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Dear Mr. Sovik
I don't want to prolong on with this thread
From legal angle a lawyer can argue in many ways where the hearing takes its own due course of time, here the employee has to judge, Will (s)he will wait till the judgment comes. Wherein the employee has to devote his/her time/money running to courts and lawyers. Practically the employee spoils his/her career just to receive an apology or a meager amount or reinstate his job. This all can be done if the amount is huge and the employee has enough time and money for survival. That's why a HR/forum always give a fair view/advice to the employees, nobody can stop anyone to go legal, but if a fair view/advice is sought it is given assuming the querist as a middle class employee and if any issues are sorted out amicably across the table by the reply to the queries raised
By any mean it was not to underestimate your knowledge/experience, but to gain further knowledge which will helpful to others in the forum.

From India, Ahmadabad
Hi,

Saji,

I am not a lawyer, but I had spent a lot of time with senior HR leaders (Including DGM,GM, VP) from different corporate house which include many fortune 500 companies. I spent a lot of time say something around 15-18 hours a day to understand pros & cons of Human Resource Management. This is not only limited to India but also USA, Canada & UK.

My dear friend, Saji, I am not against you or HR's. I respect you & your questions. I am forwarding my hands of friendship towards you, its upto you now, whether you will accept my friendship or not . You can contact me at +91-8130901897 & [email protected] gmail.com, for any sort of professional discussion.

If I say, I know everything under sun, then I would be the biggest lier. Only difference between you & me is, I prefer to keep crystal clear conception. I learn every day.

You, know the most bitter fact of HR Domain in INDIA, almost more then 60% in entry level possess conception problems basically due to poor mentor/Institution/ Teachers. HR seems a very easy subject, with minimum requirement of learning.

FYI, to solve this particular problem, one don't need to spent a huge amount of money. Max 5k-6k, if employee hire the professionals with best competency to deal with such cases. No, need to attend court & all. Judicial Depart will be involved, but chances go for trial will only 10%-20%. Some government departments will be involved. They must be involved, so that Trials can be avoided & they the requirement is fulfilled.

If I share the way, you will say 'Is it so simple?', I can bet you that. Simple procedures needs to be followed, tactfully & in a particular sequence. Only guidance from someone experienced is required, someone really knowledgeable genuinely.

The day you will gain a passion for HR, & will consider yourself as advocate of employees, you will also come to know all pros & cons, all minute details. But for these, you must spend maximum time with senior HR's , read a lot of books, attend different seminars, especially those which are arranged by different chamber of commerce.

For every problem, a solution is there. One is expensive & other is inexpensive. Only Knowledge & competencies matters, my friend Saji.

Hope you will accept my friendship.

Thanks & Regards

Sovik B

From India, Mumbai
Hi,

To all my HR Friends,

Its a humble request to you all, if you all face such similar issues, before taking any decision please go for a domestic enquiry. Then take decision after considering all pros & cons.

If hasty decision is taken/made & if employee (VICTIM) is cunning, aggressive, bold ,mischievous & fearless, they can cause a severe damage to the corporate house. Even, can made various government agencies to go for intervention, investigation , penalty & employee himself/herself can ask for a heavy compensation, on legal ground. It will be very difficult to defend corporate house under such situation, even brand name of corporate house, internal policies or network of senior professionals cant save the company!

Generally during HR AUDITS, such errors are considered as FATAL ERROR. Even Legal Support will not be there for the company to defend, that's why before taking any action, all good HR's think 10times whether the action is legally correct or not!

I am an Introvert, don't like to speak a lot & always remain busy with constructive works, still shared my view in the best possible ways. Rest you all decide.

Thanks & Regards

Sovik B

MBA-HR & Finance

B.Sc Mathematics Hons, Ramakrishna Mission VC College, Rahara.

Under University Of Calcutta.

Managing Director

S.S ENTERPRISE.

From India, Mumbai
RTI Act does not apply to private company in the usual connotation of the term. but if a company is floated by any govt body or a PSU or joint ventures of (like NTPC BHEL Power Pvt Ltd) PSUs as a private entity, it will come under the ambit of RTI Act, because it will be termed as substantially funded by govt.
Also, RTI provides for supply of only pre-existing information. it does not provide for answering the why question or reasons for any action taken by the public entity. going by the original question, it seems the individual was terminated by purely a private company, there is no option available to challenge the action. any case will not sustain or no meaningful purpose will be served.

From India, Bangalore
Hi,

VK Sajan,

RTI ACT CLEARLY STATE that PVT Companies are not extempted :

"Applicants have every right to seek information on a private company even though it is in the private sector, if it reports to a government body,"Only applications that served public interest would be dealt with, not those that sought to erode a company's competitive position.

Now, information regarding termination, cant be claimed as a ' TRADE SECRET', that can erode company's competitive position. Please note this point.

All companies formed under Companies ACT 1956, indirectly report to Ministry of Corporate Affairs, Ministry of Labor & employment, and government agencies like SEBI. Their Roles comes into play when discrepancies arise in term of laws. Legally, if any private company are free from not to report/answer any of the government agencies, like SEBI, Ministry Of Corporate Affairs, Ministry of Labor & employment, they can do whatever they wish & such organization (SEBI, Ministry of Corporate affairs etc), shall never have right to opt for intervention in case of discrepancies happens.

Similarly RTI can be used, but indirectly:

For example, say any stock broker/Equity Traders have a valid doubt based on evidence that any PVT company is applying illegal methods to increase its stock value in the market, Stock Broker/ Equity Trader, can ask for information via RTI through SEBI about company's affairs details. Stockbroker will ask SEBI, for more detailed information about a company's details as well as will inform SEBI that a forgery might be taking place based on evidence. Now, its SEBI's responsibility, to investigate, monitor that company's affairs, pros & cons, & provide a suitable answer to the broker, in such a way so that companies competitive position is not eroded . In Case SEBI, finds any discrepancies during investigation, SEBI possess all rights to go for an intervention in PVT company's affairs to protect the right Equity traders. Further, under such situation, Ministry of Corporate affairs, posses all rights for intervention, in PVT Company's affairs to safeguard the rights, of all kinds of partners associated with that PVT company.

Similarly, for termination of employees, labor laws associated with termination, must be followed. Labor laws for termination, clearly state that for Termination following Criteria Must be met:

1. Reason of Termination.

2. In case of employee completing 3 months continuous service, minimum 1 month’s written notice/ payment in lieu thereof is required by either side, as the case may be. (Notice of Dismissal- Sec 30)

3. Wages to be paid before the expiry of 2nd working day after the day on which employment is terminated . (Termination by or on behalf of the employer Sec. 19-5) .

In case of Unfair termination, as stated in Labor laws (PFA of Labor Laws modified after 2003), an employee possess all rights to appeal for Justice to Labor commission. Even can opt for Labor Tribunal.

In this case, a complain needs to be lodged in labor commission if ' Reason of Termination', is not specified/mentioned. And Under RTI act, employee can ask company through Labor commission/labor tribunal, to state reason of termination, if not provided by the company which is a valid demand on behalf of employee as per labor laws. As per labor laws, if it is considered unfair termination (Illegal), if reason of termination is not specified. Labor commission/labor tribunal, including Ministry of Labor & employment possess full right to investigate, & opt for intervention in affairs of private companies if satisfying reason for termination is not provided by the company.

Since, Industrial Dispute Act, domestic enquiry, has not been made before termination of gaurav, labor laws are not satisfied. In the attachment kindly read those sections which clearly state that under which criteria, termination is considered Illegal.

Once you understand this, will provide you details how, Ministry of Corporate affairs get involved in this case.

Regards

Sovik B

From India, Mumbai

Attached Files
File Type: pdf Labor Laws Modified.pdf (1.49 MB, 180 views)

Hi,

ALL,

Please don't remain in Illusion that a PVT company can do whatever they wish, no one can anything & they don't report to anyone. HR's/CEO/MD's don't possess supreme authority to ruin the career/life of any employee, stakeholders etc by doing whatever they wish. If that was the case, irrespective of laws, companies may use to Opt for bonded labor, child labor, chit fund forgery for PROFIT MAXIMIZATION. But this don't happen in practical life right, as monitoring bodies are there, Like SEBI, IT Dept, Sales Tax dept, Labor commission, labor tribunal, ILO,RBI etc. Else companies like Satyam Computers / Sharada Group would have been able to do what ever they wish.

All PVT companies formed under Company's Act 1956 (Including all amendments), report indirectly to Ministry of Corporate Affairs, Ministry of Labor & employment, Government agencies like Income Tax Dept, SEBI, RBI, Sales Tax Dept, Labor commission etc. It can be viewed as companies are liable to follow all laws of land, corporate laws, labor laws, guidelines issued by the above agencies time to time. By following laws, regulation companies are reporting to these institutions that all their actions are appropriate & legal. The moment violation of laws, guidelines happens, all these institution posses rights to investigate, monitor & go for intervention in companies affairs if required. All Companies are bound to answer these agencies, if question is valid & legal.

If these was not the case, a company might be able to hide its Income & would be able to pay 1/4 of its Taxes then it should pay ideally. And all this agencies (Concerned one), might sit idle in their chairs & use to watch everything, silently because they don't have power to do anything, companies don't report to them, so why companies should be liable to follow their policies, guidelines issued time to time. Does this happens?

For Reason of Termination- must be a valid one, which is a mandate criteria according to Labor Laws, all companies are liable to follow, else labor commission, labor tribunal, Ministry of Labor & employment posses full rights & authority to investigate, question & go for intervention in affairs of private companies if required. That's why, labor law clearly state that, if Termination is illegal, employee possess right to apply for justice to labor commission/labor tribunal. along with Judicial Department.

In this particular case, first a complain needs to be lodged stating that Reason of Termination is not specified as per labor Laws. Post that (after a suitable span of time), Under RTI, employee have to ask, labor commission, that I have filed a complain that my termination has been made without satisfying basic requirement of Termination Under labor laws. What action are they have taken to recover information, from the company? And if Company has replied, what is the Reason of termination, they specified. It is sole responsibility of labor commission to get details from the company, if required investigate & opt for intervention. And they posses this authority, since labor laws has not been met. Also it is their responsibility to provide information to employee about, reason of termination specified by company.

More over an employee can be terminated, if proven misconduct happens from employee's end. So, domestic enquiry is must.

Thanks & Regards

Sovik B

MBA -HR & FINANCE

B.Sc Mathematics Honours,Ramakrishna Mission VC College, Rahara.

Under Universtity Of Calcutta

Managing Director

S.S ENTERPRISE

From India, Mumbai
There are two things that, Company should not arrange such parties inside the premises and you try to avoid to have hard drinks also.
From Kuwait
Hi

RMSM,

I agree with you. Have you read the story narrated by Mahatma Gandhi, ' Imitating an English gentleman'. Today, when we are globally connected, global trades are taking place & we are following western culture, someone who follows it should not follow/imitate it blindly. According to my view, good points/features should be taken from any culture, even western culture but not their dark sides.

I don't know, what specialty alcohol brings in a party? If companies are arranging alcoholic drinks, they should know that people lose their senses after getting intoxicated, they cant get rid from their morale responsibilities of employee security & maintaining discipline! It should be their morale responsibility to drop the employees safely home.

If indiciplinary incidents took place, by no means of law, they can defend them, that they are not encouraging or provocating indiciplinary activities, if they claim its a official get together. They can claim that its a informal get together (only company is sponsoring it ), to save them, but if it is so then, employer have no legal rights to take action against any employees based on internal policies, corporate laws, labor laws. During such incidents they have to consider their employees as public & not employees. This happens maximum of times because corporate house especially MNCs & fortune 500 companies don't wish to lose their reputation due to such incidents & their hands are legally tied! Exception is Gaurav's case. Where corporate house cant defend them at all, no scope!

You know something, if any employee comes to office intoxicated, I just ask them, what specialty is there? It seems you don't want this job, right?Why don't you resign officially, no one is holding you? That's much better then a termination. If you really wish to drink, then go to a bar, or drink at your house, no one will question you, dear! I say this straight forward.

Regards

Sovik B

From India, Mumbai
hi
dear this is unfortunate incident with you. 1st things is you were under probation period 2nd is that any closes in your Appoint letter regarding this Your termination legally, company generally has a right to discharge the employee during this period. You have no ground to contest this termination.
pankaj bhanuse (Nagpur).

From India, Nagpur
Hi,

Pankaj,

I have one question to you, can any employer terminate an employee during probation period due to employer's fault & not employees?

If Termination, was due to poor performance, then employer has right to terminate during probation period. Anyway, even during probation period, in order to terminate an employee, reason of termination have to be mentioned. Its a mandate as per labor laws.

In this case, if 'disciplinary ground' is mentioned then by no means company can defend them. My friend its a misconception that during probation period employer just can say, 'you are terminated' means your job is over from next day. Probation period means that an employee is not a permanent employee & its testing period. Company will possess all right to terminate an employee, without notice if employee fails to perform & met the rules n regulation of company.

But not without reason. Please Consult this with any good lawyer having experience more then 25-30years in this field. THIS IS ILLEGAL.

Thanks & Regards

Sovik B

From India, Mumbai

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