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Ishan Wath   04 January 2021

breach of service agreement

as per my work agreement my employer was supposed to give me notice period of one month, but had not given me the same. is it unlawful? can I claim the pay for my notice period?


Learning

 3 Replies

SHIRISH PAWAR, 7738990900 (Advocate)     04 January 2021

Hello,

As per agreement terms and conditions, your employer has to give you one month's notice otherwise employer should give you one month's salary in lieu of the notice period. Try to amicably settle the issue by convincing your employer otherwise send him a legal notice for recovery of one month salary. 

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Adv.Balachander Reddy ( Advocate IPR Attorney Human Rights Defender and RTI Activist)     04 January 2021

The employee may be entitled for non-serving of notice period subject to employee has not been indulged in any material breach of said service agreement such as Moral turpitude, fraud, cheating etc.

However please note that the Employers of IT/ IT enabled services may be exempted from the same.

 

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Vedanth sharma (Nil)     04 January 2021

Hello,

The Industrial Dispute Act uses the term "retrenchment" instead of "termination". Retrenchment is defined as termination for any reason except as punishment inflicted by way of disciplinary action, retirement/superannuation, termination for continued ill-health, or expiry and non-renewal of the term of an employment contract..

Section 25F of Industrial Disputes Act 1947 : "Conditions precedent to retrenchment of workmen"

25F. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 46. [for every completed year of continuous service] or any part thereof in excess of six months;

and

(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.

Hence, An employer is required to give at least one month's advance notice or payment in lieu thereof to a worker who has completed at least one year of continuous service before termination. The notice must be given in writing indicating the reason of retrenchment. While terminating a large number of employees in factories, mines or plantations employing more than hundred workmen, the employer must give at least three months of notice or wages in lieu thereof to the workmen proposed to be terminated.

The services of workmen as well as non-workmen can be terminated without any notice in situations, such as proven misconduct, fraud, etc. Termination proceeds with an internal enquiry in accordance with the principles of natural justice - where the employee is given a free and fair hearing. 

Your dismissal is unlawful provided it wasn’t due to proven misconduct, fraud, etc.

Thank you
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