Termination Of Employment - Notice Period

Hello Sir,

I was working in an IT MNC for more than 3.5 years in Noida as a Software Engineer. I was a permanent employee there.

One day, the company HR terminated me. They sent a termination letter with 2 months' salary in lieu of the notice period. They did not levy any charges on me.

I registered a case with the local DLC office and had a conciliation meeting.

During the conciliation meeting, a company representative filed a written statement (WS) stating that I was a software engineer in the company and my work involved imagination and creativity, so I cannot be termed as a "workman," and asked the DLC to reject my case.

Can the DLC reject my case by stating that I am not a "workman"? Based on the DLC report, where can I seek relief - the "Labour Court" or the "High Court"?

Please suggest.

Thanks

Dear,

While sympathizing with you, you must understand a fact that unless you prove before labor authorities that you are a workman as provided under the Industrial Disputes Act, you cannot succeed. Secondly, refer to your appointment letter regarding conditions for termination to confirm if the company complied with such provisions. If not complied, you may approach a labor law consultant.

Best of luck.

Ok, agreed.

Suppose I'm not able to convince the labor authorities that I am a "workman," so based on that, they dismiss my case. Then in that case, where can I go for relief - "Labour Court" OR "Civil Court" OR "High Court"?

Please reply.

Dear,

The matter is pending for conciliation before the DLC. Hence, either the matter will be conciliated upon or will be referred to the Government i.c. Labour Commissioner with a failure report. The Labour Commissioner will decide whether to refer it to the Labour Court or not. The question of 'WORKMAN' can only be decided by the court. So, please wait for the outcome of the conciliation proceedings.

Thanks,
V K Gupta

Do I need to submit a rejoinder to the DLC against the written statement (WS) submitted by the company stating that I don't come under the definition of "Workmen"?

Does the DLC have the authority to give his opinion on the "WS by the company and rejoinder by me"? Or does he directly submit the Failure of Reconciliation to the government?

After FOC, if the government does not send my case to the labor court, can I directly approach the labor court on my own?

Please Reply

Dear Anshul,

I hope you remember our telephonic conversation 2 or 3 days ago. Normally, a Conciliation Officer appointed under the Industrial Disputes Act, 1947, after taking cognizance of a dispute, will try to forge an amicable settlement or submit his failure report to the appropriate Government. They discuss the claims and counterclaims with recommendations for adjudication. Therefore, if your case falls under the I.D. Act, the DLC cannot simply reject your claim based on the management's standpoint that you are not a workman under Section 2(s) of the Act. It would be advisable to file a rejoinder refuting the points on which the management argues that you are not a workman. Alternatively, since IT/ITES establishments are covered under the State Shops & Establishments Act, you can file an appeal under the appropriate provision that allows for appeals against wrongful dismissal.

Thank you.

Dear Anshul,

If we keep in mind your nature of work, it shall not be considered as work under the ID Act. However, as mentioned by Mr. Umakanthan, you may be considered as an employee under the Shops & Establishment Act, as the nature of work is not specified as in other acts.

So, your relationship with the company as an employee and employer, and your appointment letter represents an agreement/contract of the terms and conditions of your services provided, and on that basis, the company will pay you the remuneration.

Therefore, as you mentioned, they have terminated you without any charges and have paid you one month's salary in lieu, which I believe is as per the terms stated in your appointment letter. This implies there is a breach of contract or a violation of a rule.

Normally, these clauses are used universally in most agreements or contracts, considering the possibility of cost reduction, budget constraints, manpower adjustments, etc., in the future. This serves as compensation in case of failure to adhere to the terms and conditions, acting as a defensive clause.

Still, I do not understand what your dispute is in this case...?

Dear Mr. Anshul,

You should file a rejoinder. The status of a workman does not depend on the designation, but on the nature of work performed. The DLC is not the authority to adjudicate the ID. He can send the failure report to the appropriate government body, which then refers the dispute to the IT/LC having jurisdiction over the area. You can directly file the ID case before the Labour Court if the Conciliation proceeding is not completed within 45 days.

Thanks and regards,

RL Dhingra, Advocate
Labour Law Consultant, Delhi
Email: rld_498@rediffmail.com
Phone: 09818309937 / 0124-4109907

I joined a firm 1 1/2 months back. They only gave me a letter of intent and made me sign a bond. I have not been given any appointment letter. All of a sudden, they say that I have been terminated, that too verbally. They are now threatening me, accusing me of spreading negative talk about the company, and claiming they will blacklist me. The harassment is severe, and I feel like I have no way out. If this continues, I fear for my well-being.

Dear Srilakshmi,

I am sorry for what has happened to you. However, I am unable to believe that the sole purpose of our existence is to find a secure job. While financial disadvantages may have led you to accept an offer with uncertain terms, you continued unsuspectingly until being let go by your former employer, who demonstrated his unscrupulous nature by threatening you. Simply, avoid such situations and endeavor to secure a suitable job as soon as possible.

Hello,

During my conciliation meeting, the company filed a written statement (WS) signed by the General Manager (HR). However, he did not attend the conciliation and instead sent his juniors to submit the WS. These individuals did not have any authorized letter.

Can I file an objection because, as per the DLC notice, the company MD or his representative should attend the conciliation? In my opinion, if the General Manager (HR) is signing the WS, he should be present at the conciliation meeting, and no other person should be entertained.

Please confirm.

One more thing: General Manager (HR) is sending 4 to 5 people for conciliation who do not have any authorized letter. How many people can be authorized by the company to defend it before DLC? There should be some limit. Please reply.

Dear Anshul,

I hope I've explained to you in detail what the appropriate follow-up action you should take. I am sorry, instead, you are more concerned about procedural formalities such as who should represent management and the authorization as strictly stipulated in the Rules. It will cause unnecessary delay in the disposal of the dispute and will not serve any useful purpose. Whether an employee is a workman or not is a simple question to be solely decided based on the views of one of the litigants or by the Conciliation Officer. Can you say the work of all software engineers is purely creative so as to call them independent professionals whose work has to be carried out only according to their professional code? Nor is the creativity of a work simply determined by factors like educational qualification, designation, or salary?

It would be better to consult an experienced Counsel, get the rejoinder repudiating the stance of the management, and file it forthwith requesting D.L.C to record failure u/s 12(4) of the I.D Act, 1947.

Sir,

I thank you for your concern, but I would like to know what importance a bond plays in the private sector. I worked there only because I had signed a bond; if that was not there, I would have left the organization far before. They are not even concerned about my exit formalities despite many calls and emails.

I also want to know whom I can complain to if this situation persists.

Dear Srilakshmi,

Of course, I can very well understand that your ex-employer acted so schematically by terminating you orally, making your position precarious under the subsisting bond you executed at the outset of your appointment. I don't know in what capacity you were employed. Whatever it may be, if you are concerned about the bond, it would be better to send a notice through a lawyer, detailing everything that happened and requesting adequate compensation from the ex-employer.