Hi Respected Members,
I have been employed by an IT company based out of Mumbai as a Technical Recruiter. Three days ago, while I was working from home (WFH), they blocked my account, and HR called me and informed me that I have been terminated due to a business decision.
Today, I received the termination email, and an excerpt of that is below:
"As per clauses 5 and 6 of your appointment letter, we regret to inform you that your services from Chenoa have been terminated. An extract of which has been mentioned below.
Clause 5 (extract): The term of this Agreement is “at-will.” Either party may terminate for any reason or no reason, with or without cause.
Clause 6 (extract): “The company may, at its discretion, terminate your services immediately by paying one month’s salary in lieu of the notice period.”
In my opinion, this termination is illegal for the following reasons:
1. They have violated the principles of Natural Justice.
2. I am a workman under section 2(s) of the Industrial Dispute Act 1947.
3. The ID Act 1947 will apply to the company since it is well-settled that an IT company is an industry.
4. The reference to clause 5 of the appointment letter citing an agreement 'at will' and termination for any reason or no reason, with or without cause, is not rational and does not seem to be a legal contract.
Kindly enlighten me with your wisdom on my legal position and the legal remedies available to me.
Thanks,
Rahul
From India, Patna
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I have been employed by an IT company based out of Mumbai as a Technical Recruiter. Three days ago, while I was working from home (WFH), they blocked my account, and HR called me and informed me that I have been terminated due to a business decision.
Today, I received the termination email, and an excerpt of that is below:
"As per clauses 5 and 6 of your appointment letter, we regret to inform you that your services from Chenoa have been terminated. An extract of which has been mentioned below.
Clause 5 (extract): The term of this Agreement is “at-will.” Either party may terminate for any reason or no reason, with or without cause.
Clause 6 (extract): “The company may, at its discretion, terminate your services immediately by paying one month’s salary in lieu of the notice period.”
In my opinion, this termination is illegal for the following reasons:
1. They have violated the principles of Natural Justice.
2. I am a workman under section 2(s) of the Industrial Dispute Act 1947.
3. The ID Act 1947 will apply to the company since it is well-settled that an IT company is an industry.
4. The reference to clause 5 of the appointment letter citing an agreement 'at will' and termination for any reason or no reason, with or without cause, is not rational and does not seem to be a legal contract.
Kindly enlighten me with your wisdom on my legal position and the legal remedies available to me.
Thanks,
Rahul
From India, Patna
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I want to add that I am permanent employee of that company with 1.7 yrs of experience.
From India, Patna
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From India, Patna
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From the facts narrated and the extract of the termination clause in the service agreement, it appears to remind us of the infamous Henry VIII clause. The Supreme Court of India, in the celebrated judgments in Brijonath Ganguly as well as Desh Bandhu Ghosh cases, has firmly held such clauses to be arbitrary and unconstitutional. It appears you have a strong case to challenge the termination.
From India, Mumbai
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1593From India, Mumbai
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Hi KK!HR, Thanks for your valuable inputs. Can you please elaborate how I go about proving that clause 5 is unlawful hence employment contract itself is illegal? I would be grateful to you.
From India, Patna
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From India, Patna
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Kindly refer case laws namr in full so that I can search on indiakannon and read it myself. Thanks.
From India, Patna
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From India, Patna
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The process of proving the illegality of clause 5 is through the Courts of law. You will have to avail the services of a competent advocate practicing in Labour & Service matters and move the Court. I feel you have a good case.
The details of the case law I referred to are given below. These are from the 1980s and your advocate would be able to provide you with many more:
1. CENTRAL INLAND WATER TRANSPORT CORPORATION LTD. & ANR. ETC. Vs. BROJO NATH GANGULY & ANR.
DATE OF JUDGMENT: 06/04/1986, 1986 AIR SC 1571
2. WEST BENGAL STATE ELECTRICITY BOARD & ORS. Vs. DESH BANDHU GHOSH AND ORS.
DATE OF JUDGMENT: 26/02/1985, 1985 AIR SC 722
From India, Mumbai
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The details of the case law I referred to are given below. These are from the 1980s and your advocate would be able to provide you with many more:
1. CENTRAL INLAND WATER TRANSPORT CORPORATION LTD. & ANR. ETC. Vs. BROJO NATH GANGULY & ANR.
DATE OF JUDGMENT: 06/04/1986, 1986 AIR SC 1571
2. WEST BENGAL STATE ELECTRICITY BOARD & ORS. Vs. DESH BANDHU GHOSH AND ORS.
DATE OF JUDGMENT: 26/02/1985, 1985 AIR SC 722
From India, Mumbai
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Hi, good day.
Clause error! That company may correct that in the future.
On what grounds can a company terminate you? Kindly check that reason with a mail or letter format as it acts as proof.
Because the company's point of view matters. If you breach any contract, you can't proceed to the next level.
If you didn't breach any company's policies, then you can lead this case.
Policy errors are highlighted only for policy correction; they won't help you regain employment.
If the company emphasizes strong confidential data and highly secured, strong policies, then the case will be drawn out once again.
From India, Chennai
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Clause error! That company may correct that in the future.
On what grounds can a company terminate you? Kindly check that reason with a mail or letter format as it acts as proof.
Because the company's point of view matters. If you breach any contract, you can't proceed to the next level.
If you didn't breach any company's policies, then you can lead this case.
Policy errors are highlighted only for policy correction; they won't help you regain employment.
If the company emphasizes strong confidential data and highly secured, strong policies, then the case will be drawn out once again.
From India, Chennai
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Hi Azfar,
Thanks for your valuable suggestion. HR called me and informed me that "you are being terminated due to business call." I have documented this and sent them a summary of our discussion, looping in the company CEO, who did not contest it. Please, do not forget that they did not follow the principles of Natural Justice. Terminating a worker will likely result in an "Industrial Dispute." According to sec 25 (F) of the Industrial Dispute Act 1947, before terminating a worker, they must submit an application to the appropriate government and provide a copy to the employee they intend to terminate. Therefore, they have made a mockery of all due process of law and procedures established by law.
They first disabled my account and then called me to coerce me into resigning. In doing so, they have violated article 21 of the Indian Constitution. They cannot simply terminate a worker based on their whims and fancies.
From India, Patna
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Thanks for your valuable suggestion. HR called me and informed me that "you are being terminated due to business call." I have documented this and sent them a summary of our discussion, looping in the company CEO, who did not contest it. Please, do not forget that they did not follow the principles of Natural Justice. Terminating a worker will likely result in an "Industrial Dispute." According to sec 25 (F) of the Industrial Dispute Act 1947, before terminating a worker, they must submit an application to the appropriate government and provide a copy to the employee they intend to terminate. Therefore, they have made a mockery of all due process of law and procedures established by law.
They first disabled my account and then called me to coerce me into resigning. In doing so, they have violated article 21 of the Indian Constitution. They cannot simply terminate a worker based on their whims and fancies.
From India, Patna
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And moreover, Afzar, I don't feel there is any need for me to email the company about the reason for the termination. It's abundantly clear that they didn't want to provide any reason since in the termination email they clearly mentioned that "you are being terminated as per clause 5," and clause 5 clearly mentions termination with or without a reason.
From India, Patna
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From India, Patna
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Yes, the action of the employer casts a stigma upon you. As such, it is imperative that the employer ought to have followed the due process before the termination of the employee.
From India, Kochi
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From India, Kochi
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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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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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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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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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Hi Rahul,
It's recommended to consult with a labor lawyer to get advice tailored to your specific situation. However, I can offer some general information that might help you understand your situation better.
Review Employment Contract:
Carefully review your employment contract, specifically focusing on the clauses mentioned in the termination email (clauses 5 and 6). If these clauses are clearly outlined in your contract, they may have legal standing.
Industrial Disputes Act, 1947:
The Industrial Disputes Act provides certain protections to employees in India. While the Act does allow for termination, it also outlines certain conditions and procedures that employers must follow. It's crucial to determine if the termination complies with the provisions of this Act.
Natural Justice Principles:
Violation of natural justice principles could be a ground for challenging the termination. These principles include the right to be heard and the right to a fair and unbiased decision. If you believe that these principles were not followed, it might be worth discussing this with a legal professional.
Notice Period and Compensation:
If your appointment letter specifies a notice period, and the company is terminating you with immediate effect by paying one month's salary in lieu of notice, it's essential to check if this aligns with the terms outlined in your employment contract.
Legal Consultation:
Given the complexities of employment law, it is advisable to consult with a labor lawyer who can assess your specific situation. They can provide guidance on the legality of the termination and potential remedies available to you.
Documentation:
Ensure that you have copies of all relevant documents, including your appointment letter, termination letter, and any communication related to the termination. These documents will be important if you decide to pursue legal action.
Company Policies:
Check if there are any company policies that might impact the termination process. Sometimes, internal policies can influence the validity of a termination.
Labor Court:
If you believe that your termination is unjust and unlawful, you may consider approaching the labor court for redressal. However, this step should be taken after consulting with a legal professional.
Each employment situation is unique, and the advice of a qualified labor lawyer is crucial for understanding your specific circumstances and exploring available remedies.
Thanks.
From India, Bangalore
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It's recommended to consult with a labor lawyer to get advice tailored to your specific situation. However, I can offer some general information that might help you understand your situation better.
Review Employment Contract:
Carefully review your employment contract, specifically focusing on the clauses mentioned in the termination email (clauses 5 and 6). If these clauses are clearly outlined in your contract, they may have legal standing.
Industrial Disputes Act, 1947:
The Industrial Disputes Act provides certain protections to employees in India. While the Act does allow for termination, it also outlines certain conditions and procedures that employers must follow. It's crucial to determine if the termination complies with the provisions of this Act.
Natural Justice Principles:
Violation of natural justice principles could be a ground for challenging the termination. These principles include the right to be heard and the right to a fair and unbiased decision. If you believe that these principles were not followed, it might be worth discussing this with a legal professional.
Notice Period and Compensation:
If your appointment letter specifies a notice period, and the company is terminating you with immediate effect by paying one month's salary in lieu of notice, it's essential to check if this aligns with the terms outlined in your employment contract.
Legal Consultation:
Given the complexities of employment law, it is advisable to consult with a labor lawyer who can assess your specific situation. They can provide guidance on the legality of the termination and potential remedies available to you.
Documentation:
Ensure that you have copies of all relevant documents, including your appointment letter, termination letter, and any communication related to the termination. These documents will be important if you decide to pursue legal action.
Company Policies:
Check if there are any company policies that might impact the termination process. Sometimes, internal policies can influence the validity of a termination.
Labor Court:
If you believe that your termination is unjust and unlawful, you may consider approaching the labor court for redressal. However, this step should be taken after consulting with a legal professional.
Each employment situation is unique, and the advice of a qualified labor lawyer is crucial for understanding your specific circumstances and exploring available remedies.
Thanks.
From India, Bangalore
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Hi Rahul,
It's recommended to consult with a labor lawyer to get advice tailored to your specific situation. However, I can offer some general information that might help you understand your situation better.
Review Employment Contract:
Carefully review your employment contract, specifically focusing on the clauses mentioned in the termination email (clauses 5 and 6). If these clauses are clearly outlined in your contract, they may have legal standing.
Industrial Disputes Act, 1947:
The Industrial Disputes Act provides certain protections to employees in India. While the Act does allow for termination, it also outlines certain conditions and procedures that employers must follow. It's crucial to determine if the termination complies with the provisions of this Act.
Natural Justice Principles:
Violation of natural justice principles could be a ground for challenging the termination. These principles include the right to be heard and the right to a fair and unbiased decision. If you believe that these principles were not followed, it might be worth discussing this with a legal professional.
Notice Period and Compensation:
If your appointment letter specifies a notice period, and the company is terminating you with immediate effect by paying one month's salary in lieu of notice, it's essential to check if this aligns with the terms outlined in your employment contract.
Legal Consultation:
Given the complexities of employment law, it is advisable to consult with a labor lawyer who can assess your specific situation. They can provide guidance on the legality of the termination and potential remedies available to you.
Documentation:
Ensure that you have copies of all relevant documents, including your appointment letter, termination letter, and any communication related to the termination. These documents will be important if you decide to pursue legal action.
Company Policies:
Check if there are any company policies that might impact the termination process. Sometimes, internal policies can influence the validity of a termination.
Labour Court:
If you believe that your termination is unjust and unlawful, you may consider approaching the labor court for redressal. However, this step should be taken after consulting with a legal professional.
Each employment situation is unique, and the advice of a qualified labor lawyer is crucial for understanding your specific circumstances and exploring available remedies.
From India, Bangalore
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It's recommended to consult with a labor lawyer to get advice tailored to your specific situation. However, I can offer some general information that might help you understand your situation better.
Review Employment Contract:
Carefully review your employment contract, specifically focusing on the clauses mentioned in the termination email (clauses 5 and 6). If these clauses are clearly outlined in your contract, they may have legal standing.
Industrial Disputes Act, 1947:
The Industrial Disputes Act provides certain protections to employees in India. While the Act does allow for termination, it also outlines certain conditions and procedures that employers must follow. It's crucial to determine if the termination complies with the provisions of this Act.
Natural Justice Principles:
Violation of natural justice principles could be a ground for challenging the termination. These principles include the right to be heard and the right to a fair and unbiased decision. If you believe that these principles were not followed, it might be worth discussing this with a legal professional.
Notice Period and Compensation:
If your appointment letter specifies a notice period, and the company is terminating you with immediate effect by paying one month's salary in lieu of notice, it's essential to check if this aligns with the terms outlined in your employment contract.
Legal Consultation:
Given the complexities of employment law, it is advisable to consult with a labor lawyer who can assess your specific situation. They can provide guidance on the legality of the termination and potential remedies available to you.
Documentation:
Ensure that you have copies of all relevant documents, including your appointment letter, termination letter, and any communication related to the termination. These documents will be important if you decide to pursue legal action.
Company Policies:
Check if there are any company policies that might impact the termination process. Sometimes, internal policies can influence the validity of a termination.
Labour Court:
If you believe that your termination is unjust and unlawful, you may consider approaching the labor court for redressal. However, this step should be taken after consulting with a legal professional.
Each employment situation is unique, and the advice of a qualified labor lawyer is crucial for understanding your specific circumstances and exploring available remedies.
From India, Bangalore
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@mailrsr, please read in detail the replies that I have made here. The pros and cons were explained to him in detail, and none of us is in favor of legal action against the employer. However, if an employee believes that justice should not be denied, we should support him.
From India, Kannur
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From India, Kannur
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Hi Madhu Sir,
What if my employer sends a lawyer in disguise as an employer of another company in the conciliation process? Many companies in the IT sector employ lawyers to handle legal issues. If this happens, how should these issues be tackled?
The second part of my question is whether Indian law allows foreigners working in a company as legal officers, who have taken over my company, to participate in the conciliatory process?
Thanks.
From India, Patna
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What if my employer sends a lawyer in disguise as an employer of another company in the conciliation process? Many companies in the IT sector employ lawyers to handle legal issues. If this happens, how should these issues be tackled?
The second part of my question is whether Indian law allows foreigners working in a company as legal officers, who have taken over my company, to participate in the conciliatory process?
Thanks.
From India, Patna
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Hi Madhu Sir, My pervious post was pertaining to Sec 33(2) of ID Act. Thanks.
From India, Patna
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From India, Patna
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You can challenge if any outsider is appointed to defend a case before the labor officer. If the person represented is not known to you, you can ask for his identity to be disclosed before the officer. If he is an advocate, he cannot conceal his identity.
From India, Kannur
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From India, Kannur
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All Respected Members,
My company keeps on referring to clause 5 & 6 of my Employment Contract. Kindly read these clauses and kindly share your views on:
A. Do you think clauses 5 and 6 are enforceable and valid as per the Indian Contract Act or 'unconscionable,' the stand which I have taken?
B. And how do I go about proving that these clauses are unreasonable, unjust, and unfair, hence unconscionable?
Kindly provide your valuable insights; I will be grateful to you.
Clause 5. Notice Period.
The term of this Agreement is "at-will." Either party may terminate for any reason or no reason, with or without cause. The Employee must provide no less than 3 months prior written notice of resignation (so that arrangements can be made to replace the employee without affecting the existing project or a scheduled assignment or client relationship). In the event of your resignation from service, it would be open to the management to accept the same forthwith and relieve you from the service earlier than the notice period. During the notice period, you will be required to complete the jobs assigned to you to the satisfaction of the management and to hand over the charge to your immediate supervisor in all respects. In addition to the above, in the event of your disassociation from the services of the company within one year from your date of joining, owing to resignation or termination, all payments that have been made to you (viz. relocation expenses reimbursement, notice shortfall of the previous organization, and/or any other payments made to you as a special consideration over and above your cost to the Company) will have to be refunded by you to the company before you exit. In case you disassociate from the company without giving three months’ notice, then you shall not be entitled to claim any amount due for the services rendered, and settlement of dues will be at the discretion of the Management. The Management reserves the right to deduct, as liquidated damages, an amount equal to three months’ salary from any amount that may be due to you and also reserves the right to recover Induction & training costs invested in you as per the costing standards of the company. Abandoning work without written consent or serving notice period invites LEGAL ACTION. The salary for the notice period will be disbursed only after submitting the documentary evidence of the tax savings investments and other evidence as declared by you in the Self Declaration Form submitted by you, at the time of joining the organization. In the event of non-submission of the same, the salary for the notice period will be adjusted for the taxes to be paid in the absence of investments not made by you. The full and final settlement of your dues will be effected in the payroll cycle following the completion of all exit formalities.
Clause 6. Termination.
The company may, at its discretion, terminate your services immediately, by paying one month’s salary in lieu of the notice period (for confirmed employees). Notwithstanding anything to the contrary contained herein, the Company shall be entitled to forthwith terminate your appointment without any notice or payment of any kind whatsoever in lieu of notice or otherwise in case of:
a. Any act of dishonesty, disobedience, insubordination, irregularity in attendance, or other misconduct or neglect of duty, or incompetence in the discharge of duty on your part or the breach of any of the terms, conditions, and stipulations contained herein.
b. You being adjudged an insolvent or applying to be adjudged an insolvent or making a compensation or arrangement with your creditors or being found guilty by a competent court of any offense involving moral act.
c. Absence for a continuous period of eight working days, including absence when leave though applied for but not granted, and when overstayed for a period of 8 days would be deemed to be abandonment of employment by you and your services with the company shall automatically come to an end without any notice or intimation, unless decided by the company to regularize it.
d. Breach of any terms of this appointment letter or of the terms of the confidentiality & Non-Disclosure, Non-Solicitation, Non-Compete & Limitation of Liability Agreement signed by you with the company, or of the policies & procedures of the company detailed in the HR manual/handbook.
e. Consistent non-performance by you or your team, as per the verdict of the company.
f. The reconstruction or amalgamation of the Company whether by winding up of the Company or otherwise.
g. The company reserves the right to accept or reject any explanations provided by you and further reserves the right to terminate your services with immediate effect. The company’s decision to discontinue your services shall remain final and binding on you.
Thanks.
From India, Patna
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My company keeps on referring to clause 5 & 6 of my Employment Contract. Kindly read these clauses and kindly share your views on:
A. Do you think clauses 5 and 6 are enforceable and valid as per the Indian Contract Act or 'unconscionable,' the stand which I have taken?
B. And how do I go about proving that these clauses are unreasonable, unjust, and unfair, hence unconscionable?
Kindly provide your valuable insights; I will be grateful to you.
Clause 5. Notice Period.
The term of this Agreement is "at-will." Either party may terminate for any reason or no reason, with or without cause. The Employee must provide no less than 3 months prior written notice of resignation (so that arrangements can be made to replace the employee without affecting the existing project or a scheduled assignment or client relationship). In the event of your resignation from service, it would be open to the management to accept the same forthwith and relieve you from the service earlier than the notice period. During the notice period, you will be required to complete the jobs assigned to you to the satisfaction of the management and to hand over the charge to your immediate supervisor in all respects. In addition to the above, in the event of your disassociation from the services of the company within one year from your date of joining, owing to resignation or termination, all payments that have been made to you (viz. relocation expenses reimbursement, notice shortfall of the previous organization, and/or any other payments made to you as a special consideration over and above your cost to the Company) will have to be refunded by you to the company before you exit. In case you disassociate from the company without giving three months’ notice, then you shall not be entitled to claim any amount due for the services rendered, and settlement of dues will be at the discretion of the Management. The Management reserves the right to deduct, as liquidated damages, an amount equal to three months’ salary from any amount that may be due to you and also reserves the right to recover Induction & training costs invested in you as per the costing standards of the company. Abandoning work without written consent or serving notice period invites LEGAL ACTION. The salary for the notice period will be disbursed only after submitting the documentary evidence of the tax savings investments and other evidence as declared by you in the Self Declaration Form submitted by you, at the time of joining the organization. In the event of non-submission of the same, the salary for the notice period will be adjusted for the taxes to be paid in the absence of investments not made by you. The full and final settlement of your dues will be effected in the payroll cycle following the completion of all exit formalities.
Clause 6. Termination.
The company may, at its discretion, terminate your services immediately, by paying one month’s salary in lieu of the notice period (for confirmed employees). Notwithstanding anything to the contrary contained herein, the Company shall be entitled to forthwith terminate your appointment without any notice or payment of any kind whatsoever in lieu of notice or otherwise in case of:
a. Any act of dishonesty, disobedience, insubordination, irregularity in attendance, or other misconduct or neglect of duty, or incompetence in the discharge of duty on your part or the breach of any of the terms, conditions, and stipulations contained herein.
b. You being adjudged an insolvent or applying to be adjudged an insolvent or making a compensation or arrangement with your creditors or being found guilty by a competent court of any offense involving moral act.
c. Absence for a continuous period of eight working days, including absence when leave though applied for but not granted, and when overstayed for a period of 8 days would be deemed to be abandonment of employment by you and your services with the company shall automatically come to an end without any notice or intimation, unless decided by the company to regularize it.
d. Breach of any terms of this appointment letter or of the terms of the confidentiality & Non-Disclosure, Non-Solicitation, Non-Compete & Limitation of Liability Agreement signed by you with the company, or of the policies & procedures of the company detailed in the HR manual/handbook.
e. Consistent non-performance by you or your team, as per the verdict of the company.
f. The reconstruction or amalgamation of the Company whether by winding up of the Company or otherwise.
g. The company reserves the right to accept or reject any explanations provided by you and further reserves the right to terminate your services with immediate effect. The company’s decision to discontinue your services shall remain final and binding on you.
Thanks.
From India, Patna
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Clauses 5 and 6 are partially acceptable. However, when the notice given by the employee to resign is three months, the company should also provide a three-month notice to terminate an employee. In contrast, the notice required to terminate a contract of employment is one month. Even the right of the employer to terminate an employee for misconduct is not enforceable because an employee cannot be terminated without being given an opportunity to be heard, simply put, without following the principles of natural justice.
In the case of an employee who has no supervisor, i.e., a worker falling under the scope of the ID Act, the notice period clause for the employee is merely a formality. In the absence of certified service conditions (standing orders), there is no requirement for any notice for an employee to resign and seek alternative employment.
From India, Kannur
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In the case of an employee who has no supervisor, i.e., a worker falling under the scope of the ID Act, the notice period clause for the employee is merely a formality. In the absence of certified service conditions (standing orders), there is no requirement for any notice for an employee to resign and seek alternative employment.
From India, Kannur
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Hi Madhu Sir,
Thanks for your valuable insights as always.
I humbly wish to admit a few more flaws in clauses 5 & 6:
1. At-Will employment is not recognized in India yet.
2. It's akin to infamous Henry VIII clauses.
3. Where employees are required to give 3 months' notice, while the Company can terminate any employee immediately?
Hi Madhu Sir & Other Seniors,
I have 1-2 questions to ask. Please allow me to do so.
1. Although my designation is Lead - Talent Acquisition, no one reports to me. I don't sanction anyone's leave, not distribute work, or take any punitive actions. My typical day starts at 11:30 AM with a daily status call attended by me and a few more teammates along with the Management Team. After this, around 1 PM, my Talent Acquisition Manager assigns work via email. If it's a new requirement from the client, the manager also shares with us the JD, which he would have received from the client. I read the requirements given in the JD properly, highlight some keywords, and make a boolean search to be used in the Naukri portal. I also research the technology involved on Google. I open the Naukri portal, put in the boolean keyword and other details, then click on search. Profiles are displayed on the screen. The person who is an 80% match with the JD, we call that person to check if they are interested. If they are, then I ask a few questions from Google. If I find them suitable (technically and communication-wise), we take all details from them along with their CV. This cycle goes on for every requirement. We also have to tag all candidates' CVs to JobDiva - HRIS. Around 9 PM, we send all the CVs sourced for multiple requirements along with a snapshot of all candidates' details. If managers like the profiles, they would ask to format the CVs in the company's standard format. Then they send the formatted CVs to the client. If the client also likes the profiles, they give an interview time. We need to coordinate the interviews, etc.
So, my question is whether I am a workman under 2s of the ID Act or not? If yes, what does my described work correspond to, as given in 2s, whether it's manual, clerical, skilled, or technical?
From India, Patna
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Thanks for your valuable insights as always.
I humbly wish to admit a few more flaws in clauses 5 & 6:
1. At-Will employment is not recognized in India yet.
2. It's akin to infamous Henry VIII clauses.
3. Where employees are required to give 3 months' notice, while the Company can terminate any employee immediately?
Hi Madhu Sir & Other Seniors,
I have 1-2 questions to ask. Please allow me to do so.
1. Although my designation is Lead - Talent Acquisition, no one reports to me. I don't sanction anyone's leave, not distribute work, or take any punitive actions. My typical day starts at 11:30 AM with a daily status call attended by me and a few more teammates along with the Management Team. After this, around 1 PM, my Talent Acquisition Manager assigns work via email. If it's a new requirement from the client, the manager also shares with us the JD, which he would have received from the client. I read the requirements given in the JD properly, highlight some keywords, and make a boolean search to be used in the Naukri portal. I also research the technology involved on Google. I open the Naukri portal, put in the boolean keyword and other details, then click on search. Profiles are displayed on the screen. The person who is an 80% match with the JD, we call that person to check if they are interested. If they are, then I ask a few questions from Google. If I find them suitable (technically and communication-wise), we take all details from them along with their CV. This cycle goes on for every requirement. We also have to tag all candidates' CVs to JobDiva - HRIS. Around 9 PM, we send all the CVs sourced for multiple requirements along with a snapshot of all candidates' details. If managers like the profiles, they would ask to format the CVs in the company's standard format. Then they send the formatted CVs to the client. If the client also likes the profiles, they give an interview time. We need to coordinate the interviews, etc.
So, my question is whether I am a workman under 2s of the ID Act or not? If yes, what does my described work correspond to, as given in 2s, whether it's manual, clerical, skilled, or technical?
From India, Patna
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Your functions will come under the scope of workman since you do not have any administrative or managerial authority. Moreover, your work is both skilled and technical. It is clerical in nature in one way. As such, you will not come under the exclusion part of the definition of workman.
In H.R. Adyanthaya v. Sandoz (India) Ltd., AIR1994 SC 2608, the Supreme Court held that to be a workman, a worker would have to not only show that he is not covered by the exceptions but must also show that he is employed in one of the main categories. You can very well establish that your work is technical as well as clerical but does not involve any administrative or managerial function of leave approval, performance appraisal, or initiating disciplinary action.
The Supreme Court has said that the quantum of salary would be irrelevant to decide whether or not a person is a 'workman' under the ID Act (Devinder Singh v. Municipal Council, Sanaur, AIR2011SC 2532) and therefore, the exclusion by way of salary will not apply in practice.
From India, Kannur
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In H.R. Adyanthaya v. Sandoz (India) Ltd., AIR1994 SC 2608, the Supreme Court held that to be a workman, a worker would have to not only show that he is not covered by the exceptions but must also show that he is employed in one of the main categories. You can very well establish that your work is technical as well as clerical but does not involve any administrative or managerial function of leave approval, performance appraisal, or initiating disciplinary action.
The Supreme Court has said that the quantum of salary would be irrelevant to decide whether or not a person is a 'workman' under the ID Act (Devinder Singh v. Municipal Council, Sanaur, AIR2011SC 2532) and therefore, the exclusion by way of salary will not apply in practice.
From India, Kannur
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Hi Madhu Sir,
Although I am thanking you too late, nonetheless, it's a sincere one for clarifying in detail, as always, about my work categories for the purpose of sec 2(s) of IDA.
There is some confusion about the territorial jurisdiction of the Labour Court. You believe that it should be Muzaffarpur, i.e., my native place of work, as I was doing WFH as mentioned in my offer letter. However, KK Sir is of the opinion that it should be Mumbai, i.e., the place of the company's office. Since remote work, aka WFH, is a remote phenomenon, I don't think there will be many case laws available.
I am requesting all learned members of the forum, especially Madhu Sir and KK Sir, to clear the confusion about which Labour Court doors I should knock on, supported by any case laws and the interpretation of existing laws. My case is classic and entangled as I was hired by company A located in Mumbai, later acquired by company B operating in India from the Noida office, and my place of work is Muzaffarpur, my native town since the job is remote.
Thanks.
From India, Patna
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Although I am thanking you too late, nonetheless, it's a sincere one for clarifying in detail, as always, about my work categories for the purpose of sec 2(s) of IDA.
There is some confusion about the territorial jurisdiction of the Labour Court. You believe that it should be Muzaffarpur, i.e., my native place of work, as I was doing WFH as mentioned in my offer letter. However, KK Sir is of the opinion that it should be Mumbai, i.e., the place of the company's office. Since remote work, aka WFH, is a remote phenomenon, I don't think there will be many case laws available.
I am requesting all learned members of the forum, especially Madhu Sir and KK Sir, to clear the confusion about which Labour Court doors I should knock on, supported by any case laws and the interpretation of existing laws. My case is classic and entangled as I was hired by company A located in Mumbai, later acquired by company B operating in India from the Noida office, and my place of work is Muzaffarpur, my native town since the job is remote.
Thanks.
From India, Patna
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Though for filing a complaint under the ID Act, there is no reference as to what the territorial jurisdiction is, a workman can file it in the place where he has been working. There are cases in support of this. The Delhi High Court has observed that the situs of a workman’s place of employment is a determinative factor in conferring territorial jurisdiction on a labor court although not specified in the Industrial Disputes Act. Please refer to J Balaji Vs the Hindu.
Recently, I have challenged the action of an employer to make it convenient for the workman to file it in the place where he was working prior to his termination, and the appropriate authority had ratified it even when the appointment order had a clause that all disputes would be addressed in courts in Delhi. It is not possible for a workman to go and file a dispute in a place where the headquarters of the company is located.
From India, Kannur
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Recently, I have challenged the action of an employer to make it convenient for the workman to file it in the place where he was working prior to his termination, and the appropriate authority had ratified it even when the appointment order had a clause that all disputes would be addressed in courts in Delhi. It is not possible for a workman to go and file a dispute in a place where the headquarters of the company is located.
From India, Kannur
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Many thanks, Madhu Sir, for resolving this confusion. I must appreciate your strong hold over Indian Jurisprudence, especially Labour Laws, and the way you impart your wisdom upon others. Truly commendable.
But, Sir, I want to highlight another confusion. Their appointment letter is a standard format used for all employees, be it permanent or contractual (who get posted at various client sites), where they have mentioned as follows:
2. Place of work. Your immediate posting will be at the Registered Office of the Company. However, depending upon the needs of the organization, you may be transferred/deputed/assigned to any job in any department/location of our company or to any of our associate subsidiary companies/clients in India or abroad with no extra remuneration, and you will be governed by the terms and conditions of that respective location.
However, the fact is they are a totally remote company, and none of their on-roll employees work from the Mumbai office.
It is also a fact that they have mentioned in their offer letter to me, under the Benefits Heading as follows:
Imagine having monthly departmental goals to ensure work-life balance!
- 30 vacation days per year.
- Additionally, there is paternity and Marriage Leave.
- Work from home and Flexible Working Hours.
I also have in my possession their job advertisement posted by Vineet Kotian (my immediate manager at that time) to which I applied by mailing my CV to Vineet and eventually became their employee. The link to the said job posting is below:
https://www.linkedin.com/jobs/view/2989580294
In the above link, it's clearly written "Remote - Full Time."
So, Sir, if I file a case in my place of work, i.e. my native place, they will quote the clause of the Appointment Letter, although I have many proofs that they are a fully remote company. Kindly guide me, Sir. Will the material I have in my possession pertaining to their job be enough to convince the Labour Commissioner, and will it be taken for conciliation for the purpose of Sec 2A of IDA?
Thanks in advance.
From India, Patna
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But, Sir, I want to highlight another confusion. Their appointment letter is a standard format used for all employees, be it permanent or contractual (who get posted at various client sites), where they have mentioned as follows:
2. Place of work. Your immediate posting will be at the Registered Office of the Company. However, depending upon the needs of the organization, you may be transferred/deputed/assigned to any job in any department/location of our company or to any of our associate subsidiary companies/clients in India or abroad with no extra remuneration, and you will be governed by the terms and conditions of that respective location.
However, the fact is they are a totally remote company, and none of their on-roll employees work from the Mumbai office.
It is also a fact that they have mentioned in their offer letter to me, under the Benefits Heading as follows:
Imagine having monthly departmental goals to ensure work-life balance!
- 30 vacation days per year.
- Additionally, there is paternity and Marriage Leave.
- Work from home and Flexible Working Hours.
I also have in my possession their job advertisement posted by Vineet Kotian (my immediate manager at that time) to which I applied by mailing my CV to Vineet and eventually became their employee. The link to the said job posting is below:
https://www.linkedin.com/jobs/view/2989580294
In the above link, it's clearly written "Remote - Full Time."
So, Sir, if I file a case in my place of work, i.e. my native place, they will quote the clause of the Appointment Letter, although I have many proofs that they are a fully remote company. Kindly guide me, Sir. Will the material I have in my possession pertaining to their job be enough to convince the Labour Commissioner, and will it be taken for conciliation for the purpose of Sec 2A of IDA?
Thanks in advance.
From India, Patna
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The territorial jurisdiction when an employee is working from home, termination was served at that place, should never be the place where the Head Office of the establishment is situated. The appointment order may contain such clauses by which an employee shall be transferred to other places. But in the absence of a 'course of action' or any communication that the employee has been transferred and again without the employee joining that office, the jurisdiction will not change. As such, your place of posting is the place where you were working and the place to which the termination was served and nothing else.
From India, Kannur
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From India, Kannur
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Hi Madhu Sir,
Thanks from the core of my heart for helping me throughout with your legal acumen.
Sir, kindly clear doubts regarding my amateur reading of the judgment of the case you mentioned. Excerpts: "...and his services were terminated from Chennai, it is clear that the cause of action arose within the jurisdiction of Chennai."
In my case, the termination mail was issued from their only office in India, i.e., from Mumbai. As such, I have not received any termination letter (hard copy) at my native place, Muzaffarpur, since the Full and Final Settlement is pending at my request, citing the matter is sub judice. Therefore, I asked them to postpone the FnF for now.
In my appointment letter, it clearly mentions that my place of posting is Mumbai. I only have two courier slips for their laptop pick-up, the offer letter which mentions "Work from Home" under benefits section, one mail chain detailing communication with the company regarding laptop pick-up from my house, and one job posting which clearly mentions remote work.
Please correct my naive reading of the judgment and evaluate the proofs in my possession. Let me know if I would be able to convince the LEO(C) of Muzaffarpur. Will he have the acumen and patience to hear me out and accept my complaint under 2A of IDA? Since there are no case laws pertaining to jurisdiction in remote work or work from home (due to its recent emergence) in general, and specifically in my case where the appointment letter clearly states that the place of posting is Mumbai.
Please note that he is just a LEO(C) of Muzaffarpur, Bihar, not like the very rational, upright, and bright legal minds found in some High Courts and Supreme Courts.
Please enlighten me once more, as you have continuously done this noble and compassionate act.
Thanks.
From India, Patna
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Thanks from the core of my heart for helping me throughout with your legal acumen.
Sir, kindly clear doubts regarding my amateur reading of the judgment of the case you mentioned. Excerpts: "...and his services were terminated from Chennai, it is clear that the cause of action arose within the jurisdiction of Chennai."
In my case, the termination mail was issued from their only office in India, i.e., from Mumbai. As such, I have not received any termination letter (hard copy) at my native place, Muzaffarpur, since the Full and Final Settlement is pending at my request, citing the matter is sub judice. Therefore, I asked them to postpone the FnF for now.
In my appointment letter, it clearly mentions that my place of posting is Mumbai. I only have two courier slips for their laptop pick-up, the offer letter which mentions "Work from Home" under benefits section, one mail chain detailing communication with the company regarding laptop pick-up from my house, and one job posting which clearly mentions remote work.
Please correct my naive reading of the judgment and evaluate the proofs in my possession. Let me know if I would be able to convince the LEO(C) of Muzaffarpur. Will he have the acumen and patience to hear me out and accept my complaint under 2A of IDA? Since there are no case laws pertaining to jurisdiction in remote work or work from home (due to its recent emergence) in general, and specifically in my case where the appointment letter clearly states that the place of posting is Mumbai.
Please note that he is just a LEO(C) of Muzaffarpur, Bihar, not like the very rational, upright, and bright legal minds found in some High Courts and Supreme Courts.
Please enlighten me once more, as you have continuously done this noble and compassionate act.
Thanks.
From India, Patna
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And please Madhu Sir, forgot to mention, its a sincere request to please give me few more case laws akin to my situation.
From India, Patna
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From India, Patna
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And please Madhu Sir, kindly read my above comments in light of the fact that I have spoken to LEO(C), Gaya, a district of Bihar, and he was totally ignorant and unsure about remote working and jurisdiction. He kept insisting that since the Company is in Mumbai, your case will come under the jurisdiction of the Mumbai Labour Court. After my elaborate narration of facts and my strong convincing, he asked, "Does your company have an office in Bihar?" Then he switched to another tune and said, "While filing a case through the Samadhan portal, put the name of your company and your address in place of the address of the establishment." My whole point is that he was not really a bright officer, having sharp legal acumen and being gullible. I may encounter a similar kind of officer in Muzaffarpur also. Who knows?
From India, Patna
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From India, Patna
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The very purpose of appointing an Officer in the labour department is to listen to the grievances of workers. It is not possible for a worker to go and file a complaint before the officer in the place where the HO of the company is located. In the absence of territorial jurisdiction to address a worker complaint under any law, such as the ID Act, the jurisdiction will be decided practically. If he (the Officer you approached) cannot understand this basic thing, I am afraid, how can he find a solution for the issue?
LEO (C), I presume he is Labour Enforcement Officer (Central), is not the appropriate person to act as a conciliation officer, but you can approach the Asst Labour Commissioner/ ALC (C). An enforcement officer is an officer appointed to ensure compliance or enforcement of labour laws by making visits to various industries and establishments. Since it is a matter of the ID Act, you can approach the state labour department.
Please also refer to Paritosh Kumar Pal Vs State of Bihar (1984 Lab.IC.1254 Pat) in which it was observed that the situs of employment of the workman will decide the territorial jurisdiction of the Tribunal.
From India, Kannur
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LEO (C), I presume he is Labour Enforcement Officer (Central), is not the appropriate person to act as a conciliation officer, but you can approach the Asst Labour Commissioner/ ALC (C). An enforcement officer is an officer appointed to ensure compliance or enforcement of labour laws by making visits to various industries and establishments. Since it is a matter of the ID Act, you can approach the state labour department.
Please also refer to Paritosh Kumar Pal Vs State of Bihar (1984 Lab.IC.1254 Pat) in which it was observed that the situs of employment of the workman will decide the territorial jurisdiction of the Tribunal.
From India, Kannur
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Thanks a lot Madhu Sir,
Sir, As I got information from somewhere that GOI has made Samadhan Portal compulsory at least for all conciliatory officers pertaining to any labor issues. So, even if I make an offline complaint, it's necessary for the conciliatory officer to lodge this to the said portal and keep the portal updated for the entire conciliatory life cycle. Can you please verify whether this is true or not?
Also, in the Samadhan portal, LEO(C) only is listed as the conciliatory officer for Muzaffarpur - my native and working place, whereas ALC(C) is listed as the conciliatory officer for the Patna district, the capital city of Bihar, and 70 km from Muzaffarpur. What should I do in this situation? Please help me Sir one more time.
As per my knowledge, there is no ALC in Muzaffarpur.
From India, Patna
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Sir, As I got information from somewhere that GOI has made Samadhan Portal compulsory at least for all conciliatory officers pertaining to any labor issues. So, even if I make an offline complaint, it's necessary for the conciliatory officer to lodge this to the said portal and keep the portal updated for the entire conciliatory life cycle. Can you please verify whether this is true or not?
Also, in the Samadhan portal, LEO(C) only is listed as the conciliatory officer for Muzaffarpur - my native and working place, whereas ALC(C) is listed as the conciliatory officer for the Patna district, the capital city of Bihar, and 70 km from Muzaffarpur. What should I do in this situation? Please help me Sir one more time.
As per my knowledge, there is no ALC in Muzaffarpur.
From India, Patna
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Also, Madhu Sir,
My one complaint is pending before ALC(C) - 3 Mumbai for 20 days, and he/she has shown no interest in starting the conciliation process. They have yet to contact me. After 25 days, he will have to submit his conciliation failure report to the appropriate government, detailing the measures taken for the conciliation process that led to its failure. What will he write, and why is there no indication of starting the conciliation process? I am confused and worried. Please shed some light on this issue as well, sir. Is there any authority to which I can complain about his inaction under the ID Act?
Thanks.
From India, Patna
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My one complaint is pending before ALC(C) - 3 Mumbai for 20 days, and he/she has shown no interest in starting the conciliation process. They have yet to contact me. After 25 days, he will have to submit his conciliation failure report to the appropriate government, detailing the measures taken for the conciliation process that led to its failure. What will he write, and why is there no indication of starting the conciliation process? I am confused and worried. Please shed some light on this issue as well, sir. Is there any authority to which I can complain about his inaction under the ID Act?
Thanks.
From India, Patna
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Hi Madhu Sir,
Moreover, as per my limited knowledge, the ID Act has not specified the qualifications of a Conciliatory Officer. Therefore, I cannot argue with the State Labour Department that a LEO(C) cannot act as a conciliatory officer. Can I? Please shed some light on this, Sir.
Thanks.
From India, Patna
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Moreover, as per my limited knowledge, the ID Act has not specified the qualifications of a Conciliatory Officer. Therefore, I cannot argue with the State Labour Department that a LEO(C) cannot act as a conciliatory officer. Can I? Please shed some light on this, Sir.
Thanks.
From India, Patna
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In respect of private establishments, it would be state labour department who will takee up the issues on industrial disputes.
From India, Kannur
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From India, Kannur
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If you think you got fired unfairly from your job and they didn't follow fair rules, here's what you can do:
Check Your Job Contract: Look at the paper you signed when you got the job. It will tell you what's okay and not okay when they want to let you go.
Read Company Rules: Every company has rules about how they can fire people. Find out if they followed these rules.
Collect Proof: Keep emails, letters, or anything that shows they treated you unfairly. It could be important later.
Talk to a Work Lawyer: Get advice from a lawyer who knows about work laws. They can tell you if what happened is against the law.
Complain If Needed: If things don't get better, you might need to tell the government about it. They can look into it and help you.
Try Talking It Out: Sometimes, you can solve the problem by talking with your boss or someone in charge. It's worth a try.
Go to a Work Court: If everything else fails, you can go to a special court for work problems. They can decide if you were treated unfairly.
Write Everything Down: Keep notes about what happens. Write down when things happened and what people said. It can help your case.
Ask for Money Back: If the court agrees you were treated badly, they might say the company has to pay you money for it. Talk to your lawyer about this.
Remember, rules can be different depending on where you are, so it's important to talk to a lawyer who knows about the laws in your area. They can help you figure out what to do next.
From India, Kolkata
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Check Your Job Contract: Look at the paper you signed when you got the job. It will tell you what's okay and not okay when they want to let you go.
Read Company Rules: Every company has rules about how they can fire people. Find out if they followed these rules.
Collect Proof: Keep emails, letters, or anything that shows they treated you unfairly. It could be important later.
Talk to a Work Lawyer: Get advice from a lawyer who knows about work laws. They can tell you if what happened is against the law.
Complain If Needed: If things don't get better, you might need to tell the government about it. They can look into it and help you.
Try Talking It Out: Sometimes, you can solve the problem by talking with your boss or someone in charge. It's worth a try.
Go to a Work Court: If everything else fails, you can go to a special court for work problems. They can decide if you were treated unfairly.
Write Everything Down: Keep notes about what happens. Write down when things happened and what people said. It can help your case.
Ask for Money Back: If the court agrees you were treated badly, they might say the company has to pay you money for it. Talk to your lawyer about this.
Remember, rules can be different depending on where you are, so it's important to talk to a lawyer who knows about the laws in your area. They can help you figure out what to do next.
From India, Kolkata
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Hi Madhu Sir,
Other learned members can also pitch in.
My company has just sent me a termination email without any sign. Is this valid?
I am yet to receive any termination letter, either as an attachment to any email or to my address. Can I claim salary from my day of termination, i.e., 6th Nov until now?
Thanks.
From India, Patna
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Other learned members can also pitch in.
My company has just sent me a termination email without any sign. Is this valid?
I am yet to receive any termination letter, either as an attachment to any email or to my address. Can I claim salary from my day of termination, i.e., 6th Nov until now?
Thanks.
From India, Patna
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To add to my above post it’s been close to 50 days and they have not done full and final settlement.
From India, Patna
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From India, Patna
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Since the matter has been decided to be adjudicated, do not alert the employer of his non-compliances. The non-payment of salary until the date of serving termination, serving termination letter without the signature of the appointing authority, etc., are negligence on the part of the employer, which will make the case stronger for you. Therefore, there should not be any interim communication from you until the matter is settled.
From India, Kannur
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From India, Kannur
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Hi Madhu Sir,
Thank you from the core of my heart for being a guiding light for me. The answers to the questions I couldn't find after hours of searching on Google, you answered with your knowledge and wisdom.
I will strictly follow your advice, Sir.
I just wanted to clarify, Sir, whether "termination via email without a signature" is valid or invalid as per law or its interpretation. Or is it just ignorance on the part of the employer?
Thanking you again, Sir. Salute.
From India, Patna
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Thank you from the core of my heart for being a guiding light for me. The answers to the questions I couldn't find after hours of searching on Google, you answered with your knowledge and wisdom.
I will strictly follow your advice, Sir.
I just wanted to clarify, Sir, whether "termination via email without a signature" is valid or invalid as per law or its interpretation. Or is it just ignorance on the part of the employer?
Thanking you again, Sir. Salute.
From India, Patna
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If your appointment order was just a soft copy without a signature in it, then sending mails for communication shall be taken as a protocol of the company. However, when it is challenged, the court will take a stand that an order of termination of employment, being a serious communication, should only be under the signature of the appropriate authority. The appropriate authority to sign a dismissal order is the appointing authority, the person who had signed the appointment order, but this is only secondary for your case. The primary concern is whether the termination is legal or illegal. Even a verbal termination is valid provided the company operates with verbal instructions only. Whether it is lawful or not is indeed a question of law, and only the courts can provide an answer. In a civilized business scenario, communication with employees should be in writing, even though the Indian Contract Act does not mandate that a contract should be in writing.
From India, Kannur
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From India, Kannur
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Dear Rahul,
Thank you for reaching out and sharing your situation with us. We understand that being terminated unexpectedly can be a stressful and confusing experience. I am not a lawyer and cannot provide legal advice, but we can offer some general information and suggest resources that may be helpful.
Regarding your concerns:
At-will employment:
Clause 5 of your appointment letter does appear to stipulate at-will employment, meaning your employer can terminate your employment for any reason or no reason. However, even in at-will states, termination cannot be based on discriminatory or illegal grounds.
Workman status under ID Act:
Whether you qualify as a "workman" under the Industrial Disputes Act depends on various factors, including your salary, nature of work, and designation. Consulting a labor lawyer can help determine your status and potential rights under the Act.
Clause 5 validity:
While at-will clauses are generally enforceable, there may be instances where they are deemed unconscionable due to unequal bargaining power or lack of consideration. A lawyer can assess the validity of this clause in your specific case.
Recommendations:
Consult a Labor Lawyer:
We strongly recommend that you schedule a consultation with a qualified labor lawyer specializing in at-will employment and the Industrial Disputes Act. They can evaluate your situation, assess your legal options, and guide you through the legal process if necessary.
Gather Evidence:
Keep copies of all relevant documents, including your appointment letter, employment contract, emails, and any termination documentation. Any communication with your employer regarding the termination should be documented. Consider next steps: Depending on your lawyer's advice, you may choose to negotiate severance pay, file a complaint with the labor department, or pursue legal action against your employer.
Additional Resources:
Remember, this information is for general guidance only and should not be construed as legal advice. Consulting a qualified lawyer is crucial for understanding your specific legal rights and pursuing the best course of action.
We wish you the best in resolving this matter.
Sincerely,
Gurunadh Manager HR & Admin 8374282999
From India, Banjara Hills
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Thank you for reaching out and sharing your situation with us. We understand that being terminated unexpectedly can be a stressful and confusing experience. I am not a lawyer and cannot provide legal advice, but we can offer some general information and suggest resources that may be helpful.
Regarding your concerns:
At-will employment:
Clause 5 of your appointment letter does appear to stipulate at-will employment, meaning your employer can terminate your employment for any reason or no reason. However, even in at-will states, termination cannot be based on discriminatory or illegal grounds.
Workman status under ID Act:
Whether you qualify as a "workman" under the Industrial Disputes Act depends on various factors, including your salary, nature of work, and designation. Consulting a labor lawyer can help determine your status and potential rights under the Act.
Clause 5 validity:
While at-will clauses are generally enforceable, there may be instances where they are deemed unconscionable due to unequal bargaining power or lack of consideration. A lawyer can assess the validity of this clause in your specific case.
Recommendations:
Consult a Labor Lawyer:
We strongly recommend that you schedule a consultation with a qualified labor lawyer specializing in at-will employment and the Industrial Disputes Act. They can evaluate your situation, assess your legal options, and guide you through the legal process if necessary.
Gather Evidence:
Keep copies of all relevant documents, including your appointment letter, employment contract, emails, and any termination documentation. Any communication with your employer regarding the termination should be documented. Consider next steps: Depending on your lawyer's advice, you may choose to negotiate severance pay, file a complaint with the labor department, or pursue legal action against your employer.
Additional Resources:
Remember, this information is for general guidance only and should not be construed as legal advice. Consulting a qualified lawyer is crucial for understanding your specific legal rights and pursuing the best course of action.
We wish you the best in resolving this matter.
Sincerely,
Gurunadh Manager HR & Admin 8374282999
From India, Banjara Hills
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Dear Gurunadh, if you have gone through various replies to the thread, you should not have resorted to such beautiful words from the artificial intelligence or ChatGPT. Please have the patience to read the posts/replies and then provide some inputs that others have not given. That would benefit Rahul very much.
From India, Kannur
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From India, Kannur
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Hi Madhu Sir,
It's pertaining to your 2nd last post dated 25th Dec. Sir, any word would be insufficient to say thank you. I am extremely grateful and an admirer of your sharp and intelligent legal acumen and the way you express it, which makes it very easy to understand for the reader while also giving a very honest opinion about my legal standing vis-a-vis my case.
Sir, two questions also 😊:
1. If company A is completely overtaken by company B, then what is the legal standing of the Employment Contract with company A? Will it still remain valid?
2. What is the legal position of an 'At-Will employment contract'? Is it valid?
Salute, Sir.
Just FYI - As you suggested, I met the DLC of my district a couple of days ago, and it was fruitful. He said that the first step is to send notices to all respondents, which he will do in a couple of days.
From India, Patna
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It's pertaining to your 2nd last post dated 25th Dec. Sir, any word would be insufficient to say thank you. I am extremely grateful and an admirer of your sharp and intelligent legal acumen and the way you express it, which makes it very easy to understand for the reader while also giving a very honest opinion about my legal standing vis-a-vis my case.
Sir, two questions also 😊:
1. If company A is completely overtaken by company B, then what is the legal standing of the Employment Contract with company A? Will it still remain valid?
2. What is the legal position of an 'At-Will employment contract'? Is it valid?
Salute, Sir.
Just FYI - As you suggested, I met the DLC of my district a couple of days ago, and it was fruitful. He said that the first step is to send notices to all respondents, which he will do in a couple of days.
From India, Patna
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Good.
The answer to your query is that when an existing establishment is taken over by another unit, there will be a tripartite settlement involving the employer of company A, which will be liquidated through acquisition by company B, the employer of company B, and the employees of company A. During this process, service conditions will be discussed and settled. It is crucial to have an understanding about the treatment of service for future gratuity and compensation under the ID Act. If Company B does not agree to consider the service for these benefits, there should be an option for the payment of compensation and gratuity before the takeover occurs. Additionally, in the case of companies other than sole proprietorships and partnerships, the acquisition will be based on a court order.
From India, Kannur
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The answer to your query is that when an existing establishment is taken over by another unit, there will be a tripartite settlement involving the employer of company A, which will be liquidated through acquisition by company B, the employer of company B, and the employees of company A. During this process, service conditions will be discussed and settled. It is crucial to have an understanding about the treatment of service for future gratuity and compensation under the ID Act. If Company B does not agree to consider the service for these benefits, there should be an option for the payment of compensation and gratuity before the takeover occurs. Additionally, in the case of companies other than sole proprietorships and partnerships, the acquisition will be based on a court order.
From India, Kannur
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Thanks a ton, Madhu Sir, for such a lightning-fast response, yet accurate and to the point while addressing the query in a comprehensive manner.
Also, I forgot to add to my last comment pertaining to your response posted on the 25th of Dec.
The usual communication in my company is through mail, but important documents always accompany a digital signature by authorities like my Offer Letter, Appointment Letter, my Increment Letter, etc., in the form of a PDF attachment digitally signed by top management. This format has been the universal mode of all important communications by the company.
Just FYI.
From India, Patna
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Also, I forgot to add to my last comment pertaining to your response posted on the 25th of Dec.
The usual communication in my company is through mail, but important documents always accompany a digital signature by authorities like my Offer Letter, Appointment Letter, my Increment Letter, etc., in the form of a PDF attachment digitally signed by top management. This format has been the universal mode of all important communications by the company.
Just FYI.
From India, Patna
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Hi Sam,
This question has already been answered by the extremely knowledgeable Madhu Sir.
But let me also try to answer your query. As per sec 2(s) of the ID Act, I am just reproducing from the indiakanoon site:
"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, whether the terms of employment are express or implied. For the purposes of any proceeding under this Act in relation to an industrial dispute, it includes any such person who has been dismissed, discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute. However, it does not include any such person who:
(i) is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957);
(ii) is employed in the police service or as an officer or other employee of a prison;
(iii) is employed mainly in a managerial or administrative capacity;
(iv) being employed in a supervisory capacity, draws wages exceeding 10 thousand per month or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Even if someone not included in the above 4 exclusions doesn't automatically become a workman, their work must be among manual, unskilled, skilled, technical, operational. A supervisor is purposely not included because there is less chance of them earning 20K pm. The managerial or supervisory test is that you must not be performing the following activities to qualify as a workman:
a. Sanctioning their subordinates' leave;
b. Taking disciplinary action against subordinates;
c. Distributing work; or
d. Binding the employer by making decisions on behalf of the employer.
If a Technical Recruiter is not performing the above 4 activities and is engaged in any manual, unskilled, skilled, technical, operational, clerical work, they will fall under the definition of a workman. The typical job description of a Technical Recruiter includes preparing JDs, understanding the requirements mentioned in the JD, posting the JD through various job portals, sourcing suitable candidates, pre-interviewing for fitment, and applying technical skills while also updating the internal ATS database, coordinating interviews, preparing reports, sending status reports to management—all falling under clerical work. Therefore, his job falls under technical, skilled, and clerical in nature, making him a workman under the IDA.
I have attached a sample JD of a Technical Recruiter; please read his roles and responsibilities carefully.
It's better if you read Madhu Sir's post in this thread.
Thanks.
From India, Patna
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This question has already been answered by the extremely knowledgeable Madhu Sir.
But let me also try to answer your query. As per sec 2(s) of the ID Act, I am just reproducing from the indiakanoon site:
"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, whether the terms of employment are express or implied. For the purposes of any proceeding under this Act in relation to an industrial dispute, it includes any such person who has been dismissed, discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute. However, it does not include any such person who:
(i) is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957);
(ii) is employed in the police service or as an officer or other employee of a prison;
(iii) is employed mainly in a managerial or administrative capacity;
(iv) being employed in a supervisory capacity, draws wages exceeding 10 thousand per month or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Even if someone not included in the above 4 exclusions doesn't automatically become a workman, their work must be among manual, unskilled, skilled, technical, operational. A supervisor is purposely not included because there is less chance of them earning 20K pm. The managerial or supervisory test is that you must not be performing the following activities to qualify as a workman:
a. Sanctioning their subordinates' leave;
b. Taking disciplinary action against subordinates;
c. Distributing work; or
d. Binding the employer by making decisions on behalf of the employer.
If a Technical Recruiter is not performing the above 4 activities and is engaged in any manual, unskilled, skilled, technical, operational, clerical work, they will fall under the definition of a workman. The typical job description of a Technical Recruiter includes preparing JDs, understanding the requirements mentioned in the JD, posting the JD through various job portals, sourcing suitable candidates, pre-interviewing for fitment, and applying technical skills while also updating the internal ATS database, coordinating interviews, preparing reports, sending status reports to management—all falling under clerical work. Therefore, his job falls under technical, skilled, and clerical in nature, making him a workman under the IDA.
I have attached a sample JD of a Technical Recruiter; please read his roles and responsibilities carefully.
It's better if you read Madhu Sir's post in this thread.
Thanks.
From India, Patna
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Sorry Sam, Supervisor salary ceiling is 10K per month, I mistyped 20 K. And missed attaching JD so attaching now
From India, Patna
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From India, Patna
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Respected Madhu Sir,
My conciliation process starts next week. My company will say that I am not a workman. So, Burden of Proving I am a workman will fall on me or Burden of proving I am not a workman will fall on the Employer?
Since they have blocked my account - Mail, Chat, all their applications suddenly and without any intimation and I never in my dream thought it would happen, so I have not collected any proofs. Luckily, I have 2-3 documents, including their JD, which they posted on the job site and a few emails which I am attaching. Kindly go through this and please advise me whether I will be able to establish that I am a workman with these few documents. The fact is in the Company I didn't have any subordinates reporting to me, so I never sanctioned leave, never took any disciplinary actions, never distributed any work. But how am I going to establish these facts?
Also, they might do some mischief and plant some evidence in the system.
Thanks, Rahul - my Pen name.
From India, Patna
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My conciliation process starts next week. My company will say that I am not a workman. So, Burden of Proving I am a workman will fall on me or Burden of proving I am not a workman will fall on the Employer?
Since they have blocked my account - Mail, Chat, all their applications suddenly and without any intimation and I never in my dream thought it would happen, so I have not collected any proofs. Luckily, I have 2-3 documents, including their JD, which they posted on the job site and a few emails which I am attaching. Kindly go through this and please advise me whether I will be able to establish that I am a workman with these few documents. The fact is in the Company I didn't have any subordinates reporting to me, so I never sanctioned leave, never took any disciplinary actions, never distributed any work. But how am I going to establish these facts?
Also, they might do some mischief and plant some evidence in the system.
Thanks, Rahul - my Pen name.
From India, Patna
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If the employer is saying that you would not come under the scope of the ID Act, he has to produce the evidence. If you are confident that your work was mainly and solely clerical, why do you worry? Face the hearing. I am sure that the employer will ask for an adjournment in the first hearing so that they can get a little more time.
From India, Kannur
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From India, Kannur
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Respected Madhu Sir,
Other learned members can also pitch in.
Out of the 4 exclusions under sec 2(s) of the ID Act, which gives the definition of a workman, exclusion no. 3 reads as follows: (iii) who is employed mainly in a managerial or administrative capacity; or
So, my question is, what was the intention of the legislature or court interpretations? Is it to treat i) managerial and administrative as belonging interchangeably to the same class or ii) each of the two as a distinct independent class? If the second view is correct, then what is the meaning of employed in 'Administrative' capacity? What exactly is the legal meaning of 'Administrative'?
Kindly clear my confusion with your profound wisdom.
Thanks.
From India, Patna
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Other learned members can also pitch in.
Out of the 4 exclusions under sec 2(s) of the ID Act, which gives the definition of a workman, exclusion no. 3 reads as follows: (iii) who is employed mainly in a managerial or administrative capacity; or
So, my question is, what was the intention of the legislature or court interpretations? Is it to treat i) managerial and administrative as belonging interchangeably to the same class or ii) each of the two as a distinct independent class? If the second view is correct, then what is the meaning of employed in 'Administrative' capacity? What exactly is the legal meaning of 'Administrative'?
Kindly clear my confusion with your profound wisdom.
Thanks.
From India, Patna
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There seems to be no distinction drawn between administrative and managerial capacity/function in relation to exclusion to the definition of workman. But it is clear that a technical manager, an R&D manager, Production manager, or Safety officer is a manager but not involved in any administrative function. At the same time, an Accounts or Finance Manager or an HR/Personnel Manager is a manager doing administrative work. Therefore, the term manager has a wider scope rather than administration.
Let us also examine another verdict from the Apex Court which will be helpful for a person having 'some managerial roles'. In Ved Prakash Gupta Vs Delton Cable India Pvt Ltd (1984 AIR 914, 1984 SCR (3) 169), the question was whether a Security Inspector would come under the scope of workman. A perusal of the evidence showed that the substantial part of the work of the appellant Security Inspector consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch-towers or around the factory or to accompany visitors. The appellant Security Inspector could never appoint or dismiss any workman or order any inquiry against any workman. It was held that the substantial duty of the appellant was only that of a Security Inspector at the gate of the factory premises and that it was neither managerial nor supervisory in nature. Therefore, he clearly falls within the definition of workman under s.2(s) of the Act.
In another verdict, the Court observed that putting a signature in the salary bills of the staff would not make a person employed mainly in managerial or administrative capacity (Punjab Cooperative Bank Ltd Vs Bhatia (Dead through Lrs) AIR 1975 SC 1898, 1975 Lab.IC.1439 SC).
As observed in Andhra Scientific Co Vs Seshagiri Rao (AIR 1967 SC 408), whether an employee is a workman or not is a question of law. We should not ignore this fact. The burden to prove lies on the person who disputes the status of workman. I think it is also fine if you go through the verdict in Aloysius Nunes Vs Thomas Cook India Ltd (2000(3) MHLJ404, 2000 Lab.I.C.2091 Bom) which has elaborated the meaning of supervisory, administrative, and managerial functions quoting different case laws.
I once again say that it is still a question of law, and if you are confident that you have not been doing managerial functions, it is easy for you to establish that you would fall under the scope of workman.
From India, Kannur
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Let us also examine another verdict from the Apex Court which will be helpful for a person having 'some managerial roles'. In Ved Prakash Gupta Vs Delton Cable India Pvt Ltd (1984 AIR 914, 1984 SCR (3) 169), the question was whether a Security Inspector would come under the scope of workman. A perusal of the evidence showed that the substantial part of the work of the appellant Security Inspector consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch-towers or around the factory or to accompany visitors. The appellant Security Inspector could never appoint or dismiss any workman or order any inquiry against any workman. It was held that the substantial duty of the appellant was only that of a Security Inspector at the gate of the factory premises and that it was neither managerial nor supervisory in nature. Therefore, he clearly falls within the definition of workman under s.2(s) of the Act.
In another verdict, the Court observed that putting a signature in the salary bills of the staff would not make a person employed mainly in managerial or administrative capacity (Punjab Cooperative Bank Ltd Vs Bhatia (Dead through Lrs) AIR 1975 SC 1898, 1975 Lab.IC.1439 SC).
As observed in Andhra Scientific Co Vs Seshagiri Rao (AIR 1967 SC 408), whether an employee is a workman or not is a question of law. We should not ignore this fact. The burden to prove lies on the person who disputes the status of workman. I think it is also fine if you go through the verdict in Aloysius Nunes Vs Thomas Cook India Ltd (2000(3) MHLJ404, 2000 Lab.I.C.2091 Bom) which has elaborated the meaning of supervisory, administrative, and managerial functions quoting different case laws.
I once again say that it is still a question of law, and if you are confident that you have not been doing managerial functions, it is easy for you to establish that you would fall under the scope of workman.
From India, Kannur
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Thanks word would be insufficient to show gratitude to you Madhu Sir. You posts are goldmine of knowledge. Sir, You are a Rockstar of CiteHr. Salute.
From India, Patna
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From India, Patna
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Respected Madhu Sir,
How are you, sir? You must be super fine since you have been active on this site and helping others with your profound wisdom. I eagerly read all your posts on various topics.
Quick recap of my last 3 months pertaining to my case/life. ALC has started the conciliation process by sending notices to all parties. On the first date, none from the company side came. On the second date, a local advocate came on the company's behalf, so I refused to engage with him. On the third date, I reached late to the ALC office, and they informed me that someone from the company had come and informed that the company doesn't want the case to be dragged into court, so they are ready to settle the issue through discussion. ALC told me to discuss with him and report to him if we agreed on something. They gave me his number, and on the fourth date, after 1 month, assuming that we would have settled the matter well before that. When I called his number, he turned out to be a public prosecutor in my district court and the senior of the advocate who came on the second date. Nonetheless, I agreed to have a discussion with him on just my demands, not on the facts of the case. But his attitude seemed evasive, and we couldn't meet and discuss, so finally, we met at the ALC office on the fourth date, and he reiterated the same point that the company doesn't want to go to court and so on, but he was showing great hurry and kept insisting to let him go because DIG was calling. ALC genuinely wanted the conciliation process to be successful, so he gave a fifth date and asked him to call me to discuss and reach some conclusion. I was literally fed up, and as expected, he didn't call me ever again. He reached on the fifth date before time and repeated the same thing to ALC, and when I reached the office at the scheduled time, he had already gone. ALC also seemed to be fed up with his attitude. So when ALC again asked me about my demand, I told him that I have clearly mentioned in the application. I was being psychologically tortured, so I thought for a while and told him I will submit a revised demand and asked him to convey to the company that if they are genuinely interested in resolving it out of court, they must act in a time-bound manner not greater than 7 days. The next day, I submitted a revised application to ALC after revising my alternative demand (Compensation) making it 50 lakh, while the other demand being reinstatement with full back wages till date as it is. The next day, in the last week of Apr, ALC sent yet another notice to Chenoa and 3 PillarGlobal through email and speed post, copying me with my application, and asked them to respond within 3 days. But they failed to reply till now. So, a few days back, ALC called me and asked me to submit an application for reference because of the failure of conciliation, which I submitted to the office since he was not in the office and busy on election duty. I will meet him next week to discuss the further course of action.
Dear Sir, When I started walking on the path of the pursuit of justice, I was extremely confident about the case, life, and so on, propelled by a lethal mixture of righteousness + vengeance + my old habit. But as time progressed, my confidence, physical and psychological well-being, finance, and hope have all taken a huge jolt.
Please tell me, sir, what shall I do now?
1. As the ID Act amended in 2010 made it clear that a terminated workman can directly file a case in a labor court after the expiry of 45 days from the date the application was submitted for conciliation, irrespective of the outcome of conciliation. So, my question is shall I go and directly file a case under 2A in the labor court or wait for ALC or State Govt. to refer it. Will it make any difference if I choose either of the 2?
2. I will fight my case and will not give consent to other parties to be represented by a practicing advocate while taking leave from court. Is it the correct approach?
3. How do I file a case in court? I am not aware of processes, procedures, etc.
4. Shall I file my same 8-page application submitted to ALC to the Labor court as well, or any modifications are necessary?
5. Does the FOC report prepared by ALC carry any weight and make any impact on the outcome of the case?
There are many more, sir.
Please, sir, tell me what shall I do now. Please, sir, like always enlighten me with your knowledge and wisdom and bestow upon me your compassion. Waiting for your response, sir.
Thanks,
P. S - Attaching Complaint to ALC
From India, Patna
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How are you, sir? You must be super fine since you have been active on this site and helping others with your profound wisdom. I eagerly read all your posts on various topics.
Quick recap of my last 3 months pertaining to my case/life. ALC has started the conciliation process by sending notices to all parties. On the first date, none from the company side came. On the second date, a local advocate came on the company's behalf, so I refused to engage with him. On the third date, I reached late to the ALC office, and they informed me that someone from the company had come and informed that the company doesn't want the case to be dragged into court, so they are ready to settle the issue through discussion. ALC told me to discuss with him and report to him if we agreed on something. They gave me his number, and on the fourth date, after 1 month, assuming that we would have settled the matter well before that. When I called his number, he turned out to be a public prosecutor in my district court and the senior of the advocate who came on the second date. Nonetheless, I agreed to have a discussion with him on just my demands, not on the facts of the case. But his attitude seemed evasive, and we couldn't meet and discuss, so finally, we met at the ALC office on the fourth date, and he reiterated the same point that the company doesn't want to go to court and so on, but he was showing great hurry and kept insisting to let him go because DIG was calling. ALC genuinely wanted the conciliation process to be successful, so he gave a fifth date and asked him to call me to discuss and reach some conclusion. I was literally fed up, and as expected, he didn't call me ever again. He reached on the fifth date before time and repeated the same thing to ALC, and when I reached the office at the scheduled time, he had already gone. ALC also seemed to be fed up with his attitude. So when ALC again asked me about my demand, I told him that I have clearly mentioned in the application. I was being psychologically tortured, so I thought for a while and told him I will submit a revised demand and asked him to convey to the company that if they are genuinely interested in resolving it out of court, they must act in a time-bound manner not greater than 7 days. The next day, I submitted a revised application to ALC after revising my alternative demand (Compensation) making it 50 lakh, while the other demand being reinstatement with full back wages till date as it is. The next day, in the last week of Apr, ALC sent yet another notice to Chenoa and 3 PillarGlobal through email and speed post, copying me with my application, and asked them to respond within 3 days. But they failed to reply till now. So, a few days back, ALC called me and asked me to submit an application for reference because of the failure of conciliation, which I submitted to the office since he was not in the office and busy on election duty. I will meet him next week to discuss the further course of action.
Dear Sir, When I started walking on the path of the pursuit of justice, I was extremely confident about the case, life, and so on, propelled by a lethal mixture of righteousness + vengeance + my old habit. But as time progressed, my confidence, physical and psychological well-being, finance, and hope have all taken a huge jolt.
Please tell me, sir, what shall I do now?
1. As the ID Act amended in 2010 made it clear that a terminated workman can directly file a case in a labor court after the expiry of 45 days from the date the application was submitted for conciliation, irrespective of the outcome of conciliation. So, my question is shall I go and directly file a case under 2A in the labor court or wait for ALC or State Govt. to refer it. Will it make any difference if I choose either of the 2?
2. I will fight my case and will not give consent to other parties to be represented by a practicing advocate while taking leave from court. Is it the correct approach?
3. How do I file a case in court? I am not aware of processes, procedures, etc.
4. Shall I file my same 8-page application submitted to ALC to the Labor court as well, or any modifications are necessary?
5. Does the FOC report prepared by ALC carry any weight and make any impact on the outcome of the case?
There are many more, sir.
Please, sir, tell me what shall I do now. Please, sir, like always enlighten me with your knowledge and wisdom and bestow upon me your compassion. Waiting for your response, sir.
Thanks,
P. S - Attaching Complaint to ALC
From India, Patna
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