Enforcebility of notice period by the employer

 

Notice period is part of service conditions and stated in offer letter, appointment letter, standing orders (certified/Model), statue…………………….

If the company has its certified standing orders you may obtain and go thru these……………
If notice period is 1 month in standing Orders it can not be more than 1 month in appointment letter. Standing Orders shall prevail upon appointment letter. Standing Orders should be displayed at conspicuous place or notice board. Employee can obtain copy from employer against a nominal payment say Rs10/…………………………………and also from certifying officer (DLC) against a set fee……………………… 

 

Resignation can be without notice and permission.
If the tasks of the resigned employee are completed and properly handed over and nothing is pending there should be no reason that employee is forced to serve full noticed period.

If the tasks of the resigned employee are not properly handed over and employee is unwilling to indemnify the employer for a loss/any loss employer may ask to serve the full notice period.
Employee should state that he has handed over the company property and must obtain acknowledgment.

Employee should state in writing to good offices emphasizing no task is pending at his end.

 

If there is an option of payment of liquidated damages (notice pay) applicable to employee and employer by means of bilateral agreement ( appointment letter/contract of employment) then this is the max. amount company can claim.

 

 

What is this establishment: Commercial or Industrial? The registration certificate of the establishment should have been displayed at the notice board.

 

The HO/redg. office of the company and you are located in which state?

 

What is your designation and nature of duties?

 

Do the standing orders apply to the establishment? If the Payment of Wages Act applies the standing orders may apply to the establishment.

 

Does the company have its certified standing orders (CSO) and has it extended the CSO to your designation?

 

If standing orders apply but are not certified Model Standing Orders should apply.

 

The language of notice period/pay, termination clauses should be carefully studied.

 

It shall be appropriate to show all of the documents to your labor consultant/service lawyer and proceed under the expert advice of your lawyer.

 

There are many threads with similar query. You may find this relevant e.g;

 

 

https://www.lawyersclubindia.com/experts/Notice-period-not-served-in-full-425096.asp#.UkknLNKAqWM

https://www.lawyersclubindia.com/forum/Delay-in-issuing-relieving-letter-89520.asp#.UkklndKAqWM

https://www.lawyersclubindia.com/forum/Absconding-from-bpo-89455.asp#.UkkmMNKAqWM

 

https://www.lawyersclubindia.com/forum/Employer-not-relieving-employee-contt-89308.asp#.UkaBX9KAqWN 

Hi Kumar Doab,

 

There is a LD caluse over and above the notice period which is effected by subsequent amendment to the offer leter (employee policies).

I am in KPO , a private limited company, in the state of Gurgaon, Haryana.

See, I am not introduced to the client (client is not aware that I am working undet its team). The work is easy but bulky and so my boss is also not ready to learn it from me. No other person the the organisation know this work. So I dought that, the management will allot a quick learner or not.

 

Time to learn is more or less around 10-15 days. but it a question of expertise?

 

What would happen (enforcebility of the notice period as well as LD clause), if I serve 20 days notice period and ready to pay for the short fall in notice period.

 Further, the company has its registered office at New Delhi. Please guide me to know further about the standing orders or any other process.

 

Thanks sir.

 

 

You have posted that:

 

 

 

 

------“There is a LD caluse over and above the notice period which is effected by subsequent amendment to the offer leter (employee policies).”

 

The offer letter is issued upon selection in interview. After the offer letter is accepted appointment letter is issued upon joining duty.

 

 

You have offer letter or appointment letter?

 

Probably LD clause stands for Liquidated Damages.

Has the company supplied the amended offer letter (or appointment letter) and did you accept it?

Or the company has sent just a letter /email etc revising the service condition by adding clause on LD? Did you accept it in writing?

 

Ideally if the employee has not accepted the change in service conditions it should not apply.

 

 

Did you decline to accpet?

 

{ You may go thru: Section 9-A of Industrial Disputes Act }

 

 

 

 

If the company has applied an arbitrary change in service condition,

You may go thru Section 9 C Industrial Disputes (Amendment) Act, 2010 (No. 24 of 2010)

 

 

 

 

What is stated in LD clause and what is the amount of liquidated damages?

 

 

 

If an amount is mentioned in LD clause then in case of breach e.g. shortfall in notice period the amount stated in LD clause should be the max. amount to be paid by the party that has breached the contract.

 

 

 

It is felt that liquidated damages can be contested and party claiming the amount may have to prove the actual amounts, reasonableness of the matter and reasonable amounts.

 

 

 

If the matter lands up in court of law the court shall decide the reasonableness of the matter and reasonable amounts if any.

 

 

 

------“ What would happen (enforcebility of the notice period as well as LD clause)”

 

 

 

If you choose to separate at a short notice company may demand notice pay and LD both.

 

 

 

If you have stated notice period and the company has accepted the notice of resignation/resignation then it is duty of officials of the company to take charge within expiry of notice period.

 

 

 

You must state in notice/resignation that all tasks assigned to you are completed and nothing is pending as on date and fro this date till expiry of notice period i.e dated,……………..routine tasks should be assigned on day to day basis which can be completed within and upto dated…………..i.e last date in office.

 

 

 

-------“ Please guide me to know further about the standing orders or any other process.”

 

 

 

You may go thru: Industrial Employment (Standing Orders) Act,

 

 

 

The term Industry does not mean factory alone. The Standing Order Act is applicable to all establishments to which the Payment of Wages Act, 1936 applies. Section 2 (e) (iv)…………..

 

 

 

 

https://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/Home/Acts+Implemented/Details+of+the+Acts+Implemented/The+Industrial+Employment++Act,+1946/The+Industrial+Employment+%28Standing+Orders%29+Central+Rules,+1946

 

8. “Theregister required to be maintained by section 8 of the Act shall be inForm III and shall be properly bound and the Certifying Officer shallfurnish a copy of standing orders approved for an industrialestablishment to any person applying therefor on payment of a fee ³ calculated at the following rates per copy”

 

-------“  Further, the company has its registered office at

 

New Delhi.”

 

Company might have applied for certification of standing orders to certifying officer (CO-DLC in o/o Labor Commissioner at

 

Delhi. You may inquire from his office about applicability of standing orders certified/Model to your company. You can obtain certified copy against a set payment.)

 

 

 

------“ I am in KPO , a private limited company, in the state of Gurgaon, Haryana.”

 

 

 

The registration certificate of the establishment should have been displayed at the notice board.

 

 

 

The company should have registered under Shops and Establishments Act of

 

Delhi and Haryana for Gurgaon.

 

{ BPO/Call centre  are commercial establishments and have to register.

 

 

 

Delhi

High Court :Mantec Consultant Pvt. Ltd vs State & Anr }

Haryana follows Punjab  Shops  and  Commercial Establishments Act, 1958.

You may go thru Sec: 2. DEFINITIONS (iv) (vi) (Vii)

23: NOTICE BY EMPLOYEE (1month)

{ IN another thread initiated by another employee it is stated that Labor Commissioner pointed out that notice period stated in the Act shall apply and notice period more than 1 month may be declared void.

 

https://www.lawyersclubindia.com/forum/Employer-not-relieving-employee-contt-89308.asp#.UkP5C9KAqWM}

 

 

 

 

 

 

 

 

 

 

 

As already mentioned the language of notice period/pay, termination clauses, LD should be carefully studied.

 

 

 

It shall be appropriate to show all of the documents to your labor consultant/service lawyer and proceed under the expert advice of your lawyer.