Dear Mr. Sovik,

I don't want to prolong this thread. From a legal angle, a lawyer can argue in many ways where the hearing takes its own due course of time. Here the employee has to judge, will he/she wait until the judgment comes, wherein the employee has to devote his/her time and money running to courts and lawyers. Practically, the employee spoils his/her career just to receive an apology, a meager amount, or reinstate his job. All this can be done if the amount is huge and the employee has enough time and money for survival. That's why an HR/forum always gives a fair view/advice to the employees. Nobody can stop anyone from going legal, but if a fair view/advice is sought, it is given assuming the querist as a middle-class employee. If any issues are sorted out amicably across the table by the reply to the queries raised.

By any means, it was not to underestimate your knowledge/experience, but to gain further knowledge which will be helpful to others in the forum.

From India, Ahmadabad
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Hi Saji,

I am not a lawyer, but I have spent a lot of time with senior HR leaders (including DGM, GM, VP) from different corporate houses, including many Fortune 500 companies. I dedicated around 15-18 hours a day to understand the pros and cons of Human Resource Management. This exploration is not limited to India but also includes the USA, Canada, and the UK.

My dear friend, Saji, I am not against you or HR. I respect you and your questions. I extend my hand of friendship towards you; it is up to you whether you will accept my friendship or not. You can contact me at +91-8130901897 or Sovikbhattacharjee7@gmail.com for any professional discussions.

If I claimed to know everything under the sun, I would be the biggest liar. The only difference between you and me is that I prefer to maintain a crystal-clear conception. I strive to learn every day.

You know the most bitter fact of the HR domain in India: almost more than 60% of those in entry-level positions have conception problems, mainly due to poor mentors, institutions, or teachers. HR might seem like a very easy subject with minimal learning requirements.

For your information, to address this particular problem, one doesn't need to spend a huge amount of money. At most 5k-6k, if employees hire professionals with the best competency to handle such cases. There is no need to attend court and all. The judicial department will be involved, but the chances of going to trial are only 10%-20%. Some government departments must be involved so that trials can be avoided, and the requirements are fulfilled.

If I share the process, you might say, "Is it so simple?" I can assure you it is. Simple procedures need to be followed tactfully and in a particular sequence. Only guidance from someone experienced and genuinely knowledgeable is required.

The day you develop a passion for HR and consider yourself an advocate for employees, you will also comprehend all the pros and cons, all the minute details. However, for this, you must spend maximum time with senior HR professionals, read numerous books, and attend various seminars, especially those organized by different chambers of commerce.

For every problem, there is a solution. One may be expensive, and the other inexpensive. Only knowledge and competencies matter, my friend Saji.

I hope you will accept my friendship.

Thanks and Regards,

Sovik B

From India, Mumbai
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Hi all,

To all my HR friends,

It's a humble request to all of you. If you encounter similar issues, please consider conducting a domestic inquiry before making any decisions. Then, weigh all the pros and cons before finalizing your decision.

Rushing into decisions and dealing with cunning, aggressive, bold, mischievous, and fearless employees (the victims) can lead to severe damage to the company. They may involve various government agencies, instigate investigations, impose penalties, and even demand substantial compensation on legal grounds. Under such circumstances, defending the corporate house becomes extremely challenging, and neither the brand name nor the internal policies or the network of senior professionals can protect the company!

Commonly, HR audits categorize such errors as fatal. Legal support may not be available to defend the company. Therefore, it is crucial for all responsible HR professionals to thoroughly assess the legality of their actions before proceeding.

Although I am an introvert who prefers not to speak at length and focuses on constructive work, I have expressed my views as effectively as possible. The final decision rests with all of you.

Thanks and regards,

Sovik B

MBA-HR and Finance

B.Sc Mathematics (Hons), Ramakrishna Mission VC College, Rahara

University of Calcutta

Managing Director

S.S. Enterprise

From India, Mumbai
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The Right to Information (RTI) Act does not apply to a private company in the usual connotation of the term. However, if a company is established by a government body, a Public Sector Undertaking (PSU), or a joint venture (such as NTPC BHEL Power Pvt Ltd) involving PSUs as a private entity, it will fall under the ambit of the RTI Act because it will be considered substantially funded by the government.

Additionally, the RTI Act only allows for the supply of pre-existing information. It does not facilitate answering the question of "why" or providing reasons for any actions taken by a public entity. Based on the original query, if an individual was terminated by a purely private company, there is no avenue to challenge the decision. Any legal action taken would likely not be sustained, as it would not serve any meaningful purpose.

From India, Bangalore
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Hi,

VK Sajan,

RTI ACT CLEARLY STATE that PVT Companies are not extempted :

"Applicants have every right to seek information on a private company even though it is in the private sector, if it reports to a government body,"Only applications that served public interest would be dealt with, not those that sought to erode a company's competitive position.

Now, information regarding termination, cant be claimed as a ' TRADE SECRET', that can erode company's competitive position. Please note this point.

All companies formed under Companies ACT 1956, indirectly report to Ministry of Corporate Affairs, Ministry of Labor & employment, and government agencies like SEBI. Their Roles comes into play when discrepancies arise in term of laws. Legally, if any private company are free from not to report/answer any of the government agencies, like SEBI, Ministry Of Corporate Affairs, Ministry of Labor & employment, they can do whatever they wish & such organization (SEBI, Ministry of Corporate affairs etc), shall never have right to opt for intervention in case of discrepancies happens.

Similarly RTI can be used, but indirectly:

For example, say any stock broker/Equity Traders have a valid doubt based on evidence that any PVT company is applying illegal methods to increase its stock value in the market, Stock Broker/ Equity Trader, can ask for information via RTI through SEBI about company's affairs details. Stockbroker will ask SEBI, for more detailed information about a company's details as well as will inform SEBI that a forgery might be taking place based on evidence. Now, its SEBI's responsibility, to investigate, monitor that company's affairs, pros & cons, & provide a suitable answer to the broker, in such a way so that companies competitive position is not eroded . In Case SEBI, finds any discrepancies during investigation, SEBI possess all rights to go for an intervention in PVT company's affairs to protect the right Equity traders. Further, under such situation, Ministry of Corporate affairs, posses all rights for intervention, in PVT Company's affairs to safeguard the rights, of all kinds of partners associated with that PVT company.

Similarly, for termination of employees, labor laws associated with termination, must be followed. Labor laws for termination, clearly state that for Termination following Criteria Must be met:

1. Reason of Termination.

2. In case of employee completing 3 months continuous service, minimum 1 month’s written notice/ payment in lieu thereof is required by either side, as the case may be. (Notice of Dismissal- Sec 30)

3. Wages to be paid before the expiry of 2nd working day after the day on which employment is terminated . (Termination by or on behalf of the employer Sec. 19-5) .

In case of Unfair termination, as stated in Labor laws (PFA of Labor Laws modified after 2003), an employee possess all rights to appeal for Justice to Labor commission. Even can opt for Labor Tribunal.

In this case, a complain needs to be lodged in labor commission if ' Reason of Termination', is not specified/mentioned. And Under RTI act, employee can ask company through Labor commission/labor tribunal, to state reason of termination, if not provided by the company which is a valid demand on behalf of employee as per labor laws. As per labor laws, if it is considered unfair termination (Illegal), if reason of termination is not specified. Labor commission/labor tribunal, including Ministry of Labor & employment possess full right to investigate, & opt for intervention in affairs of private companies if satisfying reason for termination is not provided by the company.

Since, Industrial Dispute Act, domestic enquiry, has not been made before termination of gaurav, labor laws are not satisfied. In the attachment kindly read those sections which clearly state that under which criteria, termination is considered Illegal.

Once you understand this, will provide you details how, Ministry of Corporate affairs get involved in this case.

Regards

Sovik B

From India, Mumbai
Attached Files (Download Requires Membership)
File Type: pdf Labor Laws Modified.pdf (1.49 MB, 234 views)

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Hi,

Please don't remain in the illusion that a private (PVT) company can do whatever they wish. No one can do anything, and they don't report to anyone. HR, CEOs, and MDs do not possess supreme authority to ruin the careers or lives of any employees or stakeholders by doing as they please. If that were the case, regardless of laws, companies might opt for bonded labor, child labor, chit fund forgery for profit maximization. However, this does not happen in practical life, right? There are monitoring bodies such as SEBI, the IT Department, Sales Tax Department, Labor Commission, Labor Tribunal, ILO, RBI, etc. Otherwise, companies like Satyam Computers/Sharada Group would have been able to do whatever they wished.

All private companies formed under the Companies Act 1956 (including all amendments) indirectly report to the Ministry of Corporate Affairs, Ministry of Labor & Employment, and government agencies like the Income Tax Department, SEBI, RBI, Sales Tax Department, Labor Commission, etc. It can be viewed that companies are liable to follow all laws of the land, corporate laws, labor laws, and guidelines issued by the above agencies from time to time. By following laws and regulations, companies report to these institutions that all their actions are appropriate and legal. The moment a violation of laws or guidelines occurs, all these institutions have the right to investigate, monitor, and intervene in company affairs if required. All companies are bound to answer these agencies if the question is valid and legal.

If this were not the case, a company might be able to hide its income and pay only a quarter of the taxes it should ideally pay. Would all these agencies (concerned ones) sit idle in their chairs and watch everything silently because they don't have the power to do anything, and companies don't report to them? So, why should companies be liable to follow their policies and guidelines issued from time to time? Does this happen?

For reasons of termination, it must be a valid one, which is a mandatory criterion according to labor laws that all companies are liable to follow. Otherwise, the Labor Commission, Labor Tribunal, Ministry of Labor & Employment have full rights and authority to investigate, question, and intervene in the affairs of private companies if required. That's why labor law clearly states that if the termination is illegal, the employee has the right to seek justice from the labor commission/labor tribunal, along with the Judicial Department.

In this particular case, first, a complaint needs to be lodged stating that the reason for termination is not specified as per labor laws. After that (after a suitable span of time), under RTI, the employee has to ask the labor commission about the action taken regarding the complaint that the termination was made without satisfying the basic requirements of termination under labor laws. It is the sole responsibility of the labor commission to obtain details from the company, investigate if required, and intervene since labor laws have not been met. Also, it is their responsibility to provide information to the employee about the reason for termination specified by the company.

Moreover, an employee can be terminated if proven misconduct occurs from the employee's end. So, a domestic inquiry is a must.

Thanks and Regards,

Sovik B

MBA - HR & Finance

B.Sc Mathematics Honours, Ramakrishna Mission VC College, Rahara, under the University of Calcutta

Managing Director

S.S ENTERPRISE

From India, Mumbai
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There are two things that, Company should not arrange such parties inside the premises and you try to avoid to have hard drinks also.
From Kuwait
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Hi RMSM,

I agree with you. Have you read the story narrated by Mahatma Gandhi, 'Imitating an English Gentleman'? Today, when we are globally connected, global trades are taking place, and we are following Western culture, someone who follows it should not blindly imitate it. According to my view, good points/features should be taken from any culture, even Western culture, but not their dark sides.

I don't know what specialty alcohol brings to a party. If companies are arranging alcoholic drinks, they should know that people lose their senses after getting intoxicated; they can't get rid of their moral responsibilities of employee security and maintaining discipline! It should be their moral responsibility to drop the employees safely home.

If disciplinary incidents take place, by no means of law can they defend themselves, stating they are not encouraging or provoking disciplinary activities if they claim it's an official get-together. They can claim that it's an informal get-together (only company is sponsoring it) to save themselves, but if it is so, then the employer has no legal rights to take action against any employees based on internal policies, corporate laws, labor laws. During such incidents, they have to consider their employees as the public and not employees. This happens most of the time because corporate houses, especially MNCs and Fortune 500 companies, don't wish to lose their reputation due to such incidents, and their hands are legally tied! The exception is Gaurav's case where the corporate house can't defend them at all, no scope!

You know something, if any employee comes to the office intoxicated, I just ask them, what specialty is there? It seems you don't want this job, right? Why don't you resign officially; no one is holding you? That's much better than termination. If you really wish to drink, then go to a bar or drink at your house; no one will question you, dear! I say this straightforward.

Regards

Sovik B

From India, Mumbai
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Hi dear, this is an unfortunate incident for you. The first thing is you were under a probationary period. Secondly, if there are any clauses in your appointment letter regarding this, your termination is legal. The company generally has the right to discharge an employee during this period. You have no grounds to contest this termination.

Pankaj Bhanuse (Nagpur)

From India, Nagpur
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Hi Pankaj,

I have one question for you: can an employer terminate an employee during the probation period due to the employer's fault and not the employee's?

If termination is due to poor performance, then the employer has the right to terminate during the probation period. However, even during the probation period, the reason for termination has to be mentioned. This is mandated by labor laws.

If 'disciplinary grounds' are cited, then the company cannot defend itself. It is a misconception that during the probation period, an employer can simply say, 'you are terminated,' and the job is over the next day. The probation period signifies that an employee is not a permanent employee; it is a testing period. The company has the right to terminate an employee without notice if the employee fails to perform or adhere to the company's rules and regulations, but not without reason.

Please consult with a reputable lawyer with over 25-30 years of experience in this field. This is illegal.

Thanks & Regards,

Sovik B

From India, Mumbai
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