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Arnab Maiti   01 November 2021

Which comes first?the company policy or employment contract?

My employment contract states that:

1. You will be on probation for 12 months from the date of commencement of your service. At the end of satisfactory completion of probation period you will be confirmed in the services of the company.

4. Notice period for severance without cause /resignation from the services of the company will 
be three months on either side or salary in lieu thereof. Salary for purpose of this clause means Basic Salary. However, the decision to release you earlier than three months would be solely at the discretion of the management. Not with standing anything contrary contained herein the notice period stated in this section is subject to any other agreement / understanding or trainee bonds that the employee has entered into with the company whether in past, present or future, AND in the presence of such agreement / understanding 
or trainee bonds, the notice period stated in this section shall apply on completion of such other term / period / duration as agreed under any such documents / agreements.

Whereas the company separation policy states that:

Duration of notice period is 3 months for confirmed employees and 1 month for employees in probation, as per the terms of employment.

I resigned while I was in probation and I have already served 1 month of my notice period by my organization is forcing me to serve 3 months. To leave on a good note I am willing to serve 2 months and pay for the 3rd month, but even then they are not agreeing.



Learning

 4 Replies

Anusha Singh   02 November 2021

As per your query it is understood that you need information regarding the notice period and the employment contract.

In your case the employment contract which you have signed with the company will be valid and if it is written in the contract that you need to serve the notice period of three months then you need to follow that and also you are entitled for the pay in notice period.

As in the contract it is mentioned that the decision to release you earlier than three months would be solely at the discretion of the management then if they are agreeing with proposal, you cannot leave you have to serve for 3 months. If you do not comply with the terms and conditions of the contract then the company can even sue you for breach of contract.

Notice period is part of employment and even considered as tenure of service. An employee is entitled to salary and all other benefits even during the notice period. There cannot be any curtailment during notice period.

Hope it helps!

 

Regards,

Anusha Singh

P. Venu (Advocate)     02 November 2021

You are bound to serve notice period as per the terms of the contract. Relaxation, if any, is at the discretion of the employer. Other aspects of the terms of appointment have no application in the given context.

Dr J C Vashista (Lawyer)     03 November 2021

Terms & conditions of appointment shall govern the subject.

Arnab Maiti   04 November 2021

Hi, 

Thank you all for your answers. But as per my understanding the entire point 4 regarding notice period can be broken down into multiple parts. 

1) Notice period is of 3 months

2) An employee will either serve notice period or may pay salary in lieu of the same. Here salary means basic pay. 

3) The decision to leave early solely depends on the management. 

4) However incase an employee has entered any kind of agreement/period/understanding/trainee bonds etc, then in that case, the point 1 of 3 months notice period will not be applicable till the completion of the said agreement/period/understanding/trainee bonds etc.

Thus for a person in probation, the point 4 will automatically invoke the clause which states that "You will be on probation for 12 months from the date of commencement of your service. At the end of satisfactory completion of probation period you will be confirmed in the services of the company."

And hence, as per the separation policy of the organization, for a person in probation the  notice period will be 1 month and for a permanent employee it will be 3 months.

Please do correct me if I am wrong. 


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