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STUDENT.... (.......)     24 June 2016

Leave during probation period

I am working in BPO since last 1yr+ in Delhi/NCR hadquater is located in Banglore. As per the policy of the organization the employee is entitled to take leaves only after the completion of probation period/confirmation in organization.

 

As per the organization I am a confirmed employee where as no confirmation letter issued to me till now.

Also, I have checked the Letter of Intent and the appointment letter issued to me in both the letters it is mentioned as leaves are as per the company policy which is available on company intranet and not mentioned in LETTER OF INTENT & APPOINTMENT LETTER.

 

Now I want to leave the organization and the notice period incase of probation employee is 1 month and confirmed employee is 2 months. Since, no confirmation letter issued to me till now I am considering my self as Probation Employee.

As per the landmark judgement of Superme Court of India "Kedar Nath Bahl vs State of Punjab and Others 1973(3) SCC21" and another judgement of Superme Court Of India "Mohd. Saleem vs Committee of Management & Ors."

The Court clearly laid down the proposition of law that where a person is appointed as a probationer in any post and a period of probation is specified, it does not follow that at the end of the said specified period of probation he obtains confirmation automatically even if no order is passed on that behalf. It was also held in that decision that unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period or that there is a specific service rule to that effect, the expiration of the probationary period does not necessarily lead to confirmation. This Court went on to hold that at the end of the period of probation an order confirming the officer is required to be passed and if no such order is passed and if he is not reverted to his substantive post, the result merely is that he continues in his post as a probationer.

 

Please suggest in this case whether the company force me to serve 2 months notice period or not.

 

Thanks in Advance.



Learning

 9 Replies

G.L.N. Prasad (Retired employee.)     24 June 2016

In case of termination during probation or for extending probation, one month notice has to be given by your employer and you have to go through your HR rules and regulations.

The bench mark test is as to whether your employer has treated you as confirmed employee by giving such benefits like Leave, PF etc.  If you have availed such benefits, you can not now say that you are not confirmed, with the purpose to resign from the organisation.. You must have agitated or represented for such confirmation letter immediately after confirmation and there is contributory negligence on your side.

You may give notice period as a probationer, and wait for the employer's response and take further steps as required.  Be prepared to shell down one month salary, as you want a relieving and conduct letter and in future some other organisations may require them to give opinion on your work.

(There is confusion in your query Leaves are different from resigning from organisation)

G.L.N. Prasad (Retired employee.)     24 June 2016

You have to also consider the loss of salary  vis a vis expenses for your proposed fight either through litigation or some other way, and the final result benefit.  When you wish to resign, let this happen smoothly and sacrifising one month salary is more than mental peace you gain and relations you maintain. (pros and cons)

Kumar Doab (FIN)     24 June 2016

You are at Delhi or in some other state? Post clear answer.

The leave policy of the company is not sacrosant and can provide superior benefits but not inferior as provided for in enactments applicable to estanlishment, employer, employee.

The establishment may keep its policy on intranet but must provide a published version as well and has to supply advance notice for any change in service conditions.

 

 

Your understanding on Probation and confirmation is correct.

You may reply to all points, pointwise.

 

Kumar Doab (FIN)     24 June 2016

While posting such queries employee should post full basic information :

e.g;



Have you been issued with appointment letter (  Noted: Yes) ? 



You may post the exact extract from LOI/offer/appointment letter on termination/resignation/ leave,Notice pay in lieu of notice period,  payment of wages, Probation/confirmation etc.

What is your designation and nature of duties in offer/appointment letter and on record/ in practice? Did you have any power (not just recommendation) to sanction leave/increment/appoint/terminate? Can anyone cancel/amend/change/alter your recommendations?



Is any date of payment of wages mentioned in appointment letter?


How was salary paid; cash/cheque/in bank a/c ?

Did you sign any voucher? Do you have copy? Did you put date of payment on it?

You were in which state ( Delhi/NCR does not clarify the name of state) ?


What is this establishment; Commercial/Industrial ( Noted; BPO)?



Does it have Certified/Model standing orders and does it apply to your designation? {  If yes confirm it is (Model/certified)}. 


Are you a member of employees/trade unions?


What was your last drawn salary in Rupees?

You were under probation/confirmed, as per initial LOI/Appointment letter issued to you and/or any subsequent communication even if by email/speaking order?


Did company open a salary a/c for you, by signing introduction or it is transferring salary in your personal a/c?


Has it been supplying salary slips ( at least a day before date of payment of wages)?



Did you get I.Card, Visiting card,salary slips of all months, acknowledgment of notice/final resignation and acceptance ( Noted; Notice of termination issued) , PF a/c number and a/c slips  , FnF statement, ESIC card,Form16, service certificate, relieving letter (with good comments), NOC/NDC, handover of charge/assets etc?


You have worked for how many months ( Noted; 1Y+)?


How many persons are employed in it currently and what was max. no. at any time?
 

Has your FnF been settled by old company OR FnF statement issued?
Were you asked to handover chanrge/assets by old company?
 
Did you write to appointing authority,MD, under proper acknowledgment about issues that you have been facing?
 
 

STUDENT.... (.......)     25 June 2016

Mr. Kumar Doab,

Answer to your question...

No (Policy is given in published version as well and has to supply advance notice for any change in service conditions.)

 

While posting such queries employee should post full basic information :

e.g;



Have you been issued with appointment letter (  Noted: Yes) ? 

YES

You may post the exact extract from LOI/offer/appointment letter on termination/resignation/ leave,Notice pay in lieu of notice period,  payment of wages, Probation/confirmation etc.

Sorry Not Possible as per the company policy and I don't want to reveil the organization identity.

But in my appointment letter it is mentioned that confirmation is on the basis of satisfactory performance and will be given in written and incase the written order is not issued and employee continues his job he will be deemed on probation.

About leaves it mentioned as employee is not allowed to take leave during the period of 6 months and if taken same need to be approved by supervisor/manager for a resonable period as per company policy with full pay.

 


What is your designation and nature of duties in offer/appointment letter and on record/ in practice? Did you have any power (not just recommendation) to sanction leave/increment/appoint/terminate? Can anyone cancel/amend/change/alter your recommendations?

I am working as an associate or you can say as a call center executive. I do not have any powers. Supervisors/Managers can cancel/amend/change/alter my recommendations.

Is any date of payment of wages mentioned in appointment letter?

No


How was salary paid; cash/cheque/in bank a/c ?

Bank Transfer


Did you sign any voucher? Do you have copy? Did you put date of payment on it?

I have signed only Letter of Intent and Appointment letter.



You were in which state ( Delhi/NCR does not clarify the name of state) ?

Take it as Uttar Pradesh (West) in delhi/ncr region as Shop & Establishment act is different as per state wise.


What is this establishment; Commercial/Industrial ( Noted; BPO)?

Commercial (BPO.. MNC Organization, Limited Organization, Officies are Located All Over Globe or employees are working all over globe)



Does it have Certified/Model standing orders and does it apply to your designation? {  If yes confirm it is (Model/certified)}.

Not Understood the question


Are you a member of employees/trade unions?

No


What was your last drawn salary in Rupees?

More than 25k.

You were under probation/confirmed, as per initial LOI/Appointment letter issued to you and/or any subsequent communication even if by email/speaking order?

As per appointment letter I am on probation for 6 months. No Email Access given by my organization.

Did company open a salary a/c for you, by signing introduction or it is transferring salary in your personal a/c?

Yes it is a salary account.


Has it been supplying salary slips ( at least a day before date of payment of wages)?

Yes

Did you get I.Card, Visiting card,salary slips of all months, acknowledgment of notice/final resignation and acceptance ( Noted; Notice of termination issued) , PF a/c number and a/c slips  , FnF statement, ESIC card,Form16, service certificate, relieving letter (with good comments), NOC/NDC, handover of charge/assets etc?

Yes

ID Card was given to me, Salary Slip of all months, acknowledgement of resignation (Only after completion of Notice Period), PF Account No# but no a/c slips, No Idea about FnF Statement, Form 16 given, Service Certification and relieving letter (will be given only after completion of Notice Period)
 

 

You have worked for how many months ( Noted; 1Y+)?
15 Months

How many persons are employed in it currently and what was max. no. at any time?
50000+ in group and in my company it will be more than 3000+.

Has your FnF been settled by old company OR FnF statement issued?
 
FnF of old company is settled long time back and No FnF Statement issued to me but I was aware about the amount I was suppose to receive which I received it from there end.
 
Were you asked to handover chanrge/assets by old company?
No
 
Did you write to appointing authority,MD, under proper acknowledgment about issues that you have been facing?
 
No, I don't want to write other wise someone else my loose her job which I don't want to.
 
 

STUDENT.... (.......)     25 June 2016

Mr. G.L.N. Prasad,

 

You are requested to please read the SUPREME COURT JUDGEMENT first.

No organization is over and above the law and the company policies cannot be against the governing law of india.

Company may act or can try to act smart/play smart with an innocent employee who is not aware about the law or doesn't even have 10% of knowledge about labour law but the employee who knows the law can knee down the organization at any point of time with his knowledge.

 

I am not trying to say that I am smart or i know how to play smart. I am just trying to say that I know something or the other from now with the help of judgement of supreme court of india.

 

Kumar Doab (FIN)     25 June 2016

You have posted that:

" in my appointment letter it is mentioned that confirmation is on the basis of satisfactory performance and will be given in written and incase the written order is not issued and employee continues his job he will be deemed on probation'.................................'I am working as an associate or you can say as a call center executive."

 

You might be covered by the def. of "Workman' as in ID Act and 'Employee' as in The U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962.

 

You may go thru:

 

The U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 : 2,3,10,11,12,13,14,18,20

https://talkhrm.com/wp-content/uploads/2014/11/U.P-Dookan-Aur-Vanijya-Adhishthan-Adhiniyam-1962.pdf

 

The BPO in UP are covered by the The U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962.

You might be coverd by the Payment of Wages Act if the wages as per def. of wages in the Act are upto Rs.25000/pm. This Act does not discriminate between workman and non workman.

 

There are many IT/ITeS employees unions now and have affilliated with Trade Unions.

If you are unable to resolve by your own skills you may lean on a very able counsel specializing in labor-service matters.


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  • STUDENT.... (.......)     26 June 2016

    Mr. Mr. Kumar Doab,

     

    Correction in the above para...

    " in my appointment letter it is mentioned that confirmation is on the basis of satisfactory performance and will be given in writing

     

    Yes 'I am working as an associate or you can say as a call center executive."

     

    But my salary is more than 25000 but less than 32000 per month...

    Kumar Doab (FIN)     26 June 2016

    As per the extarcts posted by you until you are confirmed in writing, you are under probation period.

     

    Relate the wages break up as in your offer/appointment letter with def. of wages in Payment of Wages Act.

    The details have been posted to you.

    Apply your own skills or lean on unions or approach  Inspectors appointed under the Acts or approach a very able counsel specializing in labor-service matters.

     


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