Re. Seniors,
Thanks a lot for valuable guidance on this post. Currently I am facing a situation wherein comments on this post are providing me guidance.
Mr. T. Sivasankaran sir, specifically your comment "Termination on discretion is not legally correct" even for other employees (i.e. not a workmen)....
can you kindly provide some citations for me to study and understand this legal stand more clearly?
From India, Mumbai
Thanks a lot for valuable guidance on this post. Currently I am facing a situation wherein comments on this post are providing me guidance.
Mr. T. Sivasankaran sir, specifically your comment "Termination on discretion is not legally correct" even for other employees (i.e. not a workmen)....
can you kindly provide some citations for me to study and understand this legal stand more clearly?
From India, Mumbai
There are quite a few misconception on this issue.
Before you ask any question on termination, you have to determine whether the employee concerned is a workman or not as defined under the Industrial Disputes Act. Secondly whether the person concerned is a factory worker or an employee in a shop or commercial establishment as defined under the Shops & Establishment Act.
* For non workmen, employment letter signed by both the parties is a sound contract and the contract is complete when both the parties have signed. Its applicability starts thereon. If the employee does not join on due date, it is violation of the contract. Normally, there is no notice period during probation and hence employee not joining amounts to termination of the contract without notice. BUT IN CASE OF SENIOR EMPLOYEES. SOME OF THE ORGANIZATION HAVE NOTICE PERIOD RIGHT FROM THE BEGINNING. In such cases, your not joining the organization technically amounts to violation of the contract and if the company goes to court, the person will be liable to pay for the notice period. Unfortunately, the company's do not bother and an impression has been created that if the employee does not join, no action can be taken. It is not correct. I KNOW OF CASES WHERE AN EMPLOYER DUE TO CHANGE OF CIRCUMSTANCES, INFORMED THE CANDIDATE NOT TO JOIN AND PAID FOR THE NOTICE PERIOD.
* Normally, it is understood that 'DISCRETION" means his desire/whim/fancy; No, it is not correct. There are quite a few judgments which say"Discretion means judicious discretion" i.e. it should be reasonable and explainable. Discretion means a decision which can be arrived by a reasonable person. It comes to help only where two decisions can be reasonable held.
* There are certain laws which apply to all persons whether worker, non worker, workmen or non workmen.
From India, Delhi
7Before you ask any question on termination, you have to determine whether the employee concerned is a workman or not as defined under the Industrial Disputes Act. Secondly whether the person concerned is a factory worker or an employee in a shop or commercial establishment as defined under the Shops & Establishment Act.
* For non workmen, employment letter signed by both the parties is a sound contract and the contract is complete when both the parties have signed. Its applicability starts thereon. If the employee does not join on due date, it is violation of the contract. Normally, there is no notice period during probation and hence employee not joining amounts to termination of the contract without notice. BUT IN CASE OF SENIOR EMPLOYEES. SOME OF THE ORGANIZATION HAVE NOTICE PERIOD RIGHT FROM THE BEGINNING. In such cases, your not joining the organization technically amounts to violation of the contract and if the company goes to court, the person will be liable to pay for the notice period. Unfortunately, the company's do not bother and an impression has been created that if the employee does not join, no action can be taken. It is not correct. I KNOW OF CASES WHERE AN EMPLOYER DUE TO CHANGE OF CIRCUMSTANCES, INFORMED THE CANDIDATE NOT TO JOIN AND PAID FOR THE NOTICE PERIOD.
* Normally, it is understood that 'DISCRETION" means his desire/whim/fancy; No, it is not correct. There are quite a few judgments which say"Discretion means judicious discretion" i.e. it should be reasonable and explainable. Discretion means a decision which can be arrived by a reasonable person. It comes to help only where two decisions can be reasonable held.
* There are certain laws which apply to all persons whether worker, non worker, workmen or non workmen.
From India, Delhi
Dear Sir,
In my organisation neither appointment letter is given nor there is any certified standing order, Total employee are more than 150, still the organisation has not got the certified standing order. Now the management want to terminate an employee who has not completed 240 days so far. But as there is no appointment letter and not Certified Standing order, can the employee be terminated or not? If we terminate him with no reason then how much compensation would be given to that person.
From India, New Delhi
In my organisation neither appointment letter is given nor there is any certified standing order, Total employee are more than 150, still the organisation has not got the certified standing order. Now the management want to terminate an employee who has not completed 240 days so far. But as there is no appointment letter and not Certified Standing order, can the employee be terminated or not? If we terminate him with no reason then how much compensation would be given to that person.
From India, New Delhi
You have not described as to what your office does.
If it is industrial establishment, Standing Orders Act will apply and in that case not having Standing Orders is a violation. The matter can be referred to Labour Officer. Standing Order will cover only workmen category of employees.
If it not industrial establishment, i.e. it is a commercial establishment, then Shops & Establishment Act will apply; this falls under state jurisdiction and each state has its own Shops & Establishment Act.
Delhi and Haryana Shops & Establishment Act provides that after three months service, one month's notice is required. So the employer is violating this act.
Shops & Establishment Act applies to all employees.
From India, Delhi
If it is industrial establishment, Standing Orders Act will apply and in that case not having Standing Orders is a violation. The matter can be referred to Labour Officer. Standing Order will cover only workmen category of employees.
If it not industrial establishment, i.e. it is a commercial establishment, then Shops & Establishment Act will apply; this falls under state jurisdiction and each state has its own Shops & Establishment Act.
Delhi and Haryana Shops & Establishment Act provides that after three months service, one month's notice is required. So the employer is violating this act.
Shops & Establishment Act applies to all employees.
From India, Delhi
Sir
Ours is a manufacturing unit which covers under haryana factory rules. Please advice as there is no standing order nor any appointment. The worker is a staff and his salary is above ten thousand. Buy the employee has no right to sanction leave or do any appraisal type of function
From India, New Delhi
Ours is a manufacturing unit which covers under haryana factory rules. Please advice as there is no standing order nor any appointment. The worker is a staff and his salary is above ten thousand. Buy the employee has no right to sanction leave or do any appraisal type of function
From India, New Delhi
i have recently joined a company last month. at the time of joining they had asked me to sign about 150 pages of joining docs which includes nda, policies, appointment letter etc. i had asked them to provide me a copy of the same on which they told me that they will give me after signatures of the concerned person. immediate after my joining i came to know that this company is fraud and they keep maximum female employees so that they can take undue advantage of them by many ways. as an hr person i got to know many things where they were harrassing employees in different ways. unfortunately in hr it self there were 3 exits within 20 days. i was also harrassed and touchered by senior management. on my refusal on their unwanted demands they made my life misrable by sending numerous harrassing emails.but when i shown my wilingness to resign they asked me to give them couple of days. and finally their old trick they are asking me to travel to vizag which is inspected as cyclonical location and without the comeback date. i have heard from other employees that they send person like this and dont pay the salary, or the reimbursements etc and more over asked them to do the dirty things. i never wanted to go hence i wrote a mail that since i am staying alone with my two schoolgoing kids. cant go. but if you still want you can terminate my services as per the contract. now they have sent me legal notice saying that either you give us two months salary or you have to go to the location. you can;t deny. i am completely in mess. please sugesst. i was getting a salary of rs. 1.25 per month
From India, Delhi
From India, Delhi
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Legal Clarification on Non-Performer Termination, Project Based Appointment Letter, Setting UP .pdf
Appointment letter-format.d oc