Terms and condition
raju
(Querist) 08 August 2015
This query is : Resolved
An employee in charitable hospital at the time of offer of appointment under terms and conditions accept offer of appointment. Later after 5 years another hospital are opened by the Society. They take under taking from all employees that they can be transfer to another unit any time. My query is that can employee change in court that at the time of offer of appointment this condition was not mentioned and they have got it signed after 5 years when another hospitals were opened. Please reply
Kumar Doab
(Expert) 08 August 2015
Do you mean to say that:
---'Transfer' was not part of service conditions settled and inserted in appointment letter?
---'Undertaking' was obtained under coercion,force,pressure,intimidation from employees and without any notice (of say 21 days) to employee?
Why do you feel that you need to change your statement on having signed an undertaking in court?
Is the matter in court?
You may reply pointwise to all points during discussion in this thread.
Eventually You may have a perfect remedy or no remedy.
Sudhir Kumar, Advocate
(Expert) 09 August 2015
keep on repeating query in thread after thread.
मुफ्त के चंदन घिस मेरे नंदन
लम्बा तिलक लगा बाबा
पैसा कोई मांगे तो आगे आगे जा बाबा
P. Venu
(Expert) 09 August 2015
You are repeatedly posting different queries on the same issue with selective facts.
Kumar Doab
(Expert) 09 August 2015
It is reiterated that you should reply to all points, pointwise and you may have a remedy.
The employer may not have a right to transfer even if it has extracted an undertaking from employees and even courts may not concur with right to transfer.
If you have already shown all documents on record to an able Labor law Consultant/Service Matters Lawyer/Law Firm and have given inputs in person and have answered the pointed and specific questions of your counsel and after that if your counsel has opined that employer can not transfer the employee then your counsel may be right.
If you want us to help you and give proper opinion then you must answer all points raised in this thread.
raju
(Querist) 09 August 2015
At the time of joining the service I was issued offer of appointment and joining report under terms and conditions and they have mentioned in letter that your services can be utilised in clinical areas, wards no such word like transfer was mentioned in the letter. After 5 years another hospital was opened at another state and society at after 5 years took undertaking that your services can be transferred to any hospital. My query is that at the time of appointment no such condition was under terms and conditions and later after 5 years they got it signed as under taking. Is this valid if they transfer me to another hospital and can this be challenged. Please clarify.
Rajendra K Goyal
(Expert) 09 August 2015
You have signed the undertaking and hence accepted the change.
Kumar Doab
(Expert) 09 August 2015
I shall not be commenting on any opinion or contradicting any opinion of any expert.
I shall be posting my first hand impressions and you may have a resolution to issues at your hands.
1. It has already been posted that:
" You may have a perfect remedy or no remedy.
You may reply pointwise to all points during discussion in this thread.
If you want us to help you and give proper opinion then you must answer all points raised in this thread. "
You have not replied to all points that I have raised.
2. You have already posted and it has been noted that:
"after 5 years took undertaking that your services can be transferred to any hospital. My query is that at the time of appointment no such condition was under terms and conditions and later after 5 years they got it signed as under taking. Is this valid if they transfer me to another hospital and can this be challenged."
Until I get all information that is required to be posted by you, proper response and opinion can not be rendered.
3. Have you consulted an able Labor law Consultant/Service Matters Lawyer/Law Firm and have given inputs in person? If yes what is their opinion?
4. At this moment you have not provided the required information in this thread hence generically speaking there are few points:
(i) The employer may extract an undertaking everyday from employees and still may not attain a legal right to transfer the employee. Still if the employer resorts to transfer it may be termed illegal, void and abolished by courts of law.
(ii) If the motive of transfer is malafide, malice, bias or by vindictive and zealous employer/Managers it may be abolished by courts of law on merits of the case and evidence/witnesses etc.
(iii) If so called 'Undertaking' is extracted by coercion,force,pressure,intimidation from employees......................then it may not be even worth the piece of paper on which it is written.
Even if there is no recording (audio/visual) of extraction, all affected employees may join hands and form a union/affiliate with trade unions/become member of employees-trade unions.........................and submit a statement by all affected employees and supported by their unions........................ and it may suffice to establish that 'Undertaking' was extracted by force.
If other employees are not willing to unite you alone can join any unions and union may embrace you.
(iv) The proper manner of change in service conditions is by notice to Employees/Workmen as per the enactments/statue/instrument of law that apply to establishment/employer/employee..............
Instead of complying to the provisions and process of notice for change in service conditions if employer and its cronies/attorneys have resorted to extracting an 'Undertaking' then this may eventually be cancelled by court of law.
One part of the process has been explained to you in other threads initiated by you.
5. Does the establishment has its certified standing orders?
Does it contain a clause on right to transfer?
The copy can be obtained by anyone from employer and/or certifying officer i.e. usually DLC/ALC in o/o Labor Commissioner (state/central) as applicable in your case..........................by making a nominal payment of say Rs3/page.
If there is no clause on right to transfer in certified standing orders then NO COURT MAY ACCEPT THAT EMPLOYER CAN TRANSFER..........................even if employer pleads that it has inserted condition of transfer in appointment letter, offer letter, HR policy, Service Rules and Regulations, Employee handbook...................and/or it has in its records a so called 'Undertaking' signed by employee.
You may better reply to all points, pointwise without leaving any point unreplied...................OR you may go back to your own able lawyer and proceed further under expert advise of your able counsel.
Your counsel may opine that you are covered by the definition of 'Employee' as in State Shops & Estbs Act and def. of 'Workman' as in ID Act.
We have given enough hints and inputs to you to go back to your counsels and work on these.
raju
(Querist) 10 August 2015
Expert Mr.Kumar Doab first of all I really thank you from the core of my heart and other experts who have provided me their valuable guidelines since at this stage I alongwith my family are very much worried. As per you directions point-wise is that I have joined charitable Hospital on 1994 and permanent employee and as per offer of appointment letters and joining report issued under terms and conditions that was between employer and employee. In this letter no where it was written or mentioned that my services could be transferred to another hospital under the society. On 1999 every employee including I was required to sign and paper in which it was written that my services could be transferred to another hospital and and no notice period was issued and I had to sign keeping in view my job. Anyhow after 3 years I was transferred to another hospital. In 2011 I reported certain matter to higher authority regarding mis-use of funds and same were recovered, but I was again transferred to another hospital. Again the senior officers against whom I have complaint started harassing me for which my own blood relation/relative wrote to Head of Societies that I had to suffer to just speak the truth in the interest of Hospital. Now my senior officers had asked me to file reply that how my blood relation/relative came to know the working of hospital and proposes to hold inquiry. I have given them reply that my blood relation/relation have written every about my suffering and nothing privacy and confidential is mentioned in the letter. I have raised all questions point-wise. My query is that although I am innocent but since inquiry is taken by employee who is working under senior officers and my chances natural justice is will be limited. Now at the age of 50 years and children studying my life including my family will be ruined for just speaking the truth and bring actual facts before the higher authority and what I got from all this. Please guide me that in-between the inquriy can I approach the civil court or High Court for stay and inquiry is held by those officers against whom I have complaint. Please advice.
Kumar Doab
(Expert) 10 August 2015
Prior to your last post you have never posted that you were transferred twice and you accepted the transfer.
You have posted that:
"In 2011 I reported certain matter to higher authority regarding mis-use of funds and same were recovered,"
Your report was correct and that is why funds were recovered.
" my own blood relation/relative wrote to Head of Societies that I had to suffer to just speak the truth in the interest of Hospital."
Thus the information has flown down from o/o Head of Society to the o/o Senior Officer that has initiated inquiry.
"I have given them reply that my blood relation/relation have written every about my suffering and nothing privacy and confidential is mentioned in the letter. "
You have already replied.
" My query is that although I am innocent but since inquiry is taken by employee who is working under senior officers and my chances natural justice is will be limited."
Which senior officer? Is it same from whom funds were recovered?
You have already objected and let the management/society decide and communicate its decision to you.
If the inquiry is Sham you should not be affected. Take help of seasoned employee's union leaders, Labor law Consultant/Service Matters Lawyer/Law Firm and face the inquiry.This has already advised to you by the experts in other threads also initiated by you.
Show all documents on record to an able Labor law Consultant/Service Matters Lawyer/Law Firm and the counsel that examined all documents and inputs can advise you the best including when and which forum you should approach!
raju
(Querist) 10 August 2015
Yes he is the senior officer who have released the funds to non-eligible employees and later recovered by Head of Society. Now he is the senior officer who is to make an inquiry through his employee working under him. It fears me that after the inquiry I shall be immediately terminated that and hence when the inquiry is held I want to approach the court and tell them full truth and facts so that If I can get stay till final decision. Is this correct method.
Kumar Doab
(Expert) 10 August 2015
Show all documents on record to an able Labor law Consultant/Service Matters Lawyer/Law Firm and spend quality time with your lawyer.....................and avail the support of an able defense assistant. This is the most imp. thing that you should do ASAP.
The counsel that examined all documents and inputs can advise you the best including when and which forum you should approach!
Your counsel can also advise you if it can be proved that the stay is desirable and court can award stay or not!
If inquiry is sham and order is perverse the court can cancel the order.
raju
(Querist) 10 August 2015
Thanks Mr.Kumar Doab you have provided me enough of guidelines to act upon the situation. Thanks once more
Kumar Doab
(Expert) 10 August 2015
You are welcome.
It is but natural to feel the way you have expressed.
However remain composed and amiable.
Consult an able Labor law Consultant/Service Matters Lawyer/Law Firm and spend quality time with your lawyer.....................and avail the support of an able 'DEFENSE ASSISTANT'. You will have to find the 'DEFENSE ASSISTANT' at your location on your own.
LCI Experts Mr. P.S.Dhingra, Mr.Sudhir Kumar have posted extensively on such topics involving Domestic Inquiry.
If you wish you may get in touch with them.
raju
(Querist) 11 August 2015
Sir, Domestic Inquiry shall be held shortly. In meantime I have consulted view of 2/3 Advocates who have advised me differently that when inquiry shall be held stay can be provided on the other hand other advocate replied that domestic inquiry shall be held and being private charitable hospital no stay can be provided and your services shall be terminated by providing false allegations against you Since the inquiry is directed by senior officer against whom I have complaint to higher authority and it is his Enquiry officer who shall be inquiry the matter. After my services are terminated than only I can approach the Labour Court till than no remedy. My query is that can High Court listen to me that query is being taken by that senior officer against whom I have complaint and chances of natural justice are limited almost ZERO and provide me some solution keeping in view my genuine case. Please advice in the interest of justice.
Guest
(Expert) 11 August 2015
You have rightly been advised that the domestic inquiry cannot be stayed, as the courts do not interfere in the adminstrative process unless some injustice is done during or after the inquiry.
The HC is not supposed to agree anything you state, unless supported by a cogent proof.
Kumar Doab
(Expert) 11 August 2015
You have posted that:
"In 2011 I reported certain matter to higher authority regarding mis-use of funds and same were recovered,"
"Yes he is the senior officer who have released the funds to non-eligible employees and later recovered by Head of Society. Now he is the senior officer who is to make an inquiry through his employee working under him. "
"Since the inquiry is directed by senior officer against whom I have complaint to higher authority and it is his Enquiry officer who shall be inquiry the matter."
"After my services are terminated than only I can approach the Labour Court till than no remedy. '
" I have given them reply that my blood relation/relation have written every about my suffering and nothing privacy and confidential is mentioned in the letter."
Apparently able Labor law Consultant/Service Matters Lawyer/Law Firm has already opined that you are covered by the def. of 'Employee' as in State Shops & Estbs Act and def. of 'Workman' as in ID Act.
You may obtain membership of Employee's/Trade Unions and they can support you.
Your counsels may opine you that agitate on the vindication that you have cited.
You are which location?
You should now prefer paid consultation with an able counsel and spend quality time with your counsel.
raju
(Querist) 11 August 2015
Respected Experts I do not want stay on Inquiry but I am sure that during inquiry period injustice will be done as I have spoken the truth before the highter authority who have recovered the funds. I have sufficent proof that inquiry is baseless since my blood relation have written letter to Head of Society regarding my suffering from these senior officers for just speaking the truth and bringing actual facts before the society. Now since some members of higher authority are changed and they are trying to involve me in this inquiry so that my services can be terminated. Expert Mr.PS Dhingra Ji I have sufficient proof against these senior officers and prove that inquiry is baseless and just a revenge against me for speaking the truth and bringing actual facts before the higher authority for which now they are trying their best to remove me from the services on the basis of letter posted by my blood relation to Head of Society in which only about my personal life is mentioned and nothing about privacy or confidential is wrote in the letter for which these senior have initiated inquiry against me. At this age of 50 years I am surviving with my house-wife and children who are presently studying and in this hospital I have been working for more than 20 years and permanent employee.
Guest
(Expert) 11 August 2015
Dear Mr. Raju,
Any proof, if used prematurely during inquiry proceeding may go waste. Better keep that intact to be used in the competent court of law to prove that the charge sheet, inquiry and punishment, if awarded, was as a result of bias, prejudice and revengeful attitude of the authrities. So, face the inquiry humbly, just to scuttle down the charge against you by getting the prosecution witnesses cross-examined through capable defence assistant during the inquiry proceedings.
raju
(Querist) 22 August 2015
The Enquiry Officer have in writing replied that I can take assistance of Co-Employee as assistance. Being private institution no employee will ever join me which I have confirmed also and I have requested the Enquiry Officer if my wife can become assistance if allowed. My query is that can wife become assistance in domestic query as she is well aware of the case and apart from that witness in many issues. Further I have shown my case to service law advocates who have gone the case file and of the view that inquiry is an act of revengeful because I have reported certain facts before higher authority regarding embezzlement of funds and same were recovered after my complaint. But since this is private institution they can file some false case against me for which they can terminate/dismiss my services. Remedy is after termination/dismissal which will go to Labour Court. The advocates have advised me to answer to IO very carefully and in case I feel that some unjustice is done I can approach the High Court if proved strongly. Please advice further as my family alongwith children are in distress.
P. Venu
(Expert) 22 August 2015
Breast beating is no solution to challenges of life. You have before you a procedure laid down by Law. Make use of it to meet the issue on merits and prove your mettle.
Kumar Doab
(Expert) 22 August 2015
It has already been posted that you may become member of employee's/trade Unions and avail the services and support of a seasoned 'Defense Assistant'.
The service lawyer engaged/consulted by you must have advised you on it.
It was also suggested that "LCI Experts Mr. P.S.Dhingra, Mr.Sudhir Kumar have posted extensively on such topics involving Domestic Inquiry.
If you wish you may get in touch with them.
"
.
If the establishment has no objection on your wife to accompany you then it shall confirm or it shall decline.
The acceptance or declinature should be preferably in writing.
Kumar Doab
(Expert) 22 August 2015
Mr. Venu is precisely correct.
raju
(Querist) 23 August 2015
The charges leveled against me are that I have informed working procedure of Institution to my blood relation who have directly wrote to Head of Society and as per service regulation book I have not followed the laid down channel. When I was transferred and No Due Clearance was done I have deposited the service regulation book. On transfer to another hospital service regulation book was not issued to me till date. My advocate have advised me that I can challenged the same to IO that I have not been issued service regulation book which is normally issued to all employees while joining duty. My query is that whether this have any solid point that till date I have not issued any service regulation book so that I was unaware of the rules. Further more my relation blood relation have mentioned all the facts which I have suffered and nothing privacy or confidential was mentioned in his letter written to Head of Society for which they have set up an inquiry. Please advice.
P. Venu
(Expert) 23 August 2015
It is beyond my incomplete knowledge and limited capabilities to offer any further suggestion.
Kumar Doab
(Expert) 23 August 2015
On the day your blood relation sent a communique, you had the service regulation book?
Isn’t it?
Assuming that you did not have however you had it at previous location and you are an old employee! This would be probable claim of IO/Employer!
It has already been posted many times that you may become member of employee's/trade Unions and avail the services and support of a seasoned 'Defense Assistant', able Labor law Consultant/Service Matters Lawyer/Law Firm.
The service lawyer engaged/consulted by you must have advised you on it.
It was also suggested that "LCI Experts Mr. P.S.Dhingra, Mr.Sudhir Kumar have posted extensively on such topics involving Domestic Inquiry. If you wish you may get in touch with them.” Thus you would have acquired inputs on how to handle.
Rest is upto you.
You are facing a situation and you should handle it in the best possible manner and defend your interest.
Wish you the best.
raju
(Querist) 24 August 2015
Expert Mr.Kumar Doab when my blood relation sent a communique to Head of Society I did not have service regulation book or till date same has not been issued to me. Enquiry Officer have disallowed my wife to defend the case in inquiry as she was witness in many issues. He have stated that co-employee can join me but nobody is ready to speak the truth and put their life to risk to loose their job since everyone survives with family. I know that in the interest of Institution I have spoken the truth and my facts are 100% true and right but on the other hand I know that my survival chances are almost Zero besides having all evidences because IO is authorised by Institution so from where I can can justice. Well I once again thanks to all experts who have spare their valuable time in providing their advices.
Kumar Doab
(Expert) 24 August 2015
During the inquiry you have the right to avail the 'Defense Assistant'...............and poke holes in the claim of employer.
If inquiry is sham you can seek justice thru court.
It is reiterated that you must get in touch with mentioned experts.................and spend quality time understanding how you should handle the inquiry.
raju
(Querist) 25 August 2015
During inquiry if some documents by way of evidences are submitted by me to Inquiry Officer do I have right to request Enquiry Officer to provide me receipt / acknowledgement of the same. Further if inquiry is sham or injustice is done if employer dismiss or terminate my services can I approach the High Court on strong grounds that inquiry was sham and injustice done and if my dismissal or terminate may be suspended till case is finalised by Labour Court. Please advice
Kumar Doab
(Expert) 25 August 2015
What is the opinion of your lawyer that you have contracted!
raju
(Querist) 26 August 2015
He have replied that any document submitted they are liable to give receipt of the same during inquriy process. Further he replied that I can approach HC in case inquiry is sham or unjustice done to employee. Your opinion is required as going to HC is quite far from my distance and before I spend time and money while going to High Court can HC provide me any relief, since I have not committed any crime, nor even there is any argument with any employee. Only matter is that my blood relation had wrote to Head of Society and that too he have written about my suffering and nothing about Institition for which they are in process to terminate me in this case. After all I have served in this Insitition for more than 23 years.
Kumar Doab
(Expert) 26 August 2015
Your lawyer contracted by you has not less guided leave apart misguided you!
Within the charge sheet and during the inquiry the employer shall trade charges including what transgression is committed by you …………………………..and you can defend……………….and as per your posts it might be at the most………………just a minor indiscretion …………………that to if proved…………… and termination might be disproportionate.
The blood relation/parent/well wisher can write to employer and even CM,PM,President, about suffering of …………………..anybody……………….anyone.
Nothing seems to be illegal in it.
Employer is neither rule-maker nor law maker and not at all a judge.
The labor officials, courts of law, law enforcement agencies, media etc can take suo moto notice of anyone’s suffering and initiate motion.
The expenses to approach HC are to be born by you…………………………….or you can approach o/o legal authority in court, for free legal support.
If you are a member of unions the leaders can represent you.
Rest is that: ‘Employment is not marriage. Employers do not marry employees. Employee should not treat employment as marriage. There is no emotional attachment/detachment. There is no term or word like ………divorce’.
You should treat the situation dispassionately, remaining alert, composed, amiable.
Dealing with employer in such situations is like a game of chess and should be played with patience.
Keep your leaders, lawyer, well wishers,………………….and a seasoned ‘Defense Assistant’ around you.
Interact with experts as suggested and be updated on on how to handle your inquiry.
raju
(Querist) 30 August 2015
I have attended the first date of inquiry before the enqiry officer. Proceedings were recorded and I requested for original letter of my blood relation which was written to Head of Society. Anyhow original letter was not provided to me but IO mentioned in the proceeding letter that I have examined the original letter whereas I was only shown photocopy of the letter. Further I have denied the charges and stated that I shall prove my innocence as the letter was not written by me. My query is that if IO writes such things like that he had shown me original letter for examining whereas same was not shown to me than and do I have rights that I should not sign the same.
Kumar Doab
(Expert) 02 September 2015
You can record above your signatures that original letter was not shown to you.
You can object to any false comments,indiscretion,transgression.............
The lawyer, defense assistant contracted by you can guide you very well.
You have the right to ask to change IO , however this is entirely your call that you should take in serious consultation with The lawyer, defense assistant contracted by you.
raju
(Querist) 10 September 2015
During the inquiry if employee finds that tempering has been done with his service records by the employer and can be proved on record that what action can be taken. Further kindly confirm if charitable hospital comes under RTI Act of 2005.
raju
(Querist) 19 September 2015
During inquiry period no suspension is done to employee. But employee is routed to attend inquiry for which employee has to travel on y Sunday to attend the inquiry on next day due to long distance. Although this is done intentionally by the employer to harass, the employee. My query is that employee eligible to get off day in lieu on Sunday for which he had travelled to attend inquiry on next day. Further also please reply is some tempering and manipulation by employer is done to employees records found during inquiry what action can be taken.
T. Kalaiselvan, Advocate
(Expert) 15 August 2015
