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avinash sen (service)     16 September 2017

Notice period

Dear Sir/Madam,

I work in a pvt organization in Kolkata.

As per my employment agreement my probition period is 6 months from date of joining. 

During my probition period my notice period was 30 days and upon confirmation of service it is 60 days.

I have completed over 16 months in this organization but till date no confirmation and not even any communication for extension of my probition period.

There is no such clause in my agreement that of automatic confirmation upon completion of 6 months.

I do not find any hope now and I want to leave this company hence I resigned and I am not willing to serve notice period.

As per my agreement 30 days notice during probition period and 60 days notice during confirmation.

There is no such clause stating if I donot serve notice , I have to pay 1 month salary to company.

Now as per agreement my probition period which was upto 6 months from date of joing is over many months backs and after that no communication from employers end.

In the past few people served notice but company didnot pay their last month salary and didnot give any relieving or experience letter which is important to join new organization.

In this context I want to know whether company can take any action if I donot serve notice period, legally.

Regards,

 



Learning

 21 Replies


(Guest)

Probation, unless extended in writing cannot be treated as extended. If you don't serve notice period, you would be liable to pay salary equal to the period short of notice period. They can recover legally also.

 

 

Kumar Doab (FIN)     16 September 2017

Originally posted by : JIGYASU: Cool Critic
Probation, unless extended in writing cannot be treated as extended. If you don't serve notice period, you would be liable to pay salary equal to the period short of notice period. They can recover legally also.

 

 

It is Grossly wrong.

There are many illustrated threads on similar query at LCI.

 

Kumar Doab (FIN)     16 September 2017

The probation to confirmation depends specifically on language and circumstances inserted in service rules/conditions darfted by employer and signed with employee.

The courts of law in Republic of India have delivered judgments covering probation and confirmation.

The understanding of querist seems to be clear, as per mater posted in query.

The notice period is part of service conditions and any T&C inserted by employer that is violative of extent enactments;  applicable to employer/establishment  and employee shall be VOID, good for nothing..............would not prevail ...................is of no effect.

Kumar Doab (FIN)     16 September 2017

Originally posted by : avinash sen
Dear Sir/Madam,

I work in a pvt organization in Kolkata.

As per my employment agreement my probition period is 6 months from date of joining. 

During my probition period my notice period was 30 days and upon confirmation of service it is 60 days.

I have completed over 16 months in this organization but till date no confirmation and not even any communication for extension of my probition period.

There is no such clause in my agreement that of automatic confirmation upon completion of 6 months.

I do not find any hope now and I want to leave this company hence I resigned and I am not willing to serve notice period.

As per my agreement 30 days notice during probition period and 60 days notice during confirmation.

There is no such clause stating if I donot serve notice , I have to pay 1 month salary to company.

Now as per agreement my probition period which was upto 6 months from date of joing is over many months backs and after that no communication from employers end.

In the past few people served notice but company didnot pay their last month salary and didnot give any relieving or experience letter which is important to join new organization.

In this context I want to know whether company can take any action if I donot serve notice period, legally.

Regards,

 

 

Your understanding seems to be correct.

Such employer is unworthy of being emplyed with.

 

Kumar Doab (FIN)     16 September 2017

While posting such queries employee should post basic information!

What is this establishment; Commercial, Industrial?

What is its nature of business say; IT, ITeS?

How many persons are employed in it?

What is your designation and nature of duties?

How many persons report to you?

Do you have any power to sanction leave/increment/appoint/terminate/appraise etc etc ?

You are in which state? Since how many months you are working? Are you under probation period or your service is confirmed in writing?

 

Do standing orders (model/certified) apply to establishment and your designation?

What is notice period as per appointment letter/offer letter and what was notice period tendered by you?

Was ever any stinker, memo, show cause notice on any misconduct issued to you?

Does the establishment have its appraisal system? Do you have copy of signed appraisal forms, matrix, KRA’s, performance date? How was your performance?

Are you a member of employee’s/trade unions?

Has the establishment issued/supplied, offer letter, appointment letter, salary slips of all months, PF number and a/c slips of all years, ESIC card, correct FnF statement, Form 16 as per correct FnF statement, acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC……………?

 

You have posted reply to some points and some are guessed.

 

However; Post your reply pointwise and I shall attempt to share wholeheartedly with you.

Kumar Doab (FIN)     16 September 2017

12. The word, “relieving” itself must be understood in the ordinary parlance because it is not defined in ......................Court. The meaning of the word “relieve” .....................is – “to free or clear a person from an obligation”

Kumar Doab (FIN)     16 September 2017

Many querist from your state and even union leaders and even lawyers have posted queries........... and similar queries,.................and we have supported them wholeheartedly. 

avinash sen (service)     17 September 2017

What is this establishment; Commercial, Industrial?

  • Commercial . It is registered as BPO

What is its nature of business say; IT, ITeS?

  • BPO

 How many persons are employed in it?

  • 23

What is your designation and nature of duties?

  • Deputy Manager. Data Analyst role

How many persons report to you?

  • Nil

 Do you have any power to sanction leave/increment/appoint/terminate/appraise etc  ?

  • No

You are in which state? – West Bengal

Since how many months you are working? – 16 months

Are you under probation period or your service is confirmed in writing?  

  • As per my agreement, my probation period was upto 6 months i.e. Nov 2016. After which company did not extend in written my probation nor confirmed me. However I work there and got salary.

 

Do standing orders (model/certified) apply to establishment and your designation?

  • I don’t know . I am not aware

What is notice period as per appointment letter/offer letter and what was notice period tendered by you?

  • Notice period 30 days under probation and 60 days on confirmation.
  • I have resigned and not serving notice period.
  • There is no such clause in my appointment that if I don’t serve notice I have to pay salary of equivalent month.

Was ever any stinker, memo, show cause notice on any misconduct issued to you?

  • Never

Does the establishment have its appraisal system?

  • Self appraisal was submitted twice. But our organization never revert

Do you have copy of signed appraisal forms, matrix, KRA’s, performance date?

  • I have Copy of Self appraisal submitted by me.

How was your performance?

  • Our supervisor or owner never evert on the self appraisal submitted. They are too busy.

Are you a member of employee’s/trade unions?

  • No

Has the establishment issued/supplied, offer letter, appointment letter, salary slips of all months, PF number and a/c slips of all years, ESIC card, correct FnF statement, Form 16 as per correct FnF statement, acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC……………?

 My organization has given me offer letter and appointment letter.

  • Salary Slip is given to us occasionally. I don’t have salary slip for all months.
  • PF account opened last month. ESIC card opened last month. I have not opted for PF.
  • Form 16 provided for last year.

Acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC

  • No. They don’t provide any Acknowledgment and acceptance of notice of resignation/final resignation.
  • Full and Final settlement they give only if they terminate people. If someone resigns then they do not respond to the resignation.

 

Kumar Doab (FIN)     17 September 2017

Originally posted by : avinash sen
Dear Sir/Madam,

I work in a pvt organization in Kolkata.

As per my employment agreement my probition period is 6 months from date of joining. 

During my probition period my notice period was 30 days and upon confirmation of service it is 60 days.

I have completed over 16 months in this organization but till date no confirmation and not even any communication for extension of my probition period.

There is no such clause in my agreement that of automatic confirmation upon completion of 6 months.

I do not find any hope now and I want to leave this company hence I resigned and I am not willing to serve notice period.

As per my agreement 30 days notice during probition period and 60 days notice during confirmation.

There is no such clause stating if I donot serve notice , I have to pay 1 month salary to company.

Now as per agreement my probition period which was upto 6 months from date of joing is over many months backs and after that no communication from employers end.

In the past few people served notice but company didnot pay their last month salary and didnot give any relieving or experience letter which is important to join new organization.

In this context I want to know whether company can take any action if I donot serve notice period, legally.

Regards,

 

 

Dear LCI Querist @ Mr. Avinash Sen,

I have already posted that you have attempted to have clear understanding of the matter.

 

Kumar Doab (FIN)     17 September 2017

Originally posted by : avinash sen
What is this establishment; Commercial, Industrial?


Commercial . It is registered as BPO


What is its nature of business say; IT, ITeS?


BPO


 How many persons are employed in it?


23


What is your designation and nature of duties?


Deputy Manager. Data Analyst role


How many persons report to you?


Nil


 Do you have any power to sanction leave/increment/appoint/terminate/appraise etc  ?


No


You are in which state? – West Bengal

Since how many months you are working? – 16 months

Are you under probation period or your service is confirmed in writing?  


As per my agreement, my probation period was upto 6 months i.e. Nov 2016. After which company did not extend in written my probation nor confirmed me. However I work there and got salary.


 

Do standing orders (model/certified) apply to establishment and your designation?


I don’t know . I am not aware


What is notice period as per appointment letter/offer letter and what was notice period tendered by you?


Notice period 30 days under probation and 60 days on confirmation.
I have resigned and not serving notice period.
There is no such clause in my appointment that if I don’t serve notice I have to pay salary of equivalent month.


Was ever any stinker, memo, show cause notice on any misconduct issued to you?


Never


Does the establishment have its appraisal system?


Self appraisal was submitted twice. But our organization never revert


Do you have copy of signed appraisal forms, matrix, KRA’s, performance date?


I have Copy of Self appraisal submitted by me.


How was your performance?


Our supervisor or owner never evert on the self appraisal submitted. They are too busy.


Are you a member of employee’s/trade unions?


No


Has the establishment issued/supplied, offer letter, appointment letter, salary slips of all months, PF number and a/c slips of all years, ESIC card, correct FnF statement, Form 16 as per correct FnF statement, acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC……………?

 My organization has given me offer letter and appointment letter.


Salary Slip is given to us occasionally. I don’t have salary slip for all months.
PF account opened last month. ESIC card opened last month. I have not opted for PF.
Form 16 provided for last year.


Acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC


No. They don’t provide any Acknowledgment and acceptance of notice of resignation/final resignation.
Full and Final settlement they give only if they terminate people. If someone resigns then they do not respond to the resignation.


 

"In the past few people served notice but company didnot pay their last month salary and didnot give any relieving or experience letter which is important to join new organization."
 

1st thing 1st: Settle the T&C with next employer. Mention in employment application, forms current notice period/time required to join as per appointment letter and request them to buy out notice period.

Appraise them the trend and that employer may not issue any document e.g; salary slips of all months, PF number and a/c slips of all years, ESIC card, correct FnF statement, Form 16 as per correct FnF statement, acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC……………

and you must be absorbed on the strength of copy of notice/final resignation and POD alone and you can not submit any of above document till these are supplied to yu by current employer hence these may not become any ground termination if you are unable to submit these.

You may also mention that current employer may post adverse comments in BGV (if any) and you should be supported and not terminated.

 

Once you current employer and employees in Line Mangement/HR of future employer firmly on your side, you can sigh releif atleast from future employment.

At the same time submit a gentle request (under proper acknowledgment and atatch copy of notice/final resignation and POD)  and request to supply  all of above mentioned docs...

 

 

Kumar Doab (FIN)     17 September 2017

The T&C in appointment letter, contract of employment should be equitable or these can be easily termed arbitrary.

Does the employer tender notice pay in lieu of notice period if it initiates separation by Termination?

If No; the employee can build arguement accordingly.

More so notice pay in lieu of notice period is not inserted by employer in agreement drafted by it and signed with employee.

You have posted that the employer has not been paying as precedence FnF wages ( net of payables by employer to employee and employee to employer........................including but not liited to earned wages till LWD/Bonus/Leave encashment/OT/incentives/perfromance bonus etc and adjustment of notice pay if any......................be it resignation or termination).

 

 

Kumar Doab (FIN)     17 September 2017

West Bengal Shops & Estbs Act;S;15

https://www.wblc.gov.in/node/160

The Act does lay down notice period of 30days for employer in case of termination.

It does not lay down for employee.

BY equitable discretion it is 30days.

However in case of employee as per agreement drafted by employer and signed by it employer has inserted notice period during probation period, after confirmation but has not kept any notice pay in lieu of notice period.

 
No of leaves and Rate of leave encashment/Bonus; Relate with appointment letter and West Bengal Shops & Estbs Act, Payment of Bonus Act (for statutory bonus if applicable to you) and for any other bonus as per appointment letter……………..

 You may draft your own FnF statement computing earned wages till LWD/Bonus/Leave encashment/OT/incentives/performance bonus etc and attach it along with your next communication and request to check and confirm ……………..Submit occasional reminders

 Sit tight and pretty…..

 

Ideally you should get all docs for future reference and use…………………

If next employer buys out notice period it is good for you.

For the time being avoid quoting any act or clause in your written communications..........

 

 

 

avinash sen (service)     17 September 2017

Sir,

I am bit confused.

It will be helpful if you can elaborate more.

My question is

1) Since my probition is over in Nov 2016. Am I liable to serve notice period.

2) Since there is no clause if I donot serve notice period then I have to pay my euivalant salary. Can they claim legally.

3) If they send any legal notice from any advocate, asking me to join immediately or pay salary. What should I do.

Can I be legally harrashed.

 

avinash sen (service)     17 September 2017

Sir,

Employer has  told me verbally that they will not pay my this months's 14 days salary and not do any Full and Final settlement since I am not serving notice period.

They also told me verbally no experience letter or release letter will be given to me if I donot serve notice.

Earlier people  served notice as per their saying but still they didnot provide release letter/expereince letter.

We send mails and they donot reply to our emails. 

 

 


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