Dear All,
Greetings!
I have case to Discuss. Mr.X appointed in a particular department and working for last 15 years in the company. Now in the year 2006 2 of the person caught by security in stealing company products. Management chargesheeted them and domestic enquiry conducted.
Due to some reason the domestic enquiry was pending for last 3 years and it is going on. Now the lawyer, Suggested us to terminate the culprit after 3 years.
I need a termination letter for the same justifying the reasons for delay + in case of full & final setllement which are the head we have to pay.
For ex:- bonus for particular financial year + attendance for that period.
Now at the time of suspension before 3 years his leave balance is 240 days and that time we used to encash 210 days, now we are encashing only 180 days. Which amount we should encash.
Whether we have to pay subsistence allowance.
Your response will be highly appreciated.
Regards
Ranjeet
From India, New Delhi
11Greetings!
I have case to Discuss. Mr.X appointed in a particular department and working for last 15 years in the company. Now in the year 2006 2 of the person caught by security in stealing company products. Management chargesheeted them and domestic enquiry conducted.
Due to some reason the domestic enquiry was pending for last 3 years and it is going on. Now the lawyer, Suggested us to terminate the culprit after 3 years.
I need a termination letter for the same justifying the reasons for delay + in case of full & final setllement which are the head we have to pay.
For ex:- bonus for particular financial year + attendance for that period.
Now at the time of suspension before 3 years his leave balance is 240 days and that time we used to encash 210 days, now we are encashing only 180 days. Which amount we should encash.
Whether we have to pay subsistence allowance.
Your response will be highly appreciated.
Regards
Ranjeet
From India, New Delhi
Dear Jeeni, If the charges are not yet " Finally " proved after 3 years how you can penalise the employee it is totally against the principle of Natural Justice. I suggest you to not to do this.
From India, Pune
From India, Pune
Dear Jeeni,
I agree fully with Prashanth. When the domestic enquiry is not fully completed dismissal of employee is not fair. To dismiss an employee for a misconduct there are only two ways
a) Either dismiss without any enquiry - discharge simplicitor and later lead the evidence in the court of law if the dismissal is challenged.
b) OR complete the domestic enquiry, obtain the findings where the charges have been proved to a satisfactory level to command the dismissal. then issues a final( second ) showcause notice to the charge sheeted employee asking why he/ she should not be dimissed citing the relevant posrtions of the enquiry report and then effect the dismissal quoting that his / her explanation to the show cause is not valid/ satisfactory or there are no exonerating factors.
Dismissal during pendency of enquiry with substantial delay will be colored and viewed as
unfair tactics.
c) Also clarify on what basis your lawyer is suggesting them to be dismissed. Is he the one who is conducting the domestic enquiry?
Kind regards
Dayanand L Guddin
HR Advisor BOBST INDIA
From Singapore, Singapore
I agree fully with Prashanth. When the domestic enquiry is not fully completed dismissal of employee is not fair. To dismiss an employee for a misconduct there are only two ways
a) Either dismiss without any enquiry - discharge simplicitor and later lead the evidence in the court of law if the dismissal is challenged.
b) OR complete the domestic enquiry, obtain the findings where the charges have been proved to a satisfactory level to command the dismissal. then issues a final( second ) showcause notice to the charge sheeted employee asking why he/ she should not be dimissed citing the relevant posrtions of the enquiry report and then effect the dismissal quoting that his / her explanation to the show cause is not valid/ satisfactory or there are no exonerating factors.
Dismissal during pendency of enquiry with substantial delay will be colored and viewed as
unfair tactics.
c) Also clarify on what basis your lawyer is suggesting them to be dismissed. Is he the one who is conducting the domestic enquiry?
Kind regards
Dayanand L Guddin
HR Advisor BOBST INDIA
From Singapore, Singapore
A domestic enquiry is expected to be completed within a reasonable time frame. If it is not done due to non cooperation of the employee then the management is in safe side whereas if the enquiry has been delayed due to management not conducting the enquiry then there is every chance that the accused may get relief from a higher authority like Court if he challenges the verdict.
Regarding Subsistance allowance it should have been paid through out these three years during which he was under suspension. The rate of such allowance should be there in your Standing Order also. If subsistance allowance is not paid, then it is another fault on the part of the employer.
Whenever final settlement of an employee is made the policy prevailing will always be applied. As such if leave is encashed the present policy regarding leave encashment is to be applied. However, in this case since the employee has been under suspension he may not be bound by the new policy of encashment of only 180 days. I hope that if unpaid salary is to be paid now the salary due will be the amount due before three years. In the same manner he should be allowed 240 days leave encashment at the rate which was applicable then.
In the termination letter you need not mention reasons for delay but before issuing such a letter it would be advisable to give him a second show cause notice calling him to show cause "why the findings of the enquiry officer should not be implemented".
Please go through a presentation on Disciplinary action available in my blog following the link below.
Madhu.T.K
Regards,
Madhu.T.K
From India, Kannur
Regarding Subsistance allowance it should have been paid through out these three years during which he was under suspension. The rate of such allowance should be there in your Standing Order also. If subsistance allowance is not paid, then it is another fault on the part of the employer.
Whenever final settlement of an employee is made the policy prevailing will always be applied. As such if leave is encashed the present policy regarding leave encashment is to be applied. However, in this case since the employee has been under suspension he may not be bound by the new policy of encashment of only 180 days. I hope that if unpaid salary is to be paid now the salary due will be the amount due before three years. In the same manner he should be allowed 240 days leave encashment at the rate which was applicable then.
In the termination letter you need not mention reasons for delay but before issuing such a letter it would be advisable to give him a second show cause notice calling him to show cause "why the findings of the enquiry officer should not be implemented".
Please go through a presentation on Disciplinary action available in my blog following the link below.
Madhu.T.K
Regards,
Madhu.T.K
From India, Kannur
Dear madhu Sir,
I have no words to show my gratitude for you. For last 3 years, we are paying subsitence allowance to them every month but the termination delayed every time. After the enquiry, in report it eas mentioned that they culprit and can be terminated.
The lawyer who had conducted enquiry is a panel member of our legal expert. The culprit had objected the same.
Would request you to suggest how to deal with this case know. What we all have to write in the second cause notice.
Regards
Ranjeet
From India, New Delhi
I have no words to show my gratitude for you. For last 3 years, we are paying subsitence allowance to them every month but the termination delayed every time. After the enquiry, in report it eas mentioned that they culprit and can be terminated.
The lawyer who had conducted enquiry is a panel member of our legal expert. The culprit had objected the same.
Would request you to suggest how to deal with this case know. What we all have to write in the second cause notice.
Regards
Ranjeet
From India, New Delhi
The objection by the employee should be documented. Therefore, it is better to issue a second show cause notice. If I take the same wordings as given my own presentation (hope you have downloaded it from my blog which is also available in this citehr but as we are not able to find the pages of blogs you may find it difficult to get) the following letter may be sent.
To Date
---------
Sub: Shaw Cause Notice
WHEREAS you were charge sheeted for an offence as stated.
AND WHEREAS you were granted an opportunity to defend the charges by way of Domestic enquiry which commenced on ____ and ended on ___ (dates)
AND WHEREAS you have failed to prove your innocence before the Enquiry Officer.
NOW THEREFORE, the management is constrained to take disciplinary action against you.
Without prejudice and following the Enquiry Officer’s report your act of misappropriation has been proved to be a serious misconduct which attracts punishment which may extend to dismissal from service.
THEREFORE, you are hereby called upon to show cause why findings of the Enquiry Officer should not be accepted. A copy of the findings of the Enquiry Officer is enclosed herewith for your perusal.
Your written reply should reach the undersigned within____ days.
Sd/-
Disciplinary Authority/ Appointing Authority
On receipt of the above he will respond that he can not accept the findings. Then you need not rely on that reply but you can send a letter terminating him from service. If it is a discharge you have do do full and final settlement and preparte gratuity note. If he does not turn up to collect the amount you can deposit the amount with the District Labour Officer of your area otherwise you will have to pay interest.
Since he has disagreement he may go to court for redressal. In the hearing you can show all the documents pertaining to the enquiry. Only thing that weakens the management is that you took a long three years to decide an issue. Otherwise everything is believed to be legal and after following principles of natural justice.
You can prepare termination letter as follows:
To Date
--------
Sub: Order of Termination of Service
Ref: Charge sheet No____ dated____
Pursuant to the charge sheet above referred and findings of enquiry report dated____, the management has come to the conclusion that the charges leveled against you have been proved categorically.
As you have been found guilty of serious misconduct, the management has decided to dismiss you from service. However, on compassionate grounds, we have decided to take a lenient step by imposing a lesser punishment by discharging you from service with effect from/ with immediate effect.
You are, therefore, directed to settle your dues including salary dues and handover the charges to Mr________ during office hours on_________
Sd/-
Disciplinary Authority/ Appointing Authority
Regards,
Madhu.T.K
From India, Kannur
To Date
---------
Sub: Shaw Cause Notice
WHEREAS you were charge sheeted for an offence as stated.
AND WHEREAS you were granted an opportunity to defend the charges by way of Domestic enquiry which commenced on ____ and ended on ___ (dates)
AND WHEREAS you have failed to prove your innocence before the Enquiry Officer.
NOW THEREFORE, the management is constrained to take disciplinary action against you.
Without prejudice and following the Enquiry Officer’s report your act of misappropriation has been proved to be a serious misconduct which attracts punishment which may extend to dismissal from service.
THEREFORE, you are hereby called upon to show cause why findings of the Enquiry Officer should not be accepted. A copy of the findings of the Enquiry Officer is enclosed herewith for your perusal.
Your written reply should reach the undersigned within____ days.
Sd/-
Disciplinary Authority/ Appointing Authority
On receipt of the above he will respond that he can not accept the findings. Then you need not rely on that reply but you can send a letter terminating him from service. If it is a discharge you have do do full and final settlement and preparte gratuity note. If he does not turn up to collect the amount you can deposit the amount with the District Labour Officer of your area otherwise you will have to pay interest.
Since he has disagreement he may go to court for redressal. In the hearing you can show all the documents pertaining to the enquiry. Only thing that weakens the management is that you took a long three years to decide an issue. Otherwise everything is believed to be legal and after following principles of natural justice.
You can prepare termination letter as follows:
To Date
--------
Sub: Order of Termination of Service
Ref: Charge sheet No____ dated____
Pursuant to the charge sheet above referred and findings of enquiry report dated____, the management has come to the conclusion that the charges leveled against you have been proved categorically.
As you have been found guilty of serious misconduct, the management has decided to dismiss you from service. However, on compassionate grounds, we have decided to take a lenient step by imposing a lesser punishment by discharging you from service with effect from/ with immediate effect.
You are, therefore, directed to settle your dues including salary dues and handover the charges to Mr________ during office hours on_________
Sd/-
Disciplinary Authority/ Appointing Authority
Regards,
Madhu.T.K
From India, Kannur
Have you received the findings of the Enquiry Officer. What does the report of the EO state? Has the Eo held that the charges levelled aginst the workman have been proved beyind a shadow of doubt?
Do you have Standing Orders in your Co. Does it provide for issuing of a Show Cause Notice to the workman asking him to explain in writing why the proposed punsihment not be inflicted upo him?
Further cours eof action will depend on responses to thes ebasic queries.
Where are you located?
In case you need further clarifications, please feel free to call me on my mobile: 09717726667 or contact me on email:
Best Wishes,
Vasant Nair
From India, Mumbai
Do you have Standing Orders in your Co. Does it provide for issuing of a Show Cause Notice to the workman asking him to explain in writing why the proposed punsihment not be inflicted upo him?
Further cours eof action will depend on responses to thes ebasic queries.
Where are you located?
In case you need further clarifications, please feel free to call me on my mobile: 09717726667 or contact me on email:
Best Wishes,
Vasant Nair
From India, Mumbai
Dear Madhu & Nair Sir,
Thanks for your valuable suggestion.
Madhu sir, u are always helpful. I have no words to express my feelings of respect towards you. U are always helpful.
Dear Nair sir,
Yes the EO had given his findings and recommended that we should terminate the both culprit. Yes in our standing order their is a provision of the same also. I am located in Delhi and working with a brand name in Hospitality.
Regards
Ranjeet
From India, New Delhi
Thanks for your valuable suggestion.
Madhu sir, u are always helpful. I have no words to express my feelings of respect towards you. U are always helpful.
Dear Nair sir,
Yes the EO had given his findings and recommended that we should terminate the both culprit. Yes in our standing order their is a provision of the same also. I am located in Delhi and working with a brand name in Hospitality.
Regards
Ranjeet
From India, New Delhi
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
Legal Clarification on Termination for Criminal Case & PF Contribution Reduction.pdf
Unlawfull Termination- Case details.docx