Rajesh Tandon
30 June 2014 at 22:55
1. It is a case which I'm discussing about one of my relative Mrs A who was employed with one of the Indian private companies who had a tie up with one of the US company i.e US-based client. Mrs A was hired by the Indian company and was on the payroll of the Indian company but was reporting to the Indian companies US-based client.
2. The US-based client had closed down its operations in India and accordingly the Indian private company terminated the employment of Mrs A.
3. She was verbally told that the client has terminated the contract with the said Indian private company. The said Indian private company subsequently sent her email that her services have been terminated on the grounds of her poor performance. When she asked them for e-mails, warnings or proofs substantiating her poor performance, the said Indian company replied back that company is under no liability to give her the proofs.
4. When she was hired by the said Indian company, she was never told that she is being hired for the said US company and that when they would quit their work in India, she would have to leave.
5. Incidentally, on being hired, in the terms of contract it was written that your services can be terminated in the probation period without any notice and pay. She signed the contract as this is the standard language of the contracts. If one goes into each and every nitty-gritty of the contract agreement there may be a couple of grey areas which are objectionable and if you start objecting to every terms and conditions then one can never pick up a job with most of the companies. She was working very hard and sincerely.
6. The said US company gave her a mail ID, login ID and password to operate. Subsequently she changed her own password as we all do and continued to work. In fact there were certain other candidates who were also selected but subsequently left the US company. At one such occasion the US company offered her to take on additional responsibility and promised that she would be promoted subsequently. She took on the additional responsibility but was never promoted.
7. Subsequently on the closure of operations of the company in India, her all the mail correspondence through the company mail ID was blocked. She could not access the mail ID. It seems to be a clear-cut case of hacking under information technology act 2000 since she was using her own password & therefore without hacking how can somebody block the account.
8. Now on one side the Indian company is talking of poor performance without substantiating its claims of poor performance by providing any proof in writing or by e-mail. On the other hand all the evidence of e-mail correspondence with US company whereby she could prove her performance is not accessible to her because the e-mail ID being blocked.
9. In fact, the terms of contract as mentioned in para 5 above had been unfair and extremely unreasonable. Further, it seems to be a case of Unconscionable Bargaining Power under Unconscionable contract whereby she could not comprehend the consequences of signing the contract.
10. The Honourable Supreme Court of India in Central Inland Water Transport Corporation Limited vs. Brojo Nath Ganguly held that an unfair or an unreasonable contract entered between the parties of unequal bargaining power was void as unconscionable, u/s 23 of the Contract Act. The Supreme Court held that a printed form contract was void on grounds of coercion, where the parties had unequal bargaining powers.
11. The said judgement mentions that the word unconscionable means showing no regard for conscience, irreconcilable with what is right or reasonable. The fact that there was not only inequality in the bargaining power together with the terms unreasonably favourable to the stronger party i.e the Indian company , it indicated that the transactions involved element of deception i.e the Indian company already had in the mind that if there was the need to terminate the services of the employee they should be able to terminate without notice and may be that accordingly they drafted the contract. My relative Mrs A had no meaningful choice, no real alternative or did not in fact assent or appear to assent to the unfair terms. In fact my relative Mrs A, being the weaker party had only option to obtain this job upon the terms imposed by the stronger party or go without them.
12. In the meantime, Mrs A has been advised by me to keep the Labour Commissioner in loop
13. My querries to the lawyer:-
(a) What are the chances of court taking the stand of Mrs A, noticing the unreasonable element of the contract and awarding the whole contract as unconscionable contract so that it is treated void.
(b) Would such interpretation of Unconscionable Contract can be drawn by labour court or high court?
(c) If the contract is treated void under Unconscionable Contract what are the implications ?
(d) Can she still seek her two months salary since the contract would be void, her termination does not have any application? Actually I am in doubt on this issue since the very fact that if court treats this contract as void then as per the legal meaning of void the status is as if no contract ever existed. So why should she get her dues? So again win win situation for employer despite making unfair contract?
(e) What are the chances that court treats this case as case of illegal termination since all the three essential ingredients/Cardinal principles of natural justice which is basis of of any legal or administrative proceedings have been violated and the actions of the company have been arbitrary as under:-
(i) The first principle of natural justice of giving hearing to the other party has been violated and before even giving a hearing to the party a unilateral decision to terminate her services has been taken. In fact no warning or counselling has been carried out where in she could have represented her case and she would have been given a hearing.
(ii) The second principal of natural justice that judge cannot be biased has been violated since she has not got any satisfactory reply from the MD of the company.
(iii) The third principle of natural justice of passing speaking order is also violated that is the company says that it is not binding on the company to give the proof of her poor performance. The order should be such that it speaks for itself about the justness of the order.
(f) What are the chances that she can seek damages on account of illegal termination as brought out in the case of Central Inland Water Transport Corporation Limited vs. Brojo Nath Ganguly.
(g) What role has the labour commissioner got as an adjudicating authority in such matter?
(h) After labour commissioner office, should the next step should be to go for labour Court?
(i) Can Mrs A lodge a complaint with the secretary of information technology of the state, being the adjudicating authority under the IT ACT 2000 for the offences committed by Indian company, under section66 Of the IT Act for hacking, though the e-mail ID which has been blocked and hacked was provided by the US company but who knows that Indian company might be acting on the orders of US company and might itself would have blocked the e-mail ID so as to destroy all the evidences of the e-mail correspondence between Mrs A and the US client.
(j) How is the jurisdiction extended and exercised over a US company as far as offence of hacking is concerned, since IT secretary of the state will have only jurisdiction over the companies or offences is committed within the area of jurisdiction of the particular state in India?
Sam Jose
29 June 2014 at 21:06
I was working with a reputed nationalized bank. But due some serious problem I left bank. I did not given a resignation letter as I was thinking that I could join after a few days. Since I was in probation and only completed 2 months I thought that I will be terminated after a month or so.
Now after 120 days the manager has send a e-mail stating that I should immediately report to Branch or disciplinary action will be initiated to me. I am not in position to go that bank which is very far from house and it is in rural area.
Could some one guide me what action can they take against me??
sushil kumar
28 June 2014 at 17:40
the reporting officer has written in the Integrity column 'under observation'. Is this a adverse remark
SSng Aulakh
28 June 2014 at 15:19
Madam/Sir,
1. A shipping company in 2004 w/o any reason issued a letter to one of their permanent Master of ship refusing any further employment as a Master, Stops all his pay and allowances, makes EPF and other funds dormant.
udai
26 June 2014 at 23:00
do public sector units or govt. undertakings fall under all india service act.
Arun K Sreedhar
26 June 2014 at 18:52
Sir/Mdam
I am a geologist working in Geological Survey of India, Ranchi. Except me all others in my office got their salary for May 2014. Already given complaint regarding this to concerned ministry and other higher authorities. I received salary for May 2014 only on 24-6-2014. Due to some problem in office (mental harassment) I was on leave from 3-10-2014 to 5-5-2014. Till january 2014 I have leave and after that EOL. I have joined service on 1-10-2010.
By an order I have been transfered to Kochi with effect from 1-10-2013. I also received a letter (on August 2013) from Head of Office that I will be released after completing the official work. But my transfer has deferred pertaining to submission of an official report. The report was submitted in November 2013. But again my transfer has deferred till further order. This I have also conveyed to concerned ministry. What does it mean? Why my salary delyed? When I will get a release order? what I should do? Kindly reply me.
Thank you
N.J. MISHRA
26 June 2014 at 10:30
Dear Members,
Our head office is located at Mumbai and having branches accross many cities in India.
Now we are planning employees leave but confused how to design because every states having their own Shop & Establishment Act hence, number of days differ.
Since our head office is loacted in Mumbai, can we design employees leave for other branches as per Bombay Shop & Establishment Act.
Confused, please assist me??
nlnaikhome
26 June 2014 at 09:04
Respected sir,
I will be relived from my govt.duty in order to join new govt. organisation soon.The duration of my currently resigning job is two months so i gave them formal type of resignation.The new job was applied and cleared exam and gave interview before joing the currently resigning job so, my Quarries are :
1.Is it essential to take NOC along with Reliving order while joning the new job.
2.If yes then my current organisation say's to give three month notice period and go technically,but I have to join less than in month after under going medical exam,What to DO ?
3.My current organisation say's that I dont need to mention regarding current job ,to my new organisation since my service was for two month duration. i dont wamt to continue any benfits of present resigning job,Is IT correct to do so?
Member (Account Deleted)
25 June 2014 at 12:17
DearAll,
Good Afternoon!
Can any one let me know whether there is any change or modification to FORM V - Certificate given by Principal Employer to the Contractor - Under Contract Labour (Regulation & Abolition) Act and Rules.
If yes can any one share me the Format please....
© 2026 LAWyersclubindia.com. Let us grow stronger by mutual exchange of knowledge.
Gratuity
cAN EMPLOYEES DEMAND 30 DAYS GRATUITY?WHAT IS THE RULE OF GRATUITY
P.S.GHOSH