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Sivaraman (FM)     06 January 2010

Notice Period Law

Hi,

We are a software development house and have as is usual, have staffs at different levels, like Developers, Team Leads, Managers, Senior Managers etc. I need a few clarifiations

1. I have read that IT company's are exempt from following  labour laws of India. If no, are the labour laws fully  applicable or only partially applicable.

2. We have a 1 month notice period for some staff, 2 month for some and 3 month for managers and above. Is there any law in India which stipulates what the notice period should be. If so, which is the law.

3. Can we have different notice period for different positions.

Thanks & Regards

 

Siva



Learning

 18 Replies

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     06 January 2010

1. IT companies are not exempted to follow Labour laws in India except if those are 100% EMU.

 

2. There is no law in India prescribing the noitce period for different employees. It is based upon the mutual agreement of the employee and employer. While fixing this, natural law should not be violated.

 

3. Yes.

Sivaraman (FM)     07 January 2010

Many thanks for the information.

Regards

 

Sivaraman

Vijayarajan (Executive Director)     09 January 2010

Regarding the notice for retenchment, it is one month for small establishments employing less than 100 employees and three moths for estalishment employing more than 100 employees.

Regards,

Vijayarajan

Mohd Ilyas Akhter (Officer)     28 November 2011

Dear Experts,

Now my question is the company gets you sign a paper that mentions that you can either serve notice period of two months or will have to pay Basic pay of remaining days of Notice period.

Sudenly one unfortunate morning amail is shot by COO of the organisation that now onwards no one can leave the organisation without serving notice period and no Buy out shall be allowed in casae of notice period.

Isn't their any law that ensures the freedom of choice of Employees. Can comapny force somebody to work without the free will of the person?

What can the employee do in case he at any cost wan'ts to leave the organisation asap and is ready to pay whatever the amount it comes to.

Sivaraman (FM)     28 November 2011

Dear Mr Akhter,

Legally, the view of the COO is not tenable on two grounds (1) Both the parties have agreed to the terms and Conditions on your employment contract and any change in the original terms have to be agreed by both of them and cannot be changed by one of them (2) As long as the company retains the option of terminating one's contract by paying 2 months salary, they cannot take away the employees' option of buying out the notice period.

Hope this provides the clarity you want.

1 Like

shankar (self)     28 November 2011

Hi Sir,

This is Regarding Notice Period Charges from Employer - Bangalore

I joined a company X in bangalore in April 5 2011 and worked there for 6 days without serving
notice period of 3 months i left the company due to family reason. Now they are asking an amount of 33K as part of settlement by sending the notice(I havent received it yet, but collected the same information from the HR related to tht company.) Now as i didnt take any single month salary nor any benifit does i need to pay them as part of notice period.

I have mentioned the below same reason saying my father was not well and my attention was needed at the time and due

this condition i couldnt think about anything else but leave the company and go...So please help me in this regard how

can i avoid this legally,

 

Note - My current employement status is "Absconding/Terminated" and how can they ask money from me now sending the legal notice?

Please please help me in this regard sir.....
 

------Sent the below email today to HR -----------------
As discussed with you regarding waiver of notice period, please find the soft copy of the statement attached.

Please help me in this case. Due to my Father's health I was unable to serve the notice period. I had informed my

reporting manager (Swarna) regarding the same and had also raised a exit request specifying the reason in the tool.

Since the family situation was very very critical and my father was paralysed with severe attacks, I had no choice but

to leave at the moment and take care of my family. I had no time to serve the notice period but I informed my Manager

about the situation.I was not aware that the approval is required after raising the request in the tool.

I sincerely request you to consider my problem and help me in this case.
-----------------------------------------------------------------------------------------------------



 

Prateek Sharma (TSE)     11 May 2012

Dear Expert, I am working in an organization the company gets you sign a paper that mentions that you can either serve notice period of two months or will have to pay Basic pay of remaining days of Notice period.This is what mentioned in the offer appointment letter: During your service with the organization, inclusive of the period of probation and confirmed services , in the event of your resignation or termination of services , either side will have to give 60 days notice or basic salary in lieu there of. Now when i want to resign the organization by paying the two months of basic salary and one week of notice period they are saying that now onwards no one can leave the organisation without serving notice period and no Buy out shall be allowed in casae of notice period. They are not giving me the re leaving letter and experience letter. Isn't their any law that ensures the freedom of choice of Employees. Can company force somebody to work without the free will of the person? What can the employee do in case he at any cost want's to leave the organization asap and is ready to pay whatever the amount it comes to. Please help me i am very depressed...

Kumar Doab (FIN)     11 May 2012

@ Prateek,

Kindly start a new thread always.

The terms and conditions which are accepted in writing shall apply. Any change in the terms and conditions should be supplied to employee for acceptance.

You may obtain the copy of certified standing orders of the company which are to be displayed at the entrance, and to be circulated to employees. These may be kept at HR portal for employees. Employee is within the rights to demand (preferably in writing under acknowledgment) a printed/certified copy from appointing authority of these and employee rule book. If certified standing orders do not apply model standing orders shall apply. You may also obtain copy of SE act applicable to your state which may be available at State Labor website or can be purchased from market.

If you wish to resign you may give some reasonable notice addressed to appointing authority, MD/CEO, with a copy to Head-HR, say 15 days-30 days ( in writing under acknowledgment) so as to enable the employer to find the replacement, ask for acknowledgment of notice in writing and mention that as per clause number...............in your appointment letter dated......................company may adjust the notice pay @ basic pay in your FNF statement and acceptance of your resignation, FNF statement, settlement and payment of your dues by bank DD only, work experience/service certificate, relieving letter, Form 16, PF number/attested copies of your PF transfer-withdrawal forms/PF accumulation reports, acknowledgment of company property/handing over the charge, NOC/NDC be supplied to you within your last day in office i.e. dated...............by redg/speed post only. If you are apprehensive you may mention that postage prepaid self addressed envelope is enclosed. You may mention that company should inform you the details of replacement employee well in time and assign normal/routine work which can be accomplished on day to day basis and that you are willing to train the replacement and help completing the tasks within and up to your last day in office and you believe that charge can be taken by replacement employee designated by company/reporting authority/HOD.

Avoid verbal transactions and persist for written reply. If the conduct of superiors is noted as bad you may record the transactions (audio/visual). These may come handy at appropriate time in appropriate forum. Keep all salary slips safely. Update your next employer (preferably in writing under acknowledgment even if by email) that your current employer is not willing to relieve you and issue acknowledgment/acceptance of notice/resignation, work experience/service certificate, relieving letter and therefore you can provide only the copies of notice/resignation, proof of dispatch/delivery, last salary slip and nothing else, at the time of joining and till these are supplied to you by your current employer. If the next employer is interested it can accommodate you. Other wise it can set a date for submission of these documents and terminate the appointment thereafter. It shall be better to settle the matter beforehand.

Sachin (ATM ENGINEER)     26 April 2014

I am working as ATM engineer and now i got new job so i resign from the organisation and gave 1 month notice instead of 2 month and i am ready to compensate for the remaining 1 month but my manager are not ready to releaving me.he said that has to serve complete two month notice period but it's not possible cause of other employer are not ready to wait for two months for my joining and i cant miss that opportunity. as per the our manager if i not serve the two month notice he not going to do full and final settlement. please help me out

Sachin (ATM ENGINEER)     26 April 2014

 

I am working as ATM engineer and now i got new job so i resign from the organisation and gave 1 month notice instead of 2 month and i am ready to compensate for the remaining 1 month but my manager are not ready to releaving me.he said that has to serve complete two month notice period but it's not possible cause of other employer are not ready to wait for two months for my joining and i cant miss that opportunity. as per the our manager if i not serve the two month notice he not going to do full and final settlement. please help me out

Kumar Doab (FIN)     26 April 2014

@Sachin,

Explain the position to next employer preferably in writing and elaborate that current employer may not issue acceptance of resignation, FNF statement, service certificate, relieving letter and you can provide only copy of resignation and its proof of dispatch, obtain its concurrence in writing.

Is the statement of Manager in writing or it is verbal?

You may record it (audio/visual) for use at appropriate time in appropriate forum and keep a witness.

The manager may not be authorized/competent to accept your notice by board of the company!

Even employer can not stop payment of FNF wages!

Employee can not be bonded!

The conditions being put by your manager puts you in disadvantageous position!

You may not submit resignation to your manager and must submit it to good offices of appointing authority, MD preferably by redg. Post, and affirm to adjust notice pay in FNF statement and ask to send FNF statement to you for verification and acceptance. You must mention that no tasks are pending at your end and to whom you should handover the charge under proper acknowledgment on the spot. You may add that now onwards routine duties may be assigned to you that can be completed on day to day basis within and up to expiry of notice period tendered by you last date in office i.e dated………………………

The notice period and notice period in lieu of notice pay is part of service conditions.

Service conditions are stated in standing orders applicable to the establishment (certified/model) and extended to the designation of employee. Standing Orders certified/model is instrument of law/statue and shall prevail upon any private agreement that employer has signed with employee e.g. appointment letter, contract of employment etc………………..The standing orders are to be displayed at a conspicuous place in establishment e.g. notice board and should be circulated to employees. Employer has to supply a certified copy if employee demands it even if against a nominal payment say Rs.10/……….Employee or any one can obtain certified copy of standing orders from certifying officer (CO. That may be DLC in o/o Labor Commissioner at location of Redg. Office of the company) against a set payment say Rs.3/page! Employer PERSONNALLY is held responsible for faithful observance of standing orders.

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

You may go thru Model Standing orders Sec13-18.

During probation period notice period is NIL and after confirmation 1month. FNF wages should be paid on last day in office or say within next 3days or max. by usual pay day.

Service certificate is to be issued to all employees.

 

If you are covered by standing orders then no employer can violate standing orders.

Notice period/pay is also stated in (Name of your state) Shops and Commercial establishments Act and it is not more than 1 month.

In another thread an employee has posted the Chief Inspector under this Act commented that  notice period as per the Act shall prevail.

Designation alone does not decide employee shall be covered as ‘Workman ‘as in ID Act and ‘Employee’ as in (Name of your state) Shops and Commercial establishments Act.

Assuming that you are not covered by either of the enactments then service conditions shall be governed  by ‘Service and Regulations’ “HR policy’ reference of which is usually made in appointment letter. Such rules/policies should be kept in knowledge domain of employee e.g. HR portal and employee can demand and employer has to supply a certified copy of such rules and regulations.

In the absence of any applicable/approved rules reference to appointment letter may be made.

Even in such case notice pay in lieu of notice period can be tendered!

There are many threads on similar queries e.g;

 

https://www.lawyersclubindia.com/forum/Claims-not-settled-by-the-company-after-resignation-98912.asp#.U1oiL0eBmXU

 

https://www.lawyersclubindia.com/forum/Company-not-providing-the-relieving-letter-101252.asp#.U1vRLEeBmXU

 

https://www.lawyersclubindia.com/forum/Claims-not-settled-by-the-company-after-resignation-98912.asp#.U1vRskeBmXU

 

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

 

https://www.lawyersclubindia.com/forum/Dispute-regarding-resignation-and-notice-pay-70662.asp#.U1vSTUeBmXU

 

Do not hesitate to approach your lawyer and proceed under expert advise of your lawyer.

In your kind of trade it is always appropriate to be member of employees unions and affiliate with trade unions. 

Sachin (ATM ENGINEER)     26 April 2014

Dear Kumar,

As per the appointment letter there is an one month notice period and as per the increment letter there is a two month notice period but i didn't sign on that due unsatisfactory increment.can is it advantage for me.

Kumar Doab (FIN)     27 April 2014

Any change in service conditions should be accepted by both employer and employee.

The companies play tactics to extract acceptance.

It is a published fact in many threads that HR personnel, Line Managers, employers insert change in notice period etc in increment letters and ask for acceptance.

It is veiled threat, coercion in a sense as if employee does want to avail increment he/she will sign acceptance…………………………………

A smart employee should write on the copy “Received’ and place date below his signature thus assigning the status as of having received only……………………………………

OR should write increment only accepted………………………OR Increment accepted……………..

OTHERWISE Employee should clearly write “Increment Accepted”  “Change in notice period declined/rejected/not accepted.”

 

In your case increment awarded to you was dissatisfactory and you have not accepted the change. Hence it should not be applicable to you.  The status of info in increment letter should remain as only informed by company that too if you agree in writing/on recorded lines  that such increment letter was supplied to you.

You may quote the relevant clause number of your appointment letter…………………

If company claims in writing then ask them to produce the copy of your acceptance of change.

It is reiterated that you should show all docs and give inputs in person to your lawyer. The lawyer that has examined the docs and inputs can advise you the best.

 

 

SAIKISHAN   29 October 2015

I am working for mylan laboratories, i recently resigned from my services as i have a family problems and me going back to my native where my family stays.

I have got a job elsewhere and the company is at my native place, but the company wants me to join within 20 days from my termination. i have a notice period of 3 months, i am ready to buy out the notice period but my manager is not ready to leave me from my services. HR is ready for the buy out but they need acceptance from my HOD. In this can i lose the job at the other end, what can be done. please help me out


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