Bharat Prajapati
Asked December 13, 2016

Remedy for termination from service

  • 3 Answers
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can a employee be terminated from service without any misconduct by mentioning the administrative reason after seven years of confirmed service. Is there any remedy for employee, please tell me.

Answers 3

The remedy would greatly depend upon whether the employment in question was with a government or private organization. There are several remedies available in both cases, depending on the facts of each case. In case of government employment, such an employee can file a writ, whereas, in the case of private employment, if such employment is covered under the various labour laws, then such an employee can seek redressal thereunder. If it is not, then the employment will be governed by the contract conditions and in such a case an action under contract law can be filed. 

Agree Comment 1 Agree almost 4 years ago

Whether you arr govt.servant then you can't terminate. Depending of your service you can file case befor tribunal or writ petition before high court. it depends on your post. If you mention on which post u are terminated then exact remedy may be given.

Agree Comment 0 Agrees almost 4 years ago

An employer can terminate an employee on grounds of breach when the employee is required to act in a certain manner by the employer or by the nature of the job, and fails to do so, for instance if he fails to adhere to the terms of their employment contract, and/or directions of management. Another reason could be “inefficiency” and lack of performance. However, before the employer terminates the employment, he must provide enough proof to support its allegation of inefficiency.

Courts in India have a tendency of leaning in favour of employees, and where they feel the employer has removed an employee as a punitive measure, they set-aside the termination as unreasonable.[1]

If you have enough evidence to show that your work was up to the mark, in accordance with your terms of employment and within the contract, then you can approach the court and seek remedies accordingly.

Under the Industrial Disputes Act, 1947:

Recently the Madras High Court restrained a leading IT company from terminating the employment of a software analyst.[2] You can use a similar strategy as the person in this case.

He proved that he fell in the category of a “workman” under the Industrial Disputes Act, 1947 (ID Act). The ID Act prescribes the mechanism to be followed by employers for retrenchment (termination) of 'workmen' and the compensation payable upon such termination.

A 'workman', as per the statute, is any person employed in an industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. The definition however excludes an employee employed in the managerial or administrative capacity; or in a supervisory capacity drawing wages exceeding INR 10,000 per month.

The ID Act defines 'retrenchment' as termination of employment by the employer for any reason other than as a punishment inflicted by way of disciplinary action. Retrenchment does not include: (i) voluntary retirement of the workman; (ii) retirement of the workman upon superannuation; (iii) termination as a result of the non-renewal of the contract of employment on its expiry; or (iv) termination on the ground of continued ill-health.

The ID Act provides that a workman who has been in continuous service for at least one year can be retrenched only if the workman has been given at least one month's notice in writing indicating the reasons for retrenchment, or payment of wages in lieu thereof. In addition, the workman is entitled to receiving retrenchment compensation (severance) equivalent to 15 days' average pay for every completed year of continuous service or any part thereof in excess of six months. Employers are also required to notify the labour authorities about the retrenchment, in the prescribed manner and within the prescribed timeline. In addition to these provisions, the employment termination provisions under the state-specific statutes applicable to shops and establishments, standing orders, the employment contract and HR policies also need to be complied with. In case of a conflict, the provision that is more favourable to the employee would need to be adhered to.

The ID Act requires an employer to follow the “last-in-first-out” sequence while terminating employment. Accordingly, the employer is to terminate the workman who was the last person to be employed in that category, unless there is an agreement between the employer and the workman to the contrary or the employer can provide adequate reasons for terminating any other workman.

 

Under the Contract Act:

An employee of a private company is managed by the letter of appointment issued by the company and the case thus comes under the ambit of the Indian Contract Act.

The legal recourse starts by sending a legal notice to the company for the illegal termination and to recover any dues as per the terms of your employment with the company. In case of no reply to the legal notice you can file a civil suit for recovery of legitimate dues like unpaid salary, salary in lieu of notice period not allowed to serve, PF, gratuity and so on.

However, please note that the court cannot grant reinstatement as private employment is covered under the contract act which means the maximum available remedy is only to recover the monetary losses one suffered due to the illegal termination.

 

[1] Avineshwar Sawhney v. J. K. Industries, 2008 (152) DLT 712; A. N. Shukul v. Phillips India and Ors, Delhi High Court decided on September 7, 2009.

[2] http://timesofindia.indiatimes.com/city/chennai/Madras-high-court-stays-termination-of-TCS-employee/articleshow/45870194.cms

Agree Comment 0 Agrees over 3 years ago

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