Need legal opinion-Labor law violation and termination.

Thank you Mr. Arunagiri, I will come back to you to conclude this and I will seek your opinion. Still, there is lot more in this story for your kind attention.

I request Mr. Kirti Kar Tripathi and Raj Kumar Makkad, who are following this matter, to submit their wise input as there has now arrived a conflict of opinion over the act being condoned with Mr. Arunagiri. Please clarify.

To proceed with the matter, A was asked to submit the reply to above Show Cause Notice (dispatched on Nov 7, 2008) within 3 days and so A submitted the reply on Nov 10, 2008.

The above show cause notice was framed with no mention of any specific incident of alleged misconduct and was mere as a punishment for raising voice against management ignoring A’s duty records and factual facts. A, in reply, denied all the allegations imposed in detail [I am attaching the copy of reply herewith for your reference]. 

In above reply, there is a mention of incident pertaining to Labour Law violation by Mr. A. A has quoted an incident happened on (the day when A complained about the incidents of harassment). On this day A was forced to work for more than 6 continuous hours.

Attached is a report It is evident from this report that A logged into the system at 03:09:43 PM and could take the break of 30 minutes and 59 seconds at 09:16:34 PM and this way he had worked for 6 hours, 6 minutes and 51 seconds continuously without a minute’s break. . During this period, all his requests of permitting him a break were denied.  In a call centre environment, the machine completely controls the human so that no call is left unanswered.

As per my knowledge, this is a violation of Labour Law.

Please comment.

Dear Ajeet, 

My advise is suggest him to be bold and face the circumstance in a offensive way. Still he has a right to claim his terminal dues from his employer on account of his previous employment.. Offence is the best defense.

Dear Ajeet

from the file attach by you I am of the opinion that the show cause is ambigous and in case, any action is taken on the basis of this show cause, I am sure it will not stand at all. However, from the actions of employer it is apparent, that the further continuation of employment in this establishment is no longer possible. It is better not to  leave fight and continue to fight. In case, the employer terminate the services, it will be in your favor, You will certainly win, in case file a case. 

Learned memebers  have given their valuable opinions.

The attachments are self explanatory.

Such Supervisors ,HR personnel should be taken to task.

In a similar matter,the case was in court,and the employee's termination order ws revoked by the company .

The employee retaliated.

Later employees working in the same industry, and all major consultants received email from a group highlighting the misdeeds bad conduct of the supervisors,HR personnel, and to be aware of them and that they were to lose incourt hence they backtracted.The employee chased them in all of their future attempts and they were forced to refrain from seeking employment and attempt at business where they did not succeed.

The employee did" Tit for Tat"

Hi Ajeet,

With due respect to all other participants in the discussion, I find the discussion to be quite useless and futile untill the whole background is provided, i.e., (1) the initial date of joining of the worker at the first instance in the company: (2) whether he got some formal appointment letter on the initial appointment or not: (3) If he received some appointment letter at the time of initial appointmen, what conditions of service were stipulated in that letter particularly about termination of services, which normally are included in the appointment letter of workers; (4) whether his first termnination was formal or on verbal orders: (5) whether 'A' got any written warning or show cause notice prior to his first terminaion or not; (6) what were the provisions made in the Standing Orders/ workers code of conduct of the Company about absence or leave: (7) whether 'A' has at any time tried to take up the issue formally with the management for counting of his past service or not; (8) whether 'A' tried formally to claim his termination benefits or not from the company on first time termination: (9) whether the report to higher authorities were made in writing or verbally about the incidence of termination upon which he got the reappointment as a fresh entrant; (10) whether 'A' replied formally in writing to the formal counseling letter or not; (11) whether his 2nd termination is supported by any formal termination order or merely on verbal basis; and ((12) whether he has represnted in writing to the management or not? If yes, what is the response of the management, etc.

From the incidence of his illness, it clearly shows he intimated the management only verbally and not in writing. So, I presume, everything is going on merely on verbal basis without anything available on record of the organization in support of the worker. But, since his record of wages must be intact and cannot be manipulated, the worker can hope some solution to his problem.

So, to have a proper solution to your problem, I hope you would like to come out with the information on the aforesaid points for the information of the community members to enable them to review the situation in totality and suggest some viable solution for the worker.

PS Dhingra

CEO, Dhingra Group of Management & Vigilance Consultants

New Delhi

Hello,

Thanks for your reply. Please find these details as were required by you-

(1) the initial date of joining of the worker at the first instance in the company: Feb 4, 2008.

(2) whether he got some formal appointment letter on the initial appointment or not: Yes

(3) If he received some appointment letter at the time of initial appointment, what conditions of service were stipulated in that letter particularly about termination of services, which normally are included in the appointment letter of workers: As per appointment letter, either party was able to terminate the agreement with a 2 months prior notice.

(4) whether his first termnination was formal or on verbal orders: No formal document was there given to A.

(5) whether 'A' got any written warning or show cause notice prior to his first terminaion or not; No warning.

(6) what were the provisions made in the Standing Orders/ workers code of conduct of the Company about absence or leave: I don’t have any idea about this.

(7) whether 'A' has at any time tried to take up the issue formally with the management for counting of his past service or not; No, during 2nd term of employment, there was no formal discussion made about 1st term of employment.

(8)whether 'A' tried formally to claim his termination benefits or not from the company on first time termination: No.

(9) whether the report to higher authorities were made in writing or verbally about the incidence of termination upon which he got the reappointment as a fresh entrant; Yes, many rounds of email communications.

(10) whether 'A' replied formally in writing to the formal counseling letter or not; A was forced to sign that. I have a monthly performance data sheet where A’s performance is 6th in the team of 32. He was performing very well in all the areas that were being monitored and measured.

(11) whether his 2nd termination is supported by any formal termination order or merely on verbal basis; Yes, a termination letter was issued. There is a point here which I was to post later. The second time, termination was exercised using due procedure i.e. show cause notice, charge sheet and a domestic enquiry, however, on termination letter, the reason of termination was mentioned is –“Due to administrative exigencies, we are terminating ….”

(12) whether he has represnted in writing to the management or not? If yes, what is the response of the management, etc. No response from management once the termination letter was issued. There was 2 months notice pay was paid through cheque, however salary for one month –December 2008 is still not paid.

ThanksThanks

Here is the Charge Sheet that was drafted carefully by the learned HR professionals and others concerned. 

Here in this, A was asked explaination against certain charges. 

Please have a look on this and see how carelesslessly the entire procedure was followed without "hearing the other side".

Ajeet

Dear Ajeet.

I have gone through the contents of Charge Sheet. In my opinion, it is completely ambiguous. It does not speak even a single specific charge, the charges are general. In the absence of specific facts and instances of .alleged misconducts. I don't think, it will stand before Court of law. In case, the delinquent employee also denied the charges in general terms. It will be very difficult for the management to prove the charges. I wonder how the experienced professional drafted this type of Charge Sheet. 

Dear Ajit,

Half baked info can’t solve your problem, as you have added merely a copy of the charge sheet along with your replies to the points, but without related information to the deparmental inquiry subsequent to the issue of charge shet, e.g., inquiry proceedings by the Inquiring Authority on the Charge, his findings and the base of the final orders by the disciplinary authority. So, only charge sheet can not be the final document to provide any base for proper analysis by the experts to give provide you appropriate solution for the problem.

Anyway, your case is very strong and depicts clear-cut vendetta on the part of the HR of the organization.

But before taking recourse to any legal process, you first need to prefer an appeal to the Appellate Authority, as may have been prescribed in the Certified Standing Orders of the Company. Please check the same, get some solid appeal prepared from an experienced professional in the line of Departmental Inquiries in the Employee Misconduct cases, and submit to the appropriate Appellate Authority for decision. Exhausting official channels can give a boost to your legal case, if you are not able to get justice from the Appellate Authority.

PS Dhingra

CEO, Dhingra Group of Management & Vigilance Consultants

New Delhi

And this is the reply to Charge Sheet, e-mailed on Dec 7, 2008.

With reference to the charge sheet dated 29/11/2008, I am hereby submitting para wise written reply to it.

·  The para one of the charge sheet is totally wrong and denied and it is based on the whims of the local management. It is totally wrong that I am habituated in taking unscheduled, unauthorized and long breaks. It is further submitted that since the appointment in the present concern, my duty record is available with the management and till today, no warning was issued regarding the unscheduled breaks to me. It is also pertinent to mention here that my duty record is a matter of record. In the whole duty record, my performance was up to the mark. It is the lower management, specially <supervisor_name>, having personal grudge against me and in the garb of personal grudge he is convincing the management personnel to initiate an inquiry against me and to teach me a lesson.

·  The para two is also wrong and denied. It is further denied that I have ever neglected the duties assigned to me. It is also wrong that I have avoided attending the calls. It is pertinent to mention here regarding the attending the calls of the customers is a matter of record. Through this Charge Sheet, you have leveled very serious allegations against me without furnishing the details of non-attending the calls. It is also wrong that my performance on the job is very poor and low. It is pertinent to mention here that in the group of 32 employees, I have been always placed in a far better position ( most of the times in between 1 to 10/ 1 to 15) as per performance records and never ever given any notice regarding the same so the allegation leveled is baseless and also smelling otherwise.

·  The para three is again wrong and denied. It is denied that I have ever disobeyed  any instruction issued by my seniors to do to me. This is mere a baseless allegation and it has nothing to do with the truth. This allegation is leveled against me with the objective to harass me and make me malign in the eyes of senior management. It is pertinent to mention here that the local management is running after me and with the ugly mind wants me to throw out, from this concern. It is also pertinent to mention here that time and again I  brought to notice to the local management regarding the misconduct and unwarranted acts of a few of my seniors but none of the officials of the local management has paid any attention towards the complains rather that I have been victimized.

It is therefore prayed that in view of the facts and circumstances and the records available with the management, the Charge Sheet issued to me may kindly be withdrawn from the immediate effect.

Dear Ajeet,

Please do the needful about appeal to the appropriate Appellate Authority, as already advised in my previous post.

Yes,  prior to submitting the reply to charge sheet, A had sent below mentioned emial just to acknowledge the receiving of the Charge Sheet.

Dear Ajeet, 

Your reply and this letter both are very useful documents in your defense. But though in your reply you specifically denied the charges but no where you have raised the question of vagueness of the charge-sheet. My suggestion is in future you raise this ground in your correspondence. This will help you in case, your forced to opt legal recourse.

Thanks, 

The charge sheet had been prepared base on the allegations made via the Show Cause Notice, and in reply to the show cause notice only, the employee had communicated that the allegations were baseless, mere a misrepresentation of factual facts etc. 

Now there is an interesting point. Although the employer followed the step by step procedure to terminate the employee using Disciplinary proceedings, the Termination letter issued (on Jan 5, 2009) to employee mentioned a different the reason. It says - “Due to administrative exigencies, ...".

I could not understand why they did not specifically mention the reason in termination letter.

Will this serve as a strong point in this case?