Notice period/pay is mentioned in service conditions in appointment letter, Standing Orders, SE Act.
It is not clear what your establishment is?
---If it is covered under SE Act of the state you can access it on dept. of Labor/SE Inspectorate website of your state or buy it from market.
e.g. SE Act Delhi:
30. Notice of Dismissal.—(1) No employer shall dispense with the services of an employee who has been in his continuous employment for not less than three months, without giving such person at least one month’s notice in writing or wages in lieu of such notice:
Provided that such notice shall not be necessary where the services of such employee are
dispensed with for misconduct, after giving him an opportunity to explain the charge or charges alleged against him in writing.
{It is not clear that if your employer has charged you for misconduct completed the process and terminated you with notice of termination or notice pay in lieu of notice of termination. You need to clarify on this the amounts paid to you are notice pay or not? If yes the question arises if employer can tender notice pay in lieu of notice why can’t an employee? The condition applicable to employer and employee should be same and should promote equality and fairness. Do you know of any incidence where an employee has tendered notice of resignation and company accepted it before the expiry of notice period? If yes you can quote it. You may also quote other incidences where company as a habit violated rights of the employees and blocked the route of natural justice.}
You need to show this show cause notice and your reply to your lawyer.
You and your lawyer should analyze if charges leveled in show cause notice are true and can be proved by the company……………….If you are convinced that charges narrated in show cause notice are false and you have provided sufficient and apt explanation then you can also prove that order of termination is stigmatic/damaging and sue the company.
However let your lawyer comment on it.
You need to ask in writing from your employer the reason of separation recorded by it, the detail of amounts paid to you if these are not mentioned under clear heads and obtain reply in writing. You should insist and persist on examining your personnel file.
If employer maintains studied silence the Inspector under SE Act can order to Inspect records and registers/personnel file and you can chase and obtain copies, even if you have to obtain certified copies or thru RTI, from record collected by Inspector or in proceeding.
You may go thru this section and Act thoroughly.
The idea is now that you should be able to bring the adamant/ recalcitrant /egoistic/vindictive/ zealous officials of the company who have executed termination on the mat and chase/tame/shame them, and obtain some handle on the company so that your order of termination is called back.
You can do this without going to court and if you fail on your own/thru union etc you can approach a court of law.
It is felt that order of termination should be contested till it is called back, even if after litigation.
It is also felt that affected employee should let peers, fellow employees about the insides of the offenders in line management/HR and company so that employees stay away from them in future. Let such offenders face punishment and isolation.
It has been seen the moment employees intimates his decision to approach a court of law a postmortem of files is done by good offices and in case of lapses found of part of the line management and HR they are shown the door.
(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. In case he fails to give one month’s notice he will be released from his employment on payment of an amount equal to one month’s pay.
{You have tendered notice of 40 days which is in writing and which is > than a month. 40 days is not a small period of notice. Did you mention in notice and subsequent communications that you are willing to handover the charge-company property etc…..Company should have ensured smooth and graceful handover. The line management and HR in your company are not having any succession plan and neither have they seemed to be willing to share the work if they can’t designate a replacement. They are ill prepared to handle attrition in any case. For this reason they seem to be set to show an exemplary punishment to show other employees and subdue them to surrender to the tantrums of management. }
---If IESO Act is applicable to your establishment, you should look into certified standing orders of the company which should be displayed at least on the notice board if not circulated to all employees. Employee can obtain standing orders of the company against a nominal fee of say Rs.10/-
If company has not framed certified standing orders model standing orders shall apply.
You may access Industrial Employment Standing Orders Act/ model standing orders at Dept. of Labor website of your state or buy from market.
e.g.
13. Termination of employment.--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen and two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in lieu of notice.
(2) No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated ,but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in Paragraph 14.
(3) Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.
14. Disciplinary action for misconduct.--(1) A workman may be fined up to two per cent of his wages in a month for the following acts and omissions, namely:
(2) A workman may be suspended for a period not exceeding four days at a time, or dismissed without notice or any compensation in lieu of notice, if he is found to be guilty of misconduct.
(3) The following acts and omissions shall be treated as misconduct.
e) habitual absence without leave or absence without leave for more than 10 days,
(5) In awarding punishment under this standing order, the [authority imposing the punishment]shall take into account any gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances, that may exist. A copy of the order passed by the 17[authority imposing the punishment] shall be supplied to the workman concerned.
16. Certificate on termination of service.--Every permanent workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.
NOTE. - There is a provision under this Act for issuing a service certificate at the time of dismissal, discharge or retirement and every person is entitled to take such certificate.
{The company has agreed to provide you service certificate. It is not clear company is demanding to refund which payouts paid to you as extra payments and which other payments are being demanded from you so that service certificate can be issued to you.}
“RESGNATION” means act of relinguishing his lein on employment by express or implied intention on part of the workmen. The mere acceptance of resignation is informal affirmative act of the employee to accede to his request for setting his account.
Notice pay is as per the exit clause of appointment letter. It is a compensation given by one party (Who broke the contract) to other party because of the breach of contract. Law regarding breach of contract is given in section 73 of Indian contract Act 1872.
The question arises now who has to pay to whom and what is to be paid??????
Has your company expressed to you in writing what payment it wants from you notice pay foe shortfall in notice or other damages/loss if any cited by it???
Yu can’t take away any amount paid to you if you have not worked to earn that amount.
If company has paid extra for 12 days it can recover the amount.
What is the amount of Rs7500/ for ???? Is it some notice pay??? Company should compute salary for period you have worked, paid leave, bonus, gratuity, performance pay etc …………in FNF statement and mention in each amount under relevant head to avoid any confusion and ambiguity.
If you do not understand you can ask to explain in writing.
Since now company is demanding that you refund some amount you should ask which amount and why it was paid?????
You should persist for DOL which is your last day in office as per your notice and final resignation, and get this DOL mentioned in FNF statement, service certificate etc… and all other docs. There can be no other date of separation as you have joined another employer. Do you want to be under dual employment???
You can also ask to supply you revised FNF statement in which all refund and correct amounts payable to you by company, and correct amounts payable by you to company are clearly mentioned. Once you get correct FNF statement you should obtain other items also….e.g. Acknowledgment of notice of resignation, acceptance of resignation, correct FNF statement with correct DOL and notice pay shown and adjusted in it, Form 16 as per correct FNF statement { Form 16 is issued at the end of financial year or upon separation}, PF number, PF a/c slips of all years of service, attested copies of PF withdrawal/transfer forms, relieving letter, NOC/NDC etc…..
If you have been in touch with company and you have the record in writing and you have the counsel of a smart lawyer company may not succeed in proving the charge of absconding or abandonment.
If company has not raised any demand of other than notice pay then it is felt that company has erred in your favor.
Relieving letter is issued post all settlements. If you have settled all issues and payments with company why the company won’t issue reliving letter to you??
Designation alone does not decide employee is a workman or not. Your lawyer may opine that you fall within the category of workman. The labor laws limit the choice to employer therefore companies burn extra energy to subdue the employee to believe that he is not a workman.
Also if the employee is not a workman but company has erred company may not get relief even under Specific Relief Act.
Valuable advice of learned experts/members is sought.
