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Piyush (Software engineer)     02 December 2013

Resignation without notice period

Dear sir,


I am a software engineer, i have resign my company without notice period due to my bad health and i must have to transfer at my native due to my health. i have only sent resignation through email. they have not accepted that and send me notice.

I was in  probation period, probation period is 6 months and i left company after 3 months, there is not bond with that company.


but as per appointment letter its written like below

1) if employee is confirmed employee and leave without notice period then employee has to pay 2 month salary

2) if employee is on probation period then employee has 1 month notice period.


but there is not mentioned that employee has to pay in probation period , and company send me notice of 72k + 18% interest


so please advise me that i have to pay these amount to company?


I will submit my medical documents to company, currently i have not submited.

 

Please adivse for this

 

Thanks,

Regards,



Learning

 6 Replies

Kumar Doab (FIN)     02 December 2013

 

You were located in which state?

 

 

 

The redg. office of the establishment is located in which state?

 

What is the strength of employees in this establishment?

 

 

Did you seek opinion and treatment of your sickness at your HQ town and do you have the copy?

 

Have you submitted sick leave application or intimation before leaving the HQ for your hometown by normal post, redg. post, courier, email, by phone etc.....................?

 

You should have.

 

 

Have you initiated treatment of your sickness at your native place?

 

If you could submit resignation by email then you could submit the documents pertaining to your sickness and sick leave application also.

 

In case of sick leave the employee can submit sick leave application and bed rest advice of doctor upon joining also as permitted by many establishments.

 

The employee should always be transparent and maintain proper record in writing and under proper acknowledgment.

 

For employers sickness and transfer to native place is an age old trick to separate from employment.

 

 

>> Notice period applicable during probation period is stated in appointment letter issued to you as posted by you.

As per your post there is no explicit mention of notice pay in lieu of notice period during probation.

 

It shall be pertinent to understand whether notice period during probation period in your case during probation and after service of 3 months shall be applicable or not.

 

---The notice period of resignation is stated in standing orders (certified/model) applicable to the establishment and extended to the designation of the employee. The notice period stated in standing orders shall prevail upon the notice period stated in private agreement signed by employer with employee e.g contract of employment/appointment letter. If notice period in standing orders applicable to the employee is NIL it can not be 1 month in appointment letter.

Employer himself is responsible for faithful observance of standing orders.

 


Employee is bound and under obligation to display standing orders at a conspicuous location in company/notice board, and supply the certified copy to the employee against a nominal fee say Rs.10/-.

Employee or any one can obtain the certified copy of the standing orders applicable to the establishment from certifying officer (CO) against a set fee say Rs.3/page. The Certifying Officer may be DLC in o/o Labor Commissioner at the location of redg. office of the company.

 

Until or unless state government has granted an exemption to the establishment from provisions of Industrial Employment Standing Orders Act the standing orders shall be applicable.

 

 

--- Notice period is also stated in shops and commercial establishment act of the state.
If your establishment is commercial you may look into the clause on ‘Notice of dismissal’ applicable in state of your location, and the notice period applicable as per length of your service. It may be NIL.

 

 

If notice period applicable in your case is NIL then the clause in appointment letter issued to you may be VOID to that extent.

 

The designation alone does not decided employee shall be covered as ‘Workman’ as in ID Act and as ‘Employee’ as in shops and commercial establishment act of the state.

Your lawyer may ask you a set of structured questions and may opine you shall be covered or not.

 

 

The notice of resignation/resignation and subsequent communications should be carefully structured to suit the long term interest of the employee and today’s scenario employee should always consult elders in the family, competent and experienced well wishers, lawyer/law firm before acting on his own.

This shall avoid legal traps and inconvenience.

 

 

If the tasks of the employee that has initiated resignation are unfinished due to which employer may suffer financial or some other loss and the employee is unwilling to indemnify the employer then the employer may impress upon the employee to serve full notice period.

 

The purpose of notice is to allow the other party (employer) to make arrangements to complete exit formalities and handover of charge. 

 

 

 

You have probably left unfinished task, have not completed KT, have not handed over the company’s property and charge have thus not completed exit formalities and have also not affirmed to tender notice pay.

 

 

You may show the job advertisement, job application, interview call letter, offer letter, standing orders, appointment letter, resignation, sickness record, declinature of the company to accept resignation, notice by company, etc to your labor consultant/service lawyer , give inputs in person and proceed under expert advice of your lawyer.

 

Let your lawyer structure a fitting reply to the notice and demand acceptance of resignation, correct FNF statement for verification and acceptance, payment of earned wages, PF number, PF account slip, Form 16, ESIC card, service certificate, relieving letter by redg. post.........................

 

 

 

 


Piyush (Software engineer)     03 December 2013

dear sir,

first of all thank you for reply,

below are my answers

 You were located in which state? : Gujarat, Ahmedabad
 The redg. office of the establishment is located in which state? : Gujarat, Ahmedabad
 
 Have you submitted sick leave application or intimation before leaving the HQ for your hometown by normal post, redg. post, courier, email, by phone etc.....................?
 
 : Yes, i also took leaves before i resigned from there, and also informed by phone.
 
  Have you initiated treatment of your sickness at your native place? : YES

I have still one query that

as per appointment letter its only mentioned there after confirmation if employee need to leave organization then he/she has to give 2 months notice period or lieu of 2 months salary

and in 2nd paragraph if employe is on probation period then employee has to give 1 month notice period
 

* its not mentioned there in probation period employe has to pay.
 and company send me notice to pay 72k + 18% interest.


so please advise for that. if you want i can send you my appointment letter also.

Thanks again

Kumar Doab (FIN)     03 December 2013

The company has to explain how come it has arrived at the figure of 72k + 18% interest.

The company should have explained this amount in its notice.

You cam demand to explain the amounts stated in the notice issued to you.

The state of Gujarat follows Bombay Shops and Commercial Establishments Act.

бб.Notice    of  termination  of  service;

For service < 3 months : Nil

For service > 3 months and < 1 year: 14 days.

 

69.  Right and privileges under other law etc. not affected.-

 

^[ЗВ-Ð’.  Application  of  Industrial  Employment  (Standing  Orders)  Act  to  .establishments.

The  provisions of the Industrial Employment (Standing Orders) Act,  1946,  in  its  application  to  the  State  of  Maharashtra   [(hereinafter  in  this section referred to as "the said Act"), and the rules and standing orders (including model  standing  orders)  made  thereunder  from  time  to  time,  shall,  mutatis rnuimdis,  apply  to  all  establishments  wherein  fifty  or  more  employees  are employed and to which this Act applies, as if they were industrial establishment within the meaning of the said Act.

{{ If sanding orders apply to your establishment but have not been certified then Model Standing Orders shall apply.

Model Standing Orders: 13.Termination of employment

(2)                     No .......................................... probationer ............... shall be entitled  to any notice or  pay in lieu thereof if his services are terminated

 

 

17.          Liability of 17[employer].--The [1][employer] of the establishment shall personally be held responsible for the proper and faithful observance of the standing orders.

 

{{ Implying notice period during probation period is not applicable.}}

 

 

It is not known to us that state of Gujarat has granted any exemption to trade of your establishment any exemption from the provisions of standing orders or not? You have to find it on youir own. Your lawyer in Gujarat can confirm it. If yes please post in this thread also and attach copy of the notification. It shall help many.

 

For an instance let us assume that an exemption has been granted and in such a case notice period should be related to the latest version of Shops and Commercial Establishments Act as applicable in Gujarat.

 

Let us assume that you as per your designation would not be covered as ‘Workman’ under ID Act and as ‘Employee’ under Shops and Commercial Establishments Act and in such a case the service conditions including notice period/pay as in appointment letter, service rules shall apply.

 

 

 

It shall be appropriate to consult a local labor consultant/service lawyer. The lawyer that has senn all docs and record and has analysed your inputs can advice you the best.

 

 

 



[1] Subs by ibid



testa (others)     30 March 2014

I am Facing same problem.My apointment letter have no notice period mentioned for probation period it only states if an employee leaves the company with in two  years should give 3 months notice or 6 moth salary.i have quit the job in probation period.is there any chance that this condition legaly binded.

testa (others)     31 March 2014

Dear sir i have query.if a company is excempted from standing order act and if they are submitting their own service rules or standing order .3 months notice period is it legal during probation period. Software engineer designation comes under which definition as per ID Act or Standing Order Act. Plz Guide me on this

Kumar Doab (FIN)     31 March 2014

@ testa

 

You may go thru another thread initiated by you at;

 

https://www.lawyersclubindia.com/experts/Received-a-legal-notice-from-the-employer-462941.asp#.UzmUaEeBmXU


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