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In the modern world, the majority of people are inclined towards 9 to 5 jobs with weekly offs. Life goes smooth until one day your employer comes and announces that he is firing from job. Such illegal termination of employee in India comes as a thunderbolt to the concerned person. Job security goes in trash, financial insecurity flashes in front of you and the employer firing from job becomes a thorn in the flesh. Illegal termination of employees during COVID-19 was the new normal. But….Can a company terminate an employee without notice in India? If that is the case, what are the rights of a terminated employee in India? Know the answers to all such aspects related to firing from job or wrongful termination cases in India.
Firing From Job or Retrenchment
If it is about workmen, it is retrenchment[1] in technical or legal terms. And if it is some managerial or executive or administrative position, it is termination. Firing from job is the termination of employment because of reasons like poor performance, unethical behaviour, etc. Even in that case, certain rules need to be followed by the employer. In the absence of regulations, it is unlawful or illegal termination of employment.
Is Layoff the same as Firing from Job?
The legislators have defined lay-off[2] as the inability of the employer to provide employment to the concerned workman due to lack of work continuation like unavailability of raw material, machinery, etc. It may be temporary or permanent during continuation of the business and such workmen are entitled to compensation as well. Contrary to that, firing from job is a permanent end of employment and there is no inability to continue the business in that case. It may be rightful or unlawful termination of employee in India.
When is Firing from Job an Illegal Termination?
An employer exists in the business world to make money and employees are also supposed to play a certain role. When the employee does not perform well and there is genuine reason for firing from job, he may be duly conveyed the same and asked to serve the notice period etc. In such a case, getting fired may be explicable and thus lawful. However, when the due process is not followed before firing from job or afterwards, the same act becomes unlawful. For employment purposes, central as well as state/UT rules apply. Generally, negation of termination rules for employees in India are as follows:
- Employee not served with a valid termination letter
- Employee forced to send/ sign a voluntary resignation letter
- Unlawful charges of misconduct due to personal conflicts
- Acts like denial of entry in office premises, deactivation of work mail, etc.
- Wrongful accusations
- Not following due process in case of unexplained conduct of employee
- Not communicated non-performance or under-performance
- Given unrealistic tasks and then terminated
Can a Company Terminate an Employee without Notice in India?
Usually, the appointment or offer letters include this clause that in case an employee resigns, he or she will have to serve a notice period of 1 or 2 or 3 months, as the case may be. In case the notice period is not served, he/ she will have to face a penalty of those months’ salary payable to the employer. The same applies in vice versa as well. Hence, termination of employees without letting them serve the notice period, or without compensating them with the salary equivalent to those notice period months. These terms are present in the local labour laws as well. In case of contrary, the employer firing from job may face legal consequences initiated by such employer.
Termination Rules for Employees in India
Illegal termination of employee India regulations include the terms in offer letter taken as a contract. The local as well as central labour laws also apply on such employment. Termination law in India has to be duly followed by the employer and needs obedience from employees as well if things are transparent and reasonable.
What are the Rights of a Terminated Employee in India?
- Due notice should be given;
- In the absence of notice period, the due compensatory wages should be paid for such period;
- Termination letter should specify the date of termination;
- Payment of gratuity (for employees who served for 5 years or more);
- Leave encashment for leaves not availed by the employee;
- Payment of bonus, if pending.
Compensation for Termination of Employment in India
Where there is a right granted through a law or contractual relationship, there exists a remedy as well. While firing from job, the employer should let the employee serve the notice period. Otherwise, such employees should be compensated with a salary of at least 15 days or that equivalent to notice period, whichever suits the facts of the particular matter. Compensation for termination of employment is inevitable.
How do I file a case against termination?
It is understandable that wrongful termination of employment is never supported by the laws in India. The employee should hire an employment lawyer after explaining facts of the matter. In case the employee falls under the definition of workman[3], doors of labour commissioner courts can be knocked through. Apart from that, remedies under the civil as well as criminal laws are open depending upon the facts of the matter.
Civil Remedies Against Illegal Termination of Employment India
- Suit for Declaration - In case of illegal termination of employment India, suit for declaration may be instituted in the civil court of jurisdiction under the Industrial Employment Standing Orders Act, 1946 and Industrial Disputes Act, 1947.
- Suit for Recovery - The employee illegally retrenched/ terminated from employment may file a suit for recovery of money[4] to recover the due salary, bonus, incentives or notice amount, as the case may be.
- Suit for Damages - Since wrongful termination of an employee is not a casual topic, the person so wronged suffers a lot. Hence, he may file a suit for losses incurred such as financial losses, mental harassment, loss of reputation, loss of opportunities to fetch a new job.
Criminal Law Remedies Against Firing From Job
- IPC 294 - If misbehaves and uses obscene language
- IPC 406 - Criminal breach of trust if salary not paid or personal belongings held
- IPC 420 - Gross cheating, i.e. made employee work in the absence of any offer letter, wages, etc.
- IPC 504 - Intentionally insulting or commenting provocatively
- IPC 506 - Criminal intimidation
- IPC 509 - Comments or acts having sexual color against the female employee along with sexual harassment at workplace
Conclusion
It is being repeated that firing from job should never be taken casually. If you are someone wronged, do not sit back, but initiate a legal action against the employer. If things are completely genuine from your side, your employer may have to face serious outcomes in terms of monetary as well as industry reputation losses. Even a supreme court judgement on illegal termination of employment[5] holds that “The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages”. Hence, value your rights and choose the right path.
[1] Section 2(oo) of Industrial Disputes Act, 1947.
[2] Section 2 (kkk) of the Industrial Disputes Act, 1947.
[3] Section 2(s) of the Industrial Disputes Act, 1947.
[4] Summary Suit under Order 37 of Code of Civil Procedure, 1908.
[5] Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. (2013) 10 SCC 324.
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