Notice period
vardarajan_1999
(Querist) 08 September 2015
This query is : Resolved
Dear sirs,
My daughter was working for Sriram Value Services joined on probation for one year. But after working for two months, She has d resigned properly and got NOC from all the department. But the company is demanding 1 month notice or salary in lieu of notice.
As per their service rules,"During the probationary period the services ae liable to be dispensed with at any time at the sole discretion of the company witthout any notice or compensation or any reaon"
I beleave the same is applicable to employee. Please advice Can I take any legal action against this company for harrasing the employee.
Guest
(Expert) 08 September 2015
Dear Shri Vardarajan,
You will have to refer the terms & conditions included in the offer or appointment letter of your daughter. It cannt be assumed that the same terms would apply, as the company applies for termination during the probation period. Normally, equal terms are applicable to both sides in the case of regular appointment after probation.
Kumar Doab
(Expert) 08 September 2015
Most Probably it is registered as Commercial Establishment....................
You may look into the section on Notice Period/Termination in (name of the state) Shops and Commercials Establishments Act.........................that was enacted to govern the service conditions of employees working in establishments covered by this Act.
For 2 months of service notice period/pay should be NIL.
Your daughter might be covered by the def. of 'Employee' as in this Act.
The standing orders might also apply to the establishment.
If the standing orders are certified and designation of your daughter is covered you may look into the section on Notice Period/Termination..............
If the standing orders apply but are not certified you may go thru Model Standing Orders;Sec;13..................The notice Period during Probation Period is NIL. You may also go thru Sec18; The employer individually bis held responsible for faithful observance of standing orders...................and can be penalized in case of violation.
Your daughter might be covered by the def. of 'Workman' as in ID Act.
The T&C in contract of employment should be equitable or else these can easily be termed arbitrary.
The (name of the state) Shops and Commercials Establishments Act, Standing Orders (Certified/Model) shall prevail upon any private agreement/rule/policy drafted by employer and signed by employee e.g appointment letter/contract of employment/HR policy etc.............
Hope this shall suffice.
P. Venu
(Expert) 09 September 2015
Have you daughter replied to the Notice. I feel that a succinct reply itself may settle the issue.
Rajendra K Goyal
(Expert) 09 September 2015
Consult local lawyer, show him all the documents and reply the notice denying any liability.
vardarajan_1999
(Querist) 09 September 2015
Dear Sirs
Thanks to all who have helped me. The Service Rule was given separatly along with the Appointment Letter and the wordings what I have given in the second para of enquiry is same as given in the Service Rule given by the Company. I do not know whether the Service Rules are registered or not. The Appointment letter contains only the Designation, Salary , Group Medical Insurance,Probation (1 Year) and name of the reporting office. Nothing Else. A separate sheet was attached with the Heading "ServiceTerms and ConditionsForming Part of Appointment Letter"
I feel the Termination class during Probation period is one sided.
Thanking you
Kumar Doab
(Expert) 09 September 2015
>>> You have not mentioned in any of our posts that legal notice has been issued by company.
>>> You have posted that:
---'But the company is demanding 1 month notice or salary in lieu of notice.'
How is this demand made? Verbally or in writing?
Has the company quoted any Rule/policy and clause/section of said rule/policy to substantiate its demand?
And/or have you demanded to quote any Rule/policy and clause/section of said rule/policy to substantiate its demand?
The hearsay/gossip/rumor is not Rule/policy .......................or Act/law/statue!
The employer can not act like street magician and produce things from thin air.
---'A separate sheet was attached with the Heading "ServiceTerms and ConditionsForming Part of Appointment Letter '
Is it mentioned in appointment letter or "ServiceTerms and ConditionsForming Part of Appointment Letter '..................that notice period applicable for employee during probation period is 30 days?
If NO then as per company's own internal policy/rule there is NO notice period applicable for employee during probation period!
This should end the matter.
>>> An able Labor Law Consultant/Service Matters lawyer/Law Firm can draft a fitting reply if any notice or written demand is issued by the company.
Your counsel may ask a set of structured questions and opine that your daughter is covered as 'Employee', 'Workman'.
>>> It is imperative that a written conclusion is obtained from company OR the companies are known to keep mum and issue negative/adverse comments in BGV/reference check.
>>> It might be an internal written/unwritten order for the HR that 30 days notice pay is be extracted and HR personnel to defend their own employment may resort to tactics.
Hence it is better to minute and escalate to good offices of appointing authority/MD/Chairman and make them a party for future reference.
vardarajan_1999
(Querist) 09 September 2015
Dear Mr.Doab. The company's demand is verbal and not done the Settlement holding 5 days salary.
The service Rules are attachment of Appointment letter.
The appointment letter does not speak any thing about Notice Period.
As per the attached Service Rules, The Company can remove the employee without giving any notice salary in lieu of any employee during probation. But does not speak any thing wheter the Employee has to give notice during the probation.
Kumar Doab
(Expert) 09 September 2015
The FnF wages are to be paid on LWD or say within next 3 days or max. by usual pay day.
Unpaid wages are debt on employer………………………….bet it for 5 days or 5 hrs.
The employee can lodge a complaint the moment employer ha delayed the payment even by a day and employer can be panelized say Rs.7500/instance.
The employee has subscribed to instructions in office and has already availed and submitted NOC.
You may write to good offices under proper acknowledgment narrating all representations so far (by email/phone calls/in person) and conclude that verbal demand (narrate the demand) made by Mr/Ms……………….designation…………….name of company………………..address………………..on dated……………..is unfair and the appointment letter/Service Terms and Conditions Forming Part of Appointment Letter does not lay down any notice period/pay and it has already been clarified by the employee…………………………………..and copies of appointment letter/Service Terms and Conditions Forming Part of Appointment Letter/NOC/resignation letter etc are attached……………………….and conclude that the resignation was accepted in office without any condition and employee was asked to obtain NOC that has already been obtained on dated………………..and submitted on dated……………………and despite best representation the wages/documents have not been supplied till date…………….and acceptance of resignation, service certificate, relieving letter (with good comments and avoid without /or with adverse comments), correct FnF statement showing computation of earned wages/allowances/bonus/reimbursements/incentives etc , payment of FnF wages by bank DD only, Form16 as per correct FnF statement, PF number and a/c slips,ESIC card etc be supplied by Redg. Post only so as to reach within say next …………………..3days, at address………………………….
If the good offices also do not provide relief, you can approach:
Employee’s unions/Trade Unions leaders
Labor Law Consultant/Service Matters lawyer/Law Firm
And thru them preferably;
Inspector appointed under (name of the state) Shops and Commercials Establishments Act, Payment of Wages Act
O/O Labor Commissioner
Highest Officials of Dept. of labor
RPFC
ESIC
ITO-TDS, CIT-TDS
And your counsels may opine that you can lodge complaint u/s 406,420 ,file winding up petition, file civil suit for recovery etc
T. Kalaiselvan, Advocate
(Expert) 18 September 2015
Expert Mr. Kumar Doab views and opinions are most suitable. You may follow the suggestions made by him in this regard.
