Suhas 18 December 2015

Wrongful termination

Hi all respected professionals. I work for a KPO company. I have been terminated stating that I've involved in a malpractice during my final evaluation(to confirm the job after training in probationary period ) by taking the picture of question paper. Evaluation was given even though they were aware that training was done just half way as i was on leave for 35 days owing to the work place injury. I took the photo of the question paper as most of the questions were on the uncovered topics through which i can claim if i fail. And same explanation was given for the show cause notice which says I've misconducted and have been detrimental to the company as per clauses mentioned on the appointment letter. Even after that they've given a termination letter in which an additional clause "violation of company's private intellectual property" is included which was not there in the show cause letter. I noticed it after signing the termination letter in front of their legal advisor(FnF is cleared). Don't you think it's a wrongful termination? Please help and share your opinions so that i can think further and contest legally. PS, -35 days leave was loss of pay -They have considered that giving even lop leave during probation is a privilege(I had to under go knee ligament reconstruction surgery because of the work place injury.) -They're not even giving experience certificate of 6 months on my request. -Medical bills are cleared from them. -My TL was not good with me as I didn't agree that granting leave for work place injury is a great privilege. Because company has agreed that they are accountable for the injury.

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18 Replies

Adv. Yogen Kakade (+ 91 9225510883) 18 December 2015

Consult a labour officer in your area.

Suhas 18 December 2015

Hi. Thank you for your valuable response.

I have consulted. I just want to get opinions as to if it's worth fighting legally on this and do you think it's a wrongful termination.

Kumar Doab (FIN) 18 December 2015

Query posted and replied at following link also: ....................https://www.lawyersclubindia.com/experts/Wrongful-termination--575676.asp...........

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Suhas 18 December 2015

Thank you Mr Kumar.

Suhas 18 December 2015

MR Kumar,

On the show cause notice only two clauses were mentioned. "Misconduct" and "detrimental to company"

But on the termination letter an additional clause is there "Violation of company's intellectual property"

Are they allowed to add one more clause like that on termination letter which was not mentioned on the show cause notice?

Suhas 20 December 2015

(Clauses on appointment letter)

13. Termination
a) If you or the Company wish to terminate your employment, either party may do so provided a notice period of two months shall be given to the other in writing

(b) You recognize that given your responsibility within the organization and the need for a transition should you wish to terminate your employment with the Company; the above period is necessary and reasonable. (c) The Company shall be entitled to terminate your employment ."for cause" forthwith, without notice or compensation in the event you:
(i) Have been found guilty of any misconduct or indiscipline;
(ii) Have violated any of the Terms of Employment and Conditions of Employment, any Standard Conditions of Employment or anNo;ision of the Employment Intellectual Property Protection Agreement;

(iii) Have been persistently unpunctual, or neg ct...,,A your duties or performed your duties in a manner unacceptable to the Com ,
(iv) Become the subject of bankrupt (v) Are convicted for any oQf1. \der any law for the time being in force in any jurisdiction. (vi) Do not have tha9 or physical capacity to carry out your official functions, responsibilities kduyes. (vii) Commit any act detrimental to the interests of the Company.
14. Consequences of Termination
(a) You shall at the time of leaving the employment of the Company, deliver back to the Company any and all Company Property, devices, records, data, notes, reports, proposals, lists. correspondence, specifications, drawings, blueprints, sketches, equipment, confidential information or any other documents or property, or reproductions of any of the aforementioned items provided to you pursuant to your employment w ith the Company or otherwise in the possession of the Company.

Attached File :

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Suhas 20 December 2015

(Show cause notice)

Sub. - Warning Letter
It has been brought to our notice that you were engaged in conduct detrimental to the interests of the company. Specifically, violating clause 13 (c) (i) and (vii) of Appointment letter entered between you and (company name) by involving in malpractice during L4 assessments on November 20, 2015.
You are hereby advised to submit a written explanation for the above mentioned incident before 30111 Nov 2015 & show-cause for the behavior exhibited. (Warning letter/Show cause notice )

Suhas 20 December 2015

(Termination letter)

Subject: Termination Notice Ref: letter of Appointment dated lune 11, 2015 between you and (Company name) _ _ We egret to inform you that you have been found engaging in conduct detrimental to the interests of the company. Specifically, you have been violating the clause Representations Termination 13 IC) (i),(ii) & (vii).
Such conduct entitles the Company to terminate your employment without notice or compensation as per clause 13 (C) (i) (ii) & (vii) of your Letter of Appointment dated lune 11, 2015. Accordingly, the Company hereby terminates your employment with effect from November 30, 2015
Notwithstanding the fact that your employment with the Company wilt cease from the Termination Date, you will continue, even after your employment ends, to be bound by the terms of Employment or any other agreement entered into by you with the Company during the course of your employment. You will also reasonably assist the Company to obtain, and to enforce, any inventions, works and intellectual properties in India and any other foreign countries
You need to deliver back to the Company, on or before your Termination Date, all Company Property belonging to the company, including but not limited to your ID Card. We regret this necessary course of action.

Suhas 20 December 2015

Clauses in bold (Appointment letter) are the ones mentioned on the Showcause notice. Clause highlighted in yellow(Appointment letter) is the additional clause included on the termination letter.

Suhas 20 December 2015

(Clause on appoinment letter related to the additional one on termination letter (13 c. ii ))

15. Confidentiality and Intellectual Property Protectioa

(a) You agree to keep confidential. whether during or after the termination of your employment, and not to disclose or to make use of any information of the Company. including its clients. associates and business partners. that is by its nature confidential or hich is communicated to you to be confidential.

(b)You will not reproduce. store in a retrieval system or transmit in any form or by any means hether electronic. mechanical, photocopying, recording. scanning or otherwise. any copy righted material which is the property of the company for your own benefit or for the benefit of any third party - either during the course of your employment or on termination of your employment. If you are found doing so you shall be liable to be dismissed and may be prosecuted both under civil and criminal laws. You shall also be liable to compensate the Company for any loss incurred to V\onipany and the same will be adjusted from the dues payable to you. The decisi Management in this regard is final.

(c), Any intellectual property developed by you diming your employment with the Company. including any copyrights, designs. patents, layouts. mask w,orks. etc shall be the exclusise property of the Company and you hereby assign all rights in relation to such intellectual property to the Company on a w odd% ide and perpetual basis and agree to do all such acts to perfect such assignment to theCrpany (di In order to more effecti, ply Set out the detailed rights and obligations of the parties in relation to protection•nfidential information and intellectual propeny, you shall execute the Compan 's Ploy ee Intellectual Property and Confidentiality Protection Agreement and agree t d by its terms. 16. Non Solicitation I on Compete
(a) You shall not directly or indirectly, or through any other pan.. solicit or offer employment to any persons who are employees of the Company or its affiliates for a period of three years after the date of termination of your employment with the Company. (b) You shall not, directly or indirectly, or through any third party, solicit business from, any customer of the Company for a period of three years after the date of termination of your employment with the Company. tc) You shall not, directly or indirectly, perform services or take up employment with any competitor of the Company for a period of three years after the date of termination of your employment with the Company.

Suhas 20 December 2015

So by the additional clause i may be prosecuted both under civil and criminal laws?

Kumar Doab (FIN) 20 December 2015

You have posted that you copied Question Paper.

It is already pointed out that Question Paper is candidates property and even copy of answer sheet can be provided on request and also ACR/appraisal.

Did you reply to SCN?

If yes who drafted the reply? Do you have copies of SCN and reply?

What is civil and criminal liability in it is to be understood in detail by careful examination of the volouminous material that you are citing.

You neeed to spend quality time with an able counsel specializing in labor-servie matters.

You are at which location?

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Suhas 21 December 2015

Mr Kumar,

Yes I replied to the SCN. (Same as I have mentioned in the opening post of this thread)

I myself drafted it. I have a copy of SCN but not the reply(They do not know that i don't have the copy of the reply. Do i have the right to ask for it now?)

One of the best senior employment lawyer is guiding me on this. But my lawyer may not be too good with Intelectual property protection laws and labour laws related to private sectors.

I did not accept the termination letter on 30th Nov as few medical bills were not claimed. So I was asked to visit Company legal advisor's office(16th Dec) where i received cheques for FandF/medical bills and i had to sign on backdated termination letter.

My lawyer is looking forward for a negotiation as it takes too long to contest and win. All i want is at least an experience(6 months)/Relieving letter from the company(Also there is an employement bond for 2 Years). I was suggested to send an official mail to the company asking for it before sending them a legal notice. I have mailed them as shown below.

Respected ....... ma'am,

As mentioned on the Backdated Termination letter, I have already returned all company property belonging to the company.

I request you to help me by giving an experience/relieving letter which is required to join any other organisation, without which my life will be restricted owing to the fact that masking terminated employment history with the potential employer is unlawful. The other side, I cannot provide the termination notice to the potential employer as all three clauses mentioned on it are not justified and also due to an additional clause mentioned on the termination notice which doesn't reflect on the show cause notice.

I hope you are aware that I am going through mental and physical agony even now as an impact of ligament reconstruction surgery which I had to undergo because of an accident happened in the premises for which the vice president has clearly stated "It is not my mistake". I cannot move to different city or state seeking for a job as of now and until complete recovery of my reconstructed ligament despite of having the career potential.

I hereby humbly request you to provide my experience/relieving letter as early as possible which definitely helps me to continue my career unhindered as you want me to exit the employment with (Company name)

I intend to request you before I inevitably have to contest legally.

Expecting your earliest reply

Yours faithfully,

Suhas.

I am located at Mysore/Karnataka.

What if they do not provide me an experience certificate? Contesting legally against them also impacts on my career

Kumar Doab (FIN) 21 December 2015

The reply sent by you could have been attached with termination order.

In nay case it shall be case document and shall have to be produced.

How come question paper becomes intellectual property?

Service certificate has to be supplied to all employees.

Relieving letter signifies that nothing is due against employee. As per your post you owe nothng but the compnay ows to you.

After Service certificate,Relieving letter you have to clear BGV.If possible get good comments in Relieving letter.

However you shall have enter reason of leaving previous employment as 'Terminated'.

Therefore it is imperative that you contest termination and get it called back.

If you contest it does not mean that you can not be employed/or do business elsewhere.

Since the company has effected termination (on alleged misconduct) the bond should be dead now.

It is upto you if you can engage the company in negotiation and close by defending your interest.

You may check if the KPO has been exempted from standing orders from DLC/Certifying Officer and whether it has certified standing orders and does these cover your designation or model standing orders shall apply.

Once you have confirmed post back.

Did you employment lawyer advise on standing orders!

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