'LAST COME FIRST GO' is to be followed. In other words, you can not follow pick & choose. See Section 25G of the Act.
You must be thinking that I am writing in piece-meals. In fact section 25 of ID Act is long enough and crucial and cannot be made understand in one go. So don't mind.
Thanks
V K Gupta
From India, Panipat
Dear Prashant,
As ID Act clearly states that Retrenchment benefit 15 days average pay for every completed year or any part in excess of six months to be given to the retrenched workmen so pls consider those years in which workmen fulfills the conditions of completed year i.e. 240 days.
If has completed 240 days in all past 04 years & have not completed 240 days in last year then benefit for 04 years is to be paid to the workmen.
Thanks
From India, Mumbai
As ID Act clearly states that Retrenchment benefit 15 days average pay for every completed year or any part in excess of six months to be given to the retrenched workmen so pls consider those years in which workmen fulfills the conditions of completed year i.e. 240 days.
If has completed 240 days in all past 04 years & have not completed 240 days in last year then benefit for 04 years is to be paid to the workmen.
Thanks
From India, Mumbai
Dear Prashant,
Let me point out that retrenchment issue doesn't relates to Section 25 of The Industrial Disputes Act, 1947 as mentioned by you.Section 25 of The Industrial Disputes Act, 1947 deals with the 'Prohibition of financial aid to illegal strikes and Lockouts'. Chapter VA & Chapter VB contains Section 25A to Section 25S which deals with the retrenchment and other related issues.Chapter VA is applicable to an industrial establishments in which less than fifty workmen have been employed or to an industrial establishments which are of a seasonal character or in which work is performed only intermittently whereas Chapter VB deals with an industrial establishment employing not less than one hundred workmen in the preceding twelve months.As regards you query relating to retrenchment is concerned,Sh V K Gupta has nicely explained the provisions. Section 25F(b) in which it has been clearly mentioned that if a workman completes continuous service of more than one year and thereafter any part in excess of six months shall be counted as one year for the purpose of granting retrenchment compensation.
I hope I have been able to answer your query.
BS Kalsi
Member since Aug 2011
From India, Mumbai
Let me point out that retrenchment issue doesn't relates to Section 25 of The Industrial Disputes Act, 1947 as mentioned by you.Section 25 of The Industrial Disputes Act, 1947 deals with the 'Prohibition of financial aid to illegal strikes and Lockouts'. Chapter VA & Chapter VB contains Section 25A to Section 25S which deals with the retrenchment and other related issues.Chapter VA is applicable to an industrial establishments in which less than fifty workmen have been employed or to an industrial establishments which are of a seasonal character or in which work is performed only intermittently whereas Chapter VB deals with an industrial establishment employing not less than one hundred workmen in the preceding twelve months.As regards you query relating to retrenchment is concerned,Sh V K Gupta has nicely explained the provisions. Section 25F(b) in which it has been clearly mentioned that if a workman completes continuous service of more than one year and thereafter any part in excess of six months shall be counted as one year for the purpose of granting retrenchment compensation.
I hope I have been able to answer your query.
BS Kalsi
Member since Aug 2011
From India, Mumbai
Dear Verghese Mathew, V.K. Gupta, BS Kalsi
I appreciate and thank you for your contribution; and educating the members on the various provisions under the Labour Laws.
It is heartening to know that our government has made several enactments for the welfare and security of employees.
However, it can be seen that companies are blatantly violating these provisions. It is sad that employees do not stand up for their rights. I think some NGO's having seasoned HR professionals can do something positive to reduce such violations and provide succour to the affected employees.
Warm regards.
From India, Delhi
I appreciate and thank you for your contribution; and educating the members on the various provisions under the Labour Laws.
It is heartening to know that our government has made several enactments for the welfare and security of employees.
However, it can be seen that companies are blatantly violating these provisions. It is sad that employees do not stand up for their rights. I think some NGO's having seasoned HR professionals can do something positive to reduce such violations and provide succour to the affected employees.
Warm regards.
From India, Delhi
Dear All,
This is not the end of this chapter but to close, I would say that IT IS EASY TO GET RID OFF WIFE BUT IT IS DIFFICULT TO GET RID OFF AN EMPLOYEE.
One more point I may point out that if any employee is terminated after the enquiry, it is the management to first lead their evidence and prove their enquiry & case. Employee only has to defend and to point the deficiencies in their enquiry proceedings. Thus it becomes very difficult to prove that enquiry was fair, proper and adequate opportunity is granted to the delinquent.
If an employee is given retrenchment compensation short of Rs. 5/-, court will send the employee back treating the compensation as no legal compensation. And thereafter any payment cannot make the order good.
Thanks for appreciation and.....
V K Gupta
From India, Panipat
This is not the end of this chapter but to close, I would say that IT IS EASY TO GET RID OFF WIFE BUT IT IS DIFFICULT TO GET RID OFF AN EMPLOYEE.
One more point I may point out that if any employee is terminated after the enquiry, it is the management to first lead their evidence and prove their enquiry & case. Employee only has to defend and to point the deficiencies in their enquiry proceedings. Thus it becomes very difficult to prove that enquiry was fair, proper and adequate opportunity is granted to the delinquent.
If an employee is given retrenchment compensation short of Rs. 5/-, court will send the employee back treating the compensation as no legal compensation. And thereafter any payment cannot make the order good.
Thanks for appreciation and.....
V K Gupta
From India, Panipat
Thanks Mr.Rajkumar.
The problem is not entirely on law ,but on political executives.The Hon SC had expanded the definition of 'industry' in 1976.But in the ID Act the legislature has not incorporated it though amendment was made in 1982(not yet implemented). Sec 4 A of POG Act provides for compulsory insurance in 1987 ,still not enforced.
Chapter 11 B in 1982 provided for grievance machinery but not implemented .It is now (2010)law by another amendment.
Kerala Govt included Hospitals in the MW Act In 1999.But not fixed MW for the employees until 2009 due to pressure from management.Govt started prosecution against some hospitals who did not pay MW. They obtained stay.Govt did not go for appeal fearing loss of votes from vote banks who runs majority of hospitals.These kind of examples are available from many states.
Even if any official shows the courage to enforce the law the result is that of M/s Ashok Khemka and Durga Nagpal.
See how quickly the politician make law to bypass the SC order on RTI Act and disqualification of criminal politicians from election.
Varghese Mathew
From India, Thiruvananthapuram
The problem is not entirely on law ,but on political executives.The Hon SC had expanded the definition of 'industry' in 1976.But in the ID Act the legislature has not incorporated it though amendment was made in 1982(not yet implemented). Sec 4 A of POG Act provides for compulsory insurance in 1987 ,still not enforced.
Chapter 11 B in 1982 provided for grievance machinery but not implemented .It is now (2010)law by another amendment.
Kerala Govt included Hospitals in the MW Act In 1999.But not fixed MW for the employees until 2009 due to pressure from management.Govt started prosecution against some hospitals who did not pay MW. They obtained stay.Govt did not go for appeal fearing loss of votes from vote banks who runs majority of hospitals.These kind of examples are available from many states.
Even if any official shows the courage to enforce the law the result is that of M/s Ashok Khemka and Durga Nagpal.
See how quickly the politician make law to bypass the SC order on RTI Act and disqualification of criminal politicians from election.
Varghese Mathew
From India, Thiruvananthapuram
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