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P Kumar   03 February 2017

Legal notice for "notice period" recovery from employer

Hi,

I have received a legal notice from a law firm in Delhi on behalf of their client (My previous employer an IT MNC), regarding the notice period recovery amount (Rs. 1,50,000) due to me, and given me 15 days as a last chance to pay it off for FnF settlement otherwise company will be compelled to take legal actions and approach to court.

Let me explain what has happened till now in brief

I had joined an IT MNC and signed the appointment letter (basic employment agreement) but there wasn't any contract or bond. There was a 6 months probation period and 3 months notice period.

Due to various circumstances (work life balance, managers rudeness, harassment, medical issues) I had resigned from my job with immediate effect within less than 3 month and asked them to relieve me immediately, but they refused and asked me to provide some solid evidence and then they will think about it (not cooperative at all). So I sent them another email with my medical proofs attachments and clearly stated that I do not require any letter/certificates from them (because my current employer didn’t asked for any document, I told them everything). after that I did not receive any email/phone.

After few days I received a letter that "I am absconding" and again after few days they sent me a "Termination letter" in which they mentioned regarding this notice period amount to be paid by me. but I ignored both of the letters sent by them.

Now recently, after 6 months I have received this legal notice, so I am looking for some legal advice regarding this situation. what should i do if they approached to court? What legal options I have to defend my position?  I have all email conversations with me, and there is nothing due to me in terms of company property/documents.

Thanks.



Learning

 17 Replies

Kumar Doab (FIN)     03 February 2017

Notice period of 90days may not necessarily be applicable in your case.

Notice period is part of service conditions and governed by various enactments that apply to establishment and employee.

These enactments shall prevail upon any private agreement that employer has drafted and signed with employee e.g; appointment letter, contract of employment etc.

If you are covered by enactments then the notice period/pay should be as per applicability of enactments.

If you are not covered, then conditions in appointment letter, contract of employment may prevail, and in that case you need to pay.

The employee has severed the employer-employee relationship the moment employee has resigned.

If employee has resigned then employee has not absconded.

You may post the extract from appointment letter on Resignation/Termination/exit formalities/abscondment etc………

Kumar Doab (FIN)     03 February 2017

What was your designation and nature of duties as per appointment letter?

Did you have any powers to sanction ( not just recommend) leave/increment/appraise/appoint/terminate etc ?

You were in which state?

How many persons were employed in it?

Did standing orders (Model /Certified) apply to establishment and your designation?

Are you a member of IT/ITeS employee’s/Trade unions?

Do you copies of resignation, proof of dispatch and delivery, and emails sent by employer and your reply?


Have you consulted local counsel specializing in Labor/service matters and shown all docs on record including legal notice?

If yes what is his/her opinion?


 

P Kumar   03 February 2017

Thank you for reply Kumar Doab.

Here is the answers of questions which you have asked

I was appointed as "Assistant Consultant", according to appointment letter. and my duty/responsibility was to do the job assigned by my supervisor/manager.

Did you have any powers to sanction ( not just recommend) leave/increment/appraise/appoint/terminate etc ?
No

You were in which state?
Comany and work location was in Noida(UP) but according to appointment letter "For the purpose of this contract Courts in delhi shall have the sole jurisdiction"

How many persons were employed in it?
Comany was a MNC so there were 500+

Did standing orders (Model /Certified) apply to establishment and your designation?
I am not sure, but here in india it was a Pvt. Ltd. CMMI level 3 company.

Are you a member of IT/ITeS employee’s/Trade unions?
No

Do you copies of resignation, proof of dispatch and delivery, and emails sent by employer and your reply?
Yes, every communication i made through my personal email id, so i have all conversation with me.

Have you consulted local counsel specializing in Labor/service matters and shown all docs on record including legal notice?
Not yet.

Lastly the "Termination/Notice period" clause in appointment letter, which reads

"In case you wish to resign from the services of the company, you will be required to serve the full 90 days notice period to enable proper handing over/taking over and transfer of information. In case the notice period of 90 days is not given subject to applicable law, the company may not be liable to pay any salary or benefits and issue documents/certificates. In case you wish to leave without serving notice period, it is up to the company to accept early relieving and in no circumstances you being ready to pay the shortfall in notice period would be acceptable until and unless the company's management is in agreement "

There are some more paragraphs in this clause so i am skiping some para and mentioning the last but important paragraph, which reads

"In case you wish to leave the services of the company prior to completion of 12 months of your joining, you shall be required to reimburse the joining expenses consisting of but not limited to notice pay reimbursement if any claimed by you and relocation expenses if any paid to you".

Let me clear here that joining and relocation expenses was not there in my case.

Let me know if you need any other info, and please advice me further that what should i do or don't do.

Thanks.

Kumar Doab (FIN)     04 February 2017

Similar Query is being discussed at:

https://www.lawyersclubindia.com/forum/Legal-notice-for-settlement-of-dues-from-wipro-for-absconded-from-probation-period-146678.asp

Kumar Doab (FIN)     04 February 2017

The employee has severed employer-employee relationship the moment employee has resigned.

If you have resigned and have copy of resignation, proof of its dispatch, delivery, then you have not absconded.

 

Kumar Doab (FIN)     04 February 2017

IT/ITeS/Software companies are covered by SHOPS & ESTABLISHMENTS ACT.

Since you were in Noida. You might be covered by the def. of ‘Employee’ as in:

 

THE UTTAR PRADESH SHOPS & ESTABLISHMENTS ACT, (The

U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962

)

And “Workman’ as in Industrial Dispute Act. (Software Engineers are covered)

 

Your own counsel can opine on the appropriate forum and manner your dispute is to draft and agitated as suitable to you, in appropriate forum.   It is suggested that you may obtain opinion of a counsel specializing in Labor/Service matters at your location and also obtain support of IT/ITeS employees associations and Trade Unions.

 

 

IT/ITeS employees associations have done god job and many are embraced by Trade Unions.     You may go thru:

The

U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962

[U.P. Act XXVI of 1962]

20. Termination of employment by an employee.—(1) No employee, other than an employee

engaged for a specified period or in a leave vacancy, shall terminate his employment, except after notice of thirty days, or of such longer period, as may be required under the terms of his

employment.

 

(2) Where an employee fails to comply with the provisions of sub-section (1), his unpaid wages

for a period not exceeding fifteen days may be forfeited to his employer.



 

 

 

 

Kumar Doab (FIN)     04 February 2017

You have confirmed that joining expenses etc are not applicable to you.

You can agitate at location where cause of action has arisen, Delhi as per appointment letter................

 

Let your own able counsel specializing in labor /Service matters draft your fiting reply as suitabel as per your inputs/documents.

Online discussions have its own limitations. 

Avoid many of posers,blackmailers etc loitering and stalking at online portals to fleece unsuspecting querists.

 

  Your own elders in the family, competent and experienced well wishers, employee's/trade unions leaders, family counsel, DBA officials known to you etc etc can guide you to be a very able counsel.

You can also inquire yourself at Labor Courts/CGIT, CAT,HC,SC, Civil Courts and find out yourself.

 

At delhi you can get counse par excellence.

 

LCI experts Mr. H.S.Thukral had kept few hours for Free Consulation and hadnles  labor /Service matters.

 

LCI expert Mr. Samparan provides Free Consultation.

(https://www.lawyersclubindia.com/forum/details.asp?mod_id=143181&offset=1)

 

 

 

Ritesh Maity (Labour Law Advocate)     04 February 2017

Originally posted by : P Kumar

Hi,

I have received a legal notice from a law firm in Delhi on behalf of their client (My previous employer an IT MNC), regarding the notice period recovery amount (Rs. 1,50,000) due to me, and given me 15 days as a last chance to pay it off for FnF settlement otherwise company will be compelled to take legal actions and approach to court.
Is this Rs.150,000/- for 3 months notice pay?


Let me explain what has happened till now in brief

I had joined an IT MNC and signed the appointment letter (basic employment agreement) but there wasn't any contract or bond. There was a 6 months probation period and 3 months notice period.

Due to various circumstances (work life balance, managers rudeness, harassment, medical issues) I had resigned from my job with immediate effect within less than 3 month and asked them to relieve me immediately, but they refused and asked me to provide some solid evidence and then they will think about it (not cooperative at all). I presume that you have levelled the allegations of rudeness, harassment etc. while tendering your resignation. The company has rightly asked you to prove such allegations you have levelled. If you have proof of such allegations, please send it to the company. No company would accept resignation based on some allegations. So I sent them another email with my medical proofs attachments and clearly stated that I do not require any letter/certificates from them (because my current employer didn’t asked for any document, I told them everything). after that I did not receive any email/phone. Whether you require any certifate from your employer or not is immaterial. Your employer has every right to reject you resignation and ask you to serve the notice period or to pay the notice pay. 

After few days I received a letter that "I am absconding" and again after few days they sent me a "Termination letter" in which they mentioned regarding this notice period amount to be paid by me. but I ignored both of the letters sent by them. This is the mistake done by you by not replying to letters. Company has the ball in their court. 

Now recently, after 6 months I have received this legal notice, so I am looking for some legal advice regarding this situation. what should i do if they approached to court? What legal options I have to defend my position?  I have all email conversations with me, and there is nothing due to me in terms of company property/documents. Though you are saying that there is nothing due from your end, you have admittedly not paid the notice pay. Is the notice pay for 3 months is Rs.150,000/-? If the company goes to court, you will have to appear before the court through a lawyer and accept or defend the allegations. 

Thanks.

The replies are given in bold

Since you have already received the notice from the lawyer, it is advisable that you give a reply to the notice immediately unlike earlier times. Take help of lawyers for drafting the notice/ giving reply before things go out of your hand. 

P Kumar   04 February 2017

Thanks for your advice and suggestions Kumar Doab, i really appreciate. Ritesh Maity, thanks for assistance, now as you have asked, i believe the charges are for 3 months notice pay, since i had walked in directly for the interview and wasn't required any training and relocation. Although i have yet not asked for clarification of charges which I am going to ask very soon. As i have already mentioned that, i had resigned properly through my personal email id and got a reply from HR asking abt the medical proofs ( we had a verbal discussion earlier regarding the same and i was supposed to send these medical evidence , which i did send) after that i never received any email from them, regarding whether my resignation was accepted or not. So if a resignation is not accepted or rejected explicitly, then what status should it be considered legally? And then those absconding (which i am not) and termination letter came respectively. Moreover in a paragraph, their legal notice claims that they have made several communication with me regarding this through email/phone, but this is not the reality, i never received any email/phone from them after the last email i sent to HR, the only thing i received after that is those absconding and termination letter. And now after 6 months suddenly this legal notice. Now my questions are: 1. How should i approach to reply their legal notice, means through a lawyer or individual.? 2. Should i reply to the law firm which sent the notice or directly to the employer? 3. Should i try to negotiate with employer regarding the charges.? 4. Are those email conversations (me to HR through personal email id ) can be a valid evidence to prove my point in the court.? 5. In case they go to court, what are the chances that court will favor employee.? 6. I am not involved/member of IT employee unions, does association with these Union's can help in this case.?

P Kumar   04 February 2017

Please read above

P Kumar   04 February 2017

Please read above.

Ritesh Maity (Labour Law Advocate)     07 February 2017

Originally posted by : P Kumar

Thanks for your advice and suggestions Kumar Doab, i really appreciate.

Ritesh Maity, thanks for assistance, now as you have asked, i believe the charges are for 3 months notice pay, since i had walked in directly for the interview and wasn't required any training and relocation. Although i have yet not asked for clarification of charges which I am going to ask very soon.

As i have already mentioned that, i had resigned properly through my personal email id and got a reply from HR asking abt the medical proofs ( we had a verbal discussion earlier regarding the same and i was supposed to send these medical evidence , which i did send) after that i never received any email from them, regarding whether my resignation was accepted or not.
So if a resignation is not accepted or rejected explicitly, then what status should it be considered legally?
If resignation is not rejected by the company, then it is deemed that such resignation has been accepted by the company.


And then those absconding (which i am not) and termination letter came respectively.
There is no such term as "absconding" under labour law though widely/ wrongly used in corporate world. Prima facie, the termination even looks bad as if the company needs to termination someone for 'absconding', then charge sheet/ show cause has to be issued followed by domestic enquiry prior to terminating his service. 


Moreover in a paragraph, their legal notice claims that they have made several communication with me regarding this through email/phone, but this is not the reality, i never received any email/phone from them after the last email i sent to HR, the only thing i received after that is those absconding and termination letter.
And now after 6 months suddenly this legal notice.

All the allegations should be strongly denied.  A legal notice should be replied properly, probably through a counter legal notice.


Now my questions are:
1. How should i approach to reply their legal notice, means through a lawyer or individual.?
It is immaterial whether you reply yourself or through a lawyer. But the content of your reply should be from legal point of view which most probably a lawyer would be able to draft easily.


2. Should i reply to the law firm which sent the notice or directly to the employer?
Law firm


3. Should i try to negotiate with employer regarding the charges.?
It is your decision


4. Are those email conversations (me to HR through personal email id ) can be a valid evidence to prove my point in the court.?
I do not know the content of such coversation but definitely email communication can be used in courts.


5. In case they go to court, what are the chances that court will favor employee.?
Without seeing all documents and merit of the case, it will not be fair to predict the outcome of any case.


6. I am not involved/member of IT employee unions, does association with these Union's can help in this case.?

May or may not help.

 

Answers in BOLD

Kumar Doab (FIN)     07 February 2017

If you are covered by enactment (s) then the enactments provide for notice pay in lieu of notice period, to employer and employee.

The enactments shall prevail upon any private agreement that employer has drafted sand signed with employee.

 

Associations/unions/trade unions can render both help and support.

They can help to drill sense into the heads.

 

The Lawyer/law firm is engaged by employer and is paid by employer and on orders of employer, Lawyer/law firm that has issued legal notice shall have to close the matter.

The fitting reply to legal notice can help to put up the matter on permanent Shut Up mode.

 

The matter posted by you, contents of legal notice, your reply, everything can be contested on merits in court of law, if matter lands up in court of law. Court of law shall decide on merits. The clause in appointment letter that are violative of statues/enactments etc can be declared void.

In future also remain associated with unions and a very able counsel and remain properly informed and supported.

 

Find a good counsel and reply to legal notice.

 

How to find a good counsel from many that are available in big cities like Delhi has already been posted for you.

In cities smaller than Delhi and not a Metro there are few counsels and are well known.

Avoid posers, pretenders, stalkers, blackmailers that loiter at on line portals.

Online discussion have its own limitations and employee should consult elders of the family, competent and experienced well wishers, good employee’s/trade unions leaders, his won counsel specializing in respective filed of law at his/her own location and  avoid acting on one’s own.

 

Your very able counsel may opine on other remedies also for the dispute precipitated by employer and its attorney’s.

 

 

Karan Shah (Corporate Lawyer)     16 February 2017

Please check the "termination during probation" clause in your appointment letter.

Generall it mentions, "Your services are liable to be terminated without any notice or wages in lieu thereof during the initial or extended period of probation"

So if your appointment letter also is silent on the clause relating to notice period during probation period, the notice period clause of the Appointment letter will prevail.


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