Hi Rahul,
It's recommended to consult with a labour lawyer to get advice tailored to your specific situation. However, I can offer some general information that might help you understand your situation better.
Review Employment Contract:
Carefully review your employment contract, specifically focusing on the clauses mentioned in the termination email (clauses 5 and 6). If these clauses are clearly outlined in your contract, they may have legal standing.
Industrial Disputes Act, 1947:
The Industrial Disputes Act provides certain protections to employees in India. While the Act does allow for termination, it also outlines certain conditions and procedures that employers must follow. It's crucial to determine if the termination complies with the provisions of this Act.
Natural Justice Principles:
Violation of natural justice principles could be a ground for challenging the termination. These principles include the right to be heard and the right to a fair and unbiased decision. If you believe that these principles were not followed, it might be worth discussing this with a legal professional.
Notice Period and Compensation:
If your appointment letter specifies a notice period, and the company is terminating you with immediate effect by paying one month's salary in lieu of notice, it's essential to check if this aligns with the terms outlined in your employment contract.
Legal Consultation:
Given the complexities of employment law, it is advisable to consult with a labor lawyer who can assess your specific situation. They can provide guidance on the legality of the termination and potential remedies available to you.
Documentation:
Ensure that you have copies of all relevant documents, including your appointment letter, termination letter, and any communication related to the termination. These documents will be important if you decide to pursue legal action.
Company Policies:
Check if there are any company policies that might impact the termination process. Sometimes, internal policies can influence the validity of a termination.
Labour Court:
If you believe that your termination is unjust and unlawful, you may consider approaching the labor court for redressal. However, this step should be taken after consulting with a legal professional.
Each employment situation is unique, and the advice of a qualified labor lawyer is crucial for understanding your specific circumstances and exploring available remedies.
Thanks,.
From India, Bangalore
149It's recommended to consult with a labour lawyer to get advice tailored to your specific situation. However, I can offer some general information that might help you understand your situation better.
Review Employment Contract:
Carefully review your employment contract, specifically focusing on the clauses mentioned in the termination email (clauses 5 and 6). If these clauses are clearly outlined in your contract, they may have legal standing.
Industrial Disputes Act, 1947:
The Industrial Disputes Act provides certain protections to employees in India. While the Act does allow for termination, it also outlines certain conditions and procedures that employers must follow. It's crucial to determine if the termination complies with the provisions of this Act.
Natural Justice Principles:
Violation of natural justice principles could be a ground for challenging the termination. These principles include the right to be heard and the right to a fair and unbiased decision. If you believe that these principles were not followed, it might be worth discussing this with a legal professional.
Notice Period and Compensation:
If your appointment letter specifies a notice period, and the company is terminating you with immediate effect by paying one month's salary in lieu of notice, it's essential to check if this aligns with the terms outlined in your employment contract.
Legal Consultation:
Given the complexities of employment law, it is advisable to consult with a labor lawyer who can assess your specific situation. They can provide guidance on the legality of the termination and potential remedies available to you.
Documentation:
Ensure that you have copies of all relevant documents, including your appointment letter, termination letter, and any communication related to the termination. These documents will be important if you decide to pursue legal action.
Company Policies:
Check if there are any company policies that might impact the termination process. Sometimes, internal policies can influence the validity of a termination.
Labour Court:
If you believe that your termination is unjust and unlawful, you may consider approaching the labor court for redressal. However, this step should be taken after consulting with a legal professional.
Each employment situation is unique, and the advice of a qualified labor lawyer is crucial for understanding your specific circumstances and exploring available remedies.
Thanks,.
From India, Bangalore
Hi Rahul,
It's recommended to consult with a labour lawyer to get advice tailored to your specific situation. However, I can offer some general information that might help you understand your situation better.
Review Employment Contract:
Carefully review your employment contract, specifically focusing on the clauses mentioned in the termination email (clauses 5 and 6). If these clauses are clearly outlined in your contract, they may have legal standing.
Industrial Disputes Act, 1947:
The Industrial Disputes Act provides certain protections to employees in India. While the Act does allow for termination, it also outlines certain conditions and procedures that employers must follow. It's crucial to determine if the termination complies with the provisions of this Act.
Natural Justice Principles:
Violation of natural justice principles could be a ground for challenging the termination. These principles include the right to be heard and the right to a fair and unbiased decision. If you believe that these principles were not followed, it might be worth discussing this with a legal professional.
Notice Period and Compensation:
If your appointment letter specifies a notice period, and the company is terminating you with immediate effect by paying one month's salary in lieu of notice, it's essential to check if this aligns with the terms outlined in your employment contract.
Legal Consultation:
Given the complexities of employment law, it is advisable to consult with a labor lawyer who can assess your specific situation. They can provide guidance on the legality of the termination and potential remedies available to you.
Documentation:
Ensure that you have copies of all relevant documents, including your appointment letter, termination letter, and any communication related to the termination. These documents will be important if you decide to pursue legal action.
Company Policies:
Check if there are any company policies that might impact the termination process. Sometimes, internal policies can influence the validity of a termination.
Labour Court:
If you believe that your termination is unjust and unlawful, you may consider approaching the labor court for redressal. However, this step should be taken after consulting with a legal professional.
Each employment situation is unique, and the advice of a qualified labor lawyer is crucial for understanding your specific circumstances and exploring available remedies.
From India, Bangalore
It's recommended to consult with a labour lawyer to get advice tailored to your specific situation. However, I can offer some general information that might help you understand your situation better.
Review Employment Contract:
Carefully review your employment contract, specifically focusing on the clauses mentioned in the termination email (clauses 5 and 6). If these clauses are clearly outlined in your contract, they may have legal standing.
Industrial Disputes Act, 1947:
The Industrial Disputes Act provides certain protections to employees in India. While the Act does allow for termination, it also outlines certain conditions and procedures that employers must follow. It's crucial to determine if the termination complies with the provisions of this Act.
Natural Justice Principles:
Violation of natural justice principles could be a ground for challenging the termination. These principles include the right to be heard and the right to a fair and unbiased decision. If you believe that these principles were not followed, it might be worth discussing this with a legal professional.
Notice Period and Compensation:
If your appointment letter specifies a notice period, and the company is terminating you with immediate effect by paying one month's salary in lieu of notice, it's essential to check if this aligns with the terms outlined in your employment contract.
Legal Consultation:
Given the complexities of employment law, it is advisable to consult with a labor lawyer who can assess your specific situation. They can provide guidance on the legality of the termination and potential remedies available to you.
Documentation:
Ensure that you have copies of all relevant documents, including your appointment letter, termination letter, and any communication related to the termination. These documents will be important if you decide to pursue legal action.
Company Policies:
Check if there are any company policies that might impact the termination process. Sometimes, internal policies can influence the validity of a termination.
Labour Court:
If you believe that your termination is unjust and unlawful, you may consider approaching the labor court for redressal. However, this step should be taken after consulting with a legal professional.
Each employment situation is unique, and the advice of a qualified labor lawyer is crucial for understanding your specific circumstances and exploring available remedies.
From India, Bangalore
@Mailrsr, please read in detail the replies that I have made here. The pros and corns were explained to him in detail and no one of us is in favour of a legal action against the employer. But if an employee wants that justice should not be denied, we should support him.
From India, Kannur
From India, Kannur
Hi Madhu Sir,
What if my employer sends any lawyer in disguise of Employer of some other company in conciliation process. Many companies in IT sector employee lawyer to look after legal issue.
If this happen, how to tackle this issues?
2nd part of my question is whether Indian Law allow foreigner working in company as legal officer who has overtaken my company to take part in conciliatory process?
Thanks.
From India, Patna
What if my employer sends any lawyer in disguise of Employer of some other company in conciliation process. Many companies in IT sector employee lawyer to look after legal issue.
If this happen, how to tackle this issues?
2nd part of my question is whether Indian Law allow foreigner working in company as legal officer who has overtaken my company to take part in conciliatory process?
Thanks.
From India, Patna
You can challenge if any outsider is appointed to defend a case before the labour officer. If the person represented is not known to you, you can ask for his identity to be disclosed before the officer. If he is an advocate, he cannot conceal his identity.
From India, Kannur
From India, Kannur
All Respected Members,
My company keep on referring to clause 5 & 6 of my Employment Contract. Kindly read these clauses and kindly share your views on
A. Do you think clause 5 and 6 enforceable and valid clause as per Indian Contract Act or 'unconscionable' the stand which i have taken.
B. And how do I go about proving that this clauses are unreasonable, unjust and unfair hence unconscionable clauses.
Kindly provide your valuable insights, I will be grateful to you.
Clause 5. Notice Period.
The term of this Agreement is “at-will”. Either party may terminate for any reason or no reason, with or without cause. Employee must provide no less than 3 months prior written notice of resignation (so that arrangements can be made to replace the employee without affecting the existing project or a scheduled assignment or client relationship). In the event of your resignation from service, it would be open to the management to accept the same forthwith and relieve you from the service earlier than the notice period. During the notice period you will be required to complete the jobs assigned to you to the satisfaction of the management and to handover the charge to your immediate supervisor in all respect.
In addition to the above in the event of your disassociation from the services of the company within one year from your date of joining, owing to resignation or termination, all payments that have been made to you (viz. relocation expenses reimbursement, notice shortfall of previous organization, and/or any other payments made to you as a special consideration over and above your cost to the Company) will have to be refunded by you to the company before you exit.
In case you disassociate from the company without giving three months’ notice then you shall not be entitled to claim any amount due for the services rendered and settlement of dues will be at the discretion of the Management. The Management reserves the right to deduct, as liquidate damages, an amount equal to three months’ salary from any amount that may be due to you and also reserves the right to recover Induction & training costs invested on you as per the costing standards of the company.
Abandoning work without written consent or serving notice period invites LEGAL ACTION.
The salary for the notice period will be disbursed only after submitting the documentary evidence of the tax savings investments and other evidences as declared by you in the Self Declaration Form submitted by you, at the time of joining the organization. In the event of non-submission of the same, the salary for the notice period will be adjusted for the taxes to be paid in absence of investments not made by you. The full and final settlement of your dues will be effected in the payroll cycle following the completion of all exit formalities.
Clause 6. Termination.
The company may at its discretion, terminate your services immediately, by paying one month’s salary in lieu of the notice period (for confirmed employees). Notwithstanding anything to the contrary contained herein, the Company shall be entitled to forthwith terminate your appointment without any notice or payment of any kind whatsoever in lieu of notice or otherwise in case of:
a. Any act of dishonesty, disobedience, insubordination, irregularity in attendance or other misconduct or neglect of duty, or incompetence in the discharge of duty on your part of the breach of any of the terms, conditions and stipulations contained herein.
b. You being adjudged an insolvent or applying to be adjudged an insolvent or making a compensation or arrangement with your creditors or being found guilty by a competent court of any offence involving moral act.
c. Absence for a continuous period of eight working days, including absence when leave though applied for but not granted, and when over stayed for a period of 8 days would be deemed to be abandonment of employment by you and your services with the company shall automatically come to an end without any notice or intimation, unless decided by the company to regularize it.
d. Breach of any terms of this appointment letter or of the terms of the confidentiality & Non-Disclosure, Non-Solicitation, Non-Compete & Limitation of Liability Agreement signed by you with the company, or of the policies & procedures of the company detailed in the HR manual/handbook.
e. Consistent non-performance by you or your team, as per the verdict of the company.
f. The reconstruction or amalgamation of the Company whether by winding up of the Company or otherwise.
g. The company reserves the right to accept or reject any explanations provided by you and further reserves the right to terminate your services with immediate effect. The company’s decision to discontinue your services shall remain final and binding on you.
Thanks.
From India, Patna
My company keep on referring to clause 5 & 6 of my Employment Contract. Kindly read these clauses and kindly share your views on
A. Do you think clause 5 and 6 enforceable and valid clause as per Indian Contract Act or 'unconscionable' the stand which i have taken.
B. And how do I go about proving that this clauses are unreasonable, unjust and unfair hence unconscionable clauses.
Kindly provide your valuable insights, I will be grateful to you.
Clause 5. Notice Period.
The term of this Agreement is “at-will”. Either party may terminate for any reason or no reason, with or without cause. Employee must provide no less than 3 months prior written notice of resignation (so that arrangements can be made to replace the employee without affecting the existing project or a scheduled assignment or client relationship). In the event of your resignation from service, it would be open to the management to accept the same forthwith and relieve you from the service earlier than the notice period. During the notice period you will be required to complete the jobs assigned to you to the satisfaction of the management and to handover the charge to your immediate supervisor in all respect.
In addition to the above in the event of your disassociation from the services of the company within one year from your date of joining, owing to resignation or termination, all payments that have been made to you (viz. relocation expenses reimbursement, notice shortfall of previous organization, and/or any other payments made to you as a special consideration over and above your cost to the Company) will have to be refunded by you to the company before you exit.
In case you disassociate from the company without giving three months’ notice then you shall not be entitled to claim any amount due for the services rendered and settlement of dues will be at the discretion of the Management. The Management reserves the right to deduct, as liquidate damages, an amount equal to three months’ salary from any amount that may be due to you and also reserves the right to recover Induction & training costs invested on you as per the costing standards of the company.
Abandoning work without written consent or serving notice period invites LEGAL ACTION.
The salary for the notice period will be disbursed only after submitting the documentary evidence of the tax savings investments and other evidences as declared by you in the Self Declaration Form submitted by you, at the time of joining the organization. In the event of non-submission of the same, the salary for the notice period will be adjusted for the taxes to be paid in absence of investments not made by you. The full and final settlement of your dues will be effected in the payroll cycle following the completion of all exit formalities.
Clause 6. Termination.
The company may at its discretion, terminate your services immediately, by paying one month’s salary in lieu of the notice period (for confirmed employees). Notwithstanding anything to the contrary contained herein, the Company shall be entitled to forthwith terminate your appointment without any notice or payment of any kind whatsoever in lieu of notice or otherwise in case of:
a. Any act of dishonesty, disobedience, insubordination, irregularity in attendance or other misconduct or neglect of duty, or incompetence in the discharge of duty on your part of the breach of any of the terms, conditions and stipulations contained herein.
b. You being adjudged an insolvent or applying to be adjudged an insolvent or making a compensation or arrangement with your creditors or being found guilty by a competent court of any offence involving moral act.
c. Absence for a continuous period of eight working days, including absence when leave though applied for but not granted, and when over stayed for a period of 8 days would be deemed to be abandonment of employment by you and your services with the company shall automatically come to an end without any notice or intimation, unless decided by the company to regularize it.
d. Breach of any terms of this appointment letter or of the terms of the confidentiality & Non-Disclosure, Non-Solicitation, Non-Compete & Limitation of Liability Agreement signed by you with the company, or of the policies & procedures of the company detailed in the HR manual/handbook.
e. Consistent non-performance by you or your team, as per the verdict of the company.
f. The reconstruction or amalgamation of the Company whether by winding up of the Company or otherwise.
g. The company reserves the right to accept or reject any explanations provided by you and further reserves the right to terminate your services with immediate effect. The company’s decision to discontinue your services shall remain final and binding on you.
Thanks.
From India, Patna
Clause 5 and 6 are partially acceptable. But when the notice to be given by the employee to resign is three months, the company should also give three months notice to terminate an employee. As against this the notice required to terminate a contract of employment is one month. Even the right of employer to terminate an employee who has done a misconduct is not enforceable because in no circumstance an employee can be terminated without offering him an opportunity to be heard, very simply " without following the principles of natural justice".
In the case of an employee who has no reportee, ie, a worker coming under the scope of ID Act, the clause of notice period for the employee is just a fancy clause because in the absence of a certified service condition ( standing order) there is no requirement for any notice for an employee to resign and find some other occupation.
From India, Kannur
In the case of an employee who has no reportee, ie, a worker coming under the scope of ID Act, the clause of notice period for the employee is just a fancy clause because in the absence of a certified service condition ( standing order) there is no requirement for any notice for an employee to resign and find some other occupation.
From India, Kannur
Hi Madhu Sir,
Thanks for your valuable insights as always.
I humbly wish to admit few more flaws in clause 5 & 6
1. At-Will employment is not recognized in India yet.
2. It's akin to Infamous Henry Viii clauses.
3. Where emploees is required to give 3 months notice while Company can terminate any employees immediately?
Hi Madhu Sir & Other Seniors,
I have 1-2 questions to ask. Please allow me to do so.
1. Although my designation is Lead - Talent Acquisition but no one report to me, I don't sanction anyone's leave, not distribute work, don't take any punitive actions.
My typical day starts at 11:30 AM with daily status call attending by me and my few more teammates along with Management Team, after this around 1 PM my Talent acquisition Manager assign work via mail. If it's a new requirement from client, manager also share with us JD which he would have got it from client. I read the requirement given in JD properly, highlight some keyword and make boolean search to be used in Naukri portal. I also read about technology involved on Google. I open Naukri portal then put boolean keyword and some other details then click on search, profile got displayed on screen. The person who are 80% match with JD, We call that person to check if he is interested, if he is then I ask few qns from Google, if I find him suitable (Technically and communication) then we take all details from him along his CV, This cycle goes on for every requirement. We also have to tag all candidates CV to JobDiva - HRIS. Around 9 PM we send all the CVs sourced for multiple requirements along with snapshot of all candidate's details. If managers like the profile he would ask to format the CV in company standard format. Then they send formatted CVs to client. If client also like the profile, he gives interview time. we need to coordinate the interviews.etc.
So, my question is whether I am a workman under 2s of ID act or not?
If yes what my described work correspond to what as given in 2s, whether it's manual, clerical, skilled or Technical?
From India, Patna
Thanks for your valuable insights as always.
I humbly wish to admit few more flaws in clause 5 & 6
1. At-Will employment is not recognized in India yet.
2. It's akin to Infamous Henry Viii clauses.
3. Where emploees is required to give 3 months notice while Company can terminate any employees immediately?
Hi Madhu Sir & Other Seniors,
I have 1-2 questions to ask. Please allow me to do so.
1. Although my designation is Lead - Talent Acquisition but no one report to me, I don't sanction anyone's leave, not distribute work, don't take any punitive actions.
My typical day starts at 11:30 AM with daily status call attending by me and my few more teammates along with Management Team, after this around 1 PM my Talent acquisition Manager assign work via mail. If it's a new requirement from client, manager also share with us JD which he would have got it from client. I read the requirement given in JD properly, highlight some keyword and make boolean search to be used in Naukri portal. I also read about technology involved on Google. I open Naukri portal then put boolean keyword and some other details then click on search, profile got displayed on screen. The person who are 80% match with JD, We call that person to check if he is interested, if he is then I ask few qns from Google, if I find him suitable (Technically and communication) then we take all details from him along his CV, This cycle goes on for every requirement. We also have to tag all candidates CV to JobDiva - HRIS. Around 9 PM we send all the CVs sourced for multiple requirements along with snapshot of all candidate's details. If managers like the profile he would ask to format the CV in company standard format. Then they send formatted CVs to client. If client also like the profile, he gives interview time. we need to coordinate the interviews.etc.
So, my question is whether I am a workman under 2s of ID act or not?
If yes what my described work correspond to what as given in 2s, whether it's manual, clerical, skilled or Technical?
From India, Patna
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Termination-emp loyment_563.pdf
Termination letter.doc