Civil Procedure Code (CPC)

Resignation during the probation

Legal Advisor

dear sir,

facts of the case are as below.

i have joined a public limited company few days back (20 days of working) as legal manager. now i realise that the company doesn't have enough business and litigations. also the job profile as told by them at the time of joining is now totally dofferent from that which was presented to me at the time of job interview.

i am on probation for the period of 1 year. the conditions of the offer letter stated that "your services at the at the company will be covered by 1 monts noticeperiod on either side."

however there is no conditions provided in the offer letter regarding the termination of service during the probation period. the term relating to the probation stated that "your first year of service will be consider as probation and you will be apprised for the satisfactory performance for which company will normally confirm it to you. the confirmation will be communicated to you in writing"

my query is whether i need to give 1 month notice for resignation

if no how can i leave the comapany immediately?

can i do so without notice?

secondly no caluse in the offer letter provides for the payment of 1 or 2 months of salary.

experts opinion awaited.

thanks in advance

   

 
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FIN

Such matters are best resolved by applying rapport, goodwill, persuasion, persistence, reasoning, and negotiation skills. Good offices of the employer should be approached and a fair opportunity be given to good offices to provide relief. Even while you are deliberating remain amiable. Good offices should act fairly and should adopt unbiased and reasonable approach and save the organization and employee from burden of confrontation.

If it is possible to tender some reasonable notice as mutually agreed (preferably on record) say…7/15 days it may be considered and thus abrupt termination may be avoided. Charge and company property may be handed over under proper acknowledgment, and proper relieving may be obtained.

If good offices do not provide relief and/or maintain studied silence then employee does have the right to protect his interest and may aproach lawyer/lawful authorioty/court of law.Thus there is no heartburn ( on record) that god offices were not approached and attempt was not made.

The service conditions are stated in Standing Orders of the company, contract of employment/appointment letter. The service conditions stated in standing orders can not be negated in appointment letter. If standing orders are applicable to the establishment and extended to your designation, kindly look into these. If standing orders are not framed and certified, model standing orders shall apply. Standing Orders should be exhibited on Notice Board and employer should provide the certified available to employee against a nominal payment say Rs.10/-.

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

If it is Commercial Employment it shall be covered by SE Act applicable to the state.

The registration certificate should have been displayed on notice board.

Kindly look into SE Act which may be available at the Dept. of Labor website of the state or you may mention your state and the Act shall be attached in this thread.

e.g. SE Act Delhi:

2.  DEFINITIONS:

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

(8)  “employer” means……….

3.  RIGHTS AND PRIVILEGES UNDER OTHER LAW, ETC. NOT AFFECTED.

20.  DEDUCTIONS WHICH MAY BE MADE FROM WAGES

21.  CLAIMS RELATING TO WAGES

30.  NOTICE OF DISMISSAL:

(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.

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.

(It implies for service less than 3 months no notice period/pat is applicable.)

COMMENTS

(a) Applicability of section 30

The protection of the provisions of the section is available to all persons who fall within the definition of the term “employee” as given in section 2(7) of the Act

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

You have posted that:

“the conditions of the offer letter stated that "your services at the at the company will be covered by 1 monts noticeperiod on either side."

The company might interpret that this notice period is applicable during probation and after confirmation of service too. However as per SE Act this clause may be void to that extent.

“secondly no caluse in the offer letter provides for the payment of 1 or 2 months of salary.”

Company might have stated in appointment letter that interpretation of the management shall be final and binding.

Has the company stated anywhere in the appointment letter, service rules, HR policy applicable to employee, severance policy, exit policy… that during probation period services can be terminated without any notice?

If yes employee would have the same right.

You may obtain copies of all such policies which may be kept on HR page of employee portal, or can be obtained concerned personnel in HR.

“the job profile as told by them at the time of joining is now totally dofferent from that which was presented to me at the time of job interview.”

This is a valid reason for contemplating separation/termination of the contract of employment.

It is felt that the reasons may be expressed to good offices and some reference/ evidence is provided and matter is placed on record.

“secondly no caluse in the offer letter provides for the payment of 1 or 2 months of salary.”  It is strange that the employer has not set any penalty to be born by it or employee………..?

The notice pat should ideally be @ basic + DA as the employer would encash paid leaves, and disburse bonus, Gratuity, OT at this rate…..

The salary to be paid for the work done by you for 20 days should be computed at rates and allowances in appointment letter/CTC sheet. You may however do your calculation on amounts payable to you and amounts payable by you..

The company might quote specific relief Act.

{Resignation can be without permission or notice.

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.

Section 73 is declaratory of the common law as to damages. The basic purpose of damages is to put party whose rights have been violated in the same position, so far as money can do so, as if his rights have been observed. When compensation sum is named in a contract as the amount to be paid in case of breach then it is know as liquidated damages. Example in the employment contract. When it damages are not given in contract then it known unliquidated damages in these damages will be defined by court on the bases of reasonableness and facts of the case.

Section 74 contract of contract act deals with liquidated damages and penalty. Whether they compensation amount mentioned in contract is liquidated damages or penalty will be defined by court. Compensation amount mentioned in contract will be maximum damages if court found that amount is not reasonable then it can reduce it because compensation is only given for losses not for penalty but court can not increase compensation amount.

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.

Employee does not prepare/make the contract.}

 

Valuable advice of learned experts/members is sought.

 

 



Attached File : 83689739 delhi shops & establishments act, 1954.pdf, 83689739 model%20standing%20orders.doc downloaded 90 times
 
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