The manager is not a workman under Sec. 2(s) of ID Act, 1947. In case of illegal termination by the managements the manager has to approach the civil court for remedy. Any judgments in vogue in support of this statement may kindly be supplied.
From India, Chennai
10From India, Chennai
You've not mentioned the grounds on which termination considered, is the criteria to link the judgments of similar grounds. You should also consult an advocate practicing in labour laws, that would help you.
From India, Bangalore
From India, Bangalore
Basically employment is a contractual relationship between the employer and the employee and as such the mutual rights and obligations of them arise only from the terms of the contract of employment. Thus any breach by anyone of the parties to the contract is a subject matter of the Indian Contract Act,1872 and as such the forum for redressal is the Civil Court. But, Industrial Disputes Act,1947 is a special enactment for the purpose of investigation and settlement of industrial disputes.Therefore, despite being the off-shoot of the Law of Contract, the ID Act,1947 is designed in such a way to modify the existing contract between the persons covered under the Act viz the employer and the workmen so as to ensure industrial peace and amity.If you analyse the definition of the term "workman" u/s 2(s) of the ID Act,1947, you will find that any person employed mainly in managerial or administrative capacity is not a workman. Thus it is the intention of the Legislature to keep off those who escape the ambit of the definition of workman from the application of the Act. Once any employed person is not a workman as defined under the ID Act,1947, he cannot have recourse under the ID Act against his/her alleged illegal termination and if any claim is filed in this regard under the Act, s/he has to prove that s/he falls within the seven inclusive positions of the definition clause else the claim would just be dismissed in limine. The special power of the Tribunal under the Act is that it can not only set aside the order of termination but also order reinstatement with back wages and other attendant benefits whereas the Civil Court can set aside the orders of termination and award damages only.
Moreover, one can not expect judicial precedents for every aspect of employment and therefore, in case of a person not being a workman under the Act, he has to just work out the remedy for his employment grievances by his/her common understanding only.
From India, Salem
Moreover, one can not expect judicial precedents for every aspect of employment and therefore, in case of a person not being a workman under the Act, he has to just work out the remedy for his employment grievances by his/her common understanding only.
From India, Salem
I am very much indebted to your invaluable suggestions. The problem is that when a manager approached the Civil court of competent jurisdiction for his illegal termination, without following the due process of law by the employer, the said court asked to explain the counsel as to how the court was competent to take the case on file? The counsel explained Sec. 9 of CPC. The court did not convince. He has discussed not only Indian contract Act but Specific relief Act also. When in the Court's mind it was an issue related to a worker/employee and it was the issue to be dealt with by only labour court, it is necessary to show the evidence to the court that it is competent to deal with the case. It is, in this connection a request was sought. I thank you all who have participated in the discussion. However, I searched and traced one Supreme Court judgment in this connection, which was reiterated in one of the judgments of A.P.High Court. After the supply of them to the Court it was convinced and taken the case on file. Thank you all once again.
From India, Chennai
From India, Chennai
For Cite Hr Communities academic interest & will remain indebted to you if you could share the one Supreme Court judgment as reiterated by you in this connection, which was reiterated in one of the judgments of A.P.High Court.
From India, Mumbai
From India, Mumbai
Oh..Why not, sure.
1. Premier Automobiles Ltd vs Kamlekar Shantaram Wadke Of ... on 26 August, 1975
The excerpt is as follows, which helped a lot to clarify my doubt.
"If the dispute is not an industrial dispute within the meaning of section 2(K) or within the meaning of section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum."
This is in the middle of the verdict. The original para starts from " It would thus be seen" and ends with" enforceable under the Act alone"
Further, it was reiterated in the following A.P.High Court Judgment.
2. B.V. Rao vs Chittivalasa Jute Mills And Anr. on 13 October, 1989.
You may find the same para in this judgment also.
Thank you very much for your interest.
From India, Chennai
1. Premier Automobiles Ltd vs Kamlekar Shantaram Wadke Of ... on 26 August, 1975
The excerpt is as follows, which helped a lot to clarify my doubt.
"If the dispute is not an industrial dispute within the meaning of section 2(K) or within the meaning of section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum."
This is in the middle of the verdict. The original para starts from " It would thus be seen" and ends with" enforceable under the Act alone"
Further, it was reiterated in the following A.P.High Court Judgment.
2. B.V. Rao vs Chittivalasa Jute Mills And Anr. on 13 October, 1989.
You may find the same para in this judgment also.
Thank you very much for your interest.
From India, Chennai
Please go through my article " Position regarding jurisdiction of Civil Court vis-a-vis adjudication of rights & obligations created under Industrial Disputes Act, 1947". The article was published in FLR in the year 2018. This will clear lot of issues.
From India, undefined
From India, undefined
Thank you very much for the information supplied. It's indeed a good study that was made by you to differentiate between the Tribunal dealing with matters of ID and a Civil court. The problem was when a Magistrate/Senior Civil judge wanted to produce any provision or judgment of an Apex court of any state or India to show that a manager's illegal termination was to be dealt with by a Civil court and not the Labour Court, all the attempts of my counsel were failed as the first option took by my counsel was Sec. 9 of CPC. Later, he went on to state about Or. 37 of CPC. However, he did not convince. When the two judgments were shown in Which it was categorically narrated that for the employees who were not covered under Sec. 2k or 2-A of ID Act would have to approach Civil Court for all their remedies as it not only applicable to managers it impliedly applicable to all including managers, it helped a lot to take the case on file by the said judge.
I once again thank you very much for the information supplied to me and request you to keep on educating us...With regards.
From India, Chennai
I once again thank you very much for the information supplied to me and request you to keep on educating us...With regards.
From India, Chennai
Thanks for the concern, May i request you to share in which journal below mentioned citation is reported. B.V. Rao vs Chittivalasa Jute Mills And Anr. on 13 October, 1989. as said by you.
From India, Mumbai
From India, Mumbai
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Legal Clarification on Non-Performer Termination, Project Based Appointment Letter, Setting UP .pdf