Inflicting a major punishment like Termination; depends on the Misconduct committed (which as you state has been proved in the Domestic Inquiry) and as laid down in your Standing Orders; Code of Conduct or Discipline Rules.
In accordance with above; it is your prerogative to terminate his services.
Similarly, to condone or accept resignation, is also the prerogative of the company.
Inquiry process and the expenditure incurred, is a part of the administrative functions of the company.
Therefore, it seems unethical to ask an employee that his termination can be converted to resignation; if he is willing to pay for the Departmental Inquiry expenses.
If it is not blackmail, then it is too ridiculous and exhibits to what level a company can stoop to.
Such practices are unheard of and unthinkable, in good, established and big companies.
Please advise your management, that it may be a good idea to condone the misconduct or accept a Resignation letter instead of issuing a termination Order - which can be challenged in a Court and would necessarily involve expenses of hiring a lawyer etc.
Also remember that Labour Court or Civil court can definitely find certain lacuna with the Departmental Inquiry and vitiate all your action. Thus, company may have to pay the unpaid salary as well as compensation for wrongful termination. The expenses on Inquiry would have already gone down the drain.
Dear Govind, I understand yours must be a small family run company to act in this manner. If an employee dies during employment; would such a company recover the cost related to post-mortem and funeral from the widow ?
Try to act as a conscientious HR and advise your management accordingly.
14th February 2013 From India, Delhi
While I am i complete agreement with Mr. Raj Kumar Hansda, I wish to add another perspective to bolster his case further.
If you do not agree to the concerned workman's request (to be allowed to resign) and insist upon your "right" to terminate his employment by way dismissal, then kindly remember:
1) The dismissed workman can always raise an industrial dispute and go through all the paces dragging the company along. This would entail additional costs to the company in terms of money, executive time and ultimately the advocates charges if the matter is referred to judicial determination (which it will be, if there is no compromise before the Conciliation Officer)
2) Further if the matter is decided against the employer and a "reinstatement" is ordered (with or without back wages), you will have to either go in appeal and incur further costs or will have to take the workman back in employment as ordered by the court (at this stage or at the appeal if that also goes against the employer.) A reinstated worker can be a real "pain" in future!
3) If you go in appeal against the order of reinstatement (if there be any) you have to start paying full wages under Sec. 17 (B) of the Industrial Disputes Act till the final outcome of the matter.
All in all, I feel the workman is handing you an opportunity to avoid future (possible) costs and inconveniences. Convince the management to grab this opportunity with both hands and close the issue amicably as that will also deny the workman any opportunity to litigate as the dispute will not have survived when you accept his request and let him resign from employment. Compared to what the company may have to go through in defending the decision to terminate, bearing costs of domestic enquiry is a small matter! Remember that vitiation of the enquiry is quite possible depending upon how is it conducted and under Sec. 11 of the Industrial Disputes Act the courts have the power to interfere with the quantum of punishment and substitute its own. It is theoretically possible that the domestic enquiry may be held to be fair and proper but the court may interfere with quantum of punishment.
Either way the company will remain vulnerable. It is wise to let the workman resign from another point of view also. See, for alleged misconduct/s the company was about to terminate the employer-employee relationship. If the workman wishes to do so and protect his future possibilities of alternative employment/occupation, HR thought must encourage him to do so, if not for anything else, at least its own enlightened organizational interests.
Get the point?
February 15, 2013
15th February 2013 From India, Pune
I have some questions in my mind -
1. Can workmen make complaint to the Conciliation Officer that Inquiry Officer is biased
while the Inquiry is in process? and what are the repercussions on the company?
2. If we terminate or dismiss workmen, if found guilty by Inquiry Officer, where can he appeal.
Is it in Labour Court or Industrial Court.
8th April 2013 From India, Mumbai
Of course he can make a complaint to the Conciliation Officer but it would be futile, as the Conciliation Officer has NO statutory role in the matter. Even if he were to have a role, the law does not permit to take decisions or to direct parties in any way. The worker would be wasting his time.
The right step would be to make a statement in the enquiry proceedings itself and if the EO does not record the objection and/or does not give a ruling, the workmen may approach the authority appointing the EO and lodge a complaint. But the worker will do well to remember that UNLESS he has some reliable evidence to support the allegation of bias on the part of the EO, his complaint will fail. He (the workmen may even refuse to participate in further proceedings till his grievance is not resolved but that he will be doing at a great risk to his case.
Normally a substantive allegation of bias is not ignored as if proven it would vitiate the whole Domestic Enquiry itself. The courts will not take a light view of an allegation of bias especially if it is substantiated.
2. Dismissing a workman is a decision that must be taken with a lot of internal deliberation. Assuming that it has been so done then the workman in normal cases "raises" an industrial dispute with the employer, goes through conciliation process and in case of a failure of the process the dispute will be referred to an appropriate court of law. At this stage it not an "appeal", and if the workman's claim fails in the court, then depending upon the facts of the matter, he may appeal further right upto Supreme Court by following each stage of the judiciary and if the matters merits an appeal (not merely the workman's desire!)
Are your questions answered please?
April 12, 2013
12th April 2013 From India, Pune