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kumar (None)     03 October 2013

Unequal notice period

Hi all, My offer letter says I have to serve one month's notice during probation or one month's salary if I quit but the company can terminate my services without any notice or notice period salary. Is it legal? My designation was Manager-Business Development.

Unfortunately, I fell ill the very second month of joining and the company people called me up and forced me to join back immediately or resign. They sent me a notice regarding this and I resigned without serving the notice period. Now they ask me for recovery of notice period salary. What should I do?



Learning

 4 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     03 October 2013

Show them ill treatment doctor certificates etc. and after curing illness intimate  them in writing to rejoin.

1 Like

Kumar Doab (FIN)     03 October 2013

You should have consulted elders in the family, competent and experienced well wishers, lawyer/law firm, before you acted to oblige the company and company’s officials and resigned in haste.

The contract of employment should promote equitable discretion.

This is general law that if there are ambiguities in a contract the benefit is given to the party that has not created the contract.

The clauses as stated by you may not stand the test of law.

The company may try to scream for Specific Relief Act, Master-Servant Relationship and that you have signed the acceptance of T&C by your free will……………………

You were sick and must have been on sick leave and must have submitted proper sick leave application. Termination order during period of sick leave or sickness duly validated by doctor’s medical certificate could have been a bad order.

Termination during due to prolonged sickness may not have been viewed as adverse by future employers.

People contract flu, chicken guinea and remain under treatment for months…………………

In your case resignation was demanded and extracted………………….

Did you record the phone call? Can you bring evidence and witness? Have you noted the dates, time and phone number of calls?

You could explain the sequence of events and explain that company demanded the resignation from you thru Mr/Ms…………………designation/dept……………..name of company………address……………………..while you were sick and while you were willing to join duty on getting well and continue to serve the company and notice period was to be waived off…………………………

Did you fell sick due to some occurrence in company e.g. contaminated water in company’s premises, hazardous happening in office, chemical fumes etc…………….?

Were your services under training/probation or did you join as a confirmed employee from day1?

Notice period as a part of service conditions is stated in standing orders (certified/Model) applicable to the company, offer letter, appointment letter, contract of employment, statue…………………….and Shops and Commercial Establishments Act applicable to the establishment.

The term Industry does not mean factory alone. The Industrial Employment Standing Order Act (Section 2 (e) ) is applicable to all establishments to which the Payment of Wages Act, 1936 applies. …………..

 

The service conditions and notice period stated in standing orders can not be negated to employee in appointment letter. Standing orders shall prevail upon all other docs……………………

If notice period is 1 month in standing Orders it can not be more than 1 month in appointment letter. Standing Orders should be displayed at conspicuous place or notice board. Employee can obtain copy from employer against a nominal payment say Rs10/…………………………………and also from certifying officer (DLC) against a set fee……………………… 

Although designation alone does not decide employee is a workman or not it shall be appropriate to approach a competent and experienced labor consultant/service lawyer and you r lawyer can opine if you would be covered as ‘Workman’ as in ID Act or as ‘Employee’ as in Shops and Commercial Establishments Act or not.

You may carefully go thru Shops and Commercial Establishments Act applicable to your state and Certified/Model Standing Orders…………………

Model Standing Orders: Notice period during probation period is NIL.

Shops and Commercial Establishments Act: Notice period for 2 months service may be NIL.

You may check with o/o Inspector/Chief Inspector under Shops and Commercial Establishments Act and O/o Labor Commissioner and confirm applicability of standing orders to this establishment.

 

Approach a local labor consultant/service lawyer. The lawyer that has seen all of your docs and has analyzed your inputs can advise you the best and structure the most suitable reply that you may tender to the company.

1 Like

kumar (None)     03 October 2013

Dear Kumar Doab, Thanks for your detailed reply.

Yes, I know the names of the people and their designation who called me up but I haven't noted the time of call. Nor have I recorded any phone calls. Do you think I need to reply to the company stating that the work conditions (like inappropriate seating place, water etc )led to my sickness? Do you think I should talk to them at all? Or should I wait for a legal notice? What if I don't accept the notice and pass the message that I donot live here anymore?

Thanks a lot again for your advice.

Kumar Doab (FIN)     03 October 2013

We have gone thru your latest post. You are greatly perturbed.

You should have mustered courage to state by letter to good offices of the company that you were on sick leave and you were asked to resign on dated………………by Mr/Ms……………..

Did you go thru standing orders, Shops and Commercial Establishments Act applicable to your state? Your lawyer may opine that notice period as per these is NIL and that since you were asked to resign company should have waived off the condition of notice period/pay………….

It is suggested that you may approach a local labor consultant/service lawyer. The lawyer that has seen all of your docs and has analyzed your inputs can advise you the best and structure the most suitable reply that you may tender to the company.

 

 

 

In case of dispute employee can approach Lawyer, Trade unions, Inspector under Shops and Commercial Establishments Act, O/o Labor Commissioner, civil court…………….

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