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Shirish Tiwari (customer care executive)     21 February 2013

Wrongfull termination

I am an outbound  employee for Tata business support service. had given my resignation to team leader on 29th dec which was not accepted later on feb 4th again i gave medical reason with reports then also they forced me to work for 15 more days. under this 15 days i made a call from work phone to customer care relaince as provided in data which call duration was 90mins totally dead call. And now i m being terminated for this. my past performance, i was the topper of my campaign. my fight is totally that company should provide with resignation not termination. I in no condition want termination after 17months of my service. please guide me what can i do?



Learning

 5 Replies

Sudhir Kumar, Advocate (Advocate)     21 February 2013

what was teh phone call you made. why you made.

Shirish Tiwari (customer care executive)     21 February 2013

out job is that we are given data of customers we try to get back the customers of tatasky. so in data they provide us with phone number and sub id. And they force us to get a talktime of  450mins daily . in this condition one of the number was of relaince customer care. I dialled this number but i didn't select any option then this call was totally silent continued till 90 mins. i spoke to no one and no one spoke from other side on the call.

Kumar Doab (FIN)     23 February 2013

Is your team leader your appointing authority, authority passed by company board to accept resignation, or an intermediate in HR process to recommend acceptance? Do you have copy of such flow chart? Or is he a manager, agent of the employer as per provisions of SE Act applicable to your state? You may look into the registration certificate displayed on notice board/reception/near gate and you shall find the details.

Did you give the resignation by hand and did you obtain/or he issued acknowledgment in writing?

Did your TL issue refusal acceptance of resignation in writing?

The reporting/superior authority is expected to forward the resignation (ideally with a copy to employee) to authority that is empowered to accept.

Did your TL forward your resignation at all?

Did you submit medical leave under acknowledgment?

The penalty of termination is too harsh. Company might have deducted up to 2% of wages.

But you were to be relieved on the expiry of the notice period. Hence this action of the company needs to be justified by company.

You are in which state? IESO Act might be applicable to your establishment and you may look into standing orders and list of misconduct.

Model Standing Orders:

13.  Termination of employment,

14.  Disciplinary action for misconduct:

.--(1) A workman may be fined up to two per cent of his wages in a month for the following acts and omissions, namely:

(3)   The following acts and omissions shall be treated as misconduct

15.  Complaints.--

17.       Liability of 17[employer].--, 18.          Exhibition of standing orders.--

 

You may look into SE Act applicable to your state.

SE Act e.g; Se Act Delhi:

(8)     “employer” means the owner…………….means the manager, agent or representative of such owner in the said business;

30.    NOTICE OF DISMISSAL:

1) No employer shall dispense with the services of an employee who has been in his continuous employment for not less than three months, without giving such person at least one month’s notice in writing or wages in lieu of such notice:

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.

(3) In any case instituted for a contravention of the provision of sub-section (1), if a Magistrate is satisfied that an employee had been dismissed without any reasonable cause……….

COMMENTS

(a)    Applicability of section 30

In the absence of any standing orders……….

the service of an employee who has put in more than three months’ continuous service cannot be terminated without giving him at least one month’s notice in writing or one month’s wages in lieu of such notice except where the termination of service is for misconduct.

It may also be pointed out that if the employer has preferred to dismiss or discharge an employee on giving one month’s notice or one month’s wages in lieu of such notice, it matters little whether the services are dispensed with for a minor misconduct or a major misconduct……………………… it is incumbent upon him to hold an enquiry  and then to find the employee guilty of any of the acts of misconduct

(b)   Acts and omissions constituting misconduct

……..That being so, it is difficult to see how the Delhi Shops and Establishments Act, 1954 is a complete Code in itself, giving to an employee, all the reliefs which he can get as a result of an award given on a reference made under section 10 of the Industrial Disputes Act and how section 30 of the Delhi Shops and Establishments Act, 1954 takes away the power of the Government to make the reference to a Labour Court or Industrial Tribunal and the jurisdiction of the Labour Court or Tribunal is in no way affected even by sub-section (3) which deals with  the grant of compensation. Further the expression, “under any other law” occurring in section 24 of the Delhi Shops and Establishments Act, 1954, clearly means not “under a law replaced by the Delhi Shops and Establishments Act, 1954” but under any law which is operative and in force at the time of the coming into force of the

33.RECORDS.

(d) Can an Inspector require an employer to produce the  record in his office for inspection?

33.    INSPECTION OF REGISTERS AND CALLING FOR INFORMATION

41.    WILFULLY MAKING FALSE ENTRIES

42.    DETERMINATION OF EMPLOYER FOR THE PURPOSE OF THIS ACT.

You may approach a competent and experienced labor consultant/service lawyer with copies of all of your documents, give inputs in person and spend quality time to understand the nuisances and proceed under expert advice of your lawyer.

Your lawyer may opine that you fall within the category of workman and ID can be invoked.

Company may yield to legal notice by your lawyer, Demand notice, Inspector under SE Act, during conciliation proceedings……..

You have the option to approach civil court.


Attached File : 83715949 model%20standing%20orders.doc, 83715949 delhi shops & establishments act, 1954.pdf downloaded: 130 times
1 Like

Shirish Tiwari (customer care executive)     27 February 2013

thanks for the advice sir :) this will definetly  help me out . I m working for TATA business support service hyderabad and i just gave my resignation in written to the teamleader which he didn't forward  for aproval.  And they had just terminated for the call made in which there was no conversation at all.  this was my first mistake or warning you can say and i m working for since 1 august 2011 . they force us to give connected minutes of 450 mins by making us work for 10:30 hours and after which they give us 2 weekly offs. the torture here is not only faced by me but also by others

if you can help me to find a legal advisor for hyderabad it will be more helpfull sir

Kumar Doab (FIN)     27 February 2013

Did your company issue any charge sheet or inquiry and mentioned any reason of termination in order of termination?

If you wish to avail the services of LCI lawyer you can conduct search at:

https://www.lawyersclubindia.com/lawyers_search/#.US2cskrxG8A

Your near and dear ones can also guide to you a competent and experienced labor consultant/service lawyer.

You may visit your lawyer in person and understand the merits in your case, and proceed as deemed fit ay your end under expert advice of your lawyer.

Another employee had initiated a highly informative thread at LCI under SE Act AP at following link:

https://www.lawyersclubindia.com/forum/Suit-claiming-damages-and-criminal-case-60347.asp#.USxv1kpMe8A

You may go thru it.

SE Act AP ( YOu may obtain the latest version from Dept. of Labor website of AP or buy from market):

2. Definitions:

(5) commercial establishment means…..

(5) commercial establishment means………

(9) employer means a person having charge of or owning or having ultimate control over the affairs of an establishment and includes the Manager, agent or other person acting in the general management or control of an establishment;

(23) Wages means every remuneration, whether by way of salary, allowance, or otherwise expressed in terms of money or capable of being so expressed

34. Compulsory enrolment of employees to Insurance cum savings scheme :-

35. Responsibility for payment of wages :-

36. Fixation of wage period :-

37. Wages for overtime work :

38. Time of payment of wages :-

40. Deductions which may be made from wages :-

41. Fines :-

43. Deductions for damage or loss

47. Conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation, disablement, etc., and payment of subsistence allowance for the period of suspension :-

(1) No employer shall, without a reasonable cause terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee atleast one month s notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for a period of not less than one year, a service compensation amounting to fifteen days average wages for each year of continuous employment:

Provided that every termination shall be made by the employer in writing and a copy of such termination order shall be furnished to the Inspector having jurisdiction over the area within three days of such termination.

(4) Where a service compensation is payable under this section to an employee, he shall be entitled to receive his wages from the date of termination or cessation of his services until the date on which the service compensation so payable is actually paid.

(6) Where an employee is placed under suspension pending enquiry into grave misconduct the employer shall pay a subsistance allowance

 

48. Appointment of authority to hear and decide appeals arising out of termination of services :-

CHAPTER IX
Appointment Powers and Duties etc., of the authority to hear and decide claims relating to Wages etc., of employees in Establishments

50. Appointment of authority to hear and decide claims relating to wages etc.

51. Claims arising out of deductions from wages or delay in payment of wages etc., and penalty for malicious or vexatious claims

52. Single application in respect of claims from unpaid group

53. Appeal :-

54. Conditional attachment of property of employer

63. Penalty for obstructing Inspector etc

68. Maintenance of registers and records and display of notices, etc

72. Rights and privileges under other laws etc., not affected

 

Your lawyer may opine that you fall within the category of workman and ID can be invoked. Designation alone does not decide employee is a workman or not.

Company may yield to legal notice by your lawyer, Demand notice by conciliation officer, Notice by Inspector under SE Act, Notice by Inspector under THE PAYMENT OF WAGES ACT ……..

Or you may approach civil court.

Valuable advice of learned experts /members is sought.


Attached File : 725229179 se act ap.doc downloaded: 69 times

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