Exclusive HOLI Discounts!
Get Courses and Combos at Upto 50% OFF!
Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

RDH (XYZ)     14 November 2013

One sided notice period

Dear Sirs,
 
I wish to get your advise where my company has asked to resign or they will will terminate my employment. They are serving with only one months notice period -I have studied various forums which say that it to equal on both sides can you please help with your expertise on this topic
 
My contract clause as follows
 
"You and the company will be free to serve the employment relation at any time for any reason or no no reason, provided, however that you give the company 3 months advance notice so that company can make necessary arrangements for, and you may assist with transition of your work"
Regards,


Learning

 4 Replies

Kumar Doab (FIN)     14 November 2013

 

You have posted that:

 

 

 

 

 

----“I wish to get your advise where my company has asked to resign or they will will terminate my employment.’

 

 

For best resolution of your grievance you must record (audio/visual) of the transaction during which you are being asked to resign. If possible keep some evidence and witness.

 

 

 

If the work floor/workstation where this has happened is under CCTV with audio surveillance you can later demand the CCTV footage.

 

 

 

 

Asking to write down resignation is offence.

 

 

 

Statement that if you do not resign you shall be terminated may get termed as intimidation, coercion, threat……………

 

 

 

 

Forced resignation can be deemed as Termination.

 

 

 

If at all you decide to resign submit notice of resignation with notice period of 3M preferably by redg. Post.

 

 

 

 

The resignation can not be accepted before expiry of notice period and date of retirement (resignation) chosen by employee.

 

 

 

 

 

 

Let the company accept it before expiry of notice period.

 

 

 

 

 

 

If the company states that it shall terminate even if you resign, you may record.

 

 

 

 

 

 

There are employees that have taken smart phones during such periods and have downloaded softwares like Truecaller and every call shall get recorded.

 

 

 

 

 

 

 

 

 

 

 

 

-----“They are serving with only one months notice period

 

 

 

 

Has the company served any notice of termination?

 

 

 

Is the notice of termination stated in appointment letter different fro employer and employee?

 

 

 

 

 

 

 

-----“"You and the company will be free to serve the employment relation at any time for any reason or no no reason, provided, however that you give the company 3 months advance notice so that company can make necessary arrangements for, and you may assist with transition of your work"

 

 

 

The notice period and terms in contract of employment should be equitable or these can be termed arbitirary.

 

 

 

 

 

What is this establishment; Commercial or industrial?

 

 

 

You and Redg. office of the company is located in which state?

 

 

How many employees are employed in this establishment?

 You are under probation period or a confirmed employee?

 

What is nature of your duties?

 

 

 

Are you member of any trade union?

 

 

 

 

 

 

 

There are many threads with similar queries e.g;

https://www.lawyersclubindia.com/experts/Different-notice-period-for-employee-and-employer-during-probation-432151.asp#.UoXSX3CAqWM

 

You may find these relevant.

 

1 Like

RDH (XYZ)     14 November 2013

Thanks for your prompt reply. If I understand correctly the notice period should be equal on both sides. Is my assumption correct? Is there a law for this particular section?  My organisation is ITES registered in Delhi. Were as I work remotely from home office in Mumbai. I am in managerial position in current organization with about 200 people in India entity.

Further to this there clause in my offer letter where it say as follows"You will eligibe for employee stock options as per suitable by company and as per terms of the company policy " . When I demanded for stock options signing authority on offer letter said  he is not responsible as it is controlled  by US entity  (Parent Company) . This is a clear breach of contract how I can claim my due stocks?

 

Kumar Doab (FIN)     15 November 2013

 

Mere writing the designation of the employee as Manager and designation alone does not imply that employee shall not be covered as ‘Workman’ as in ID Act, ‘Employee’ as in Shops and Commercial Establishments Act…………………..

 

ITeS companies are covered by these enactments and standing orders may also be applicable.

If standing orders are applicable to your establishment (Certified/Model) and extended to your designation then you may go thru its provisions. Employer is personally liable for faithful observance of standing orders.

 

 

 

The Bombay Shops and Commercial Establishments Act, Delhi Shops and Commercial Establishments Act are so employee friendly.

The wages are well defined in this enactment and also in:

 

Payment of Wages Act: 3*[(vi) "wages" means all remuneration……………] ……………..{ but does not include}………….

 

One of the jobs of Inspector under this enactment is to ensure no pending dues/wages of the employee are withheld.

e.g: Delhi Shops and Commercial Establishments Act

37.  POWERS AND DUTIES OF 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;

 

Your lawyer may ask you a set of structured questions and can opine that you would be covered or not.

If you are not covered by such enactments you can approach civil court.

 

Your assumption is correct.

It is general law that whenever there is any ambiguity in terms of contract then benefit of doubt will given to party who don’t make the contract (Read Employee).

 

Any policy in the larger interest and beneficial to both employer and the employee has the sanction of law as otherwise it will be easily termed as arbitrary.

 

 

It is expected that the employer shall raise the issue that you are neither workman not employee as in the enactments, cross reference is not possible, the relationship is that of Master and Servant, Specific relief Act is applicable and contract of person service can not be enforced in court of law.

 

 

The contract of employment issued to you is drafted and created by employer and it is well versed with it.

It would have its strategy ready: to counter your contentions.

 

The jurisdiction courts is either last location of employee, location of redg/ corporate/HO of company or jurisdictional courts

As stated in appointment letter/contract of employment.

 

The company shall for sure scream for jurisdictional court at location stated in appointment letter/contract of employment.

 

You have posted that;

 

-----“You will eligibe for employee stock options as per suitable by company and as per terms of the company policy " .

 

This hints towards suitability to company and as per policies of the company.

Do you have copy of such policy?

 

All policies should be kept in knowledge domain of the employee.

Gossip and rumor can not be policy.

Employer should not act and behave like a street magician and produce things from thin air.

 

Employee should also be vigilant and obtain certified copies of all such docs and policies, rules and regulations that are relevant.

 

-------“ When I demanded for stock options signing authority on offer letter said  he is not responsible as it is controlled  by US entity  (Parent Company) . “

 

Since he has signed on the bilateral agreement he should be included in the list of notices along with anyone else that is board and MD/CEO……………

 

------“ This is a clear breach of contract how I can claim my due stocks?”

Your assumption is right.

 

This should be read with suitability and policies mentioned above by you, and clear breach be pointed out and established.

 

 

You may show all docs and record to a competent and experienced labor consultant/service lawyer, well versed with these enactments and Specific relief Act, and give inputs in person.

 

The lawyer that has seen all of your docs and has analyzed your inputs can advice you the best.

HEMANT SINGH (PRACTICE)     15 November 2013

i want to know for incorporation of firm


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register