You have posted that:
--“He was asked to resign from a company on some small disiplinary grounds.”
“He has documentary evidence through clearly stated emails, that he was asked to resign from the company and he didnt leave on his own account.”
What is the charge leveled by company in its emails demanding resignation?
It might be a small and trivial matter being claimed as indiscipline or misconduct.
If it was a small matter company could have levied a small penalty to the tune of 2% of wages.
Has the company framed its certified standing orders and circulated these to employees and displayed on notice board. If IESO Act is applicable and certified standing orders are not framed, model standing orders shall apply. If payment of wages Act is applicable IESO should be applicable.
Has the employee accepted the charge in writing? Did the company conduct any inquiry?
Has the employee stated in resignation that he is resigning as per demands made by Mr/Ms…..designation…dept…address…. on dated…….
If resignation was extracted by force the employee could have later withdrawn the resignation.
However, still the written demand of the company for resignation may be useful, and employee may be able to charge the line management/HR by name.
“The right to hearing is a fundamental right (audi alteram partem). Under law, no person can be accused of anything without giving him proper opportunity of being heard. Principles of Natural Justice are part and parcel of civilised society and forms the very basis of Labor Laws in India. That is why Indian Employment Laws provide for conducting enquiries when employer observes that an employee has committed misconduct.”
“Supreme Court of India has remarked in case:
Glaxo Laboratories vs THE PRESIDING OFFICER, LABOUR COURT MEERUT
In the days of laissez-faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct.
Standing orders providing for imposition of penalty on proof of `misconduct' should be construed strictly like penal statutes.
In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty.”
Company could have granted opportunity of hearing to employee and conducted a fair inquiry.
If the employee is innocent and instead of being issued show cause notice was subdued and coerced in office to give up his employment by submitting resignation with immediate effect or face termination, can agitate.
Forced resignation can be termed as deemed termination.
If the company really wanted to do lay off it can lay off by paying lay off/retrenchment compensation as per provisions in law, statue, service conditions……..
To deny lay off/retrenchment compensations the unscrupulous employers resort to unlawful practices.
It shall be appropriate to approach ( along with elders in the family) a competent and experienced labor consultant/service lawyer, show all emails, appointment letter, standing orders, and give inputs in person. Your lawyer can examine the merits and may opine that employee can agitate and claim notice pay from company/Lay off /retrenchment compensation.
If the matter being claimed as a disciplinary issue is just a trivial matter then it can be construed that company had decided to lay off the employee however it applied tactics and took advantage of ill informed employee and made a pass on him and dodge the law.
The line management and HR extracted resignation by force and are now trying to extract monies by misleading the employee and lawful authorities.
--“The policy states that, the employee needs to refund the amount is he is leaving the company within 2 years of service.”
It is strange.
Is it stated in standing orders of the company?
Since the employee has been ordered to give up his employment by resignation this claim of the company may not stand.
The employee has not requested relocation. The company has deputed the appointed employee to join at location allocated to employee.
It may very well be the strategy and tactics of the company to send the employee to far off location (away from his native town) where he won’t have anyone to fall upon and thus won’t agitate, even if his career is destroyed and destructed.
Another tactics employed by such individuals in line management and HR is that thet threat the employee for a bad reference check, and coerce him so that employee does not approach a lawful authority.
--“hence, his notice period recovery is almost nullified, since he was not given salary for the last month.”
He should be paid full salary as usual for the whole month.
Notice pay may be adjusted @ Basic + DA only as the employer disburses paid leave, bonus, gratuity, OT at this rate.
The company should also issue acceptance of resignation, work experience/service certificate, relieving letter, PF number/account slips/pass book/attested copies of PF withdrawal-transfer forms, Gratuity (if bonus, gratuity is mentioned in CTC sheet employee may stake a claim to it in consultation with his lawyer), correct FNF statement, Form 16 as per correct FNF statement, NOC/NDC……
Employee may decline to accept the FNF statement citing resignation was extracted by force/and it is erratic and point out the errors.
You may decide now what exactly you want to do, and approach your lawyer ,under stand the merits and proceed as deemed fit.
All representations may be now drafted as per your final decision by a competent and experienced labor consultant/lawyer and addressed to good offices of appointing authority, MD, Chairman, Company Secretary……..
If good offices also do not intervene and do not provide relief then legal route, lawful authority becomes an option, e.g. O/o Labor Inspector/ALC in Labor Commissioner, Wages Inspector, Inspector under SE act……or civil court.
The designation alone does not decide employee is a workman or not. Your lawyer may ask a set of structured questions and may opine that employee is a workman. The labor laws applicable to a workman limit the choice to employer.
You may refer to SE Act of your state. e.g.;
The Delhi Shops and Establishments Act, 1954
SE Act e.g. SE Act Delhi:
19. TIME AND CONDITIONS OF PAYMENT OF WAGES.
21. CLAIMS RELATING TO WAGES.
35. Inspection of Registers and calling for information.
37. POWERS AND DUTIES OF INSPECTOR.
COMMENTS
(b) Duties of the Inspector :
(h) that the wages and other dues are being paid to employees in time as required under the Act;
(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;
41. WILFULLY MAKING FALSE ENTRIES
THE PAYMENT OF WAGES ACT, 1936
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;
Model Standing Orders: 13. Termination of employment,
15. Complaints., --16. Certificate on termination of service.-, 17. Liability of 17[employer].-- 18. Exhibition of standing orders.--
The payment of wages and certificate of service should have been supplied to employee on last day in office or within two days.
Valuable advice of learned experts/members is sought.
YOU may find some other threads also as useful:
https://www.lawyersclubindia.com/forum/Wrongful-termination-of-service-75297.asp
https://www.lawyersclubindia.com/forum/Termination-of-Manager-without-domestic-enquiry-39548.asp
https://www.lawyersclubindia.com/forum/Termination-without-domestic-enquiry--74967.asp
https://www.lawyersclubindia.com/forum/Suit-claiming-damages-and-criminal-case-60347.asp#.USTEvTf3S8A
https://www.lawyersclubindia.com/forum/Unpaid-full-final-settlement-and-salary-75058.asp
https://www.lawyersclubindia.com/forum/Human-resources-not-issuing-reliving-letter-75197.asp
