Not serving notice period

Send her legal notice, sue her under 406 IPC, and file suit for damages based on the appointment letter under default clause. i do  not understand how come the other company can absorb her without your relieving order.

Hold ON!

Don't send any communication till we discuss in this thread.

Thereafter, of course  you have the liberty to proceed as deemed fit at your end.

What is this establishment; Commercial, Industrial, Small Enterprise?

What is its line of business: e.g.: IT, Banking,etc?

How many people are employed in it?

The Redg. office of the company and reporting office of the employee is located in which state?

Employee was located in which state?

What was employee’s designation and nature of duties and how many persons were reporting to employee?

Did  employee have any power to sanction leave, pass increment, conduct appraisal, recruit/appoint/terminate?

Who has drafted the appointment letter : You or HR Head or Legal cell or some Law firm of employer?

Are you a stake holder in drafting the appointment letter?

Who has signed the appointment letter?

Was the employee under probation period or a confirmed employee?

Reply point wise to each point.

What is this establishment; Commercial, Industrial, Small Enterprise? What is its line of business: e.g.: IT, Banking,etc?

IT

How many people are employed in it?

100+

The Redg. office of the company and reporting office of the employee is located in which state?

Regd office in Mumbai and Reporting Office in Kerala

Employee was located in which state?

Kerala

What was employee’s designation and nature of duties and how many persons were reporting to employee?

UI Designer, Webdesigning and none reporting to her

Did employee have any power to sanction leave, pass increment, conduct appraisal, recruit/appoint/terminate?

No

Who has drafted the appointment letter : You or HR Head or Legal cell or some Law firm of employer?

HR Head

Are you a stake holder in drafting the appointment letter?

No

Who has signed the appointment letter?

HR Manager

Was the employee under probation period or a confirmed employee?

Under Probation

I am happy that you have come back and have posted.

I shall endeavor to update you to the best possible.

>>> HR personnel should always be unbiased in their approach and should always counsel the employer to remain within purview of law and avoid buying bad image and getting declared as violator of law, employee’s rights.

The employer shall always need and shall always arrange for…………………………a shoulder to fire a bullet………………………and a chest to take the bullet………………………..

In case the decision is bad it is HR personnel’s shoulder and chest.

HR personnel should avoid to become a party and become liable to be charged in personal capacity………………………….and also should avoid to handle the matters that are legal although majority of the employers want HR personnel to handle legal issues as well.

HR personnel should always take the opportunity of employment to cultivate image, goodwill, and indulge in good HR practices for themselves and people will flock with HR person.

>>> You should ascertain why the employee has left in about 35 days?

>>> You should also appreciate that she has submitted resignation and thus has not remained silent……………………………and has certainly not absconded/abstained/absented.

Resignation can be without permission, notice.

The moment employee has submitted notice/resignation he/she has ended employer-employee relationship.

The employer has to ensure that wages of all days employee has worked (including FnF wages that may include OT/bonus/leave encashment/Gratuity etc) are supplied to employee on last day in office or say within next 3 days or max. within usual pay day as defined in various enactments applicable to the establishment…………………say 7^th of subsequent month if cycle is 1-31^st…………………………….alongwith other docs e.g. service certificate, relieving letter, Form16,PF number/a/c slips, ESIC card, NOC/NDC, FnF statement/payment,salary slips of all months, acknowledgment and acceptance of resignation…………………………etc by effective mode of communication preferably Redg. Post.

>>> The state Govt. of Kerala has included IT/ITeS in purview of Min. Wages.

You may check and ensure if she was paid below or more and rule out violation.

>>> The state Govt. of Kerala has included commercial establishments within purview of Standing Orders.

Also as per Bombay Shops and Commercial Establishments Act too (Sec38-B) if no. of employees is =>50 standing orders shall apply.

If standing orders are not certified Model Standing Orders shall apply.

You may go thru: Sec 13: Notice Period during Probation period is NIL.

The employer is personally held responsible for violation of standing orders.

You may go thru  Sec 13-18 of Model Standing Orders.

Model Standing Orders/Certified Standing Orders is statue/instrument of law and any service conditions inserted in any private agreement  drafted by employer and signed with employee………………………………e.g. appointment letter, contract of employment that is inconsistent with standing orders shall not survive.      

Hence notice period/pay of 30 days inserted in appointment letter to the employee is illegal.

>>> IT/ITeS/BPO/KPO companies  are covered by (Name of the state) Shops and Commercial Establishments Act.

This Act was enacted to govern the service conditions of employees working in establishments covered by this Act.

Any service condition that is inconsistent with this Act shall not survive.

Te long notice period of 30 days inserted by employer is detrimental to the interest of employee, beneficial to the interest of employer , and can easily be termed arbitrary too.

Kerala Shops and Commercial Establishments Act : Sec: 18: Notice period for service of <6M=NIL.

Bombay Shops and Commercial Establishments Act:Sec66: Notice period for service of <6M=NIL

Notice period for service of >3M,,<1Y=14 D

Notice period for service of >1Y=30D

>>> Non Compete Clause/Agreement; Indian courts have consistently been declining to enforce Non Compete Clause/Agreement, post termination of employment by employer/employee, as it hits right to earn livelihood, and clauses of Indian Contracts Act.

Hence employee can join any other employer after termination of employment be it next door/same floor/same building/same city etc…………………….

>>> The employer has to supply the salary slip at least a day before the date fixed for disbursement of wages, and it should be signed by both employer and employee…………..

The employer can be penalized if salary slip is not supplied and payment of wages is delayed by say……………………. Rs.7500/instance………………….

Payment of Wages Act;Sec13A

Min. Wages central Rules; Sec 26(3,4)

>>> The employee can:

 --Lodge complaint with Inspector under Payment of wages Act

--Lodge complaint with Inspector under Kerala Shops and Commercial Establishments Act

One of the job of the Inspector is to ensure that FnF wages of employee are paid in time.

--Lodge complaint with O/O Labor Commissioner.

This employee shall be covered as 'Workman' as in ID Act…………………….

--approach civil courts

---lodge criminal  complaint under u/s 406,420......................

---file for winding up petition.

--approach employee's unions, trade unions and unions in Kerala and Maharashtra have been strong................

>>> In the meantime you may go thru following threads and you shall be absolutely clear and you can download the judgments too including the judgments by Supreme Court of India:::

https://www.lawyersclubindia.com/forum/Whether-notice-period-has-to-be-given-during-probation-91808.asp#.UwDFP0eBmXU

https://www.lawyersclubindia.com/forum/details.asp?mod_id=85821&offset=1#.Uf4_JNKAqWM

https://www.lawyersclubindia.com/forum/Notice-period-nad-absconding-employee-92345.asp#.UpMpStIW1MA

https://www.lawyersclubindia.com/forum/Mnc-issuance-of-experience-certificate-re-leaving-letter-92229.asp#.UoiogdKAqWM

https://www.lawyersclubindia.com/forum/One-sided-notice-period-92171.asp#.UoiondKAqWM

https://www.lawyersclubindia.com/forum/Query-regarding-relieving-letter-and-continuity-bonus-92151.asp#.Uoio6NKAqWM

https://www.lawyersclubindia.com/forum/Whether-notice-period-has-to-be-given-during-probation-91808.asp#.UoSg3nCAqWM

 https://www.lawyersclubindia.com/forum/Notice-period-92146.asp#.UoTD33CAqWM

https://www.lawyersclubindia.com/forum/Holding-of-salary-in-notice-period-of-two-months-109150.asp#.VClNNmeSwb8

https://www.lawyersclubindia.com/forum/Can-i-send-legal-notice-to-my-employer-108857.asp#.VClBeWeSwb8

 >>> Hope this shall suffice.

You are welcome to come back for any points that you may have.

>>> It shall be better to call this employee and settle her accounts amicably and separate with smile.

Hi All,

I am stuck up with mess, I work in XYZ BPO firm from 16^th Aug 2012 as HR, my actual the notice period as per co. policy is 90days and now I got a good opportunity with other organisation, which they asking me join on 6^th of Nov if not the offer we get revoke, but in my current employer is not ready to relieve me before 28^th Nov 2014, I have put down my papers on 29^th Sept my current employer asking me serve 60days of notice. Where as my offer letter terms read as follows- “This contact of employement between you & the co. may be terminated by either party, during he probation by giving 30days of notice ir gross monthly salary in lieu thereof. Post confirmation this contract may be terminated by giving 90days of notice or gross monthly salary in lieu therof. However release from the service of the co. will be subject to satisfactory handover if the responsibilites assigned to you prior approvals from immediate managers ans Business unit heads”, so I am ready to buy out remaining 60days of notice period and asking them to release on or before 5th Nov, but replied I received from my current employer is big NO, so if go for legal help in labour court on filing a). mental harrasment and b).hampering my career growth…. is that works…..Please suggest..!!!

Other details:-

What is this establishment; Commercial, Industrial, Small Enterprise? What is its line of business: e.g.: IT, Banking,etc?

BPO

How many people are employed in it?

7000

The Redg. office of the company and reporting office of the employee is located in which state?

Regd office in Mumbai and Reporting Office in Bangalore

Employee was located in which state?

Bangalore

What was employee’s designation and nature of duties and how many persons were reporting to employee?

Sr Recruiter, and none reporting to me

Did employee have any power to sanction leave, pass increment, conduct appraisal, recruit/appoint/terminate?

No

Who has drafted the appointment letter : You or HR Head or Legal cell or some Law firm of employer?

HR Head

Are you a stake holder in drafting the appointment letter?

No

Who has signed the appointment letter?

HR Vice president

Was the employee under probation period or a confirmed employee?

Confirmed employee