Hi Madhu Sir, Can you please share your view points as well? I have sent you a private message to you. Thanks.
From India, Patna
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All the members have shared their views, and I also support them and strongly say that the termination is illegal. There can be a clause in the appointment order that declines the rights of the employee, but that need not be legally enforceable. In your case also, the termination clause is violative of principles of natural justice.
It is true that there can be clauses that will permit an employer to terminate the contract of employment without notice and without assigning any reason during probation, but the same cannot be extended beyond probation. Again, invoking such clauses against an employee who has had a service of one year or 240 days is against the provisions of the ID Act. Obviously, if you were not an employee with functional responsibilities of a manager, like the right to appraise the performance of your subordinates, initiate disciplinary action against your subordinates, or even approve the leaves of your subordinates, you will certainly fall within the scope of a workman and get the protection of the ID Act. In such a scenario, unless otherwise provided in the Certified Standing Orders (if any), you need not get a confirmation of employment after the prefixed probation period, even though the general rule is that there will not be any automatic confirmation after the probation period.
There are two options available to you: either to file a complaint against the organization and fight for justice or to get a clean certificate, relieve, and join some other company. If you opt for the former, you may not get a good opportunity because any prospective employer would take it as an 'offense,' and the background verification agent will also advise him accordingly. If you take the second option, you can easily find another employer and start working with him. But remember that all private establishments are similar to your current employer only. And that is why people unite and bargain collectively. In an organization where the employees have a Union, this kind of HR policies will not be available. After retiring from a private organization, when I started a Consultancy service, I had the opportunity to address various employers' forums, and during the interactive sessions, all they wanted to ask is "how can we eliminate employees?" and when I answer that "you can eliminate employees if you close down the unit and deposit the money in a bank and gain interest and not profits!" If they don't get profits, will they continue the business? NO.
From India, Kannur
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4482It is true that there can be clauses that will permit an employer to terminate the contract of employment without notice and without assigning any reason during probation, but the same cannot be extended beyond probation. Again, invoking such clauses against an employee who has had a service of one year or 240 days is against the provisions of the ID Act. Obviously, if you were not an employee with functional responsibilities of a manager, like the right to appraise the performance of your subordinates, initiate disciplinary action against your subordinates, or even approve the leaves of your subordinates, you will certainly fall within the scope of a workman and get the protection of the ID Act. In such a scenario, unless otherwise provided in the Certified Standing Orders (if any), you need not get a confirmation of employment after the prefixed probation period, even though the general rule is that there will not be any automatic confirmation after the probation period.
There are two options available to you: either to file a complaint against the organization and fight for justice or to get a clean certificate, relieve, and join some other company. If you opt for the former, you may not get a good opportunity because any prospective employer would take it as an 'offense,' and the background verification agent will also advise him accordingly. If you take the second option, you can easily find another employer and start working with him. But remember that all private establishments are similar to your current employer only. And that is why people unite and bargain collectively. In an organization where the employees have a Union, this kind of HR policies will not be available. After retiring from a private organization, when I started a Consultancy service, I had the opportunity to address various employers' forums, and during the interactive sessions, all they wanted to ask is "how can we eliminate employees?" and when I answer that "you can eliminate employees if you close down the unit and deposit the money in a bank and gain interest and not profits!" If they don't get profits, will they continue the business? NO.
From India, Kannur
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Thanks Madhu Sir for as always very insightful point of view. Out of 2 options which you suggested me, I have opted for 1st one i. e. To fight for justice. Thanks again.
From India, Patna
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From India, Patna
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Hi KK,
The case laws you have referred to relate to state-owned enterprises. Here, judges, while giving judgment, relied on Art 14 of the Indian Constitution, which is not applicable to private IT companies. Can you please let me know of any case laws related to private companies.
Hi Madhu Sir, you are also requested to help me in this regard.
Thanks.
From India, Patna
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The case laws you have referred to relate to state-owned enterprises. Here, judges, while giving judgment, relied on Art 14 of the Indian Constitution, which is not applicable to private IT companies. Can you please let me know of any case laws related to private companies.
Hi Madhu Sir, you are also requested to help me in this regard.
Thanks.
From India, Patna
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Article 14 is not confined to PSUs when it is referred to in connection with employment. IT companies are also expected to extend rights to their employees. If you are prepared to fight against the employer, you can file a complaint before the appropriate authority under the ID Act. You will get references similar to yours from various online journals. Your stand should be denial of natural justice and nothing else. Since the order is stigmatic, you can include that also in the complaint.
From India, Kannur
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From India, Kannur
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Hi Madhu Sir and Learned Members,
I have served my employer a legal notice digitally signed through email. Tomorrow, I will send it to their registered office.
I just want to know if I can amend my notice (1 point which I missed) and send it again to them through email and by post?
Thanks
From India, Patna
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I have served my employer a legal notice digitally signed through email. Tomorrow, I will send it to their registered office.
I just want to know if I can amend my notice (1 point which I missed) and send it again to them through email and by post?
Thanks
From India, Patna
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You can send a supplementary notice or keep the point for discussion when you get an opportunity to discuss it before the conciliation officer. I would prefer the second one rather than sending a revised notice.
From India, Kannur
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From India, Kannur
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Hi Madhu Sir/Other Learned Members,
I received a reply from my employer to my legal notice. The central points of their reply were:
1. They are not a 'State,' so the principles of Natural Justice will not be applied to them. In my legal notice, I argued that their employment contract is an 'unconscionable contract,' to which they responded:
"Further, the frivolous plea that the clauses of the Agreement are 'unconscionable' is contrary to the provisions of the ICA. The Agreement, especially Clauses 5 and 6, grants both you and the Company the right to terminate the Agreement. Therefore, these clauses are legally binding and enforceable as per the ICA. Lastly, the plea that there has been a violation of your 'fundamental rights' under the Constitution of India and a violation of the 'principles of natural justice' is also untenable. Fundamental rights and the principle of natural justice, by their very nature, are enforceable only against the instrumentalities of the state and not against private parties like the Company in the present case."
What is their legal standing? I have already filed a complaint through the Samadhan portal since they did not reply to me within the specified time period.
Thanks.
From India, Patna
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I received a reply from my employer to my legal notice. The central points of their reply were:
1. They are not a 'State,' so the principles of Natural Justice will not be applied to them. In my legal notice, I argued that their employment contract is an 'unconscionable contract,' to which they responded:
"Further, the frivolous plea that the clauses of the Agreement are 'unconscionable' is contrary to the provisions of the ICA. The Agreement, especially Clauses 5 and 6, grants both you and the Company the right to terminate the Agreement. Therefore, these clauses are legally binding and enforceable as per the ICA. Lastly, the plea that there has been a violation of your 'fundamental rights' under the Constitution of India and a violation of the 'principles of natural justice' is also untenable. Fundamental rights and the principle of natural justice, by their very nature, are enforceable only against the instrumentalities of the state and not against private parties like the Company in the present case."
What is their legal standing? I have already filed a complaint through the Samadhan portal since they did not reply to me within the specified time period.
Thanks.
From India, Patna
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I think that you may file a written complaint even though you have already filed a complaint before the appropriate authority through their online portal. Then you can talk to the employer in the presence of the Labour Officer, ALC, as the case may be, and till then there should not be any communication from your side. If the employer is represented by any advocate, object to that, quoting section 36(3) of the ID Act which says that in any legal proceeding before the Conciliation officer or Labour Court, a legal practitioner cannot be represented. Then it will become an open forum to discuss the relationship between the employee and the employer.
From India, Kannur
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From India, Kannur
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Hi,
If you are an executive working in a company and the management does not want you to continue, there is no point in fighting against the company. If you are young, it is strongly suggested to look for an alternate job and proceed with your career. If you file a case and assume you win, do you think you can come back to work in the company? Management will have ample ways to corner you and make you resign. Your career could be ruined. Instead, send a gentle communication to management, get properly relieved from the company, settle all dues, and obtain your service certificate. In future reference checks, they may provide a positive report if you maintain a good relationship. I strongly suggest not pursuing litigation as it could ruin your life.
Regards,
From India, Madras
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If you are an executive working in a company and the management does not want you to continue, there is no point in fighting against the company. If you are young, it is strongly suggested to look for an alternate job and proceed with your career. If you file a case and assume you win, do you think you can come back to work in the company? Management will have ample ways to corner you and make you resign. Your career could be ruined. Instead, send a gentle communication to management, get properly relieved from the company, settle all dues, and obtain your service certificate. In future reference checks, they may provide a positive report if you maintain a good relationship. I strongly suggest not pursuing litigation as it could ruin your life.
Regards,
From India, Madras
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Termination-emp loyment_563.pdf
Termination letter.doc