A labour dispute in West Bengal is brought before the Labour Court or the Industrial Tribunal under the Industrial Disputes Act 1947, now to be read with the Industrial Relations Code 2020 where it has been brought into force, while a claim for unpaid wages or for gratuity is made under a different route under the Payment of Wages Act 1936 or the Payment of Gratuity Act 1972. The two are not the same: a dispute that has been referred by the appropriate government to a Labour Court or Tribunal is adjudicated on the reference, whereas a wages or gratuity claim is a direct application by the workman to the authority designated under those Acts. Choosing the correct forum and the correct form is the first thing that decides whether the case will be heard at all.
Who this applies to
This guide is for workmen and employees in West Bengal who have not been paid their wages or salary, who have been terminated or retrenched and seek reinstatement or compensation, or whose gratuity has been withheld. It also helps an employer who has to answer such a claim. It covers employees in factories, shops and establishments and industrial workmen, and it points to the conciliation route that must often be attempted before adjudication.
Which forum hears what
Where a dispute between a workman or union and an employer is referred by the appropriate government, it is heard by the Labour Court or the Industrial Tribunal having jurisdiction, as notified for the area. A claim for delayed wages or for deduction from wages, within the limits of the Payment of Wages Act 1936, is made to the authority appointed under that Act. A claim for gratuity under the Payment of Gratuity Act 1972 is made to the controlling authority appointed for the area, with an appeal lying to the appellate authority. Each of these forums has its own form, its own limitation and its own enforcement machinery.
Conciliation first
Before a dispute reaches a Labour Court or Tribunal, it is usually required to be taken up in conciliation, because adjudication follows the failure of conciliation and the reference made by the appropriate government. A workman ordinarily raises the dispute before the conciliation officer of the area; if conciliation fails, the report is placed before the appropriate government, which may refer the dispute for adjudication. For a wages or gratuity claim, conciliation is not the mandatory route, and the application is made directly to the designated authority.
What the claim application should contain
- The name and address of the applicant and of the employer or establishment.
- The designation, the period of employment and the last drawn wages.
- The facts giving rise to the claim, with the dates of appointment, termination and non-payment.
- The amount claimed, computed and shown separately for each head.
- The provision under which the claim is made and the relief sought.
- A statement of any conciliation already attempted, if applicable.
- A list and index of the documents relied on, and a verification or affidavit.
Limitation
Each route carries its own time limit. A claim under the Payment of Wages Act must generally be brought within the period prescribed by that Act from the date the wages became due, and a claim under the Payment of Gratuity Act within the period prescribed by that Act from the date the gratuity became payable, with power in the authority to condone delay for sufficient cause. For adjudication of an industrial dispute, the reference itself is made by the appropriate government. Because the periods are fixed by the statutes, a claimant should compute the limitation from the correct date before filing and, if time has run, apply for condonation with reasons.
Documents to attach
- Appointment letter, contract or engagement order, and any confirmation or promotion letter.
- Salary slips, wage register extracts and bank statements showing salary credits.
- The termination, retrenchment or resignation communication, and any show cause notice.
- Attendance, leave and duty records, where available.
- PF and ESI records and the UAN or insurance particulars.
- Correspondence with the employer demanding the dues, sent by registered post or email.
- Proof of the conciliation, if any, and the reference order where adjudication is sought.
Evidence and hearing
The applicant leads evidence, often by affidavit with the right to cross-examination, and the employer files its reply and evidence in turn. The court or authority examines the records, hears arguments and passes an award, order or determination. Where the claim is undisputed, the matter may conclude earlier.
Enforcement of an award
An award of a Labour Court or Tribunal, and an order of the authority under the wages or gratuity law, is enforceable in the manner provided by the statute, including recovery as arrears of land revenue where the law so allows. A party aggrieved may avail of the appeal or the remedy against the award within the time prescribed, and an appeal does not ordinarily stay recovery unless the appellate forum directs otherwise.
Do I need a lawyer?
A workman may present the case in person or through a representative permitted by the statute, and a union may represent its members. In practice, assistance from an advocate or an authorised representative helps with the form, the documents and the evidence.
Can I claim wages and gratuity together?
Wages and gratuity fall under different statutes and different authorities. Where both are due, separate applications are usually required before the respective authority, unless the matter is covered by a single reference.
What if the employer does not appear?
The matter is decided on the material before the forum, and an ex parte determination can be made. Enforcement of the order then follows the statutory route.
Not paid your dues or facing a wrongful termination in Kolkata? FileX Advocates & Legal Consultants at 14 Hare Street, Kolkata 700001 drafts the claim, handles conciliation and argues the matter before the Labour Court and the authorities under the wages and gratuity laws. Call +91 7439811422 or message us on WhatsApp at https://wa.me/917439811422. See our labour and employment law services, our service law practice, or contact our team.