Resigned in probation period


I was working in an IT company till 4th Aug, 2018. 

As per appiontment letter, the phrases are

"On your services being confirmed in writing by the company, this appointment will be terminated either by giving two calendar month's notice or in lieu of two month's full salary for the other party. The management however, reserves the right to ask you to serve during the notice period or to relieve you immediately on submitting the resignation, without any notice payment. 

In case you leave the employment of the company without giving any notice, the Company shall have the right to take legal action against you and deduct two month's full salary from any encashment of leave or recover it otherwise. For any reason should you decide to leave the services of the company, your resignation from the company shall be deemed as accepted only informed in writing threreof by the company."

The above is written in an appointment letter. Based on that, I first asked employer through an email that If you don't like my work progress, please terminate and asked for notice period to serve accordingly. But I did not got any reply. After that I put from my side a resignation letter asking with notice period and final settlement.  For that he replied, Accepted and will act accordingly to your agreement. 

After that I went to office with an appointment and discussed about notice period and my final settelment. Finaly he told me that within 7 days, he will settle my account. 

Till date I did not get any reply from him. 

What to do to get my final settlement? Since Its a small money but I can't tolerate this kind of company harassing the employee like this. I have a every proof of discssion in my email. 

 
Reply   
 
FIN

While posting such queries employee should post basic information!

What is this establishment; Govt, private, Commercial, Industrial?

What is its nature of business say; IT, ITeS?

How many persons are employed in it?

What is your designation and nature of duties?

How many persons report to you?

Do you have any power to sanction leave/increment/appoint/terminate/appraise etc etc ?

You are in which state? Since how many months you are working? Are you under probation period or your service is confirmed in writing?

 

Do standing orders (model/certified) apply to establishment and your designation?

What is notice period as per appointment letter/offer letter and what was notice period tendered by you?

Was ever any stinker, memo, show cause notice on any misconduct issued to you?

Does the establishment have its appraisal system? Do you have copy of signed appraisal forms, matrix, KRA’s, performance date? How was your performance?

Are you a member of employee’s/trade unions?

Has the establishment issued/supplied, offer letter, appointment letter, salary slips of all months, PF number and a/c slips of all years, ESIC card, correct FnF statement, Form 16 as per correct FnF statement, acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC……………?

 

You may revert to relevant points.

Name of company etc is not required so don’t post names etc .

 
Reply   
 


FIN

 

The notice period/pay/rate of notice pay is part of service conditions that are governed by applicable enactments; Act/Rules/statute/instrument of law……….and in case of covered employees/establishments the T&C inserted by employer in any private agreement drafted by employer and signed with employee that is violative of applicable enactments shall be void.

 

The HR personnel has passed the acceptance of notice of resignation and has stated that the FnF shall be processed in accordance with some agreement.

The notice of resignation and resignation is acceptance from which date?

Since you have affirmed to serve notice period the notice pay must not be deducted.

Has HR personnel communicated in writing to supply FnF payout within next 7 days?

Has correct FnF statement been supplied?

You have quoted from appointment letter and not agreement.

Have you signed any agreement in addition to appointment letter?

Probably the HR personnel means Appointment letter by said agreement.

 For a moment assuming that HR personnel means Appointment letter by said agreement, then the establishment is pay wages/allowances /payouts, atleast till ……………date of acceptance/LWD/ date of  resignation -if notice of resignation is accepted with immediate effect…………

The FnF statement shall have computation of salary/applicable statutory bonus/any other bonus as per agreement-rules-policies/leave encashment/reimbursements/incentives as applicable/Gratuity etc etc

The date of payment of salary is fixed by various enactments and also mentioned in internal rules/policies/precedence’s of company.

The purpose of notice period is to enable the employer to arrange for smooth exit and to process FnF settlement.

The FnF wages/payouts should be paid on LWD, within say next 3 days (7days as posted by you and/or as per internal rules of company),  max. usual pay day.

Employee can claim interest on delayed payment of wages..

 
Reply   
 
FIN

The notice period of 2 months may not be necessarily applicable in your case even if inserted in appointment letter/agreement. The act of HR personnel and hence employer may amount to termination/retrenchment as per applicable provisions…

The ID Act does not lay down any notice period for employee but lays down for employer in case of retrenchment.

The Shops & Estbs Act lay down, notice period………….. in many states for employer and not for employee as per length of service, …………… in many states for employer and for employee as per length of service………..and describes notice pay in lieu of notice period and def. of wages (pay) for that..

IT/ITeS/BPO/KPO/Call centers etc are covered by Shops & Estbs Act..Standing Orders, ID Act..{ GO thru state govt notifications that covers IT employees by Standing Orders…and/or thru provisions of Payment of Wages Act ( and even by Min. Wages Act) e.g; Kerala}

The standing orders; Model……….. lays down NIL notice period for employee that is not confirmed/under probation period……..and max. 30days for employee whose service is confirmed..

The standing orders are certified on lines of Model Standing Orders……

There are many threads on similar query at LCI that you can search by using SEARCH option e.g;

Article under my profile;

Employee is Entitled to Interest if Payment of Salary is Delayed!

Employee can file complaint against Termination Also at City Where Management decided to Terminate!

Denial of salary on the ground that the Employees did not open account with Company's preferred Bank is illegal!

No Income Tax on Notice Pay of Employee!

Even a supervisor and irrespective of the salary is a workman!

Prospects of relief from civil courts to Employees that are not covered as 'Workman' and by umbrella of Labor Laws!

Apex Court: No time limit for referring labor disputes to Labor Court, Tribunal !

Employment of an employee cannot be terminated without inquiry!

 

You may pick up relevant points and become properly informed..

Approach in person alongwith elders of your family, competent and experienced well wishers, seasoned PIP,  the experienced seasoned Employee’s/Trade union leaders, a very able senior LOCAL counsel of unshakable repute and integrity specializing in Labor/Service matters and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..and share inputs /show the documents/evidence for a considered opinion..

At each location three are some counsels that specialize in such matters and they are well known.

Check for such counsels at LOCAL Labor court/CGIT, CAT, School-Educational Tribunal, civil courts, HC, SC……

 
Reply   
 

Hi Kumar Doab,

I appreciate your reply. Thank you.

My resignation scenario was as follows:

1. My joining date was 20th June, 2018.

2. I got the payment of June with salary slip i.e, 10 days wages.

3. I completed full month working of July and put resignation through an registered email id which was written in my resume and appointment letter. I also asked employer through that email that if there is any notice period applicable  for the same. 

4. Employer accepted my resignation by saying "they will act as per my appointment letter" in a reply of my mail. but did not said about any notice period to server nor about final settlement. 

5. After that Day, I visited Employer personally in his office asking for final settlement and that time he verbally said wihtin 7 days I will get a reply. The same has been recorded in my phone while talking. Because he his not replying my mail properly. After our meeting, I emailed our discussion by mail. Still he is not responding. 

6. Now I am afraid that what kind of game he will play to block my hard earned money for the whole one month. 

 

Basic Information

What is this establishment; Govt, private, Commercial, Industrial?  - PRIVATE

What is its nature of business say; IT, ITeS? IT SECTOR

How many persons are employed in it?  30 -50

What is your designation and nature of duties?  Jr. Software Engineer

How many persons report to you? NONE

Do you have any power to sanction leave/increment/appoint/terminate/appraise etc etc ?  NO

You are in which state? - MUMBAI

Since how many months you are working?  working 1 month 10 days

Are you under probation period or your service is confirmed in writing? Under Probation of 6 months confirmed in writing

What is notice period as per appointment letter/offer letter and what was notice period tendered by you? AS PER APPOINTMENT LETTER IT SAYS 2 MONTHS NOTICE PERIOD BUT ASK EMPLOYER ABOUT NOTICE PERIOD BUT NOT REPLIED AND DIRECTLY ACCEPTED MY RESIGNATION THROUGH AN EMAIL.




 

 

 

 

 
Reply   
 

Today my Employer replied my mail regarding the subject.

QUOTE
As per appointment letter policy, you are supposed to serve 2months notice period or pay equivalent salary of two months if you leave without notice period...
 
But keeping in mind your financial condition, we have decided that not to ask for two months salary from you and relieve you inspite without notice period you left.
 
Regarding your last month salary, although you are not entitle for same due to unprofessional act, still on humanity ground we will pay you but we will pay after 45 days from now.
 
Suggest you not to force us to reply and content reply and instead close this here.
UNQUOTE
 
Is this right way of approaching final settlement?
 
 
Reply   
 

Employers reply 

As per appointment letter policy, you are supposed to serve 2months notice period or pay equivalent salary of two months if you leave without notice period...
 
But keeping in mind your financial condition, we have decided that not to ask for two months salary from you and relieve you inspite without notice period you left.
 
Regarding your last month salary, although you are not entitle for same due to unprofessional act, still on humanity ground we will pay you but we will pay after 45 days from now.
 
Suggest you not to force us to reply and content reply and instead close this here.
 
My reply for the above email
 
I thank you for your mail.
 
I am already upset. Please do not try to play around with me. It is not huge amount nor I am doing illegal things. I am asking my wage only.
 
Firstly Sir, you have accepted my resignation without notice period. I even asked you about to serve notice period and you did not replied and directly accepted my resignation. If an employer accepts employee's resignation then employer have to settle employee's final settlement within 7 days. This you have fully aware.
 
I did not did any unprofessional act. I have notified you directly through an email and you have accepted the same. 
 
If you had a problem with my resignation, then you should not have accepted and you should have told me to serve the notice period then I would have served the notice period as well. Why you did not told me to serve notice period and directly accepted my resignation?  Also you did not red the appointment letter fully sir. there is one second point stating that "The management however, reserves the right to ask you to serve during the notice period or to relieve you immediately on submitting the resignation, without any notice payment". I am not asking any notice payment. I am asking only my wage what I served for before resignation. 
 
I think you are now taking this issue in wrong direction sir. 
 
I would again request you to settle my accounts on Monday so that we close this subject and move on to the future rather than creating issues.
 
Please let me know your convenient time to meet you on Monday in order to settle my accounts.
 
He replied again
 
I stand by what I stated in my earlier mail and by no way you will rcv any mail on this regards further.
 
By or before 25th Sept , you will get your payment on your bank account and no need to visit or doing any follow up further.

 

What should I do now? I afraid that he is taking time and will not settle my account.

 
Reply   
 
FIN

IT/ITeS/BPO/KPO/Call centers ………are covered by Shops & Establishments Act of the state.

GO thru;

Bombay Shops & Establishments Act;2, 38, 38-B, 66

For service period less than 3 months notice period applicable for employer is ; NIL. The Act does not lay down notice period for employee. By equitable discretion notice period for employee should also be NIL. Max. Notice period as per length of service is 30days..( for not less than 1Y of service).

Bombay Shops & Establishments Rules

Model Standing Orders;13, 16

Payment of Wages Act ;2,3,4, 5,7,8, 13A

THE PAYMENT OF WAGES (PROCEDURE) RULES 19371

In Maharashtra Standing Orders may apply if no. of employees is 50…and If Standing Orders are not certified then Model Standing Orders may apply , until or unless state has granted exemption to IT companies in line with LOCAL rules/policies say; IT policy of the state..

 

The enactments as mentioned in all above posts are available on website of Dept. of Labor Maharashtra.

Salary of July 18 could have been paid by 7th Aug and …

 
Reply   
 
FIN

The HR personnel has already clarified that he shall act in accordance with appointment letter/said agreement signed with you.

Apparently he is unwilling to beyond/outside the appointment letter/said agreement signed with you.

Try again or approach good offices of appointing Authority, MD and apply your skills and get relief..

Remain gentle and amiable.

There are many IT/ITeS employees unions and embraced by Trade Unions..

If you are unable to resolve on your own try to take help of elders of the family, competent and experienced well wishers, employee’s/trade union leaders, a very able LOCAL counsel as already explained..

The counsel can appraise after examining your nature of duties on record and may opine that you are covered by enactments..

Thereafter proceed as deemed fit.

Become properly informed, become skillful, and negotiate the T&C in next venture.

Close the matter preferably under expert advise of your counsel so that there is NO adverse effect on you anytime in future.

Maintain proper record.

 
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