Dinesh Divekar
Business Mentor, Consultant And Trainer
Anil.arora
Administration Head
Hardeep
Scalper :-)
Cite Contribution
Community Manager
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
Raj Kumar Hansdah
Shrm, Od, Hrd, Pms
Loginmiracle
Consultant & G.m.
V. Balaji
Ir & Hr
Satish@monarchcatalyst.co
Sr.manager-hr Monarch Catalyst Pvt.ltd.
Rajsinghphogat
Labour Law Consultant
+2 Others

I am just curious here - which specific law allows an employer to fire someone on account of a dismissal from a previous employer - or even a conviction, once the sentence has been served? Request my learned friends here to site case law please . Thanks
13th December 2012 From United States, New York
Dear Hardeep,

Is this real situation or your idle intellectual curiosity?

Terminating an employee from employment because previous employer had terminated the employee is nonsense. Why the current employer wanted to dig on the past?

Secondly, what about the "Service cum Experience Certificate"? What reasons are mentioned for separation? Is it written "terminated on account of misconduct"? If these were the remarks then why the employee was taken on roll without checking the past certificates?

In India many times employees are terminated. Termination is sequel of the domestic enquiry. Even then also while issuing the employment certificate not necessarily employers mention real reasons of the separation. Rather reason for separation is written as "normal".

Since you work in USA, I recommend you checking local labour laws. However, US is very strict as far as principles of natural justice are concerned and this kind of termination will obviously violates the principles of justice.

Ok...

Dinesh V Divekar


14th December 2012 From India, Bangalore
Greetings,
My apologies, Hardip had posted his query on this thread. I moved it to a new thread, as I realised , it needs discussion of its own. I missed out on pointing out the relevance. My bad !
Thankyou for your patience , looking forward to this discussion
14th December 2012 From India, Mumbai
Dear All,

There is difference between dismissal and termination. Dismissal is outcome of the domestic enquiry in the misconduct of the employee whereas termination of services of an employee is based on the contingent conditions which are mentioned in the offer letter such as :-

1. Previous conviction in any criminal case.

or

2. Previous misconduct and consequent dismissal in the previous employment.

or

3. Any other such contingent conditions before the confimation of the employee on the rolls of the Company and during the probation period of the employee.

However as such there is no rule in the Labour Laws to debar and terminate the services of an employee due to any of above contingent conditions during the probation period and it is governed by the conditions of the offer letter only.

More over there are rules of employment in the Government sector which specifically debars the employment on previous conviction in crimianl cases as well as for those who are dismissed ( not removed) in the previous employment, But these rules are for the employment in the government sector only and not for the private employment.

I think it is ample clear that how termination takes place. How ever now a days it is hardly mentioned in any rare of the rarest cases about the dismissal of an employee due to misconduct during the separation of the employee by the past employer and if it mentioned then too, it not mandatory for the present employer to take action based on the findings of the previous employer.

Thanks to all.

Raj Singh Phogat

(www.labourconsultant.com)
14th December 2012 From India, Delhi
Dear Hardeep,

There is no law as to how a person should be selected and appointed. It's all left to the appointing authority. Every such authority could evolve a set of procedure for the process unlike govt.sector. Atleast this sector leads us in this role. Particularly reg.verification and obtaining proper documents of the appointed. This process makes a fairly adequate precautions before a person is added to the roll of an employer. Despite the preliminary steps taken there bound to be displeasure on various reasons. Any dismissal by an employer definitely place the employee in awkward position/place one on the defensive in the employment market though a candidate may prove his competency and capability. No employer would take things lightly when a candidate sitting before the interview team was a terminator(ed) or a dismissed and the employer cannot be reprimanded for being circumspect on this count. Definitely the onus squarely on the candidate to come out clean. But having undergone all the precautions and after appointing the suspect, dismissing only on his previous conduct us little unfair and is disputable.

kumar.s.
14th December 2012 From India, Bangalore
Dear Hardeep

I liked your query because of its novelty; and I am pleased that our senior members have responded with enthusiasm.

I would like to add herewith, as below :

* Both kinds of separation - Termination as well as Dismissal, can be a result of penal disciplinary action and are generally inflicted as Major Punishment on the outcome of a Departmental Enquiry upon committing a Major Misconduct by a Delinquent.Charge-sheeted employee. Only in few cases, Departmental Enquiry may not be held, as the charges are so extreme or already proven that an enquiry to establish/prove the charges are not required. E.g. - employment on the basis of false declaration; punishment or involvement in any criminal case; involvement in sexual harassment; financial embezzlement etc.

* Major difference between Termination and Dismissal is that in case of the latter, there is no scope of re-employment in the same company in future. In fact, this is the reason that one is Dismissed from service, so as to prevent him from being hired again.

* Only in Government or Public Sector Undertakings, persons with a history of criminal conviction by a Court of Law; and those who have been dismissed from services earlier; are debarred from employment. This is also the reason that in government services, Police Verification is mandatory.

* A private sector employer can hire a person who has been dismissed or have served a sentence. It depends on their own policies.

Hope the above information is helpful.

Warm regards.
14th December 2012 From India, Delhi
Mr.Hardeep, This is an interesting query. Mr.Raj Singh Phogat has abundantly anwered your query.You may find such provision in statutes governing affairs/
servcie conditions in government sector or public sector undertakings. I remeber the Banking Regulation Act which regualtes the affairs of public sector banks contains a provision (probably Sec.10) prohibiting employment of any person who is convicted of offences involving moral turpitude.
B.Saikumar
HR & Labour Law adviosr
Mumbai
14th December 2012 From India, Mumbai
In govt. sector/PSUs there is a system Attestation Form with questionnaire about the past. This is an important procedure a prerequisite for joining a dept. Pl.see the attachment.
14th December 2012 From India, Bangalore

Attached Files
Membership is required for download. Create An Account First
File Type: doc Attestation Certificate and Identity Certificate.doc (50.0 KB, 3173 views)

Hai hardeep,
i am first impressed negatively with ur quarry. But it is enlightical thought. When i posted in hr side my boss told me that to go through the organisational personnel rules i immediately told him that i first use my common sense than only i will refer any rule. Because of ur quarry very valid opinions cropped up and have enriched the knowledge. This type of knowledge is required to solve industrial problems which were taken place spontaneously. In our public sector companies many cases are pending due to lack of initiation and broad idea in this area.
14th December 2012 From India, Visakhapatnam
Hello Hardeep,
Quite a few opinions & comments & suggestions have come-up from the members to your query.
However, suggest pl CLARIFY/CONFIRM if this is a real-life situation for which you wanted suggestions/advice [like Dinesh V Divekar mentioned]--no two situations are identical, even though there may be many similarities. Like the saying goes: "what's good for the geese may not be good for the gander".
Based on what you posted, looks like you COULD BE referring to a case/situation of 'conviction' for action OUTSIDE OFFICE [& consequent serving of sentence as decided by the Courts] rather than any dismissal/termination due to actions @ work. Pl confirm reg this aspect--a lot of what the members mentioned so far will change IF this indeed is the case.
And you DO NEED to give the details---any straight-jacket solution won't fit into every situation, like I mentioned above.
Rgds,
TS
15th December 2012 From India, Hyderabad
Everything depends upon the contract of employment. If the contract has some enabling provision that in such cases an employee can be terminated, then and then only you can terminate the employee concerned. Otherwise it can be challenged in a court of law.
15th December 2012 From India, Madras
It all depends on the company. There is no Law that prevents an employer (private companies) to hire such people. As our members said above, the are rules prevailing in the Govt. on this score.
It is fundamentally a concept that any employer would want his potential employees to have a clean chit before being inducted. In Madras, many organizations send their investigation officers to neibhourhood to verify the credentials of one being hired. Once the report is positive, then the offer is issued.
However, there were some employees who lost their job in my company on account of misappropriation or any other despicable reason, had been hired by my competitors (knowingly or unknowingly) It is their wish. They dont mind those gullible guys. May be they are under pressure to complete the projects in time and hence the decision - may be technically they are good (and because of this, they do not want to lose this guy).
V. Balaji
15th December 2012 From India, Madras
Dear all,

If I go one step further, may be it's too far, but still within the context. Any wrong doing either within the firm or outside can be dealt by law of the land, more specifically the Cr.PC etc. Just a hypothetical, if a person who indulges in anti social acts like terrorism, smuggling, hawala, money laundering etc either with the connivance or otherwise of the employer such acts straight away under the scanner of state laws.In which case even the employer, knowingly or unknowingly could be accused of abetting a crime either for the past or present or for future plans. The pre-offer verification process thro' whatever sources, are increasingly popular even in many private firms now a days which is inevitable as the change over of employees one to other is frequent or for that matter absconding as well. Who knows there could be such rules/acts even for private firms in the future. Incidentally, there is a talk going rounds in political circle that a legislation banning bribing & crafting in private sector, may be they exempt political parties from such ambit.

kumar.s.
15th December 2012 From India, Bangalore
Thanks (Cite Contribution) for providing the context of this query. Even I was wondering where my query had gone to ! :-)

My learned friends have provided good inputs. The way I read it there are two scenarios

a) Public Sector : Where the rules generally forbid such a person from getting re-employment in the Public Sector.

b) Private Sector : Where the actions are per Employment Offer / Company Policies/ Terms of Contract.

Carrying this further, can not such stipulations be challenged, even if part of the Contract to which both parties have signed ?

To my mind, such a stipulation that a ( past ) criminal can not be hired again / be removed if his past record is found out EVEN IF he has served out the legally provided punishment for the said offense is patently unfair to the Worker and will not hold in any Court. Once a sentence has been served the Law could / should - and perhaps even does - lean towards reform. Else we are just encouraging similar conduct again due lack of opportunities to someone well qualified on all parameters of the job but denied the opportunity due some actions he has already been punished for, and can not undo now !

AFAIK, in the US / Europe even a whiff of such a discrimination - not to talk of many other lesser ones - would land the employer in serious trouble !

Have there been such cases in India - and what have the Courts finally ruled ?

Appreciate all inputs

best

Hardeep
17th December 2012 From United States, New York
Hello Hardeep,
You haven't mentioned if this is a REAL-LIFE situation you are seeking suggestions for or a case study you are doing.
If the former, suggest pl mention the details.
Like for any situation, the possibilities would be endless depending on the various parameters unique to that particular situation/case.
As any advocate member of CiteHR would confirm, no 2 cases are identical--even though there could be many similarities. So even if some member mentions references to any past court cases in India, I am not sure how much of it can you really generalize [or apply to whatever situation you have in mind].
Rgds,
TS
17th December 2012 From India, Hyderabad
Dear friends,

1. The context/procedure in Govt. and public sector is little different&clear as they have enough guidelines and precautions.

2. Whereas in case of Private sector there need not/cannot be a common code to regulate the process. Excepting some firms do have some such guidelines inforce as a corporate policy. Afterall decisions taken to recruit or reject seldom could be disputed.

In both the scenarios, the moot point is "whether an employer can sack an employee who was appointed despite the fact that he did reveal the his past (conviction) and let the employer know the full fact before he joined (he cannot be accused of suppression of past) " Am I correct ?.

Legally it can be viewed as an "after thought" may be some one else in the same firm didn't like his past and raised an alarm, as a result, the firm decides to sack. Methinks a person cannot be punished twice for the same crime. There is no concept of "residual" punishment. There are several instances that capital punishment awarded was commuted to a lesser or even condoned on various pretext, this is legal system. As such a victim, who otherwise proved worthy could deserve another opportunity ?.

kumar.s.
17th December 2012 From India, Bangalore
For Mr. Tajsateesh and others :
As already said by (Cite Contribution), the thread from which this discussion branched off is :
https://www.citehr.com/441460-real-l...need-help.html
Besides that there is no other specific case I have in mind. And even the case above is, hopefully, sorted out.
For sure no two cases are the same but it would be interesting to know of similar cases and how the Courts have viewed those , Judicial system relies heavily on "precedents " and general principles which are also elaborated therein.
Hence my initiation of this discussion.
Trust this clarifies...
best
17th December 2012 From United States, New York
Dear friends,
When I was just browsing thro' I could see the attached article,of course based on American scenario and found to be interesting on the first part of the subject V R discussing here. I would like share with U.
Would You Hire Ex-Felons? Hiring Ex-Convicts <link updated to site home> ( Search On Cite | Search On Google )
17th December 2012 From India, Bangalore

Attached Files
Membership is required for download. Create An Account First
File Type: doc Would You Hire Ex-convicts.doc (55.5 KB, 89 views)

That’s an Excellent Find Loginmiracle. Explains very lucidly what’s being discussed in this thread — and raises very pertinent questions too. Rgds, TS
17th December 2012 From India, Hyderabad
Yes indeed that is an interesting read provided by Loginmiracle.

Found another article giving some legal cases in the US as of 1999 - and the dilemma, pushes and pulls being faced there then on this matter.

Find it at :

Felon Protection - Reason.com

and some excerpts here ... :

" The Wisconsin Fair Employment Act makes it unlawful to hold a worker's or applicant's criminal record against him unless you're prepared to show in court that the record is "substantially" related to the employment. The standard example is that you don't have to offer a convicted embezzler a job as your bookkeeper. (That probably rules out Sweeney Todd as a barber, too, for now.) But so long as an ex-con applies for a job less directly related to his rap sheet, an employer in Green Bay or Kenosha is forbidden to give preference to a rival applicant who's never had trouble with the law. Nor will it necessarily get off the hook by citing the gruesomeness or notoriety of the applicant's offense--or the misgivings of co-workers or customers about dealing with him."

That is pretty clear .. yet , on some other cases the law has gone the other end too :

"To be sure, the EEOC's attempts to expand the frontiers of criminal protection have not always succeeded in court. In a 1989 case, it lost after having demanded that a trucking company hire felons to handle "high-risk" freight such as computers and pharmaceuticals. The words of U.S. District Judge Jose Gonzalez, throwing out the agency's contentions, could serve as a dry coda to the whole subject: If applicants "do not wish to be discriminated against because they have been convicted of theft," he wrote, "then they should stop stealing."

!!!

Any such cases in India ?
17th December 2012 From United States, New York
Excellent learning, number of suggestions, findings, expertise and interesting question.

First, I would like to say thanks to Ms (Cite Contribution) for giving this question a new domain as I believe that was really important to do so because the question is quite interesting and fruitful but already been answered by many members there at the original thread of Siva Sunder “Real Life Case” and here on this thread too.

I completely agree with Mr Raj Singh Phogat and Raj Kumar and other respective member

Our main question that we are discussing “which specific law allows an employer to fire someone on account of a dismissal from a previous employer” and the answer of this question in simple words is that there is no such law or rule defined by Law/Act that authorized Employers to terminate any employee with previous dismissal. And the conditions /limitations and factors that works for dismissal case (Dismissal/Termination comes under Section 2-A “Industrial Disputes Act-1947”), are different to this and never says this kind of condition and authorization but a rules/principles specified under Company Policies can’t also be overrule so easily as it has his own value too.

Now the questions comes in my mind that I wanna ask you all, please consider.

-Are company (Internal) policies containing every condition, rule advised by Laws/Act in India?

-What Company Policy valued to us and why we are following the terms, principles and conditions specified in it?



Answer of these questions posted above can also give us the direct answer of question asked by Hardeep and related to the case of Siva Sunder.

Second, “Dismissal is outcome of the domestic inquiry in the misconduct of the employee (said by Mr. Raj Singh above) that we all knows too, and by reminding you all that he never responded his employer back on their show cause notice where he asked to join back with a date, also he never resigned which will certainly be called a misconduct that automatically authorized employer to take action against him under Dismissal Terms I believe was valid.

And when present employer found this misconduct by employee with his previous employer (Dismissal on aforesaid reason of Siva Sunder in this case) deserve the rights for inquiry and termination on factors as found accurate based on their Company Policy Rules, I believe are valid too.

I bet no one would like to have any employee with case of dismissal on misconduct in previous employment or allow any employee to continue working on the same terms that are not acceptable according to own internal rules, principles or breech of conditions of employment.

Further, I don’t think there I need to define how history of an employee with any misconduct impact on present employment and reasoned for termination (even at some time with immediate effect) as there are several of examples laying out there in past similar cases and Mr Raj Kumar has presented too.

Principles and Laws are two different things. “Termination on findings with dismissal at previous employment is valid at some point" here, while looking at the principles specified in Company Policies.

There we also can see the lacks on account of present employer of Siva Sunder where they failed to get proper employee verification and background check and reason for this whole mess.

My sincere thanks to all of you for participating as these gonna help to many students, researchers and other.
17th December 2012 From India, Gurgaon
Dear friends,
Here is the attachment of a case law decided in India which is more or less relevant to the topic on discussion. Of course, strictly there is no impediment to apply to similar cases arising in private sector as well. As the law, principles of natural justice, equality etc. is common to all in India & citizens of India.
kumar.s.
18th December 2012 From India, Bangalore

Attached Files
Membership is required for download. Create An Account First
File Type: doc Government cannot cancel appointment of candidate on the ground that 498A or a criminal case is.doc (83.0 KB, 75 views)

I have a query:
if an employee has put more than 15 years job in a particular company and thereafter the Company is closed. Employee withdraws PF money however he received EPS certificate for the services. Now he is working in another Company and has crossed the age of 50 years. Is it necessary that the present employer inform the PF authorities about the EPS certificate of previous employment for eligibility of pension on attaining the superannuation age of 58 years to claim pension.
Seek experts advice on the above.
regards,
satish
18th February 2013 From India, Mumbai
Dear satish,
for getting eps 1995 pension there are two conditions to be fulfilled -
- 10 years of contribution period
or
- attening the age 58 years which were is applicable
second -
- pf statements, if any
otherwise
- pf will be do the purpose
but in your case there may not have chance to get pension because u might hv withdrawn the pf amount with changing of employment.
In keeping view of the above u can approach the pf authority for deciding the eligibility for sanction of eps pension
18th February 2013 From India, Visakhapatnam
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™