Retrenchment and termination

presentation on laws relating to retrenchment, private companies

1. TERMINATION & TERMINATION &
RETRENCHMENT OF RETRENCHMENT OF
EMPLOYMENTEMPLOYMENT
By Savitha Kesav JagadeesanBy Savitha Kesav Jagadeesan
Senior Partner Senior Partner
Kochhar & CoKochhar & Co
Nov 19, 2018 1

2. KEY TAKE AWAYSKEY TAKE AWAYS
Legal Issues in Termination & Retrenchment of
Employment in India
Due Legal Termination procedures in India
Legal protections for employees in India
Experience from some of the recent cases
Nov 19, 2018 2

3. LEGAL ISSUES LEGAL ISSUES
IN TERMINATION & IN TERMINATION &
RETRENCHMENT RETRENCHMENT
OF EMPLOYMENT IN OF EMPLOYMENT IN
INDIAINDIA

4. Laws related to Laws related to
termination/retrenchmenttermination/retrenchment
The main statutes which regulate termination of
employment are:
Industrial Disputes Act (IDA), 1947
Industrial Employment (Standing Orders) Act
States legislation – Shops and establishment Acts
and Rules
Case Laws/Judgments (interpretation)
Nov 19, 2018 4

5. Workman under ID ActWorkman under ID Act
Nov 19, 2018 5

6. TERMINATIONTERMINATION
IESA- excludes managerial/supervisory employees (100 workers or IESA- excludes managerial/supervisory employees (100 workers or
more)/<statutory amount of more)/<statutory amount of
IDA- Excludes managerial/supervisory employeesIDA- Excludes managerial/supervisory employees
Contracts of employment- termination clauseContracts of employment- termination clause
Mutual agreementMutual agreement
Notice periodNotice period
ResignationResignation
RetirementRetirement
Expiry of fixed term contractExpiry of fixed term contract
DismissalDismissal
termination due to misconducttermination due to misconduct
dischargedischarge
retrenchmentretrenchment
Nov 19, 2018 6

7. Types of TerminationTypes of Termination
Dismissal due to Misconduct Dismissal due to Misconduct
Termination -DischargeTermination -Discharge
RetrenchmentRetrenchment
27-Sept18 7

8. Misconduct requires due processMisconduct requires due process
Nov 19, 2018 8

9. DischargeDischarge
Nov 19, 2018 9

10. DISCHARGEDISCHARGE
Nov 19, 2018 10

11. RetrenchmentRetrenchment
Nov 19, 2018 11
Every termination of service is not Every termination of service is not
retrenchment, but every retrenchment is a retrenchment, but every retrenchment is a
termination of service of a workmen by the termination of service of a workmen by the
employeremployer
Retrenchment Defined (Sec 2(oo) IDA – Retrenchment Defined (Sec 2(oo) IDA –
termination by the employer of employment of a termination by the employer of employment of a
worker for any reason, other than disciplinary worker for any reason, other than disciplinary
grounds, with certain exceptionsgrounds, with certain exceptions

12. Retrenchement – termination of Retrenchement – termination of
serviceservice
Nov 19, 2018 12

13. RetrenchmentRetrenchment
Nov 19, 2018 13

14. Case law perspectiveCase law perspective
Eranaloor Service Cooperative (Kerala HC Single Eranaloor Service Cooperative (Kerala HC Single
Bench) Bench) – – if appointment without authority, void ab if appointment without authority, void ab
initio and termination thereafter is not initio and termination thereafter is not RetrenchmentRetrenchment
Mithilesh Kumar Singh v State of Bihar (Patna HC Mithilesh Kumar Singh v State of Bihar (Patna HC
Single Bench)- Single Bench)- any termination even if appointment not any termination even if appointment not
valid, will be treated as valid, will be treated as RetrenchmentRetrenchment
Mithelesh view more often followed- Madurai decision, where since Mithelesh view more often followed- Madurai decision, where since
the employee was in continuous service of over 2 years- considered the employee was in continuous service of over 2 years- considered
employee, even though appointment not valid, and his termination employee, even though appointment not valid, and his termination
considered retrenchmentconsidered retrenchment
Nov 19, 2018 14

15. perspectiveperspective
WHICH SHOULD BE THE WHICH SHOULD BE THE
VIEWVIEW??
Nov 19, 2018 15
This Photo by Unknown Author is licensed under CC BY-NC-ND

16. RESPONSERESPONSE
All terminations are not retrenchmentAll terminations are not retrenchment
Though judicial view largely states that every Though judicial view largely states that every
termination of service not falling within the termination of service not falling within the
exceptions of section 2(oo) would amount to exceptions of section 2(oo) would amount to
retrenchment.retrenchment.
Because of interpretation of the term “Because of interpretation of the term “for any for any
reason whatsoever”- not susceptible to limitations/admits reason whatsoever”- not susceptible to limitations/admits
no exceptionno exception
Nov 19, 2018 16

17. RETRENCHMENT RETRENCHMENT
=SURPLUS=SURPLUS
Ordinary parlance- Ordinary parlance- discharge of surplusdischarge of surplus
In Pipraich Sugar Mills case (1957) In Pipraich Sugar Mills case (1957) SC observed that SC observed that
retrenchment means business continues therefore closure of retrenchment means business continues therefore closure of
undertaking cannot be equated to retrenchmentundertaking cannot be equated to retrenchment
5 member bench in Barsi Light Railway- (1957) – 5 member bench in Barsi Light Railway- (1957) – 2 appeals 2 appeals
one relating to compensation claim on transfer of U/t and one relating to compensation claim on transfer of U/t and
other on a closure of a mill. This looked at whether other on a closure of a mill. This looked at whether
termination of service of all workmen in an industry when the termination of service of all workmen in an industry when the
industry ceases to exist.industry ceases to exist.
Discharge of surplus due to reasons such as economy, rationalisation Discharge of surplus due to reasons such as economy, rationalisation
of industry etc.of industry etc.
Nov 19, 2018 17

18. Present scenarioPresent scenario
Revision of previous section to section 25 FF Revision of previous section to section 25 FF
and section 25FFF- notice/payment of and section 25FFF- notice/payment of
wages/compensation- as if retrenchedwages/compensation- as if retrenched
Retrenchment definition not amendedRetrenchment definition not amended
However despite the amending act, still However despite the amending act, still
interpretation followed (interpretation followed (Anakppala Cooperative- 5 Anakppala Cooperative- 5
judge bench reaffirmed Barsi Light)judge bench reaffirmed Barsi Light)
Varied viewsVaried views
Nov 19, 2018 18

19. Different judicial views- fact Different judicial views- fact
situations situations
Views varied as per factsViews varied as per facts
Decisions were not limited to surplusageDecisions were not limited to surplusage
Retrenchment would be a termination of serviceRetrenchment would be a termination of service
Discharge Discharge simplicitor simplicitor does not constitute does not constitute
retrenchmentretrenchment
State Bank of India V Sundaramoney(r)State Bank of India V Sundaramoney(r)
Conflicted barsiConflicted barsi
Wide interpretation of any reason whatsoeverWide interpretation of any reason whatsoever
Not a case of retrenchment but viewed it soNot a case of retrenchment but viewed it so
Nov 19, 2018 19

20. PRESENT POSITIONPRESENT POSITION
Punjab Land Development and Reclamation Corporation
v. The Presiding Officer, Labour Court, Chandigarh
Full Bench of the Supreme Court confirmed that the words 'for any
reason whatsoever' needs to be interpreted and understood in a much
wider and literal sense. Accordingly, the term 'retrenchment' was
finally held to mean the termination by the employer of the services
of a workman for any reason whatsoever (without limiting the
criterion for retrenchment to the extent of superfluity of labour or
staff) except those specifically excluded from the definition.
Nov 19, 2018 20

21. Excluded casesExcluded cases
Disciplinary action not retrenchment Disciplinary action not retrenchment (Lachman (Lachman
das vs Indian express (1977)das vs Indian express (1977)
Disciplinary action- punishmentDisciplinary action- punishment
Retrenchment – economic reasonsRetrenchment – economic reasons
Voluntary retirement (Bengal Nagpur (1960)Voluntary retirement (Bengal Nagpur (1960)
Retirement for benefitsRetirement for benefits
Negotiated got him to leaveNegotiated got him to leave
This was termination of service as no voluntary This was termination of service as no voluntary
retirementretirement
Nov 19, 2018 21

22. Excluded casesExcluded cases
Continued ill health- Continued ill health- Anand Bihar vs RajasthanAnand Bihar vs Rajasthan
Disease, physical defect, infirmity (continued)Disease, physical defect, infirmity (continued)
Unfit to perform dutiesUnfit to perform duties
Defective eyesight- termination Defective eyesight- termination
Upheld not retrenchmentUpheld not retrenchment
Superannuation – Superannuation – Mst Dewli Bakaram- Mst Dewli Bakaram-
If contract of employment does not provide for retiring ageIf contract of employment does not provide for retiring age
Termination due to person reaching a particular age amounted Termination due to person reaching a particular age amounted
to termination of serviceto termination of service
Nov 19, 2018 22

23. Excluded casesExcluded cases
Contractual terminationContractual termination
Non renewal of a contract because of expiryNon renewal of a contract because of expiry
Contractual right to terminate (as per contract Contractual right to terminate (as per contract
clause)clause)
If not under the above two it can be deemed to be If not under the above two it can be deemed to be
retrenchmentretrenchment
Strictly and fairly in the favour of the workmenStrictly and fairly in the favour of the workmen
Nov 19, 2018 23

24. Excluded casesExcluded cases
CM Venugopal v LIC- CM Venugopal v LIC- Termination during probationTermination during probation
held- under terms of employment targets not met so probation period held- under terms of employment targets not met so probation period
prevails and termination as per this therefore fall under the exception.prevails and termination as per this therefore fall under the exception.
Arun Kumar V UOI- Arun Kumar V UOI- written exam to become written exam to become
permanent- did not pass exam- terminated.permanent- did not pass exam- terminated.
Held- retrenchment does not secure tenure but provides benefits Held- retrenchment does not secure tenure but provides benefits
to the workmen in case the termination of service falls within to the workmen in case the termination of service falls within
def of retrenchmentdef of retrenchment
Nov 19, 2018 24

25. IN FAVOR OF WORKERSIN FAVOR OF WORKERS
Casual workersCasual workers
Badli workers (can come under the exception)Badli workers (can come under the exception)
Daily wage ownersDaily wage owners
Regular contract of employmentRegular contract of employment
Not contemplating temporary workersNot contemplating temporary workers
This to be observed strictly in favour of the workmenThis to be observed strictly in favour of the workmen
Periodic renewals- Periodic renewals- malafidemalafide
Jobs were not of seasonal/temporary natureJobs were not of seasonal/temporary nature
Frustrate the claim of the employee to become permanentFrustrate the claim of the employee to become permanent
Nov 19, 2018 25

26. OTHER ASPECTSOTHER ASPECTS
Burden of proofBurden of proof
BOP that termination of service is retrenchment in BOP that termination of service is retrenchment in
on the person forwarding the claim.on the person forwarding the claim.
Employee- prove- he is retrenched and not for the Employee- prove- he is retrenched and not for the
Employer to provide- discharge/termination otherwise Employer to provide- discharge/termination otherwise
than by terminationthan by termination
COMPENSATION-COMPENSATION-
Payable under section 25F and 25NPayable under section 25F and 25N
Nov 19, 2018 26

27. Preamble of section 25FPreamble of section 25F
Employer-employee relationshipEmployer-employee relationship
Workman under section 2(s)Workman under section 2(s)
Industry under section 2(j) and section 4Industry under section 2(j) and section 4
Not less than 1 (240 DAY) year continuous Not less than 1 (240 DAY) year continuous
service (section 25B)service (section 25B)
continuouscontinuous
same employersame employer
cumulative conditions-lacking-this section is not attractedcumulative conditions-lacking-this section is not attracted
Nov 19, 2018 27

28. EMPLOYER OBLIGATIONSEMPLOYER OBLIGATIONS
Sec 25F of ID ActSec 25F of ID Act
Nov 19, 2018 28
Workman in continuous service for 1 year
Can be retrenched only if workman is given 1
month notice in writing
Indicating reasons for retrenchment
Or pay wages in lieu thereof

29. Section 25FSection 25F
Conditions precedent to retrenchmentConditions precedent to retrenchment
Non compliance- retrenchment becomes void Non compliance- retrenchment becomes void
abinitioabinitio
Cannot be cured by subsequent offer for any full and Cannot be cured by subsequent offer for any full and
final settlementfinal settlement
Cannot disentitle the workmen from challenging the Cannot disentitle the workmen from challenging the
order of retrenchment on ground of non compliance order of retrenchment on ground of non compliance
of statutory requirementsof statutory requirements
Nov 19, 2018 29

30. EMPLOYER OBLIGATIONSEMPLOYER OBLIGATIONS
OBLIGATION TO NOTIFYOBLIGATION TO NOTIFY
Notice to employeesNotice to employees
Employers are required to notify the labour Employers are required to notify the labour
authorities about the retrenchment:50/100authorities about the retrenchment:50/100
 in prescribed manner in prescribed manner
 in prescribed timeline in prescribed timeline
Nov 19, 2018 30

31. noticenotice
S 25F(a)-Notice or Wages in Lieu of NoticeS 25F(a)-Notice or Wages in Lieu of Notice
One months notice-to employee-providing reasons One months notice-to employee-providing reasons
for retrenchmentfor retrenchment
Period of notice should expire before retrenchmentPeriod of notice should expire before retrenchment
Lieu-payment (either/or)Lieu-payment (either/or)
If not followed –illegal and ineffective retrenchmentIf not followed –illegal and ineffective retrenchment
Pasting of notice on the board not a substitute for Pasting of notice on the board not a substitute for
individual noticeindividual notice
Reasons-specific manner (Reasons-specific manner (Dhirendra Kumar v UOIDhirendra Kumar v UOI))
Cannot use standing orders or contract Cannot use standing orders or contract
Nov 19, 2018 31

32. EMPLOYER OBLIGATIONSEMPLOYER OBLIGATIONS
RETRENCHMENT COMPENSATION RETRENCHMENT COMPENSATION
Important pre-conditionImportant pre-condition
Workman is entitled for Retrenchment (severance) Workman is entitled for Retrenchment (severance)
compensation equivalent to 15 days’ average pay for every compensation equivalent to 15 days’ average pay for every
completed year of continuous service or any part thereof in completed year of continuous service or any part thereof in
excess of 6 months (240 days/190 days)excess of 6 months (240 days/190 days)
If not calculated correctly- retrenchment If not calculated correctly- retrenchment void ab initiovoid ab initio
If retrenchment not justifiable-heavy compensation cannot If retrenchment not justifiable-heavy compensation cannot
negatenegate
Retrenchment compensation payable before retrenchment-Retrenchment compensation payable before retrenchment-
later payments renders it later payments renders it void abinitiovoid abinitio
Giving notice of payment or tendering payment sufficientGiving notice of payment or tendering payment sufficient
Nov 19, 2018 32

33. EMPLOYER OBLIGATIONEMPLOYER OBLIGATION
TERMINATION SEQUENCETERMINATION SEQUENCE
ID Act requires employer to follow the ID Act requires employer to follow the last-in-first-last-in-first-
outout sequence while terminating employment sequence while terminating employment
Exception:Exception:
There is an agreement between the employer and the There is an agreement between the employer and the
workman to the contraryworkman to the contrary
The employer can provide adequate reasons for terminating The employer can provide adequate reasons for terminating
any other workmanany other workman
Nov 19, 2018 33

34. 50 or more workers50 or more workers
Chapter V-A of the IDA
requires an establishment employing 50 or more
workers
workers with 30 days’ notice and
15 days’ pay for every year of continuous work by
the workmen at the firm.
In case of closure or sale, it must fulfil the same
conditions unless the successor takes on these
obligations.  
Nov 19, 2018 34

35. 100 workers or more100 workers or more
Industrial units employed one hundred workmen or more
on an average per working day for the preceding twelve
months
are required to comply with certain different conditions.
Chapter V-B-
Nov 19, 2018 35

36. 100 employees contd…100 employees contd…
<100 employees
may not retrench services of any employee who has been in
continuous service for not less than one year
(i) the employee given three months’ notice indicating the reason
for retrenchment
and the period of notice has expired, or
Wages paid in lieu of notice; and
(ii) the prior permission of the concerned State Government has
been obtained for the retrenchment (Section 25N of the IDA).
Under section 25N : make application along with the reasons of intended
retrenchment to the State Government- prior permission to retrench the
employee. The State Government has the discretion to grant or withhold
such permission after making enquiries.
Nov 19, 2018 36

37. 100 employees contd..100 employees contd..
If no prior permission - retrenchment illegal from the date
on which the notice was given and the employee will be
entitled to all the benefits under law as if no notice had
been given to him. Penalty -imprisonment up to one
month/fine upto Rs 1,000, or with both.
If State Government’s approval is obtained, the services of
the employees can be terminated upon provision of three
months’ prior notice and payment of 15 days’ average pay
for each completed year of service in excess of six months.
Nov 19, 2018 37

38. SECTION 25 NSECTION 25 N
Application : An application in the prescribed manner seeking
the permission of retrenchment should be given to the
appropriate government or any authority specified by the
appropriate government. •
Enquiry : On receipt of the application the authority makes an
enquiry in this behalf in the industrial establishment.
Order : after conducting enquiry and after considering all factors
in this respect the authority issues its order, either granting or
refusing the application. If the authority does communicate its
order within a period of 60 days from the receipt of the
application then it is deemed to be granted.
Nov 19, 2018 38

39. Incase the application is granted then the employer can go for
retrenchment after providing the employee, at the time of
retrenchment, compensation equivalent to 15 days average pay
for every completed year of service or any part thereof in excess
of six months.
However in case, no application is made or the application is
refused then there will be no retrenchment and the workman will
be entitled to all such benefits as IF there had been no
retrenchment. •
In addition to this there is another penal provision for the
employer u/s 25- Q
Nov 19, 2018 39

40. SECTION 25GSECTION 25G
Procedure of retrenchment -Section 25G.
Any workman, who is a citizen of India- OF A
particular category of workmen in that
establishment,
No agreement between the employer and the
workman in this behalf
The employer shall ordinarily retrench the workman
who was the last person to be employed in that
category, unless for reasons to be recorded the
employer retrenches any other workman.
Nov 19, 2018 40

41. EMPLOYER OBLIGATIONEMPLOYER OBLIGATION
RE-EMPLOYMENT OF TERMINATED RE-EMPLOYMENT OF TERMINATED
WORKERSWORKERS
ID Act obligates an employer to allow an opportunity to ID Act obligates an employer to allow an opportunity to
the terminated workmen to offer themselves for re-the terminated workmen to offer themselves for re-
employment and such terminated workmen who apply for employment and such terminated workmen who apply for
re-employment are to be given preference over othersre-employment are to be given preference over others
Nov 19, 2018 41

42. Conditions for PRINCIPLE OF
RE- EMPLOYMENT
In order to claim preference in employment a
workman must satisfy the following conditions:
he should have been retrenched prior to re- employment;
he should be a citizen of India;
offer himself for re-employment in response to the notice by
the employer
he should have been retrenched from the same category of
service in the industrial establishment in which the re-
employment is proposed.
Nov 19, 2018 42

43. Delhi Cloth and General Mills Co. Delhi Cloth and General Mills Co.
Ltd v. Sambu Nath Mukerji & OrsLtd v. Sambu Nath Mukerji & Ors
ID Act states that termination by way of retrenchment can ID Act states that termination by way of retrenchment can
be be for any reason whatsoeverfor any reason whatsoever
Held that even “Striking off the name of the workman from Held that even “Striking off the name of the workman from
the rolls” for being absent without leave is “retrenchment”.the rolls” for being absent without leave is “retrenchment”.
Hence the reasons for termination are not limited to any Hence the reasons for termination are not limited to any
particular class of reasons & need not be on economical particular class of reasons & need not be on economical
grounds like redundancy grounds like redundancy
Nov 19, 2018 43

44. Due legal termination procedures in Due legal termination procedures in
IndiaIndia

45. IntroductionIntroductionbSsevderidy&CSKe
vsiJtyhvtdye
Due to wrongful
termination –dveCdKKdrty&e Sse
gidLsaae
Not following due
process WJgKdnsiae
hises(gdas e
vdeySJDsie
dCeKs&hKeitaPa
Employers
are exposed
to number
of legal risksHie
Or
Employees should, therefore plan to construct contracts and
human resource materials to ensure that senior management,
HR personnel, and employees are fully apprised of their rights
and responsibilities

46. TERMINATION OF NON TERMINATION OF NON
WORKERSWORKERS
SHOPS AND ESTABLISHMENT ACTSHOPS AND ESTABLISHMENT ACT
CONTRACTUAL TERMSCONTRACTUAL TERMS
The Madras High Court while dealing with the question that
'whether or not the notice period requirement (referred under
the Tamil Nadu Shops and Establishments Act, 1947) gets
attracted in the event of termination on the grounds of
inefficiency', in the case of Miss T.N. Chandra v. South India Corp
(Agencies) Ltd. and another, held that an employee cannot be
thrown out of job on the ground of 'extremely unsatisfactory
conduct' without following the procedure established by law and
putting the employee to notice.
Nov 19, 2018 46

47. Standard Process?Standard Process?
Nov 19, 2018 47

48. Termination under ContractTermination under Contract
Nov 19, 2018 48
Employment
contracts are
very specific
about process
for terminating
employmentksiJtyhvtdyeDneJSvShKeh&issJsyv
Termination by mutual agreementudyvihLvShKesJgKdnJsyvetaeasveCdieheCt(s e
gsitd e
Contractual employment is set for a fixed
period ?dieW(xe
EI udyaSKvhyvaertvoeByvsiyhvtdyhKedi&hyt.hvtdyae
7I Byvsiyaehvegitchvsedi&hyt.hvtdyae
V/TWebW?B–WbeWC<BHICW–ke
<WNBHb9
For Ex:
1.Consultants with International organizations
2.Interns at private organizations
HAVE DEFINED EMPLOYMENT
PERIODS

49. PRE-CONDITIONSPRE-CONDITIONS
Nov 19, 2018 49

50. Delhi Union TerritoryDelhi Union Territory
Delhi Shops and Establishments Act, 1954Delhi Shops and Establishments Act, 1954
Nov 19, 2018 50WJgKdnsieLhyydve
vsiJtyhvsehyesJgKdnss
Employer cannot
terminate an employeerodeohaeDssyertvoevose
di&hyt.hvtdyeCdieJdise
vohyeJeJdyvoae
who has been with the
organization for more
than 3 months ,tvodSve&tcty&evosesJgKdnsse
hveKshaveJpe hnaedCeydvtLsMe
ahKhinetyeKtsSedCeaSLoeydvtLse
Without giving the employee
at least 30 days of notice/
salary in lieu of such notice –dvtLseNslStisJsyvetaerhtcs e
tCevoseishadyeCdievsiJtyhvtdyetae
JtaLdy SLve
Notice Requirement is waived
if the reason for termination is
misconduct
However reasonable opportunity of being
heard shall be given to the employee

51. State of MaharashtraState of Maharashtra
Nov 19, 2018 51

52. Tamil Nadu & KarnatakaTamil Nadu & Karnataka
Nov 19, 2018 52By SyayvyithKesiySJi
gsaydnoshrPSaic&aCiLlIL
Karnataka Shops and
Establishment Act, 1961uyroniTyJmithKesiySJi
gsaydnoshrPSaic&aCiLlRf
Tamil Nadu Shops and
Establishment Act, 1947
Employer cannot terminate an employee who has been
with the enterprise for more than 6 moths – Except
for a Reasonable Causethynnie K:oJPiLirKSahi
SKao&P
Shall provide 1 month
noticeADiros&KSJm&aiosiahPi&ymsPiDK i
aP roSyaoKSiwiSKiSKao&PiK i
yssK&oyaPJieyEKDDiosi P(mo PJi
aKidPi)o:PS
If misconduct is the cause for
termination – no notice or
associated payoff is required
to be given

53. Federal Labour Legislation Federal Labour Legislation
governing Termination in Indiagoverning Termination in India
Nov 19, 2018 53

54. SEVERENCE PAYSEVERENCE PAY
Nov 19, 2018 54

55. LEGAL PROTECTIONS FOR LEGAL PROTECTIONS FOR
EMPLOYEES IN INDIAEMPLOYEES IN INDIA
Nov 19, 2018 55

56. What can a retrenched/terminated What can a retrenched/terminated
employee do?employee do?
1.1.The employee can resort to The employee can resort to alternate dispute alternate dispute
resolutionresolution measures measures
2.2.An An employee may claimemployee may claim::
1.1.For the employer to reinstate him/her (with or For the employer to reinstate him/her (with or
without back pay)without back pay)
2.2.For the employer to re-employ him/her, either in the For the employer to re-employ him/her, either in the
work in which he/she was employed before the work in which he/she was employed before the
retrenchment or in another reasonably suitable work retrenchment or in another reasonably suitable work
(with/without back pay)(with/without back pay)
3.3.For the employer to pay compensation to him/herFor the employer to pay compensation to him/her
Nov 19, 2018 56

57. What can a retrenched/terminated What can a retrenched/terminated
employee do?employee do?
3. 3. Employee may claim for compensation Employee may claim for compensation
The claim made by the employee must be The claim made by the employee must be
practically possible – for ex: the employee cannot practically possible – for ex: the employee cannot
claim for reinstatement if the business is shut claim for reinstatement if the business is shut
down.down.
4. 4. Collective Bargaining Collective Bargaining
Nov 19, 2018 57

58. What can a retrenched/terminated What can a retrenched/terminated
employee do?employee do?
5. 5. LitigateLitigate the matter, if the employer is non- the matter, if the employer is non-
responsive/un-reasonable/illegal responsive/un-reasonable/illegal
6. 6. Conciliation: Conciliation:
ID Act provides for following machineries: ID Act provides for following machineries:
a) Conciliation Officer a) Conciliation Officer
b) Board of Conciliationb) Board of Conciliation
c) Court Enquiryc) Court Enquiry
Nov 19, 2018 58

59. What can a retrenched/terminated What can a retrenched/terminated
employee do?employee do?
7. 7. Adjudication Adjudication

ID Act provides for three-tier machinery for ID Act provides for three-tier machinery for
adjudicating labour disputes:adjudicating labour disputes:
a) Labour Court a) Labour Court
b) Industrial Tribunal b) Industrial Tribunal
c) National Tribunalc) National Tribunal
Nov 19, 2018 59

60. QUERIESQUERIES
DISCIPLINARY TERMINATION
discharge or dismissal.
Dismissal is always termination of service by an
employer by way of penalty for a misconduct. It is
the most severe of penalties, a stigma, a very serious
mark against the employee, and a definite handicap
in obtaining further employment.
Discharge however may or may not be by way of
penalty.
Two types of discharge i/ Discharge for misconduct
Discharge not for misconduct Nov 19, 2018 60

61. Dismissal and discharge for misconduct
Through a fair & proper enquiry that the workmen
has committed a serious misconduct.
For dismissal- guilty? Yes then NO notice/pay
If he is discharged YES
Entitled to PF/Gratuity even if dismissed
Some judgments say employer may deduct the
amount so lost from the gratuity
Nov 19, 2018 61

62. Employee if discharged on the ground of
continued ill-heath?
Enquiry to determine capability
Standing order on general right to discharge
Rulings of the supreme court now hold that a simple
discharge is stigmatic
Regular disciplinary process
Natural justice
Nov 19, 2018 62

63. Resignation becomes effective only when it is
accepted by the employer.
future date, eg 3 months, an employee remains
in service even though the employer may have
expressed acceptance of it, and if the employee
before that date changes his or her mind, the
resignation is not effective.
A resignation must be freely submitted. Threat
or intimidation= wrongful dismissal.
Nov 19, 2018 63

64. QUESTIONS ? QUESTIONS ?
SAVITHA KESAV JAGADEESANSAVITHA KESAV JAGADEESAN
SENIOR PARTNER (KOCHHAR SENIOR PARTNER (KOCHHAR
& CO)& CO)
Nov 19, 2018 64

65. SAVITHA KESAV JAGADEESANSAVITHA KESAV JAGADEESAN
SENIOR PARTNER (KOCHHAR & CO)SENIOR PARTNER (KOCHHAR & CO)
THANK YOU THANK YOU
Nov 19, 2018 65

66. NEW DELHI OFFICE
11th Floor, Tower-A,
DLF Towers, Jasola District Center,
Jasola, New Delhi-110025 (INDIA)
Tel: [phone]
Fax: [phone]
Email: [email protected]
MUMBAI OFFICE
17th Floor, Nirmal Building,
Nariman Point, Mumbai,
Maharashtra-400 021 (INDIA)
Tel: [phone]
Fax: [phone]
Email: [email protected]
BANGALORE OFFICE
#201, Prestige Sigma,
3 Vittal Mallya Road Bangalore,
Karnataka-560 001 (INDIA)
Tel: [phone]
Fax: [phone]
Email: [email protected]
CHENNAI OFFICE
Suite 305, 3rd Floor, Delta Wing,
Raheja Towers #177, Anna Salai,
Chennai, Tamil Nadu-600 002
(INDIA)
Tel: [phone]
Fax: [phone]
Email: [email protected]
GURGAON OFFICE
3rd Floor, Tower-B,
Technopolis Building,
Sector 54 DLF Golf Course Road,
Gurgaon, Haryana-122002 (INDIA)
Tel: [phone]
Fax: [phone]
Email: [email protected]
HYDERABAD OFFICE
Plot No. 1263-A/1,
Road No. 63A,
Jubilee Hills, Hyderabad,
Andhra Pradesh-500 033 (INDIA)
Tel: + 91-40 4011 5U2, 4020 5223
Fax: + 91-40 4020 5224
Email: [email protected]
DUBAI, UAE OFFICE
Kochhar & Co INC.
Advocates & Legal Consultants
The Citadel, Suite 1406-1410,
Burj District, Near J W Marriot Marquis Hotel
Dubai, United Arab Emirates
Tel: [phone], Fax: [phone]
Email: [email protected]
ATLANTA, GEORGIA, USA OFFICE
Kochhar & Co.
LLC , 47, Perimeter Center East, Suit 260, Atlanta, GA-30346,
Tel: [phone], Fax: [phone]
Email: [email protected]
SINGAPORE
1 Fullerton Road, #02-01, One Fullerton,
Singapore-049213,
Tel: [phone],
Fax No.: [phone]
Email: [email protected]
INDIA OFFICES
OVERSEAS OFFICES
THANK YOU
Savitha Kesav Jagadeesan
Senior Partner
Kochhar & Co