Sir,
Disciplinary proceedings were initiated against a permanent workman of a management by another management. The workman was under the impression that the proceedings were initiated by his direct employer and no chance of any doubt about the identity of the second management. Based on an Ex-parte Domestic Enquiry Report conducted against the workman as per Standing Orders applicable to workman, the workman was dismissed from the service of the first management company by that second management.
During the course of the final procedure, the workman came to understand that the authority who done all those things were not by his employer management. There was NO communication from the employer management to the workman about the delegation of power to the second management to initiate the Disciplinary procedure.
While enquiring by the accused workmen to his immediate superior about the identity and locus standi of the authority who initiated the proceedings , the immediate superior replied that the authority is authorised to do so and the locus stand will be proved before the court of law.
Let me know the procedure initiated by one Employer to dismiss an employee of another Employer as per authorization from that Employer is valid or Null & Void as per the prevailing rules in India?
Jagdish.K.
Kochi
From India, Kochi
4Disciplinary proceedings were initiated against a permanent workman of a management by another management. The workman was under the impression that the proceedings were initiated by his direct employer and no chance of any doubt about the identity of the second management. Based on an Ex-parte Domestic Enquiry Report conducted against the workman as per Standing Orders applicable to workman, the workman was dismissed from the service of the first management company by that second management.
During the course of the final procedure, the workman came to understand that the authority who done all those things were not by his employer management. There was NO communication from the employer management to the workman about the delegation of power to the second management to initiate the Disciplinary procedure.
While enquiring by the accused workmen to his immediate superior about the identity and locus standi of the authority who initiated the proceedings , the immediate superior replied that the authority is authorised to do so and the locus stand will be proved before the court of law.
Let me know the procedure initiated by one Employer to dismiss an employee of another Employer as per authorization from that Employer is valid or Null & Void as per the prevailing rules in India?
Jagdish.K.
Kochi
From India, Kochi
Dear Jagdish,
What is the meaning of "Second Management"? Was there clause in the appointment letter about this dual management reporting? Is the employee a contract employee? Did the employee commit misconduct of any kind? First and second management, why any management will remove anyone from the job?
As of now, the employee can approach the labour officer of the area where his company is. Possibly he may not need to go to labour court. If there was no communication to the employee then how "second management" is dismissing the employee?
Please clarify.
Dinesh Divekar
From India, Bangalore
What is the meaning of "Second Management"? Was there clause in the appointment letter about this dual management reporting? Is the employee a contract employee? Did the employee commit misconduct of any kind? First and second management, why any management will remove anyone from the job?
As of now, the employee can approach the labour officer of the area where his company is. Possibly he may not need to go to labour court. If there was no communication to the employee then how "second management" is dismissing the employee?
Please clarify.
Dinesh Divekar
From India, Bangalore
Dear Jagdish
Disciplinary jurisdiction is one of the key tests whereby the employer-employee relationship is tested at the altar of law which means that the disciplinary control as an authority accrues to an employer only when there is employer-employee relationship between the person against whom the disciplinary action is taken and the person who takes such disciplinary action.This is also because of the settled position in law that he who appoints, can only terminate.Therefore when the delinquent employee is not the employee of the second management, it ( the second management) cannot under any circumstances take disciplinary action against the said delinquent employee. Disciplinary jurisdiction and employer-employee relationship are coextensive and cannot be independent of each other and thus cannot be assigned, transferred and delegated to a different employer.If the case cited by you falls under the case of tripartite relationship of principal employer-contractor and the contract labour, then the principal employer cannot take disciplinary action against the contract labour for any misconduct committed by him and it shall be taken only by the contractor as immediate employer and the immediate employer cannot delegate this authority to the principal employer. if such delegation is reduced to any clause in the contract for service between the principal employer and the contractor, it is likely that the principal employer runs the risk of is stepping into the shoes of the employer and treating teh delinquent employee as his employee.
B.Saikumar
From India, Mumbai
Disciplinary jurisdiction is one of the key tests whereby the employer-employee relationship is tested at the altar of law which means that the disciplinary control as an authority accrues to an employer only when there is employer-employee relationship between the person against whom the disciplinary action is taken and the person who takes such disciplinary action.This is also because of the settled position in law that he who appoints, can only terminate.Therefore when the delinquent employee is not the employee of the second management, it ( the second management) cannot under any circumstances take disciplinary action against the said delinquent employee. Disciplinary jurisdiction and employer-employee relationship are coextensive and cannot be independent of each other and thus cannot be assigned, transferred and delegated to a different employer.If the case cited by you falls under the case of tripartite relationship of principal employer-contractor and the contract labour, then the principal employer cannot take disciplinary action against the contract labour for any misconduct committed by him and it shall be taken only by the contractor as immediate employer and the immediate employer cannot delegate this authority to the principal employer. if such delegation is reduced to any clause in the contract for service between the principal employer and the contractor, it is likely that the principal employer runs the risk of is stepping into the shoes of the employer and treating teh delinquent employee as his employee.
B.Saikumar
From India, Mumbai
Sir,
The master servant relationship lies only with first management. The second management is an interloper (nowhere mentioned in the Appointment Orders) who has no relationship of master-servant with the accused workman. The argument of the second management is that they have been authorised by the first management to undertake the disciplinary proceedings including the termination.. My doubts: - (i) is the second management has any valid jurisdiction as per the authorisation from the principal employer (first management) to dismiss the accused employee of the first management? (ii) the Notice given by the second management to the workman in the name of the first management about the disciplinary proceedings are valid or not? (iii) validity of the Ex-parte enquiry proceedings where no representation from the first management and workman was under real medical leave certainly know to the management?
From India, Kochi
The master servant relationship lies only with first management. The second management is an interloper (nowhere mentioned in the Appointment Orders) who has no relationship of master-servant with the accused workman. The argument of the second management is that they have been authorised by the first management to undertake the disciplinary proceedings including the termination.. My doubts: - (i) is the second management has any valid jurisdiction as per the authorisation from the principal employer (first management) to dismiss the accused employee of the first management? (ii) the Notice given by the second management to the workman in the name of the first management about the disciplinary proceedings are valid or not? (iii) validity of the Ex-parte enquiry proceedings where no representation from the first management and workman was under real medical leave certainly know to the management?
From India, Kochi
I think it is difficult to give an answer to the questions you are raising for we do not know the details, circumstances and the reason why the "second management" started the proceedings, or what the proceeding is about and what the original misconduct is. Any answer you get from this group, in absence of that information will be potentially misleading.
I would suggest that you take up the matter with the appropriate labour officer / commissioner.
If you do not get a satisfactory answer from there, it may be a good idea to go to a lawyer who will be able to decide based on the full facts and review of the chargesheet, details of the disciplinary action and termination letter.
From India, Mumbai
I would suggest that you take up the matter with the appropriate labour officer / commissioner.
If you do not get a satisfactory answer from there, it may be a good idea to go to a lawyer who will be able to decide based on the full facts and review of the chargesheet, details of the disciplinary action and termination letter.
From India, Mumbai
Charge sheet issuing authority only can hold enquiry against deliquent employee. Enquiry officer also appoint by the authorised signatory as per law.
There is no question to fix and conduct any enquiry by other management who is not the employer of the employee.
therefore question raised by shri Jagdish ji needs more clarity in their querry.
From India
There is no question to fix and conduct any enquiry by other management who is not the employer of the employee.
therefore question raised by shri Jagdish ji needs more clarity in their querry.
From India
Dear All,
In my point of view is that it is not the proper way of dismissal procedure, In every organisation having lots of labors in that labors having different mentality of labors, Every labors are thinking like that how to act as a good employee and how to get the appreciation from the superiors. In this way somebody will gave the wrong information's.
In our HR manner what we have to take the decision is that first we have to study that problem and enquirer to other labors.After that we can get the conclusion of this case.
After that we will decide the dismissal formalities.
From India, Jamnagar
In my point of view is that it is not the proper way of dismissal procedure, In every organisation having lots of labors in that labors having different mentality of labors, Every labors are thinking like that how to act as a good employee and how to get the appreciation from the superiors. In this way somebody will gave the wrong information's.
In our HR manner what we have to take the decision is that first we have to study that problem and enquirer to other labors.After that we can get the conclusion of this case.
After that we will decide the dismissal formalities.
From India, Jamnagar
Apropos to Dinesh n Saikumar, I ask u Jagdeesh what u mean by first management n second management? Is the so-called second management a 'contractee' n the first management a ' contractor' as suggested by Dinesh? If so, Saikumar's presumption is correct. So my point is that there are unscupulous employers as well as srupulous employers practicing unscrupulous means suich as multi-level marketing, direct marketing without any intermedieries. Therefore, pl state exactly what's happened.
From India, Salem
From India, Salem
Dear Mr. Jagdish,
Please note that the disciplinary actions must be initiated against any employee in the following necessary and sufficient conditions:
1. There must be a direct Employee & Employer relation ship.
2. He must be done some misconduct in the organisation.
3. The misconduct must be proved during the disciplinary enquiry.
4. He must be given ample opportunity to plead and justify his position and justification in his favour.
If the above conditions are complied then and then only the employee can be dismissed.
In the above case understand that the earlier employer has given -ve impression in this case.
But the misconduct and the other information can be find out during the employee background check up which must be communicated and free consent has to be obtained from employee and should be one of the clause of appointment. Further on this report you can terminate his appointment on account of -ve facts during the back ground check up only.
RK
From India, Calcutta
Please note that the disciplinary actions must be initiated against any employee in the following necessary and sufficient conditions:
1. There must be a direct Employee & Employer relation ship.
2. He must be done some misconduct in the organisation.
3. The misconduct must be proved during the disciplinary enquiry.
4. He must be given ample opportunity to plead and justify his position and justification in his favour.
If the above conditions are complied then and then only the employee can be dismissed.
In the above case understand that the earlier employer has given -ve impression in this case.
But the misconduct and the other information can be find out during the employee background check up which must be communicated and free consent has to be obtained from employee and should be one of the clause of appointment. Further on this report you can terminate his appointment on account of -ve facts during the back ground check up only.
RK
From India, Calcutta
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