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
From India, Patna
All the members have shared their views and I also support them and strongly say that the termination is illegal. There can be clause in the appointment order that declines the rights of 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 which will permit an employer to terminate the contract of employment without notice and without assigning any reason during probation but the same can not 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 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 workman and get the protection of ID Act. In such 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 probation period.
There are two options available to you, either to file a complaint against the organisation and fight for justice or to get a clean certificate and 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 a 'offence' and the background verification agent also will 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 organisation where the employees have Union. this kind of HR policies will not be available. After retiring from a private organisation, when I started a Consultancy service, I have 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
4248It is true that there can be clauses which will permit an employer to terminate the contract of employment without notice and without assigning any reason during probation but the same can not 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 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 workman and get the protection of ID Act. In such 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 probation period.
There are two options available to you, either to file a complaint against the organisation and fight for justice or to get a clean certificate and 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 a 'offence' and the background verification agent also will 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 organisation where the employees have Union. this kind of HR policies will not be available. After retiring from a private organisation, when I started a Consultancy service, I have 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
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
From India, Patna
Hi KK,
The case laws you have referred relates to state own enterprises.
Here, Judges while giving judgement relied on Art 14 of Indian Constitution which is not available against private IT companies.
Can you please let me know any case laws related to private companies.
Hi Madhu Sir, you are also requested to help me in this regard.
Thanks.
From India, Patna
The case laws you have referred relates to state own enterprises.
Here, Judges while giving judgement relied on Art 14 of Indian Constitution which is not available against private IT companies.
Can you please let me know any case laws related to private companies.
Hi Madhu Sir, you are also requested to help me in this regard.
Thanks.
From India, Patna
But Article 14 is not confined to PSUs when it is referred in connection with employment. IT companies 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
From India, Kannur
Hi Madhu Sir and Learned Members,
I have served my employer legal notice digitally signed through mail. Tomorrow I will send them to their registered office.
I just want to know can I amend my notice (1 point which I missed) and send it again to them through mail and by post?
Thanks
From India, Patna
I have served my employer legal notice digitally signed through mail. Tomorrow I will send them to their registered office.
I just want to know can I amend my notice (1 point which I missed) and send it again to them through mail and by post?
Thanks
From India, Patna
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
From India, Kannur
Hi Madhu Sir/Other Learned Members,
I got reply from my employer to my legal notice:-
The central points of their reply was
1. They are not 'State' so principles of Natural Justice will not applied to them.
Actually I have argued in my legal notice that their employment contract is 'unconscionable contract' to which they replied
Further, the frivolous plea that the clauses of Agreement are “unconscionable” is contrary to the provisions of the ICA, because the Agreement especially Clauses 5 and 6, gives both you and the Company the right to terminate the Agreement, therefore the said clauses are legally biding and enforceable as per ICA, lastly, the plea that there has been a violation of your “fundamental rights” under the Constitution of India and also there is violation of “principles of natural justice” is also untenable for the fundamental rights and the principle of natural justice by their very nature are enforceable only against the instrumentalities of state and not against private parties like the Company in the present case.
What is their legal standing?
I have already filed complaint through samadhan portal since they have not replied to me within the time period.
Thanks.
From India, Patna
I got reply from my employer to my legal notice:-
The central points of their reply was
1. They are not 'State' so principles of Natural Justice will not applied to them.
Actually I have argued in my legal notice that their employment contract is 'unconscionable contract' to which they replied
Further, the frivolous plea that the clauses of Agreement are “unconscionable” is contrary to the provisions of the ICA, because the Agreement especially Clauses 5 and 6, gives both you and the Company the right to terminate the Agreement, therefore the said clauses are legally biding and enforceable as per ICA, lastly, the plea that there has been a violation of your “fundamental rights” under the Constitution of India and also there is violation of “principles of natural justice” is also untenable for the fundamental rights and the principle of natural justice by their very nature are enforceable only against the instrumentalities of state and not against private parties like the Company in the present case.
What is their legal standing?
I have already filed complaint through samadhan portal since they have not replied to me within the time period.
Thanks.
From India, Patna
I think that you may file a written complaint also 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 can not be represented. Then it will become an open forum to discuss the relationship between the employee and the employer.
From India, Kannur
From India, Kannur
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 in young age, it is strongly suggested to look for an alternate job and proceed with the career. If you file a case and all, assuming that you win the case as well, do you think you can come back and work in the company.
The Management will have ample number of ways to corner you and make you to resign and go. Your whole career will be spoiled. Instead, send a gentle communication to the Management and try to get relieved from the company properly and get all dues settled and get your service certificate. If there is any reference check in future, atleast they will give a good report about you if you can maintain a good relationship. I strongly suggest not to take the matter to litigation and your life will be ruined.
Regards,
From India, Madras
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 in young age, it is strongly suggested to look for an alternate job and proceed with the career. If you file a case and all, assuming that you win the case as well, do you think you can come back and work in the company.
The Management will have ample number of ways to corner you and make you to resign and go. Your whole career will be spoiled. Instead, send a gentle communication to the Management and try to get relieved from the company properly and get all dues settled and get your service certificate. If there is any reference check in future, atleast they will give a good report about you if you can maintain a good relationship. I strongly suggest not to take the matter to litigation and your life will be ruined.
Regards,
From India, Madras
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Termination-emp loyment_563.pdf
Termination letter.doc