23Reinstatement

(1) In this section,--

(a) "former employee" means a qualified person who was released by an employer for employment in national service;

(b) "former employer" means the employer by whom a former employee was employed in an establishment immediately before the enlistment of such employee for national service;

(c) "former employment" means the employment in which the former employee was employed immediately before his enlistment for national service.

(2) (a) A former employee may, on the termination of his national service, make an application in such manner and within such period as may be prescribed to his former employer for reinstatement in his former employment.

(b) On receipt of an application referred to in clause (a), the former employer shall be under an obligation (unless the employment of the former employee in the national service was terminated by dismissal for misconduct) to reinstate such employee before the expiry of a period of fifteen days from the date of receipt of such application.

(3) (a) If, on receipt of an application referred to in sub-section (2), the former employer refuses to reinstate the applicant on the ground that his circumstances have so changed as to make it impossible or unreasonable for him to do so, or denies his liability to reinstate such former employee, or represents that the reinstatement by him of the former employee is impracticable, he shall, before the expiry of a period of fifteen days from the date of receipt of such application, make an application to the National Service (Hardship) Committee for relieving him from the obligation referred to in sub-section (2).

(b) A former employee, who is not reinstated in his former employment within fifteen days from the date of delivery of the application made under sub-section (2), may, within a further period of fifteen days (computed from the date on which the first-mentioned period of fifteen days expires), represent to the National Service (Hardship) Committee that his former employer has not discharged the obligation imposed on him by sub-section (2).

(c) On receipt of the application referred to in clause (a) or the representation referred to in clause (b), the National Service (Hardship) Committee shall, after considering all matters placed before it and after making such inquiry in the matter as it may think fit, make an order--

(i) relieving the former employer from the obligation referred to in sub-section (2), or

(ii) requiring the former employer to reinstate the former employee in his former employment, or

(iii) requiring the former employer to pay to the former employee by way of compensation, for failure or inability to reinstate him, a sum not exceeding an amount equal to six months remuneration at the rate at which remuneration was last payable by the former employer to the former employee.

(d) Where the National Service (Hardship) Committee has directed the reinstatement of any person in his former employment, the former employer shall be under an obligation to pay to such person salary and allowances at the rates specified by the National Service (Hardship) Committee from the date of receipt of the application referred to in sub-section (2).

(4) (a) A former employer, who has refused to reinstate his former employee on any of the grounds specified in sub-section (3) and who has omitted or failed, without any reasonable excuse, to make an application to the National Service (Hardship) Committee within the time specified in sub-section (3),

shall be punished, without any prejudice to the provisions of clause (b) of this sub-section, with imprisonment for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both.

(b) If any former employer fails to obey any order made by the National Service (Hardship) Committee under sub-section (3), he shall be punished with imprisonment for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both, and the court by which such former employer is convicted under this sub-section shall order him to pay to the person whom he has failed to re-employ, a sum not exceeding an amount equal to six months' remuneration at the rate at which his last remuneration was payable to him by the former employer and any amount so required to be paid shall be recoverable as if it were a fine imposed by such court.

(5) Where in pursuance of the provisions of sub-section (2) a former employer reinstates his former employee and thereafter terminates the employment of such former employee at any time within a period of six months from the date of such reinstatement, the former employer shall, notwithstanding anything to the contrary contained in the conditions of employment of the former employee, be liable to pay to the former employee, at the time of terminating his employment as aforesaid, a sum equal to the remuneration which the former employee would have earned under the terms and conditions of his re-employment for the unexpired portion of the said period of six months:

Provided that a former employer shall not be liable to make such payment as aforesaid where the employment of the former employee is terminated for the reason that the former employee has been guilty of gross insubordination, habitual absence from work or any serious misconduct or has been convicted of any offence:

Provided further that a former employee whose employment is terminated within the said period for any such reason as aforesaid may refer the matter to the National Service (Hardship) Committee and that Committee shall, after due consideration, decide whether or not the employer is liable as aforesaid under this sub-section; and any such decision shall be final and binding on the parties.

Explanation.--Any sum required to be paid under this sub-section shall be in addition to the amount, if any, which the employer may, under the conditions of employment be liable to pay in respect of the termination of the employment of the former employee without notice.

(6) No change in the name, constitution or character of the former employer shall affect the right of reinstatement of a former employee who has been released from employment in national service.

(7) (a) The occupation in which and the terms and conditions under which a qualified person may be reinstated after completion of national service shall not be less favourable to him than those which would have been applicable to him had his employment not been interrupted by reason of his being called up for national service.

(b) In determining the terms and conditions of reinstatement of the former employee, regard shall be had to the additional skill and experience acquired by such employee in the course of his employment in the national service.