Name: Anish Kumar
Academic Status: BA.LLB(Hons.) (Second Year)-
Vignan Institute of Law, Guntur, Andhra Pradesh
INTRODUCTION
Layoff means temporary unemployment of the worker due to lack of resources, raw materials or breakdown of, machinery ,or even due to natural calamity. The employer cannot give work to the employees due to aforesaid reasons. The worker should not have been retrenched and his name should be there in the muster rolls of the establishment.
SECTION 2(kkk) "lay-off" (with its grammatical variations and cognate expressions) means the failure , refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery [or natural calamity or for any other connected reason] to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.
The essentials of lay-off under Industrial dispute act,1947
· There has to be a failure, refusal or inability of an employer.
· This failure, refusal or inability should be an offshoot of the shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity or for any other unconnected reason.
· The names of the laid-off workers should necessarily feature on the muster rolls of the establishment.
· The said workers should not have been retrenched.
Procedure of Layoff under Industrial dispute act,1947
· Employer has to provide a notice of the period of layoff within 7 days
· Refusal for employment of workmen can only be for reasons specified( 2kkk) of the standing order.
· The layoff should occur due something beyond the control of the employer.
· It should result in the temporary non-employment of workmen whose name appears on the muster rolls of the industrial establishment.
· The employer expect that within a reasonable time, the industry would continue and workmen will be restored their rights.
· Layoff always occur in a continuing concern, when the concern when the concern is the closed for all time to come, layoff has no relevance.
· A layoff cannot be declared mere for the reason that the employer suffered financial loss for reason beyond his control for such layoffs should be unjustified and Invalid too and the workmen can claim full wages for the period of layoff.
Important Provisions for lay-off
25A. Application of sections 25C to 25E.—(1) Sections 25C to 25E inclusive 4
[shall not apply to industrial establishments to which Chapter VB applies, or—]
(a) to industrial establishments in which less than fifty workmen on an average per working day
have been employed in the preceding calendar month; or(b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently.
(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final.
5[Explanation.—In this section and in sections 25C, 25D and 25E, “industrial establishment”
means—
(i) a factory as defined in clause (m) of section 2 of the Factories Act 1948 (63 of 1948); or
(ii) a mine as defined in clause (i) of section 2 of the Mines Act, 1952 (35 of 1952); or
(iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951
Section 25b of the Industrial Disputes Act, 1947 says A workman is said to render continuous services if he has worked for at least one year without any interruption. He shall be eligible for compensation if he has rendered a minimum of one year of continuous service. The interruption of such continuous services is not affected by reasons such as an accident, authorized of work leave, sickness, legal strikes, a lock and the termination of the work that is not due to the fault of the workmen.
There are two exceptions where even if a workman is not in the continuous service they are
· If the workman was employed for the preceding 12 calendar months from the date on which such calculation is being made.
· If the workman during such 12 months had rendered his services for 190 days or more in the case of being employed in mine and 240 days in any other employment.
Section 25C. Right of workmen laid-off for compensation.—Whenever a workman (other than a badli Workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment And who has completed not less than one year of continuous service under an employer is laid-off, Whether continuously or intermittently, he shall be paid by the employer for all days during which he is so Laid-off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per Cent. Of the total of the basic wages and dearness allowance that would have been payable to him had he
Not been so laid-off:
Provided that if during any period of twelve months, a workman is so laid-off for more than forty-five Days, no such compensation shall be payable in respect of any period of the lay-off after the expiry of the First forty-five days, if there is an agreement to that effect between the workman and the employer: Provided further that it shall be lawful for the employer in any case falling within the foregoing Proviso to retrench the workman in accordance with the provisions contained in section 25F at any time After the expiry of the first forty-five days of the lay-off and when he does so, any compensation paid to The workman for having been laid-off during the preceding twelve months may be set off against the Compensation payable for retrenchment.
Explanation.—“Badli workman” means a workman who is employed in an industrial establishment in The place of another workman whose name is borne on the muster rolls of the establishment, but shall Cease to be regarded as such for the purposes of this section, if he has completed one year of continuous Service in the establishment.
Workmen of M/s Firestone tyre v/s Fireston tyre &Rubber company
In this case the workmen were 30 in number and they laidoff in company for certain period of time by company because reduced the production in company reduced the production in company॰The 17 member out of 30 were laid off and which were given prior notice on 3rd feb ,1968 and the laid off date was 5th feb,1968 and the after few month on the 22 April 1968,they recalled by the company॰The workmen didn’t get the compensation also during layoff but as per sec 25c of industrial dispute act 1947 mentioned for the compensation when the legal lay off held॰
Issue
The compensation didn’t given the compensation to the workmen which mentioned under section 25c
Judgement
The SC held that the compensation should have to pay by 75% average wage to all 17 workmen according to sec 25c If layoff is legal then compensation should have to provide to the workmen