Employee Rights: Challenging Unfair Dismissal & Harassment

Querist : Anonymous (Querist) 08 February 2020 This query is : Resolved
Hi All,

I want an advice on below event sequence -

1. Joined an IT MNC in Bangalore..
2. Assigned task.
3. Found infeasible apparatus / hardware , hence informed to superiors.
4. They asked and push to work on same hardware with help of support provided by vendor.
5. I was not able to complete task due to that hardware.
6. Manager ask other teammates to work on same task, not done.
7. Then manager ask experts from other location , they too were also not able to done same task.
8. Manager rated me with low rating.
9. On this ground other department started Performance Improvement Plan.
10. In same none of the task were assigned. They mentioned misleading task.
11. Then they incorporated comment of the task which has never been assigned.
12. They included the comment of denied , (without providing any resource in denied task) ,applicable date range task without any communication.
13. Based on misleading and out of applicable date range task comments they provided "Unsatisfactory".
14. Based on Unsatisfactory they are asking to put down papers.
15. I shared all above facts with supported proof , but they are ignoring all and asking me to resign.
16. Old manager is asking you need to manage. , I can not do anything as long time of a year has passed. Nothing can be done.
17. I written to Ombud department , they said, they didnt find any violation. They can not review the last rating as a year approximately has been passed.

For all above i have enough evidence to supported.

My question is with the name of one year back how they can deny to upgrade with name of policy ? Directly this become the exploitation, harassment, blackmailing with name of compliance etc etc. How they they can do same with name of policy with an employee ?

Now HR is daily troubling with different tactics. I do have all mails to support all above.

Kindly suggest what can be done legally to make all correct ? My job is in risk. I have not resigned till yet.

Regards.
Ankur

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Raj Kumar Makkad (Expert) 08 February 2020
No employee has full-proof protection in private sector. Though you can challenge the action before the civil court and can obtain a stay order against the pressure being mounted out daily to turn down papers but after all you shall have to leave as appraisal is against you. Maximum is that you can claim the compensation as per your agreement terms of engagement and nothing more than that. It shall be better to have some other job. /Switch off the company at the earliest.

T. Kalaiselvan, Advocate (Expert) 20 February 2020
You may not be able to wage a legal war against the mammoth organisation especially private sector giants.
Hence it is advisable that you better quit the employment and look for a better place where you can feel comfortable instead sticking to them and experience the same unhealthy and uncomfortable working atmosphere, which may even cause you health hazards.

Querist : Anonymous (Querist) 24 February 2020
In my offer letter they mentioned the clause of notice period "employment contract is terminable without providing reason by either party with giving one / two months notice period or equivalent money to other side". But now, a day after getting cleared in customer interview round gm-hr called and asked me to decide by today between termination and resignation. I requested for time till next day, earlier he was not agree but somehow without confirming he given me time for next day. As the situation provided was in category of threat and violation of every company/indian laws, On next day I asked them to give me in writing for not to involve in any of company restricted activity to ensure the life safety. As I can easily understand that they may involve in any activity to take my resignation ( if gm-hr is giving direct threat without listening anything , then anything may happen I can not make zero possibility of gm-hr may ask four guards to capture , beat me to take resignation. Next to next day they sent me discharge note stating they credit two month salary in my account which has not credited in my account till yet.

Now my question is as per industrial dispute act they need to tell reason of termination. Additionally they must give two month notice in termination case.

Now as they use fake data in PIP sheet and enforced for an assignment after denying and requesting release from project to move further as manager didnt allow, but when task were not completed , they degraded my rating followed by blind and fake PIP and ending with unsatisfactory note.

My question is
1. Can discharge be considered as termination ?
2. In offer letter can they include a clause violating the ID act / any indian laws ?
3. Can they use there illegal activities to hide via this termination ?
4. In such situation if I didnt approach system the exploitation of other candidates will be a habit. And illegal practices will be in full flow. Even at later side some other big can also happen with anyone. Hence what must be done to apply at least a pause on them ?

Sincere regards.
Thanks,
Ankur

T. Kalaiselvan, Advocate (Expert) 24 February 2020
1. Dismissal is the biggest punishment which an employer can give to an employee. ... Discharge is the termination of a contract by notice or payment of wages in lieu of notice, whereas dismissal implies not merely a termination without notice or payment, but essentially indicates a measure of punishment.
2. The offer letter can include the terms and conditions of employment
3. What is illegal act?, until you prove that they are illegal you cannot claim it to be illegal, hence you may gather evidence to prove that their acts were illegal or contradicting the provisional of prevailing law.
4. First of all you may concentrate on your problem and the reliefs you require to be addressed now, after that you can think about the ways to solve others problems.

Querist : Anonymous (Querist) 03 March 2020
Sir,

Following are the set of actions has been done -
Sr No
Illegal Action
1
Putting a clause stating "employment contract is terminable without providing any reason from any party with recovery of notice period of 2/1 months salary" deliberately in offer letter for termination to hide illegal activities
2
Assigning technically infeasible task
3
Pushing to work even after accepting as technical infeasible
4
Not releasing even after requesting from project
5
Degraded performance by manager just to save there skin, even after all stated earlier has been proven right.
6
Allotted for nonmatching skill assignment.
7
Stopping for matching skill assignment.
8
Asking for work without allocating any resource (computer)
9
Starting PIP without any communication from engineer

Sending for interview non confirmed opportunity
10
Putting fake task in PIP which has never being assigned to engineer

Asking for client interview without providing any details of requirement.
11
Extending time PIP period without any communication.
12
Involving comments in PIP for assignment which were A. Were denied earlier. B. Out of applicable date range. C. Without allocating any resource.
13
Not providing any response for roles and responsibilities even after asking.
14
Not providing any violations / mistakes when asked
15
In meeting only pushing / threating “Please put down papers. No future career in wipro for you. None of mail will be responded. None of opportunity will be provided without listening anything.”
16
In meeting didnt provided chance even to speak to engineer.
17
Putting HR lock on profile without any communication
18
Without any communication of a single bit final allocation in project followed by interview.
19
HR did not provided roles and responsibilities even after asking and communicated even the mistakes, just asked for meeting only pleanty of times to state “all over put down paper”.
20
None in whole system to ask manager for misconduct.

21
Ombud is writing none of the communication will be responded/entertained further.
22
GM HR is threating for termination.
23
Even after passing the customer round of interview, same day threaten by GM ( HR & Global Head) “Please choose between termination and resignation. There is no future in wipro for you. If you will not resign today we will terminate you.”
24
When requested for assurance for safe work environment sending the illegal termination without reason just to save defaulters skin.
25
Violation of there own discharge/termination letter by not crediting money into stated bank account as per letter stated time limit.

For above I have evidence in support. My problem is due to workman/labor laws complication I am not able to decide to whom I must approach ?Designation was project lead with on paper 14 LPA remuneration. Project lead is a position where someone may lead a project i.e. few people may have report to him/her. But on paper none of junior engineer were reporting me. Instead to few team members I was distributing work and collecting. An advocate were stating that they will come with fake things additionally I never stated that please provide me a leader job instead a base line engineer job. As per him labour department/commissioner will disallow stating some workman complication. In karnataka as per him i can move directly to civil court.

Matter is getting some complication,
1. Kindly suggest where to move executive or judiciary if executive to which officer if judiciary to which court ?
2. Matter will be dealt by civil laws or labour laws and who is authority to deal with such matter ?

Sincere Regards.
Thanks.
Ankur

Raj Kumar Makkad (Expert) 03 March 2020
In the given case, it shall be better to approach civil court as your position though in papers in Project leader and as such Labour Court at a later stage may deny you any relief and return back your matter to go to civil court so better to opt for it at the initial stage.

Raj Kumar Makkad (Expert) 03 March 2020
Termination is better than resignation in the given facts as you shall be able to challenge the said order on all grounds but after resigning, you shall lose this opportunity.

Querist : Anonymous (Querist) 03 March 2020
Problem is civil court may also ask that why didnt you approach to executive before coming to court ? As even a project leader also putting efforts that is also kind of labor hence laborer. Fundamentally labour department must handle this matter. Can civil court handle labour matter before labour court ? I mean a huge confusion with almost no clarity.

Sincere Regards.
Thanks.
Ankur

Raj Kumar Makkad (Expert) 03 March 2020
Everyone has to put labour but on that ground none becomes labour. As per Industrial Disputes Act, 1947, the use of the word to define such disputes is Workman and you do not fall within that definition.
" workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, dischasrge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950 ), or the Army Act, 1950 (46 of 1950 ), or the Navy Act, 1957 (62 of 1957 ); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Refer to exceptional/restrictions clause iii which is applicable in your case

Raj Kumar Makkad (Expert) 03 March 2020
As you do not fall within the ambit of the Workman, Labour Court is not going to entertain your case and if you file in the civil court, your case shall be treated as of Service matter and not a labour case. Despite of having ample explanation as offered to you, if you decide otherwise, it is your own sweet will.

Querist : Anonymous (Querist) 03 March 2020
Honorable Adv Makkad Sir,

I remember since very beginning your expert advice here, I am 200% agree with you and marvelous explanation shared by you. I am really highly obliged to you. I understand very well the point. Most of the queries you are first one who always helps. Really too much regards and appreciations for you from my side.

But one more doubt I do have as putting fake data will be violation under ipc section like 463,464,467 etc, but other harassment will be violations of what ? Are these will be considered the violation of articles which provides right to live with dignity and equality or can be set as violation of some more ipc/crpc sections ? As its state responsibility to maintain law and order in karnataka , on this grounds civil court will deal with these ?

Sincere Regards.
Thanks
Ankur

Raj Kumar Makkad (Expert) 03 March 2020
I do not suggest you to go towards the path of criminal litigation even though the said section may meet the contents in your case but despite of all this, your case is a civil in nature so the best remedy is to go to civil court. The law and order situation of a State has nothing to do with the judicial delivery system by Civil Courts as judiciary is an Independent organ of our country.

Raj Kumar Makkad (Expert) 03 March 2020
You are always welcome Mr. Ankur.

Querist : Anonymous (Querist) 13 March 2020
Hi All Learned Experts Advocates,

I tried approximately around 5 advocates which involves labor and civil both type. Bue due to something advocates are not showing interest to take it further. I don't know what risk they are gauging in my matter. Can you suggest to here something ?

Possibly due to this ID Act 1947 5-iii labor they are ignoring and due to labor in nature civil advocates are ignoring.

Or if someone from here can help me to identify above violations in my case, come under which acts for following

1. Project Lead - A designation where employee can act as individual contributor and managerial role.
2. Wipro Limited.
3. Karnataka - India.

which act will be applicable to me I am asking as under ID ACT 1947 , above charges are not maintainable.

Thanks a lot to all of experts and fellow members.

Sincere Regards .
Ankur

Raj Kumar Makkad (Expert) 13 March 2020
You are not labour as already clarified so you can avail only civil court just for the monetary benefits. Engage a civil lawyer instead of consulting many lawyers.

Querist : Anonymous (Querist) 09 April 2020
Hi All Learned Advocates

Can anybody kindly help me to identify the law reference of recommended process of termination of technical employee ? As workman is applicable in my case ? With which act/article/ipc/crpc or any law I can validate the termination process ?

Regards.
Ankur

Raj Kumar Makkad (Expert) 09 April 2020
As the terms and conditions are already cleared in the Terms of the Appointment say Appointment Letter so those are required to be followed by both the parties to the contract and if violated by either of the parties then the civil suit under Section 10 of the Specific Relief Act, 1963 , states “ Cases in which specific performance of contract enforceable. (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Querist : Anonymous (Querist) 10 April 2020
All Learned Advocates,

They have mentioned below clause -
"
10.Notice Period-
This contract of employment is terminable, without reasons, by either party giving one month's prior written
notice during probationary period and two month's prior written notice on confirmation of employment. Wipro
reserves the right to pay or recover salary in lieu of notice period. Further, Wipro may at its discretion relieve
you from such date as it may deem fit even prior to the expiry of the notice period. However, if the
management desires the employee to continue the employment during the notice period, the employee shall
do so.

11. ON SEPARATION
On acceptance of separation notice, you will immediately give up to the company before you are relieved, all
correspondence, specifications, formulae, books, documents, cost data, market data, literature, drawings,
effects or shall not make or retain any copies of these items.
Please confirm that the above mentioned terms and conditions are acceptable to you and that you accept the
appointment by submitting the signed copy of this letter of appointment with your original signature on the date
of joining."

But during the job tenure they made many illegal, now to hide defaulters they made performance reason and sent the discharge from services/termination without mentioned any reason.Although notice terms were not violated but before that exploitation, forgery, harassment, threat had been done.

Now with what legal reference i.e. law/act/article etc etc above can be challenged and prosecuted ?

Regards.
Ankur

Raj Kumar Makkad (Expert) 10 April 2020
Mr. Ankur! The aforesaid facts have already been posted by you. Nothing is new. As you have to resign, follow clause 10 & 11 of the appointment letter as you cited twice. There is no scope of getting stay order from either of the Courts. You are duly entitled for the grant of the compensation in the light of the facts given by you wherein you have been discriminated and have wrongly been dealt with.

Rajendra K Goyal (Expert) 01 May 2020
Dear querist,

You are not covered under Id act.

In private sector, management adopt such tactics, it is system / corporate culture.

Even if you move to civil court, all your questions may not be dealt / replied there.

After years of struggle you may be able to get some compensation. If you have been paid 2 months salary as per appointment condition, it is doubtful court may award anything in your favor.

Try to find out other job.

Raj Kumar Makkad (Expert) 01 May 2020
As the author do not fall within the category of Workman hence advising him to contact labour court is nothing but to misguide him.

Rajendra K Goyal (Expert) 02 May 2020
Management of Private sector is not supposed / obliged to reply to all your questions. Their main thrust is for increasing the business and achieve the targets.

You can try to get replies through court if management give.

Annual report can not be challenged till it is treated as adverse which need to be advised. In that case an employee can represent, can not get the confirmation regarding improvement in annual report.

Querist : Anonymous (Querist) 02 May 2020
All fine, but can private company senior management / staff allowed to perform illegal actions ?

Regards.
Ankur

Rajendra K Goyal (Expert) 02 May 2020
Any action whether legal or illegal need to be decided by competent authority / court.

Against any illegal act FIR with the police need to be lodged.

If any illegal civil act is there, relief from court can be claimed.

Raj Kumar Makkad (Expert) 02 May 2020
Every illegal act do not come within the ambit of criminal act hence it do not provide a cause of action to lodge FIR especially in the matter of illegal termination of an employee.

Raj Kumar Makkad (Expert) 02 May 2020
Civil Court remedy is the best option for you to be availed at the earliest.

Querist : Anonymous (Querist) 02 May 2020
Dear All,

If i had an option ...I will file petition by today but due to non availability of suitable advocate and corona....I am packed up...What to do ? although to maintain continution i complaintant is in process at darpg which is currently at karnataka govt..

Everything is hampred due to corona...

Any advocate from bangalore if willing to take it up...pl respond here...

Additionally i found few cases where deputy manager and supervisor or 50 people has been considered as workman under ID Act 1947 Section 2(s) by DLC ...NCR Jhilmil.

What is ambiguity ?? Tough to undrrstand...Is it some ambiguous act ??

Pl comment .
Regards.
Ankur

Raj Kumar Makkad (Expert) 03 May 2020
It is not the designation but the actual work performed by the employee which decides whether the case should be filed under ID Act or in civil court. Assigned work if come within the ambit of workman then definitely such employee shall be entitled to invoke the jurisdiction of Labour court so even if the designation of Supervisor or Deputy Manager has been given but they perform work as defined under the head Workman so there is no amguity in this issue.

No doubt during this crucial period of Covid 19, lawyers are also confined to their houses at par with common man and are following Govt. guidelines so better to contact the lawyer of your choice online and discuss the matter accordingly. I have some lawyer friends in Bangluru. If you want, I personally can given details of them.

Rajendra K Goyal (Expert) 03 May 2020
An employee performing the duties of supervisory and fulfills other criteria, is not considered a workman.

Criminal action can be taken against any person if violated / done criminal act mainly punishable under IPC. Like fraud in accounting, misappropriation etc.

Rajendra K Goyal (Expert) 03 May 2020
For finding an Advocate in Bangalore, you can take help of some local people. Search the court site and note down 5-6 Advocates who deals cases like yours in the court. Talk and select any of them.

Lockdown is big problem; your case limitation would not be affected due to this. You can study online regarding your case and know the problems you can face.

Court cases may take 2-5 years in decision normally, you should be ready to face this aspect.

H

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