Notice period
Sagar
(Querist) 19 May 2013
This query is : Resolved
Dear Sir
I worked in one company for one month and signed letter of appointment which mentions I have to serve three month notice period. But because of some unaviodable reason and resigned on 17th June 2010 and my employer asked verbally to get reliving on same day so i didn't went to office, for which i have no evidence.
After one recovery letter on 2nd May 2011, Now I recevied legal notice to pay the notice period of Rs. 55000 approx along with 3years interest at 18%. Otherwise company will initiate legal or criminal proceedings. What should I do in this case.
I consult a lawyer who told me that he will prepare reply and mention that I was medically unfit to do the job under industrial dispute act.Their will be no criminal proceedings. Is this okay, please suggest asap.
Kumar Doab
(Expert) 19 May 2013
Your lawyer has confirmed that you can raise ID, thus confirmed that you are covered under the category of a workman.
You were appointed at which location?
The HO/Redg. office of the company is in which state?
You were appointed as Trainee/probationer/or direct as a confirmed employee?
What is this company a Commercial or Industrial Establishment?
The notice period is part of service conditions. The service conditions are regulated by standing orders of the company, appointment letter, Statue………….
The service conditions stated in standing orders of the company can not be negated to employee in appointment letter. Implying if notice period mentioned in standing orders is say……..7 days it can not be 3 months in appointment letter.
If standing orders are applicable and company does not have certified standing orders, Model Standing Orders shall apply.
Notice period for probationer as per Model Standing orders is NIL.
Notice period is also mentioned in Shops and Establishments Act of the state.
In this enactment of almost all states notice period is max. 1 month.
So much so that in Shops and establishments Act of Delhi: Notice for period of service less than 3 months is NIL.
Standing orders, Shops and establishments Act must be displayed near entrance/on notice board. The certified copy of the standing orders should be supplied to employee against a nominal charge sat rs.10/---
Employee or Anyone can obtain\in standing orders from certifying authority, which may be DLC in o/o/ Labor commissioner at the location of redg. office of the company by paying a fixed fee.
Industrial Employment Standing Orders Act, Model Standing Orders, Shops and establishments Act must be available at the Dept. of Labor website of the state.
You may show all docs to your lawyer and your lawyer may submit a fitting reply to the notice.
ajay sethi
(Expert) 19 May 2013
answer the queries raised by kumar
Sagar
(Querist) 19 May 2013
Dear Sir
my job location was gurgaon and regd office of company is at delhi. I was on probabtion period and served company for less than a month.
company is a kpo consulting company.
Sagar
(Querist) 19 May 2013
Dear Sir
my job location was gurgaon and regd office of company is at delhi. I was on probabtion period and served company for less than a month.
company is a kpo consulting company.
Guest
(Expert) 19 May 2013
When you have signed an appointment letter with a written condition of three month's notice period, both the company as well as you were bound to adhere to the condition.
So, when your employer asked you verbally to get relieved immediately, you could well have asked him to give a notice of three months or salary in lieu of that period if he wanted you to get relieved that day. Otherwise, you could also have served him with three months notice for your resignation.
I don't think your lawyer's advice is correct, as this can well be treated as an after-thought after three long years when you have not given any notice by quoting any reason.
ajay sethi
(Expert) 19 May 2013
agree with dhingraji . terms of contract are sacrosant
Sagar
(Querist) 19 May 2013
dear kumar doab sir please respond
Sagar
(Querist) 19 May 2013
please respond now what can i do
Guest
(Expert) 19 May 2013
In reply to notice, simply write that you had to leave the company in compliance with the direction of the employer and ask them to pay three months salary along with interest @18% for the employer having not served you with the notice against the terms of appointment, but made you leave the same day of his direction. Chances of their filing a suit for recovery are 50:50.
Kumar Doab
(Expert) 19 May 2013
Mr. Dhingra has already given you the solution.
You should approach a labor consultant/service lawyer of such expertise and let the reply to legal notice be drafted by your lawyer.
Mr. Dhingra is from Delhi.
Employee should always consult before acting on his own. The fresher’s, young, ill informed employees get trapped.
You have not mentioned the period of probation is mentioned in appointment letter issued to your not? You may show your appointment letter to your lawyer.
The company must have registered under Delhi Shops and establishments Act.
30. Notice of Dismissal.—
(1) No employer shall dispense with the services of an employee
who has been in his continuous employment for not less than three months, without giving such person at least one month’s notice in writing or wages in lieu of such notice:
(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.
{Implying for period less than 3 months notice period is NIL.}
COMMENTS
(a) Applicability of section 30
(b) Notice or wages in lieu thereof under section 30—When to be given?
A plain reading of section 30 of the Act would make it clear that whereas the notice of one month under sub-section (1) is for the benefit of the employee, the notice under sub- section (2) is for the benefit of the employer.
{This illustration given in the Act may provide you relief as 3 months notice period is obviously for the benefit of employer.}
Similarly, where the notice is given under sub-section (2), it is open to the employer to dispense with the services of the employee even before the expiry of the period of one month. It is not necessary for the employer to wait for the full period of one month before dispensing with services,
{Thus in your case the employer seem to have chosen to relieve you immediately. In such a case the demand for notice pay should not have been made.}
Raj Kumar Makkad
(Expert) 20 May 2013
No more to add in the detailed replies of the experts.
Sagar
(Querist) 21 May 2013
Thanks all...
