Payment of notice pay
Dhaval Parikh
(Querist) 21 December 2016
This query is : Resolved
Dear Experts,
I have a query relating to recovery of notice pay by the employer.
In my previous company I before leaving the job I served short notice period. So in F&F settlement, some amount became recoverable from me.
Now the employer has sent notice to me indicating payment of notice pay.
Even if this clause is there in offer letter, is it valid by employer to sent this notice? What is the consequences if I dont pay the amount?
Kindly reply, its urgent.
Rajendra K Goyal
(Expert) 21 December 2016
Reply the notice denying any liability on the basis of offer letter and appointment letter given to you if these contain such clauses.
Kumar Doab
(Expert) 21 December 2016
Notice period/pay is part of service conditions and governed by various enactments applicable to establishment/ employer, employee.
Has the employer supplied acknowledgment/acceptance of notice of resignation/final resignation, correct FnF statement showing computation of earned wages/bonus/leave encashment/OT/reimbursements/incentive ( Hope you have checked and found it correct), Form16 as per correct FnF statement, NOC/NDC, acknowledgment of handover of charge, service certificate, relieving letter ( with good comments), salary slips of all months, PFa/c slips of all years,ESIC card etc etc as applicable in your case?
Kumar Doab
(Expert) 21 December 2016
Whats is this establishment; Commercial/Industrial?
Whats is its line of business?
Whats is your designation and nature of duties?
Foe how many months you have worked?
How many persons are employed in it?
You were located in which state?
Does standing orders apply ( Model/certified)?
What is the notice period applicable to you as per offer letter/appointment letter, and tendered by you?
Dhaval Parikh
(Querist) 22 December 2016
Dear Kumar Doab,
Thanks for your reply.
It is listed pharma company located in Mumbai. Actually I have worked just for 2-3 months & I had to leave the company because I got sick & doctor advised me to take complete rest for 3 months. The company was not ok with this & they told me to put resignation, so I resigned from the company by sending mail.
Thanks & Regards
Dhaval Parikh
(Querist) 22 December 2016
Another important point is I left the job in my probation period & I have got the F&F statement but not got the relieving letter from the company
Kumar Doab
(Expert) 22 December 2016
Pls reply point wise to leftover points that you have not replied.
If you are not interested to reply then: you may show all employment related documents to a very able counsel specializing in Labor/service matters.
Kumar Doab
(Expert) 22 December 2016
You may also confirm if; you submitted sick leave application with bed rest advised by doctor under proper acknowledgment and if company declined to sanction in writing?
And if company asked you to resign in writing/on record?
And if you narrated, in writing, the sickness and declinature of sick leave and demand of resignation in notice of resignation,final resignation or in any written communication before and after resigning.
You may also demand to supply all documents mentioned in my previous post and company should supply (except relieving letter, until FnF/exit formalities are satisfied and/or notice pay is waived off).
You can also try by applying your own skills of reasoning,persuasion, persistence, negotiation or your employee's/trade union leaders or counsels can handle it.
Rajendra K Goyal
(Expert) 22 December 2016
As advised above reply and deny any liability if you do not want to pay. Discuss with local lawyer.
Meanwhile reply the questions from expert Kumar Doab, to have guidance further.
H.M.Patnaik
(Expert) 22 December 2016
Pl. reply to the points raised by Experts above.
Dhaval Parikh
(Querist) 24 December 2016
Dear Kumar,
Kindly find below point wise reply,
1. The employer has given me salary slips but have not issued the relieving letter separately however in the notice of recovery they mentioned that I was relived.
2. It was commercial establishment.
3. The company is into the pharma business. It is listed company.
4. Designation is "Research Associate-Analytical Development Lab" & major duties includes testing of medicinal chemicals & its composition. Employment grade was E2.
5. I have worked for 2.5 months there. (Probation period was of 3 months)
6. Exactly not aware about no. of employees, but atleast 500 are there.
7. It was located in Maharashtra.
8. Notice period was of one month & I served around 7 days.
I have not submitted any sick leave application but I sent a mail narrating about my sickness & inability to come to office. But co. didnt replied on this mail, they asked me on phone to put my resignation & then I sent resignation mail.
Thanks & Regards
Kumar Doab
(Expert) 24 December 2016
Probably the email was sent from personal email id and you have it.
You were not provided with sick leave application format, subsequent to our sick leave application/intimation by email.
You were not informed leave is approved or declined NOR any medical certificate asked for.
Thus sick leave can be deemed to be accepted/approved.
Sick leave is usually not declined.
( Per enactment that would apply in your case; you may be entitled to sick leave:::and/or per sick leave/per leave rules or policy of establishment that apply in your case)
While on sick leave you were asked to resign, by a phone call.
YOU could have narrated in your notice of resignation/resignation with immediate effect that during sick leave you were asked to resign on dated/time..............by Mr/Ms...........by phone call from phone number............at your phone number..............OR in subsequent communications..............OR upon receipt of FnF statement.
Apply your skills here and get the matter resolved thru person that called you and asked you to resign, line managers, HR,appointing authority, HOD,MD,CEO etc etc ...............
This is possible.
Kumar Doab
(Expert) 24 December 2016
Demand of resignation can be termed 'Deemed Termination'.
Termination during sickness can be bad order.
Thus Three Perspectives are considered:
That company may have to tender notice pay, if you can establish you were terminated and coerced for resignation and forced to resign. Why should anyone other than you agree to it and have the onus on him/her! However it can be your handle, that you ca try and press to get waiver of notice pay and new FnF statement showing it and all other docs as already explained for clean reliving. Sickness is not Misconduct.
That you may establish coverage by the def; of 'Employee' as in Bombay Shops & Establishments Act and press Sec;66:::: that lays down notice period for employer as per length of service of employee, and does not lay down any notice period for employee. The notice period for employer if employee has served for < 3months as per the Act is NIL.............and by equitable discretion { that is essence of contract of employment(if you agree to it)} the notice period for employee is NIL.
That you may establish coverage by the def; of 'Workman' as in ID Act that does not lay down any notice period for employee...............
If standing orders are applicable in your case and are not certified then press Sec;13 of Model Standing Orders that lays down NO Notice Period for employee during probation period.
Kumar Doab
(Expert) 24 December 2016
As per Contract of Employment/appointment letter; What is the notice period if employer initiates Termination?
Guest
(Expert) 24 December 2016
Mr. Kumar Doab,
As usual, without knowing anything, you try to complicate issues raised by the author, while his question, "employer has sent notice to me indicating payment of notice pay" ... "Even if this clause is there in offer letter, is it valid by employer to sent this notice? What is the consequences if I dont pay the amount" was quite simple, as he wanted merely to know whether the notice was valid and whether he can deny making payment for pay for the period short of notice period.
Also, as usual, you make several posts just to show your multiple appearances on the thread.
But still after your 7 posts, he may be confused, what to do and why?
After all with your fake identity, and deceitful profile without your picture and city of your location at LCI, what a querist can expect from you, when you don't understand about service laws?
By the way, what was the logic in asking the following questions? Do you think that replies to your questions can change the service conditions about resignation or notice period pay and the recovery, if due can be stalled?
YOUR QUESTIONS:
- Whats is your designation and nature of duties?
- For how many months you have worked?
- How many persons are employed in it?
- You were located in which state?
IT WONDERS ME WHY YOU TRIED TO CONFUSE THE AUTHOR BY SUGGESTING A VERY LONG AND EXPENSIVE ROUTE?
fOR EXAMPLE, YOU HAVE SUGGESTED, "That company may have to tender notice pay, if you can establish you were terminated and coerced for resignation and forced to resign. Why should anyone other than you agree to it and have the onus on him/her! However it can be your handle, that you ca try and press to get waiver of notice pay and new FnF statement showing it and all other docs as already explained for clean reliving." BY THE WAY, DO YOU THINK HE WOULD GET CLEAN RELIEVING BY DOING SO AND ALSO? WOULD NOT BY SUCH AN ACTION HE WOULD MAR HIS FUTURE CAREER ALSO?
Mr. Doab, to instill the confidence among the querists, I request you to please modify your profile with your real ID, photo and place of your location, so that people should know, who is advising them.
Anyway, rest depends upon your own wisdom.
Guest
(Expert) 24 December 2016
Dear Dhaval Parikh,
If your service conditions provide for payment for the period short of notice period, you become liable to pay to your last employer. The notice of the company is valid in that condition.
However, the notice period pay can also be waived of at the discretion of the employer, if they consider your request.
About recovery, if the employer decides so, that can be made through court of law by filing a summary suit against you. However, for the time being, you may reply the notice in a very humble manner and by appropriately justifying your stand request the employer to waive of the recovery and wait for the response on your request.
Kumar Doab
(Expert) 24 December 2016
Dhingra,
Your approach has been abusive, indecorous, intimidating for querist/authors/members/experts, and you have been attacking anyone and everyone.
Anyone can visit the threads posted under your profile and ...........'Beware'.
I have repeatedly instructed you and answered your questions multiple number of times that I have full authority and have by authority instructed you not to comment on me and my posts.
The subject in this thread also, has been and remains out of your ability and aptitude.
Your desires, wishes to abuse, attack are insatiable.
AS it has been posted enough number of times::::: I do not want any contact and comment and any communication etc etc from you.
NO IFS, NO BUTS, NOTHING is to be tried and posted by you with me.
The author in this thread also can show the printouts from this thread initiated by him to his own counsels and come back if required.
For clarity on your own confusions you may sit with your teachers (if you had any).
NOW LEAVE AND DON'T COME BACK.
Kumar Doab
(Expert) 24 December 2016
Dear LCI author @ Mr. Dhaval Parikh,
The enactments that apply to establishment and apply shall prevail upon any private agreement drafted by employer and signed with employee e.g; offer letter/appointment letter, contract of employment, HR policy,employee handbook etc etc...........
Explore this possibility and then take up as suggested.
There are many posers that loiter at various forums to seduce and allure the unsuspecting querists..............
You can find at your location many counsels that prefer their practice on cases of employee's.
Guest
(Expert) 24 December 2016
Mr. Kumar Doab,
As usual, you are welcome with your irritation and frustration when you lose the ground due to your fake ID, hidden face and unknown place of your location in the LCI profile.
As usual, when unable to find answers to my questions about your integrity, you came forward with the same cry "NOW LEAVE AND DON'T COME BACK," which clearly reveals your irritation and frustration.
I HAVE NOT ABUSED YOU, I SIMPLY REQUESTED YOU TO COME FORWARD WITH HONESTLY PREPARED PROFILE WITH YOUR REAL IDENTITY AT THE LCI?
Contrarily, you have started abusing me, when unable to justify your sincerity and honesty towards the readers, who try to pose faith on you.
Dhaval Parikh
(Querist) 25 December 2016
Thank you so much PS Dhingra & Kumar Doab for your replies to my queries.
Without any hard feelings Mr. Doab I also felt a bit confused about your reply. Neverthless I feel overwhelmed by your responses.
Thanks again both of your for replying to my query.
Have a good day.
Guest
(Expert) 25 December 2016
Mr. Dhaval Parekh,
You are welcome.
Kumar Doab
(Expert) 25 December 2016
Dear LCI author @ Mr. Dhaval Parikh,
NO hard feelings.
If the establishment,employer, your designation/you are covered by enactments then the enactments shall prevail and claim of notice pay of employer shall fail.
Employee should be member of unions/forums for employees and retain access to a very able local counsel specializing in Labor/service matters, at his location and consult with all docs on record, in person.
Your counsels can opine on any queries that you may still have.
Wish you the best.
Kumar Doab
(Expert) 25 December 2016
Dhingra,
I was sure in this thread also you will not post the link to threads where you have been abusing querist/authors,members, experts and attacking me................
Anyone can visit the threads posted under your profile and ...........'Beware'.
You have been unsuccessful to intimidate me and hence your irritation frustration and itch.
The author in this thread also can show the printouts from this thread initiated by him to his own counsels and come back if required.
For clarity on your own confusions you may sit with your teachers (if you had any).
NOW LEAVE AND DON'T COME BACK.
Kumar Doab
(Expert) 25 December 2016
Dear LCI author @ Mr. Dhaval Parikh,
You have posted that:
"I feel overwhelmed by your responses."
You may download;
Bombay Shops & Establishments Act
https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/94257/110577/F479460477/IND94257.pdf
Model Standing Orders
http://pblabour.gov.in/Content/documents/pdf/acts_rules/industrial_employment_standing_orders_rules.pdf
THE INDUSTRIAL DISPUTES ACT, 1947
https://mahakamgar.maharashtra.gov.in/images/pdf/industrial-disputes-act-1947.pdf
The state of Maharashtra also has:
The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971
http://bombayhighcourt.nic.in/libweb/acts/1972.01.pdf
Recently a matter perturbing an author of LCI from Mumbai has been resolved without litigation with intervention of kind hearted efforts of experts/members and well wishers thru LCI.............without any fee.
The counsel is............. much much junior to Dhingra.
Many new members, experts are joining LCI and doing good job for the community.
Employee should retain access to employee'/trade unions, counsels specializing in Labor/Service matters at his/her location.It is a misconception that very able counsels charge huge fees.
Employee should make some efforts to defend his/her interest. Many matters can be resolved by application of own skills employee's, more so employee's that are properly informed.
Online discussions have its own limitations and avoid making any payment for online discussions and Beware of abusers and person loitering at many portals posing as experts.
Kumar Doab
(Expert) 26 December 2016
Dear LCI author @ Mr. Dhaval Parikh,
The state of Maharashtra also has:
The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971
http://bombayhighcourt.nic.in/libweb/acts/1972.01.pdf
You may go thru it.
There are many members , experts at LCI that share whole heartedly and encourage to be properly informed.
Many new members , experts are joining LCI.
many of them even propose to go thru Text books so the employee can handle if required at any point of time as PIP.
Many members and even experts have posted at LCI that they were tired and frustrated with posers loitering at various forums (including LCI) and gained knowledge and confidence and handled their cases as PIP and were successful.
The advantage of internet can be put to best use by community of employees.
You can also attempt by approaching Inspector appointed under the various Acts I have already posted and thru your own counsels.
Guest
(Expert) 26 December 2016
Dear Dhaval Parekh,
Mr. Kumar Doab, who is Headless (Fake name/ID), without any face (photo) and without address (destination place in his fake profile with the LCI), has again tried to confuse you to much more extent by posting 3 more set of advice with the intention to load you with a great bunch of variety of copied junk material (at least for you) from the internet.
FOR EXAMPLE, when you have already stated that you have been working an a company in Maharashtra, what was the logic of loading you with the booklet of "the Industrial Employment (Standing Orders) Central Rules, 1946, WHICH APPLIES TO Union territories, and to industrial establishments under the control of the CENTRAL GOVERNMENT or a RAILWAY ADMINISTRATION etc.
Can you gain anything to avert your problem by striking your head to go through this 20 pages document and to try interpreting the rules, when you do not belong to any central Government organization? Has he suggested to you as to which of the rule of this set of rules should be adhered to in sorting out your problem?
FURTHER, has he advised you to take action by following the provision of any specific section out of the whole Act consisting 35 pages of "The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971."
Could you gain anything to sort out your immediate problem by reading that junk for the time being for you?
STILL FURTHER, has he advised you to take action by following the provision of any specific section out of the whole Act consisting 38 pages of "The Bombay Shops and Establishments Act, 1948?"
Could you gain anything to sort out your immediate problem by reading that junk for the time being for you?
Merely posting links of the copied files from internet cannot solve the problem. That requires the practical knowledge of law, not counting the 2+2=4 to be made by a petty finance executive (Kumar Doab) in a petty company.
Now you are the judge to understand, which type of the so called fake experts should not be relied at any cost.
ANYWAY, BEST OF LUCK, IF YOU ACT UPON THE ADVICE OF MR. KUMARY DOAB!
Kumar Doab
(Expert) 27 December 2016
Dear LCI author @ Mr. Dhaval Parikh,
It is not mandatory for the employer to narrate entire standing orders in appointment letter.
The standing orders shall prevail upon appointment letter, even if not mentioned/narrated in appointment letter.
So much so that the appointment letter may not even worth the piece of paper on which it is written if it violates the standing orders in totality
Or any particular clause may be void if it violates standing orders.
This holds true for service conditions like : Notice Period/pay, Transfer etc etc .....
Employer can be personally held responsible for violation of standing orders.
The states including state of Maharashtra keeps some information on websites.
Rest can be searched with the help of internet or you can buy from market.
So much so that courts of law can decide if appointment
https://mahakamgar.maharashtra.gov.in/lc-industrial-employment.htm
https://mahakamgar.maharashtra.gov.in/images/pdf/industrial-employment-standing-orders-rules-1946.pdf
Kumar Doab
(Expert) 27 December 2016
Bombay Shops and Commercial Establishments Act:
38:
^[ЗВ-В. Application of Industrial Employment (Standing Orders) Act to .
establishments.-The provisions of the Industrial Employment (Standing Orders)
Act, 1946, in its application to the State of Maharashtra [(hereinafter in this
section referred to as "the said Act"), and the rules and standing orders (including
model standing orders) made thereunder from time to time, shall, mutatis
rnuimdis, apply to all establishments wherein fifty or more employees are
employed and to which this Act applies, as if they were industrial establishment
within the meaning of the said Act.
NOTES
By reason of S.38(b) the provisions of the Industrial Employment (Standing
Order) Aci, 1946 shall apply to all establishments to which the Bombay Shops
and Establishments Act applies as if they were industrial establishments within
the meaning of Industrial Employment (Standing Order) Act, 1946.
I have posted in details, in many threads on Standing Orders in Experts section also.
I have also posted and attached the judgments by the Constitutional Bench of Supreme Court of India in such threads.
YOU can use the Search Option on middle of right hand side of this thread::: 'Search Q & A' and also on bottom of right hand side of any thread in Forum section..................
Kumar Doab
(Expert) 27 December 2016
Industrial Employment (Standing Orders) Act, 1946
Industrial Employment (Standing Orders) Act, 1946PDF(127 KB)
The provisions of the Act are applicable in Maharashtra State on Industrial Establishment, as Defined in the Act and employing 50 or more employees. The Employer of such an Industrial Establishment is under an obligation to follow the Model Standing Orders under the Act, till he obtains Certified Standing Order under the Act from the Competent Authority (Deputy Commissioner of Labour) to suit the local requirements of his Establishment. For this he has to follow the procedure laid down under the Act. Such Standing Orders are also settled under the Bombay Industrial Relations Act, 1946, pending which the Model Standing Orders framed for the industry are discipline in an Industrial establishment, which help in eliminating many industrial disputes.
https://mahakamgar.maharashtra.gov.in/lc-industrial-employment.htm
Kumar Doab
(Expert) 27 December 2016
Dear LCI author @ Mr. Dhaval Parikh,
The precise sections and clauses of
Bombay Shops and Commercial Establishments Act:
have already been pointed out to you.
The specific points raised and replied by you have already been responded to you in the very previous posts, along with steps that you may take.
These have been visible to you and all that is why you have posted for me that:
"I feel overwhelmed by your responses."
Hence I have posted more for you.
I shall be sending you precise links to help and determine and relate with 'nature of duties'................
These shall help you and anyone with whom
you share these inputs in future.
You may also share these inputs with your own counsels and come back in this thread or to me anytime.
Let me reach back and have access to my library.
As far as Dhingra is concerned when you search in threads you will find that Dhingra was blank on such matter many years back, today and shall be blank in future also.
Such matters are subjects are beyond his aptitude and ability.
He is unable to see, look, understand despite having been advised to add magnifying lenses to his magnifying glasses.
He has attempted to confuse every querist/author/member/experts with his picture of very old man that is usually viewed as mature, aged, but has proved him as abuser, hollow headed, blank, prankster, loitering at LCI to allure unsuspecting querists to him..................
The threads at LCI are filled with his posts founded and built of jealousy, hatred, nuisance, abuse.............and he is unable to give up his 'Die hard ' habits ( in his own words' in his leftover days.
Dhaval Parikh
(Querist) 27 December 2016
Dear Mr. Kumar & Mr. Dhingra,
I again appreciate for your detail reply to my query. But kindly do not get into fighting mood, as unnecessarily it creates long thread to my query.
Mr. Kumar, it is good that you are providing more & more information on this.
But, as suggested by Mr. Dhingra, give the information in brief but contentful manner. It is not possible for me to read full act/rules shared by you as I am not the expert in this field.
Regards
Kumar Doab
(Expert) 27 December 2016
Dear LCI author @ Mr. Dhaval Parikh,
It is very much required to know the basic information that was asked from you.
In case you prefer to post any other query try to incorporate basic and required information, in your query.
The specific points raised and replied by you have already been responded to you in the very previous posts, along with steps that you may take.
Rest the enactments and clauses are to support the approach.
It does happen when an employee gets appraised of the enactments for the first time.
Thereafter the employee that is properly informed does not face difficulties in handling such issues.
Thus employee (you) may submit to waive off the notice pay as suggested in previous posts and thereafter apply your skills of reasoning, persistence, persuasion, negotiation and justify.
Guest
(Expert) 29 December 2016
Dear Dhaval Parekh,
You would have seen so long explanations and extracts of rules, acts, vague statements, etc., from Mr. Kumar Doab to justify himself on the pretext of wanting basic information, but still far from any advice on his part how to wriggle out of your present problem.
There was no doubt that your query duly contained proper basic information. So there was no deficiency in the information on your part.
The question arises, if there was any deficiency of information on your part, what was the purpose to load you with so much irrelevant material, which related only to Central Government organisations and other states of India, and not in any way helpful to sort out your own company related problem?
