Wrongful termination notice: challenging a dismissal in India

What this is

A wrongful termination notice is a formal letter to your employer, usually sent through an advocate, that says your dismissal broke the law or your contract, and demands that the employer put it right by a date. It can ask for reinstatement (your job back, with the service you had), for back wages (pay for the time you were kept out), for your dues, or for all of these.

It is often the first step towards a case. What it says can be read by the Labour Court or a civil court later, so the facts, dates and amounts in it must be right.

When it applies

A termination can be wrongful in several ways. Which one fits you depends first on whether you are a workman.

Are you a workman? Section 2(s) of the Industrial Disputes Act, 1947 covers anyone, including an apprentice, employed to do manual, unskilled, skilled, technical, operational, clerical or supervisory work for pay. It leaves out people employed mainly in a managerial or administrative capacity, and supervisors who draw wages of more than ten thousand rupees a month or whose work is mainly managerial. It also leaves out the armed forces, police and prison staff. Courts have held that your real duties decide this, not the title on your visiting card.

If you are a workman, these are the common grounds:

1. Retrenchment without notice or compensation. "Retrenchment" means ending a workman's service for any reason other than as a punishment for misconduct — closing a post, cutting costs, "not needed any more" (Section 2(oo)). It does not include voluntary retirement, retirement at the agreed age, the end of a fixed-term contract that is not renewed, or termination for continued ill-health. If you have a year's continuous service, Section 25F requires the employer, before retrenching you, to give one month's written notice with the reasons (or a month's wages instead), to pay compensation of fifteen days' average pay for every completed year of service (or part over six months), and to notify the government.
2. Continuous service counted correctly. Under Section 25B, if you actually worked at least 240 days in the twelve months before the termination, you are treated as having a year's continuous service, even if you were called "temporary" or "daily-rated".
3. Last come, first go. When retrenching within a category of workmen, the employer should ordinarily let go the person who joined last, unless it records reasons for doing otherwise (Section 25G). If it later hires again, retrenched workmen get preference (Section 25H).
4. Large establishments. Where at least a hundred workmen were employed on average per working day over the past twelve months, retrenchment needs three months' notice and prior government permission (Sections 25K and 25N).
5. Dismissal for misconduct without a fair inquiry. This is a punishment, not retrenchment. Courts have held that you must be told the charge and given a fair chance to answer it. The Labour Court can decide whether the dismissal was justified and can set it aside (Section 11A).

If you are not a workman, the question is whether the employer followed your appointment letter: the notice period, the grounds on which it can end your service, and any procedure it promised. If it did not, you can claim compensation for the loss that naturally follows from the breach (Section 73, Indian Contract Act) — usually your pay for the notice period, plus any dues. See Appointment letter dispute.

The steps and the timeline

1. Gather the papers (days 1 to 3). Appointment letter, salary slips, bank statements, the termination letter or email, attendance records, any show-cause notice or inquiry papers, and your PF number.

2. Fix the facts with the advocate (week 1). Date of joining, what you actually did, your last salary, how many days you worked in the last twelve months, how the termination happened, and what was paid. The advocate decides whether you are a workman and which law applies.

3. The notice goes out (week 1 or 2). It states the facts, the law that was broken, and exactly what you demand, with amounts, and gives the employer a period to reply — usually fifteen days. It is sent by registered post or speed post, and by email where the employer uses email.

4. The employer's reply (the next two to four weeks). Many employers pay the dues, or offer a settlement, at this point. Others deny everything. Either way, the reply shows what they will argue.

5. The next step, if it is not settled.

• A workman goes to the conciliation officer of the labour department. After 45 days from that application, the workman can apply directly to the Labour Court, and must do so within three years of the termination (Section 2A). See Labour Court application.
• Gratuity goes to the Controlling Authority. See Gratuity claim.
• Someone who is not a workman files a civil suit for damages.

Documents needed

• Appointment letter, confirmation letter, promotion or transfer letters.
• Salary slips and bank statements for at least the last six months.
• The termination letter, email or message.
• Attendance or punching records, or anything showing the days you worked.
• Any show-cause notice, charge sheet, inquiry papers and your replies.
• ID card, PF number (UAN) and passbook.
• Names of colleagues who joined after you and are still employed, if you were retrenched.

What it costs

• The notice. The advocate's fee, which depends on the city and the work involved. The advocate quotes it before you pay.
• If it goes further. Any filing fee depends on the state and the forum; your advocate will tell you what applies. The advocate's fee for preparing your case, and for appearing where the law allows it, varies with the city and the length of the case, and is quoted before you agree.

What the advocate does

• Works out whether you are a workman, and whether the Industrial Disputes Act, your contract, or both apply.
• Checks continuous service, the notice and compensation actually paid, and whether Section 25F or 25N was followed.
• Drafts the notice with the right demands and amounts, and sends it.
• Reads the employer's reply, negotiates any settlement, and makes sure a settlement does not give up claims you did not mean to give up.
• If it is not settled, prepares your case for conciliation and the Labour Court, or files a civil suit. Under Section 36 of the Industrial Disputes Act, an advocate cannot represent either side in conciliation, and can appear before the Labour Court only with the other side's consent and the court's leave; where that is not given, the advocate prepares the papers and guides you, and you or a union representative or co-worker appear.

An independent advocate from our panel can take it on. They review your papers and quote their fee before you pay. eMunshi is a technology platform, not a law firm; the advocate you choose represents you.

The document that comes before it

There is no self-serve document for a termination notice, because whether you are a workman changes what it should say. If your PF was also cut from your salary but not deposited, you can raise that yourself with the EPFO: eMunshi's PF complaint is written from your answers, for ₹999. See PF stuck or not deposited.

Mistakes that sink claims

• Resigning under pressure. A resignation is not a termination; it is much harder to challenge afterwards.
• Taking the final settlement without a written protest when it is short.
• Demanding everything at once in vague words. Name each claim and its amount.
• Overstating your role (or understating it). Your real duties decide whether you are a workman.
• Letting years pass. The three-year limit in Section 2A(3) is for a workman's direct application to the Labour Court, and delay weakens every claim.

Not sure where you stand? A 30-minute call with an independent advocate starts at ₹999. The first-steps guide covers the whole situation, including unpaid salary and gratuity.