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| Hi: I'm from an ITeS company. Our appointment letter carries a clause that the employee should serve 60 days notice on resignation. Similarly it also says that if the company terminates the employment on grounds of poor performance or misconduct, the company shall pay 2 months salary in lieu of notice period of 60 days. My query is specific to cases of terminations on grounds of misconduct. None of the cases go through the prescribed process of an enquiry for the terminaton decision to be arrived at. These cases are closed quickly and are driven more by judgement of the decision maker. This is complicated by the reports of employee misconduct at onsite / client location when such cases are sent back home only to be terminated. For the company initiated terminations, we still issue a clean relieving letter and give a good reference with the view of not affecting the employee's future career prospects. I'm writing to know if this practice of termination on misconduct without an enquiry procedure makes the company vulnerable if the affected employee prefers the legal route. Does the practice of payment of 2 months salary alongside giving a clean relieving letter / positive reference offer enough protection to the company in such cases? Regards, Nanda malikjs Contributing Member - Member Since: Oct 2008 Subject - Re: Terminaton of employment due to misconduct dear basically clause given in appointment letter that if employees resign than he is required to give 60 days notice or salary in lieu of,same in case of termination. termination in case of misconduct generally follow the complete procedure as per principle of natural justice ,in this case no need to pay notice salary. no employer want to go for litigation,so generally they ask for resignation and pay salary as you have mentioned. regards j s malik Dear Mr.J.S.Malik, I am a regular reader of your view posted on CITEHR & Citelegal, but this time I am not agree with your views in general. 1. The Company is not following the full procedure of Misconduct Enquiry and want to relieve his employee without an enquiry and settling the Case on bare 2 months Salary so that the employee should approach to the Labour Deptt/Court. They think the money settle everything, yes ofcourse 99% cases settled by this way. 2. If you will not pay two month salary they will approch the Union/Labour deptt. to settle the case. 3. The Disciplinary proceeding/misconduct enquiry takes times and money and also wastage of precious time. This is the right way to compensate. 4. Offer 2 months notice salary, and take resignation and accept the resignation with immediate effect with a term in resignation letter"as requested" and settle the case. Want opinion of Mr.J.S.Malik in this regard, thanks SHISH UNIYAL 09811681660 malikjs Contributing Member - Member Since: Oct 2008 Subject - Re: Terminaton of employment due to misconduct dear shish the statement you have given is absolutely right and i fully agree with you.i have just given legal advise not a practical one.if someone services aerminated after misconduct with proper enquiry ,no need to give anything on account of notice pay.this is legal position. you are right in your position and that is practical solution. regards j s malik K C S Kutty Contributing Member - Member Since: Nov 2008 Subject - Re: Terminaton of employment due to misconduct I fully agree with Malik Sir. In the first question itself issues are mixed up. If an employee resigns, he has to give two months notice or pay in lieu of notice. This can be a condition in the offer of appointment. Termination of service employee includes retirement on superannuation, retrenchment, discharge and dismissal. For retrenchment provisons of ID Act 1947 has to be followed. For discharge or dismissal, this can be done for misconduct and only after proving through a properly conducted domestic enquiry and the gravity of misconduct calls for a punishment of dismissal or discharge. Termination due to poor productivity or poor performance is not a punishment. However, before taking action under this ground, the employee must be informed of the expected performance, his actual performance and the deficiency. He should be given a chance for improvement of his performance. The purpose of probation is to find out the suitability of a employee on the job. If not found suitable he can be terminated during the probation period itself. In order to overcome all these procedures, some employers may be asking the concerned employee to give his resignation and the Management "accepts the resignation" and relives him with all best wishes for a bright career future. But what I dont understand is why to pay two months salary to an employee "who resigned" and "relieved from work".    
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