Dinesh Divekar
Business Mentor, Consultant And Trainer
Asso.prof.(commerce & Management)
Hr Manager
Law Practice
Gopinath Varahamurthi
Mindhour Partner, Ass.professor/adm. Officer,
General Manager-hr
Presently Working As Dy Manager Hr &
Hr Executive
Korgaonkar K A
Private Consultant On Labour Laws
[email protected]
Consultant In Legal Matters

Hi Everyone,
I am working in a software company as a HR Executive. Recently we got an issue with an employee that he is not at all performing good & his attitude is too bad, management had warned him many times but he did not bother, he is working with us from last 4 years & his wife is a public prosecutor, finally management decided to relieve him with out any legal issues. So can any one suggest me whether termination is the best option or reliving is the best thing. Kindly suggest me on this.
Geetha Nirmalkar

From India, Visakhapatnam
Dear Geetha,

Letter of appointment is contract between employer and employee. If either party wishes to cease the contract then it cannot be continued by other party, however, terms and conditions of the contract for separation must be adhered to.

What is the notice period of the employee in question? Issue him a letter for discontinuation of his services. When you do this, either pay him as per notice period or let him continue till he completes the notice period.

Separation on account of poor performance is quite common. When you issued your earlier notices, that time itself you could have included this clause on discontinuation of services.

By the way, why you are getting bogged down because of the profession of the spouse of employee? Spouse's profession and employee's performance are two unconnected things.


Dinesh Divekar

Bangalore - 560092

From India, Bangalore
Dear Friend

It appears from your statement that he is regular employee. If his services are confirmed and governed by service rules or standing orders of the company or appointment order, first you are supposed to issue him a charge sheet, narrating about his poor performance or bad attitude which constitutes misconduct under service rules / standing orders of company. After getting his reply for the charge sheet, if management did not satisfy with his reply, then you need to conduct an inquiry by appointing an inquiry officer from out side, to avoid legal compilations. If the charges are proved in an enquiry report, then you need to send him show cause notice for proposed dismissal or discharge along with an enquiry report. After getting his remarks only, you can terminate his services for proved act of misconduct.

On the other hand, if you simply terminate the service of any confirmed employee by invoking relevant clause in appointment order by giving one month notice or making payment in lieu of notice, some times it does not prove trust worthy as you are leveling severe allegation against this employee i.e poor performance / bad attitude which is supposed to be proved in an inquiry as per the principals of natural justice


From India, Hyderabad
Dear Ms. Geetha,
I would suggest you to keep it simple.
1. Issue Show cause notice from company, without taking the help of lawyer. Choose the correct words. It should not look like legal notice. In this, ask for the clarification of his behavior.
2. In reply, he will clarify the points in written.
3. Keep it in record.
4. As you said, it is his habit. He will repeat it. Then issue the two warning letters with a gap of 15 days to 1 month.
5. After that you can terminate him, either with the condition, to pay or to serve the notice period.
We should have in mind, that we are HR not the lawyers, so treat it healthy.
Thanks & Regards

From India, Delhi
Hi Geetha,
All these are hectic and lengthy process, pls go thru his appointment order about notice period based on that keep ready with a cheque payment (one month or two months), ask his HOD's to organise a confidential meeting with him, by briefing his inabilities / record of poor performance, ask him to submit his resignation without giving him to enquire his contacts and keep a supporting letter from his immediate superiors/ HODs for taking this decision, so that the management will be safe and no prosecution or labour department will involving into this issue in future. If possible/ if your Co's is have any branch you can transfer him so that he will resign on his own.
In case if he (the employee) is not accepting, you need to service show cause notice and then process is same as per the suggestion given to you by the members of this forum.

From India, Hyderabad
Dear Ms. Geetha,

I agree with Sh NV Rao and Ms Shweta Verma that one's services can only be terminated in accordance with the terms & conditions of the appointment or as per the conditions envisaged in the contract entered into with the employer. Primarily one should always keep in mind that no termination is considered legal & valid unless the "Principles of natural justice" are followed. It hardly matters the number of years he is serving with you or whether his wife is a public prosecutor. If he is not a productive worker and not listening to the management, he need to be terminated but proper procedure has to be gone through. I do not consider it proper when you say that "management decided to relieve him with out any legal issues". You are not the authority to decide as which is the legal issue of not. Now you need to watch his reaction to your decision.

I agree with another suggestion given Sh N V Subba Rao which is "persuation" to submit his resignation even if you have to pay him some extra amount, which would have saved the situation.If he was not agreeable to your proposal then of course you need to take long course of charge sheeting him.

BS Kalsi


From India, Mumbai
Dear Madam,
What Mr.Rao suggests is always correct. Without giving any notice/Charge Sheet or holding an Enquiry you cannot terminate an employee who are confirmed. Its come under victimisation and also against under Principle of Natural Justice.
Thanks & Regards,
V R Rao Pulipaka

From India, Chennai
If you are proposing a legal action by fully complying with laws and regulations, it will be a lengthy process.
In such a situation, you may act as per suggestion given by Mr. Rao. Effect a "forced resignation" instead of
R K Nair

From India, Aizawl
Dear Geetha ji, I have not understood your below given quote. Can you please explain the term termination and the term reliving?
From India, Mumbai
Dear Friends,

This is a fit case how to terminate an employee with notice or by persuation, without getting injury to the organisation. This is one of the best cases to sort out with regard to Performance or attitude but relief from the services is more important for an organisation. As Shri Rao pointed out in both the cases the organisation have to take a decision. In particular by the appropriate authorities.

On listening the issue the employer certainly inculcated with bad attitude which is prime to get rid from the organisation. This bad attitude culminate to the poor performance, and the poor performance might have been noticed on monitoring his work efficiency, consequently, the authorities found his bad attitude. Probably, a ground truth existed because of the bad attitude his performance degraded is the real truth.

Call the employee prima facie it revealed a bad attitude of the individual is the real cause and threat for his continuance in the organisation, inform him about his bad attitude developed in the recent days, better should be called by the appropriate authorities issue him a caution notice clearly specifying the reason for continuance of employment/service will become a cause and the organisation will not suffer or get injured because of his attitude all other staff/employers will suffer, since, no organisation can take the suffering of a single person. This case will clearly get the ground to get rid of a bad employee, poor performance will follow consequently for his termination from service. Conduct of an employee is the first basis of employment rest follows. Because the organisation have to give service certificate reflecting bad conduct will be seen as an unemployable to the future services employee certainly come to a conclusion with good results. As Shri Dinesh Divekar pointed out spouse employment and the employee of the person are two separate categories both should not be clubbed.

best of luck....

From India, Arcot

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