A SSI factory in Maharastra having less than 50 workers, a worker employed without Appointment letter & the factory does not have standing orders or union. At what age the such worker can be retired or he will have to be employed till he is physically & mentally fit. Pl advice applicable laws and court cases for similar cases
From India, Mumbai
2From India, Mumbai
In the absence of any retirement age fixed either in the appointment order or standing order, an employee can work till he is fit to work. In such case, if the employer wants that an employee should retire on a certain age, it shall attract the provisions of section 25F of Industrial Disputes Act which deals with retrenchment and the compensation to be paid for retrenchment.
Madhu.T.K
From India, Kannur
Madhu.T.K
From India, Kannur
What Mr.Madhu said is correct. He has to be continued till he is physically and metally fit or opts him self out by submitting resignation. B.Saikumar Mumbai
From India, Mumbai
From India, Mumbai
Dear question raiser,
As seen from your query,it is very strange that the SSI factory, you described, do not want to follow any law or rule while recruiting a person or thereafter during the service but want to follow the provisions of labour laws and court judgments while terminating one's services. As a general rule,you may retire a person on reaching 58 years of age.In case you intend to retire a person on the ground of physically & mentally fitness,you have to prove the same by asking him to present himself before a Medical Board of a recognized hospital,which can be questioned by a court of law, if disputed. As suggested by Sh B.Saikumar, it is better to obtained a resignation from such person to avoid legal complications later on.
I am sorry, I have certain reservations to agree with the suggestion given by my colleague Madhu.T.K. In my opinion the provisions of section 25F of Industrial Disputes Act has a wide implication and can not be apply to an individual case.There is a set procedure for restoring to the retrenchment, for which the employer should have cogent reasons or grounds.
BS Kals
Member since Aug 2011i
From India, Mumbai
As seen from your query,it is very strange that the SSI factory, you described, do not want to follow any law or rule while recruiting a person or thereafter during the service but want to follow the provisions of labour laws and court judgments while terminating one's services. As a general rule,you may retire a person on reaching 58 years of age.In case you intend to retire a person on the ground of physically & mentally fitness,you have to prove the same by asking him to present himself before a Medical Board of a recognized hospital,which can be questioned by a court of law, if disputed. As suggested by Sh B.Saikumar, it is better to obtained a resignation from such person to avoid legal complications later on.
I am sorry, I have certain reservations to agree with the suggestion given by my colleague Madhu.T.K. In my opinion the provisions of section 25F of Industrial Disputes Act has a wide implication and can not be apply to an individual case.There is a set procedure for restoring to the retrenchment, for which the employer should have cogent reasons or grounds.
BS Kals
Member since Aug 2011i
From India, Mumbai
Dear fellows,
Where there is no mention about retirement age in the appointment letter nor does there exist any standing order, the model standing order of the State prevails. There is no need of applying any provision of any other Act to retire the employee.
Rgds.
From India, Mumbai
Where there is no mention about retirement age in the appointment letter nor does there exist any standing order, the model standing order of the State prevails. There is no need of applying any provision of any other Act to retire the employee.
Rgds.
From India, Mumbai
Dear All;
If an employee is not fit for the work for which the employee is employed for a continuous period of 2 years, the employee can be terminated for continued ill health. This ill health can be physical, mental or any other. Important is that the employee is unable to perform the work for which employee is employed. In such cases there is no question of age and retirement.
Otherwise, although there are no Model Standing Orders applicable, does not mean there can be no rules. Employer can adopt the Model Standing Orders. Even when nothing is done, it is reasonable that employee is superannuated at the age or 60.
Vibhakar Ramtirthkar.
From India, Pune
If an employee is not fit for the work for which the employee is employed for a continuous period of 2 years, the employee can be terminated for continued ill health. This ill health can be physical, mental or any other. Important is that the employee is unable to perform the work for which employee is employed. In such cases there is no question of age and retirement.
Otherwise, although there are no Model Standing Orders applicable, does not mean there can be no rules. Employer can adopt the Model Standing Orders. Even when nothing is done, it is reasonable that employee is superannuated at the age or 60.
Vibhakar Ramtirthkar.
From India, Pune
Dear friend,
Absolutely no problem if you want to continue him in the absence of any SO,Policy. But you may face some manageable issues after the normal superannuation age of 55 or 58 or 60. (only Judges to retire at 65). This is regarding, PF, ESI, Gratuity and most importantly what repercussions you may face from his colleagues who would be affected in terms of blocked promotion, importance, portfolio etc.and he might deny an opportunity for a youngster who would have got a livelihood in his place.
kumar.s.
From India, Bangalore
Absolutely no problem if you want to continue him in the absence of any SO,Policy. But you may face some manageable issues after the normal superannuation age of 55 or 58 or 60. (only Judges to retire at 65). This is regarding, PF, ESI, Gratuity and most importantly what repercussions you may face from his colleagues who would be affected in terms of blocked promotion, importance, portfolio etc.and he might deny an opportunity for a youngster who would have got a livelihood in his place.
kumar.s.
From India, Bangalore
Dear all, As is well known, the provision for retirement is mentioned in the applicable SO. Neither the unit has its own SO nor the Maharashtra Model SO is applicable since the same applies to industries employing 50 or more workers. Since there is no such provision mentioned anywhere in the Unit's Rule book, as opined by Shri Madhu an employee has a right to continue in service till he is physically & mentally fit. Retiring him at 55/58/60 or at any later date could be termed as 'Retrenchment' and with all the consequences flowing from it. Thus it would be better for the SSI unit to have its rules and regulations clearly fixed indicating the retirement age.
From India, Bhopal
From India, Bhopal
Dear Premakumar Nair
I agree with you that model standing orders will apply in the absence of certfied standing orders. However in the intsnat case, the factory employs less than 50 workers and hence the the Industrial Employment (Standing Orders) Act is not applicable .
B.Saikumar
HR & labour Law AdvisorMumbai
From India, Mumbai
I agree with you that model standing orders will apply in the absence of certfied standing orders. However in the intsnat case, the factory employs less than 50 workers and hence the the Industrial Employment (Standing Orders) Act is not applicable .
B.Saikumar
HR & labour Law AdvisorMumbai
From India, Mumbai
An establishment employing less than 50 employees and having no standing rules with regard to conditions of service is the main focus in this discussion. In such an establishment which runs purely on the Proprietor's decisions, I don't think that there will be any repercussions from fellowmen who are also being engaged without any service conditions. When there is no conditions of service, why should they worry about promotions and scope for youngsters?
The Model Standing Order is only a model which canbe adapted for a period of six months from the date on which the establishment comes under the purview of Industrial Establishment (Standing Orders) Act and therefore, it does not mean that an establishment can follow the model standing order without going for a certified standing orders.
BS Kals, member since 2011, has misinterpreted section 25F, I understand. Section 25F applies to individual cases and even a casual employee has right to get protection of section 25F if his service is terminated without following the provisions of section 25F or 25N (in the cases of companies employing 100 or more workers coming under chapter VB). Therefore, if an employee's service is terminated due to attaining a specific age, say, 58 or 60, on the ground of superannuation without having any condition of service either in the appointment order or certified standing orders of the company, the same will be deemed as retrenchment as defined in section 2(oo) of the Industrial Disputes Act and it will be illegal termination if the termination is made without following section 25F/25N of the Act.
Regards,
Madhu.T.K
From India, Kannur
The Model Standing Order is only a model which canbe adapted for a period of six months from the date on which the establishment comes under the purview of Industrial Establishment (Standing Orders) Act and therefore, it does not mean that an establishment can follow the model standing order without going for a certified standing orders.
BS Kals, member since 2011, has misinterpreted section 25F, I understand. Section 25F applies to individual cases and even a casual employee has right to get protection of section 25F if his service is terminated without following the provisions of section 25F or 25N (in the cases of companies employing 100 or more workers coming under chapter VB). Therefore, if an employee's service is terminated due to attaining a specific age, say, 58 or 60, on the ground of superannuation without having any condition of service either in the appointment order or certified standing orders of the company, the same will be deemed as retrenchment as defined in section 2(oo) of the Industrial Disputes Act and it will be illegal termination if the termination is made without following section 25F/25N of the Act.
Regards,
Madhu.T.K
From India, Kannur
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
Be Fit @ Work.pdf
WORK PLACE STANDARDS - Blank.doc