Soumyodip (Forum Manager) 05 June 2013

Immediate termination without paying in lieu of notice perio

Hi,

I have been working for a private limited company for 1.5 years now. My job involves sitting in front of the computer all day and stuff.

Let me get the history out of the way first:

1. I was issued a standard appointment letter.

2. The termination clause in my appointment letter states that my employer either needs to give me a 30 days notice of termination or 30 days pay in lieu of such termination.

3. I was terminated on spot, without a 30 days notice for breaking company rules by "misusing company resources".

4. By misusing company resources they meant that I was using Facebook at work.

5. They refused to issue a release letter stating that such is the company practice in case of terminated employees.

6. They assured me that my due month's salary along with accrued incentives and pay in lieu of the 30 days notice would be issued by the 5th of the following month.

5. By the 5th of the following month I had only received my salary for the 23 days that I had worked for in the month prior to my date of termination.

6. They are now refusing to pay me my accrued incentives and 30 days pay in lieu of the immediate termination notice.

7. When I confronted them about the issue they simply reverted by stating that it was the management's decision not to pay me the accrued incentive plus 30 days pay in lieu of a termination notice since I violated company rules by using Facebook at work.

8. The termination clause in my appointment letter states that "The company may terminate your services by giving you one month's notice or one month's CTC in lieu of such notice."

Do I have any legal ground to stand on while demanding that they pay me the 30 days CTC? I will be happy with just that. I can find it in my heart to let go of the accrued incentives, unencashed leaves, bonus, etc.

Can somebody help me out? Please?

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2 Replies

advocate praveen (prop.) 05 June 2013

Dear, You have valid ground. Even you have to challenge the order of termination and demand reinstatement with full back wages and other benefits. regards 9818147274

Kumar Doab (FIN) 05 June 2013

You are at which state and HO/Redg. office of the company is in which state?

The establishment is a registered commercial establishment or industrial establishment?

Were your services confirmed in writing? Have you given acceptance of FNF statement in writing?

Company should have displayed its registration certificate, standing orders near entrance/on notice board. If the company does not have certified standing orders the model standing orders may apply.

How many times company has warned you not to visit the Facebook page in writing?

Have you been warned by company on any other count as well?

Has the company sated the reason of termination in its order of termination and before issuing the order of termination did it issue any show cause notice and provided opportunity of explanation to you (employee)? What was being posted or posted at Facebook Page while you were in office? Does the Facebook help you in your job any way?

You may go thru your appointment once again carefully.

It might have been mentioned that in case of misconduct notice period/pay is not applicable.

The responses of the company and queries made by you are in writing or verbal?

It is always appropriate to represent ( preferably by redg. post) to good offices of appointing authority, MD, Chairman, Company Secretary and obtain reply in writing.

You may also obtain copies of certified standing orders of the company, HR policy, service conditions, service rules, discipline rules, incentive policy etc of the company…………………………and try to ascertain the misconduct cited by the company is stated as misconduct in standing orders of the company or not and it is a minor or major misconduct……………..

This shall help to determine that the punishment awarded to you is in line with severity and gravity of the misconduct………..

Punishment Order can only be served by the Competent Authority and the punishment has to be in line with what is listed in the Certified Standing Orders/Service conditions.

Some principles are advocated in awarding punishment to the employee found guilty in the domestic enquiry……………like the punishment should not be disproportionate to the gravity or severity of the misconduct.

Prior to order of termination process of conducting preliminary inquiry, issuance of show cause notice/charge sheet, Explanation, proper inquiry must have been completed.

You may consult a competent and experience labor consultant/service lawyer, well versed and specializing in such cases. You may show all of the documents, records, and give inputs in person……….It shall be good to not to conceal anything from the lawyer.

Your lawyer may ask you a set of structured questions and may opine that you fall within the category of a ‘Workman’, and ‘Employee’ as stated in Shops and establishments Act of the state. The options available to a workman limit the choice to employer.

--------IESO Act/Model Standing Orders:

13. Termination of employment:……

(2): ……………. but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in Paragraph 14.

14. Disciplinary action for misconduct: .--(1) A workman may be fined up to two per cent of his wages in a month for the following acts and omissions, namely:……………..

.--Specify the acts and omissions which the employer may notify with the previous approval of the ......................Government or of the prescribed authority in pursuance of section 8 of the Payment of Wages Act, 1936.

(2) A workman may be suspended for a period not exceeding four days at a time, or dismissed without notice or any compensation in lieu of notice, if he is found to be guilty of misconduct.

(3) The following acts and omissions shall be treated as misconduct.

(g) habitual breach of any law applicable to the establishment,

(j) frequent repetition of any act or omission for which a fine may be imposed to a maximum of 2 per cent of the wages in a month.

[1](5) In awarding punishment under this standing order, the [2][authority imposing the punishment]shall take into account any gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances, that may exist. A copy of the order passed by the 17[authority imposing the punishment] shall be supplied to the workman concerned.

16. Certificate on termination of service.--Every permanent workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.

NOTE. - There is a provision under this Act for issuing a service certificate at the time of dismissal, discharge or retirement and every person is entitled to take such certificate.

17. Liability of 17[employer].--The [3][employer] of the establishment shall personally be held responsible for the proper and faithful observance of the standing orders.

-------Shops and establishments Act:

e.g: The Delhi Shops and Establishments Act, 1954

21. CLAIMS RELATING TO WAGES

30. Notice of Dismissal.— (1) No employer shall dispense with the services of an employee……………..Provided that such notice shall not be necessary where the services of such employee are dispensed with for misconduct, after giving him an opportunity to explain the charge or charges alleged against him in writing.

(3) In any case instituted for a contravention of the provision of sub-section (1), if a Magistrate is satisfied that an employee had been dismissed without any reasonable cause……………………….

COMMENTS

(a) Applicability of section 30:

In the absence of any standing orders or any contract between the employer and the contesting respondent containing any particular terms or conditions, the conditions of service of the employee relating to his employment in an establishment at Delhi are covered by section 30(1) of Delhi Shops and Establishments Act, 1954…………

(b) Notice or wages in lieu thereof under section 30—When to be given?

It may also be pointed out that if the employer has preferred to dismiss or discharge an employee on giving one month’s notice or one month’s wages in lieu of such notice, it matters little whether the services are dispensed with for a minor misconduct or a major misconduct………………

37. Powers and duties of the Inspector.

(b) Duties of the Inspector

(i) that in dispensing with the services of an employee the provision of the Act and Rules

have been complied with and no dues payable under the Act or Rules have been

withheld

For the purpose of section 30, for the term, “misconduct” reference be made to Rule 13 of the Delhi Shops and Establishments Rules but the list is not exhaustive in view of the word ‘includes’.

(d) Section 30 of the Delhi Shops and Establishments Act, 1954 does not exclude the application of the Industrial Disputes Act, 1947

------THE PAYMENT OF WAGES ACT, 1936

2. Definitions:

3*[(vi) "wages" means all…………..

(d) any sum which by reason of the termination of employment of the person employed

is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;

If you have qualified for incentive, it should be paid to you. The amounts stated in CTC sheet should be paid to you.

You may visit a competent and experience labor consultant/service lawyer along with elders in the family, give inputs in person, spend quality time with your lawyer and proceed under expert advice.