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Deepika (Sr Executive)     15 May 2014

Notice period

Hi My name is Deepika and I am working with a MNC from past 4.5 years.. I have got a new job and I need to join there on 10 June. My notice period in current company is 2 months which has been revised in my increment letter 2013.I put my resignation here on 12 May and my last woring day is 10 june according to one months notice. There is a shortfall of 30 days. I am ready to pay for that shortfall. But my HR and ops team is denying to approve my resignation and they are saying I have to serve 60 days notice period. I told them that there is no fight in team as 12 people are in my team and one is joining shortly. According to company need 10 people should be active in system to serve the client. There is 20% buffer and I am agree to work for 1 month and train properly that new joinee as well. They have no valid reason to stop me for 2 months. But they are stuck on 60 days notice. My performance is bad from last 5 months as I am not meeting quality parameters. I was frustrated that is why I looked for a new job. If I will stay here the company will make a study on my performance and will kick me out after 2-3 months and If I did not join the new company on 10 june they will drop my candidature. Please suggest what should I do?

Below is attachment of my HR policy where they say that there is a provision to buy back shortfall.

Thanks



Learning

 15 Replies

Kumar Doab (FIN)     15 May 2014

 

>>> HR Policy:

3.2.1: Not Necessarily; Rather employee should always preferably tender notice of resignation by letter addressed to appointing Authority, MD,thru Redg. Post. And obtain acknolwedgment from company and POD and certified copy of run sheet of postman from PO.

By sumitting on some internal software tool you have given unwarranted (to you) intervention by line managers, HR that are not just another employee in the company and not your employer.

Until or unless the Board of the Compnay authorizes no one has any right or comepetence to accept or reject resignation, appoint or terminate.

3.2.2;NO. Once employee has resigned he/she has ended the employment, employer-employee relationship. Either of employer, employee can initiate separation.

Resignation can be without permission or notice.

3.2.3; Whatever compnay may write in its internal/private policies the private policies of the compnay are not and can not be law unto thesmselves.

The compnay that operates in India  is subordinate,servant to law of the land and lawful authority.

As per varuous enactments the notice period and notice pay and rate of notice pay has been well defined and compnay can’t change it,redefine it, modifiy it,amend it,………………………………………….misinterpret it, change it style and nomenclature…………………………………..SIMPLY SAID ESTABLSIHENT AND EMPLYER ARE SUBORDINATE AND SERVANT TO LAW OF THE LAND AND LAWFUL AUTHORITY.

E.G. as stated in (name of the State) Shops and Commercial Establishments Act of many sates it is @ last month’s wages…………

3.2.4; The notice period/pay stated in any prvate agreement that employer has signed with employee CAN NOT HENCE shall not overrule, supersede, prevail upon the statues/instrument of law/enactments applicable to the establsihment.

 ESTABLSIHENT AND EMPLYER ARE SUBORDINATE AND SERVANT TO LAW OF THE LAND AND LAWFUL AUTHORITY.

T&C inserted in any any prvate agreement that employer has signed with employee e.g. appointment letter, contract of employment that is inconsistent with statues/instrument of law/enactments applicable to the establsihment/law of the land shall not survive.

3.2.5: NO. This is illegal, unlawful, contempt of the judgements delivered by apex court of ‘Republic of India’.

e.g.; Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers ...

Para:11

https://www.indiankanoon.org/doc/1452145/?type=print

The effective date of resignation tendered as per notice of resignation/resignation by employee can not be preponed, or postponed by employer.

 

3.2.6: YOU MAY AGREE TO IT, AND QUOTE IT IN NOTICE OF RESIGNATION,SUBSEQUENT COMMUNICATIONS, OF COURSE UNDER PROPER ACKNOWLEDGMENT.

JOB APPLICATION, JOINING, RESIGNATION IS A PERSONAL MATTER AND CAN BE COMMUNICATED FROM PERSONAL EMAIL ID OR BY LETTER.

 

>>> Increment letter 2013

First of all it in unfair, coercive practice to include the clauses on notice period etc in Increment letter and get the acceptance via acceptance to increment. The increment is granted after  due process of appraisal.

 

EMPLOYEE SHOULD BE CAREFUL, VIGILANT TO WRITE ON COPY OF SUCH LETTER THAT “INCREMENT ALONE IS ACCEPTED”…………………………………….AND/OR ADD THAT CHANGE IN NOTICE PERIOD IS NOT ACCEPTED”…………………………………..AND?OR ‘Received’ (only).

Change in Notice Period amounts to change in service conditions and it can not be made without prior notice of 21 days as per The Industrial Disputes Act, 1947: Sec:9A…………

 

2. It is stated that ‘and consistent with governing law’…………………………………

 

What is this Governing Law?

The service conditions are stated in and governed by Standing Orders applicable to the establishment (Certified/Model) and extended to the designation of employee, ( Name of the State) Shops and Commercial Establishments Act…………….and various enactments applicable to the establishment.

The notice period is not dependant on appointment letter/contract of employment alone.

 

IN FACT THE T&C INSERTED IN APPOINTMENT LETTER OR ANY OTHER POLICY AND ANY PRIVATE AGREEMENT THAT EMPLOYER HAS DRAFTED AND SIGNED WITH EMPLOYEE, THAT IS INCONSISTENT WITH STATUE/INTRUMENT OF LAW/STANDING ORDERS SHALL NOT SURVIVE.

In your case notice period of 2 months may not be applicable. Check with your lawyer.

You may go thru:

 

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

 

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

As per Model Standing Orders notice period during probation period is NIL and after confirmation of service it is 1 month only and FnF wages and service certificate has to be supplied by last day in office.

YOU may go thru Sec13 to 18.

Thus even if notice period is amended to 2 months via increment letter, it shall continue to remain either NIL or 1 month.

If standing orders are not applicable then service rules and regulations/HR policy etc that is mentioned in appointment letter should also be looked into, AND THESE TOO SHOULD BE IN LINE WITH  ( Name of the State) Shops and Commercial Establishments Act………………………APPLICABLE TO THE ETABLSIHMENT.

Notice period ( A PART OF SERVICE CONDITIONS) is also stated in (Name of the State) Shops and Commercial Establishments Act.

It has been mentioned in one of threads that Chief Inspector under this Act stated that notice period stated in the Act shall prevail upon notice period stated in appointment letter.

https://www.lawyersclubindia.com/forum/Employer-not-relieving-employee-contt-89308.asp#.UkP5C9KAqWM

Designation alone does not decide employee is covered as ‘Workman’ as in ID Act and ‘Employee’ as in (Name of the State) Shops and Commercial Establishments ACT.

 

hAVING EXPALINED IT YOU MAY WITHOUT FAIL STATE IN NOTICE OF RESIGNATION AND SUBSEQUET COMMUNICATIONS THAT NO TASKS ARE PENDING AT YOUR END AND ROUTINE DUTIES BE ASSIGNED TO YOU THAT CAN BE COMPLETED WITHIN AND UPTO LAST DATE IN OFFICE (EXPIRY OF NOTICE PERIOD TENDERED BY YOU) AND TO WHOM YOU SHOULD HANDOVER THE CHARGE AND COMPNAY PROPERTY ( DRAW A LIST AND ASK TO VERIFY) WITHIN AND UPTO LAST DATE IN OFFICE……………………UNDER PROEPR ACKNOWLEGMENT ON THE SPOT……………AND TO INFORM YOU THE EXIT FORMALITIES IF ANY IMMEDIATELY.KEEP COPIES OF NOC/NDC ETC………………YOU MAY ADD THE INFOR LIKE ……………12 PEOPLE ARE IN MY TEAM ETC…………

CHECK WITH YOUR LAWYER.

 

 

 

 

 

 

What is this company/establishment: Commercial, Industrial, Small Enterprise?

 

It should have displayed its registration Certificate at a conspicuous place e.g near entrance/on notice board!

 

How many employees are employed in it?           

 

What is your designation and nature of duties?  

 

Has your service been confirmed in writing?

The establishment works  for how many days/week? ( You might be eligible for Gratuity.)

YOU and also Redg. office of your employer is located in which state?

 

 

It is guessed that you are with some support group of some Private Insurance Company?

 

You may not mention details about the Insurance Company but the establishment that is your actual employer.

 

 

It is for your information that Unions of employees of Private Life Insurance Companies have been formed in many states and they have done a good job.

 

The first line managers (like DO of LIC) is declared a ‘Workman’!!!!

 

 

Unions are best platform to negotiate service conditions and to address such issues.

When union are there to represent the line managers, HR , employers shall not violate the rights of employees with impunity.

 

 

Are you aware that employees can form ‘Works Committee’ and it is an authority and President /Chairman is on rotation from employees/employer and it has equal number of employees from employer/employees?

 

The Industrial Disputes Act, 1947THE INDUSTRIAL DISPUTES ACT, 1947

CHAPTER II: AUTHORITIES UNDER THIS ACT

3. Works Committee

 

 

 


Attached File : 522389330 model standing orders industrial employment standing orders rules.pdf, 522389330 works committe is authority under id act.pdf downloaded: 214 times
1 Like

Deepika (Sr Executive)     15 May 2014

Thankyou Kumar Doab,

I am working with an Insurance company,US based . This is support center for back office operations. It is registered in India. (Pvt. Ltd.-Delhi). Approx 3000 employes. I got offer letter in Nov 2009 in which is it mentioned that your notice period would be 1 month or in lieu you need to pay salary (base - pf & gratuity). The notice period of 2 months revised in my Increment letter which I signed in Apr 2013 at the time of my appraisal. I am Sr. Executive here and responsible to process policies for customer. We are total 12+1 (new joinee) members in one team. According to client requirement the 10 people should be active. 3 buffer in case leave or resgination or internal movement of someone. The HR and ops team are taking my multiple meetings for this concern and I am giving them one option that 1month notice period I can serve and I can pay for rest 30 days which is shortfall for notice period of 2 months. But they are not ready. They want one thing from me 'to serve 60 days notice period.They are even not approving my resgination. And my new company needs my proper releiving from here. Please suggest...

Kumar Doab (FIN)     16 May 2014

>>> You have not replied to a few points. This information shall help you, hence post it.

 

Has your service been confirmed in writing?

 

 

 

You are located in which state: Delhi or UP?

 

Redg. office of your employer is located in which state: Delhi or UP (Noida)?

 

 

It is guessed that you are with some support group of some Private Insurance Company? This support group might be a subsidiary or agency or subsidiary of Insurance Company.

 

You may also clarify: Who is your employer and who has issued the appointment letter; Insurance Company or Support Group?

 

What was the location mentioned in appointment letter: Delhi or UP and what is your current location; Delhi or UP and is the current location assigned to you in writing?

 

Our hunch is that HO of the support group is in Noida, however you need to confirm the location of Redg. office which might be mentioned in your appointment letter or registration certificate displayed in office.

 

It is felt that this support group might be registered as BPO/Call Centre and it is an Information Technology Enabled Services company.

 

As per court judgments too BPO/Call centre are covered by Shops and Commercial Establishments Act.

 

 

Delhi High Court

Mantec Consultant Pvt. Ltd. vs State & Anr. on 11 April, 2012

https://www.indiankanoon.org/doc/147071732/

 

 

It is felt that Delhi has not granted any exemption from the provisions of Industrial Employment Standing Orders Act, and since no. of employees is 3000 standing orders should be applicable.

As already pointed out if standing orders are not certified Model Standing orders shall apply and shall overrule and prevail upon any private policy/agreement of the company.

 

If your service is confirmed in writing notice period applicable to you should be 1 month only and FnF wages and service certificate has to be supplied by last day in office.  

 

 

AS per your designation you should be covered as ‘Workman’ as in ID Act and ‘Employee’ as in Delhi Shops and Commercial Establishments ACT.

 

Since you are apprehending termination you can raise an Industrial Dispute now also.

 

 

>>> While the 60 days notice period is beneficial to employer it is detrimental to your interest since next employer is unwilling to grant joining time of 60 days.

Your present employer might also have a policy to grant joining time of 30 days only to incoming employees while it might be keeping 60 days time for exiting employees.

AS per Delhi Shops and Commercial Establishments Act, too the notice period applicable is 1 month only.

1 month notice period is sufficient on all counts for the employer to put his house in order.

Sec: 30. Notice of Dismissal: (2) No employee who has put in three months’ continuous service shall terminate his employment unless he has given to his employer a notice of at least one month, in writing.

 

(a) Applicability of section 30

The protection of the provisions of the section is available to all persons who fall within the

definition of the term “employee” as given in section 2(7) of the Act and who have put in three

months’ continuous services. In the absence of any standing orders or any contract between the

employer and the contesting respondent containing any particular terms or conditions, the

conditions of service of the employee relating to his employment in an establishment at Delhi are

covered by section 30(1) of Delhi Shops and Establishments Act, 1954;

 

(d) Section 30 of the Delhi Shops and Establishments Act, 1954 does not exclude the

application of the Industrial Disputes Act, 1947

 

 

37. Powers and duties of the Inspector.

(b) Duties of the Inspector: (i) that in dispensing with the services of an employee the provision of the Act and Rules have been complied with and no dues payable under the Act or Rules have been

withheld;

 

 

 

>>> The establishment works for how many days/week? ( You might be eligible for Gratuity. Moreover Gratuity seems to be inserted in CTC sheet issued to you hence it may be to your advantage. You may go thru many threads on Gratuity at:

 

https://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.U3W1LkeBmXU

 

e.g;

 

 

https://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp#.U3W1Y0eBmXU

 

and others covering CTC….. )

 

 

 

 

Who is conducting meetings with you: employees of Insurance Company or Support Company? They might be adding notes/notings of the meeting in your personnel file. Whereas for you all transactions are verbal and you have not placed them on record in writing with a copy to you.

 

Record all verbal transactions(audio/visual) and submit minutes and build favorable record in writing.

 

 

 You should submit a final representation narrating dates, venue, names with designation and brief minutes of discussion by letter/email from personal email id addressed to appointing authority, MD, Chairman…………………

                 

Has the company declined to approve your resignation in writing? If yes download the printed version.

 

 

Do you have copy of the notice of resignation tendered by you? If NO, download the printed version from so called resignation tool.

As pointed out earlier submit hard copy of the notice of resignation addressed to appointing authority, MD,by redg. post and obtain POD certified copy of runs sheet of postman from PO.

 

>>> You should first of all consult elders in the family, competent and experienced well wishers, and along with them a competent and experienced Labor Consultant/service lawyer, along with copies of all docs on record, give inputs in person and now let all of your representations be structured and drafted by them.

 

 

 

IN your notice of resignation and subsequent communications addressed to appointing authority, MD, you may affirm that the notice pay be adjusted in FnF statement/settlement @ basic pay as stated at clause number in appointment letter/HR policy dated……………..issued to you and hard copy of correct FnF statement be supplied to you by redg. post  well in time for verification and acceptance, within and up to last date in office i.e. dated………………as per notice of resignation dated tendered by you……………….and the acknowledgment of notice, acceptance of resignation, correct FnF statement, payment of FnF wages by bank DD only,Form16 as per correct FnF Statement, service certificate, relieving letter (ensure with good comments, of course not with adverse comments, and avoid without  comments), PF number/PF a/c slips or epassbook of each year of employment, ESIC card, Group Insurance policy number, Health insurance policy number and I cards, NOC/NDC, certificate of handover, acknowledgment of company property etc…………………….is sullied to you by redg. post within and upto last day in office by redg. post and that postage prepaid self addressed envelope is attached.

 

Or your lawyer may advice to attach cheque for the notice pay @ Basic pay…………

 

Under proper acknowledgment on the spot and the notice pay is computed in Fnf statement.

 

 

 

YOU MUST WITHOUT FAIL MENTION THAT YOU HAVE BEEN SINCERE, OBDEINT, AND HAVE DSPLYED EXCEPTIONAL LEVELS OF CHARACTER, DGNITY, INTEGRITY AND HAVE EXTENDED STRECHED WORK HOURS AS AND WHEN DEMANDED TO WORK FOR COMPANY (DOWNLOAD ATTENDANCE RECORD, EMAILS ASKING FOR IT,SMS, ENTREIES IN REGISTER FOR IN/OUT TIME ETC) AND NO STINKER/SHOW CAUSE NOTICE HAS EVER BEEN ISSUED TO YOU AND YOUR WORK HAS ALREADY BEEN APPRECIATED IN OFFICE.

 

If OT has not been paid it is time to lodge claim for OT in writing.

 

 

>>> You may preferably inform next employer in writing that as per letter dated………………….the notice period applicable is 2 months and it has been informed in interview and current employer is unwilling to relieve before 60 days and hence you should be absorbed without acceptance of resignation/relieving letter and on the strength of copy of resignation and its POD only. You may preferably obtain concurrence from next employer in writing.

 

You should also negotiate and next employer should agree to buy out your notice period (in writing) without any conditions and handover notice pay upon joining.

 

 

 

>>> There are IT/ITeS employees unions and female employee’s unions too and they have succeeded to get their demands met e.g;

 

https://www.itecentre.co.in/

https://ithiworld.wikispaces.com/News+Update

IT/BPO Voice of India | Facebook

UNITES Professionals

www.unitespro.org

https://www.wbitsa.org/

www.itpfindia.org/

https://itnitesunion.wordpress.com/author/itnitesunion/

 

 

Shiv Mahiti Ani Tantradyan Sena(Shiv IT SENA)

mankar.janardan@gmail.com


https://www.shivsena.org

 

 

 

https://www.amrc.org.hk/node/1088         CBPOP

https://www.freepatentsonline.com/article/Indian-Journal-Industrial-Relations/185430721.html

https://bpo.knowledgehills.com/Directory/BPO-Jobs/CBPOP-Centre-for-BPO-Professionals.aspx

 

 

https://www.dnaindia.com/mumbai/report-shiv-sena-forms-first-union-in-information-technology-sector-1465435

Shiv Sena forms first union in information technology sector

 

Trade Unions like CITU,INTUC,AITUC,BMS………….are more than willing to embrace the IT employees.

 

United employees can rake up the issue with Govt. Employee’s is a big community and huge vote bank that NO party/Govt can ignore.

 

 You can also approach O/o Labor Commissioner, Inspector under Delhi Shops and Commercial Establishments Act……………..

 

Lawyers are trained in skills of arbitration, mediation, conciliation, and your lawyer may be able to able to resolve the matter in your favor without any litigation too.

There are threads suggesting that lawyers succeed…………………….e.g.

https://www.lawyersclubindia.com/forum/Neither-resigned-nor-terminated-salary-unpaid--81683.asp

 

There are threads to suggest that employees that are properly informed are able to defend their interest and win their cases on their own too e.g;

https://www.lawyersclubindia.com/forum/details.asp?mod_id=70662&offset=3#.U1su_keBmXU

 

There are threads to indicate that just by showing the threads at LCI many employees were able to resolve their matter e.g.

https://www.lawyersclubindia.com/forum/Leaves-adjusted-against-notice-period-101910.asp#.U3X3-keBmXU

 

https://www.lawyersclubindia.com/forum/Not-giving-salary-for-the-last-2-months-48187.asp#.UqWXbtIW1MA

 

At Delhi you can access Lawyers par excellence.

 

You may proceed under the expert guidance of your lawyer.              The lawyer that has seen all docs and examined the inputs in person can advice you the best.


Attached File : 736117810 delhi shops & establishments act, 1954.pdf, 736117810 lci thread fnf done by employer by effect of lci thread.doc, 736117810 call centre bpo is under se act high court.doc downloaded: 219 times

Deepika (Sr Executive)     16 May 2014

Hi,

Thanks for you information and threads,

I am working in a BPO in Noida and this is support center. This office is registered in Noida and also I have gotten an offer letter which I have signed  and that offer letter has this office’s address. Support center is my employer and HR ,Ops eam of this center is taking my meeting. I am living in Delhi. My salary has deduction gratuity and I am with this company from last 4.5 years (joined on Nov 2009).

Again I have discussions with Managment about my early releiving but they have stuck to one thing- Serve 60 days notice period,they do not want to buy 30 days shortfall. They do not want to approve 30 days release request which I put in their software or application you can say which they are using to put resign and mark attendence,leaves a[pprovals of employees. Can I give my resgnation in writing which is notarized?

Kumar Doab (FIN)     16 May 2014

IN your last post also you have not replied to all questions.

 

You have posted that:

----" Can I give my resgnation in writing which is notarized?"

This gives an impression that you are not properly informed and have not consulted elders in the family, well wishers that are experienced, senior and understand the labor matters and law, labor consultant/service lawyer/law firm, union leaders. 

Let the resignation and any other communication be now drafted and structured by ...........them..................preferably by your lawyer. You may put the same date on it, on which you had submitted in resignation too.

Download your attendance record.

 

----“ They do not want to approve 30 days release request

Resignation is not a request.

It has been clarified that once you have submitted the notice of resignation/resignation you have notified that employer –employee relationship has ended, and that effective date of resignation tendered by employee can not be preponed or postponed.

 

----“ I am working in a BPO in Noida and this is support center. This office is registered in Noida and also I have gotten an offer letter which I have signed  and that offer letter has this office’s address.”

 

Although a company should write its redg. office address in the letterhead it uses still it might not have.

You may find out if it is the redg. office address also as per registration of the company in India.

The benefit would be that if it is redg. at Delhi then you can file your complaint at Delhi too.

Employee can agitate at any location where company has an office.

However companies are known to show tantrums that employee ahs agreed in appointment letter signed by it that jurisdictional courts shall be at…………………….say Delhi/Noida.

Still if employee agitates at location of Redg. office such tantrums may not last long.

Since  you are located at Noida (U.P)  the Uttar Pradesh Shops and Establishments Act (termed as U.P. Dookan aur Vanijya Adhisthan Adhiniyam, 1962) should apply.

You may go thru: 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.

And other sections too.

The info provided in this thread is more than sufficient.

It is reiterated that you should consult your lawyer AS AP and proceed under his expert advice.       

 

 

 


Attached File : 736152574 up se act.doc downloaded: 96 times

Niladri Sekhar Jyoti (MT)     25 May 2014

Dear Doab Sir,

I need help form you regarding my situation.

I joined a pvt bank on 5th May 2014 as Management Trainee, and since then not at all enjoying my work, the culture and environment is also very negative. I feel mentally sick here, and continuing even a single day is very tough for me. I am very desperate to leave, and that too with immediate effect.

Now, I have few queries, and I was wondering if you could help me find answers to them.

My appointment letter says the below points

Point 1. The appointment letter is addressed to me but in two occasion my name is written with salutation as Ms. though I am male.

Clause 1. I will be undergoing training period for one year and will be in probation, post completion of which I will be in the permanent service of the employer.

Clause 2. I will have to serve three months notice period for separation.

(in above clause there is no mention of whether it's for probation period also. However, I found this point in HR Manual of the company that in the probation period employees including Management Trainees will have 1 month of notice period.)

Clause 3. In case I am not serving my notice period I have to pay basic salary and consolidated allowance in lieu of remaining notice period.

My queries are:

Query 1. I asked for the corrected copy with proper salutation, the HR said, ok, just sign it now, we will send you the corrected one soon. Till date have not received the corrected one. Now that I have signed the one with error in salutation, will it be binding on me? Considering that I am not Ms. So n So, even though the name matches?

Query 2. If I resign and ask for relieving me immediately, for how much notice period I have to pay, will the clause in my signed appointment letter (3 months) supersede what have been prescribed in the HR manual (1 month for probation period)? Or I can pay for one month only and argue on the HR manual clause?

Query 3. In case they do not agree to relieve me immediately (say maximum 2 days), can I formally put resignation and seek release by next two days, and take the copy of these communication and stop coming to office (And I will also in writing communicate them that I am ready to pay for the remaining notice period, i.e. the full notice period). In this process will I be legally correct with my action? At any cost I need to leave soon. No specific duty is assigned to me that needs any handover.

Query 4. Even though in Appointment letter basic plus consolidated allowance is mentioned as the notice payment, considering I am in probation (and as per clause not a permanent employee) can I just pay the basic pay for remaining notice period, resign and leave. After that can they claim full salary or act legally against me? Relevant to mention that I have completed only about 20-25 days in the company.

I see your answers are very elaborate and logical and thus makes us understand things in an easier manner. Hence request you to quickly advise me and help me come out of this moral quandary.

Thanks in advance

Niladri

Kumar Doab (FIN)     27 May 2014

You may:

1.    Narrate in writing :

I asked for the corrected copy with proper salutation, the HR said, ok, just sign it now, we will send you the corrected one soon. Till date have not received the corrected one.

And mention the reminders given in office. If possible quote dates, names etc………..attach the copy and demand corrected appointed letter in original be handed over to you first and incorrect one be taken on the spot.

The HR personnel that drafted the appointment letter would have had to explain the error to his/her bosses; hence it was imposed on you.

The error has to be corrected.    

 

2.    The notice period/pay is part of service conditions and is not dependant on appointment letter alone. If standing orders are applicable and extended to your designation these shall prevail upon appointment letter. If standing orders are not certified but are applicable then Model Standing Orders shall apply. YOU may go thru Sec13-18.

The notice period during probation period is NIL and after confirmation is 1month.              

 

You may go thru:

 

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

Discussion > Labour & Service Law > Employment > Whether notice period has to be given during probation

 

 

The trainees are engaged as per management standing orders or as per apprenticeship Act.

If you are engaged as per management standing orders then these should apply to you.  

The private bank might have registered under (name of your state) Shops and Commercial Establishments Act which was enacted to govern service conditions in Shops, Establishments, Commercial Establishments Act………………………………If you are covered by the def. of employee as in the Act then you may go thru clause of Notice of dismissal………………………..depending upon the length of service notice period may be max. up to 1 month.

If you are not covered by say by both………………… standing orders, (name of your state) Shops and Commercial Establishments Act then service conditions may be governed by HR policy, service rules and regulations reference of which is quoted in appointment letter.    

Download the latest version of HR manual too.

If it is mentioned in appointment letter that service conditions shall be governed by HR manual then you may quote from it and claim that notice period is 1 month.

3.    Resignation can be without permission and notice. If notice pay in lieu of notice period is mentioned in appointment letter drafted by employer and signed with employee then it is applicable. However you should mention that no tasks are pending at your end and routine duties be assigned that can be completed within and up to effective date of resignation and to whom you should handover the charge within and up to effective date of resignation?

For applicability of notice pay you may again look into service conditions applicable to you say in HR manual.

4.    You should record (audio/visual) the torture that you have been facing for use at appropriate time in appropriate forum.

5.    Some of private banks employees are members of bank employee’s unions. YOU may get in touch with them.

 

Sufficient has been discussed in this and other thread.

 

It is suggested that you may get in touch with local labor consultant/service lawyer, show all docs on record  and proceed under expert advice of your lawyer. Let your lawyer draft all of your representations.

 

 

1 Like

Niladri Sekhar Jyoti (MT)     27 May 2014

Dear Dorab Sir,

As expected I got the most in depth analysis from you. Thanks for the valuable feedback. It has given me enough understanding of the issue and its legal impacts.

Thank you so much. 

NPKailaasam (ADVOCATE & Management Consultant)     29 May 2014

Hi Deepika, Dont worry You can join in your new job and don't miss the good oppertunity, Give legal notice through Lawyer and face the issue boldly.Nothing will happen to you by your old company.

Deepika (Sr Executive)     06 June 2014

Hello Sir,

I just want you help me because my company is harrassing me in every possible way during my notice period.

First they made me to serve 60 days notice period. Now m y Supervisor is telling me to extend after shift end and also stopping me to go on breaks like tea or dinner break. She is saying that Deepika cut your breaks ,sit on you desk and work more than you capacity.

I dont know what to do as I am getting depressed day by day....

Please help...

Deepika

Kumar Doab (FIN)     07 June 2014

@ Deepika,

ENOUGH HAS BEEN DISCUSSED AS FAR AS YOUR RIGHTS AND LEGALITIES ARE CONCERNED.

Record all such tantrums (audio/visual).

Leave apart your supervisor the employer himself can not:

- cut the breaks………………….If you concur then breaks may be rescheduled only if there are legitimate and compelling reasons for it………………….

-ask you to work beyond scheduled work hours…………………………… only if there are legitimate and compelling reasons for it………………….and in such a case if you concur the OT has to be paid.

The supervisor is resorting to verbal communications so that there is nothing on record, however you can record and claim OT…………………………..download the works assigned to you in office even if verbally and performed by you…………………..

The supervisor and company shall also claim that you stayed on desk on your own to complete your pending work only………………………….and no OT is applicable…………………and no one ever pressurized you.

There is no reason and logic for feeling pressurized……………………..

 You are feeling pressurized since you are submitting to pressure…...........................

You may also seek help from trade union formed for employees of Insurance Sector:

 

 

New Generation Bank and Insurance Employees Union

 

Mr. C.S.Vinod: 09895102936

secretary@ngbieu.com

https://ngbieu.com/

 

BE SMART.

 

 

Niladri Sekhar Jyoti (MT)     14 June 2014

Dear Doab Sir,

 

Sorry to bother you once again. But in my explaining the facts about my case earlier in this thread, I misunderstood and the training period is same as probation. But now I will copy paste the clauses and have some query regarding this:

 

Appointment Letter:

 

1. Employment: 

a. With reference to discussions with you, we are pleased to offer you appointment as Management Trainee in the Bank. You will be on training for the first one year of your service. On successful completion of the training period of one year, you may be absorbed in the permanent service of the Bank in the grade of Executive / Assistant Manager. In case you performance is not upto the mark, the initial period may be extended by a further duration of six months to one year.

--

--

 

11. Termination of services

a. Your service may be terminated at any time without cause by giving not less than 90 (ninety) days notice in writing, and on the expiry of such a period you shall cease to be in the employment of the Bank, provided, however, that the Bank shall be entitled to terminate your employment at any time by payment of 90 (ninety) days Basic Salary and Consolidated Allowance in lieu of such notice at the discretion of the Bank.

b. You shall be entitled to terminate this appointment without cause at any time by giving not less than 90 (ninety) days notice in writing. You may also terminate the appointment by payment of salary (basic & consolidated allowance) in lieu of notice, acceptance of which shall be the sole discretion of the Bank.

c. However, in the event of misconduct on your part of breach of any provisions of the Code of Conduct, the Bank shall be entitled at its sole option to terminate your employment with immediate effect by a notice in writing. 

 

 

HR Policy Manual (Version 2.0 which is latest, and updated on 21st October 2013)

Definitions:

- An employee means a person in employment of the Bank in all parts of India. This includes permanent employee as well as trainee or probationer serving his of her period of training or probation. This does not include any temporary / contractual (except for those on rolls of the bank) / defined employment staff, employee not on the rolls of the bank, causal workers, domestic servants or apprentice.

Note: (placed below Definitions section)

- These service conditions apply to all employees including probationers and trainees working for the Bank.

--

--

Notice Period (placed under the chapter - Employment Separation Process)

Mentioned below is the grid of the Notice Period to be served by the Employee for levels across the organization effective 1st January 2013.

 

------------Grade-----------------------------------Notice Period----------------

---------------------------------------------Post Probation / Pre Probation----

EVP, GSVP, SVP, President-----------------------90 days-------------------

GVP, VP, GAVP, AVP, SM, Mngr,

Dep. Mngr, Asst. Mngr,

Management Trainee & Executive----------90 days / 30 days-----------

Officer Trainee, Sr. Asst Officer,

Asst. Officer, Assistant &

Subordinate Staff--------------------------------------30 days-------------------

Officer-----------------------------------------------------30 days-------------------

Employees on Fixed Terms (on Contract)------30 days-------------------

 

The employee may terminate his service without cause by giving in writing as mentioned in the above table or salary (Basic & Consolidated Allowance) in lieu of notice. Waiving the notice period in lieu of salary will be the sole discretion of the Bank.

 

 

Now the facts at my end:

 

A) I have given them 3 days notice with other point mentioned in that about my proper handover of responsibilities and no task pending etc. I also mentioned that since I am not able to serve the full notice period which as per HR Manual is 30 days for me, I am willing to pay for the remaining days (in my case 27 days) of notice period.

 

B) The HR is now saying that they don't have a probation concept existing now. And as per appointment letter I am not under probation (which is true, "probation" word is not mentioned), so there will be 90 days applicable for me. 

 

C) I said, since I am under one year's training period, and I am yet to be in the permanent service of the company, the notice period should not be 90 days as it is for any other employee (I have not even spent 30 days in the company, joined: 5th May 2014, left 2nd June 2014).

 

D) HR is saying that even I am not temporary, I am permanent employee only.

 

E) I referred to the appointment letter terms of 1-year training post which I will be permanent employee. And if it's so that even in training 90 days notice is applicable to me, please show me the concerned Standing Order which clarifies that even for me it will be 90 days. And HR said that he will get back to me.

 

My queries:

 

1) Am I right in my interpretation that the notice for me must not be 90 days and only maximum 30 days? 

 

2) Earlier I had misunderstanding, as the appointment letter clause of "training" and not yet in "permanent service" gave me this understanding that it is same as Probation. Will they be actually different?

 

3) If training and probation are different, then considering my not in "permanent service" status, will I not be covered by the notice applicable to Management Trainee at pre-probation stage?

 

4) Even if HR manual doesn't support my understanding 30 days notice period applicable to me, can the company have right to claim for 90 days in "training" period and even before I am in "permanent service"?

 

I know I am restating my facts, but this time it's only one issue i.e. how much is the applicable notice period in my case. I will be highly obliged to you, to get the answers to above queries.

 

Thank you in advance sir.

 

Regards

Niladri

Kumar Doab (FIN)     14 June 2014

As per your last post you are 'Management Trainee' and as per Grid notice period is 90 days for Management Trainee........................

You shall be in permanent .employment after training and shall be placed as 'Executive' for whom notice period is 30 days.

 

The Grid/HR Manual posted by you is latest version and hence if Probationer concept is no more then Board of the bank must have passed it and thereafter the HR manual should describe it and it should have been circulated...............................Demand certified copy of the board resolution…………………….

 

If standing orders are applicable then demand certified copy or let HR state in writing that standing orders are not applicable.....................

In such a case how the Management Trainee is appointed without standing orders, HR may have to explain ?

If bank is Pvt. company for private gain and has registered under (Name of the state) Shops and Commercial Establishments Act then.........................if you are covered by the def. of Employee in it, then you may assert that notice period stated in the Act should be followed since the Act was enacted to govern the service conditions in the establishments covered by the Act.................

 

If bank claims that it has offered superior condition on notice period /pay than the Act since it has kept 90 days notice period that is beneficial for employee then you need to explain that it is adverse to your interest as next employer won’t wait for 90 days and you can’t join for 90 days…………………………….and while the bank can terminate by tendering notice pay in lieu of notice period without any permission/approval/consent by you, the employee (you) can not do so as the bank has stated it shall be discretion of the bank………………………………hence the condition is adverse to your interest/tilted heavily towards bank and is not equitable………………….

 

If you are not covered by standing orders, Shops and Commercial Establishments Act then the service conditions shall be governed by the appointment letter, service rules and regulations mentioned in appointment letter to you……………………

If such situation comes you have already pointed out that for an employee that is not permanent the notice period is 90 days (Management Trainee) and for a permanent employee (Executive) the notice period is 30 days…………………..

It is inserted in appointment letter that employer can waive of the notice period/pay and you may handle the situation to get it ‘Waived Off’  in writing and not written off…………………and stated accordingly in FnF statement issued to you, and obtain service certificate, relieving letter, NOC/NDC, Form16………………………….etc.

If you have on record the misconduct of employer or its attorneys e.g. line manager, HR personnel, legal cell personnel then notice period/pay should not be applicable since in case of misconduct by employee employer can terminate without notice period/pay……………………

The T&C in employment contract should be equitable or thee can be easily termed arbitrary

Niladri Sekhar Jyoti (MT)     14 June 2014

Thank you sir, I just want to clarify 2 points:

regarding post one year training period, the appointment letter states that i will be either in the Executive Grade or Assistant Manager Grade, not necessarily Executive Grade only. 

And I think due to text format of the Notice Period Grid I could not show you the real presentation. So I am copying it in a diff format:

1) Grade: EVP / GSVP / SVP / President  => Notice Period = 90 days

2) Grade: GVP / VP / GAVP / AVP / SM / Mngr. / Dep. Mngr. / Asst. Mngr. / Management Trainee / Executive => Notice Period = 90 days for post probation or 30 days for pre probation

3) Grade: Officer Trainee / Sr. Asst. Officer / Asst. Officer / Assistant / Subordinate => Notice Period = 30 days

4) Grade: Officer => Notice Period = 30 days

5) Employees on Fixed Term (on Contract) => Notice Period = 30 days

 

Also have attached the screenshot of the portion so that there is no confusion with the format of the text.


Attached File : 535721998 notice period grid.jpg downloaded: 30 times

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