Notice period query

generally companies keep notice period between 30 days to 90 days.

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

Service conditions including notice period are stated in standing orders of the company, appointment letter. The SE Act applicable of the state also describes notice period.

Standing orders, SE Act should be displayed near entry/on notice board.

Employee should ask for a copy in writing from appointing authority/MD/Head-HR/manager as under SE Act, and Employer should provide certified copy of the standing orders to employee against a nominal payment say Rs.10/. If employer does not provide employee may approach certifying officer in o/o Labor Commissioner e.g. DLC or peruse thru RTI.

Some states under their IT policy had granted blanket exemption to IT/ITES companies from IESO Act.

State of Karnataka out of these few states has ended the exemption and all companies should have drafted their standing orders for certification by certifying officer in o/o Labor Commissioner e.g. DLC. Till then model standing orders shall apply.

Model standing orders, SE Act, IESO Act, ID Act, might be available at Dept. of Labor website of the state or latest version may be purchased from market.

Model Standing Orders:

13.  Termination of employment, 15.  Complaints.--

17.       Liability of 17[employer].--, 18.          Exhibition of standing orders.--

SE Act: e.g.; SE Act Delhi:

2. Definitions:

(7)  “employee” means a person wholly or principally employed, whether directly or

otherwise, and whether for wages (payable on permanent, periodical, contract, piece-rate or commission basis)

(The SE Act act does not indiscriminate between workman or executive and the employee may not be necessarily be a workman to claim relief.)

(8)     “employer” means the owner…………….means the manager, agent or representative of such owner in the said business;

30.    NOTICE OF DISMISSAL:

COMMENTS

(a)     Applicability of section 30:

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

(b) Notice or wages in lieu thereof under section 30—When to be given?

A plain reading of section 30 of the Act would make it clear that whereas the notice of one month under sub-section (1) is for the benefit of the employee, the notice under sub- section (2) is for the benefit of the employer.

(Implying if employer is keeping long notice period and if notice is initiated by employee it is deemed to be in the interest/benefit/favorable to employer and not employee, and thus employee can cite it.)

(Any clause which is in violation of the SE act may be claimed as void to that extent.)

One month’s notice or wages in lieu thereof is necessary in case the employees is having more than three months’ service under section 30 of the Delhi Shops and Establishments Act. This will be applicable even if an employee has completed only one day more than three months;

(Implying if employee has worked for 3 months no notice period is applicable.)

33.RECORDS.

(d) Can an Inspector require an employer to produce the  record in his office for inspection?

33.    INSPECTION OF REGISTERS AND CALLING FOR INFORMATION

41.    WILFULLY MAKING FALSE ENTRIES

42.    DETERMINATION OF EMPLOYER FOR THE PURPOSE OF THIS ACT.

Resignation is a personal matter and should be preferably submitted by letter addressed to appointing authority thru redg. post under acknowledgment. The notice period, effective date of resignation/last day in office should be stated.

In case of an issue you may approach a competent and experienced labor consultant/service lawyer with copies of all of your documents, give inputs in person and spend quality time to understand the nuisances and proceed under expert advice of your lawyer.

Let your lawyer’s opinion be final on what has been discussed above.

Your lawyer may opine that you fall within the category of workman and ID can be invoked. Designation alone does not decide employee is a workman or not.

Company may yield to legal notice by your lawyer, Demand notice, Inspector under SE Act, during conciliation proceedings……..

You have the option to approach civil court.