Termination

any chargesheet or inquiry?

Hi,

Its an query as if how to proceed ahead with the organisation so that the FNF is settled or paid by the company.

Employee  is terminated in the month of december and till date is not given the fnf amount..

Mr. Sudhir Kumar has given valuable advice. Kindly follow it.

You have posted that:

“as per the company hr "its a clear case of termination based on integrity which doesn’t allow us to pay your December’s salary.”

What is actual reason for such comment and what is the loss claimed by company?

----Service conditions are stated in Standing Orders of the company, appointment letter, Shops and Establishments Act of the state, statue. The employee who is covered by these enactments shall be protected up to that extent.

{ Industry, actually means Business, trade, manufacturing and anything related to this……. The Standing Order Act is applicable to all establishments to which the Payment of Wages Act, 1936 applies. Section 2 (e) (iv) }

Does your company has its certified standing orders and has it extended it to your designation?

Designation alone does not decide employee is a workman or not.

Your lawyer may ask you a set of structured questions and may opine that you fall within the category of a workman. The enactments applicable to workman limit the choice to employer. Your lawyer may opine that you can raise dispute under ID Act and/or Shops and Establishments Act, Payment of Wages Act …

-If IESO Act is applicable and company does not have certified standing orders, Model Standing Orders shall apply.

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.

(3)   Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.

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:

Note.--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.

(e)   habitual absence without leave or absence without leave for more than 10 days,

(f) habitual late attendance

(i)    habitual negligence or neglect of work,

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].--,  18.         Exhibition of standing orders.—

“Supreme Court held that the misconducts mentioned in the standing orders were exhaustive and a workman could not be punished for an act or omission which was not described as misconduct in the standing orders.”

---- The FNF dues should be paid by the usual pay day.

---- Shops and Establishments Act of the states have clauses and provisions on

Notice of Dismissal, Payment of unpaid wages, false entries by employer……..

One of the duties of the Inspector under SE act is to ensure that the employee who has separated his a/c is cleared in line with the SE Act of the state.

---- Payment of Wages Act.( Applicable in case of all employees whose wages are up to Rs.18000/pm, as per definition of wages in the Act)

2. Definitions.

2. Definitions.-

3*[(vi) "wages" means…………

(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;

13A.

Maintenance of registers and records.

5*[13A. Maintenance of registers and records.-(1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work

performed by them, the wages paid to them, the deductions made from

their wages, the receipts given by them and such other particulars and

in such form as may be prescribed.

(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein.]

Then there are clauses on false entries by employer.

----There are many threads which suggest that employees who were terminated on charges like integrity issues/misappropriation were reinstated under Shops and Establishments Act e.g:

https://www.lawyersclubindia.com/forum/Suit-claiming-damages-and-criminal-case-60347.asp

Valuable advice of learned experts/members is sought.

There are two points. One is termination. Second final settlement.

It is first required to be known in what capacity the employee was working as the term employee includes all categories of work force. Was he a workman or Supervisor as defined under the Industrial Disputes Act 1947.                Labour laws are mostly for the workmen. Under Standing orders only workmen are covered unless these are applicable to supervisors and executives also as in case of some companies. Normally Supervisors and executives are guided by separate rules and regulations embodied in the HR Policy.  According to the Supreme Court there are three categories of employees: Blue Cloured (Workmen), White Coloured(Supervisory) and Golden Coloured (Executives) . Unless it is a public sector undertaking no writ will lie. Hence law of contract will be applicable for the last two categories. If he is a workman  under the ID Act (for raising a dispute) or he is covered under the Payment of Wages Act (for claiming wages)  labour law will help him. Let him make a prayer before his appointing authority for revoking the termination order and take him back as no opportunity of being heard was given to him. In case he submits himself to fate and decides to claim for wages/salary thequestion o f financial settlement will come

If the termination is on the ground of any act amounting to misconduct on the part of the workman it will be unlawful and cannot be sustained as the legal requirement is to afford reasonable opportunity to the concerned workman to be heard and for this domestic enquiries are instituted.  In case of any further query contact : trinath_dash@rediffmail.com.

  Dr. Trinath Dash 

wht is FNF