Umakanthan53
Labour Law & Hr Consultant
Dmc123
Associate Director Legal
IT_Employee13
It Professional

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Hi Team, I am working for a software company which is a MNC company. I am working in company more than 12 years. In the current year performance review, they have given 'needs improvement' rating. After 2 months, meeting is conducted and HR asked me to resign from my job or the company will terminate. In this situation, do I need to resign or allow them to proceed with termination? I have some doubts on this situation. If the company terminate, don't I get the dues like notice period pay, retrenchment benefit, unutilized leaves amount, and service letter?
HR is saying that I will loose many benefits if company terminates. My question here is that if I send resignation letter mentioning that I am resigning as per your demand and suggestion, will I get retrenchment benefit along with notice period salary? As I am fearing about getting all my dues in time, do I have right to file a case after receiving the service certificate, gratuity amount, pf transfer etc clearance? Please clarify and provide your valuable suggestions. Thanks in advance.

From India, Bengaluru
What’s the poster’s job position - a workman under the ID Act,1947 or a supervisor or a manager?
From India, Salem
Hi Umakanthan Sir, I am working for an IT Company and the designation in records is "Senior Software Engineer" as on date. Thanks in advance.
From India, Bengaluru
Dear IT Employee,
If your designation requires to take independent decision making or you are having workmen working under you then you would not fall in the category of workman as per Industrial Disputes Act 1947 consequently retrenchment compensation is not payable. But if you are doing any skilled, unskilled, manual, technical, clerical or supervisory work, then you would fall in the category of workman and they have to pay retrenchment compensation, notice pay, gratuity, leave wages, pro rata bonus and salalry to you. Plus, you can challenge the termination if it is out of turn, that is they are supposed to retrench junior most workman in your category first, so if you prove in the Labour Court that the termination is illegal, you will be entitled to full backwages.

From India, Pune
This is in addition to what our friend Dmc123 has observed. Designation cannot be a decisive factor for deciding the capacity or nature of a job. Job Description would help to a large extent in this regard. As a "senior software engineer", one would be basically performing technical work; if he has to supervise the work of one or two juniors in his team, his work becomes that of supervisory nature. By any educated guess, the poster's monthly salary would be more than Rs.10000-00 in the MNC. The resultant effect, therefore, is that he automatically escapes the ambit of the definition of the term " workman " under the IDA,1947. Hence, no remedy under the IDA,1947 for any of his employment grievances like retrenchment, dismissal etc.

In case of his refusal to resign, the company may terminate his services forthwith as per the notice clause of termination applicable to his cadre. If he feels aggrieved, he will have to initiate a Civil Suit claiming for damages only. Certainly that would be a long drawn legal battle and if he succeeds, it will only be a pyrrhic victory. At the same time, if he resigns, he will have to serve the notice period or pay the notice salary to the company. If I were in his position, I will be more concerned about my future career elsewhere. So the poster should try for an amicable settlement with the employer asking for some additional compensation apart from waiver of notice salary. He would get statutory gratuity for his entire service. Let him be more rational than emotional.

From India, Salem
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