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NRP (Developer)     01 January 2014

Employer asking me to give 2 months notice period salary

I have joined one of the MNC company and after 2 days I left that company because of some personal issue without serving 2 months notice period.
 
Now they have put me in job abandonment in their company and send me letters at my home and asking me to transfer 2 months salary of notice period in their account. Otherwise they will take legal action against me.
 
I have signed offer letter and terms and conditions documents on first day of my joining.
 
Please give me guidance. Can employer take legal action against me? I dont want any documents from that company like experience letter, relieving letter. I didn't even take any salary or joining bonus from that company.
 
Thanks


Learning

 6 Replies

Kumar Doab (FIN)     01 January 2014

You have posted that:

I left that company because of some personal issue without serving 2 months notice period.”

 

This personal issue is due to something rude at workplace or something else?

 

If you have separated then you could have submitted resignation/inclination not to continue with employer if employer is unworthy of being employed with.

 

What is this establishment: Commercial or Industrial?

 

You and redg. office of the establishment is located in which state?

 

What was your designation, nature of duties and how many employees are employed in this establishment?

 

Were you offered employment as a probationer, trainee or confirmed employee?

 

Company provided you offer letter (making an offer of employment) or appointment letter/order?

 

Offer letter (offer of employment) can be declined.......................

 

 

Notice period is part of service conditions and is stated in standing orders applicable to the establishment

(Certified/Model) and extended to the designation of employee.

 

Model Standing Orders: Notice period/pay during probation is NIL and for confirmed/permanent employee it is 1 month.

Service conditions stated in standing orders shall prevail upon any private agreement employer has signed with employee e.g; appointment letter, contract of employment......................

 

Notice period/pay is also stated in (name of state) Shops and Commercial Establishments Act and for service period of 1 day it may be NIL..........................

 

You may show the job advertisement, job application, offer letter, and other letters claiming job abandonment and demanding notice pay to a competent and experienced labor consultant/service lawyer and submit a fitting reply.

 

The lawyer that has seen all of your docs and record and advice you the best.

 

Do not deposit any amounts in bank a/c of company till you are advised to do so by your lawyer.

Assuming that you feel like sending a payment always submit by a/c payee cheque and that too under proper acknowledgment on the spot.

 

 

 

 

 

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     01 January 2014

Dear Querist

its depend on the appointment letter, if in your appointment letter, the notice period is 2 months or in lieu of that pay the equal amount of two months salary then only the company is legally right  otherwise not.

so read the appointment letter carefully and state detail facts then we can advise you. 

NRP (Developer)     01 January 2014

Thanks a lot Kumar for your quick reply.  Answers to your questions.

Company is top MNC IT company located in Pune. But their main branch head office is in chennai from where I am getting all letters. There are total more than 5000 employees in this company

Employeement is a confirm employee.

In term and conditions document they have mentioned 'Pay up for the notice period in lieu there of on your Annual Gross Compensation'.

But my question is if they have already terminated me on the case of job abandonment still I need to pay notice period money. Because I don't want any experience or releiving letters from these company.

NRP (Developer)     01 January 2014

Thanks a lot Nadeem for your quick reply.

 

In term and conditions document they have mentioned 'Pay up for the notice period in lieu there of on your Annual Gross Compensation'.

 

But my question is if they have already terminated me on the case of job abandonment, still I need to pay notice period money. Because I don't want any experience or releiving letters from these company.

Kumar Doab (FIN)     01 January 2014

You have not reverted to:

 

This personal issue is due to something rude at workplace or something else?

 

What was your designation, nature of duties...............

 

Company provided you offer letter (making an offer of employment) or appointment letter/order?

 

Offer letter (offer of employment) is issued after selection and can be declined.......................

 

Appointment letter is issued upon joining company.............................If no appointment letter was issued and accepted by you no such T&C should apply to you.

 

You may also check if your have created a profile at NSR/have registered with NASSCOM?

 

 

 

>> You have posted that: “Company is top MNC IT company located in Pune. But their main branch head office is in chennai from where I am getting all letters. There are total more than 5000 employees in this company”

 

There are threads initiated by ITO/ITeS companies and affirming that standing orders are applicable to these companies.

 

 

IT/ITeS companies are  under Shops and Commercial Establishments Act and standing orders are applicable.............

 

 

Any T&C in appointment letter that is inconsistent with standing order would not survive.

 

Therefore you may first of all check if standing orders are certified (CSO) and extended to your designation and if yes the notice period/pay stated in CSO shall prevail upon appointment letter. If it is NIL in CSO it shall be NIL in your case even if it is stated as 2 months appointment letter or for that matter offer letter.

 

If standing orders are not certified Model Standing Orders shall apply.

 

Model 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:

 

You have stated that “Employeement is a confirm employee.” In such a case if standing orders are not applicable then

Model Standing Orders shall apply and as mentioned above the notice period/pay shall be 1 month only @ 1 month pay.

 

Designation alone does not decide employee is covered as ‘Employee’ as in Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act....................

 

Your lawyer may ask you a set of structured questions and may opine that you are covered.

 

If you are not covered then your lawyer may like to examine job advertisement, offer letter, appointment letter, service codes and regulation applicable in the establishment, HR policy, all letters/notices issued by the company to you and can opine thereafter that you need to tender notice pay or not.................

 

 

 

>> IT/ITeS companies are  under Shops and Commercial Establishments Act.

 

Your location was probably Pune.

 

Bombay

Shops and Commercial Establishments Act should be applicable.

 

[З8 А. Application of Act VIII of 1923 to employees of establishment..........................

 

^[ЗВ-В.  Application  of  Industrial  Employment  (Standing  Orders)  Act  to establishments

 

бб.Notice    of  termination  of  service..

Notice period for service> 1Year= 30 days

Notice period for service< 1Year but > 3 months = 14 days

 

Notice period for service <3 months seems to be NIL.

 

The service conditions applicable to employee and employer should be equitable.

 

Provided that,  such notice shall not be necessary where the services of such employees are dispensed with for misconduct.

[Explanation.-For  the purposes of this section, "misconduct" shall include-(a) absence from service without notice in writing or without sufficient reasons for seven days or more;

 

Did the employer tender any such notice before effecting termination?

 

--The employers are known to state in appointment letter that jurisdiction of courts shall be...........................( Location of regd. Office/HO of the company and that even if employee is located at............................city he shall be deemed as if he is located at..................... (Location of regd. Office/HO of the company)

 

THE TAMIL NADU SHOPS AND ESTABLISHMENTS ACT,1947

41. Notice of dismissal

 

Notice period for service> 6 months= 30 days

 

Notice period for service <6 months seems to be NIL.

 

All of these enactments should be available at the Dept. of Labor website of the state.................................or you can buy the latest version from market.

You may find the following threads as relevant.

 

 

https://www.lawyersclubindia.com/forum/Need-help-in-resignation-relieving-letter-issue-94537.asp#.UsQdOtIW1MA

 

https://www.lawyersclubindia.com/experts/Standing-orders-442266.asp#.UrRicdIW1MA

 

 

https://www.lawyersclubindia.com/experts/Standing-Orders-426366.asp#.UrKmL9IW1MA

 

You may without any hesitation approach a competent and experienced labor consultant/service lawyer.

 

It is reiterated that you may show the job advertisement, job application, offer letter, and other letters claiming job abandonment and demanding notice pay to a competent and experienced labor consultant/service lawyer and submit a fitting reply.

 

The lawyer that has seen all of your docs, record can advice you the best.

 

 


Attached File : 507658202 the bombay shops establishments act.pdf, 507658202 tamilnadu 2-shops and estabilishment act- seminar (1).pdf, 507658202 can nasschom blacklist an employee.doc downloaded: 229 times

V. VASUDEVAN (LEGAL COUNSEL)     01 January 2014

The Letter of offer/appointment would have stipulated the notice period during probation and please check this out. Even if you had left on personal reasons, you should have explained this to the Company and obtained relieving letter, or could have sought for waiver of notice period. However, the notice period during probation cannot be 2 months and the best it can be 15 days (basic). You can reply accordingly and if they insist for two month notice pay, write to the Labour Officer complaining harassment as the company will be governed by the Shops an Commercial Establishment Act.

Vasudevan


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