How can i avoid notice period recoverable amount

 

Since you have been served with a legal notice you may approach your lawyer with copies of all of your docs, give inputs in person and submit a proper and fitting reply.

 

 

 

Silence at your end may be treated as deemed acceptance.

 

Notice period is a part of service conditions and job advertisement, offer letter, appointment letter, standing orders applicable to the company, statue should be referred to for concluding the notice period and hence notice pay applicable to the employee.

 

If standing orders are applicable and are certified and have been extended to the designation of the employee, the notice period stated in standing orders shall be applicable and standing orders shall prevail upon appointment letter.

 

If notice period in standing orders is 1 month it can not be 3 months in appointment letter.

 

If standing orders are applicable but are not certified, Model Standing Orders shall apply. Te notice period is NIL during probation period and is max. 1 month.

Designation alone does not decide employee is a workman or not.

BPO/IT/ITeS/KPO sector has bee assigning fancy and strange designations.

 

Your lawyer may ask you a set of structured questions and may opine that you fall within the category of a ‘Workman’.

 

BPO’s are covered under Shops and Commercial Establishments Act of the state.

 

{BPO/Call centre are commercial establishments and have to register.

 

 

Delhi

High Court :Mantec Consultant Pvt. Ltd vs State & Anr }

 

 

 

 

 

 

For application of standing orders the establishments need not be a factory.

 

You may go thru: Industrial Employment (Standing Orders) Act,

 

 

 

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

 

 

 

.

 

 

 

Another employee had initiated threads on notice period/pay in case of KPO at Gurgaon.

 

You may find these relevant and useful.

 

https://www.lawyersclubindia.com/forum/Need-advice-releaving-90557.asp#.Ul-W2tKAqWM

 

https://www.lawyersclubindia.com/forum/Enforcebility-of-notice-period-by-the-employer-89560.asp#.Ula6s9KAqWM

 

https://www.lawyersclubindia.com/forum/Standing-order-and-its-applicability-90023.asp#.UlJTHNKAqWM

 

https://www.lawyersclubindia.com/forum/Ececutive-manager-definition-90201.asp#.UlZFiNKAqWM

 

https://www.lawyersclubindia.com/experts/Certified-standing-order-notice-period-and-applicability-427416.asp#.Ul5gKtKAqWM 

 

The trade unions have been advising the employees in BPO/IT/ITeS/KPO sector.

 

The employees formed associations/IC/unions too and some of them have done a good job in Southern India.

 

The united employees can certainly negotiate service conditions. The united employees/unions do have their lawyer to advise them.

 

It shall be appropriate to approach a competent and experienced labor consultant/service lawyer in person. The lawyer that has seen all of your docs and has analyzed your inputs can advise you the best. Once you are clear on the matter you can proceed as deemed fit preferably under the expert advice of your lawyer.

 

 

 

Thank you mr kumar for replying to my query. The situation is its written in the appointment letter that company has the right to recover notice period amount if the candidate leaves with out serving it.and has sent various reminders . And i thought such a big company wouldnt file a case for just 9000 rs and i ignored it and now i was served with a legal notice. so can i do anything legally to escape it? If not , then can I atleast negotiate the amount I have to give?. And whom to negotiate with?. The advocate who sent the notice on company behalf or the HR of the company. Regards

Thank you mr kumar for replying to my query. The situation is its written in the appointment letter that company has the right to recover notice period amount if the candidate leaves with out serving it.and has sent various reminders . And i thought such a big company wouldnt file a case for just 9000 rs and i ignored it and now i was served with a legal notice. so can i do anything legally to escape it? If not , then can I atleast negotiate the amount I have to give?. And whom to negotiate with?. The advocate who sent the notice on company behalf or the HR of the company. Regards

You may not have to pay.

 

 

Many of the conditions stated in appointment letter may not necessarily be in compliance with law of the land and may be illegal, unlawful, unreasonable, unenforceable, unconscionable………………….

 

This is not true with standing orders and enactments applicable to the companies. The conditions stated in these are lawful and legal and have to be followed by companies.

 

That is why companies loose majority of the cases and therefore believe in subduing the employee tactfully.

 

 

Haryana follows Punjab Shops and Commercial Establishments Act.

Notice period for employer and employee as per Sec22, 23, for period of service less than 3 months is NIL.

 

https://hrylabour.gov.in/

 

 

https://hrylabour.gov.in/docs/labourActpdfdocs/The_Punjab_Shops_and_Commercial_Establishments_Act_and_Rules.pdf

 

 

In case of another employee Labor commissioner pointed out that the notice period stated in Shops and Commercial Establishments Act is valid and that stated in appointment letter is VOID.

 

 

https://www.lawyersclubindia.com/forum/Employer-not-relieving-employee-contt-89308.asp#.UkP5C9KAqWM

 

 

If you were under probation period during this period of 2 months of employment then notice period during probation period should be NIL since employee does not have lien on employment. Model Standing Orders also affirms it: Sec 13(2).

 

https://hrylabour.gov.in/docs/labourActpdfdocs/Industrial_Employment_Act.pdf

 

 

 

Ideally you must approach Trade Union Leaders or your lawyer and issue a fitting reply to the legal notice.

https://ntui.org.in/links/

 

You can also approach: O/o Labor Commissioner, Inspector under Punjab Shops and Commercial Establishments Act applicable in the state of Haryana.

 

State of Haryana has Labor office and labor court at Gurgaon. You may approach Dy. Labor Commissioner, labor Inspector……………

The contact details are available at the website of the Dept of labor-Haryana.

 

https://hrylabour.gov.in/page.php?module=pages&pid=7

 

 

https://hrylabour.gov.in/page.php?module=pages&pid=3

 

Lawyers are trained and expert arbitrators. There are threads to suggest that lawyers resolved the matter in favor of their clients just by talking and writing to the companies.

 

It shall be appropriate to approach your lawyer.

 

If you decide to pay it is your choice. Discuss with elders in the family, competent and experienced well wishers.

 

Neither the lawyer nor the HR of the company shall decline to receive the payment even if they don’t deserve it.

 

 

things are starting get clear now but i still want to be sure  . 

in layman terms since i worked only for two months hence iam not liable to pay company any recovery amount for not serving notice period. ? thats what this sec 23 says right ?. since i started my job on 28th feb and left on 30th april. 2013.

23. NOTICE BY EMPLOYEE.-

(1) No employee, who has been in the service of the employer 

continuously for a period of three months, shall terminate his 

employment unless he has given to his employer 53[thirty] days’ 

previous notice or pay in lieu thereof.

(2) Where an employee contravenes the provisions of sub-section (1), 

his employer may forfeit his unpaid wages for a period not exceeding 

1 [ thirty ], days.



And as far as the probation period is concerned in my appointment letter it was written that i will be on probation for six months from the date of joining . so iam not liable to pay any amount for not serving notice period in the company right ?? since i only worked for two months.

according to Model Standing Orders  Sec 13(2).

 

"

 

""If you were under probation period during this period of 2 months of employment then notice period during probation period should be NIL since employee does not have lien on employment. Model Standing Orders also affirms it: Sec 13(2)."

could you please  send me  sec 13(2) . in a reply as iam having hard time finding that . 

pardon me iam still a 19yr old science student trying to understand law . 

regards 

is this what you meant sec 13(2) 

"THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) 

CENTRAL RULES, 1946 

 

It is good that you have gone thru the attachments and have understood the crux of the matter.

 

It is worth appreciation that you have not given up.

 

There is no age for learning.

 

One keeps on learning till death.

 

A properly informed employee can help himself, his family, fellow countrymen and employees.

 

The company may claim in writing or verbally:::: directly or thru its lawyer that Standing Orders, Shops and Commercial Establishments Act are not applicable to it, and also that the notice period/pay being levied is as per Bilateral Agreement signed between employer and employee in the form of appointment letter.

 

The applicability of standing orders and Shops and Commercial Establishments Act has already been discussed.

 

The IT/SEZ policy of many states has granted exemption from some sections of Shops and Commercial Establishments Act (pertaining to opening/closing time), provisions of THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT…………………………………

 

The policies of Govt. of Haryana can be accessed at:

 

IT Policy:

 

https://haryana.gov.in/government%20Policies/it%20policy1.asp

{ 13. Self-certification/exemption from various Acts :}

 

SEZ Policy:

https://haryana.gov.in/SEZpolicy/Policy_of_SEZ.pdf

 

 

Labor Policy:

{ CONCESSIONS TO INFORMATION TECHNOLOGY/ INFORMATION

TECHNOLOGY ENABLED SERVICES INDUSTRIES.

14}

 

https://haryana.gov.in/labourpolicy/labourpolicy2006.pdf

 

 

As per these policies full exemption is not granted from Shops and Commercial Establishments Act, THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT…………………………………

.

 

The Dept. of labor office, Inspector under Shops and Commercial Establishments Act, and your lawyer well versed with state laws also can guide you further.

 

The IT/ITeS/BPO companies give fancy designations. Your lawyer may ask you a set of structured questions and can opine on you being covered as ‘Workman’ as in ID Act and as ‘Employee’ as in Shops and Commercial Establishments Act………………

 

Assuming that standing orders, Shops and Commercial Establishments Act is not applicable to your establishment {which however does not seem so}

 

 for the notice period/service conditions reference should be made to appointment letter/contract of employment, service rules of the company…………………….

 

Does the condition of notice period of one month/notice pay apply to employer also in case the employer initiates the separation?

 

 

 

Your lawyer that has seen all of your docs can opine on your matter.

 

If you have served the company and have separated by tendering resignation then company is under obligation to supply the acknowledgment of resignation, acceptance of resignation, FNF statement showing the paybles by company to employee/paybles by employee to company (the employee is asked to check the correctness and submit objections if any), Form 16 as per correct FNF statement, PF number and PF a/c slip, ESIC card, Health/Group Insurance card, Relieving letter etc………………..

Service certificate (Model Standing Orders 16.          Certificate on termination of service).

 

You may demand these.

 

The employee can approach:

 

>> Lawyer/Law firm: The legal notice/reply by lawyer can drill sense into the heads.

>> Trade Unions, employee’s group/union/IC/Guild…………………..

>> O/o Labor Commissioner: labor Inspector………..

>> Inspector under Shops and Commercial Establishments Act of the State………………………………………………..

 
>> Inspector under Payment of Wages Act ( Applicable to all employees drawing wages as per def. of wages in the Act up to Rs.18000/pm)

>> RPFC in o/o PF Commissioner

>> Inspector in Local/jurisdictional ESIC office………….

>> ITO-TDS where employee files ITR, jurisdictional CIT-TDS where company files its ITR………………

 

The employees in It/ITeS/BPO sector also formed unions and have done a good job too:

 

https://www.itpfindia.org/ https://www.itecentre.co.in/ 

Contact Us

Please contact us on mail id : 

contact@itecentre.co.in. ph : 9620907912

Please Join ITEC group for discussion among IT-BPO employees.

To join the group, please send a blank mail to itec_bangalore-subscribe@yahoogroups.com 

https://ithiworld.wikispaces.com/News+Update 

ITHI, a forum of women employees in IT and ITeS

IT/BPO Voice of India | Facebook

CBPOP (the present UNIDOC) 

 

 

www.unitespro.org https://www.wbitsa.org/

 

 

The trade Unions are willing to embrace the employees in your sector and can guide from their rich experience. You must have gone thru challenges for organising bpo workers in india.doc

 You should access their websites and speak to them too.

 

^{All India United Trade Union Centre (INTUC)}

 

^{Centre for  Indian Trade Union (C I T U )}

^{National Centre for Labour(NCL)}

^{Bharatiya  Mazdoor  Sangha (BMS)}

 

 

 

The employee’s form your sector has been initiating threads e.g;

 

https://www.lawyersclubindia.com/forum/Bpo-norms-88678.asp#.UkaEv9KAqWM

 

 

thank you so much you are being a great help 

okaay  a quick question and please answer 
 

according to "THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) 

CENTRAL RULES, 1946 sec 13(2) ".


does the employee(me) has to resign from the company inorder to apply this law??

because i have not regined from the company just left it . does this law is still applicable ??

so you are saying since my appointment letter was a Bilateral Agreement signed between company and me  so the standing orders are not applicable at all on this ????

please reply in simple words . 

 

You can continue to write in this thread as long as you want.

 

 

Enough advice has been given.

 

The companies are known to issue verbal order of termination and insert copies in personnel file of the employee, with or without sending the written order by post.

 

Employees can communicate termination of employment by resignation in office to officials and send written copy by post.

 

Employee should preferably submit everything in writing under acknowledgment.

 

Is it stated in standing orders, appointment letter, and service rules that termination is to be communicated in writing?

 

Hope you can read between the lines.

 

Appointment letter is bilateral agreement.

 

For best resolution to your issues approach your lawyer in person.

It is a misconception that consultation charges and charges of all lawyers for issuing legal notice/reply are very high.

 

A fitting reply by your lawyer to lawyer of company or trade union to HR can put the matter to rest and no reply may become deemed acceptance.

 

Finally: Either you act in response to legal notice or pay the money and remain careful in future.

 

You may proceed as deemed fit at your end.

 

 

 

ah!! i got what you trying to say .  but in appointment letter it's written that 

" notice to terminate this contract will be accepted by the company only when it is issued ina form where in identity is ascertainable (such as hardcopy letter with original signatures). notice of termination in electronic form where such identity cannot be ascertained such as sms or personal email shall not be accepted as adequate notice of termination for the purposes of this agreement "


so is it still aplicable? .


so between  bilateral agreement and  standing orders  which one is given preference first . i mean does standing orders and service law rule out bilateral agreement ???

i know you have given enough advices but i'm just trying to clear my doubts . please bear with me . 

regards