There were some errors in previous posts regarding dates……………
In termination order attached by you no date was mentioned.
In previous by oversight your DOL was wrongly mentioned as 03/09/13, whereas you have mentioned it as 03/10/13. The error is regretted.
You have been in employment from 03/09/12 to 03/10/13 i.e. for over 1Y.
The appointment letter is issued to you is crafted by a legal mind to protect the interest of employer so that order passed by it does not become not sustainable in the eyes of law. You shall need to tear into the defense of employer.
You have mentioned that other than appointment letter there are no other service rules and regulations.
It is not stated in appointment letter that some test/appraisal is to be conducted by employer or to be passed by employee.
It is stated in the appointment letter that:
-- a specific action of confirmation of service in writing need to be performed by employer to confirm the service.
--unless service is confirmed in writing at the end of probation period or extension of probation the employment shall stand automatically as terminated.
--the probation period is 6 months and it can be extended at the company’s option. It is not stated that this option is to be exercised by company in writing. It is also not stated the extension shall be in the increments of how many………………….days/months. This would imply that employee has to be on the edge on each day after 6 months. The employer seems to have kept the probation period as infinite till the age of retirement or any extension thereafter and this seems to be unreasonable.
--during probation period the arrangement can be terminated at a notice of 30 days without assigning any reason.
The notice pay in lieu of notice period of 30 days is not stated. The employer has terminated the employment with immediate effect as per termination order passed by it. The employer has affirmed to tender the notice pay in lieu of notice period quoting probation period and citing reference of the appointment letter. However in appointment letter we could not see the provision of notice pay in lieu of notice period. The employer has not quoted or cited any other rule and regulation also vide which notice pay in lieu of notice period can be tendered.
This should make the order of termination not sustainable.
If you are aware of any clause in appointment letter or any rule and regulation you may point it in this thread.
This should imply that until or unless either party to the contract of employment (employee or employer) is willing to indemnify the party which has initiated the termination against the financial or any other kind of loss it may suffer due to breach of the contract the question of notice pay in lieu of notice period should not arise………..
This should also imply that the employer’s judgment of considering the notice pay in lieu of notice period as sufficient compensation can not be treated as an accepted clause from appointment letter drafted/crafted/created by the employer and in no way a liquidated damage. The notice pay deemed as adequate compensation by employer is not applicable to employee/can also be contested/ and need not be acceptable to employee.
Now the question arises since there is no liquidated damage stated in appointment letter what should be the (un liquidated) damage claimed by employee and who shall pass it finally?
You have stated that you are unemployed due to termination order and non issuance of relieving letter hence you need to evaluate the loss and damages you have suffered.
It is felt that un liquidated damage shall be decided by the court of law implying you may have to litigate.
Another question that arises is, if the order of termination is bad then should it be called back with order of reinstatement and back wages or damages should be awarded to employee?
As discussed earlier it should be determined whether you would be covered as ‘Workman’ and ‘Employee’ or not and you would be eligible to approach which forum to agitate?
It is pointed out that civil court may be forum applicable in your case (to be assessed, opined and confirmed by your lawyer finally ) and civil court may award reinstatement is prerogative of the court based upon merits of the case or simply said in rarest of rare case……….
ANOTHER POIT IS THAT COURT OF LAW MAY NOT NECESSRILY AGREE WITH ANY OF THE POIST DISCUSSED IN NTHIS THREAD. YOU MAY SEEK THE COUNSEL OF YOUR LAWYER.
From your post it can be noted that at company’s option the probation period seems to have been extended however it is not in writing.
Apparently company has not issued ant termination order after expiry of first 6 months of employment or later after 1,2,3,4,5,6, months of employment………………..
For viewpoints of the courts of law and Supreme Court, constitution benchs on service jurisprudence (probation period) you may go thru:
DY. DIRECTOR OF EDUCATION & versus VEENA SHARMA ANR
.https://www.delhicourts.nic.in/Aug10/DY.%20DIRECTOR%20OF%20EDUCATION%20VS.%20VEENA%20SHARMA.pdf
Supreme Court of India
High Court Of Madhya Pradesh Thru. ... vs Satya Narayan Jhavar
https://indiankanoon.org/doc/1028600/?type=print
The order passed by employer should be reasoned must not be arbitrary. Opportunity of hearing and to defend should be provided.
1. Salary: As posted by you the Company has issued termination order on 03/10/13 with immediate effect.
This should imply from close of office hours on 03/10/13.
By which ground / Order Company allowed you to mark attendance and work in office from 04/10/13 to 10/10/13?
If your attendance in payroll is marked up to 10/10/13 then company may include the wages for this period.
The company may/may not claim overpaid wages from 04/10/13 to 10/10/13 from you…………!!!
If company allowed work/attendance up to 10/10/13 in writing and you have attended to office as per instructions and have marked attendance in online/offline attendance register then you may succeed. Try to get the instructions to attend office up to 10/10/13 in writing and detail of work to be done by you or detail of work done by you from office records.
The company may plead that employee entered office to ……………………say deposit company property ………etc and did not attend to any official work and no work was allotted after termination order.
You may also try to get payment of wages up to 10/10/13 and get the same inserted in salary slip, FNF statement, form 16, PF slip etc
Otherwise company has already affirmed vide termination order dated 03/10/13 to pay wages and dues and notice pay too.
1. Leave Encashment; As per appointment letter is described in clause 13 a)………….You are entitled for it.
It is for 21 days and can be accumulated up to 42 days. ( this hints that Bombay Shops and Commercial Establishments Act is applied. Would it imply that you are accepted as ‘Employee’ as defined in the Act. Bombay Shops and Commercial Establishments Act is so employee friendly. However discuss with your lawyer to seek redressal under this Act or not.)
Paid leave is as per Factory Act or Shops and Commercial Establishments Act, Statue, standing orders, The Small Enterprises (Employment Relations) Act 2002, bilateral agreement/superior benefits offered by leave policy of the company.
You may check the manufacturing company is registered under factory Act or The small enterprise Act.
And premises/div/dept/office where you were located was registered under Factory Act or Shops and Commercial Establishments Act and look into the Act /leave policy applicable in your case and clauses on paid leave accordingly……………………………..
e.g: Factories Act 1948: It is applicable to all employees’ workman/non workman: Section 79:1 day/20 days worked in previous year. It can be accumulated up to 30 days/year. The un availed portion of the leave may be encashed to employee.
@ monthly pay drawn by employee in preceding month.
The Small Enterprises (Employment Relations) Act 2002:Chapter IV - conditions of work :11(4) …………………A worker shall be permitted to accumulate leave upto 45 days in addition to the leave entitlement of the current year earned on the basis of the work done by him in the previous year and he shall be entitled to encashment of entire accumulated earned leave including leave earned during the current year pro rata in case his services are terminated
Bombay Shops and Commercial Establishments Act: CHAPTER VII : Leave with Pay and Payment of Wages: 35. Leave (1) (2)………………
2. Bonus as in CTC: You may succeed as it is inserted in CTC. However you may also go thru T&C of fixed Bonus. Since company has terminated the employment it may show inclination to not to pay.
Bonus mentioned at clause 10 of the appointment letter should also be paid.
3. NO.
4. Notice Period is part of service conditions which are stated in standing orders applicable to establishment ( Certified/Model) extended to the designation of employee, statue, appointment letter, contract of employment stating service conditions as per bilateral agreement, service rules……………
The company has affirmed to tender notice pay of 1 month in termination order…………..
If notice period stated in CSO extended to your designation is higher than this it can prevail……………
You are contemplating to claim deemed confirmation hence notice pay for 3 months………….
You have stated that this is a manufacturing company. Does it have its certified standing orders and has it extended the CSO to your designation? If yes you may look into the clauses on termination.
The standing orders should be displayed by employer at a conspicuous place and a certified copy should be supplied at a nominal cost to employee say Rs.10/-
Employee or anyone can obtain the certified copy from certifying officer (DLC in o/o labor Commissioner) against a nominal fee say Rs3/page…………
Employer has to ensure faithful observance of standing orders applicable to it certified or model.
In case the standing orders are applicable but are not certified Model Standing Orders shall apply.
5. It is reiterated that you may approach a competent and experienced labor consultant/service lawyer, law firm at your last location/location of redg. office of the company/ jurisdictional courts as stated in appointment letter/contract of employment/service agreement, and show all of your documents and records and give inputs in person.
The lawyer that has seen all of your docs and has analyzed your inputs can advice you the best.
6. The company has not stated the max. period of probation in appointment letter in explicit terms. 1Y may be treated as max. period at the pleasure of the court.
If accepted the service conditions as applicable to a confirmed employee may apply.
The company has stated that if no confirmation letter is issued /supplied in writing the employment shall be deemed as terminated.
If no letter for extension of probation period was ever issued or supplied but you were allowed to be in employment then you lawyer may opine that he can cultivate this point.
Apply your judgment on confidence and ground on which your case is built.
In your case company has not issued confirmation letter in writing and has supplied termination order in writing after 1Y.
Company would take a stand that employment can not be deemed as confirmed. Being a private organization it may produce some rules and may claim that the rules were very much in accessible by employee and in knowledge domain of employee and were circulated.
Companies are known to insert docs in personnel file and claim that it was sent by post or handed over in office. You shall need to counter as and when company makes a comment to this effect.
The Inspectors under various enactments can check registers/record/personnel files in office of company or can call records in office.
Do you think that you can approach the inspectors and personnel files can be checked/copies etc and there after you can obtain copies of docs in your personnel file thru RTI or by making payment for certified copies as per applicable procedure from the o/o Inspector?
a,b,d………::: Supreme Court of India has held that “‘2. Whenever it is said that something has to be done within the discretion of the authority then that something has to be done according to the rules of reason and Justice and not according to private opinion , according to law and not humor. It must not be arbitrary vague and fanciful. [626D]”
Supreme Court of India
Sant Raj & Anr vs O.P. Singla & Anr
https://indiankanoon.org/doc/476799/?type=print
c. It is duty of the bosses in the company to conduct appraisal well in time.
It is duty of the employer to communicate by effective mode of communication to confirm the extension of probation period or successful completion of probation period and hence confirmation of service. Company is also expected to obtain acknowledgment of such communication from employee and keep the whole process upfront and transparent.
g. If yes, you may contest the termination order that is issued based on dissatisfactory performance.
The company should have granted the opportunity of hearing and natural justice before issuing order of termination.
The notice period for termination applicable in case of probationer is 1M and in case of confirmed employee is 3M.
The company could have rather should have provided coaching, guidance, training to better the performance on parameters on which it judged the employee as lacking…………………………!!!
If there has been no communication then it is deemed that performance was not dissatisfactory.
Supreme Court of India
Sukhdev Singh vs Union Of India & Ors
https://indiankanoon.org/doc/9665019/?type=print
Every entry in ACR should be communicated
Although it is for a public servant however it should hold good for any servant, especially when a harsh penalty of termination can be inflicted.
The employer should not take arbitrary actions against employees and must not violate the principle of natural justice.
In your case the effect of action of employer is extremely damaging presently as well as in future.
>> As per as employer is concerned it is also aware of what is done by it and defects/faults in its decision.
It is expected to:
--- it being at Bombay and jurisdictional courts as stated in appointment letter. If you are located in Bombay you may have some relief as far as jurisdictional courts are concerned.
---scream for Specific Relief Act, Master-Servant relationship and that contract of personal service can not be enforced in court of law…………………………
----no faults/defects in its decision and even that employee was prompted and cautioned in office on parameters of dissatisfaction and other if any. That there was a just cause for termination and termination was unavoidable. It was not wrongful termination.
---- unless there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of the prescribed probationary period.
https://www.lawyersclubindia.com/forum/details.asp?mod_id=41440&offset=1#.Ujsh0tKAqWM
>> You have the option of entering into discussion, arbitration, mediation, conciliation by your own efforts/thru your counsel and arrive at an amicable settlement.
The employer may agree to call back the order of termination, pay you the dues (as agreeable to you) and in such a case it should also agree to delete/remove from your personnel file as well and issue relieving letter (try to get with good comments and avoid without comments or with adverse comments).
This shall be the quickest and easiest resolution.
Some employees are skilled and some employees get lawyers/counsel/facilitators skilled in discussion, arbitration, mediation, conciliation and the employer finally succumbs.
https://www.lawyersclubindia.com/forum/details.asp?mod_id=70662&offset=2#.UoHqTHCAqWN
https://www.lawyersclubindia.com/forum/Neither-resigned-nor-terminated-salary-unpaid--81683.asp#.UoHq_XCAqWM
The employer and employee can voluntarily refer the matter for arbitration.
Litigation for some employees can be stressful. Litigation can be lengthy.
Even if you find merits in your case keep litigation as the last resort that too if you are convinced with the merits.
You have to apply your very own judgment to litigate or not.
>> You should request the employer to allow examining your personnel file and thus let the file and document become a case document.
>> Your lawyer may advice to issue notice to employer raise your demands and to meet your demand in ……………days
And confirm in writing by redg. post only.
And
to issue a legal notice thereafter……………..and to approach court of law if employer maintains studied silence or declines by reply to notice.
The decision of court of law is pleasure of court of law.
