Can I Challenge My Termination After a Drunken Argument During Probation?

Hi all, I was working with a company. They organized a party, and inside the party, there was an arrangement of hard drinks. The thing is, after completing the party, when I was boarding my cab, I suddenly had an argument with a guy whom I don't know. As I was drunk, I was quite loud during the argument. Then, one of my friends informed me that he is also from our company and belongs to the transport department. That's when I realized my mistake and apologized for the same.

However, that guy complained about the argument to his HOD, and they terminated me from the organization without discussing the matter with me. The guy had been with the company for approximately seven years, while I had only been there for four months, and my probation period was six months. Can I file a complaint against the organization for this?

Thank you.

Understanding Your Issue: Legal and Behavioral Perspectives

Your issue can be viewed from two angles. One is behavioral, and the other is legal.

Legal Perspective

Legally, since you were under probation, the company generally has the right to discharge the employee during this period. You have no grounds to contest this termination.

Behavioral Perspective

Secondly, there is a behavioral aspect. You can discuss with your seniors and explain the circumstances under which you had an altercation with others. You can also apologize and emphasize that you had no intention to do so. However, one lesson that can be drawn from this incident is that one must control their behavior in such situations and should not consume anything beyond limits.

Regards

Hi all, I was working with a company. They organized a party, and inside the party, there was an arrangement of hard drinks. Now, the thing is that after completing the party, when I was boarding my cab, I had an argument with a guy whom I didn't know. As I was drunk, I was quite loud during the argument. Then, one of my friends told me that he is also from our company and belongs to the transport department. That's when I realized my mistake and apologized for the same. However, that guy complained about this argument to his HOD, and they terminated me from the organization without discussing the matter with me. The guy had been in the company for approximately seven years, whereas I had only been there for 4 months, and my probation period was six months. Can I file any complaint against the organization?

Lack of Support from Senior Management

Actually, my senior doesn't entertain me. I tried to contact them, but they haven't listened to a single thing. They just refused to talk about this topic and didn't give me a chance to speak. Is this fair?

Misconduct and Disciplinary Action

You have not mentioned the hierarchy of the other person with whom you had an altercation; this case can be treated as misconduct. During the party, you were intoxicated and lost control, failing to maintain decorum and respect towards your seniors/peers. Since you were undisciplined, disciplinary action has been taken against you.

On the contrary, the other individual had already lodged a complaint with their Head of Department before you reacted to the situation. Your lack of awareness of the other person's identity indirectly suggests that you were not in control due to alcohol consumption. Please correct me if I am mistaken.

This is to inform you that yes, I was under the influence of alcohol at that time. However, it doesn't mean I had consumed so much that I was not in control of my senses. I was completely in control. Let me explain the scenario in detail.

One of my friends was heavily intoxicated, unable to stand properly, so we decided to have him sit in the park until our cab arrived. When the cab arrived, the driver refused to open the gate as my friend was vomiting. This led to a small argument with the cab driver, who then called someone from the admin/transport department. Even though that person had been working there for the past seven years, I had not seen him before, which is why I mentioned that I didn't know who he was.

When my third friend introduced me to him as being from the transport department, I calmed down and apologized to him. However, he still lodged a complaint with his Head of Department. Without giving me a chance to explain or rectify the situation, they terminated my employment.

I would appreciate it if you could look into this matter further and reconsider their decision.

Thank you.

When your friend was vomiting, it is understandable that the driver wouldn't allow him to travel in the cab. Who will clean up the vomit from your friend? To avoid this, the driver refused.

The driver, respecting you as a senior person, called his senior from the admin/transport department to resolve the issue. The admin/transport personnel also refused. Consequently, you lost your temper and started an altercation, which escalated into heated arguments, causing annoyance to the transport/admin personnel. They subsequently complained to the HOD about your misconduct towards your colleague. The HR/Management, with consent from your HOD, must have terminated you without assigning any reason. Please clarify if the reason for termination is mentioned. This is my assumption based on your side of the story.

Termination Clause and Probation Period

Please refer to the termination clause of your appointment and clarify the termination during probation to guide you further. Normally, during probation, an employee can be terminated without assigning any reason whatsoever. If it was after confirmation, then they could not have terminated you without a probe/domestic enquiry.

Regards.

Moderation in Corporate Settings

Whatever has happened, please remember, never overdo anything in life. Moderation is the key to success. Corporate or business etiquette calls for refraining from consuming alcohol at official parties. If you are compelled to drink, limit yourself to just one glass if absolutely necessary. Our tendency is to indulge excessively, especially when it is complimentary. This should be a lesson for your future. The moment alcohol affects you, you lose self-control. Consider where you have ended up. You may want to schedule a meeting with your Head of Department or CEO to apologize for your actions. Moving forward, it is advisable to abstain from alcohol.

Kindly refer to the clause on Termination of Services in your appointment letter. Your company may have considered this termination under the clause of gross misconduct, which covers even if you are at an official party (i.e., outside the company for official purposes). It is expected that all employees maintain the same conduct as they would on the company premises.

Although the act was not appropriate, considering the situation, the offense does not seem severe enough to warrant termination.

Regards

What I am saying, listen to me with patience, this will solve your problem:

If your employer does not wish to keep you, you can't make your career there, even if you are legally correct or win a legal battle. But, from your case, it's not entirely your fault (100%), but you can make your company reconsider the decision and make them apologize. You need to be diplomatic, cool, and consult a lawyer.

1. Check your exit documents and see what the Cause of Termination is.

2. If it is due to 'disciplinary action taken against you,' you can challenge the company, and there will be a high chance of winning a legal battle.

3. If the reason for your separation/termination is not mentioned, contact a lawyer and send an email with a query under the RTI Act, asking for the reason.

4. There is a 99.9% chance it will be on disciplinary grounds.

5. Send an email first to the HR department, questioning why a domestic enquiry has not taken place and why a one-sided decision was made. Send three emails; if your company doesn't respond (which is highly likely), mention in the third letter that you will take legal action.

6. Mention that you did not attend the party after consuming alcohol; alcoholic drinks were provided by the company. If you have pictures from the party, they can serve as strong evidence. If peers or seniors were seen consuming alcohol at the party, it is important to note. If the party was held at a hotel, restaurant, or disco, try to obtain the invoice showing that the company paid for the alcohol. Handle this diplomatically.

7. If you have evidence as mentioned in point 6, describe the incident in the email and question why the company did not take security measures when alcoholic drinks were present. Question their stance on discipline and ask why they are encouraging misconduct when they are aware that people lose control after consuming alcohol. Attach the evidence to the email.

8. Question if the company indirectly encouraged you by providing alcoholic drinks. Claim that your termination is part of a conspiracy since you were intoxicated and the drinks were arranged by the company. Demand that they reconsider the decision or clear your service record with an official apology letter, or your lawyer will raise these questions in court.

9. If there is no response to the emails and letters, you can opt for the company's response through RTI. Based on their answer, you can take legal action.

If any termination occurs due to 'disciplinary grounds specifically,' whether during the probationary period or not, every individual has the right to natural justice or can seek justice in court. If an employee goes to court, the first order the magistrate provides is the 'domestic enquiry report' to determine if natural justice was served in the termination on disciplinary grounds. Otherwise, the victim can claim that the termination was pre-planned and a conspiracy by the employer where natural justice was not upheld.

For further advice, consult a lawyer. I hope they will provide similar guidance.

Thanks and Regards,

Sovik B. MBA - HR & Finance Managing Director S.S ENTERPRISE.

Adding those, you show that your probationary period is a limitation. Don't listen to them. It will add an advantage to you because your claim of a one-sided decision/conspiracy will be strengthened. The company has to prove and justify themselves in court, whether they follow a hire-and-fire policy or not. Since you are new to the organization, whether a conspiracy, partiality/politics is involved, or a favor to a senior employee just to satisfy his demands/ego, it is a benefit for you. Be smart, confident, diplomatic, and adhere to the laws. You don't need to fear anyone.

Thanks and Regards,

Sovik B
MBA - HR and Finance
B.Sc. Mathematics Honours, Ramakrishna Mission VC College, Rahara,
University Of Calcutta
Managing Director
S.S ENTERPRISE

I can answer the question right away. But I will request you to do research in this part. I am just trying to help a poor guy, right? I am not paid here for consultation, but I have to pay my lawyers/law firm for consultation. Please don't consider me rude; I am just diplomatic with you.

But still, for your information (FYI), I would like to add a point: if a query for the reason of termination is made under RTI and it is not mentioned in the Termination Letter, the company will have to provide the same as it can't claim information confidential under Trade Secret Exclusion. I hope you understand what I mean to say.

Thanks & Regards,
Sovik B
MBA - HR & Finance
B.Sc. Mathematics Honours, Ramakrishna Mission V.C. College, Rahara,
University Of Calcutta
Managing Director
S.S. Enterprise

Thank you very much for guiding me. I have referred to the link, wherein I found a few clauses as follows:

"Sub-clauses (i) and (ii) together mean that any non-government organizations which are substantially owned, controlled, or financed directly or indirectly by the government would be covered. Thus, aided schools and colleges are public authorities, as well as any trusts or NGOs which have significant government nominees; or companies where the government either owns a substantial stake or has given substantial finance, are directly covered under the RTI Act. The substantial finance can take into account tax incentives, subsidies, and other concessions as well.

"Applicants have every right to seek information on a private company even though it is in the private sector if it reports to a government body."

Only applications that serve public interest would be dealt with, not those that seek to erode a company's competitive position.

From the above clauses, I feel that none of the clauses state that an RTI can be sought for the reason of the termination of any individual, i.e., an employee. As per my view, which may be incorrect, please guide us.

One more question: You have said, "Only applications that serve public interest would be dealt with, not those that seek to erode a company's competitive position." Does "Reason Of Termination" erode a company's competitive position? Does it fall under "Trade Secret"?

Regards,
Sovik B

I don't want to prolong this thread. From a legal angle, a lawyer can argue in many ways where the hearing takes its own due course of time. Here, the employee has to judge whether he/she will wait until the judgment comes, wherein the employee has to devote his/her time and money running to courts and lawyers. Practically, the employee spoils his/her career just to receive an apology, a meager amount, or reinstate his job. All this can be done if the amount is huge and the employee has enough time and money for survival. That's why an HR/forum always gives a fair view/advice to the employees. Nobody can stop anyone from going legal, but if a fair view/advice is sought, it is given assuming the querist as a middle-class employee. If any issues are sorted out amicably across the table by the reply to the queries raised.

By any means, it was not to underestimate your knowledge/experience, but to gain further knowledge which will be helpful to others in the forum.

Importance of Conducting a Domestic Inquiry

To all my HR friends, it's a humble request to consider conducting a domestic inquiry before making any decisions if you encounter similar issues. Weigh all the pros and cons before finalizing your decision.

Rushing into decisions and dealing with cunning, aggressive, bold, mischievous, and fearless employees (the victims) can lead to severe damage to the company. They may involve various government agencies, instigate investigations, impose penalties, and even demand substantial compensation on legal grounds. Under such circumstances, defending the corporate house becomes extremely challenging, and neither the brand name nor the internal policies or the network of senior professionals can protect the company!

Commonly, HR audits categorize such errors as fatal. Legal support may not be available to defend the company. Therefore, it is crucial for all responsible HR professionals to thoroughly assess the legality of their actions before proceeding.

Although I am an introvert who prefers not to speak at length and focuses on constructive work, I have expressed my views as effectively as possible. The final decision rests with all of you.

Thanks and regards,

Sovik B

MBA-HR and Finance

B.Sc Mathematics (Hons), Ramakrishna Mission VC College, Rahara

University of Calcutta

Managing Director

S.S. Enterprise

Applicability of the Right to Information (RTI) Act to Private Companies

The Right to Information (RTI) Act does not apply to a private company in the usual connotation of the term. However, if a company is established by a government body, a Public Sector Undertaking (PSU), or a joint venture (such as NTPC BHEL Power Pvt Ltd) involving PSUs as a private entity, it will fall under the ambit of the RTI Act because it will be considered substantially funded by the government.

Additionally, the RTI Act only allows for the supply of pre-existing information. It does not facilitate answering the question of "why" or providing reasons for any actions taken by a public entity. Based on the original query, if an individual was terminated by a purely private company, there is no avenue to challenge the decision. Any legal action taken would likely not be sustained, as it would not serve any meaningful purpose.

RTI Act and Private Companies

RTI ACT CLEARLY STATES that private companies are not exempted: "Applicants have every right to seek information on a private company even though it is in the private sector if it reports to a government body." Only applications that serve the public interest would be dealt with, not those that seek to erode a company's competitive position.

Now, information regarding termination cannot be claimed as a 'TRADE SECRET' that can erode a company's competitive position. Please note this point.

All companies formed under the Companies Act 1956 indirectly report to the Ministry of Corporate Affairs, Ministry of Labor & Employment, and government agencies like SEBI. Their roles come into play when discrepancies arise in terms of laws. Legally, if any private company is free from not reporting/answering any of the government agencies, like SEBI, Ministry of Corporate Affairs, Ministry of Labor & Employment, they can do whatever they wish, and such organizations (SEBI, Ministry of Corporate Affairs, etc.) shall never have the right to opt for intervention in case discrepancies happen.

Using RTI Indirectly

For example, say any stockbroker/Equity Trader has a valid doubt based on evidence that any private company is applying illegal methods to increase its stock value in the market. The Stockbroker/Equity Trader can ask for information via RTI through SEBI about the company's affairs details. The stockbroker will ask SEBI for more detailed information about a company's details and will inform SEBI that forgery might be taking place based on evidence. Now, it's SEBI's responsibility to investigate and monitor that company's affairs, pros & cons, and provide a suitable answer to the broker in such a way that the company's competitive position is not eroded. In case SEBI finds any discrepancies during the investigation, SEBI possesses all rights to intervene in the private company's affairs to protect the rights of equity traders. Further, under such a situation, the Ministry of Corporate Affairs possesses all rights for intervention in the private company's affairs to safeguard the rights of all kinds of partners associated with that private company.

Termination of Employees and Labor Laws

Similarly, for the termination of employees, labor laws associated with termination must be followed. Labor laws for termination clearly state that for termination, the following criteria must be met:

1. Reason for Termination.
2. In the case of an employee completing 3 months of continuous service, a minimum of 1 month's written notice/payment in lieu thereof is required by either side, as the case may be. (Notice of Dismissal- Sec 30)
3. Wages to be paid before the expiry of the 2nd working day after the day on which employment is terminated. (Termination by or on behalf of the employer Sec. 19-5).

In the case of unfair termination, as stated in labor laws (PFA of Labor Laws modified after 2003), an employee possesses all rights to appeal for justice to the Labor Commission and can even opt for a Labor Tribunal. In this case, a complaint needs to be lodged in the Labor Commission if the 'Reason for Termination' is not specified/mentioned. Under the RTI Act, an employee can ask the company through the Labor Commission/Labor Tribunal to state the reason for termination if not provided by the company, which is a valid demand on behalf of the employee as per labor laws. As per labor laws, it is considered unfair termination (illegal) if the reason for termination is not specified. The Labor Commission/Labor Tribunal, including the Ministry of Labor & Employment, possesses full rights to investigate and opt for intervention in the affairs of private companies if a satisfying reason for termination is not provided by the company.

Since the Industrial Dispute Act and domestic enquiry have not been made before the termination of Gaurav, labor laws are not satisfied. In the attachment, kindly read those sections which clearly state under which criteria termination is considered illegal.

Once you understand this, I will provide you with details on how the Ministry of Corporate Affairs gets involved in this case.

Regards,
Sovik B

Understanding Company Accountability and Employee Rights

Please don't remain under the illusion that a private (PVT) company can do whatever they wish. No one can act without accountability, and they don't operate without oversight. HR, CEOs, and MDs do not possess supreme authority to ruin the careers or lives of employees or stakeholders by acting as they please. If that were the case, regardless of laws, companies might opt for bonded labor, child labor, or chit fund forgery for profit maximization. However, this does not happen in practical life, right? There are monitoring bodies such as SEBI, the IT Department, Sales Tax Department, Labor Commission, Labor Tribunal, ILO, RBI, etc. Otherwise, companies like Satyam Computers/Sharada Group would have been able to do whatever they wished.

All private companies formed under the Companies Act 1956 (including all amendments) indirectly report to the Ministry of Corporate Affairs, Ministry of Labor & Employment, and government agencies like the Income Tax Department, SEBI, RBI, Sales Tax Department, Labor Commission, etc. It can be viewed that companies are liable to follow all laws of the land, corporate laws, labor laws, and guidelines issued by the above agencies from time to time. By following laws and regulations, companies report to these institutions that all their actions are appropriate and legal. The moment a violation of laws or guidelines occurs, all these institutions have the right to investigate, monitor, and intervene in company affairs if required. All companies are bound to answer these agencies if the question is valid and legal.

If this were not the case, a company might be able to hide its income and pay only a quarter of the taxes it should ideally pay. Would all these agencies (concerned ones) sit idle in their chairs and watch everything silently because they don't have the power to do anything, and companies don't report to them? So, why should companies be liable to follow their policies and guidelines issued from time to time? Does this happen?

Termination and Labor Law Compliance

For reasons of termination, it must be a valid one, which is a mandatory criterion according to labor laws that all companies are liable to follow. Otherwise, the Labor Commission, Labor Tribunal, Ministry of Labor & Employment have full rights and authority to investigate, question, and intervene in the affairs of private companies if required. That's why labor law clearly states that if the termination is illegal, the employee has the right to seek justice from the labor commission/labor tribunal, along with the Judicial Department.

In this particular case, first, a complaint needs to be lodged stating that the reason for termination is not specified as per labor laws. After that (after a suitable span of time), under RTI, the employee has to ask the labor commission about the action taken regarding the complaint that the termination was made without satisfying the basic requirements of termination under labor laws. It is the sole responsibility of the labor commission to obtain details from the company, investigate if required, and intervene since labor laws have not been met. Also, it is their responsibility to provide information to the employee about the reason for termination specified by the company.

Moreover, an employee can be terminated if proven misconduct occurs from the employee's end. So, a domestic inquiry is a must.

Thanks and Regards,

Sovik B

MBA - HR & Finance

B.Sc Mathematics Honours, Ramakrishna Mission VC College, Rahara, under the University of Calcutta

Managing Director

S.S ENTERPRISE

There are two things that the company should consider: not arranging such parties inside the premises and avoiding the consumption of hard drinks.

I agree with you. Have you read the story narrated by Mahatma Gandhi, 'Imitating an English Gentleman'? Today, when we are globally connected, global trades are taking place, and we are following Western culture, someone who follows it should not blindly imitate it. According to my view, good points/features should be taken from any culture, even Western culture, but not their dark sides.

I don't know what specialty alcohol brings to a party. If companies are arranging alcoholic drinks, they should know that people lose their senses after getting intoxicated; they can't get rid of their moral responsibilities of employee security and maintaining discipline! It should be their moral responsibility to drop the employees safely home.

If disciplinary incidents take place, by no means of law can they defend themselves, stating they are not encouraging or provoking disciplinary activities if they claim it's an official get-together. They can claim that it's an informal get-together (only the company is sponsoring it) to save themselves, but if it is so, then the employer has no legal rights to take action against any employees based on internal policies, corporate laws, or labor laws. During such incidents, they have to consider their employees as the public and not employees. This happens most of the time because corporate houses, especially MNCs and Fortune 500 companies, don't wish to lose their reputation due to such incidents, and their hands are legally tied! The exception is Gaurav's case where the corporate house can't defend them at all, no scope!

You know something, if any employee comes to the office intoxicated, I just ask them, what specialty is there? It seems you don't want this job, right? Why don't you resign officially; no one is holding you? That's much better than termination. If you really wish to drink, then go to a bar or drink at your house; no one will question you, dear! I say this straightforward.

Regards,
Sovik B

This is an unfortunate incident for you. The first thing to consider is that you were under a probationary period. Secondly, if there are any clauses in your appointment letter regarding this, your termination is legal. The company generally has the right to discharge an employee during this period. You have no grounds to contest this termination.

Regards,
Pankaj Bhanuse (Nagpur)

I have one question for you: can an employer terminate an employee during the probation period due to the employer's fault and not the employee's?

If termination is due to poor performance, then the employer has the right to terminate during the probation period. However, even during the probation period, the reason for termination has to be mentioned. This is mandated by labor laws.

If 'disciplinary grounds' are cited, then the company cannot defend itself. It is a misconception that during the probation period, an employer can simply say, 'you are terminated,' and the job is over the next day. The probation period signifies that an employee is not a permanent employee; it is a testing period. The company has the right to terminate an employee without notice if the employee fails to perform or adhere to the company's rules and regulations, but not without reason.

Please consult with a reputable lawyer with over 25-30 years of experience in this field. This is illegal.

Thanks & Regards,

Sovik B

Termination of Service During Probation

The moment termination of service occurs for a probationary employee without stating the reason for termination in documents, we must consider the case as a 'layoff' and not due to termination on disciplinary grounds.

If such an employee joins another organization, showing previous experience, we have to consider layoff as the reason if there is not sufficient documentary evidence proving that the employee was terminated on disciplinary grounds in the previous company.

During verification, if the previous company provides written feedback (forget about verbal) that the employee was terminated on disciplinary grounds, and there is a mismatch in the versions of the employee and the previous organization, the employee cannot be considered a candidate with a red verification report. This is because the relieving letter does not mention the reason for termination, which is provided by the same old employer—a contradiction. If the employee claims that no such incident took place, then the employee must be given a chance for an explanation. With both documents, if the employee goes to court and claims that the previous employer is trying to harm the employee financially, the previous company can defend itself. Firstly, why did the previous company fail to mention the reason for termination in the documents? And why are they claiming it now? Most employers do not prefer to take advantage of employees in this manner.

If an employer mentions in the relieving letter/termination letter of a probationary employee that he/she has been terminated on disciplinary grounds, a domestic enquiry becomes mandatory (this is not due to poor performance).

Understanding Termination During Probation

Adding,

The moment termination of service occurs in the case of a probationary employee without stating the reason for termination in documents, we have to consider the case as a 'layoff' and not due to termination on disciplinary grounds.

If such an employee joins another organization, showing previous experience, we have to consider the layoff as the reason since there is not sufficient documentary evidence proving that the employee was terminated on disciplinary grounds in the previous company.

During verification, if the previous company provides written feedback (forget about verbal) stating that the employee was terminated on disciplinary grounds and there is a mismatch between the employee's version and the previous organization's, the employee cannot be considered a candidate with a red verification report. This is because the relieving letter does not mention the reason for termination, creating a contradiction. If such a claim is made, the employee must be given a chance to explain. If the employee presents both documents in court claiming the previous employer is trying to harm them financially, the previous company cannot defend itself. Firstly, why did the previous company fail to mention the reason for termination in the documents? And why are they claiming it now? Most employers do not prefer to do this, giving an advantage to the employee.

If an employer mentions in the relieving letter/termination letter of a probationary employee that he/she has been terminated on disciplinary grounds (this is not termination due to poor performance), a domestic enquiry becomes mandatory so that they can defend themselves if challenged that the case is genuine.

This discussion is getting interesting, particularly the debate on the RTI Act. For the past 7-8 years, I have been dealing with RTI matters in my company (government), among other things. I have also personally obtained information under RTI from various public authorities (some successful, many not). Sadly, when information is sought, every public authority tries not to divulge information. Everyone will agree that the RTI Act applies to public authorities alone, and a public authority has to notify Public Information Officers (PIO) and APIOs (if required), and Appellate Authorities. I have not come across any private company having a PIO, simply because the Act does not apply. However, information relating to private companies can be obtained when it is controlled by or reporting to any government authority (by itself a public authority and will have PIOs and AA). One may get information on private companies from the Registrar of Companies (a public authority).

Information Available from Public Authorities

The information companies provide to ROC includes ownership profile, details of directors, liabilities, etc. Similarly, listed companies will give certain reports to SEBI regarding the issue of shares, profitability, quarterly/annual returns, balance sheets, etc. Such information can be available to the public through the PIO of such authority. However, not routine administrative matters relating to the employment of persons, their increments, pay, terminations, etc. On the contrary, such information can be sought from government companies which are public authorities. Disciplinary matters are included because of Article 311 of the Constitution, where it is mandatory to issue a charge sheet and hold an inquiry. This is not applicable to private companies. In private companies (in PSUs as well), disciplinary proceedings apply as per standing orders where its workmen are covered by it. Still, service matters of workmen in private companies will not come under the purview of RTI, as far as I know. You may get information on welfare facilities, safety measures, etc., of a private company, through the Factories Directorate of a State, since companies file periodical returns to this authority.

Seeking Information Under RTI

If the argument is taken for granted, what is the question that you are going to ask (which authority, Registrar, SEBI, Factory Inspectorate?)? The question is reproduced here:

3. If the answer to your separation/termination is not mentioned, contact a lawyer and send a mail with a query under the RTI Act, your reason for termination or separation.

Which authority possesses this information, other than the private company? Especially, when the information relates to an executive? If any of the PAs, if at all, directs to give an answer, the readymade and simple answer is “unsatisfactory performance during probation period.” It is not easy to challenge this contention. If one enters a legal battle, it will take 15-20 years of litigation (from civil court, several rounds in high court, supreme court – remember the opposite party is a company, which has the resources to fight such a legal battle). In my view, as far as executives in private companies are concerned, it is a hire and fire policy that prevails.

Please see the attached file, para 22, where it is mentioned PA should provide reasons for the decisions taken to the affected parties. Two categories of persons can apply for information under this: (1) Employees of the PA for reasons of any action/decision (2) Citizens affected by the decision of the PA, say a Village office failing to provide any service. Can you say service matters of a private company come under this?

A presentation is also attached for the interested.

Regards.

Termination and Labor Law Considerations

This discussion is really interesting now. For discussion, let us first ignore the probationary period. Let us consider a regular permanent employee of a private company.

If the reason for termination is not provided by a private company, it can be considered as unfair termination under labor law. Labor law permits an employee to seek justice from the Labor Commission (it is not a private body). The Labor Commission possesses rights to get such information from private companies too, not only limited to public companies. This power is provided by labor laws. The Labor Commission is a public body since its activities are funded by the government.

As the Labor Commission is a public body, the Right to Information (RTI) holds good for it. If a complaint is lodged with the Labor Commission, it has the power to seek information from private companies regarding their labor practices.

In 99% of cases, private companies at least cooperate with such bodies for negotiation when a complaint is lodged, particularly for cases like termination, to avoid further legal battles. If someone seeks information against a complaint made, if the Labor Commission possesses the information, they are supposed to provide it under RTI.

Thus, if the Labor Commission comes to know about the reason for termination for a particular complaint, they are supposed to provide the same under RTI to the person who is complaining.

Termination During Probationary Period

Now, for the termination of an employee during the probationary period, three factors need to be considered:

1. Whether the agreement clearly states that during the probation period, the employer can terminate an employee without notice, reason for separation, and notice period.

If this clause is not mentioned, the company has the right to terminate the service of the employee without notice and without providing a reason why notice was not provided. However, a reason needs to be provided.

The Supreme Court, in its judgment, has stated that for probationary employees, employment can be terminated without prior notice and without a reason for not providing notice. Still, the reason for termination is important.

If the reason for termination is not provided for probationary employees' termination in writing, it can be concluded as a layoff too, which is fine. For poor performance, it is also acceptable. There is no need to challenge it. It is fair, part of life, and there are more opportunities yet to come.

However, if the termination is made on disciplinary grounds, a domestic inquiry becomes important. For instance, forget this case, let's say an employee is terminated on disciplinary grounds, and the charges against him are sexual harassment or abuse. Under such scenarios, when serious allegations are made, the appeal for justice will not be limited to the civil court but also to the criminal court.

If the employer decides to remain silent, it will harm not only the employee but also other organizations. This emphasizes the importance of the cause of termination.

In cases where termination is made on disciplinary grounds, it is still acceptable if the reason is clarified. It cannot harm someone's career, right? The question here is not challenging the company's decision.

If I were in Gaurav's place, I would have said to the HR, "I respect your decision, thank you." But my point is to provide a reason for termination in clear detail. If I were in Gaurav's place, I would have shown the same experience to my next employer, honestly. I would have said, "I was terminated on disciplinary grounds, as stated in my relieving letter, but still, I was innocent as a domestic inquiry never happened. And in the reason for termination, it must be mentioned that the company had sponsored alcoholic drinks at the party."

If the company doesn't wish to provide this information, then we have to explore other options to obtain it from the company. It’s all about providing a justified and honest reason for termination and not challenging the decision.

Regards.

To All Human Resource Professionals,

We don't know whether we would be able to help Gaurav or not, but can we all take an oath today that irrespective of caste, creed, color, sex, or religion, we will not support or encourage alcoholic drinks or any intoxicating product in office premises or official parties? We will not allow any such request. If, due to any reason, we fail to convince management, then still we will not participate in such get-togethers with a glass of liquor. We might be too small to change others, but at least, can we change ourselves?

Until and unless we take a stand today, this story will repeat again and again. Forget about laws, rules, and codes of conduct; can we try this honestly for the sake of morale? If not, then we are in a mood that we will not learn even from practical case studies.

At least, it is settled that only public authorities have the RTI option. If the Labour Commissioner/ALC/DLC/LO is approached, they may direct the company to give a reply. However, whether the company (which was adamant in terminating the employee and not listening to them) obliges this is another question because it will lead to another angle of third-party information, where the third party is entitled to appeal against PIO.

Normally, only a workman (in the case of an individual workman who was terminated) can approach authorities under the ID Act. In the case of executives, the scope for intervention is limited. Participation in such negotiations (conciliation meetings to be specific) is not compulsory on the part of companies. You may be aware of how companies (especially private ones) manage their labor departments.

Social drinking and cocktail parties are part of corporate life today (not that I support it greatly), and moderation is the key. It happens when companies celebrate their achievements in production, annual get-togethers with their employees, important business meetings with key accounts/customers (because as you pour alcohol, the eyes of the businessmen are on the sheer profits). If one drinks too much and spoils the party, the businessman's reaction is understandable, and they may direct the HR person to remove the individual. HR may have sympathy for the poor fellow but has no option because the company is not running a charity but is for business and profits. HR has to execute the management order and cannot plead with HR philosophy or psychology. Anyway, people including HR working in your company are lucky since even if such mistakes happen, they need not worry.

We all have concern for the affected party in this case but are also concerned about the legal/behavioral aspects of it as professionals. If the employee receives any favor from the labor department/court/negotiations, well, we too are happy. Maybe someone can arrange another party! All the best.

Though your act is one of misbehavior, we need to understand whether it occurred on the premises of the company or outside. If it took place outside the company's premises, then they do not have the right to terminate your service for misbehavior. Your management could have discussed, counseled you, and given you a memo/warning.

If the act did not occur on the company's premises, then they do not have the right to terminate your services directly. You can consult an advocate and send a legal notice to the company to reinstate you at work.

However, considering your future career, it is advisable to meet with your seniors/HR manager of the company, discuss with them, and apologize for the act once again. Keep in mind that in the future, if you are seeking a job in another company, your current company should not provide a negative verification report. Therefore, please settle this matter amicably for the sake of your future career.

Regards,
Sumeet

Response to Sovik Bhattacharjee

You have very little understanding of labor laws and the laws of this country in general, or perhaps you have an overly high opinion of your knowledge, even when it does not align with the actual law, court decisions, and the ground reality.

You have been arguing with everyone who has posted anything on this thread, and most of what you say is completely wrong and misleading to the original poster and to any person who reads the thread afterward. The only thing you have said correctly (but it is lost in the deluge of words you have unleashed) is that he needs to check whether his appointment letter actually has a clause allowing the employer to terminate him without notice. It is possible that it may have been missed out.

As for the rest of your posts, RTI does not apply to the organization he is working for. Nothing you say will change this fact. Your suggestion will only end up creating more problems for the terminated employee. The rest of your tirade against each of the members of this site (including some very senior ones) is meaningless as we need to look at the law of the land and nothing else. It does not matter (for example) where HR originated. If the law does not allow or require a thing to be done, then that is it.

The final fact of the original problem posted by Mr. Gaurav is that he has very little ground to challenge the decision of the company. His only way out was a request for reconsideration with a promise to ensure such a thing never happens again. That option is already closed as the company does not wish to entertain any such request from him.

Please stop posting more on this topic.

You have made several points. Readers (hopefully) will be able to follow them to the original act/ruling and make their own decision regarding the applicability of the same.

Instead of suggesting any steps to the mailer, we have indulged in unnecessary discussions. Nobody has been able to suggest any concrete solution to the problem. I agree with Sh. Saswata Banerjee that we have had more general discussions rather than on labor laws. However, I must hesitantly appreciate the patience of Sh. Sovik Bhattachaerjee in putting his ideas in very lengthy and repeated emails. I think 5-6 pages of discussions on this thread for a simple query were unwarranted.

I would like to offer him advice regarding his query. Since he has only worked for 4 months and has made a blunder (not a mistake), he may want to try his luck elsewhere instead of attempting to return to the company. I echo the sentiment of one member who mentioned that even if he were to rejoin the same company, he might not have a good experience there. I have observed the behavioral pattern of individuals who are apologetic for their wrongdoings but continue to repeat the same behavior. I hope he is not such a person.

I apologize if my writing has been hurtful to anybody.

Regards,
BS Kalsi
Member since Aug 2011

What I mean to say is like this (for similar cases), but this will only be possible if Gaurav can gather circumstantial evidence:

1. We can file a writ petition.

2. We can clearly state the allegations against the company, and we will gather circumstantial evidence.

3. Circumstantial evidence will include photos of the party, along with witnesses if available, and invoices showing the company has sponsored the party along with alcoholic drinks.

4. After consuming alcohol, Gaurav loses control of his senses and misbehaves unintentionally. He even apologizes later when he regains his senses.

5. According to Gaurav's comment, no investigation took place and termination happened immediately. The company may claim his performance was poor or it was a layoff, but the question arises - why was he terminated immediately post that incident? Is it just a coincidence?

6. Here comes the need for RTI. Based on the writ, the commissioner can obtain information about the reason for termination. We must know this information once the commission possesses it, as we need to understand the company's stance first to proceed further. The company may choose not to provide information, but at least we can argue that it may be crucial for someone's career and the information cannot be considered a trade secret or anything that could jeopardize the company's competitive advantage.

7. Saswata Da, you are well aware that companies these days do not prefer to include clauses that allow an employee to be terminated without reason, with no notice and no salary at any time. The reason is that no one would be interested in joining under such conditions. Having spent some time in sourcing, I am familiar with some of their strategies. Therefore, I advised Gaurav to share all the clauses mentioned in the appointment/offer letter before taking any action and to gather as much evidence as possible.

8. The reason for the legal battle should not be to challenge the decision but to remove the 'termination on disciplinary grounds'. I am not sure of Gaurav's designation, but for us, if someone is in mid-management or senior management, such allegations can be detrimental, especially if they are associated with the finance/cash department. If the termination was due to poor performance, layoff, or business needs, these aspects would not have been as crucial. I would have suggested him to take it sportingly and move on.

9. Saswata Da, you are aware that if a company sponsors parties, they do not consider them official if intoxicating products are involved. The reason is that it is challenging for them to justify why they sponsor intoxicating products when they know that discipline is crucial at such events and people may lose control after consuming them. Even the party's premises are essential to understand the case.

Now, Saswata Da, I await your suggestions. You are a senior member, different from any other common HR professional, with extensive experience in labor laws and compliance audits. The welfare issues of a company are also affected.

This is just one perspective. I look forward to your reply and suggestions.

Regards, Sovik B