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M Sanjiv Kumar (consultant)     03 July 2016

Duress used by private concerns

I would like to know from experts, that whether a company can terminate any employee on any day by giving some months pay in lieu of prior notice? I've seen in a private organization's HR policy that company can terminate employee's services any day by giving three months salary in lieu of prior notice. Is there any way to stop private concerns to use this method of firing? More than this some prestigious companies even compel employee by duress to put the acceptance signature on the termination letter. Since at the time of signing the termination letter by the employee all staff belong to the employer, poor employee can't do anything. So, if some employer uses this type of tactics then what options an employee can have? How an employer can be prosecuted? Please advice.  '



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 20 Replies

G.L.N. Prasad (Retired employee.)     03 July 2016

Though such a stipulation in service agreement is there in each and every organisation, it is rarely implemented practically, and not even in one lakh cases such action was condition was invoked by employer, as the principles of natural justice steps in as constitutional right.

Even in private organisations, this can never happen, as Human resources are most precious and more valuable capital 

There are labor courts and several courts through which employee can fight if any injustice has done in his termination.

Kumar Doab (FIN)     03 July 2016

I have not been and I shall not be commenting on any opinion of any ordinary member/reader/registered expert.

 

Termination Simplicitor can always be contested.

Opportunity of natural justice should be provided.

Employee should record evidence of forced resignation, acceptance of termination order.

Employee's should be united and affliiate with Trade Unions.

Even in sectors like IT/ITeS that never heard of unions have formed unions and have done a good job.

 

TCS case is recent example.

In Bangalore the Higher Officials of Dept. of Labor Officials awarded comepnsation of 12 Lacs to techie that was terminated citing poor perfromance.

 

 

Kumar Doab (FIN)     03 July 2016

Under a notification issued by the Karnataka Government early this year, IT companies should inform the Labour Department about suspension, discharge, and termination of employees, among others.

 

https://www.news18.com/news/india/karnataka-labour-department-asks-us-it-firm-to-pay-rs-12-5-lakh-to-techie-for-sacking-her-724144.html

Kumar Doab (FIN)     03 July 2016

The state of Andhra Pradesh has already provided in AP Shops and Estbs Act; SEc;47 that copy of termiantion order has to be supplied to Inspectorate and compensation @ 15 days wages/year has to be paid in case of termination...................( Look into the Act) 

M Sanjiv Kumar (consultant)     03 July 2016

Actually problem is some companies, especialy private ones, care least about Labour Laws and take recourse  to any kind of exploitation. As Mr.Doab pointed out an employee can try to get evidence, but it's becomes nearly impossible as not a single person from employer side is sympathetic to you while forcing you to write accepted & received on the Termination Letter.

I've seen some Judgements by courts which endorse firing without any kind of Disciplianary Proceedings by HR, if the employee is in probation. If suppose boss is not happy, whether it's justified or not HR will not look into, with any probationer he/she can give adverse remarks against the probationer and based on those remarks HR will throw the poor probationer out without giving him any chance to defend. Where's Natural Justice?  Getting three months salary without working is a good idea but remain jobless after that period is very hard thing.

I would like to know from you experts name of some books which cover all these topics in detail. Especially, what documents to seek from the employer while leaving, on resigning or getting terminated, the organization. How to collect evidence if you're targented and you boss is misusing discreationary powers against you.

I'm thankful to all experts for offering their valuable advice against my query.

 

Kumar Doab (FIN)     03 July 2016

 

You have posted that you have gone thru some judgments.

Hope you have gone thru the observations of the apex court:

'The judgments of the Supreme Court which draw distinction between motive and foundation with respect to termination of services of the probationary officer pertain to those facts and enquiry reports pertaining to the probationary officer. It is in such cases that Supreme Court has drawn a distinction between motive and foundation and held that where a report or internal enquiry of a department forms the foundation of termination of a probationary officer, then, in such cases principles of audi alteram partem have to be followed.'

 

First thing that you must do is to become a member of Employee's /Trad Unions e.g; CITU/INTUC/AITUC/BMS etc and then become properly informed.

 

Rest you can search google for material that you need.

 

 

M Sanjiv Kumar (consultant)     04 July 2016

Thanks for your reply. But i'm concerned about private organizations which rarely have unions. With few exceptions you will not find union culture in private organizations.

If i'm getting you right then every termination should be preceded by a Disciplianary Enquiry because for conformation of a probationar a report or a filled format has to be submitted by HOD to HR. And in this format both probationar &  his HOD have to sign. Process my slightly differ from organization to organization but the basic structure remains the same.

One interesting fact i would like to know that if a company is relieving you by terminating you and mentioning in the termination letter that your dues,three months salary in lieu of notice and other documents such as Form 16, Experience Certificate etc, will be processed after signing of termination letter by you then is this in accordence with labour law. Because in many cases companies may deposit the money but they're quite reluctant to give employement related documents. Then what an employee should do?

G.L.N. Prasad (Retired employee.)     04 July 2016

They're quite reluctant to give employement related documents.

 

They are bound to give under law as per practices and that is the reason every slip, orders etc., should be carefully preserved.

 

M Sanjiv Kumar (consultant)     10 July 2016

If employer gives Form 16, Service Certificate & Relieving Lettter and remaining  dues after more than two and half months but less than three months, as a result of persistant request via mail, then can the termination be challenged after getting all these documents and dues from employer as the termination was malafide and on fake grounds.On fake grounds because on termination letter it's writting that termination is for company's business interest but at the same time company is employing some other person in place of terminated employee, on one side it's laying off while on other side it's employing somebody in the same post, isn't this malafide and fake?

As above mentioned documents are very vital for future employment and employer intentionally delayed its processing, took two months to deliver them, can this ground be used in prosecuting the employer? Above mentioned documents have been given in the form of Attachment in the mail from the company, can employee ask company to deliver the ORIGINAL Copy of the documents to the employee's home address? 

Is employee losing his right to challenge his termination by accepting above mentioned dues and documents from company? Please advice.

Kumar Doab (FIN)     10 July 2016

 

"termination is for company's business interest "

The company may claim by interpretation  the separation of employee was for business interst. However shall have to prove on rcord that association with employee was against business interest.

 

"on one side it's laying off "

How come it is lay off?

It might be retrenchment.

 

"documents are very vital for future employment and employer intentionally delayed its processing, took two months to deliver them"

Damages may be possible for merits.

 

"can employee ask company to deliver the ORIGINAL Copy of the documents to the employee's home address"

Certainly.

 

"Is employee losing his right to challenge his termination by accepting above mentioned dues and documents from company"

NO.

 

Termination can be contested on merits.

 

IN case the employee is Workman ther is no limitation to approach the tribunal.

But why to delay!

Approach a very able counsel ASAP.

 

 

 

1 Like

M Sanjiv Kumar (consultant)     11 July 2016

Mr. Kumar, i'm very thankful to you for replying. Can retrenchment be done by paying few months salary in lieu of notice or prior notice should have been given before any kind of retrenchment? If retrenchment or lay off or termination has been done then there should've been some basis for that, and if there's some basis then can a show cause notice, in written form, should be given to the employee before going for his expulsion from the company. What's your opinion?

On what basis an employee can be considered workman or executive? Which law covers this aspect?

Kumar Doab (FIN)     12 July 2016

Pursue ID Act, Standing Orders (  Model/Certified), Industiral Employment Standing Ordesr Act, Service conditions/rules applicable in establishment and to you.............

Consult employee's unions of your trade and Trade Unions with which unions are affilitaed............

Consut a very able counsel specializing in labor/service matters with copies of all docs on record and your inputs............................Even if it is paid consultation. It shall be worth it. You will get considered opinion pertaining to your situation, options, remedies and merits in each option/remedy.

 

There is an option to search at LCI in Search option on bottom of right hand side.

 

You can search and read as much you want.

 

 

M Sanjiv Kumar (consultant)     24 July 2016

I asked, via e-mail, company to give employment related documents, Form 16 & other documents, as company for company's business interest terminated my services three months ago. And i intimated via e-mail to send original hard copies of  above mentioned documents to my home address since company at the time of termination gave nothing except termination letter, but company has neither replied to my mail nor sending those documents to my home address. Condition is such that in the absence of those documents i'm unable to apply for any other job.

What steps an employee can take to resolve this issue and can compensation be claimed for delay in issuing these documents?


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