Umakanthan53
Labour Law & Hr Consultant
Riteshmaity
Labour Law Advocate
+1 Other

Dear Sir/Ma'am,

May I please request you to guide me through some basic information as I was terminated by my employer handing over a letter stating that "your employment contract has been terminated with immediate effect- Termination without Cause as per section 4 C of your employment contact"

let me tell you the complete story in nut shell:-

I have been working with the company for 22 months and since last 18 months everything was fine. My job was confirmed in 3 months only per company's policy.

I got rating 3 i.e. 100 % satisfactory work and I got 10% salary hike.

Now, in the August month (2016) my manager put me in "Offtrack" in my mid year review all of a sudden saying that your performance is not good!

I did not agree on this and due to which we both had argument on this and my senior manager also messed up with me and I left the meeting room without saying anything and due to this my senior manager started harassing me since that day and started giving me challenges to do which was never given me earlier.

I always tried to give my best however every time they came up with findings in my work because that was the only way they could have harmed me.

I reported this to my HR manager that they are harassing me but nothing was happened and this harassment kept on going for 3 months and eventually they put me in PIP (Performance Improvement Plan) and my HR forcefully got the PIP form signed by me saying that if you do not sign then also you would be considered on PIP. I was insisted to sign the same and thereafter both my manager & Senior manager started harassing me by writing fake mails to HR, creating unnecessary situations to show me down and even made me hostile in my team by not letting me to talk to my team members. My team members also knew all this but they were also helpless as they could not have helped me as they also had to earn their living bread.

Eventually on 17th November 2016 I was terminated from my job as I sent a legal notice to the company through my lawyer.So taking legal aid is that harmful that I was terminated as and when they received the legal notice?

I kept on requesting my HR that they want me to put in PIP so that they could be able to fire me but my HR also did not help me and my director also shown her helplessness saying that she can't do anything as she doesn't sit in India. So I was insisted to take legal help as no body was helping me.from the last 3 to 4 months I have been running in depression and got 6 kgs reduced, taking regular medicines as I cannot sleep at night since I always keep on things that a person who have earned 4 degrees have been proved failed/good for nothing by my managers.

Now, My concern is where can I lodge my case? Is it in Labour court? (my company is in Gurgaon Haryana)

I was designated as "Specialist" getting salary apprx 70,000.00 PM and I was not handling any team nor I was on managerial position doing performance appraisal. Do I come under "Workman" per labour law?

Can I represent my case on my own before the labour court? what is the fees of labour lawyer if I go for lawyer to file my case?

what is the procedure of filing a case and how long does it take to get settled down?

What are the documents that I must attach with my case file in order to substantiate that I was harassed and then when I raised my voice they got me terminated?

Will there be hearing from both the parties (Complainant & opponent) in court? will my ex employer send my manager & senior manager to the court for hearing or their legal representative will say on behalf of them?

will my company provide me with my Relieving/experience letter so that I could be able to join some other company?

Do they have right & get my background check failed saying that I was terminated from my ex employer? or they cannot reveal the truth as this will hamper both my personal & financial life as without job I will not be able to nurture my family, not be able to meet daily expenses and contingencies and cannot survive longer.

Kindly help me with your expert advice to the above mentioned points.

I shall highly appreciate if a quick response s given to me as I am in vein now a days.

Regards,

Atul
3rd December 2016 From India, Delhi
Dear Atul,

While sincerely sharing your agony of the unceremonious termination of your job, I would like to ask you to have some self-introspection of the entire episode. In a span of 22 months of service, how your relationship with your manager suddenly began to get spoilt just in the last three months? Your narration of the episode of the mid-year review shows that you are too sensitive to criticism and as such it escalated to the level of earning the wrath of your Senior Manager too. Efficiency is always a relative phenomenon. When you view your efficiency as absolute as per your own perception, automatically it leads to insubordination and will always end up in incompetence. No superior can extract work from an incompetent subordinate.The relevance of academic qualifications in the realm of employment is minimal just like that of a pass port. But your mental maturity or emotional intelligence is the visa to successfuly remain there. A superior may be academically less-qualified than his subordinates but it does not mean that his instructions and appraisal are always wrong. You should always remember that in any employment, it is the superior who can make or mar the career of the subordinate employee.

Coming to your queries:

If the contract of your employment has actually got such a clause facilitating termination without any cause, it is opposed to Public Policy.

From the job-profile you've described, my conclusion is that you are certainly a " workman " as per sec.2(s) of the Industrial Disputes Act,1947 and a "person employed" as per the applicable State Shops and Establishments Act if it is an IT or ITES Company.

So, you have two options - (a) Raising a dispute against your termination as illegal u/s 2 A (1) of the ID Act,1947 before the Conciliation Officer for the area with a claim for reinstatement, back wages with continuity of service or (b) Filing an appeal before the Appellate Authority designated under the State Shops and Estt Act. In option (a) the conciliation officer will try to bring out a settlement acceptable to both parties or if not possible, he will send you conciliation failure report within 45 days and after which you will have to move the Labour Court. In option (b), the Appellate Authority will decide whether the termination is legal or otherwise after holding an enquiry.

In both the modes of redressal, you have to file the relevant documents relating to your employment like appointment orders, confirmation, pay-slips, orders of termination etc at the appropriate stage of the proceedings.
5th December 2016 From India, Salem
Dear Mr. Umakant,

I Thank you so much for your time , dedication and an honest & unbiased expert advice to my query. I really appreciate the way you have simplified the options for me.I do agree that we should not forget that a Manager is a person who can make & mark a good posture of our carrier in any organisation however sometimes it happens that all your good terms, hard dedication & sincerity towards work get challenged by your manager just to prove you wrong & failure because that is the only way a manger can use to throw you out of the organisation and here the same was happened with me & I was thrown out of the company in the name of "Performance".

May I further request you if you could suggest me on the below bullet points:

1) If I approach towards option (A) i.e. Reinstatement of job and back wages, do I need to write a letter to labour commissioner and if I win the case and if I do not want to get my job reinstated in the same company what other option I can choose. Can I ask for a stipulated amount in lieu of my mental agony/depression (for the last four months) & the disruption in my family? if yes what should be the amount and on what basis it is calculated?

2) If I approach towards option (B) i.e. Appeal before the Appellate under Shop establishment act - If I win the case and could be able to prove that my termination was illegal what would be my reward? Is that I will get my job back? and what if I do not want to get my job back? Can I appeal for the stipulated/calculated amount here as well? because obviously a person where he had been harassed for apprx 4 months would never want to join back in the same team/company.

Beside this may I please request you to kindly throw some light on the below query:

1) I requested my HR to provide my relieving & experience letter so that same could be submitted to the new company where I shall join as I have been searching job for me since sitting idle at home is keep on adding to my depression and the intensity of my depression is going deeper day by day.

2) My HR told me that we cannot provide you the docs until & unless you come down to the office & give your resignation in written as you sent us the Legal notice & we have forwarded your case to our legal team.(FYI... they have not yet responded back to my Legal Notice as of now)

3) My HR also told me that if you give us in written undertaking that after getting all your documents you will not take this matter to the court and confirm the case closure only then we will provide you with your relieving documents.(emotional blackmailing)

4) Is it ethical before the eyes of law that a company in case of termination cannot provide the relieving letter to the employee?

5) She also told me that if you will not close the case then we have the full right to disclose the truth i.e. "you were terminated" to the company which will send the requisition for your background check to us.

6)What should I do in this case as I am in dilemma what to do and not? "Do I need to go to my office and give them my undertaking for the closure of the case and reform my present situation & get a new job and after sometime when everything will be settled down File a case against them stating that I was insisted to sign on my resignation letter & was also persuaded to give undertaking for the closure of the case". Since I heard that any act which has been done in need & compulsion/Insistence is "Null & Void" before the Laws and I also heard that I can file my complain within 3 years of time before labour Commissioner. Is that True?

OR,

should I not go to my office to sign on my resignation & case closure undertaking because this can weaken my case and I will not be able to file my case thereafter as it would have become "Null & Void" since I might have already given the statement that I take back/withdraw my case?

7) Since I was terminated by my Organisation "Termination without cause" will I get my full Salary in addition to the termination benefit? i.e. Notice period benefit?

Kindly provide your expert advice. I shall highly be obliged if an early response is provided as my company has scheduled a meeting today evening itself around 5 PM.

Thank you so much.

Atul Joshi
6th December 2016 From India, Delhi
Prima facie, the material you have will go in your favour. However, can give the details of the legal notice which you sent?

Please also follow the suggestion as stated by Mr. Umakanthan above.

Regarding your queries, the answer follows:

Now, My concern is where can I lodge my case? Is it in Labour court? (my company is in Gurgaon Haryana)

If you are a workman, you will come under the purview of labour court

I was designated as "Specialist" getting salary apprx 70,000.00 PM and I was not handling any team nor I was on managerial position doing performance appraisal. Do I come under "Workman" per labour law?

From your description, yes

Can I represent my case on my own before the labour court? what is the fees of labour lawyer if I go for lawyer to file my case?

yes, you can appear in person. Fees of lawyer vary from lawyer to lawyer and place to place. it is better to get the details from the lawyers where you want to file. However, you can get the complaint drafted by the lawyer from anywhere and file the same yourself. It is save some money

what is the procedure of filing a case and how long does it take to get settled down?

You have to file the first complaint before labour commissioner and after sometime, if the conciliation fails, you have to file the case in the court. There is no time frame in settling the case as it depends from case to case and its complexity.

What are the documents that I must attach with my case file in order to substantiate that I was harassed and then when I raised my voice they got me terminated?

You can only tell what documents you have to show that you were being harassed. Apart from that you need to have documents to show your date of appointment, last drawn wages and termination.

Will there be hearing from both the parties (Complainant & opponent) in court? will my ex employer send my manager & senior manager to the court for hearing or their legal representative will say on behalf of them?

Equal opportunities will be given to both the parties and court will hear both the parties before giving judgement. Whether the company will send their manager/ senior manager is entirely upto the company to which you have no control. But from my experience, their lawyers would represent them in the court.

will my company provide me with my Relieving/experience letter so that I could be able to join some other company?

Depends on them

Do they have right & get my background check failed saying that I was terminated from my ex employer? or they cannot reveal the truth as this will hamper both my personal & financial life as without job I will not be able to nurture my family, not be able to meet daily expenses and contingencies and cannot survive longer.

You do not have the right to stop them from checking your background. Your personal life and family is immaterial.
6th December 2016 From India, Kolkata
Dear Atul,

I really appreciate you for readily taking my advice in good stead. Forget what all happened so far as a mere night mare and forge ahead with caution and confidence.

I don't know why most of the HR people employed in high-tech organizations fail to explain the legal consequence of the faulty employment decisions of their managements at the beginning stage itself. I can not think that it is due to their lack of legal knowledge. On the contrary, they do slowly develop the wrong conviction that their role in respect of any condemned employee is limited to that of a hangman only. If at all such a suggestion comes out from your HR now, it implies that the management's action will not certainly withstand the judicial scrutiny. Therefore, the decision is yours - you can simply come to the conclusion that enough is enough, convert your termination into that of resignation with waiver of notice period, obtain the formal relieving orders and experience certificate and move ahead searching for alternative employment - OR - fight the case till its logical conclusion. But, you can not settle the matter now as suggested by your HR only to rake up the issue after sometime as you think.

In respect of disputes relating to dismissal, when the Labour Court comes to the conclusion that the dismissal is illegal, the automatic consequence is reinstatement with back-wages, continuity of service and all other attendant benefits.However, under the special powers vested u/s Sec.11-A of the ID Act,1947 the Court can order any other relief to the workman depending upon the stands of both the parties at the final stage.

I think that all other queries have been answered by our learned friend Ritesh very aptly.

I wish that good sense may prevail over you!
6th December 2016 From India, Salem
Dear Mr. Umakant & Mr.Ritesh,
I shall highly be thankful to both of you giving your valuable time & expert advice to me and I also appreciate the way both of have broken my queries into its simplest form. I have attached here my legal notice as Mr. Ritesh has suggested in his post.
I strongly agree with you and now I shall move forward and do the self introspection as which path I should pave now : Is it resign my own and approach towards a new carrier or fight against the injustice till the time I get justice.
I shall once again thank both of you for your help till now.
With due respect & regards,
Atul Joshi
7th December 2016 From India, Delhi

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