Unequal notice period in appointment letter
Querist :
Anonymous
(Querist) 30 July 2019
This query is : Resolved
Dear Sir/Madam
I am a senior manager in a manufacturing organization in SEZ Madhya Pradesh. I joined the organization in September 2017. I tendered my resignation on 20th June 2019 stating that I will serve my notice period as per appointment letter.
After that company announced it's annual appraisal and increment in june end effective from 1st April 2019, but it was not awarded to me saying that you have submitted your resignation so you are not applicable as per company policy, though no such written policy exist or mentioned anywhere in my appointment letter.
I was told If you take resignation back we will give you increment. I have already worked for 22 months & still working in notice pay and this was my 1st appraisal as last year by April I had only 7 months completed so I was told you will get next year on prorate basis. So I think it should have been given to me. Had I not resigned i was to get increment for 19 months and arrears effective 1st April 2019 as all other employee got. I had taken 3 days EL in June before submitting resignation but My salary was processed with LOP and it was told to me that EL is not applicable in notice period.
My issue is not increment/money though.
As per my appointment letter the termination clause is : "The company may terminate your employment at anytime upon 30 day notice or upon payment in lieu of notice (i.e base salary & allowances) as provided for under the applicable law. You may terminate the employment upon 90 days notice to the company." Since I have already completed 40 days and not willing to work any further due to above incidence. I feel the notice period is not equal and since they are denying me benefits citing policies and rules.
Can I rightfully leave the company immediately stating that notice period should be equal so if yours is 30 days so is mine, so I am quitting immediately without any breach of terms. Please process my F&F without any deduction as I already completed 30 days and as per Model Standing Order of MP/SE Act also the notice period is 30 days only.
Dr J C Vashista
(Expert) 31 July 2019
Too long a story, no time to oblige.
Consult a local prudent lawyer for better appreciation of facts, guidance and proceeding.
However, if are located in Delhi/NCR and feel so, may contact me with relevant records (on appointment) at: Chamber No 647, Lawyer's Chamber Block, Dwarka Courts Complex, Sector 10, Dwarka, New Delhi-110075 Cell # 9891152939 email: majjagdish@yahoo.com
P. Venu
(Expert) 01 August 2019
What is the real issue - not getting the increment or too long notice period? Please post simple facts highlighting the real issue.
Querist :
Anonymous
(Querist) 01 August 2019
Dear Sir
Sorry for long post just wanted to put all the facts. My issue is in termination clause its mentioned that "company may terminate my employment with 30 days notice or payment in lieu of that but if I want to leave I have to serve 90 days". I want to quit immediately, have already completed 40 days notice. Can I argue that clause is unfair and legally void as per indian contract act and I am also liable only to serve 30 days not more than that.
SHIRISH PAWAR, 7738990900
(Expert) 06 August 2019
It seems that you have already accepted the term and conditions of employment now you cannot deny. It is better you discuss issue with employer and find out solution.
Querist :
Anonymous
(Querist) 06 August 2019
Dear Sir
In my understanding if a clause is unfair then it's unconscionable & void and can not be forced. Like if my employer put a clause that you can not marry while in employment so that's void. This I am saying based upon many judgements from Supreme court in similar cases. So I just wanted expert opinion.
Querist :
Anonymous
(Querist) 14 August 2019
Dear All , Thank you, updating it just in case someone else also have similar issue. I got a contact in Ministry of Labour & Employment , who is an IAS officer and among team of policy makers of India. He told me clearly that there could be no one sided notice period or for that matter any one sided clause in any kind of contract unless justified, it is against the contract law & constitution of India. He also referred me to a judgement from supreme court (1986 SCR (2) 278) in this regard and many judgements based on that from various high courts of India. Also he informed me about the EL which was not allowed in my case that, unless it's mentioned in appointment letter or in any other policy for which all employee agreed and abided before I put resignation, company can not deny leaves on whim. Leave is a basic right of employee and legally doesn't require any approval/sanction unless specified in service condition. He also referred me to Delhi HC judgement W.P.(C) 253/2007 in this case.
Hope it helps someone in future.
