Respected All,
The company arbitrarily relieved me from my services after the completion of the probation period of 6 months. This is a normal practice of the company in its work history. After 6 months, as per the employment letter, my salary was to be revised. I had reminded and requested the company regarding this. Two days later, the company relieved me from its services, paying 2 months of BASIC SALARY as notice pay. The company had obtained my signature on a 3.5-year service bond as well. The company didn't pay leave payment on a pro-rata basis, stating that they haven't received my confirmation in writing, and therefore, I am not eligible for leave payment. As notice pay, they paid just 2 months of BASIC, NOT GROSS, Salary. The company has unilateral terms of the notice period clause in the employment letter. If I resign, then a 3-month notice period or 3 months basic salary in lieu of it, but if the company terminates my services, then a 2-month notice period or 2 months of BASIC Salary in lieu of it. I understand that these terms of employment are biased and perhaps invalid.
I felt that the company has done gross injustice to me and also not paid a fair full and final with compensation for breaching the 3.5 years' service bond. I sent many emails and tried to call the HR and other officials of the company, but they all blocked my number.
Finally, through the Government's public Grievance Redressal forum, I lodged my grievance for resolution.
Now the company has sent me a legal notice through their advocate, leveling allegations that my approach to the Hon'ble LG's Grievance Redressal portal has affected their reputation, and so I have to pay Rs. 50 lacs as compensation in 15 days for defamation; otherwise, they will file civil as well as criminal cases in the court.
Is registering a grievance with the Government's public Grievance Redressal portal, which is open to everyone, wrong? And can the company file cases for doing this? Please advise.
Thanks,
From India, Pune
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3The company arbitrarily relieved me from my services after the completion of the probation period of 6 months. This is a normal practice of the company in its work history. After 6 months, as per the employment letter, my salary was to be revised. I had reminded and requested the company regarding this. Two days later, the company relieved me from its services, paying 2 months of BASIC SALARY as notice pay. The company had obtained my signature on a 3.5-year service bond as well. The company didn't pay leave payment on a pro-rata basis, stating that they haven't received my confirmation in writing, and therefore, I am not eligible for leave payment. As notice pay, they paid just 2 months of BASIC, NOT GROSS, Salary. The company has unilateral terms of the notice period clause in the employment letter. If I resign, then a 3-month notice period or 3 months basic salary in lieu of it, but if the company terminates my services, then a 2-month notice period or 2 months of BASIC Salary in lieu of it. I understand that these terms of employment are biased and perhaps invalid.
I felt that the company has done gross injustice to me and also not paid a fair full and final with compensation for breaching the 3.5 years' service bond. I sent many emails and tried to call the HR and other officials of the company, but they all blocked my number.
Finally, through the Government's public Grievance Redressal forum, I lodged my grievance for resolution.
Now the company has sent me a legal notice through their advocate, leveling allegations that my approach to the Hon'ble LG's Grievance Redressal portal has affected their reputation, and so I have to pay Rs. 50 lacs as compensation in 15 days for defamation; otherwise, they will file civil as well as criminal cases in the court.
Is registering a grievance with the Government's public Grievance Redressal portal, which is open to everyone, wrong? And can the company file cases for doing this? Please advise.
Thanks,
From India, Pune
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First of all, I would say that a probationer has no lien on employment. The employer has the right to terminate the employee without assigning any reason and without any notice before he is given confirmation. However, the termination letter should not be a stigmatic order. In your case, if the reason for termination is mentioned in the letter, you can certainly challenge it.
Secondly, the employer has paid you two months' notice pay. This implies that the termination is a discharge simpliciter. In the case of Anand Lenin Vethanayagam vs. The Registrar, Pondicherry University, the Madras High Court observed that if the appointment order provides that a probationer shall be dismissed from service without assigning any reasons, why is he given three months' (or two months' pay in your case) salary in lieu of notice?
Lodging a Complaint Before the Appropriate Authority
If an employee is dismissed from service 'illegally' or feels that the discharge is not legally maintainable, he can certainly approach the concerned authorities. However, if you have been working as a manager with managerial powers and responsibilities, such as the power to appoint an employee, transfer an employee, initiate disciplinary action, sanction leave, or evaluate performance, then you will not get the protection of the Labour Act (Industrial Disputes Act) or assistance from the labor departments. If you do not fall under the managerial category, you can approach the grievance redressal authority or the conciliation officer appointed under the Industrial Disputes Act. If you qualify as a workman, you should disregard the legal notice; the company cannot take action against you. The labor officer in charge of the Grievance Redressal forum will call both you and the employer for a conciliation and arrive at a settlement. In that meeting, you can express your concerns. During the conciliation process, issues like the practice of the company appointing an employee for six months and then terminating them will be discussed. You can also inform the officer about the one-sided bond for 3.5 years. Additionally, the notice period, which contradicts the mandatory service of 3.5 years, is two months from the employer's side, whereas it is three months from the employee's side.
I also feel that instead of relying solely on the system, it is beneficial to approach the Labor Officer personally and submit that the employer has sent a legal notice demanding a large sum because you lodged a complaint. If the officer is unbiased, you should receive favorable assistance. Please act immediately and do not wait for a reply from the grievance redressal forum.
From India, Kannur
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Secondly, the employer has paid you two months' notice pay. This implies that the termination is a discharge simpliciter. In the case of Anand Lenin Vethanayagam vs. The Registrar, Pondicherry University, the Madras High Court observed that if the appointment order provides that a probationer shall be dismissed from service without assigning any reasons, why is he given three months' (or two months' pay in your case) salary in lieu of notice?
Lodging a Complaint Before the Appropriate Authority
If an employee is dismissed from service 'illegally' or feels that the discharge is not legally maintainable, he can certainly approach the concerned authorities. However, if you have been working as a manager with managerial powers and responsibilities, such as the power to appoint an employee, transfer an employee, initiate disciplinary action, sanction leave, or evaluate performance, then you will not get the protection of the Labour Act (Industrial Disputes Act) or assistance from the labor departments. If you do not fall under the managerial category, you can approach the grievance redressal authority or the conciliation officer appointed under the Industrial Disputes Act. If you qualify as a workman, you should disregard the legal notice; the company cannot take action against you. The labor officer in charge of the Grievance Redressal forum will call both you and the employer for a conciliation and arrive at a settlement. In that meeting, you can express your concerns. During the conciliation process, issues like the practice of the company appointing an employee for six months and then terminating them will be discussed. You can also inform the officer about the one-sided bond for 3.5 years. Additionally, the notice period, which contradicts the mandatory service of 3.5 years, is two months from the employer's side, whereas it is three months from the employee's side.
I also feel that instead of relying solely on the system, it is beneficial to approach the Labor Officer personally and submit that the employer has sent a legal notice demanding a large sum because you lodged a complaint. If the officer is unbiased, you should receive favorable assistance. Please act immediately and do not wait for a reply from the grievance redressal forum.
From India, Kannur
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Madhu Sir,
Thank you for your insightful reply. But I would like to add a few views:
Legal Observations on Probation Termination
1) Our High Courts and Supreme Court have also observed that the services of probationers should not be terminated without a strong and reasonable cause. Probation doesn't mean at-will employment. No society is free when the liberty of the employee is made to bend upon the arbitrary will of another. This is possible only in a dictatorship, not in a democratic country. Employers should not use probation as a tool or strategy to remove employees. Probation is an opportunity to learn and become fit as an employee. Everyone has the right to life and, therefore, the right to employment.
Therefore, it's illegal to remove the services of an employee without a valid reason. Our courts have also observed that no employer should terminate an employee suddenly or abruptly without providing ample opportunities for improvement.
Clause in Employment Order
Hence, I feel the clause stipulated in an employment order that services of a probationer can be terminated without assigning any reason and the management's decision regarding this is final and binding upon the probationer is devoid of merit and against the observations of our top courts.
Personal Experience and Company Practices
In my case, I was working as a plant head but had no such authorities as you have mentioned. All such authorities are vested with the CEO of the company. I had completed 6 months and 2 days. The probation was of 6 months. There was no negative feedback from HR. The move against me was abruptly and arbitrarily taken as retaliatory action.
i) There were around 25-30 employees, old and new, who left the job because of a toxic and unhealthy work environment, reducing leave policy, unauthorized deductions, etc. The history of the company is notorious for high employee turnover. The Director insisted on me sharing the true reason, and reluctantly I shared. I also shared the abusive, disparaging, and shouting behavior of the CEO, who is the husband of the Director. Earlier, she was supporting me, but she grew a grudge after I shared the true picture in good faith and betterment.
ii) I requested to revise my salary as 6 months were over as per the offer letter.
iii) A new plant head was hired, and I was pressured to report to him. I politely refused as I felt it was breaching the terms of the employment or discussion based on which I had accepted the offer. The new plant head was junior to me in terms of work experience, education, and age. In 2 days, I was relieved, stating that I confronted the directives of the management and this behavior may be a precedent for the upcoming employees. Helplessly and under the predicament, I put my remarks (illegal, arbitrary, etc.) on the receiving of the relieving letter and signed the FnF with 2 months BASIC SALARY. I had no choice at that moment.
As per my understanding, the notice pay should be equivalent to the notice period (2 months full salary), not just 2 months BASIC Salary. As such, it should be 3 months as per the aforementioned discussion.
They refused to pay the payment for the accrued leave of 6 months and 2 days on a pro-rata basis. I'm not responsible for what happened. It is their arbitrary action.
ALC Report and Further Actions
The ALC has submitted the report, which was biased. He stated that the company terminated me WITHIN 6 months for misconduct. But the fact is I have worked for 6 months and 2 days. And there is no mention of misconduct in the relieving letter. I escalated further, and the DLC called me up and assured me of all the support and told me she would ensure the company complies with the laws. Even the DLC, along with a team of officers, visited the factory. Since the location of the place from my current location is very far, I couldn't attend and telephonically discussed. After 15 days, the DLC, perhaps in the presence of the company officials, asked me if I was ready to work with the company. After waiting a few months, having lost my job, I have already joined a new company. So I told everything and also thought I may be treated badly after rejoining. So I requested her to try her best to get my accrued leave payment, equivalent notice pay for the notice period, and compensation for breaching the 3.5 years service bond signed and employment loss released. Although the DLC assured me the best, finally they stated my claims are devoid of merit as per the provisions of labor law.
I had shared the legal notice with the DLC and the LC. The DLC questioned on what basis the company can file a case for lodging a Grievance. And suggested sending a reply through an advocate. I have sent a reply myself. I spoke with the DLC 2 days back, and she advised me to go to a tribunal. I think the company has managed the situation.
Final Thoughts and Legal Considerations
I was working so efficiently. The chairman liked me very much. The environment is bad for 1-2 top officials. The situation is sometimes created so that the common people, whose interest is to work and earn to run their households, face and suffer unnecessary hardships.
Assume that I am not falling under the workman category under the ID Act 1947. Can the company initiate legal proceedings for my approaching the Govt's Grievance Redressal forum to get justice since I feel whatever happened to me is definitely illegal, unethical, and arbitrary, and in the scrutiny of the law, they can't stand? There is also the Whistleblowers Protection Act 2014.
The companies are drafting clauses one-sided and pro-employer. Isn't this coming under the responsibility of the labor and employment department to regulate fair and ethical rules to avoid disputes and litigations?
Thanks,
From India, Pune
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Thank you for your insightful reply. But I would like to add a few views:
Legal Observations on Probation Termination
1) Our High Courts and Supreme Court have also observed that the services of probationers should not be terminated without a strong and reasonable cause. Probation doesn't mean at-will employment. No society is free when the liberty of the employee is made to bend upon the arbitrary will of another. This is possible only in a dictatorship, not in a democratic country. Employers should not use probation as a tool or strategy to remove employees. Probation is an opportunity to learn and become fit as an employee. Everyone has the right to life and, therefore, the right to employment.
Therefore, it's illegal to remove the services of an employee without a valid reason. Our courts have also observed that no employer should terminate an employee suddenly or abruptly without providing ample opportunities for improvement.
Clause in Employment Order
Hence, I feel the clause stipulated in an employment order that services of a probationer can be terminated without assigning any reason and the management's decision regarding this is final and binding upon the probationer is devoid of merit and against the observations of our top courts.
Personal Experience and Company Practices
In my case, I was working as a plant head but had no such authorities as you have mentioned. All such authorities are vested with the CEO of the company. I had completed 6 months and 2 days. The probation was of 6 months. There was no negative feedback from HR. The move against me was abruptly and arbitrarily taken as retaliatory action.
i) There were around 25-30 employees, old and new, who left the job because of a toxic and unhealthy work environment, reducing leave policy, unauthorized deductions, etc. The history of the company is notorious for high employee turnover. The Director insisted on me sharing the true reason, and reluctantly I shared. I also shared the abusive, disparaging, and shouting behavior of the CEO, who is the husband of the Director. Earlier, she was supporting me, but she grew a grudge after I shared the true picture in good faith and betterment.
ii) I requested to revise my salary as 6 months were over as per the offer letter.
iii) A new plant head was hired, and I was pressured to report to him. I politely refused as I felt it was breaching the terms of the employment or discussion based on which I had accepted the offer. The new plant head was junior to me in terms of work experience, education, and age. In 2 days, I was relieved, stating that I confronted the directives of the management and this behavior may be a precedent for the upcoming employees. Helplessly and under the predicament, I put my remarks (illegal, arbitrary, etc.) on the receiving of the relieving letter and signed the FnF with 2 months BASIC SALARY. I had no choice at that moment.
As per my understanding, the notice pay should be equivalent to the notice period (2 months full salary), not just 2 months BASIC Salary. As such, it should be 3 months as per the aforementioned discussion.
They refused to pay the payment for the accrued leave of 6 months and 2 days on a pro-rata basis. I'm not responsible for what happened. It is their arbitrary action.
ALC Report and Further Actions
The ALC has submitted the report, which was biased. He stated that the company terminated me WITHIN 6 months for misconduct. But the fact is I have worked for 6 months and 2 days. And there is no mention of misconduct in the relieving letter. I escalated further, and the DLC called me up and assured me of all the support and told me she would ensure the company complies with the laws. Even the DLC, along with a team of officers, visited the factory. Since the location of the place from my current location is very far, I couldn't attend and telephonically discussed. After 15 days, the DLC, perhaps in the presence of the company officials, asked me if I was ready to work with the company. After waiting a few months, having lost my job, I have already joined a new company. So I told everything and also thought I may be treated badly after rejoining. So I requested her to try her best to get my accrued leave payment, equivalent notice pay for the notice period, and compensation for breaching the 3.5 years service bond signed and employment loss released. Although the DLC assured me the best, finally they stated my claims are devoid of merit as per the provisions of labor law.
I had shared the legal notice with the DLC and the LC. The DLC questioned on what basis the company can file a case for lodging a Grievance. And suggested sending a reply through an advocate. I have sent a reply myself. I spoke with the DLC 2 days back, and she advised me to go to a tribunal. I think the company has managed the situation.
Final Thoughts and Legal Considerations
I was working so efficiently. The chairman liked me very much. The environment is bad for 1-2 top officials. The situation is sometimes created so that the common people, whose interest is to work and earn to run their households, face and suffer unnecessary hardships.
Assume that I am not falling under the workman category under the ID Act 1947. Can the company initiate legal proceedings for my approaching the Govt's Grievance Redressal forum to get justice since I feel whatever happened to me is definitely illegal, unethical, and arbitrary, and in the scrutiny of the law, they can't stand? There is also the Whistleblowers Protection Act 2014.
The companies are drafting clauses one-sided and pro-employer. Isn't this coming under the responsibility of the labor and employment department to regulate fair and ethical rules to avoid disputes and litigations?
Thanks,
From India, Pune
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Clarification on Company Type and Applicability of Whistleblowers Protection Act
First, please clarify whether the company you worked for is a government-owned company, like a PSU. The Whistleblowers Protection Act 2014 applies to public sector companies only and not to private organizations.
Relevance of Grievance Mechanism
Similarly, the grievance mechanism of the Lt. Governor (I assume you are in Delhi) is meant for complaints against the government mechanism and has very little relevance for your private grievance against your private sector employer.
Efforts with the Labour Commissioner
You have tried to get the help of the Labour Commissioner. They attempted to intervene, but since you are a manager, you are not protected under the Industrial Dispute Act. Furthermore, you have already joined another company, so reinstatement is not possible. All you could expect is a higher payout. However, you are paid in accordance with your terms of employment, and there is no likelihood of the Labour Commissioner deciding otherwise.
Terms of Employment and Notice Period
Your terms of employment include a so-called biased term, requiring a 3-month notice for your resignation but only 2 months for termination. This is not likely to make a difference. In both cases, they are asking for Basic Pay in lieu of actual work, so you have very little to complain about. If you didn't like the terms, you shouldn't have signed them. You are not a low-level worker who can claim you were pressured due to desperation for a job.
Company Culture and Disputes
You should have assessed the company culture and reputation before joining at that level. Disputes between directors regarding their approach to you are not something the government or courts will be concerned with. So, I think nothing will happen there either.
Defamation Complaint
As for the defamation complaint, I think it's unwise for the company to take that route. The complaint is to a government official and on a grievance portal. For it to be defamatory, it needs to be made to the public at large or a section of the public concerned or connected with the company. I assume you didn't make these allegations to employees, customers, etc., so defamation is unlikely to be ruled against you.
However, the company has the resources to fight a case against you, putting you at a disadvantage as this case is likely to go on for years, and you will have to pay your lawyers. If you have connections to the chairman, I suggest you reach out to him and have the lawyers handle the case and withdraw the complaints as a compromise, which will not yield results in any case.
From India, Mumbai
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First, please clarify whether the company you worked for is a government-owned company, like a PSU. The Whistleblowers Protection Act 2014 applies to public sector companies only and not to private organizations.
Relevance of Grievance Mechanism
Similarly, the grievance mechanism of the Lt. Governor (I assume you are in Delhi) is meant for complaints against the government mechanism and has very little relevance for your private grievance against your private sector employer.
Efforts with the Labour Commissioner
You have tried to get the help of the Labour Commissioner. They attempted to intervene, but since you are a manager, you are not protected under the Industrial Dispute Act. Furthermore, you have already joined another company, so reinstatement is not possible. All you could expect is a higher payout. However, you are paid in accordance with your terms of employment, and there is no likelihood of the Labour Commissioner deciding otherwise.
Terms of Employment and Notice Period
Your terms of employment include a so-called biased term, requiring a 3-month notice for your resignation but only 2 months for termination. This is not likely to make a difference. In both cases, they are asking for Basic Pay in lieu of actual work, so you have very little to complain about. If you didn't like the terms, you shouldn't have signed them. You are not a low-level worker who can claim you were pressured due to desperation for a job.
Company Culture and Disputes
You should have assessed the company culture and reputation before joining at that level. Disputes between directors regarding their approach to you are not something the government or courts will be concerned with. So, I think nothing will happen there either.
Defamation Complaint
As for the defamation complaint, I think it's unwise for the company to take that route. The complaint is to a government official and on a grievance portal. For it to be defamatory, it needs to be made to the public at large or a section of the public concerned or connected with the company. I assume you didn't make these allegations to employees, customers, etc., so defamation is unlikely to be ruled against you.
However, the company has the resources to fight a case against you, putting you at a disadvantage as this case is likely to go on for years, and you will have to pay your lawyers. If you have connections to the chairman, I suggest you reach out to him and have the lawyers handle the case and withdraw the complaints as a compromise, which will not yield results in any case.
From India, Mumbai
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Termination During Probation: Legal Perspectives
There are a number of verdicts which state that as long as the order of termination is not stigmatic, the employer's act of terminating during probation is valid. Moreover, a probationer will continue to be under probation until his service is confirmed by written communication.
Role and Authority of a Unit Head
A unit head is the head of the plant/undertaking with the authority to make decisions. The authorities mentioned are not exclusive, but they extend to other responsibilities as well.
Grievance Redressal and Legal Implications
It is true that based on your filing a complaint before any authority, the company should not initiate a claim for defamation. Doing so would defeat the very purpose of having a grievance redressal system. However, the system in India dictates that to be protected by labor law, you must be a workman. Otherwise, you can file a civil suit. Even then, you may find it challenging to establish that your termination was unlawful because your service remained under probation, despite the contract mentioning a 6-month period. Various judgments state that probation is not automatic unless specified in the employment contract.
From India, Kannur
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There are a number of verdicts which state that as long as the order of termination is not stigmatic, the employer's act of terminating during probation is valid. Moreover, a probationer will continue to be under probation until his service is confirmed by written communication.
Role and Authority of a Unit Head
A unit head is the head of the plant/undertaking with the authority to make decisions. The authorities mentioned are not exclusive, but they extend to other responsibilities as well.
Grievance Redressal and Legal Implications
It is true that based on your filing a complaint before any authority, the company should not initiate a claim for defamation. Doing so would defeat the very purpose of having a grievance redressal system. However, the system in India dictates that to be protected by labor law, you must be a workman. Otherwise, you can file a civil suit. Even then, you may find it challenging to establish that your termination was unlawful because your service remained under probation, despite the contract mentioning a 6-month period. Various judgments state that probation is not automatic unless specified in the employment contract.
From India, Kannur
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Judgment on Probation and Termination
Refer to the judgment of the Madurai bench of the Madras High Court; it clearly states that the employer shouldn't use probation as a tool and strategy to terminate an employee, and their liberty shouldn't be made to bend upon the arbitrary will of the company or its officials. Everyone has the right to life, which includes the right to employment. We are not in a dictatorship but in a democracy.
There are also verdicts from many high courts and the Supreme Court that it's illegal to terminate an employee without a valid and strong reason and without providing ample opportunities. It's bad in law and unsustainable to terminate an employee immediately. Arbitrariness has no place in our society.
Personal Experience and Retaliation
Yes, I had overlooked the advice of my friend and ex-colleague, who had also worked there for 1-2 months, not to join. I had efficiently worked and stayed for over 6 months. When someone is needy and has the confidence to accept the offer, ignoring the history of the company culture, hoping for positive prospects, I have done no wrong. I was insisted to share the actual feedback on why employees are leaving the jobs once they get their salaries. There is strong evidence with me that the move against me was taken in retaliation. Is this fair and ethical on the part of the company to have pressurized me to follow an unsuitable and unjustified order in order to cause humiliation and insult to my self-dignity and honor?
I have adequate material evidence to establish that the relieving of my services by the company was illegal and the proceedings against me were ultra vires.
Role of Government and Employment Laws
The PG forum is open to everyone. Otherwise, my grievance wouldn't have been accepted and entertained by the authorities in the first place. I haven't shared anything other than with the government authorities. The labor and employment department also has the responsibility as per the ID Act, 1947, to mediate disputes between employees and employers. I am an employee.
Employers have to adhere to the norms and guidelines of employment. They are not only to generate profit and wealth from using the resources of our society. There is a Model Standing Order Act. How many have it certified and are adhering to the protocol?
Compliance with Labor Laws
How many of them are obeying the basic laws of labor, which are undoubtedly applicable to the workman as per the Act? Are the working hours, leaves, wages, bonuses, etc., followed as per the law? The sad truth is that neither workman nor non-workman gets the benefits.
A few months back, a female CA employee died because of work pressure, and our labor ministry took strong action against the company. Was the CA employee falling under the criteria of a workman?
Legal and Ethical Considerations
I strongly believe it is illegal to terminate an employee, whether permanent or on probation, without a reasonable and strong cause. It's the law of the land. After all, the employees in the private sector joining in the middle and upper levels have vast experience and expertise. It's different in the government sector.
Why is there no action by the authorities when a company hires and fires so many employees one after another? Are they only licensed to do this? Do they have unlimited freedom to do this? Are the common citizens of this country slaves or bonded laborers and have no value? Employers are not gods.
According to the law, there should be a Grievance Redressal handling committee in every organization. How many companies have this mechanism in place? There is also a provision of a whistleblowers policy in the organization as per the Company Act. How many follow this?
There are significant gaps in our system, and our government has to control it for a better and wealthier society.
From India, Pune
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Refer to the judgment of the Madurai bench of the Madras High Court; it clearly states that the employer shouldn't use probation as a tool and strategy to terminate an employee, and their liberty shouldn't be made to bend upon the arbitrary will of the company or its officials. Everyone has the right to life, which includes the right to employment. We are not in a dictatorship but in a democracy.
There are also verdicts from many high courts and the Supreme Court that it's illegal to terminate an employee without a valid and strong reason and without providing ample opportunities. It's bad in law and unsustainable to terminate an employee immediately. Arbitrariness has no place in our society.
Personal Experience and Retaliation
Yes, I had overlooked the advice of my friend and ex-colleague, who had also worked there for 1-2 months, not to join. I had efficiently worked and stayed for over 6 months. When someone is needy and has the confidence to accept the offer, ignoring the history of the company culture, hoping for positive prospects, I have done no wrong. I was insisted to share the actual feedback on why employees are leaving the jobs once they get their salaries. There is strong evidence with me that the move against me was taken in retaliation. Is this fair and ethical on the part of the company to have pressurized me to follow an unsuitable and unjustified order in order to cause humiliation and insult to my self-dignity and honor?
I have adequate material evidence to establish that the relieving of my services by the company was illegal and the proceedings against me were ultra vires.
Role of Government and Employment Laws
The PG forum is open to everyone. Otherwise, my grievance wouldn't have been accepted and entertained by the authorities in the first place. I haven't shared anything other than with the government authorities. The labor and employment department also has the responsibility as per the ID Act, 1947, to mediate disputes between employees and employers. I am an employee.
Employers have to adhere to the norms and guidelines of employment. They are not only to generate profit and wealth from using the resources of our society. There is a Model Standing Order Act. How many have it certified and are adhering to the protocol?
Compliance with Labor Laws
How many of them are obeying the basic laws of labor, which are undoubtedly applicable to the workman as per the Act? Are the working hours, leaves, wages, bonuses, etc., followed as per the law? The sad truth is that neither workman nor non-workman gets the benefits.
A few months back, a female CA employee died because of work pressure, and our labor ministry took strong action against the company. Was the CA employee falling under the criteria of a workman?
Legal and Ethical Considerations
I strongly believe it is illegal to terminate an employee, whether permanent or on probation, without a reasonable and strong cause. It's the law of the land. After all, the employees in the private sector joining in the middle and upper levels have vast experience and expertise. It's different in the government sector.
Why is there no action by the authorities when a company hires and fires so many employees one after another? Are they only licensed to do this? Do they have unlimited freedom to do this? Are the common citizens of this country slaves or bonded laborers and have no value? Employers are not gods.
According to the law, there should be a Grievance Redressal handling committee in every organization. How many companies have this mechanism in place? There is also a provision of a whistleblowers policy in the organization as per the Company Act. How many follow this?
There are significant gaps in our system, and our government has to control it for a better and wealthier society.
From India, Pune
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Hi Mr. Saswata,
I appreciate your brilliant views on defamation. Nothing is wrong with approaching the Government's Grievance Redressal mechanism, and it cannot be considered defamation as long as it's not largely made public. Nowadays, employees freely write reviews of their experiences on platforms like Ambition Box and Glassdoor after leaving an organization. Can a company initiate a defamation case against an employee writing a negative review?
However, I do not agree with your views on notice pay. The notice period should be equal for both sides, and there should be equivalent notice pay for the notice period in lieu of serving it in employment terms. Taking undue advantage of an employment crisis and one's predicament, employers cannot arbitrarily draft favorable terms and conditions for themselves. Our courts will not accept such biased and one-sided terms. This is only possible in a dictatorship, not in a democracy. Employees should not bear all the burden of pains like arbitrary termination, incomplete FnF dues, etc. There are cases where the company is not paying and clearing FnF for ex-employees who have left after serving a 2-3 months' notice period. Some have been paid after my departure. Should we leave all this to God to take care of, or should our government and society take action? As you questioned, an employee who had traveled from a distant state did not agree to sign the 3.5-year service bond, so the company canceled his candidature, and he had to return.
Payment for accrued leave
Payment for accrued leave should also be paid. Referring to clause 79(3) of the Factories Act, 1948, it clearly states that accrued leave shall be paid after resignation/termination/death to the employee or their heir/nominee within 2 working days from their last working day.
Probation period and confirmation
Employers should not deprive employees of benefits under the pretext of still being in probation by intentionally prolonging the confirmation, even if the employee has satisfactorily worked for over 6 months with no negative feedback during that period. The clause stipulated in the appointment letter that "you shall be deemed to be in probation until you are given confirmation in writing" is often misused.
From India, Pune
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I appreciate your brilliant views on defamation. Nothing is wrong with approaching the Government's Grievance Redressal mechanism, and it cannot be considered defamation as long as it's not largely made public. Nowadays, employees freely write reviews of their experiences on platforms like Ambition Box and Glassdoor after leaving an organization. Can a company initiate a defamation case against an employee writing a negative review?
However, I do not agree with your views on notice pay. The notice period should be equal for both sides, and there should be equivalent notice pay for the notice period in lieu of serving it in employment terms. Taking undue advantage of an employment crisis and one's predicament, employers cannot arbitrarily draft favorable terms and conditions for themselves. Our courts will not accept such biased and one-sided terms. This is only possible in a dictatorship, not in a democracy. Employees should not bear all the burden of pains like arbitrary termination, incomplete FnF dues, etc. There are cases where the company is not paying and clearing FnF for ex-employees who have left after serving a 2-3 months' notice period. Some have been paid after my departure. Should we leave all this to God to take care of, or should our government and society take action? As you questioned, an employee who had traveled from a distant state did not agree to sign the 3.5-year service bond, so the company canceled his candidature, and he had to return.
Payment for accrued leave
Payment for accrued leave should also be paid. Referring to clause 79(3) of the Factories Act, 1948, it clearly states that accrued leave shall be paid after resignation/termination/death to the employee or their heir/nominee within 2 working days from their last working day.
Probation period and confirmation
Employers should not deprive employees of benefits under the pretext of still being in probation by intentionally prolonging the confirmation, even if the employee has satisfactorily worked for over 6 months with no negative feedback during that period. The clause stipulated in the appointment letter that "you shall be deemed to be in probation until you are given confirmation in writing" is often misused.
From India, Pune
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You have been asked to refer to the judgment of the Madurai bench of the Madras High Court, where it is clearly stated that the employer shouldn't use probation as a tool and strategy to terminate an employee. However, you have not provided any citation or the title of the case so that we can peruse it and suggest any possible way out. Nonetheless, you have legal knowledge, and I would suggest that you proceed with legal action against the employer. All the best.
From India, Kannur
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From India, Kannur
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You can come up with thousands of statements and excuses, but the facts do not change. The biggest issue is that taking the matter to court is expensive, and you basically get blacklisted as a potential employee because no one wants a candidate who is taking legal action against another employer.
Narrow Interpretation of Law
When you refer to law, you need to take a very specific narrow interpretation, or you will end up losing. You have specifically mentioned:
"Payment for accrued leave should also be paid. Refer to clause 79(3) of the Factories Act, 1948. It was clearly written 80 years ago that accrued leave shall be paid after the resignation, termination, or death to the employee or their heir/nominee, notwithstanding the conditions of eligibility, within 2 working days from their last working day."
Accrual of Leave
You forgot another related thing. Leave accrues to you on January 1 every year for the number of days worked in the previous year. It does not accrue to you every day or month. So, if you were relieved after working half of the calendar year, these are not accrued leave days at all.
From India, Mumbai
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Narrow Interpretation of Law
When you refer to law, you need to take a very specific narrow interpretation, or you will end up losing. You have specifically mentioned:
"Payment for accrued leave should also be paid. Refer to clause 79(3) of the Factories Act, 1948. It was clearly written 80 years ago that accrued leave shall be paid after the resignation, termination, or death to the employee or their heir/nominee, notwithstanding the conditions of eligibility, within 2 working days from their last working day."
Accrual of Leave
You forgot another related thing. Leave accrues to you on January 1 every year for the number of days worked in the previous year. It does not accrue to you every day or month. So, if you were relieved after working half of the calendar year, these are not accrued leave days at all.
From India, Mumbai
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Madhu Sir,
This is the case of R. Thiagarajan, CISF Sub Inspector vs. Union of India. He was terminated because he had approached the court. The High Court ruled that every man has the right to life, and the right to life includes the right to employment.
Mr. Saswata,
The culture of the company is also discussed in the market. If the employee has potential, he gets a job. There is something abnormally serious with the company if it has a trend of high employee turnover. There are some companies where a few top officials ruin the work environment even though the company itself is good. When 25-30 employees leave their jobs in six months, it indicates a significant problem. The situation and the reputation of the company become challenging in the market, making it difficult to attract candidates for hiring.
That's the reason there are standing orders from 1946 to guide a company rightfully and ethically. Ethics and values are the soul of a business.
Chapter VIII, Clause 79(3) of the Factories Act
Chapter VIII, clause 79(3) of the Factories Act states that notwithstanding the conditions specified for leave eligibility (e.g., one leave for every 20 days actually worked in the previous year and 240 days of working), payment for accrued leave shall be made within 2 working days after resignation/termination/death, even if the specified eligibility conditions are not fulfilled. Please refer to attached 79(3) of the said rule.
From India, Pune
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This is the case of R. Thiagarajan, CISF Sub Inspector vs. Union of India. He was terminated because he had approached the court. The High Court ruled that every man has the right to life, and the right to life includes the right to employment.
Mr. Saswata,
The culture of the company is also discussed in the market. If the employee has potential, he gets a job. There is something abnormally serious with the company if it has a trend of high employee turnover. There are some companies where a few top officials ruin the work environment even though the company itself is good. When 25-30 employees leave their jobs in six months, it indicates a significant problem. The situation and the reputation of the company become challenging in the market, making it difficult to attract candidates for hiring.
That's the reason there are standing orders from 1946 to guide a company rightfully and ethically. Ethics and values are the soul of a business.
Chapter VIII, Clause 79(3) of the Factories Act
Chapter VIII, clause 79(3) of the Factories Act states that notwithstanding the conditions specified for leave eligibility (e.g., one leave for every 20 days actually worked in the previous year and 240 days of working), payment for accrued leave shall be made within 2 working days after resignation/termination/death, even if the specified eligibility conditions are not fulfilled. Please refer to attached 79(3) of the said rule.
From India, Pune
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The employer is at fault for not paying for the full notice period of three months, instead paying for only two months. Both the employer and employee are liable for the notice period or payment in lieu of notice, as per agreed terms. It is difficult to assess without knowing the specific points or clauses prohibiting premature exit or termination of the signed bond.
Defamation Notice
The lawyer's notice of defamation is similar to a smoke bomb intended to create panic. Ignore the notice. The complaint against illegal termination cannot be considered defamation. You are eligible for leave provided you have completed the period of working beyond the probation period. Written confirmation is not required after completing a fixed term; if you don't receive notice of an extension of the probation period, it is termed as deemed confirmation.
If you want to know more or shed light on the matter, you can call.
From India, Mumbai
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Defamation Notice
The lawyer's notice of defamation is similar to a smoke bomb intended to create panic. Ignore the notice. The complaint against illegal termination cannot be considered defamation. You are eligible for leave provided you have completed the period of working beyond the probation period. Written confirmation is not required after completing a fixed term; if you don't receive notice of an extension of the probation period, it is termed as deemed confirmation.
If you want to know more or shed light on the matter, you can call.
From India, Mumbai
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Prabhat, please do kot share your number on an open forum. It can be used from fraud and spam. It’s better to send you number on private message
From India, Mumbai
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From India, Mumbai
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Mr. Madhu,
Clause 79(3) of the Factory Act, 1948
What about Chapter VIII, Clause 79(3) of the Factory Act, 1948? I already shared the attachment yesterday. It's clearly written that in case the services of a worker (employee) are discontinued for whatever reason, he (or his heir/nominee in case of death) is entitled to receive the payment of accrued leaves he earns on a pro-rata basis within two working days of his last working day.
It's disheartening to see that the lawmaker envisioned this 80 years ago, yet the same rule is ignored in the present time. There is talk of only one eligibility condition, but there also exists a rule for those who can't fulfill working 240 days and quit employment before that.
I don't know whether the same clause has been outdated or not. I believe it's still in force. If so, why is there so much gap and ignorance in our system regarding its implementation? Employers always follow the policy that what is mine will be mine, and what's yours will be shared.
Landmark Judgment: R. Thiagarajan vs. Union Of India
In the verdict of the Madras High Court in R. Thiagarajan vs. Union Of India, the issue also involved termination of employment following the failure to forward his application for the SI position. The judgment of the High Court is truly landmark when it held that every individual has the right to life, and this right includes the right to employment in a democracy, with no arbitrariness being sustainable in the law.
From India, Pune
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Clause 79(3) of the Factory Act, 1948
What about Chapter VIII, Clause 79(3) of the Factory Act, 1948? I already shared the attachment yesterday. It's clearly written that in case the services of a worker (employee) are discontinued for whatever reason, he (or his heir/nominee in case of death) is entitled to receive the payment of accrued leaves he earns on a pro-rata basis within two working days of his last working day.
It's disheartening to see that the lawmaker envisioned this 80 years ago, yet the same rule is ignored in the present time. There is talk of only one eligibility condition, but there also exists a rule for those who can't fulfill working 240 days and quit employment before that.
I don't know whether the same clause has been outdated or not. I believe it's still in force. If so, why is there so much gap and ignorance in our system regarding its implementation? Employers always follow the policy that what is mine will be mine, and what's yours will be shared.
Landmark Judgment: R. Thiagarajan vs. Union Of India
In the verdict of the Madras High Court in R. Thiagarajan vs. Union Of India, the issue also involved termination of employment following the failure to forward his application for the SI position. The judgment of the High Court is truly landmark when it held that every individual has the right to life, and this right includes the right to employment in a democracy, with no arbitrariness being sustainable in the law.
From India, Pune
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You can proceed legally. Please take it forward. Whatever I have shared is based on my knowledge, and since it is not acceptable, and at the same time, you have your interpretations of the law, you may move accordingly. You may win the case. But going forward, you will have to find a place to work on your own.
From India, Kannur
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From India, Kannur
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Defamation Allegation Context
As to the limited context of the allegation regarding defamation, the facts posted do not suggest any cause for initiating an action in civil or criminal wrongdoing. In the absence of publicity and the willful intention to cause injury, there could be no tortious wrongdoing or an offense amounting to defamation.
Legal Provisions and Exceptions
The action of the querist in addressing the public authority, even if not the correct procedure, falls within the exceptions as provided under Section 499 IPC and the corresponding provisions under Section 356 BNS.
Employer's Threat of Civil Action
In the instant case, it appears that the employer is threatening a civil action. If so, the same defenses, as the exceptions in criminal action, are available to the defendant. The querist may reply to the notice highlighting the aspects as above. The employer is unlikely to proceed any further.
Options for Defense
And even if a civil action is instituted, you have the option to appear as a party in person; the tone and tenor of your posting suggest that you are endowed with the necessary acumen. Nowadays, you can appear online before any court in our country.
From India, Kochi
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As to the limited context of the allegation regarding defamation, the facts posted do not suggest any cause for initiating an action in civil or criminal wrongdoing. In the absence of publicity and the willful intention to cause injury, there could be no tortious wrongdoing or an offense amounting to defamation.
Legal Provisions and Exceptions
The action of the querist in addressing the public authority, even if not the correct procedure, falls within the exceptions as provided under Section 499 IPC and the corresponding provisions under Section 356 BNS.
Employer's Threat of Civil Action
In the instant case, it appears that the employer is threatening a civil action. If so, the same defenses, as the exceptions in criminal action, are available to the defendant. The querist may reply to the notice highlighting the aspects as above. The employer is unlikely to proceed any further.
Options for Defense
And even if a civil action is instituted, you have the option to appear as a party in person; the tone and tenor of your posting suggest that you are endowed with the necessary acumen. Nowadays, you can appear online before any court in our country.
From India, Kochi
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Dear,
I am sorry for the treatment the company gave to you. I would say that once the probation period is complete and no letter has been issued by the higher management to extend your probation, it is deemed that the probation period is completed successfully, and the employee concerned is to be treated as a permanent employee. The issuance of a confirmation letter is just an administrative matter and may get delayed for various reasons. Most importantly, consider what your appointment letter says. If it states that the closure of probation will only occur after the issuance of the confirmation letter, then their contention will hold good. Your unilateral termination is bad in law.
Regarding the payment of 2 months' basic pay as notice pay, the action is as per the terms of the offer of appointment. As for the legal notice on account of defamation for the reasons stated by you, the legal notice will have no legal consequence upon you. An employee/any citizen has the right to approach the PG portal if his/her grievance is not being addressed by the company or management despite repeated requests. Approaching the PG portal will never amount to defamation. If the management was so concerned about its reputation, it should have addressed your grievance at the right time and in the true spirit rather than terminating your services.
Your termination without the issuance of a charge memo and without giving ample opportunity to defend yourself in view of the principle of natural justice, their action itself warrants a suitable challenge before the appropriate Labour Court/Court of Law.
Good luck.
AK Jain
Retired Manager (HR)
Coal India Ltd.
From India, New+Delhi
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I am sorry for the treatment the company gave to you. I would say that once the probation period is complete and no letter has been issued by the higher management to extend your probation, it is deemed that the probation period is completed successfully, and the employee concerned is to be treated as a permanent employee. The issuance of a confirmation letter is just an administrative matter and may get delayed for various reasons. Most importantly, consider what your appointment letter says. If it states that the closure of probation will only occur after the issuance of the confirmation letter, then their contention will hold good. Your unilateral termination is bad in law.
Regarding the payment of 2 months' basic pay as notice pay, the action is as per the terms of the offer of appointment. As for the legal notice on account of defamation for the reasons stated by you, the legal notice will have no legal consequence upon you. An employee/any citizen has the right to approach the PG portal if his/her grievance is not being addressed by the company or management despite repeated requests. Approaching the PG portal will never amount to defamation. If the management was so concerned about its reputation, it should have addressed your grievance at the right time and in the true spirit rather than terminating your services.
Your termination without the issuance of a charge memo and without giving ample opportunity to defend yourself in view of the principle of natural justice, their action itself warrants a suitable challenge before the appropriate Labour Court/Court of Law.
Good luck.
AK Jain
Retired Manager (HR)
Coal India Ltd.
From India, New+Delhi
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Public Notice - Delhi.pdf
Employee Grievance Redressal.ppt