Whether notice period has to be given during probation

The conditions accepted in the offer letter has to be followed, the rules are statutory but the conditions of agreement implied in the offer letter will prevail and operate.

The purpose of this post is to gain from the discussion in this interesting thread.

The purpose is not to argue or debate.

The agreement may not prevail upon statue.

Standing Orders; these are statutorily imposed conditions of service.

When the terms and conditions of service in the appointment letter are inconsistent with Standing Orders, the latter will prevail.

It is felt that:

---- Neither Agreement nor and appointment letter can override the standing orders.

----Standing orders and rules that are statutory and have statutory force.

-----Once the standing orders framed by employer are certified they have the force of law. As against them conditions of service contained in appointment letter or contract of employment do not have statutory force. 

Once there is a conflict between the provision of law or an instrument having force of law and the contract entered into between the parties, the former will prevail.

>> Supreme Court of

India

Western India Match Company Ltd vs Workmen

HELD :

(2) Since, according to the Standing Order, a workman s all not be kept on probation for more than 2 months, the letter of appointment (or special agreement) is inconsistent with the Standing Order to the extent of the additional 4 months' probation. [437E-G]

(3) The inconsistent part of the agreement is ineffective and unenforceable. [439F]

>> Full bench of;

Allahabad High Court

Srivastava (S.P.) And Anr. vs Banaras Electric Light And Power

“The basic and general conditions contained in standing orders can not be bye passed by adopting the device of special agreements………………………………The intention of a legislature in providing for statutory standing orders and laying down the only mode in which they can be modified and attached penal consequences to violation of standing orders, was necessary to prohibit terms of contract which contravene a standing order which would be struck by section 23 of the Contract Act, also.”

>>

Allahabad High Court

R.P. Garg Son Of Sri B.P. Garg vs Indian Oil Corporation Ltd. ... on 1 December, 2006

“These Model Standing Orders being statutory in nature supersedes the terms and conditions contained in the letter of the appointment. ‘

Western Indian Match Company Ltd. v. Workman . In this case the

Apex Court held that where the terms of the agreement were inconsistent with the Standing Order, the terms of employment as per the Standing Order would prevail over the express terms of the contract of service. In other words, the terms and conditions of employment inconsistence with the Standing Orders would not survive. Thus, from the above it is evident that the Standing Orders, which have the statutory force would prevail over the terms and conditions of the letter of appointment.

>> It is requested that the citations and judgments confirming that conditions in agreement/offer letter/appointment letter/contract of employment will prevail upon standing orders may kindly be shared. This shall help all.

The offer letter is issued after selection of the candidate in the interview and it is a token of offer of appointment being made to the selected candidate. Upon joining the establishment the detailed appointment letter citing the T&C, service conditions is issued to the candidate that has accepted the offer and has joined. The appointment letter shall override the offer letter. After appointment the establishment may introduce special agreements and such agreements may state that the agreement shall supersede the appointment letter or it shall prevail in addition to agreement.

>> The Minimum Notice and Terms of Employment Acts quoted by the querist is some Irish Act and it shall not be applicable in India.

>>  The IT/ITeS/BPO companies are covered by various enactments e.g; Shops and Commercial Establishments Act, Payment of Wages Act, and if no exemption is granted by the State Government from the provisions of Industrial Employment Standing Orders Act, the standing orders may apply. If standing orders are not certified Mode Standing Orders shall apply.

For the application of standing orders an establishment may not necessarily be factory alone.

The querist may provide some basic information to his labor consultant/service lawyer e.g;

The querist and redg. office/HO of the company is in which state?

What is the designation and nature of the duties of the querist?

How many employees are employed in the company?

And his lawyer may opine that notice period during period of probation id NIL and the employee shall fall within the category of ‘Workman’ as in ID Act and ‘Employee’ as in Shops and Commercial Establishments Act.

>> In the absence of coverage as ‘Workman’ and ‘Employee’ the notice period may be as per job advertisement, offer letter, appointment letter, contract of employment etc

Valuable advice of learned experts/members is sought.

Due to some technical glitch the judgment:

Allahabad High Court

R.P. Garg Son Of Sri B.P. Garg vs Indian Oil Corporation Ltd. ... on 1 December, 2006

Attached in previous post is not downloaded. It is attached again and can also be accessed at:

https://indiankanoon.org/doc/744015/?type=print

>> The reason mentioned by the querist in his post for separation from employer are valid reasons to initiate termination by employee and to term the employer as unworthy of being employed with too.

>> Two month’s notice period in probation period can be termed unreasonable.

During probation period employee does not have any lien on employment therefore ideally notice period during probation period should be NIL.

Model Standing Orders lays down notice period in case of a probationer as NIL. The employer is bound to ensure faithful observance of the standing orders.

13. Termination of employment: .--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen and two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in lieu of notice.

(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…………

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.

The notice period after confirmation is 1 month only and not three months.

>> The Shops and Commercial Establishments Act of the state may also put notice period for 2 months of service as NIL.

e.g: Delhi Shops and Commercial Establishments Act……….

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.

Some state as exception  e.g; Karnataka ( All states did not do so) has ended the blanket exemption granted to IT companies from the provisions of Industrial Employment Standing Orders Act and all companies were directed to submit their draft standing orders by Dec12 for certification within Mar13, and till then Model Standing Orders shall apply.

The state of Kerala has brought all commercial establishments under the purview of Standing Orders.

The state of Kerala is one state that has brought IT companies under the Min. Wages too.

>> The querist may approach his lawyer with confidence.

Hi Sir,

I have a query regarding an advise that I am seeking on Serving notice period or equivalent pay during Probation period.

I have been employed with my organisation for less than three months.

They only gave me a offer letter however no appointment letter as yet.  In the offer letter email, there was an attachment which mentions the following:

"As per the company policy you shall be on probation period for nine months. After completion of the probation period you would be eligible for the permanent employment in the company. During your Employment tenure if you wish to terminate from the services of the company, that would require a Notice Period of two months or Equivalent Salary.

From what I understand the, notice period or equivalent pay would only be applicable after I become the permanent employee. 

However I am yet to complete the probation period.

Last few days back there was a situation at my place due to which I could not make it to work since my mother was severely ill and I did inform at my work place however the gap lasted almost two weeks.  During that period, the organisation blocked my salary and while my mother got well and I got back to them, now the HR tells me that I had been absconding while twice there had been communication and I did inform why I was not turning up to work.

I want you to advise me on the situation and if I can leave the job stating personal grounds and ask them for a retrieval of my salary for the month of January, 2014.

Pls advise since the same is very urgent and leading to lot of unrest.

Regards,

Vineet

98103 76639 

Employee should inform about the leave.

Leave application/intimation of leave should be submitted as per leave policy.

You have certainly erred by not informing for 2 weeks.

The language of offer letter s posted by you does not explicitly mention notice period during period of probation. It should or the T&C can be termed vague.

 It just mentions “During your Employment tenure………………………..”

The probation period is also period/tenure of employment.

One interpretation could be that it includes period of probation also.

Has the company issued any written communication about absence/abscondment and thereafter Termination order, FNF statement, service certificate, salary slip of all months, PF number, PF a/c slip, ESIC number/card…………….relieving letter etc………

Has the company claimed any amounts on Notice Period recovery from you in FNF statement?

If yes then company has applied notice period and notice pay in probation period also.

If NO then you may demand these documents.

The applicability of notice period has been discussed above.

If standing orders are applicable (certified/model) to the establishment and you then you may rely upon these. If as per standing orders notice period is NIL/not applicable then company shall not succeed in demanding and adjusting notice period and notice pay and shall have to pay salary/earned wages of the period worked. If employer does not pay you can approach Inspector under Payment of Wages Act and (Name of your state) Shops and Commercial Establishment Act, o/o Labor Commissioner………

The earned wages for the period worked has to be computed in FNF statement and FNF statement should be supplied to the employee, for verification and acceptance. The salary slip of all months of employment should be supplied to employee and both employer and employee should sign it.

You have posted that “while twice there had been communication and I did inform why I was not turning up to work.”

Therefore you may submit leave application and attach sickness record of your mother claim that on dated……………………………and dated……………………..during verbal conversation with Mr/Ms………..designation……………..from phone number…………………..and your hone number………………./or in writing you had informed the reason that is……………………………….and hence you have not remained out of touch, and try to get your leave regularized. If HR is not accepting then you may write to good offices of appointing authority, MD and make a request to regularize/accept your leave application. You may highlight the good work done by you and point out that you are not habitual absenter.

You may go thru:

Model Standing Orders:

9.            Leave

10.  Casual leave: 10.          Casual leave.--A workman may be granted casual leave of absence with or without pay not exceeding 10 days in the aggregate in a calendar year. Such leave shall not be for more than three days at a time except in case of sickness. Such leave is intended to meet special circumstances which cannot be foreseen. Ordinarily, the previous permission of the head of the department in the establishment shall be obtained before such leave is taken, but when this is not possible, the head of the department shall, as soon as may be practicable, be informed in writing of the absence from and of the probable duration of such absence.

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 ,but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in Paragraph 14.

14.  Disciplinary action for misconduct: .--(1) A workman may be fined up to two per cent of his wages in a month for the following acts and omissions, namely:

Note.--Specify the acts and omissions which the employer may notify with the previous approval of the ......................Government or of the prescribed authority in pursuance of section 8 of the Payment of Wages Act, 1936.

{{{ Payment of Wages Act:

 8. Fines.

9. Deductions for absence from duty.

13A. Maintenance of registers and records………..}}}

(2)   A workman may be suspended for a period not exceeding four days at a time, or dismissed without notice or any compensation in lieu of notice, if he is found to be guilty of misconduct.

        (3)   The following acts and omissions shall be treated as misconduct.

(e)   habitual absence without leave or absence without leave for more than 10 days,

Still if you are unable to resolve the matter on your own you may approach your lawyer.

Thanks for the details.

Please help clarify as to what do the following terms exactly mean and are applicable in the scenario of separation without notice period.  Besides do they hold good even during the probation period.

"As per the company policy you shall be on probation period for nine months. After completion of the probation period you would be eligible for the permanent employment in the company. During your Employment tenure if you wish to terminate from the services of the company, that would require a Notice Period of two months or Equivalent Salary."

Besides would also like you to clarify that though I was given an offer letter (and no letter of appointment), however the email including letter of offer had an annexure (attachment) which stated the above terms, however there has been no appointment letter which has been signed by me and a copy of which given to me.

In such a scenario would the appointment and it's terms still hold true.

Please reply at the same at the earliest since this will help a great deal.

The offer letter by email was supplied to you. Probably you had sent acceptance of it too.

Had appointment letter been issued and accepted by you it could have superseded the offer letter.

The portion from the offer letter posted by you in your last post was also posted by you in your first post and it has already been responded.

If you are unable to resolve the matter on your own, you may entrust the matter to your lawyer. 

Thanks for the response.

I just want to reiterate that as per the stated terms in the offer letter, as you suggested them to be vague, do they now go void and I cannot be forced to serve notice period or equivalent pay of two months."

"As per the company policy you shall be on probation period for nine months. After completion of the probation period you would be eligible for the permanent employment in the company. During your Employment tenure if you wish to terminate from the services of the company, that would require a Notice Period of two months or Equivalent Salary."

My employer's have only verbally referenced me on the notice period while my total work duration has not been even three months.  Talks are on with the employer's, however for now things don't seem to be going anywhere.  If things are not closed on a satisfactory note, please suggest me an action (who to write and complaint on this front) or a recommended lawyer to take it ahead.

Thanks for the attention to the matter once again.