Sub- Dismissal of an employee.
Dear Kiran
When an empoyee's services are terminated for bonafide reasons under standing orders/settlements/ service rules without any intention of punishing him, such terminations will fall under the category of termination simpliciter(simple terminations). Where an employee's services are terminated by way punishment allegedly for a misconduct, such terminations will be regarded punitive or stigmatic since the employee is dismissed for an allegation that casts stigma on his character and conduct without being heard.
While the Courts may not interfere with termination simpliciter of an emplyee, they may quash a dismissal if it was inflicted without hearing the employee concerned.
The principles of natural justice require that an employee shall not be punished for a misconduct without being heard about such misconduct. These principles are not incorporated either under Factories Act or the Industrial Disputes Act. A factory's standing orders (if applicable since they are applicable to factories employing 100 or more workmen) or service rules incorporate These principles are in the form of disciplinary procedure.In view of these principles of natural jsutice, the following basic procedure has to be followed before punishing an employee.
1) he should be served with a cahrge-sheet setting out the specific details of allegations agaisnt him.
2)he should be asked to explian his alleagtions.
3) if his explanation is not satis factory, you have to conduct a domestic enquiry into the cahrges where the employee will be given adequate opportunity to defend himself.
4) if he is found guilty in such domestice enquiry, an appropriate penalty be imposed on him.
Your company must have standing orders of it's own or conduct rules which prescribe such procedure.
In your case, the employee was dismmissed for negligence in his work which is an allegation against him . Therefore he was dismissed allegedly for a misconduct. Thus, you should have followed the above preocedure before dismissing him.
You can treat it as retrenchment either since such terminations will not be regarded as retrenchment as the definition of retrenchment under Sec. 2(oo) of the I.D Act excludes terminations by way of punishment from retrenchment.
If the employee is a workman within the meaning of the I.D Act, in all probability, he will raise an inductrial dispute about his dismissal, terming it unlawful.
B.Saikumar
HR & Labour Law Consultant
Chipinbiz Consultancy Pvt.Ltd
Mumbai