LAY-OFF & RETRENCHMENTS
The term ‘Layoff’ as has been define under section 2 (kkk) as a situation where the employer is unable to provide employment to the worker whose name is borne in muster roll due to lack of coal, power, or raw material or concentration of stocks or the machinery break down or natural calamity arises.
Where the workmen’s name is in muster roll and he has been presented at the time mentioned and in working hour Yet, the employer as not given employment within the two hours from the time of his presence, he shall be deemed to have been laid-off for that date. Where the workman is asked to be presented at the commencement of any shift during the second half of shift and is given employment then he shall be deemed to have been laid-off for the one half of the day. Provided that if in second half of shift also he has not been given employment then he shall be entitled to basic wages and dearness allowance for that day.
PROHIBITION OF LAY-OFF
Prohibition of the lay-off is mentioned in chapter VB under section 25M. Chapter VB is applicable to industrial establishment where on an average of per working day of the preceding twelve months more than or equivalent to one hundred workmen were employed. Such establishment should not be of the seasonal nature or where work is performed intermittently.
Other than casual workmen or badly workmen, where a workmen’s name appeared in muster roll, he shall not been laid-off unless the permission for the same has been has taken priory by appropriate government unless such application has been received by him due to shortage of power or natural calamity and in mines such lay-off is due to fire, flood, or explosion.
The application should be submitted in a prescribe manner , and simultaneously copy shall be given to concern workmen.
Where the workmen employed in mines have been laid-off due the factors such as fire, flood, or explosion the same shall be intimidated to appropriate government within thirty day.
The application made to the appropriate government shall be disposed of after following the natural justice principle. In case where the appropriate government failed to dispose of the application within sixty days, the same shall be deemed as the acceptance of application and grant of permission. Order made by the appropriate government should be binding and enforceable for the period one year. The decision can be revised either suo moto or on application of the party and referred it to Tribunal for adjudicating.
Where no application has been made within the specifies time or the permission has been refused still lay-off is in continuation it shall be deemed to be illegal lay-off.
RIGHT OF WORKMEN LAID-OFF COMPENSATION
The laid-off workmen shall be entitled to receive compensation for the period, he has been laid- off, which is equal to the fifty percent of total of basic wage and dearness allowance which would be payable to him if he would have not been laid-off.
If in a year the workmen has been laid-off for more than forty-five days he shall not be entitle to receive compensation after the expiry of the period.
Section 2( oo) defines ‘retrenchment’ as the termination of workmen by the employer because of any reason, otherwise than as a punishment inflicted by way of disciplinary action. It does not include:
Retirement by a workman who has reached the age of superannuation provided there must a contract of employment between the employer and workmen which contain stipulation in that context.
Contract of employment between the employer and the workmen has terminated because it has not been renewed after it has been expired or the contact has been terminated under the provision of contract.
Term of employment has been terminated because of the ill-health.
CONDITION FOR RETRENCHMENT
The condition has been stipulated in chapter VA under section 25N, which is applicable to the established industrial where on an average of per working day of the preceding twelve months more than or equivalent to one hundred workmen were employed. Such an establishment should not be of a seasonal nature or where work is performed intermittently.
Workmen who have been in continuous service for less than one month be retrenched by the employer unless:
a) a notice has been given to the concerned workmen before three months from the date of execution of such notice enumerating the reason for the retrenchment and the period of notice has been completed or the wages has been in lieu of such notice to the workman and
b) prior permission from the appropriate government has been obtained through an application in a prescribed manner.
A copy of such application shall be served simultaneously to workman.
After the inquiry and applying the principle of natural justice, the appropriate government shall dispose of the application by the way of either acceptance or refusal. In case where the appropriate government has not disposed of the application within the sixty days, the same shall be deemed to be granted.
The order made by the appropriate government or specified government shall be binding on all the concerned party.
The order can be reviewed by the appropriate government or specified government either suo moto or on application of the party and may referred to the Tribunal. Tribunal shall pass an award within thirty days form the date reference.
Where without any grant of permission, or the application has been refused, employer retrench the workmen the same shall be considered as illegal retrenchment from the date on which notice has been given.
Where the permission is granted, the workmen shall be entitled to receive compensation which is equivalent to average of fifteen days for every completed year of continuous service in a excess of six months Punishment Where any employer contravenes the section 25M and 25N shall be punishable with the imprisonment of up to one month or a fine of rupees one thousand or both.