Manojkamble
Sr. Hr Executive
Bharat Gera
Principal Hr Consultant
S S Mishra
Agm Hr&admin

#Anonymous

Dear Members,
If a worker has been fired without any domestic inquiry due to disciplinary reasons and we settle his full and final payments by transferring the same in his bank account. Afterwards that worker joins another establishment. But after doing job for 1 month he leaves the company and file the case in labour court under ID Act against his previous company. He ask for full back wages and reinstatement.
1) Is he eligible for reinstatement as he had joined another establishment after fired up from previous company?
2) What would be the amount to be paid as full back wages? Does it include bonus, leave en-casement, gratuity, Employer share of EPF & ESI?
3) Could the company deny for reinstatement of worker in the court? What would be argument for denying the same and its implications?
Please suggest.
Regards,
Mahesh Kumar
24th August 2017 From India, Delhi
Dear Mahesh,
Please find response to your question as below :
1) Reinstatement depends on the arguments and reason for termination. Till the time reason for termination is not cleared cannot be answered.
2) An employee will not be entitled to back wages on his reinstatement when he has neither pleaded nor proved his non - employment. (Labour court judgement : Kendriya vidyalaya sangathan vs S C Sharma, 2005 LLR 275(SC)). As you have mentioned he was working with in this duration thus, he is not entitled for the same.
3) For answering need to know the reason of termination.
24th August 2017
#Anonymous
Dear Manoj,
Thanks for your reply. For further clarification of query, reason for termination is given below;
-Refusal to do assigned work by Supervisor, Misbehave with his supervisor and warning to Supervisor for slapping. After counseled by management, refuse to feel sorry for the same.
If worker has pleaded, but company has proved that worker was employed for one month after his termination. Is he eligible for reinstatement ?
Regards,
Mahesh Kumar
25th August 2017 From India, Delhi
Dear Anonymous
1. The worker is entitled to reinstatement prima fecie. He was illegally terminated
2. His one employment is no harm to him and no help to you.
3. He can continue to earn as he has to feed his family and survive himself.
4. Even if he had continued to be employed he still has a right to ask for reinstatement.
5. Had he continued to be employed, you could have saved on back wages only.
Warm Regards
Bharat Gera
HR consultant
9322404765
27th August 2017 From India, Thane
If you have not conducted domestic inquiry how you can terminate an employee from his job, definitely he is entitled for reinstatement .
28th August 2017 From India, Pune
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