Need to understand the notice period law

You have posted that:

>> “Unless confirmed in writing, you will be a probationer after the expiration of probationary period on the terms and conditions applicable to the initial probationary period as mentioned in this letter.”

“I didn't get any confirmation letter or any mail from the Organization till now, I worked with company for 11 months, ‘

Hence you are under probation period and are not confirmed employee.

>> “and now they are saying to following the signed agreement of 3 months notice period.’

They are saying i.e verbally...................because they are fully aware that they are making an illegal, illegitimate, unfair demand that is contrary to the provisions of the appointment letter/contract of employment drafted/created by employer himself.

A properly informed, firm employee or duly supported by unions can term it as extortion, coercion, intimidation.............

Record such statements (audio/visual).

Submit your notice of resignation addressed to appointing authority, MD and submit by redg. post citing above mentioned clause number ............................stated in appointment letter dated.........................issued to you and ask to inform you in writing by letter thru redg. post to whom you should handover the charge, company property if any.

You may also list the items of company property if any with you and ask the appointing authority, MD to verify it and supply you the items that company wants you to surrender.

It is time to keep some trade union leader/colleague as witness with you always so that company does not levy and succeed in levying a charge on you.

>> “I would like to know, if I am not confirmed, is I am eligible for 3 months notice period rule?“

As per extracts of the appointment letter posted by you the notice period applicable to you is 7 days only.

If you are perturbed approach a competent and experienced labor consultant/service lawyer and proceed under expert advice of your lawyer.

The Terms of appointment is silent on the notice period to be provided by the employee - rather vague. No contract of employment which is stringent/less favourable than law can be enforced. The Shops and Establishment provides for maximum 15 days notice during probation period and hence the employer cannot compel nor enforce a 3 months notice period.

Hi,

They provided me one more hard copy, i.e.

We are pleased to inform you that based on your performance for the Past period, your designation is BA and your annual compensation is revised to ****** effective from 1st July 2013.

I am confused, above letter is confirmation letter? 

Hi,

They provided me one more hard copy, i.e.

We are pleased to inform you that based on your performance for the Past period, your designation is BA and your annual compensation is revised to ****** effective from 1st July 2013.

I am confused, above letter is confirmation letter?, because till now I was thinking that above letter is not confirmation letter, because in above letter nothing is mentioned, like your probation period from Date is done, and we are pleased to inform you that you are confirmed.

Mr. Vasudevan has already advised that terms are vague.

The language is kept in such a manner that the establishment shall derive and interpret that it wants and that suits it.

If employee has resigned it may claim notice period of 3 months and notice pay in lieu of it is applicable.

If employer has initiated termination it may claim notice period of 3 months and notice pay in lieu of it is applicable.

You have posted that:

“If your services are found satisfactory, your probationary period will be ended in writing.”

“Unless confirmed in writing, you will be a probationer after the expiration of probationary period “

As pr your post no explicit communication clearly confirming in writing that probation period has ended and service is confirmed in writing and post confirmation................................the T&C are as....................( same as in appointment letter or changed) and asking the employee to confirm acceptance in writing/on the copy.

The incremental increase in wages/CTC can be given any number of times, anytime, even during probation by employer to employee........................................designation can be amended/redesignated. However grant of increment does not mean that service has been confirmed.

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

The terms and conditions of employment inconsistence with the Standing Orders would not survive.

Standing orders shall prevail upon any private agreement that employer might have signed with employee e.g.; appointment letter, contract of employment......................

https://www.lawyersclubindia.com/experts/Standing-orders-442266.asp#.UtYlMdIW1MB

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

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................

(2)                       No ........................ probationer ..................... shall be entitled  to any notice or  pay in lieu thereof

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.

18.  Exhibition of standing orders.--A copy of these orders in English and in Hindi shall be pasted at [2][*****] and on a notice-board maintained at or near the main entrance to the establishment and shall be kept in a legible condition.

Notice period/pay is also stated in ( Name of the state) Shops and Commercial Establishment Act.

-Inspector under ( Name of your state) Shops and Commercial Establishments Act: if it is a commercial establishment.

-o/o Labor commissioner

-Lawyer/law firm: A legal notice can help to drill sense into the heads. You may request your lawyer to include the HR personnel, , CEO, Chairman, MD in list of noticees............

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 and demand certified copy of standing orders applicable to the establishment and extended to your designation.


-Trade Unions/ Employees Unions: They know precise ways to handle such issues

Hi,

Thank you Mr. Doab for providing me with the complete details. I will be sending Remainder of the resignation mail to my HR specifying the T&C, and as per offer letter I am eligible for 1 month notice period.

If still he rejects my resignation. Could you please tell me the further steps? How should I react?

It shall be appropriate to not to remain entangled with HR and write to good offices of your appointing authority, MD.................................

It shall be better to consult elders in the family and along with elders spend quality time with a competent and experienced labor consultant/service lawyer, show all of your docs, give inputs and proceed under expert advise of your lawyer. 

Rest is up to you.

Thank you for your suggestion, I sent 1 mail to CEO(as the Organization is very small, so no HR, CEO handles all this things) .

In the mail, I said:

""As a reply to my resignation mail, which I sent on 10th Jan 2013, you have suggested me to serve the notice period of 3 months as per I signed the offer letter. 

On the same, I have query which I need to clear before leaving the organization in formal way.

My query is as per mentioned in the offer letter after written confirmation letter, I will be confirmed in the organization. However I didnt received any communication from company regarding my confirmation with the Organization (i.e. confirming that probation period has ended and service is confirmed in writing), If I understand correctly, I am still on probation period. Could you please guide me if I am wrong.
Reason behind asking this doubt is : I would like to follow T&C which I signed with the Organization, and I would like to end up my job here in formal way.""

on the above mail He replied:

Per formal letter on June 28^th 2013 – there was no mention of probation, and your salary was increased.

Shall I send 1 more mail saying:

"I agree, I got a letter on June 28th 2013 i.e:

"We are pleased to inform you that based on your performance for the Past period, your designation is Analyst and your annual compensation is revised to ****/Annum effective from 1st July 2013"

However, Above letter clearly not confirming in writing that probation period has ended and service is confirmed/Permanent and neither any acknowledgement was taken from me (which is standard practise) stating that I am confirmed.

I consulted legal advisor and got to know 'Grant of increment doesn't mean that service has been confirmed'

Since you started the discussion in accordance with offer letter, I want to end up all the things legally as per offer letter I signed.

As per offer letter I signed, during probation I can leave Organization with 1 month notice period which will last on 10th Feb 2014. 

I would request you to accept my resignation, and issue me the relieving documents.

am I correct, shall I send this mail to him? and also I would like to know, if he stretch the issue how should I contact a Lawyer who is V good with Labour laws and who can help me with this, I stay in Navi Mumbai

Hi I mailed CEO as below mentioned:

Hi,

I agree, I got a letter on June 28th 2013 i.e:

"We are pleased to inform you that based on your performance for the Past period, your designation is Analyst and your annual compensation is revised to ***Lac/Annum effective from 1st July 2013"

However, above letter clearly not confirming in writing that probation period has ended and service is confirmed/Permanent and neither any acknowledgement was taken from me (which is standard practice) stating that I am confirmed.

I consulted legal advisor and got to know 'Grant of increment doesn't mean that service has been confirmed'

Since you started the discussion in accordance with an offer letter, I want to end up all the things legally as per offer letter I signed.

As per offer letter I signed, during probation I can leave Organization with 1 month notice period which will last on 10th Feb 2014. 
I would request you to accept my resignation, and issue me the relieving documents.

I request you to end this on a happy note.

Having said everything above, I assure you that I will be available on phone for any queries that I can resolve. I want this to end nicely and so requesting you to please relieve me by 10th Feb 2014. ""

On that my CEO replied:

Kiran  - as you brought up legal counsel – I am no longer able to respond. Once your legal counsel takes the appropriate steps – we will respond accordingly.

and he also said: 

I was very clear that you were not on probation and we - as policy - do not promote or give increments to employees on probation

since you joined, I am surprised to learn that you think you were on probation anyway we have won other legal battles in the past (against Tata's) .. and have really good legal counsel

Could you please suggest me what to do in this case.

Hi I mailed CEO as below mentioned:

I agree, I got a letter on June 28th 2013 i.e:

"We are pleased to inform you that based on your performance for the Past period, your designation is Analyst and your annual compensation is revised to ***Lac/Annum effective from 1st July 2013"

However, above letter clearly not confirming in writing that probation period has ended and service is confirmed/Permanent and neither any acknowledgement was taken from me (which is standard practice) stating that I am confirmed.

I consulted legal advisor and got to know 'Grant of increment doesn't mean that service has been confirmed'.

Since you started the discussion in accordance with an offer letter, I want to end up all the things legally as per offer letter I signed.

As per offer letter I signed, during probation I can leave Organization with 1 month notice period which will last on 10th Feb 2014. 

I would request you to accept my resignation, and issue me the relieving documents.

I request you to end this on a happy note.

Having said everything above, I assure you that I will be available on phone for any queries that I can resolve. I want this to end nicely and so requesting you to please relieve me by 10th Feb 2014. ""

On that my CEO replied:

Kiran  - as you brought up legal counsel – I am no longer able to respond. Once your legal counsel takes the appropriate steps – we will respond accordingly.

and he also said: 

I was very clear that you were not on probation and we - as policy - do not promote or give increments to employees on probation

since you joined, I am surprised to learn that you think you were on probation anyway we have won other legal battles in the past (against Tata's) .. and have really good legal counsel

Could you please suggest me what to do in this case.

Your lawyer has already advised you.Once you are satisfied that you have done enough emailing and CEO is adamant and is not yielding you may request your lawyer to issue legal notice and approach the lawful authority.