Termination of services
P.C. Joshi
(Querist) 07 June 2013
This query is : Resolved
Dear Friends,
your inputs on the following query are needed.
A Ltd has appointed B as a Area sales manager In Mumbai. The date of appintment is Sep 2011. As per appointment ketter the period of probation is six month and unless confirmed in writing deemed tobe extended automatically. Somehow the performance of B has not been satisfactory hence, his probation period was extended time and again. On May 10th he submitted his regisnation but after discussion with sales head he withdrew his resignation. The company issued him letter of confirmation on 22nd may which he acknowledged on 24th May.
Now on31st may the company received a verifcation call from another Company stating that this gentleman has been working with them since 20th May 2013, which he has never disclosed to the Company. When enquired he sent his resignation on 7the June stating that he is resigning from his job since 20th May(back dated)
As per his appointment letter he is suppose to give 1 month notice or salary of 1 month.
The management wants to terminate his service and forfeite this salary upto 20th May.
Pls help me with your views that as a legal manager what should I do to safeguard any legal complications on the company later on . can I terminate his service due to misconduct of working elsewhere without tendering resignation. Can I demand one month's salary for lack of notice or adjust his 15days salary and other dues against one mnoths notice pay.
Pls share your considered views on urgent bais.
Thanks & Regards
P.C. Joshi
Sudhir Kumar, Advocate
(Expert) 07 June 2013
for termination under misconduct you need to issue charge sheet and inquiry needs to be held.
you have no evidence of his working elsewhere. Better to get rid of him by accepting resignation. he himself is resigning from back date so not entitled to salary thereafter.
Kumar Doab
(Expert) 07 June 2013
The employee has sent resignation effective 20th May………………..
Apparently he has protected his interest.
The letter of confirmation is issued on 22nd May. It was issued after he resigned on 10th May…………( His probation was extended almost 4 times before issuing letter of confirmation.).
You have mentioned he has acknowledged it on 24th May. Acknowledgment of a document may not be read as acceptance.
He was appointed on Sep 2011. Probation period was 6 months. It was extended almost 4 times.
Your company has not been a model employer. The almost 4 extensions may be read as exploitation.
During probation employee does not have a lien on employment, thus the probation period should ideally be NIL.
Designation alone does not decide employee is a workman or not. In certain trades, certain states, managers have also formed associations/guild/unions e.g; and these are quite active.
Model Standing Orders: Notice period during probation is NIL.
Employer and employee both should avoid confrontation, litigation and heartburn………
If the motive of the management is just squaring off his dues in FNF statement/ settlement, they can do it.
It is up to the employee to agitate or not.
You may try by having a heart to heart discussion and diffuse the matter by attempting arbitration and bilateral agreement. He may agree. The matter may be closed, without any heartburn.
The employee in question might be covered under definition of ‘Employee’ in:
The Bombay Shops and Establishments Act, 1948
Which is so employee friendly.
38. Application and amendment of the Payment of Wages Act. (l)Notwithstanding anything contained in the Payment of Wages
Act, 1936, (V ?f
1936)………. the Inspector appointed under this Act shall be deemed to be the Inspector…herein referred to as "the said Act",…….for the purpose of the enforcement of hei provisions of the said Act within the local limits of his jurisdiction.
( Implies that the Inspector under SE Act shall be the Wages Inspector )
[?8 ?. Application of Act VIII of 1923 to employees of establishment.-The provisions of the Workmen's Compensation Act, 1923 (VIII of 1923), and the rules made from time to time thereunder, shall, mutatis mutandis, apply to employees of an establishment to which this Act applies, as if they were workmen within t! meaning of the Workmen's Compensation Act, 1923.
( Implies any employee under SE Act shall be eligible as if he is a workman and can invoke WC Act)
^[??-?. Application of Industrial Employment (Standing Orders) Act to establishments.-The provisions of the Industrial Employment (Standing Orders) Act, 1946, in its application to the State of Maharashtra [(hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall, mutatis rnuimdis, apply to all establishments wherein fifty or more employees are employed and to which this Act applies, as if they were industrial establishment within the meaning of the said Act.
(Implies if company is under SE Act and if it has not framed its standing orders the model standing orders shall apply to all employees. Model Standing Orders are attached. You can also download from Dept. of Labor Maharashtra/Bombay website also. Thus while you can approach Inspector under SE Act you should also be eligible to approach Labor Inspector/ALC.)
{ Model Standing Orders: 3. Tickets, 11. Payment of wages, 13. Termination of employment, 15. Complaints, 17. Liability of 17[employer].--, 18. Exhibition of standing orders.-)
Valuable advice of experts is sought.
