Dear All, Please let me known can a pvt ltd. company terminate an employee on grounds of misconduct. Kindly, reply need to understant the process if yes. Thanks in advance. Regards William Viera
From India, Mumbai
From India, Mumbai
No, you can not terminate an employee without holding an enquiry. If in your observations the misconduct is very severe, you can place him under suspension and then hold an enquiry and finally discharge or dismiss him depending upon the reports of the Enquiry Officer. But the act of straight away dismissing or discharging an employee will be illegal even if you have solid proof of his severe misconduct.
Regards,
Madhu.T.K
From India, Kannur
4250Regards,
Madhu.T.K
From India, Kannur
Hello,
Sorry but the post contains too little information to enable to answer effectively and properly.
Whether Private Limited or otherwise, is NOT the question.
One needs to know:
1) What industry? (Mfg./Service/ financial/Insurance or any other)
2) How many employees (and how many "workmen" under Industrial Disputes Act 1947?)
3) Applicability of Industrial Employment (Standing Orders) Act 1946
4) Service Rules in place?
5) What level of the employee in question and what seniority?
6) What misconduct?
7) If the employee is a "workman" under Industrial Disputes Act 1947, is there a Trade Union organized?
The above information is necessary to decide the approach you should adopt.
If the concerned employee is a "workman" (existing of a Trade Union notwithstanding) and Standing Orders (under the Act) are applicable, normally you will NOT be able to terminate his employment without following due process of law, case law etc. If he is Not a "workman" you may have a little wider issue to handle and decide the issue.
Therefore to get properly advised, you need to share all relevant information!
One would like to help but only after getting all necessary information please.
Regards
samvedan
May 6, 2011
----------------
From India, Pune
Sorry but the post contains too little information to enable to answer effectively and properly.
Whether Private Limited or otherwise, is NOT the question.
One needs to know:
1) What industry? (Mfg./Service/ financial/Insurance or any other)
2) How many employees (and how many "workmen" under Industrial Disputes Act 1947?)
3) Applicability of Industrial Employment (Standing Orders) Act 1946
4) Service Rules in place?
5) What level of the employee in question and what seniority?
6) What misconduct?
7) If the employee is a "workman" under Industrial Disputes Act 1947, is there a Trade Union organized?
The above information is necessary to decide the approach you should adopt.
If the concerned employee is a "workman" (existing of a Trade Union notwithstanding) and Standing Orders (under the Act) are applicable, normally you will NOT be able to terminate his employment without following due process of law, case law etc. If he is Not a "workman" you may have a little wider issue to handle and decide the issue.
Therefore to get properly advised, you need to share all relevant information!
One would like to help but only after getting all necessary information please.
Regards
samvedan
May 6, 2011
----------------
From India, Pune
Hi!!! Thanks....
1) What industry? (Mfg./Service/ financial/Insurance or any other)
A) Value Chain Manufactures.
2) How many employees (and how many "workmen" under Industrial Disputes Act 1947?)
A) There are about 80 employees..
3) Applicability of Industrial Employment (Standing Orders) Act 1946
A)
4) Service Rules in place?
A) Yes.
5) What level of the employee in question and what seniority?
A) A Material Planning Eexcutive.
6) What misconduct?
A) The person was not commited to the customers when the dispatches were required and he just left the office and also locked the computer with password. The issue was minor salary raise.
7) If the employee is a "workman" under Industrial Disputes Act 1947, is there a Trade Union organized?
A) No..., No....
Please provide inputs, to handel the problem.
Thank you,
Regards
William Viera
From India, Mumbai
1) What industry? (Mfg./Service/ financial/Insurance or any other)
A) Value Chain Manufactures.
2) How many employees (and how many "workmen" under Industrial Disputes Act 1947?)
A) There are about 80 employees..
3) Applicability of Industrial Employment (Standing Orders) Act 1946
A)
4) Service Rules in place?
A) Yes.
5) What level of the employee in question and what seniority?
A) A Material Planning Eexcutive.
6) What misconduct?
A) The person was not commited to the customers when the dispatches were required and he just left the office and also locked the computer with password. The issue was minor salary raise.
7) If the employee is a "workman" under Industrial Disputes Act 1947, is there a Trade Union organized?
A) No..., No....
Please provide inputs, to handel the problem.
Thank you,
Regards
William Viera
From India, Mumbai
Dear
looks this is not a case for termination but a severe warning.
rajanassociates
https://www.citehr.com/285737-legal-...-industry.html
From India, Bangalore
looks this is not a case for termination but a severe warning.
rajanassociates
https://www.citehr.com/285737-legal-...-industry.html
From India, Bangalore
Hello,
Based on answers to my questions I find it is clearly possible to terminate services of the concerned employee. Whether the company should do so is purely company's decision. Legally your action to terminate his services will be sustained IF by the facts of the job responsibilities attached to him and performed by him we can documentarily prove (when needed at an appropriate forum).
Principles of Natural Justice however demand of you to consider:
If after this kind of consideration, the company comes to the conclusion that his services NEED to be terminated, you have to refer to that clause in the Letter of Appointment that stipulates the the conttract of employment between th company and this individual can be terminated at some notice period or compensation in lieu ofthe notice period. Relying on such a clause you must inform him simply that "as empowered by that clause (kindly quote the same) the company has decided to terminate his employment. You may or may not mention the reason of this decision.
Having issued the letter be kind and give his F & F settlement as expeditiously as possible. Thereafter contibue to hope that this matter will not progress further.
Having said all this, I must CAUTION you to not accept such advices tendered on a message board blindly BECAUSE it wrong for anyone to give such advice in extreme matters WITHOUT examining any relevant document. Kindly note this particularly. Such matters should, ideally be discussed in person and the concerned documents are seen in personal interaction. To that extent, you may consider this advice as guideline and NOT advice in your particular matter.
Regards
samvedan
May 7, 2011
--------------------------
From India, Pune
Based on answers to my questions I find it is clearly possible to terminate services of the concerned employee. Whether the company should do so is purely company's decision. Legally your action to terminate his services will be sustained IF by the facts of the job responsibilities attached to him and performed by him we can documentarily prove (when needed at an appropriate forum).
Principles of Natural Justice however demand of you to consider:
- his past employment record and
- seriousness of misconduct.
If after this kind of consideration, the company comes to the conclusion that his services NEED to be terminated, you have to refer to that clause in the Letter of Appointment that stipulates the the conttract of employment between th company and this individual can be terminated at some notice period or compensation in lieu ofthe notice period. Relying on such a clause you must inform him simply that "as empowered by that clause (kindly quote the same) the company has decided to terminate his employment. You may or may not mention the reason of this decision.
Having issued the letter be kind and give his F & F settlement as expeditiously as possible. Thereafter contibue to hope that this matter will not progress further.
Having said all this, I must CAUTION you to not accept such advices tendered on a message board blindly BECAUSE it wrong for anyone to give such advice in extreme matters WITHOUT examining any relevant document. Kindly note this particularly. Such matters should, ideally be discussed in person and the concerned documents are seen in personal interaction. To that extent, you may consider this advice as guideline and NOT advice in your particular matter.
Regards
samvedan
May 7, 2011
--------------------------
From India, Pune
Dear Mr Williamviera
In response to the query raised by you I am extracting a portion of the Judgment of the Honourable Supreme Court of India in Workmen of Firestone Tyre and Rubber Co of India (Pvt) Limited vs. the Management reported in 1973 I LLJ page 278. This extract I have taken from the book “The Law of Industrial Disputes” Fifth Edition by Shri O.P.Malhotra.
The following is the extract
(1) - - - -- - - - - -
(2) Before imposing the punishment an employer is expected to conduct a proper enquiry in accordance with the provision of the standing orders, if applicable and principles of natural justice. The enquiry should not be an empty formality.
(3) - - - - - - - - - - -- - -
(4) Even if no enquiry be held by the employer or if the enquiry held by him is found to be defective the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and the employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action: and it is open to the employee evidence to the contra.
(5) - - - - - - - - - -
(6) - - - - - - - - - -
(7) - - - - - - - - - -
(8) An employer who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action should ask for it at the appropriate stage. If such an opportunity is asked for the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged act of misconduct.
(9) - - - - - - - - - - -
(10) - - - - - - - - - - -
The above guidelines have ever since been followed by the Honourable Supreme Court and the various Honourable High Courts. I have not reproduced certain portions which are not relevant to the present discussion.
The above extract answers your query regarding passing an order of dismissal without conducting an enquiry . Even after the management adduces evidence before the Tribunal and even if the Tribunal finds that the enquiry had been conducted according to the principles of natural justice and the provisions of the standing orders, still the dismissal could be set aside on the ground that the punishment of dismissal is disproportionate to the misconduct proved.
Apart from the above, it is open to the employer to dismiss an employee without conducting an enquiry on the ground of “loss of confidence”. However, the employer has to prove before the Tribunal how he came to the conclusion that he lost confidence in the employee. The employee may allege that the employer was actuated by mala fide motives while dismissing him from service. These are all matters of evidence.
From India, Madras
In response to the query raised by you I am extracting a portion of the Judgment of the Honourable Supreme Court of India in Workmen of Firestone Tyre and Rubber Co of India (Pvt) Limited vs. the Management reported in 1973 I LLJ page 278. This extract I have taken from the book “The Law of Industrial Disputes” Fifth Edition by Shri O.P.Malhotra.
The following is the extract
(1) - - - -- - - - - -
(2) Before imposing the punishment an employer is expected to conduct a proper enquiry in accordance with the provision of the standing orders, if applicable and principles of natural justice. The enquiry should not be an empty formality.
(3) - - - - - - - - - - -- - -
(4) Even if no enquiry be held by the employer or if the enquiry held by him is found to be defective the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and the employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action: and it is open to the employee evidence to the contra.
(5) - - - - - - - - - -
(6) - - - - - - - - - -
(7) - - - - - - - - - -
(8) An employer who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action should ask for it at the appropriate stage. If such an opportunity is asked for the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged act of misconduct.
(9) - - - - - - - - - - -
(10) - - - - - - - - - - -
The above guidelines have ever since been followed by the Honourable Supreme Court and the various Honourable High Courts. I have not reproduced certain portions which are not relevant to the present discussion.
The above extract answers your query regarding passing an order of dismissal without conducting an enquiry . Even after the management adduces evidence before the Tribunal and even if the Tribunal finds that the enquiry had been conducted according to the principles of natural justice and the provisions of the standing orders, still the dismissal could be set aside on the ground that the punishment of dismissal is disproportionate to the misconduct proved.
Apart from the above, it is open to the employer to dismiss an employee without conducting an enquiry on the ground of “loss of confidence”. However, the employer has to prove before the Tribunal how he came to the conclusion that he lost confidence in the employee. The employee may allege that the employer was actuated by mala fide motives while dismissing him from service. These are all matters of evidence.
From India, Madras
Dear Mr.VKS
Paying the notice pay and terminating the worker would amount to retrenchment and is not dismissal. Please refer to the definition of the term "retrenchment" as defined in the Industrial Disputes Act 1947. It says that the termination of the services of a workman for any reason whatsoever excepting for the exceptions mentioned in the section amounts to retrenchment. This definition was interpreted by Justice V.R.Krishna Iyer to mean that even if a worker's services come to an end by efflux time, that is the appointment order will prescribe the date on which the worker's service would come to an end, it would amount to retrenchment. At the time the judgment was pronounced, the clause 2(oo)(bb) was not in the Industrial Disputes Act and it was introduced later. Therefore if the services of the worker are terminated only by giving him the required notice, the employer would be opening himself up for litigation on the ground that the employer had retrenched the worker without following the procedure prescribed by law(here Industrial Disputes Act). If the matter goes to the Labour Court, the employer has to give the reasons for dismissing the worker. Though the Supreme Court had said that a worker can be dismissed without conducting an enquiry, it had also said that if the worker raises the issue before the Labour Court, then the employer has to put forth a legally valid defence that the worker was guilty of a misconduct as stated in the certified/model standing orders applicable to him and also lead evidence before the Labour Court to establish the misconduct alleged against the worker and also contend and prove that the punishment of dismissal is proportionate to the misconduct alleged. Moreover, the query raised is whether a person against whom a misconduct is alleged can be dismissed/terminated without enquiry. Even in the case of dismissal without enquiry, the dismissal order has to specify the misconducts alleged against the worker, and also the reasons for dispensing with the conduct of the enquiry.
From India, Madras
Paying the notice pay and terminating the worker would amount to retrenchment and is not dismissal. Please refer to the definition of the term "retrenchment" as defined in the Industrial Disputes Act 1947. It says that the termination of the services of a workman for any reason whatsoever excepting for the exceptions mentioned in the section amounts to retrenchment. This definition was interpreted by Justice V.R.Krishna Iyer to mean that even if a worker's services come to an end by efflux time, that is the appointment order will prescribe the date on which the worker's service would come to an end, it would amount to retrenchment. At the time the judgment was pronounced, the clause 2(oo)(bb) was not in the Industrial Disputes Act and it was introduced later. Therefore if the services of the worker are terminated only by giving him the required notice, the employer would be opening himself up for litigation on the ground that the employer had retrenched the worker without following the procedure prescribed by law(here Industrial Disputes Act). If the matter goes to the Labour Court, the employer has to give the reasons for dismissing the worker. Though the Supreme Court had said that a worker can be dismissed without conducting an enquiry, it had also said that if the worker raises the issue before the Labour Court, then the employer has to put forth a legally valid defence that the worker was guilty of a misconduct as stated in the certified/model standing orders applicable to him and also lead evidence before the Labour Court to establish the misconduct alleged against the worker and also contend and prove that the punishment of dismissal is proportionate to the misconduct alleged. Moreover, the query raised is whether a person against whom a misconduct is alleged can be dismissed/terminated without enquiry. Even in the case of dismissal without enquiry, the dismissal order has to specify the misconducts alleged against the worker, and also the reasons for dispensing with the conduct of the enquiry.
From India, Madras
If the misconduct committed by employee is serious/severe he can be terminated from service without holding domestic enquiry.
Please let me known can a pvt ltd. company terminate an employee on grounds of misconduct. Kindly, reply need to understant the process if yes. Thanks in advance.
Regards
William Viera[/QUOTE]
From India, Tiruchchirappalli
Please let me known can a pvt ltd. company terminate an employee on grounds of misconduct. Kindly, reply need to understant the process if yes. Thanks in advance.
Regards
William Viera[/QUOTE]
From India, Tiruchchirappalli
Dear Mr.Kumaresank
Please see my post in the previous page. It answers your query. Whether the misconduct is serious or not or severe or not is different from termination without holding domestic enquiry. Even if a worker is dismissed for a misconduct which is serious/severe according to the management/employer, after following the proper procedure, it could be set aside by the Labour Court on the ground that the punishment of dismissal is disproportionate to the charges held proved.
From India, Madras
Please see my post in the previous page. It answers your query. Whether the misconduct is serious or not or severe or not is different from termination without holding domestic enquiry. Even if a worker is dismissed for a misconduct which is serious/severe according to the management/employer, after following the proper procedure, it could be set aside by the Labour Court on the ground that the punishment of dismissal is disproportionate to the charges held proved.
From India, Madras
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