Issue pertaining to probation and notice period
rohit gupta
(Querist) 02 April 2012
This query is : Resolved
Hi
Ive been employed with one of the media companies in Delhi and was working there for 8 months.
I had resigned for a better opportunity with a notice period of 20 days. During my tenure of 8 months I was not confirmed as an permanent employee, in other words, was still in my probabtion period.
Mentioned below are the exact terms as mentioned in my appointment letter with ref. to "Probation and Confirmation" and "Seperation" . Request you to please go through this
Probation and Confirmation
You shall be on probation for a period of six months or more, at the discretion of the management with effect from the date of joining. During the period of probation your services can be terminated by the Company without any notice and without assigning any reason whatsoever. You shall be deemed to be continuing on probation unless you are confirmed in writing, after satisfactory completion of the probation period.
Seperation
The employment can be terminated by either side by giving three months notice or three months basic salary in lieu of notice. Such notice will not be necessary if your services are dispensed with for commiting acts of misconduct.
As you can notice here, there is no clear indication where the company is stating that a three months notice has to be served even before probation.
In this context they have cut my three months basic salary for not serving 3 months notice. Where as i was of the view that I can resign by giving at least a months notice (from an ethical stand point) because I was still in probabtion.
KIndly suggest if there is a law which states that either of the parties can terminate employments without giving notice before probabtion. And whether my employer has created such an appointment letter to create a grey area in relation to this issue. and can i take legal action against them.
Adv. Chandrasekhar
(Expert) 02 April 2012
your employer's interpretation is wrong. During the probationary period, the employer can terminate the services without giving notice or notice pay, similarly employ also can leave the job without surrendering any notice pay. Section 23 of the contract Act will come to your aid.
rohit gupta
(Querist) 03 April 2012
Hi
Thanks for the revert.
Please confirm if this is the clause that you are talking about. And also request you to please clarify how this would be relevant in my case.
Section 23 in The Indian Contract Act, 1872
23. What considerations and objects are lawful and what not.- The consideration or object of an agreement is lawful, unless- it is forbidden by law 1[ ; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another or; the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
Adv. Chandrasekhar
(Expert) 03 April 2012
As the employer holding the right to terminate the services of an employee in the probationary period without serving notice and without assigning any reason and at the same time insisting such employee to resign from the services with 3 months advance notice. The consideration is not balanced one and oppressive in nature in respect of employee. So it is immoral and against public policy.
rohit gupta
(Querist) 04 April 2012
Hi Chandu
Thanks for your revert.
The terms of employment how so ever oppressive and immoral, are mentioned in the appointment letter and I had signed the appointment letter assuming complete understanding of those terms.
It is another matter that I was given the offer letter first and the appointment letter comes only a week later in your employment, and it is not feasible to quit once you're in the job just one week in.
My signatures and attestation on those documents are a proof that I had gone through those terms clearly. Will the responsibility and its consequences not shift on my side just because I had signed them? Will it not be against my favour?
