Labour lawRoll no -747

Many think that layoff and retrenchment are one and the same thing but
that is not true. The biggest difference between layoff and retrenchment
is that layoff is volatile in nature. Employees are recalled, once the period
of layoff is over. Retrenchment is non-volatile. It involves full and final
termination of services.
Lay off is defined in section 2(KKK) of the Industrial Disputes Act. Lay-off
means failure, refusal, or inability of an employer to give employment to a
workman whose name is on the muster rolls of his industrial
establishment and who has not been retrenched, on the account of lack of
coal, lack of power, lack of raw material, over stocking of output, failure of
machinery, due to natural calamity, or due to any other connected reason.
The term retrenchment is defined in section 2(oo) of the Industrial
Disputes Act. Retrenchment means termination of service of an employee
by an employer for any reason other than as a punishment due to
disciplinary action. This does not include - voluntary retirement,
superannuation, non-renewal of contract, termination on the ground of
continued ill-health.

Key differences between Lay off and

Retrenchment
Layoff refers to the provisional termination of the employee, at the
instance of the employer.
Layoff refers to the provisional termination of the employee, at the
instance of the employer.

The layoff is an action step

Retrenchment is a business strategy to reduce companys expenses.

The layoff is of a temporary nature

Retrenchment is permanent in nature.

Generally after the declaration of layoff the companys operations

stops because of the shortage of raw material, the breakdown of
machinery, economic recession and so on.
On the other hand, the operations of the company continue even
after retrenchment is declared.

As soon as the layoff period is over, the employees are re-appointed

to their previous posts.
Unlike Retrenchment, in which the employees are not taken back by
the company, once they are terminated.
Lay off
Section 2(kkk) - Lay-off means failure, refusal, or inability of a employer
to give employment to a workman whose name is on the muster rolls of
his industrial establishment and who has not been retrenched, on the
account of lack of coal, lack of power, lack of raw material, over stocking
of output, failure of machinery, due to natural calamity, or due to any
other connected reason.
Every workman whose name is borne on the muster rolls of the industrial
establishment and who presents himself for work at the establishment at
the time appointed for the purpose during normal working hours on any
day and is not given employment by the employer within two hours of his
so presenting himself shall be deemed to have been laid-off for that day
If the workman, instead of being given employment at the
commencement of any shift for any day is asked to present himself for
the purpose during the second half of the shift for the day and is given
employment then, he shall be deemed to have been laid-off only for one-
half of that day.
In Central India Spinning, Weaving, and Manufacturing Co. Ltd.
Nagpur vs State Industrial Court (1959_ it was held that the words,
"failure, refusal, or inability" are key to the definition and means that the
unemployment is due to a cause independent of any action or inaction of
the workmen.

Layoff is not a right conferred upon the employer but an obligation that
the unemployment is temporary in nature and in a reasonable time the
laid off worker will be restored his position. However, there is no
indication regarding the time layoff will continue.

Retrenchment
Section 2(oo) - Retrenchment means termination of service of an
employee by an employer for any reason other than as a punishment due
to disciplinary action. This does not include - voluntary retirement,
superannuation, non-renewal of contract, termination on the ground of
continued ill-health.
Morinda Coop Sugar Mills vs Ram Kishen and others (1996) -
Workers were employed in the sugar mill only during the season and then
they ceased to work. Held that it is not retrenchment because it is only
seasonal work.
In Santosh Gupta vs SBI (1980) A worker was removed after he failed
a test that he was required to pass for confirmation of service. SC held it
to be retrenchment because termination for any reason is retrenchment
except if it is because of the reasons mentioned in the act.

Right of persons laid off for compensation

Provisions regarding the right of persons laid off for compensation are
contained in section 25 c of the Industrial Disputes Act.
Whenever a 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 25-F 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.

Duty to maintain muster rolls

Provisions regarding this are contained in section 25D of the Industrial
Disputes Act.
Notwithstanding that workmen in any industrial establishment have been
laid off, it shall be the duty of every employer to maintain a muster-roll,
and to provide for the making of entries therein by workmen who may
present themselves for work at the establishment at the appointed time
during normal working hours.

Cases where workmen are not entitled to

compensation
Provisions regarding this are contained in section 25E of the Industrial
Disputes Act.
The cases are:-
if he refuses to accept any alternative employment in the same
establishment from which he has been laid-off, or in any other
establishment belonging to the same employer situate in the same
town or village or situate within a radius of five miles from the
establishment to which he belongs, if, in the opinion of the
employer, such alternative employment does not call for any special
skill or previous experience and can be done by the workman,
provided that the wages which would normally have been paid to
the workman are offered for the alternative employment also.
If he does not present himself for work at the establishment at the
appointed time during normal working hours at least once a day.
If such laying-off is due to a strike or slowing-down of production on
the part of workmen in another part of the establishment.

Conditions precedent to Retrenchment of

workers
Provisions regarding this are contained in section 25F of the Industrial
Disputes Act.
No workman employed in any industry who has been in continuous
service for not less than one year under an employer shall be retrenched
by that employer until-
The workman has been given one month's notice in writing
indicating the reasons for retrenchment and the period of notice has
expired, or the workman has been paid in lieu of such notice, wages
for the period of the notice.
 The workman has been paid, at the time of retrenchment,
compensation which shall be equivalent to fifteen days' average pay
for every completed year of continuous service or any part thereof
in excess of six months.
Notice in the prescribed manner is served on the appropriate
Government or such authority as may be specified by the
appropriate Government by notification in the Official Gazette.

Procedure for retrenchment

Where any workman in an industrial establishment, who is a citizen of
India, is to be retrenched and he belongs to a particular category of
workmen in that establishment, in the absence of any agreement between
the employer and the workman in this behalf, the employer shall
ordinarily retrench the workman who was the last person to be employed
in that category, unless for reasons to be recorded the employer
retrenches any other workman.

Re-employment of Retrenched workers

Where any workmen are retrenched and the employer proposes to take
into his employ any persons, he shall, in such manner as may be
prescribed, give an opportunity 2[to the retrenched workmen who are
citizens of India to offer themselves for reemployment, and such
retrenched workmen] who offer themselves for reemployment shall have
preference over other persons.

Special provisions relating to lay

off and retrenchment (Chapter V-
B)
The aforementioned provisions are applicable only to Industrial
establishments in which less than fifty workmen on an average per
working day have been employed in the preceding calendar month or to
industrial establishments which are of a seasonal character or in which
work is performed only intermittently.
The following provisions contained in section V-B apply to an industrial
establishment (not being an establishment of a seasonal character or in
which work is performed only intermittently) in which not less than one
hundred workmen

Prohibition of lay off

Provisions regarding this are contained in section 25M of the Industrial
Disputes Act.
No workman whose name is borne on the muster rolls of an
industrial establishment shall be laid-off by his employer except with
the prior permission of the appropriate Government or such
authority as may be specified by that Government by notification in
the Official Gazette obtained on an application made in this behalf,
unless such lay-off is due to shortage of power or to natural
calamity, and in the case of a mine, such lay-off is due also to fire,
flood, excess of inflammable gas or explosion
Where the workmen of an industrial establishment, being a mine,
have been laid-off for reasons of fire, flood or excess of inflammable
gas or explosion, the employer, in relation to such establishment,
shall, within a period of thirty days from the date of
commencement, of such lay-off, apply, in the prescribed manner, to
the appropriate Government or the specified authority for
permission to continue the lay-off.
An order of the appropriate Government or the specified authority
granting or refusing to grant permission shall be final and binding
on all the parties concerned and shall remain in force for one year
from the date of such order.
The appropriate Government or the specified authority may, either
on its own motion or on the application made by the employer or
any workman, review its order granting or refusing to grant
permission or refer the matter or, as the case may be, cause it to be
referred, to a Tribunal for adjudication
Where no application for permission is made within the period
specified therein, or where the permission for any lay-off has been
refused, such lay-off shall be deemed to be illegal from the date on
which the workmen had been laid-off and the workmen shall be
entitled to all the benefits under any law for the time being in force
as if they had not been laid-off.

Conditions precedent to Retrenchment of

workmen
Provisions regarding this are contained in section 25N of the Industrial
Disputes Act.
No workman employed in any industrial establishment, who has been in
continuous service for not less than one year under an employer shall be
retrenched by that employer until
The workman has been given three months' notice in writing
indicating the reasons for retrenchment and the period of notice has
expired, or the workman has been paid in lieu of such notice, wages
for the period of notice.
The prior permission of the appropriate Government or such
authority as may be specified by that Government by notification in
the Official has been obtained on an application made in this behalf.

Where an application for permission has been made and the appropriate
Government or the specified authority does not communicate the order
granting or refusing to grant permission to the employer within a period
of sixty days from the date on which such application is made, the
permission applied for shall be deemed to have been granted on the
expiration of the said period of sixty days.
The appropriate Government or the specified authority may, either on its
own motion or on the application made by the employer or any workman,
review its order granting or refusing to grant permission or refer the
matter or, as the case may be, cause it to be referred, to a Tribunal for
adjudication
Where no application for permission under sub-section (1) is made, or
where the permission for any retrenchment has been refused, such
retrenchment shall be deemed to be illegal from the date on which the
notice of retrenchment was given to the workman and the workman shall
be entitled to all the benefits under any law for the time being in force as
if no notice had been given to him.