Retrenchment

Dear Client,
A termination may be considered illegal and unjustified if it breaches the terms of the contract or appointment letter by either party to the said contract. Regardless of the reasons, on cessation of employment either by resignation or termination, an employee is entitled to an experience certificate, relieving letter, and F & F settlement dues from the employer within 30 days of the last working day (LWD), and denial of which amounts to unfair labour practices. Termination or dismissal other than a disciplinary action for proven misconduct amounts to illegal termination/ retrenchment and is defined as an industrial dispute under Section 2A of the Industrial Dispute Act, 1947 which also violated the mandatory provision of Sec.25F and 25N of the I D Act that prescribed certain conditions to comply with by the employer before termination/retrenchment of a workman/employee from the employment. Even as per Clause 13(1) of the model Standing Order under Industrial Employment(Standing Orders) Act, 1946, for terminating the employment of a permanent workman, notice in writing shall be given either by the employer or the workman one month's notice in the case of monthly rated workmen and two weeks' notice in the case of other workmen; one month's or two week's pay, as the case may be, may be paid in lieu of notice. In that scenario, the terminated employee/workman serving a legal notice to the employer can raise an industrial dispute directly before the Industrial Tribunal/Labor Court concerned for adjudication under Section 2A of the I D Act seeking reinstatement with backwages, provided he/she is not holding the position of Manager/Supervisor but a workman as defined u/s.2(s) of the Industrial Dispute Act. You can simultaneously file an application under Section 33C(2) of the ID Act before the Labour Court concerned, claiming your dues(F & F settlement dues including severence pay) from the Company along with interest. Otherwise, in case he/she is holding the position of Manager/Administrative Officer in the Company, he/she has to file a civil suit before the Civil Court seeking appropriate relief in the matter. In the case of Santosh Gupta Vs State Bank of Patiala AIR 1980 SC 1219, the Supreme Court ruled that the expression retrenchment must include every termination of the services of a workman by an act of the employer.. Since you were terminated from your job without holding a domestic inquiry into the allegation of unauthorised absence from work and without allowing you to defend the allegation, following the principle of natural justice, the action of the management may be held illegal and unfair labour practice, once you challenge the termination order by filing an application under Section 2A of the Industrial Dispute Act directly before the Industrial Tribunal or Labour Court concerned. . If you are an employee of the IT Company then be informed that to restrict IT Companies from exploiting their employees by playing double standards, the Division Bench of the Karnataka High Court in the case of Commissioner of Income Tax v. Texas Instruments India Pvt Ltd (2021) 435 ITR unambiguously held that the IT sector employees considered to be "workmen" under Section 2(s) of the Industrial Dispute Act, 1947. If required, consult an Advocate specialized in service matters for tailored advice and steps to navigate the issue effectively.