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

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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
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


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

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)

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.

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.

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

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.

Attached Files
File Type: doc Attestation Certificate and Identity Certificate.doc (50.0 KB, 3212 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.

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


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