Dear Member
The case of 'inefficiency' does not fall in the category of Misconduct and therefore a case of termination as punishment on account of misconduct is safely ruled out.
Secondly if you consider the situation of Retrenchment then again you will have to follow the process as given under the ID act i.e. First Cum Last Go.
I have not come across any case law in favour of or against the situation you have mentioned. However you can simply use the provisions of your standing orders , if applicable, to your establishment or the terms and conditions of the appointment letter.
Regards
Preetam Deshpande
From India, Mumbai
130The case of 'inefficiency' does not fall in the category of Misconduct and therefore a case of termination as punishment on account of misconduct is safely ruled out.
Secondly if you consider the situation of Retrenchment then again you will have to follow the process as given under the ID act i.e. First Cum Last Go.
I have not come across any case law in favour of or against the situation you have mentioned. However you can simply use the provisions of your standing orders , if applicable, to your establishment or the terms and conditions of the appointment letter.
Regards
Preetam Deshpande
From India, Mumbai
Hi Preetam,
I have another question. The standard terms and conditions of our employment contract states that employee may be terminated by giving the appropriate notice period or salary in lieu off. Please note that this is not the exact langauge. I have come across a Supreme Court case that which states that such terms and conditions may be arbitrary and the court may not hold them as valid. Do you have any idea whether such standard contractual terms can be held void. Thanks
From India, Gurgaon
I have another question. The standard terms and conditions of our employment contract states that employee may be terminated by giving the appropriate notice period or salary in lieu off. Please note that this is not the exact langauge. I have come across a Supreme Court case that which states that such terms and conditions may be arbitrary and the court may not hold them as valid. Do you have any idea whether such standard contractual terms can be held void. Thanks
From India, Gurgaon
Dear All,
Learned Questioner's problem is that he wants to include 'inefficiency' as one of the reasons warranting the ultimate punishment of dismissal in his organization's separation policy and for this he needs a judicial precedent - that's all, I think. First and foremost, hiring is not for the purpose of firing.Second, for all our actions in our social life, howsoever trivial or important it may be, we cannot have judicial precedents; what is essential is a judicious approach.The reason is very simple - man is a social animal and the behaviour of animals is mostly unpredictable - so is the case of human behaviour too. That is the reason for a spate of Case Laws on the same subject-matter with the passage of time.I also searched but in vain to find out some Case Laws in this regard. My suggestion, therefore, would be to decide the issue judiciously and dispassionately rather than looking out for supportive Case Laws. As Dinesh rightly pointed out, in nutshell, the contract of employment is a contract of performance. A certain performance is expected of from both the parties viz the employer and the employed. When there is perceptible deficiency, appropriate remedial actions should be in place and here the adjective 'appropriate' should have all the flavours- moral, legal, empathy and equity. Efficiency is a relative term hence we can not define it precisely.But, inefficiency can not be its antonym because it simply brings out the absence of certain attributes of efficiency. That's why inefficiency is not held to be a misconduct.However, an inefficient employee who has become a dead-wood over a period of time can not be continued in the organization. On its realization, if the exit is voluntary like suo moto resignation, voluntary retirement on the announcement of a scheme by the employer etc., are there and if it is by the employer, he can not simply send the inefficient employee out on this score alone as a measure of punishment for the relationship of employer-employee is greater than the terms of the contract of employment. So, the separation, if not ceremonious, should at least be not unceremonious. This is the reason for holding such terms as subjective termination of employment on the fixed notice period or monetary compensation in lieu thereof are unteneble and unjust.Hence the question what is the way out for an employer in such a situation still remains at large. My considered opinion is that you should try your best to bring the employee up by the positive ways suggested by some members and if still no improvement is noticed reassign his responsibities befitting his efficiency. Just like aging process, inefficiency does not set in suddenly but gradually.
From India, Salem
Learned Questioner's problem is that he wants to include 'inefficiency' as one of the reasons warranting the ultimate punishment of dismissal in his organization's separation policy and for this he needs a judicial precedent - that's all, I think. First and foremost, hiring is not for the purpose of firing.Second, for all our actions in our social life, howsoever trivial or important it may be, we cannot have judicial precedents; what is essential is a judicious approach.The reason is very simple - man is a social animal and the behaviour of animals is mostly unpredictable - so is the case of human behaviour too. That is the reason for a spate of Case Laws on the same subject-matter with the passage of time.I also searched but in vain to find out some Case Laws in this regard. My suggestion, therefore, would be to decide the issue judiciously and dispassionately rather than looking out for supportive Case Laws. As Dinesh rightly pointed out, in nutshell, the contract of employment is a contract of performance. A certain performance is expected of from both the parties viz the employer and the employed. When there is perceptible deficiency, appropriate remedial actions should be in place and here the adjective 'appropriate' should have all the flavours- moral, legal, empathy and equity. Efficiency is a relative term hence we can not define it precisely.But, inefficiency can not be its antonym because it simply brings out the absence of certain attributes of efficiency. That's why inefficiency is not held to be a misconduct.However, an inefficient employee who has become a dead-wood over a period of time can not be continued in the organization. On its realization, if the exit is voluntary like suo moto resignation, voluntary retirement on the announcement of a scheme by the employer etc., are there and if it is by the employer, he can not simply send the inefficient employee out on this score alone as a measure of punishment for the relationship of employer-employee is greater than the terms of the contract of employment. So, the separation, if not ceremonious, should at least be not unceremonious. This is the reason for holding such terms as subjective termination of employment on the fixed notice period or monetary compensation in lieu thereof are unteneble and unjust.Hence the question what is the way out for an employer in such a situation still remains at large. My considered opinion is that you should try your best to bring the employee up by the positive ways suggested by some members and if still no improvement is noticed reassign his responsibities befitting his efficiency. Just like aging process, inefficiency does not set in suddenly but gradually.
From India, Salem
Hi Umakanthan.M,
Thanks for your response. It does bring in a degree of clarity. Like I stated arlier, my organization is not in the process of firing anyone for inefficency. We need to have a policy in place in case there is a situation where an employee becomes inefficent. In that case can his/her servicesbe terminated under retrenchment laws or would it amount to misconduct. I have now managed to gather sufficent case law which states that inefficency does not amount to misconduct. However, a delibrate go slow attempt would be considered as misconduct. So far I have also found articles on the internet which state that termination for inefficency is not retrenchment. However, the articles do not provide any supporting case law. In the light of all the answers I have received here and some more research. My query has now changed to "whether a termination clause in the employment contract which states that employment can be terminated for any reason or without giving reason in lieu of either pay or notice can be held to be void". In terms of public entities I have found case law which says that such clauses can be void if the process of natural justice is not followed. However, I am now stuck at finding an decision regarding private entities. Would appreciate any help with this regard.
From India, Gurgaon
Thanks for your response. It does bring in a degree of clarity. Like I stated arlier, my organization is not in the process of firing anyone for inefficency. We need to have a policy in place in case there is a situation where an employee becomes inefficent. In that case can his/her servicesbe terminated under retrenchment laws or would it amount to misconduct. I have now managed to gather sufficent case law which states that inefficency does not amount to misconduct. However, a delibrate go slow attempt would be considered as misconduct. So far I have also found articles on the internet which state that termination for inefficency is not retrenchment. However, the articles do not provide any supporting case law. In the light of all the answers I have received here and some more research. My query has now changed to "whether a termination clause in the employment contract which states that employment can be terminated for any reason or without giving reason in lieu of either pay or notice can be held to be void". In terms of public entities I have found case law which says that such clauses can be void if the process of natural justice is not followed. However, I am now stuck at finding an decision regarding private entities. Would appreciate any help with this regard.
From India, Gurgaon
Dear Mr. Umakanthan
I profoundly appreciate your comments. You have brought out the facts of the matter beautifully and succinctly.
No doubt, such brilliant and learned comments come out of your vast experience as a former Labour Commissioner and Presiding officer of labour court and tribunals.
The members have been expressing the same views viz "the contract of employment is a contract of performance"; "Efficiency is a relative term hence we can not define it precisely.But, inefficiency can not be its antonym because it simply brings out the absence of certain attributes of efficiency. That's why inefficiency is not held to be a misconduct." etc.
And also the very fact that RETRENCHMENT by definition does not include any performance issues, and that the term Retrenchment itself means cessation of service in SITUATIONS WHICH ARE "NON-DISCIPLINARY"; thus do not deal with Performance or Efficiency issues.
No wonder our learned member was unable to find any reference connecting or linking Retrenchment and Inefficiency, despite her enduring long effort.
Your kind and wise words reminds me of the famous story about Emperor Akbar's court, wherein an astrologer was put to death for saying, "All family members of the emperor will die before his eyes." and another was rewarded for saying "You will live a long life, longer than any of your relatives".
Thanks again for putting up the matter so nicely and explaining the issues involved in a manner that is pleasing, yet factual.
Warm regards.
From India, Delhi
I profoundly appreciate your comments. You have brought out the facts of the matter beautifully and succinctly.
No doubt, such brilliant and learned comments come out of your vast experience as a former Labour Commissioner and Presiding officer of labour court and tribunals.
The members have been expressing the same views viz "the contract of employment is a contract of performance"; "Efficiency is a relative term hence we can not define it precisely.But, inefficiency can not be its antonym because it simply brings out the absence of certain attributes of efficiency. That's why inefficiency is not held to be a misconduct." etc.
And also the very fact that RETRENCHMENT by definition does not include any performance issues, and that the term Retrenchment itself means cessation of service in SITUATIONS WHICH ARE "NON-DISCIPLINARY"; thus do not deal with Performance or Efficiency issues.
No wonder our learned member was unable to find any reference connecting or linking Retrenchment and Inefficiency, despite her enduring long effort.
Your kind and wise words reminds me of the famous story about Emperor Akbar's court, wherein an astrologer was put to death for saying, "All family members of the emperor will die before his eyes." and another was rewarded for saying "You will live a long life, longer than any of your relatives".
Thanks again for putting up the matter so nicely and explaining the issues involved in a manner that is pleasing, yet factual.
Warm regards.
From India, Delhi
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