FNF Related

Dear Client,
Until and unless a person is convicted by a court of law for a criminal offense involving moral turpitude, he or she cannot be held guilty and should not be punished for an offense which neither proved nor convicted yet by the Court. However, for the unauthorised absence from work for the intervening period which is considered a misconduct, an employer can initiate disciplinary action against the employee post inquiry into the show cause/charge sheet following the service rules and principle of natural justice. But, an unauthorised absence from work does not attract a capital punishment, like termination/dismissal from service which is held disproportionate to the nature and gravity of misconduct in plethora of order/judgements passed by the Tribunals/High Courts. Further, be informed that a forced resignation which literally means the company is asking an employee to sign an involuntary termination letter, which is typically a termination when an employer ends an employee's job rather than the employee quitting his/her job voluntarily. It may also be considered to be a firing or wrongful termination. So, the action of the management appears to be highly arbitrary and illegal, amounting to victimization and unfair labour practices. Any 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. Any Termination of a workman is covered under the Industrial Disputes Act, and it falls under ‘Retrenchment’. 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. In that scenario, serving a legal notice to the Employer/company, the terminated employee can raise an industrial dispute before the concerned Labour Commissioner for redressal of the complaint failing which he can approach directly the Industrial Tribunal/Labor Court concerned for adjudication seeking reinstatement with back wages and other service-linked benefits provided he is not holding the position of Manager/Supervisor but a workman as defined u/s.2(s) of the Industrial Dispute Act. However, in case you are holding the position of Manager/Administrative Officer in the Company, you have to file a civil suit before the Civil Court seeking appropriate relief in the matter. 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. Further, as regards company’s claim for refund of LTIP which can be denied on the same ground of involuntary termination from service because in terms of contract of employment, an employee is liable to refund the amount of LTIP, if he tenders his resignation voluntarily in breach of terms of employment. Hence, it is recommended to consult with an Advocate specialising in industrial disputes and service matters for tailored advise and drafting of a strong legal notice before approaching the concerned authority/Industrial Tribunal seeking appropriate relief in the matter.