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prashant1314 (HR Learner)     13 February 2013

Termination without domestic enquiry ?

Dear Seniors, Greetings of the day....!!! Are there any circumstances where the employee would be dismissed/ terminated without resorting / conducting domestic enquiry by the principal employer? Thanks in anticipation....



Learning

 6 Replies

darshana sawant (associate consultant)     13 February 2013

dear mr prashant,

 

For termination without enquiry, the grounds should be such that they warrant non conducting of enquiry, such as violence, danger to property, personnel etc.  In that case the misconduct can be proved before the court by specific application in that behalf.

KK (Sales Manager)     13 February 2013

Dear Sir,

 

                       One of my friend was terminated without any enquiry siting reasons as below

1) abusing collegues

2) Purposely not reporting to one of the directors

3) Transfering some sales data to her personal ID (which is not at all confidential as every sales person sends soft copy to the customers and take hard copy along with them while meeting customers)

The actual truth is that she was deliberately cornered by one of the directors for his dis-liking towards her.

May I know if an employee can be terminated without any enquiry or atleast a warning in writing.

Please advice.

 

Sudhir Kumar, Advocate (Advocate)     16 February 2013

given facts are not sufficient to justify termination without inquiry

Kumar sanja (employee)     18 February 2013

Dear Prashant1312.

said allegation constitute the clear cut chargesheet , hence holding of regular departmental enquiry is must and unescapable.

please provide detail information

 

type of company:commercial/industrial

type of employment ::probation/permanant employee  etc

duties of job::

 

whether he does any supervisiory duties subtantially, this is needed to distingugh your case whether falls under

ID ACT or SE ACT

Regards,

Ravi

Adv k . mahesh (advocate)     18 February 2013

and also from how many months you are working will also stands to strengthen the case and your position to decide where to file the case

Kumar Doab (FIN)     19 February 2013

Learned Experts/members have given valuable advice. Kindly follow it.

The right to hearing is a fundamental right (audi alteram partem). Under law, no person can be accused of anything without giving him proper opportunity of being heard. Principles of Natural Justice are part and parcel of civilised society and forms the very basis of Labor Laws in India. That is why Indian Employment Laws provide for conducting enquiries when employer observes that an employee has committed misconduct.

The days of Laissez-faire are gone.

{Laissez-faire- French, literally 'allow to do'}

In publications and teachings in various disciplines e.g. management laissez-faire is referred as situation that can lead to Chaos.

The practice of Laissez-faire if allowed it can once again lead to Chaos.

 

-- Supreme Court of India has remarked in case:

 

Supreme Court of India

Glaxo Laboratories vs THE PRESIDING OFFICER, LABOUR COURT MEERUT

 

In the days of laissez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct.

Standing orders providing for imposition of penalty on proof of `misconduct' should be construed strictly like penal statutes.

For a penalty to be imposed it must be quite clear that the case falls within both the letter and the spirit of the statute.

Under the Act, the employer is under an obligation to specify with precision those acts of omission and commission which would constitute misconduct. Penalty is imposed for misconduct. The workmen must know in advance which act or omission would constitute misconduct so as to be visited with penalty.

Sec. 5 requires the Certifying Officer to forward the copy of the draft standing order to the trade union, if any, of the workmen, or where there is no such trade union, to the workmen in such manner as may be prescribed, together with a notice in the prescribed form requiring them to submit their objections,

In the days of laissez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct.

Therefore, keeping in view the larger objective sought to be achieved by prescribing conditions of employment in certified

241

standing orders, the only construction one can put on clause 10 is that the various acts of misconduct therein set out would be misconduct

that everything which is required to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty.

 

-- It is felt that unless there is an enabling provision in the service rules, standing orders or a statue that governs the service conditions of the employee, the services of an employee should not be terminated without domestic inquiry.

 

Dismissal/termination any serious punishment without holding a domestic enquiry may be deemed to be illegal.

 

-- A contract of employment can be frustrated where there is a supervening event that renders the employer or the employee unable to perform his obligations under the contract.

Does these situations frustrate the employment contract?

 

It is a difficult question of fact whether the circumstances are sufficiently serious to warrant finding that the contract has been frustrated.

 

-- Are the situations mentioned, such that when enactments/acts/laws applicable to employment shall not apply and the guidance be needed to be taken from case laws? Different conclusions may be reached in similar facts.

 

Attached service rules “ Power Grid of India”, “Orchid School”

It is mentioned in service rules that Charge sheet is issued/inquiry be conducted………

Valuable advice of learned Experts/members is sought.


Attached File : 302200091 glaxo laboratories vs the presiding officer, labour ... on 6 october, 1983.pdf downloaded: 298 times

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