Dear Experts: Can the employer relieve an employee from the employment at any time imposing the clause of cessation service in terms of order of appointment Order? This is sought for as to the convenient of an employer to discharge immediately the service of an employee whose attitude and performance are very poor, rather than following the proper disciplinary procedures. The employee does not come under I.D. Act. Request expert's advice, please.

The cessation clause is "giving 3 months notice or payment of 3 months salary (Basic + DA alone) to the other on either side".

From India, Mumbai
Dear Sridharan Venkataraman,

If the performance of the employee is sub-par, then did you issue him the warning letter(s)? Did you issue him the show cause notice? In the recent past, I have given two replies on removing the employee on account of poor performance. Click the following links to go through the replies:

https://www.citehr.com/627975-termin...ml#post2463508

and

https://www.citehr.com/628017-need-s...ml#post2463589

The above replies are applicable to your query also. Go through replies and come back with further information.

Thanks,

Dinesh Divekar

From India, Bangalore
Dear Sri Dinesh Divekar Sir: Thanks for the relevant links provided for the queries I sought for and the same has guided me sufficiently to move forward further. Thanking you once again, V Sridhar
From India, Mumbai
Dear Sridharan,

The employer can relieve an employee and an employee can leave the employment at any time under the clause of cessation service in terms of appointment Order.

The employer can end the service by paying the Notice Period amount but since this is difficult period owing to pandemic. The employer should consider something extra payment over the notice period amount would stand good. In this connection call the employee make him understand the whole things in a better way and ask him to tender resignation than to face termination and how this termination would spoil his future carrier.

From India, Mumbai
KK!HR
1030

Such termination of service of an employee as per the appointment terms is termed as Discharge Simpliciter. The Bombay High Court recently considered a matter involving the discharge of a District Judge as legal and valid. In Ajay Ramesh Dinode vs The State Of Maharashtra decided on 30th January 2020 it was held that "....... the impugned order was passed taking into consideration the overall performance, conduct and the suitability of the petitioner for the job. While taking such decision neither notice is required to be given to the petitioner nor opportunity of being heard is required to be given, since the case of the petitioner is not of removal or it cannot be termed as stigmatic/punitive, the same is of simple discharge of petitioner from service. It cannot be termed as removal for any misconduct or on the ground of indiscipline. While judging the performance of the petitioner, overall suitability, performance record, so also reports from higher authorities were called and were looked into before arriving at the decision of discharging the petitioner from service. In this view of the matter also no fault can be found with the impugned decision."
So there is no issue in issuing an order of discharge, provided there is an overall assessment of the suitability on the one hand and the termination order is simple and is not indicative of any action based on misconduct. Indeed discharge simpliciter shall not be used as an easier option to avoid holding enquiry.
As suggested above, the better option is to seek resignation, but if the employee is recalcitrant, the discharge could be considered.

From India, Mumbai

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