What is your establishment: a Govt. company/PSU/Industrial Establishment/ commercial establishment……?
You are in which state?
In which state is redg. office /HO of the company?
The company must have displayed its registration certificate near entrance/on notice board.
You have posted that:
--“I read my appt. letter just now, and as per the policy, the org can also allow me to waiver or realx my notice period, but they arent doing so.”
“Do I have any rights as per teh employment laws in India?”
The waiver of notice period/pay is the right enjoyed by your employer. The employee can not claim it as a matter of right.
--“I dont want to pay the shortfall.What can be the repurcussions of this?’
Your liability is Maximum the payment of notice pay by you. Your company has also indicated it in its communications (verbal/written, as posted by you) to you.
--“I report to the General manager- HR hence I do not have a higher authority to go to except for the CEO.”
Before you escalate to CEO you may check all the communications exchanged so far, verbal or written, between you and the company, appointment letter, standing orders/HR policy/service rules/exit policy/severance policy/leave rules of the company and structure and draft your representation to CEO (under acknowledgment) in such a manner that your case display some merits and drills sense into the heads and you get some relief.
It shall be appropriate to show all documents to a competent and experienced labor consultant/service lawyer, give inputs in person, spend some quality time with your lawyer, understand the merits and proceed further once you are convinced on merits in your case. Let your lawyers opinion be final on all points discussed in this thread.
Let your lawyer remove and cover defects in your communications and exploit the defects and loopholes on the side of company.
--“I had also requested if I can come in late or take leave but I recieved a warning for my absentiem. due to this, I have been forced to resign”
Did you explain the reason in resignation submitted by you, concluding that you have been asked to resign or face (stigmatic) order of termination? Forced resignation may be termed deemed termination.
Has the company accepted your resignation with a copy/information to you (verbal/written)?
Did you apply for sick leave in writing (attaching copy of the medical certificate issued by the specialist doctor) and did the company decline to approve sick leave in writing?
Do you have the copy of leave policy of the company? Has the company described leave allowed to probationer in appointment letter?
Usually declinature to sanction sick leave supported by medical certificate is viewed as bad.
You could have requested to sanction sick leave as LWP. You could have requested that company may refer you to its specialist doctor.
Your company might have included in appointment letter that employment can be terminated due to prolonged absence including due to sickness.
---Designation alone does not decide employee is a workman or not. Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman. Labor laws applicable to workman limit the choice to employer.
In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Standing Orders Act, ……. If the employee falls within the definition which has been provided under these enactments, then the employee would be protected up to that extent.
Any policy in the larger interest and beneficial to both employer and the employee has the sanction of law as otherwise it will be easily termed as arbitrary.
If the IESO Act is applicable to your company and company has its certified standing orders extended to your designation, you may refer to these. If standing orders are not certified, model standing orders shall apply.
Model Standing Orders:
9. Leave.--………………………. shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier……………………….. If the leave is refused or postponed, the fact of such refusal or post postponement and the reasons there for shall be recorded in writing………… and if the worker so desires, a copy of the entry in the register shall be supplied to him.
13. Termination of employment.:
(2) No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated
(This should imply no notice period/pay is applicable during probation)
14. Disciplinary action for misconduct:
(3) (e) habitual absence without leave or absence without leave for more than 10 days,
{You have posted that “but I recieved a warning for my absentiem.”. If the company issued notice/warning for absenteeism (due to sickness) which is misconduct why it resorted to extract resignation? If at all there was absenteeism it was due to sickness, duly supported by medical certificate.}
15. Complaints.--, 17. Liability of 17[employer]., 18. Exhibition of standing orders.--
--Refer to Shops and Establishments Act as applicable to your state.
e.g: The Delhi Shops and Establishments Act,
2. DEFINITIONS.
(7) “employee” means a person wholly or principally employed, whether directly or otherwise, and whether for wages (payable on permanent, periodical, contract, piece-rate or commission basis) or other consideration, about the business of an establishment and includes an apprentice…………
16. Leave means leave as provided for under this Act;
22. Leave.—(1) Every person employed in an establishment shall be entitled—
(b) in every year, to sickness or casual leave for a total period of not less than twelve days:
30. Notice of Dismissal:
(2) No employee who has put in three months’ continuous service shall terminate his employment unless he has given to his employer a notice of at least one month, in writing.
(This may imply that for service less than 3 months no notice period would apply.)
COMMENTS
(a) Applicability of section 30
The protection of the provisions of the section is available to all persons who fall within the definition of the term “employee” as given in section 2(7) of the Act and who have put in three months’ continuous services. In the absence of any standing orders or any contract between the employer and the contesting respondent containing any particular terms or conditions, the conditions of service of the employee relating to his employment in an establishment at Delhi are covered by section 30(1) of Delhi Shops and Establishments Act, 1954
The SE Act does not indiscriminate between workman and non workman and is applicable to all employees.
Usually companies include the probationers also in the Group Mediclaim policy and deduct the premium from salary or include the premium in CTC of the employee.
If you are eligible for such policy you could have informed sickness to Insurance company/ Mediclaim helpdesk and submitted the bills within ………days ( as described in policy, say 7 days) after the treatment was over, for reimbursement of medical expenses, as allowed in the policy.
If you were included in any mediclaim policy your membership shall be terminated on the day your resignation is accepted. So hurry to submit the bills and buy a individual mediclaim policy and avoid break in insurance.
In case the CEO does not provide any relief you have no other option than to agitate in a forum where you are eligible to agitate.
The communications which company has sent to you on absenteeism demand to tender notice pay or face legal action must have been inserted in your personnel file, and shall become part of feedback on your tenure and reference check in future.
You should ensure that your personnel record is cleansed by the company.
Or
You may complete the negotiation with company and obtain concurrence that it shall withdraw its communications on absenteeism/misconduct and remove these and such notings from your personnel file, allow you to examine your personnel file, supply you the acceptance/declinature of leave application, resignation, service certificate, relieving letter (with good comments), attested copies of PF transfer forms, FNF statement showing recovery of notice pay, salary for days you have worked, PF number and that it shall not post adverse comments against you during reference check.
You may proceed as deemed fit at your end.
Valuable advice of learned experts/members is sought.
