Dinesh Divekar
Business Mentor, Consultant And Trainer
Umakanthan53
Labour Law & Hr Consultant
Nathrao
Insolvency N Gst Professional
Riteshmaity
Labour Law Advocate
SAIBHAKTA
Retired From Air India
Pasupathieswaran
Retired H R Professional
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Hi
One of my friend has been terminated in her prevoius organisation due to data leakage. She was charged for sending some customer datas to her personal email id and a show cause notice was served on her last working day aftre office hours. She tried to defend herself but a month later after joining a new organisation termination letter is issued to her mentioning breaching company's code of conduct. When she approached the organisation for her gratuity dues of 9years service, she is being denied mentioning inelligible on the grounds of governance termination. Is there any clause in gratuity act wherein no financial mis utilisation happened, gratuity can be forfited.
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Dear Eronie7,

You have asked advice from the seniors nevertheless, we need little more information. Did your friend work in India? We need to know as Indian labour laws are applicable to companies that have offices in India.

Secondly, the show cause notice was issued to your friend on the last working day and that too after working hours. In that case did the company send her communication stating that her letter of resignation held in abeyance and she has been suspended pending the enquiry?

Employee forfeits the gratuity claim if he/she is terminated. However, termination is a punishment of the highest order. Domestic enquiry should precede before awarding punishment of any kind.However, did her previous company conduct the domestic enquiry on account of breach of security? Any termination should be preceded by the enquiry. This is what principles of natural justice say.

Thirdly, this is beyond the labour laws. What was the performance of your friend or how were her relations with her seniors? Did her seniors were looking for opportunities to show her door and transmission of some information to her personal e-mail ID came handy to them?

There are few questions associated with your post. Please clarify.

Thanks,

Dinesh Divekar


""Employee forfeits the gratuity claim if he/she is terminated.""

Presuming that your friend was working in India the rule for withholding gratuity is as follows:

The gratuity payable to an employee shall be wholly forfeited:

(i) If the services of such employees have been terminated for his riotous or disorderly conduct or any other act or violence on his part; or

(ii) If the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude provided that such• offence is committed by him in the course of his employment.

In order to forfeit gratuity of an employee, there must be termination order containing the charges as established to the effect that the employee was guilty of any of the aforesaid misconducts. In one case, it has been held that in the absence of termination order containing any of the above allegations, the gratuity of an employee cannot be forfeited.

Reference :

Bombay Gas Pu blic Company Ltd. vs. Shri Papa Akbar & others, 1990 (1) CLR 102 (Bom.HC); 1990 LLR 118.

Please check what the termination order quotes about reason for termination?

Secondly did company conduct a domestic enquiry where in she had access to information for defending herself.

As learned member above has already written mor info is required for correct advice.
Mr Dinesh Divekar thanks for your reply.my friend's show cause notice was issued after business hours on LWD mentioning that her resignation acceptance was kept on hold. There were couple of mail exchanges for clarification wherein my friend had denied sending any confidential datas to her personal email id except her salary slips. Yes this is in india only, after her final revert on the show cause notice management has conducted internal enquiry of their own and suddenly one day intimated her of termination without any compensation. Company had threatened to take legal course of action in future if desired so. There was no mention of forfeiture of gratuity in her termination letter nor any financial damage caused by her act.
Regards
Ronie S
From what you have written it is seen your friend did not have an opportunity to defend herself.
After all if the employee had transferred company data to her a/c some cyber trail would have been seen.
Not giving your friend chance to refute the charge shows lack of natural justice. is bad in law(as can be inferred from what you write)
Take legal advice and complain to Labour officer of the area about denial of gratuity
It appears that the company action of denying gratuity
Thanks Dinesh and NATHRAO for your reply. My friend used to work in India only. She was served showcause notice on her LWD after business hours. As far her performance is concerned she got a good performance apprisal and had been a performer throughout her stint in the organisation. She at first request her release earlier through a mail but HR people and her RM requested her to stay for another month and she agreed to do so. Later on when her resignation was accepted, a show cause motice was served on LWD mentioning that her resignation was kept on hold pending enquiry by governance for data leakage. She tried to defend herself through mail exchanges with governance and hr but one fine day she got her termination letter mentioning that she has been terminated without any furthr notice and compensation, and her resignation acceptance is nullified. Enquiery was conducted by the organisation internally amongst themselves and there was no mention of forfiture of her gratuity in the termination letter, nor any financial damage caused to organisation due to her alleged act, also mentioned that company in future might take further course of legal action if desired.
When she approached for her gratuity claim, she was told by hr that she is not elligible but the word forfited was not mentioned.

Regards
Ronie S
Dear Ronie,
This is in addition what Mr Nathrao has said in his second post.
That your friend's company did not conduct proper enquiry is different matter. However, for sending the salary slips on one's personal e-mail ID, I doubt whether your company terminated your friend. There is something more than meets the eye.
Assuming that your friend compromised the cyber security, even then also, company should have conducted proper domestic enquiry.
What is the designation of your friend? How many persons reported to her, direct and indirect? We need this information to check whether provisions of Industrial Dispute Act, 1947 can be applied in this case.
As suggested by Mr Nathrao, your friend may approach the Labour Officer (LO) of her area. However, LO involves provided provisions of ID Act, 1947 become applicable. Occasionally they do involve even for higher designations also. However, it depends on the psychology and mood of the LO.
Thanks,
Dinesh Divekar
Thanks a lot Dinesh and Nathrao. She used to head a profit center office of an MNC and had 12 direct reportees. She claims that she had only transferred her salary slips to her personal mail id. But what I could see in her termination letter, she has been alleged of sharing confidential customer datas outside official domain. When she spoke to HR regarding not giving her an opportunity to speak to governance team she was told that in such case, as per their company rule team governance doesn't speak and discuss. They had taken the decision of their own without involving her in any discussion except demanding clarification and sending show cause notice through mail.
Thanks a lot Dineshji. She used to head a profit center office of an MNC and had 12 direct reportees. She claims that she had only transferred her salary slips to her personal mail id. But what I could see in her termination letter, she has been alleged of sharing confidential customer datas outside official domain. When she spoke to HR regarding not giving her an opportunity to speak to governance team she was told that in such case, as per their company rule team governance doesn't speak and discuss. They had taken the decision of their own without involving her in any discussion except demanding clarification and sending show cause notice through mail.
Dear Ronie,

I would like to state the following:

a) Unless company has material evidence of the breach of security, they will never take this drastic step of termination. Process of termination could be unlawful, nevertheless, they must have some incontrovertible or irrefutable evidence. Company may terminate an employee even without conducting domestic enquiry. However, if employee approaches the court then it becomes company's responsibility to justify the termination without conducting domestic enquiry. In your friend's case the circumstances were not compelling to give short shrift to a process of law. However, this is a different matter altogether.

b) Your friend might have withheld some information from you. We do not know whether she has shared with you the entire information.

c) Whether your friend has breached security or not she may send the lawyer's notice for her illegal termination. If company does not relent or even respond then she may file a suit for illegal termination. However, this will be a civil suit and civil suits drag on for years together. Therefore, it could be a decade long legal battle. Is she prepared for that?

d) Breaches of security during notice periods are common. Therefore, those who are under notice period are kept under special surveillance. After spending nine years in the organisation how come your friend did not know this?

e) Did the company issue her "Relieving-cum-Experience Letter"? If yes, then what remarks have they put for "Reasons for Separation"? If there are negative remarks then per force she has to approach the lawyer. However, if the experience letter is neutral then she might forego gratuity and move on.

Thanks,

Dinesh Divekar
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