India: Law At Work Q & A

Last Updated: 14 September 2016
Article by Krishna Vijay Singh

I am working in a factory owned by a private company. The company has a set of certified standing orders which are applicable to all the workers in the factory. At the time of my appointment the company had made me sign an employment contract according to which the company can change my department and transfer me anywhere in India. However, the certified standing orders do not allow the company from transferring me to any other department. Please let me know whether the company can transfer me to another department or not.

Please note that under the Industrial Employment (Standing Orders) Act, 1946 ("Standing Orders Act") the certified standing orders have statutory force. The standing order implies a contract between the employer and the workman. Therefore, the employer and the workman cannot enter into a contract overriding the statutory contract as embodied in the certified standing orders unless the same is done by way of modification in the standing order as stipulated in the Standing Orders Act. Further, please note that while the standing orders are in force, if there is any conflict between your employment contract and certified standing orders, the certified standing orders will prevail.

In this regard, reference may be made to the judgment of the Supreme Court in Western India Match Co. vs. Workmen (AIR 1973 SC 2650) wherein the court held that the terms of employment specified in the standing order would prevail over the corresponding terms in the contract of service in existence on the enforcement of the standing order. In view of the aforesaid, kindly note that your company cannot change your department unless the standing orders allow the company to do the same.

The company with which I am working has not paid salary to me and to some of my colleagues from the past 4 months because of business losses. However, the company has promised to clear all the dues by next month. Further, we are also expected to work at the office despite non-payment of salary. Please let me know if I resign now, will I lose my salary dues. Further, also advise any action which can be taken against the company in the event the company fails to pay the dues?

Given that you have not received your salary for the past four months, you may make an application to the Competent Authority under Section 15 of the Payment of Wages Act, 1936 ("PWA") for the delay in payment of your wages. In this regard, kindly note that Section 16 of the PWA provides that a single application may be presented under Section 15 on behalf of any number of employed persons belonging to the same unpaid group.

Employees under Section 16 are said to belong to the same unpaid group if their wages have remained unpaid for the same wage period. Since you and as well as your colleagues have not been paid for the same wage-period, a single application on behalf of all of you would suffice.

Please note that the application should be presented within twelve (12) months from the date on which the payment of wages was due to be made. In addition to the wages, you and your colleagues may also be entitled to compensation.

Additionally, also note that even if you resign now, the company has no right to withhold the salary due to you for the period for which you actually worked for the company and the same shall be payable to you.

I used to work as a part time employee in a company. Recently, my employer terminated services of some regular employees as well as part time employees on account surplus work force. However, the retrenchment compensation was only paid to the regular employers. Can you let me know whether part time workers are entitled to retrenchment compensation?

Please note that there is no explicit inclusion of part time workers under the Industrial Disputes Act, 1947 ("Dispute Act"). A closer analysis of the definition of 'workman' and 'continuous service' under the Disputes Act would reveal that there is no mention of the number of working hours per day as a qualifying criterion to fall under either of the respective definitions. Perhaps one of the most important judicial precedent leading to a determining decision on this point is the case of Divisional Manager, New India Assurance Co. Ltd. v. A. Sankaralinga; AIR 2009 SC 309. In the said case the Madras High Court relied on the definitions of 'workman' and 'continuous service' under Section 2(s) and Section 25B of the Act respectively to hold that these two definitions were not restricted in applicability to only full time employees as the all embracing tenor of the definition took within its ambit part time employees as well. Accordingly, the award of the Industrial Tribunal was quashed and reinstatement of the workman with full back wages was ordered leaving the matter of regularization of service to be considered by the employer in accordance with law. This judgment was further confirmed in appeal by the Division Bench of the High Court. Subsequently, the Hon'ble Supreme Court of India upheld the judgment of Madras High Court and concluded that a workman working even on a part time basis would be entitled to the benefit of Section 25-F of the Dispute Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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