NAME R. No.

COURSE COLLEGE NAME SUBJECT

: Avinash Singh : 12 : MBA Finance : Allana Institute of Management Studies and Research : MFM SEM-II

PERSONNEL LAW & MANAGEMENT Question 1 An employer has three manufacturing units at different places, each registered separately as a factory under the Factories Act, 1948 and each employing 500 employees. The competent authority under the Apprentices Act, 1961 clubbed the three units and determined the total strength of apprentices to be inducted into the units. Is the clubbing valid? Answer 1 Under Apprentices Act, 1961 an employer can apply under Apprentices Act subject to employing five hundred or more workers but their is no criteria about the locations of different units in Factories. In case of manufacturing units are different locations and all the units giving their separate identity in the office of chief inspector? But in case salient law employer can apply to the chief inspector, two or more units as single factory. As employer has three manufacturing units and each units includes 500 employees. Total Strength of Apprentices = 3 Units * 500 Employees = 1500 Employees Therefore, clubbing is valid and total strength of apprentice to be inducted into units is 1500 Employees.

Question 2 A bus conductor died of a heart attack, after working hours while he was sleeping in the bus which was standing at a bus depot. The nominee of the deceased conductor claimed compensation under Workmens Compensation Act, 1923. Is the employer liable to pay the compensation to the nominee? Answer 2 - Under Workmens Compensation Act, 1923 - The principles is well established that Compensation can be awarded only if the accident arose in the course of and out of the employment of the workman and those conditions refer to the time when the accident happened and the causal connection between the employment and the death. If the workman actually got ill in the course of an on account of the employment and he died as a result of it then there is no scope for a controversy at all. Situation mentioned above are similar to case of Abdul Sattar Rehmanbhai's, in which a conductor died due to heart attack while he was sleeping in the bus. The Division Bench of Bombay High Court held that if any employee while on duty dies of heart attack, the employer will be liable for payment of compensation to his dependent. It is immaterial as to whether the employee was actually performing his duties or not. Hence, employer is liable to pay the compensation to the nominee of the deceased conductor under Workmens Compensation Act, 1923.

Question 3 On the basis of an agreement signed between the trade union and the management it was agreed to pay a bonus of 30% of wages to all eligible employees under Payment of Bonus Act, 1965. Is the agreement valid? Answer 3 As per Section 31A of the Payment of Bonus Act, 1965 there may be an agreement or settlement by the employees with their employer for payment of an annual bonus linked with production or productivity in lieu of bonus based on profits, as is payable under the Act. But, according to Section 31A the maximum bonus under this provision can not exceed 20% of the salary / wages earned by the employee during the relevant accounting year. Hence, if the company agrees to pay more than 20% then it will be against the provisions of the Payment of Bonus Act, 1961. Therefore, the agreement signed between trade union and management is not valid.

Question 4 It is not obligatory to appoint a presenting officer on the part of an employee in a domestic enquiry Comment of this statement giving legal reasons. Answer 4 The term domestic enquiry is mainly used to refer to an enquiry into the charges of indiscipline and misconduct by an employee. In common parlance, domestic enquiry means departmental enquiry or domestic tribunal. In such enquiries, the matter is decided by administrative officers and not by courts of law. In cases of alleged indiscipline, it is common for disciplinary authorities in a department or in an industry to appoint an officer or officers to inquire into the allegations against an employee. These enquiries are commonly know as Domestic Enquiries Domestic enquiry is not considered as a legal requirement under the Industrial Disputes Act, or other substantive laws such as the Factories act, Mines Act, etc. but has been provided under the standing orders to be framed in the Industrial Employment (Standing Order Act) 1946. As a result it is now well-established that such standing orders have the force of law and constitute statutory terms of employment. Procedure is as per the judgment held in High Court Jurisdiction of Bombay v/s Udaysingh Ganpatrao, 1997 / CLR 1122 S.C. A workman against whom an enquiry is to be held is to be given a charge-sheet clearly stating the charges leveled against him and asking him to submit his explanation Management has to appoint Enquiry Officer(EO) & Management Representative(MR) for the enquiry as per the charge sheet. Management reserves the right to suspend the workman pending enquiry depending upon the gravity of the charges. Workman is permitted to defend himself by other workman or by an office bearer of Trade Union of which he is a member-defence Representative (DR). In Domestic enquiry - starts with the recording of the statements & letters as per the charge sheet. The workman is allowed to produce witnesses in his defence and cross examine the witness of the Management. EO shall record the concise summary of the evidences & questions & answers asked by the both the parties. The proceedings of the inquiry shall be conducted in English, hindi or in the language of the state where the Industrial establishment is located. After it is over, sometimes it takes a year or more- EO should summit his findings giving brief reasons. EO - appointment - The management can appoint o An oficer employed in his Industrial establishment o An officer from outside o An advocate - In normal it is better to have an adocate to give credibility to the proceedings. On the reciept of the finding report from EO , the Management should give a letter to workman alongwith the finding report of EO for his explanation. On the reciept of the same , Management can accord punishments to the workman found guilty of msconduct. Here they are four types of punishments viz

o o o o Points o o o

Dismissal without any notice suspension for a period of not more than 4 days. Fine Warning or censure. to remember while according the punishment Gravity of the misconduct Previous records if any Aggravating circumstances that may exist.

Hence, it is obligatory to appoint a presenting officer on the part of an employee in a domestic enquiry.

Question 5 Under Payment of Gratuity Act, 1972 an employer can withhold the payment of gratuity of an employee when the latter fails to vacate the accommodation allotted to him by the employee. Comment of this statement giving legal reasons? Answer 5 Section 4(6) of the Payment of Gratuity Act, 1972 says employers need not pay gratuity for major misconducts of employee (and not for minor misconducts). Major misconducts include termination for act of willful omission or negligence causing damage or loss to employers' property; riots or disorderly conduct or any other act of violence which constitutes to be called as an 'act of offence'. Punishment shall be by way of punishment as specified in IPC or law in force besides forfeiture of gratuity. As per Case Law of Bhailal Kalida, Barot v. Factory Manager, jehangir Textile Mills Ltd., (2003) 1 GLR 629: (2003) II LLj 355: 2003 LLR 616: 2003-II LLN 283 (Guj He). Gratuity, as payable by an employer to an employee, can not be either withheld or adjusted against the amount of rent due to an employer for unauthorized retention of accommodation of the employer by an employee. Hence, in above situation an employer can not withhold the payment of gratuity of an employee when the latter fails to vacate the accommodation allotted to him by the employee.

Question 6 - An Employee is a member of Employees Family Pension Fund Scheme. He superannuates after completing 33 years of Continues Service and having a pensionable salary of Rs. 12,000/- Per Month. Calculate the monthly pension he is entitled to receive under the scheme? Answer 6 - Under Employee Family Pension Fund Scheme, pensioner will get the benefit under three scales which depends on his length of service rendered by him. As Employee rendered 33 years of continuous service Hence, he comes under condition (3) mentioned as: Pension is calculated as Pensionable Salary X Pensionable service 70 Pensionable Salary Pensionable Service 3) = 12,000 PM = Continuous Service + 2 Years (As mentioned in condition = 33+2 = 35 Accordingly pension calculated as 12000 X 35 = Rs. 6,000 Per Month 70 Hence, under this scheme, an employee entitled to receive monthly pension of Rs. 6,000 per Month.

Question 7 Shouting of slogans by the workers at the premises of the establishment amounts to misconduct Comment of this statement giving legal reasons? Answer 7 Misconduct is a legal term meaning a wrongful, improper, or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. The following Acts on the part of the workmen/employees shall without being exhaustive, constitute misconducts whether alone or in combination and shall render the workman / employee liable for disciplinary action and award of appropriate punishments. 1. Willful in subordination or disobedience, whether alone or in combination with others to any of the lawful and reasonable order or orders of the superiors. 2. Theft, fraud or misappropriation of company's funds dishonesty in connection with the employer's business or property. 3. Theft of property of another workman / employee within the premises of the company. 4. Willful damage to or loss of employer's goods or property. 5. Taking or giving of any illegal gratifications. 6. Habitual late attendance or late attendance on more than 3 occasions in a month. 7. Habitual breach of any order or rules and regulations or instructions for maintenance and running of any department or the maintenance of cleanliness of any portion of the company. 8. Misbehavior towards customers and visitors. 9. Riotous or disorderly behaviour towards superiors, co-workers during working hours in the premises of business of the company or outside or any act subversive of discipline in connection with work of the factory / work. 10. Habitual absence from work without sanction of leave or absence without sanction of leave for more than 8 working days. 11. Habitual negligence or neglect of work. 12. Frequent repetition of any act or omission for which a fine may be imposed under the Payment of Wages Act, 1936. 13. Striking work singly or in combination with others or inciting others to strike work in contravention of the provisions of any law or rule having the forces of law/or any contract including the implied contract of appointment to attend and to work. 14. Tempering with any records, evidence, threatening the witnesses, falsifying or refusing to give testimony when incidents in the undertaking or other matters are being investigated or being considered. 15. False statements made or particulars given in his application form for appointment or when called upon by the management to make a true statements of any fact in connection with any matter connected with the work or business of the company. 16. Sleeping while on duty. 17. Absenting from work spot without proper authority and/ or permission during duty hours or idling away. 18. Adopting, participation, instigating, encouraging abetting go slow tactics.

19. Carrying lethal weapons, fighting or attempting bodily injury to other workman. 20. Drunkenness or conduct which violates common decency and morality. 21. Assaulting, abusing, threatening or intimidating, gheraoing any superior or any other workman / employee of the company, whether inside or outside the factory in connection with the work / business of the company. 22. Gherao or wrongful confinement or coercion of staff / employee. 23. Playing cards and gambling within the premises. 24. Smoking and / or spitting within the premises of the company other than at the place where permitted. 25. Refusing to sign a statement or declaration given by himself or to receive or sign notices, warnings, memo etc., issued or given by any superior or the manager. 26. Conviction for any offence by a court of law, involving moral turpitude. 27. Obtaining leave on being sick and during the same period working elsewhere or attempting to obtain work elsewhere or obtain leave on false pretext. 28. Obstructing, preventing or intimidating any person from attending his or their normal work or from seeking employment. 29. Engaging in activities or giving false statement before any person or authority with the intention to cheat the company. 30. Refusal to submit for search or search on suspicion of theft of company's property. 31. Collection of any money within the premises for purpose not sanctioned by the management. 32. Handling any machinery apparatus not entrusted to his charge. 33. Refusal to work overtime due to exigencies of work. 34. Unauthorized disclosure, to any person, of any information with regard to the process of the company, which may come in the possession of workman in the course of his work. 35. Canvassing for union membership or for the collection of union dues inside the premises of the factory / company during the working hours of the company. 36. Holding meeting or shouting slogans or leading processions or demonstrations inside the premises of the company or distributing or accepting inside the premises hand bills, notices or pasting posters, abusing any superiors in the company. 37. Engaging in private work or trade within the premises of the company. 38. Refusal to submit for medical examination when directed to do so by the manager. 39. Failure to observe safety instructions notified by the employer or interference with any safety device installed within the company. 40. While in employment, working for any other employer for any consideration or otherwise. 41. Failure to submit E.S.I information or sickness or the failure or furnish the management with the certificate of fitness. 42. Punching the time card of other workman / employee or to falsify the records in any manner in respect of attendance or Payment of Wages. 43. Habitually remaining in toilets for unreasonably long periods of time. 44. Falsifying and tampering with any official records. 45. Failure to report accident / injuries while on duty and / or failure to give evidence in respect of such accidents / injuries. 46. Failure to notify the company of change of address. 47. Refusal to accept any order of transfer / or to work any shift. 48. Committing nuisance at within primes of the Factory.

49. Entering the factory premises without permission and / or authority outside the duty hours. 50. Interfering in any manner with any of the management functions and / or right, or with the work of the other workmen / employees. 51. Remaining within the factory premises without permission and / or any official business after the authorized duty hours. 52. Allowing an unauthorized person to operate his machine. 53. Unauthorized use of a vehicle of the company and communication systems (like Telephone/Fax, etc.,) 54. Doing any act prejudicial to the interest of reputation of the company. 55. Loitering or leaving place of work without sufficient and reasonable cause and permission during the working hours. 56. Not taking proper care of the tools, gauges, jigs, fixtures, or any other company's property entrusted to him. 57. Sudden stoppage of power, switching off electric power resulting in damage to company's property, machinery or plant. 58. Conduct which endangers the lives and safety of other workmen / employees. 59. Willfully allowing any unauthorized person to enter the premises outside the working hours of quarters. 60. Trespassing or forcible occupation of the company's premises outside the working hours of quarters. 61. Money lending or borrowing or running a chit funds scheme or engaging any kind of such trade within the premises of the company. 62. Deliberate abuse of any concessions or benefits or any leave privilege for the time being in force. 63. Any act which may be considered as misconduct in common parlance. The following punishments may be imposed for major misconduct: 1. 2. 3. Wages. 4. 5. Strict warning. Stoppage of increment. Demotion / reduction to a lower grade of post or lower stage in a scale of Suspension without wages for a period not exceeding four days Removal from service which does not disqualify for future employment

Hence, shouting of slogans by the workers at the premises of the establishment amounts to misconduct as per point no.36 of above mentioned and may liable for above punishments.

Question 8 An employer defaults in making payment of P.F. contributions to the Provident Fund. The period of default is 5 months. Is the employer liable to pay damages and if so at what rate of damages? Answer 8 Pursuant to provisions of Section 17(3)(a) of the The Employees Provident Fund and Miscellaneous Provisions Act, 1952 - If any employer makes default in payment of the employer's contribution or the employee's contribution payable under the Employees' Provident Funds Scheme or paragraph 38 of the said scheme relating to the payment of administrative charges, or under section 17(3)(a) of the Provident Fund Act relating to the payment of inspection charges, he would be punished with imprisonment upto three years but it shall not be less than one year and a fine of Rs. 10,000 in case of default in payment of the employee's contribution which has been deducted by the employer from the employees' wages and six months and a fine of a Rs. 5,000 in any other case. In 1991, the Central Government, by inserting Para 32-A in the Employees' Provident Funds Scheme, has laid down different rates of damages depending upon the period of default. Courts have held that it is not just and fair to levy damages at a flat rate for different periods of default. Para 32A of the EPF Scheme provides for claiming of damages for default in making payment of any contribution. The details are given below: Sr. 1 2 3 4 Period of Defaults Less than 2 months 2 months to 4 months 4 months to 6 months 6 months and above Rate of Damages (%) PA 17% 22% 27% 37%

The Central Board has the power to reduce the damages upto 50%, depending on the merit of the case (para 32B) Hence, Employer is liable to pay damages and rate of damages will be 27%.