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Sachin Malik (TSS)     31 March 2013

Mis commitment from the company

Hi, 

My name is Sachin Malik, the problem is till Jan 2013 i was working with an organisation. One day i receied a call from a consulancy and they offered me an opening with a company, salary and designation offered was good.

So they told me that you will on a contract for 3 months and after that, the organsiation will hire you on there payroll. So i joined the organsiation. on payroll of consultancy for 3 months

Now i joined the org on Jan 17 and the contract is till April 16 2013 (3months). I had a meeting with my curent manager and he completely denied regarding making us permanent (there is one more person i came to know, working on payroll of same consultancy that i now came to know, and has same situation)

and now they are going to fire me, without any notice and salary.

Is there any way i can file a case again them, specially the consultacny for the miscommitment, not giving me any notice period, and not compensation salary for the notice period and termination.

 

Clause on the appointment letter:

02 EMPLOYMENT PERIOD You will be on payrolls of XXXX Consulting Pvt Ltd from the date of your appointment and you will be working at XXXX Client Site. If in the opinion of the Company, you are found suitable in the appointed post, you will be confirmed accordingly. This agreement of employment is terminable by either party giving one month (30 days) notice. Either party is not bound to give any reason thereof. You will be relieved from your services depending upon an approval from your Reporting Manager at Client Site and completion of the Knowledge Transfer, the assignment and task at hand, at the discretion of the Management. The company reserves the right to pay or recover salary in lieu of notice period. Further, the company may, at its discretion, relieve you from such date as it may deem fit even before the expiry of the notice period without compensating for the unexpired period and is not bound to give any reason thereof. 

 

Please suggest.

Thanks



Learning

 2 Replies

Manish Udar (www.Mehnat.IN)     31 March 2013

This appears to be a case of cheating.

www.mehnat.in

Kumar Doab (FIN)     31 March 2013

You have posted that:

--“ Now i joined the org on Jan 17 and the contract is till April 16 2013 (3months).”

 

“from the date of your appointment and you will be working at XXXX Client Site.”

 

The company has not stated anywhere in the paragraph you have quoted from appointment letter, the three months period you have mentioned in your post.

 

--“If in the opinion of the Company, you are found suitable in the appointed post, you will be confirmed accordingly.’

Company has also not stated anywhere till the service is confirmed in writing; you shall be on probation or training or what shall be your status.

 

Apparently there is no described period to test and declare you fit for absorption in permanent employment. Thus the period is indefinite.

 

--“The company reserves the right to pay or recover salary in lieu of notice period.’

The company has not stated whether the employee can also tender notice pay in lieu of notice or not?

Company has left the rest of the things to guess, imagination, speculation and it mat state that interpretation of the company shall be final and binding on the employee.

 

--“ Further, the company may, at its discretion, relieve you from such date as it may deem fit even before the expiry of the notice period without compensating for the unexpired period and is not bound to give any reason thereof.”

 

Supreme court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers ...

 

‘11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.”

 

--“ You will be relieved from your services depending upon an approval from your Reporting Manager at Client Site and completion of the Knowledge Transfer, the assignment and task at hand, at the discretion of the Management.”

 

This implies employer has the right to decline acceptance of notice pay in lieu of notice period while the employee does not have this right.

 

 

--“ and now they are going to fire me, without any notice and salary.’

“The company reserves the right to pay or recover salary in lieu of notice period.’

 

The implied meaning of the statement of the company should be that it also shall have to tender notice pay.

 

The contract of employment should promote equality.

 

Any policy in the larger interest and beneficial to both employer and the employee has the sanction of law as otherwise it will be easily termed as arbitrary.

 

In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Standing Orders Act, ……. If the employee falls within the definition which has been provided under these enactments, then the employee would be protected up to that extent.

 

 

Designation alone does not decide if employee is a workman or not. Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman. The labor laws applicable to workman limit the choice to employer.

 

You may also look into the Shops & Establishment Acts Act, which does not indiscriminate between workman and non workman and is applicable to all employees:

The employer may cry for Specific Relief Act, and that cross reference is not possible however your lawyer would know how to handle it.

 

You may approach a competent and experienced labor consultant/service lawyer and show all your documents and give inputs and understand the merits, and proceed further under expert advice of your lawyer.

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