Termination from private service by giving two month's basic

Learned Mr. Makkad, Mr. Paranjape, Mr. Tripathi,

Sir,

Kindly accept heartfelt thanks for guiding further in this very interesting thread and thus enriching the forum.

The querist Mr. Ravi has posted that:

“applicant is a permannant employee  for which certified standing order applies"

May I request you to guide on the implications of judgment in case of:

Andhra High Court

Srinivasa Resorts Limited And ... vs State Of Andhra Pradesh And Ors. on 22 November, 2001

The judgment has been attached in this thread.

Mr. Ravi,

Kindly follow the valuable advice of Learned Mr. Makkad, Mr. Paranjape, Mr. Tripathi.

These experts are thorough gentleman and endless number of members/visitors have benefited from their valuable advice.

The learned experts have always responded to the requests made to them to guide the members.

Kindly post the details and attach the copy of certified standing orders, appointment letter. You may erase the names etc if you wish to maintain the confidentiality.

@ Dear Kumar,

You say his designation is Assistant Manager, which may be of managerial nature or of supervisory or of workman. As you know that while determinaing status as workman, the designation of an emplyee is immeterial, it is only nature of job and responsibilities of the employee, which bring him within the ambit of defination of workman under the Industrial Disputes Act. If he nature of job is of managirial nature, he is ousted from the scope ID Act, if nature of job is of supervisory nature, in that event his salary is material. In case, he is workman, your  approch is perfactly correct. If all the other conditions are present, the notice period of two months has no relevance. He can challenge the same under the provisions of ID Act. 

He can also claim damages and compensation from Civil Court. 

Dear Sirs,

Nature of work is merely technical cum clerical as such iam a workman, since head office is establishment Ap Shops and estt qact applies, be this as may be.

Certifying standing order applies is not specvifically mention ed in the terms and conditions of appoin tment orders.

1) if i say iam workman , then thney may take the plea that retrenchment can be possible by applyin g ID act provisions, not taking state govt permission may defeat the termination.

I want to contest this case basing on only terms and conditions of appointment letter,

1) letter no where contains specific term "Excess/work load reduction" .

2) I  want to file a writ petition/suit for claiming 20 years compensation as iam being a permannat employee must hold office till 58 years r/w public policy as enshrin ed in section 23 of the indian contract act.

3) now, if i file a suit, suit may be maintainable as iam claiming merely a compensation and i have made an act of repudiation of contract  and i deemed that iam in service you should pay me salary as you are paying me earlier.

now , three excetion drwaned by apec court in olden years that 1) Art 311

2) ID act

3) statutory body acts in violation of statue later discovered to any private body acts in violation statute.

specificrelief act section 14 bars enforcement of contrac t of personal service.

now my question ,

can't i succed my case without resorting to Industrial dispute Act,1947 ,ap shop estt act? if i can sucess

my further question ::

1)what prayer should i to make in the original suit for claiming 20 years salary as contract was violated.

2) since i have taken the plea before chairman that " I deemed that iam in service and you should pay me salary as you are paying me earlier"  will this plea not hit by section 14 of specific relief act ( enformenet of contract of personal servcice)

3) complaints under id act needs to prove myself as workman which takes large duration and complaint under ap shops and estt act does not have power for interim relief

4) suit has got injunction if there is breach of contract

5) writ is extra ordinary

please advise on this as i have decided to move further either under suit jurisdiction or wqrit of mandamus.

i need such advise wherein my prayer should not be enforcement of contract of personal service"

i am not going to challenge termination.  i claim that two month's notice tewrmination for permanant employees is void r/w public policy (section 23 of indian contract act). then automatically termination rests on this point as well as excess clause (which is not there in the appointmen t letter) will automatically go . as a result either i m ay be compensated by 20 years salary or job .

4)

in jawahar lal case  apewx court held that "HELD: l. It is settled in law that where a party to a contract commits an anticipatory breach of the contract, the other party to the contract may treat the breach as putting an end to the contract and sue for damages, but in that event he cannot ask for specific performance. The other option open to the other party, namely, the aggrieved party, is that he may choose to keep the contract alive till the time for performance and claim specific performance but, in that event, he cannot claim specific performance of the contract unless he shows his readiness and willingness to perform the contract. [521B-C]"

Dear Sirs, 

after termination of contract, i have made the plea of repudiation by making specifically clear that contract is alive and i deemed  that iam in service you should pay me salary as you are paying earlier.

as a breach 20 years salary will be made in the suit or writ.

please advise on the poin tof repudiation v/s enforcement of personal service in civil court

and possible injunction at the earliest

Dear Ravi,

If it so, you can take option under the I.D.Act, Standing orders will apply. Moreover, the provisions of I.D Act will prevail over the contract.

Learned Mr. Makkad, Mr. Paranjape, Mr. Tripathi,

Sir,

Kindly accept heartfelt thanks for guiding further in this very interesting thread and thus enriching the forum.

Mr. Ravi,

Please keep this thread updated.

Regards

Kumar

The remedies are already explained to querist.I may further like to add that employer is free to arrange his business by rationisation, automation etc.In that case workmen may be entitled to retrenchment compensation and other dues . Non workers are entitled only to notice for amonth/three months or the salary in lieu depending on terms of appointment letter.Even if termination is in breach of contract the person aggrieved has to show the efforts made by him in getting alternative employment. since such disputes are Industrial disputes under Sec 2A of I.D.Act,the recourse to civil court may result in rejection of claim.

It also would be worth mentioning that this forum may be used by persons seeking general guidance only.If they already have remedies in their mind and seek guidance to achieve those results,they should approach professionals by paying their professional charges.

Dear Sirs,

on 15 november 20111 , an incident happened management wrote to me stating

"we would likt to bring to your notice that absence without any prior intimation or information comes within the purview of misconduct under Clause 3.2 of Standing Orders applicable to employees of our Organization "

do this mean Am I a Workman --> do i need to establish again in the labour court.

do this mean am i an employee comes under the purview of Shop and etablishment act  ---> am i entitle to file an appeal under shops and establishment act.

please emphasis on this.

secondly, when the breach of contract happens, can i file suit for compensation . i need material information.

please help me.

Regards

As per the A P S&E Act, a permanent employee may be terminated with reasonable cause. However, in such cases, the compensatin paybale will be 15 days average wages for every completed year of service. In the instance, you will be entitled to this payment. Also such notice of termination should be copied to the local labour inspector by the employer. Please send a notice for payment of this salary and if the employer fails to respond to this claim within a month, you can lodge a written complaint with the local labour inspector/commissioner. 

Vasudevan

Dear Sir,

i tried to found out some material information being ::

Clause 7 contains " termination by giving two month's gross salary"

however, in the clause 8 of the appointment letter it contained

Clause 8 " your service shall be governed by hr policy and other regulation which are in practice or come in future"

when i found the hr policy in that clause 18 of the HR policy is contained as

clause 18 " seperation from employment"

seperation can happen in the following ways

1) retirement  at the age of 58 years

2 ) absconding

3) resignation

4) Management can terminate in its discretion for any major misconduct /continued poor performance

since clause 7 is void to the extent of clause 8 of the terms and condition of the appointment letter (clause 18 of hr policy)

can i be eligible for injunction as the prima facie the termination is violative of the clause 8 read with clause 18 of hr policy  ?

please note termination can only be passed as per the mandate contained in hr policy

Iam  i be entitled to Calculation of Earned Leave at the rate of Gross Pay

what is the meaning of  salary  ?

since clause 18 of the hr policy read with clause 8 of the terms and conditions of the appointment letter , will it be enforceable in the civil suit ? my suspicion the Opposite party may take a plea that the hr policy dos not contain any public character

please  advise   and eloborate

2)  in binny case clause of the apointment letter containing payment in lieu of notice is decalred as null and consequently in absence of the said clause the termination order falls to ground

can i ntake the plea that  termination clause 7 of the appointment letter is void to the extent of clause 8 of the appointment letter contrary to clause 18 of the hr policy r/w section 23 of the indian contract act r/w section 47 of the ap shops and establishment act 

please elaborate

regards,

ravi

Dear Sirs,

Please guide me on this points

Dear Sir,

i tried to found out some material information being ::

Clause 7 contains " termination by giving two month's gross salary"

however, in the clause 8 of the appointment letter it contained

Clause 8 " your service shall be governed by hr policy and other regulation which are in practice or come in future"

when i found the hr policy in that clause 18 of the HR policy is contained as

clause 18 " seperation from employment"

seperation can happen in the following ways

1) retirement  at the age of 58 years

2 ) absconding

3) resignation

4) Management can terminate in its discretion for any major misconduct /continued poor performance

since clause 7 is void to the extent of clause 8 of the terms and condition of the appointment letter (clause 18 of hr policy)

can i be eligible for injunction as the prima facie the termination is violative of the clause 8 read with clause 18 of hr policy  ?

please note termination can only be passed as per the mandate contained in hr policy

Iam  i be entitled to Calculation of Earned Leave at the rate of Gross Pay

what is the meaning of  salary  ?

since clause 18 of the hr policy read with clause 8 of the terms and conditions of the appointment letter , will it be enforceable in the civil suit ? my suspicion the Opposite party may take a plea that the hr policy dos not contain any public character

please  advise   and eloborate

2)  in binny case clause of the apointment letter containing payment in lieu of notice is decalred as null and consequently in absence of the said clause the termination order falls to ground

can i ntake the plea that  termination clause 7 of the appointment letter is void to the extent of clause 8 of the appointment letter contrary to clause 18 of the hr policy r/w section 23 of the indian contract act r/w section 47 of the ap shops and establishment act 

please elaborate

regards,

ravi