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dischargedemployee (Asst VP)     01 March 2013

Unfair discharge

I am an employee of a Pvt sector Bank. I was discharged by the Bank. the Bank claims that there is a complaint against me bya  female employee and that I had been calling her. However, they refuse to disclose the identity of the employee and the Show Cause notice was also very vague. i have not received the identity of the complainant let alone the copy of the complaint or any other evidence. My queries are as follows:

a) Can the company discharge me without providing me even the identity of the complainant? Is the company not duty bound to provide me the copy of complaint and other evidence?

b) Since the company absolutely refuses to provide me any documents, what are my legal options?

 

 



Learning

 6 Replies

Shashikant V. Patil (Lawyer)     01 March 2013

Now RTI Act also amended and covered Pvt sector under it. Go and seek the information you required under RTI Act.

1 Like

Sudhir Kumar, Advocate (Advocate)     01 March 2013

For shashikant Patil can you specify when such amendment is published in Gazette.

 

You can challange the discharge on the ground of violation of principles of natural justice and apoproach labour commissioner.

1 Like

dischargedemployee (Asst VP)     01 March 2013

To Mr Sudhir Kumar: Sir, since I am an Asst Vice President, can I approach the Labour Commissioner? Or do I need to approach the Courts?

Sudhir Kumar, Advocate (Advocate)     02 March 2013

Not Labour court.  Civil Court only.

Kumar Doab (FIN)     02 March 2013

Learned experts and members have given valuable advice. Kindly follow it.

Private organization are extra sensitive to protect and defend their interest and do resort to providing less/inadequate/insufficient information and employee gets burdened with the task of arranging the docs, records, evidences, proofs…..

The intention of such companies and their HR personnel is to dump the employee and let the employee come up with a court order and till then shun the liabilities.

Such employers believe and it is true that:

-Majority of the employees are ill informed and thus become sitting duck.

Plenty of them are wary of police, courts, and law suits. They have been drilled to believe that if they approach court of law they shall be branded litigants.

- Many of the employees do not agitate.

-Majority of the employees who contemplate to agitate if they are subjected to a drill of tantrums, give up and thus the chances of litigation and its consequences are reduced.

-A small fraction of the employees who are determined and agitate are dumped in safe custody of the courts.

The determined and properly informed employees, the employees who are defended by competent and experienced lawyers are victorious and bounce back.

Still negligible number of employees does not proceed further to dump the offenders in companies to correctional centers and the offender still roam around.

Thus the companies become recalcitrant.

The suffering of some employees is not mere a case, it is cause and if the lawyer of the employee has taken the case as a cause, the case is almost won.

There are lawyers who would take the employee under their wings.

The employee should find his lawyer.

Why should a harassed and suffering employee hesitate to go to court of law and lawful authority in the state?

 After all courts and State is  “Parens patriae or  "parent of the nation."

Banks are under CCTV surveillance. You may ask for the the CCTV footage of the event propped up by female employee in complaint be supplied and analyzed.

The bank may not yield to your request and you may need police officials to support you or a court order so hurry up before the bank deletes it. You would be having the bank’s policy on for how much time the CCTV footage is stored.

You should request in writing under acknowledgment to the o/o appointing authority, MD, Chairman of the bank, Company Secretary, Chairman of the board of directors, to allow examining your personnel file maintained by bank. Your lawyer may demand it in the court of law.

Bank may try to take a stand that the woman is involved and her identity should not be revealed however if you are thoroughly respected citizen and innocent bank should not entertain a false complaint even if complainant is a woman.

The bank must have conducted an inquiry and IO must have filed inquiry report.

The inquiry may be a sham.

You should have escalated your deftly structured contentions to appellate authority, and finally the chairman. Let them also either maintain a studied silence or provide half hearted replies.

You may be having the copies of service rules, HR policy, conduct rules, disciplinary policy, employee rules, harassment at work place, s*xual harassment policy of the bank, whistleblower policy of the bank, grievance redressesal policy/committee of the bank and look into it to escalate the matter citing these at appropriate time and in appropriate forum.

Banks are covered under SE Act. You may look into SE Act applicable to your state.

SE Act Inspector can examine and call for the file and records and you can obtain from Inspector, or peruse RTI route.

It i9s felt that the SE Act does not indiscriminate between workman and non workman and is applicable to all employees…..

 

e.g:

SE Act Delhi:

2. Definitions:

(5)  “commercial establishment” means…………… and premises in which

business of banking….

(7)  “employee” means a person wholly or principally employed, whether directly or

otherwise, and whether for wages……

(8)  “employer” means the owner of any establishment……… means the manager, agent or representative of such owner

30. Notice of Dismissal.—(1) ………. Provided that such notice shall not be necessary where the services of such employee are dispensed with for misconduct, after giving him an opportunity to explain the charge or charges alleged against him in writing.

(c) Acts and omissions constituting misconduct

For the purpose of section 30, for the term, “misconduct” reference be made to Rule 13 of the Delhi Shops and Establishments Rules but the list is not exhaustive in view of the word ‘includes’.

35.  INSPECTION OF REGISTERS AND CALLING FOR INFORMATION

37.  POWERS AND DUTIES OF INSPECTOR

41.  WILFULLY MAKING FALSE ENTRIES.

42.  PENALTY FOR OBSTRUCTING INSPECTOR.

Majority of banks have their HO at Mumbai. It is usually mentioned in appointment letter that jurisdiction of the courts shall be say Mumbai…(or HO of the company).

So you may thus become eligible to agitate at Mumbai.

Have you ever written to your MD to supply you the certified copy of the standing orders of the company extended to your position and/or model standing orders as applicable to the company?

Let them state that standing orders are not applicable to the company or are not framed and certified or are not extended to your designation or model standing orders are also not applicable to the company.

The more the company deny more they shall defy the principle of natural justice.

It is felt that SE Act Bombay is employee friendly:

38.  ………Inspector under SE Act Bombay shall be the Wages Inspector (as in Payment of Wages Act) for all employees.

[З8 А. Application of Act VIII of 1923 to employees of establishment.-The provisions of the Workmen's Compensation Act,

^[ЗВ-В.  Application of Industrial Employment (Standing Orders) Act to establishments.-The  provisions of the Industrial Employment (Standing Orders) Act,  1946,  in its application to the State of Maharashtra [(hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall,  mutatis rnuimdis,  apply to  all establishments wherein fifty or more employees are employed and to which this Act applies, as if they were industrial establishment within the meaning of the said Act.

(Implies if company is under SE Act and if it has not framed its standing orders the model standing orders shall apply to all employees. Model Standing Orders are attached. You can also download from Dept. of Labor Maharashtra/Bombay website also. Thus while you can approach Inspector under SE Act you should also be eligible to approach Labor Inspector/ALC.)

{ Model Standing Orders: 3.               Tickets,  11.         Payment of wages,  13.       Termination of employment,  15.      Complaints, 17.  Liability of 17[employer].--, 18.          Exhibition of standing orders.-)}

 51.    Employer [and manager  to produce registers, records etc.  for inspection.

( Implies that if you lodge a complaint the Inspector can not check all records, your personnel file but can take these to his office. You may obtain certified copies and even peruse RTI route.)

Moreover the Inspector is under obligation report every two months as given in Sec.66

бб. Notice    of termination of service

Kindly approach a lawyer/law firm specializing in cases pertaining to SE Act, and get the points discussed above clarified.

You may access Dept. of Labor website/SE Inspectorate and thus obtain latest version of the enactment and contact details of the Inspector.

The enactment is effective and many of the employees have obtained relief including in case of termination.

You may go thru various threads initiated by employees at LCI.

Or you may have to approach civil court.

Company may plead specific relief Act. Your lawyer can update you on merits and remedies in all eventualities.

It shall be appropriate to firm up the steps and proceed under the expert guidance of your lawyer.

Kindly keep this thread updated.

Valuable advice of learned experts/members is sought.


Attached File : 292971723 delhi shops & establishments act, 1954.pdf, 292971723 the bombay shops establishments act.pdf, 292971723 model%20standing%20orders.doc downloaded: 137 times
1 Like

Sudhir Kumar, Advocate (Advocate)     03 March 2013

Ther ecan be no better eleboration


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