Mahr
Head - Human Resources
Psdhingra
Legal Analyst, Hrm
Skhadir
Strategic Business Management Includes Revenue
Globaloverseas144
Soical Compliance Auditing
Cite Contribution
Community Manager
Essykkr
Statutory Complaince/labour & Employment
Yaasmin
Administrations
Vkokamthankar
Asst. General Manager - Hr
Krishnarajpr
Hr Manager
Odhiambo.ooko@kprl.co.ke
Human Resources Officer
Rajkumar Rai
Hr Executive
D.N.Sharma
Service
Pchaku
Management
+14 Others

Hi All,
One of our employee has comitted gross breach of trust and before we could terminate him he has put down papers,is there any rule that we cannot terminate someone after he has put down his papers.
Kindly help me in this as I have to take a decision today itself.
Regards,
Arpita
25th March 2011 From India, Bangalore
Hi, You will get some clue from the below judgement of Supreme court. Chairman cum Managing Director, Coal India Ltd., Vs Mukul Kumar Choudhuri 2009(123)FLR 601. Regards, Krishnaraj P R 9840355204
25th March 2011 From India, Madras
Dear Krishnaraj, Could you please give a brief outline of the case and judgement? Also, can we look up cases on the Internet? Any particular site? Regards, Kavitha
25th March 2011 From India, Bangalore
Hi Arpita, You need to let us know the situation and the notice period the employee is serving.
25th March 2011 From India, Bangalore
Arpita,

As far as my knowledge and exp. you won’t be able to terminate him now as he himself resigned.

But yes, you can take action on the grounds of agreement if must have been signed on joining for breaching rules of the employment.

rgds,
nm

25th March 2011 From India, New Delhi
if he has put his resignation then let him go, terminating would definately play hinderence to his careeer.
25th March 2011 From India, Mumbai
Dear Arpita,
Termination of any employee is a question of the nature and severity of the gross negligence done by an employee.
There are no hard and fast rules and regulations to deal with such type of situations. The only guide is Principal of Natural Justice.
If the Gross negligence you are quoting are of sever nature and are prooved, you can terminate the concerned employee even if he has submitted his resignation.
Regards,
Manoj Thakur
25th March 2011 From India, Mumbai
Dear Arpita,
You cannot terminate an employee who has already resigned. A resignation marks an end to the employment with the company. Accepting and relieving are processed post it, to close the employee records with the company.
Once the end has been marked, until, and, unless it is revoked or taken back by the employee, the employment stands terminated.
Hence, at the most you may relieve the employee before the due date. However, the misconduct, needs to be resolved. If an incident has been reported, it requires closing. Relieving the employee would require clearance from every area, including financial, legal and official responsibilities.
Please share the background to this case and allow us to brainstorm a solution.
Regards,
(Cite Contribution)

25th March 2011 From India, Mumbai
Dear Senior,
I think Termination is a tool to excercise employers right in case of sever gross negligence by an employee. This tool is used for setting examples for all employees. Hence in this contest I do not agree that an employee can not be terminated after his resignation.
Lets have a comparison on this ..
Commiting a severe crime and accepting the same and becoming ready silently for consequences or punishments does not necessarily mean that the Judiciatry will remain silent. Indeed the punisment will be confirmed in writing even if the criminal accepts. These things are done to set examples in broder perspectives and larger social or corporate interests.
Regards,
Manoj Thakur

25th March 2011 From India, Mumbai
I have not gone through the complete judgment. But the point discussed in that case was, that the employee was long absent. He has submitted his resignation subsequently. the management has not accepted his resignation and charge sheeted for long absence and terminated.
the court has held that termination is wrong and resignation to be accepted and acted upon.
regards,
krishanraj p r

25th March 2011 From India, Madras
what's agreement of Service and how it can be terminated.
if the employee has already resigned it means put end to the agreement of service and communication of same given to other party.
so after that Is the agreement of service is still in force ?no it has been come to an end after the resignation of an employees.
Even though termination is the tool of employer to check the gross misconduct and negligence but their are certain check and balance on the same, that also need to be excercised with due process, after taking into consideration Principle of Natural Justice.
25th March 2011
Until the resignation letter is accepted his terms with the employer does not end. However, if his breach of trust does not attract any criminal proceedings / no police action is required, then it is better to relieve him at the earliest. Prolongation of litigations are also not good omen for the employer.
Regards,
25th March 2011 From India, Hyderabad
Thanks for all of your sugessitions,let me brief you all the situation,he is working as a delivery manager and is responsible for one of our very critical project,we have information that he along with the client has cheated us and now the project is out of our Co and now he is planning to join our client and he is also pressurizing other employees to join the client so that they can build the same team directly with the client and we have confirmed information on that as one of our employee has given us this information because he has shown us the offer letter that he has got from the client.Now the delivery manger hsaagot the hint that the management is aware of this so before we could take any action today morning he has put down his papers.
Let me know in this situation what should we do whether to accept his resignation and send him or give him termination and to make him realize his mistake because it is a big loss to the CO.
Regards,
Arpita
25th March 2011 From India, Bangalore
If we go as per Mr. Thakur's suggestion, then we need the employee's case study first to give out the proper suggestions.
Before giving sunch an severe punishment to employee (which is going to block his future, with no consideration of his dependents etc), we need to first discuss what is the matter, what did he do so serious?
Dear Arpita,
Please post complete case of the employee's wrong act including his reporting boss's role.
25th March 2011 From India, Mumbai
Dear Arpita,
Please collect the data that you have and proceed for the incident resolution as per the guidelines of your company. You need to resolve it before you issue any clearance for him.
At the time of relieving him, please ensure not just him, but all your employees sign a NDA which includes the non-compete clause. This will prevent anyone who had worked in your company, from joining your clients for the lock -in period which is ideally 3 yrs or more.
Please do speak to the legal advisor to your company. You would be able to design a fitting agreement.
Vendor and client poaching is very common. You need to mitigate this to avoid every such event in the future.
Regards,
(Cite Contribution)

25th March 2011 From India, Mumbai
First let us know the position and nature of work of an employee. If he/ she is workmen, though he has resigned and you would like to terminate services due to misconduct, you need to hold domestic enquiry to prove that the resignation/ explanation is not obtained by force. Termination of employee, would rather complicate the issue and even spoil the career of employee. Even our judiciary is taking lenient view while awarding capital punishment. So think from the HR angle and take vice decision.
26th March 2011 From India, Mumbai
Hi Arpita
I am having some other view in this matter.
If an employee has put up his paper before you can take any action, then whether to sanction his resignation or not is Employers right.
Rather then sanctioning his resignation, you can terminate him if his act comes under your company's terminating policies.
Hope this might help u.
Regards
PaTri
26th March 2011 From India, Vadodara
What is the purpose of termination , you want to remove him from services. When he him self wants to go accept his resignation & releive him forth with. He then can not go to court. But if you terminate him he can file the case against you challanging your action of termination. The court proceedings are lengthy time consuming & involves lot of expenses. Besides this the court verdict can not be predicted, even if one side wins there is again provision of appeal to high court further prolonging the litigation.
Please take the wise decision & releive him forth with.
G Y Suhas
26th March 2011 From India, Bangalore
Dear Arpita,



Both ways the ball is in your court, whether you punish your manager for his misconduct or accept his resignation when he himself has volunteered to break relations with your company.



No doubt the employer has the right to take action for misconduct of the employee and termination is a tool to excercise employers right in case of severe & gross negligence, but I am in total difference with the opinion of Mr. Manoj Thakur in so far as preference of termination over acceptance of resignation of the employee, as the employee has thrown his defence tool also before the organization to counter the move of the organization.



SO, EVEN THE RIGHT OF EMPLOYER HAS ALSO TO BE EXERCISED VERY WISELY, SO THAT IT MAY NOT BECOME A CAUSE OF ANY LIABILITY LATER.



In fact the sole aim of the organization is to eliminate such a culprit who is working against the interests of the organization, whether he is terminated or he resigns himself. SO, just weigh the pros & cons of both the alternatives before you and take final decision accordingly, but with cool mind and not in a rash manne or just to exercise the right of the employerr.



The damage has already been done and now there is a need to avoid any more damage.



So, the question now arises, if his resignation is not accepted and he is terminated, whether your organization would like the employee to change his mind and decides to fight the decision of the company to remain in the organization to create more nuissance by bringing in court order to get the decision of the management null & void and starts making more damage to the company later? NATURALLY, THE COURT WOULD FIND MERIT MORE ON ACTION ON RESIGNATION IN PREFERENCE TO TERMINATION BY THE MANAGEMENT.



Further, even if his resignation is accepted (a peaceful solution for the mansagement), what bars the organization from lodging a complaint with the police for his deceiptful acts and get punished through a court of law for his criminal conspiracy against the company and the act of his criminal conspiracy against his employer by misuse of the confidential information of the company and damage done to the company? You can even seek court's order for claiming the damages from that manager for the loss inflicted to the company by virtue of his intentional criminal conspiracy, so that other employees may also take adequate lesson from the instance.



So, JUST THINK, whether you prefer to become defencive in buying a headache of facing a court case filed by the employee against the decision of his termination, or to have an upper hand and become offensive to get him duly punished by law and to claim damages from him, besides also eliminating him peacefully from the scene and avoiding any more damage to the organization?



Hope I am not wrong in my opinion and you would find it worth implementing easily.



PS Dhingra

CEO

Dhingra Group of Management & Vigilance Consultants

New Delhi








26th March 2011 From India, Delhi
Dear Gentleman, Pl go through the approved Standing Orders and Terms and conditions of Appointment Letter and take the action as per clouse given in the same.
26th March 2011 From India, Delhi
  • Purpose of termination in this case is very clear. Employee has acted against the interest of the employer, it is a clear case of breach of trust and he needs to be appropriately punished. Such action and punishment against employer will also set example for other employees in organization and will act as deterrent for others.
  • I do not feel Delivery Manager is a workmen and he is not likely to challenge the termination in court.
  • Nobody should be afraid of courts or legal process. Follow the legal process and do right things. Law breakers should be afraid of Police, Courts and Legal System and not law abiding upright employer.
  • Go into merits of the case seek proper legal advice and take appropriate action.

26th March 2011 From India, Pune
  • Punishment needs to be given in case of misconduct and crime. At the same time punishment has to be appropriate and in accordance with the severity and nature of misconduct and crime.
  • If in case termination is appropriate in this case, let it be. Resultant career set back is also a part of punishment.

26th March 2011 From India, Pune
  • You want to tolerate every misconduct and crime and you do not want to punish anybody.
  • Punishment needs to be given in case of misconduct and crime. At the same time punishment has to be appropriate and in accordance with the severity and nature of misconduct and crime.

26th March 2011 From India, Pune
Putting down the papers, you mean he has submitted his resignation or that the resignation has been accepted. I think it makes a lot of difference.If the resignation has been accepted, then probably it will be difficult to take action.
26th March 2011 From India, Bangalore
Dear Arpita,
Once there is a misconduct, it leads into a domestic enquiry. Once the enquiry is in motion, an employee cannot get clearance. Since we do not know the misconduct, it would be unfair to commit. If the misconduct is financial related, you can allow him to resign after getting a compensation from him. If the misconduct is criminal, other authories may need to be involved. But if the misconduct is not so severe, the enquiry committee can give a suitable punishment and then allow him to resign without termination so that his career is not messed up.
How long has he worked for your company? How has his performance been otherwise?
Regards
26th March 2011 From India, Visakhapatnam
Even after tendering resignation an employee remains employee like any other employee and all rules will be applicable to him till he is relieved. If he has committed serious breach of trust and caused monetary loss to the company the management need not relieve him. Management may reject his resignation, take proper disciplinary action and dismiss him as punishment after the charges are proved at an enquiry. Even after dismissal police complaint could be lodged for the breach of trust causing monetary loss. This is for setting an example for others.
If there is no monetary loss but the breach is serious he can be terminated on loss of confidence. This will set an example and may affect his career also but one should learn a lesson too. Otherwise anybody will commit such serious breach and get away with resignation.
26th March 2011 From India, Mumbai
Hi
If the misconduct is of criminal nature then law will takes its own course and the employee is bound to bear the burnt of it or if it is a minor issue in terms of verbal spat then let the case die its own death.The management should not persist termination to satisfy its inflated ego ,I affraid it may not hold good in the court at later stage.
reagrsd
Naresh Kumar
26th March 2011 From India, New Delhi
Hi Arpita,
I dont think you can terminate an employee who had already taken the ownership for his mistake by resigning his job. Also, in some instances a memo should be handed over to the respective employee before termination formalities (depending upon the complexity of the breach).
Possibly you can ask the employee to surrender a penalty amount for his breach. Termination may hamper his career life going forward.
Regards
Sajeev
26th March 2011 From India, Madras
  • I feel Mr. P S Dhingra has given a very good advise. He has considered all possible scenarios and each sentence in his advise is important.

26th March 2011 From India, Pune
Dear Arpita
You wrote to "One of our employee has committed gross breach of trust and before we could terminate him he has put down papers"
You haven't given us the complete picture to provide you a perfect solution as per LAW.
A) Did your management accepted his resignation?
B) If "NO" then you can initiate action for the BREACH OF TRUST as per the REGULATIONS OF LAW and your COMPANY POLICY, followed by TERMINATION.....
c) If "YES" then BID him FAREWELL.
Before he leaves your oganisation, kindly educate him about him mistake, so that he should hesitate to commit in future.
If you wish, you can share whatever he had committed wrong so that it could be a case study for us.
With profound regards
26th March 2011 From India, Chennai
Hi Arpita,
In either of the case there will be severance of the employee and employer relationship , hence the first question is why you want to terminate such employee ?
The employee relieved after termination has stigma.
However every employee has to follow rules / guidelines as per standing orders / service contract till the last minute of his working whether normal or in notice period and employee committs grave misconduct during this period , you can terminate his services with due proceedings.
Regards,
Raj Kumar Rai
26th March 2011 From Australia
As per my view , unless and until resignation is accepted, an employee deemed to remain employee and thus management has full right to reject his resignation and may order for his suspension followed my proper inquiry on the subject.
vinay
d.dun
26th March 2011 From India, Delhi
Dear Mr. Rajeev
I hope you are educated but i have no idea how you became HR PROFESSIONAL.
a) Are you aware of what is being discussed in this thread?
b) Can you define the MAJOR PURPOSE of launching CITEHR COMMUNITY?
Why are you people not following basic ethics...How did you acquire your EDUCATIONAL QUALIFICATIONS so called DEGREEES....Please use your COMMON SENSE and APPLY LOGICE before you do anything.
In the middle of discussion, you are posting your requirement...Whatever you did, do you call it as PROFESSIONAL APPROACH? People like are degrading CITEHR because you are not using your BRAIN...Start using it, so that you can really grow up............WAKE UP MR.RAJEEV
I request all SENIORS, MODERATOS, MENTORS, MOTIVATORS to educate people like Mr. Rajeev. Its our prime job, only then we can make the best use of this community.
With profound regards
26th March 2011 From India, Chennai
Hi Arpita,
Same case was about to happen in my office also.But we have mentioned in our terms and policy document that an employee can not join any client of the company till two years.So this way we were secured and that employee didn't join our client.
So,please check your company policy document if this policy is there so non of employee can do like this.And if you don't have this policy so you should add this aspect immediately.
Thanks
Riddhi
26th March 2011 From India, Delhi
Cool cool every body.....................................
Dear Arpita,
What is the contents written at resignation letter submitted by him?
If he himself apologized and agree to mistake committed in the resignation letter then based on your analysis/results and manager consent you can terminate him with immediate effect.
But it would be better if you take another letter from the employee stating for release me with immediate effect and you can accept his resignation letter and release him(not terminate) ,but on the letter of agreement of termination against contact letter(issued at the time of his joining) you can write the cause of his resignation/termination of contracts letter with your organisation.
26th March 2011 From India, Delhi
Dear HR Managers,
My friend has also come across such sort of incidence. He is working in one of the leading private bank in india from last three years. as he get another oppurtunity to work so he resigned from his earlier company after clearing all there dues on first february 2011 and then ask his senior to accept his resignation but his senior had not accept the resign .he also get the salary of the february month then in the first week of the march 2011 his senior came and handing him over his termination letter in the wake of an issue regarding which my friend was questioned in the month of october 2010.
is this the right way of termination to somebody and what are legal course of action are open for my friend. please reply ASAP
26th March 2011 From India, New Delhi
Dear Amit,
It will not be wise to comment on the legality or illegality of the termiation without going through the nature of offense supposed to have been committed by your friend in the month of October. So, it will be quite premature to provide any proper solution in the absence of the detail of the incident on which he was questioned earlier.
You may, therefore, like to provide complete details of the incidence that your friend had to face on which he was questioned, the process adopted by the management to deal with that offence case, and also the case of resignation, including any correspondence entertained from and to the management during the process of resignation, as well as the contents of the termination letter.
The case would need to be reviewed in totality and not from a single point of view of termination letter only.
PS Dhingra
Chief Executive Officer
Dhingra Group of Management & Vigilance Consultants
New Delhi
[dcgroup1962@gmail.com]

27th March 2011 From India, Delhi
DEar Arpita,
The reply to your question has to be dealtwith in two parts.
1. the resignation submitted by the employee is not complete until the same is accepted by the employer.
2. termination of employment is the out come of two circumstances:
a) after serving a notice if stipulated in the terms of epmloyment with the grounds of termination
b) after providing natural justice to the employee to defend himself against the allegations stipulating the misconduct by way of a charge memo followed by an domestic enquiry. prove him guilty of the misconduct and then terminate him.
in the circumstances expalined by you mere acceptance of his resignation will serve your purpose of keepin him out of your employment.
Partha Chakrabarty
27th March 2011 From India, Mormugao
hi arpita
- there is no law which states that u cannot take disciplinary action against one who has committed some misconduct.
- one is an employee till he is relieved officially
= but u hv to see what is that breach of trust and how much damage it has caused to the organisation. if it is serious certainly u can take action, as this will b lesson to all
- but this is legal process, till the same ends, it is commitment to both the parties and the procedure is always cumbersome and lengthy one. also the same are questionable in courts.
- so i feel, if the breach of trust is not serious, relieve him immediately and while giving service certificate u can mention performance as below satisfactory or something to that effect
normally i hv done that even in cases of theft and misappropriation of funds, so that it will save time, energy and money to the oganisation
dr nagaraj

27th March 2011 From India, Bangalore
Dear Arpita,
Options
a) You have not specified act leading to breach of trust. Still, If you have substational evidence you may move to court of law for breach of trust..
2)Since employee has resigned from the services.Termination do not have sense except holding his legal dues.
R D Watve
27th March 2011
Mr. Dhingra is absoluetly right. Without being in the know of all facts of the matter, an off the cuff opinion will not be most appropriate. If all the facts of the matter are furnished one can give proper opinion/advice.

However, in the present case where the employee has resigned for whatever reasons, it will not a great idea to terminate his services. It will clearly appear to be a vindictive act.

Here it sems that the management is peeved with the employee and just wants to "fix" him, good.

Since the employee has already resigned, best would be to accept the same and arrange to relieve him at the earliest.

To address the situation further, you may decide not to give him a good experience certificate/reference.

I know of a real life situation where the MD of the Co. issued a termination order under his signature and in the said letter he actually terminated the services of the said employee "three times". Some venom that!!! (misplaced?)


Best Wishes,

Vasant Nair

27th March 2011 From India, Mumbai
Hi, if the resignation papers acknowledged by the employer has received - no way to terminate resigned person. Rgds, A. Krishnamoorthy
27th March 2011 From India, Madras
Dear All,
I hope we all are trying to learn certain things where SYNERGY is required. Lets not get tooooooooo serious.
Lets come to a point where we should accept CERTAIN FACTS and implement the same at all levels. Let us define a solution based on FACTS. We all are employees and we should help ourselves and our co-workers as well.
We should never try to spoil anybody's career. Its really unfair on anybody's part.
With profound regards
27th March 2011 From India, Chennai
Dear Dhingra Sir,
The case was that my friend has some life insurance policies of sister concern of the company in his name which his friend x has confirmed that he has done those policy on behalf of my friend as he has to repay some old debts to my friend . Even my friend was receiving the letters confirming the same at his communication address when my friend has checked those things from the insurance company it was confirmed to him that that the policy is updated with his communication address ,DOB as well as PAN Card number. when he approached the insurance company for redemption of the policy insurance peoples ask him for his ID proof and cancelled cheque he submit his pan card and savings account cheque . the insurance company has taken almost 15 days to process the payment in his savings account.after a month of crediting the payment my friend has received a call in the month of september 2010 from internal risk management team regarding the confirmation of the same .they ask him that why he has claimed the payment he gives proper reasoning for the same that he is expecting the same amount from one of his friend with whom he has no contact from last 6 months.as the money does not belong to him so he return the full amount accordingly . after that he has not received a single communication neither from the HR nor from risk management so he assumes that the things are over .and he starts working like before it is after that he receives a good opportunity so he decides to resign on 1st FEB 2011 and all this mess has begun you are requested to please advice him accordingly
27th March 2011 From India, New Delhi
Dear All,
It may be alright in politics to commit corruption and resign before the people outcry. It is also good for a saint to take a lenient view and forgive a wrong doer. But in the society, particularly in industries, stern action must be taken against gross indiscipline. I appreciate the feelings and goodness of Namobita Ji and would agree to take a lenient view only if the concerned employee apologizes for his mis-deeds and promises good behaviour in future; otherwise not. If the chapter is closed with mere acceptance of his resignation, it is likely that he would repeat it elsewhere with more boldness. To the best of my knowledge and belief, no law prevents any employer from rejecting resignation letter and dismissing the culprit from service after due process of law i.e. serving a chargesheet, conducting enquiry etc. which deprives him of his gratuity.
27th March 2011 From India, Pune
Dear ,
If this act is affecting Company Image , then Consult your Advocate who will be able to give clear legal guidance. Act accordingly taking in to account the quantum of damage. Normally these advocates guide us well , it is upto us to deal the case in a firm and fair way.
R.Srinivasan
28th March 2011 From India, Mumbai
Dear Shyam,
I suggested appropriate action on the breach and NDA which can include non-compete agreement, where an employee cannot join a client or a vendor and start the business within the lock in period which is three to five years.
Punishment would not remain valid if the right course for the future is not defined.
Regards,
(Cite Contribution)

28th March 2011 From India, Mumbai
Dear Arpita,
One can certainly understand your frustration at having spent so much time and money on recruiting someone, only to have them resign.
However terminating someone (except on grounds of illegal activity) also has a negative impact on the brand value of the company in the market. As long as this person studied for his MBA examination during his leave as promised, he has fulfilled his ethical and moral obligations to the company.
One cannot really prevent an employee from searching for better opportunities elsewhere. As for attending the interviews, he could have done that anyways, whether or not he was on leave. Even if this person has attended interviews.
I would gently submit, that you perhaps need to reconsider your decision on terminating this person. A better way would be to simply let him resign.
28th March 2011 From India, Bangalore
Pl find concerned Coal India Ltd., Vs Mukul Kumar Choudhuri 2009(123)FLR 601. judgement from Supreme court of India
28th March 2011 From India, Mumbai

Attached Files
Membership is required for download. Create An Account First
File Type: pdf Coal India Ltd., Vs Mukul Kumar Choudhuri 2009(123)FLR 601..pdf (170.5 KB, 231 views)

Hi to all HR members or seniors,

This is regarding the same thing happened to my friend he has been firstly asked for change his desingation or job role i.e. Project manager(Audit) to Mgr-Admin in an education industryafter joining of 3 months without any reason becoz a senior employee was jealous with his performance or always creep before him that you have less exp. & still u & me are on the same profile & has done some kind of politics & my frnd has to accept the change as he was in probation & question of Career & he moved to their saharanpur office for administration profile & after 1 month they had terminatd him giving reasons that he was distracted from his work & job laziness yet it was not the case he has done his best i was aware of his work.

Can u suggest me the ways how he will be able to releive properly & able to get the service certificate & he has still not accepted the termination letter.he has to give the reply today (28th March,2011)

If such things happen to anyone .............wat one shd do becoz its a question of one's career or life.

Pls suggest some solution......hoping for a positive reply ASAP!!

Regards,

Aashi
28th March 2011 From India, Mumbai

Add Reply Start A New Discussion

Cite.Co - is a repository of information created by your industry peers and experienced seniors. Register Here and help by adding your inputs to this topic/query page.
Prime Sponsor: TALENTEDGE - Certification Courses for career growth from top institutes like IIM / XLRI direct to device (online digital learning)





About Us Advertise Contact Us
Privacy Policy Disclaimer Terms Of Service



All rights reserved @ 2019 Cite.Co™