Notice period related

Sajal Ghosh (Querist) 07 September 2014 This query is : Resolved
Hi sir,

I have worked in an advisory company few months back,and then I was on a medical leave but I don't have any medical certificates. I have informed that I am not well and suffering headache for which I am unable to take calls for long hours.The leave was approved and after some time I got a call from the company regarding joining,then I replied them that my condition is not OK to take calls I need more leave.They told me to send mails for leave extension or resign.I replied that I will come to the office and discuss the same.
On 2nd September I got a mail that I am absconded by the company and I need to pay the penalty amount of 50,000 Rs.which was only 4 days after the discussion and in between there were Sunday and Ganesh Chaturthy.

I replied the mail that I was out of the city and am ready to serve the notice period but under a different manager as there were several HR Issues.
They replied that I can't Join.
Now they have send me a legal Notice claiming 50,000 Rs. as per the employment contract.
My query is, how they could claim me the penalty without giving me any option to serve the notice period and how they can abscond me with out giving me any warning letter or email?

They have not paid my last salary of 22 days as well as my PF.Please let me know What should I do now?

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Kumar Doab (Expert) 07 September 2014

1. You have posted that: You were on approved leave………………….The leave was approved from which date to which date? Do leave rules stipulate that ‘Medical Certificate’ is required for leave beyond leave for …………….days and can e submitted after joining?

If you were to join duty next day of expiry of leave you could have submitted a communication that you shall be resuming duty.
If you were to extend leave from next day of expiry of approved leave you could have submitted a communication for leave extension.

2. Did you submitted no communication in advance ( as per some leave rule/policy etc) for resuming duty/extension of leave! Relate this with leave rules of the company…………………………………

3. By common sense too prior information sufficiently in advance should be submitted.

4. The company on its own called you to check if you shall be joining or on a date nearing expiry of leave…………………………..since there was no communication from your end for extension of leave/resuming duty after expiry of approved leave!

The company personnel called you before expiry of approved leave or on last day of expiry of approved leave or after expiry of approved leave?

If 31st Aug was holiday and 1st Aug was holiday (Ganesh Chaturthi) then was your leave approved till 30th Aug? If yes the company personnel called you on which date? Who was caller; Line Manager, HR, Employer himself? Did you record this call? Do you have date, time, phone number of the calling person in your incoming call list? Did you minute the discussion? You should have since demand of resignation was made!

5. Your response was:

(a) ‘you are still not well………………………{implying that you were aware of your health and hence you could have submitted leave application for extension of leave.}’

(i) You were asked to submit leave application for extension of leave. The response of company upto this statement is fine.

(ii) You were asked to submit leave application for extension of leave OR RESIGN!!!! Demand of resignation can be termed offence and complaint can be lodged. It is certainly a transgression by any person in line management, HR and employer can be held responsible for allowing this kind of illegal acts in his establishment.

(b) You shall come to office and discuss the matter in person. Here your stand might be that since you were asked to resign you wanted to discuss face to face! What was the date you indicated on which you shall be present in office for one to one discussion on the matter……………………………since you were asked to resign.

6. On 2nd Sept by an email company issued an email declaring you absconding!

(a) Why and how you were fit to be declared ‘Absconder’? Did your approved leave expire on or before 29th Aug? Absconder is a derogatory word and your lawyer may opine that you can agitate.

(i) Why your reply to the mail was that you want to serve notice period?
(iii) Did you tender notice of resignation/resignation?
(iv) Did the company tendered notice of termination/offered notice pay in lieu of termination notice period?

(b) As per company’s internal HR policy/Service Rules and Regulations/Conduct and discipline Rules/leave policy (which are referred to/mentioned in appointment letter) after how many days unauthorized absence ‘employee’ can be declared………………………absconding/absenting/abstaining?

Do you have copy of HR policy/Service Rules and Regulations/Conduct and discipline Rules/leave policy?

The point is that absconding/absenting/abstaining if ‘Proved’ is misconduct and employee is absent beyond……………………………….days as in service conditions applicable ( as per various enactments applicable to both company and employee) then it is misconduct and employee may loose lien on employment………………………………and company may be entitled to terminate without any prior notice………………..and without tendering notice pay!

7. What was the need and why did you write by email ( in reply to the email declaring you absconding) that you are willing to join duty but under different Manager? Were you advised to do so by any lawyer? You have referred to several HR issues. Did you ever escalate in writing on record such issues previously before proceeding on leave? The reply of the company was ‘You can’t join’? Is this person that has declared you absconding and that you can’t join …………………………..your appointing authority/competent to do so as per Board of the company? Who is he/she?

8. The penalty amount of Rs.50000/- …demanded by email by company is demanded under which head?

9. Amount of Rs.50000/- …demanded by Legal Notice is demanded under which head and as per which clause of the employment contract? What does this clause read like?

10. If company has terminated the employment then how can it demand notice pay from employee? This needs to be understood.

11. The 22 days have to be paid to you on the close of office hours of date of termination along with service certificate or if you agree…………………….say within next 3 days and max……………………by usual pay day.

12. The PF is maintained by either approved PF trust of the company or EPFO!

The funds in PF a/c of the employee maintained by EPFO are not in control of the employer. You were in employment for how many days/months/years? Has the company issued any PF number, PF a/c slips to you?

13. What was this establishment; Commercial,Industrial, Small Enterprise..................The registration certificate can give you an idea or you have to find on your own.

How many employees were employed in it?

Did the company display standing orders applicable to it: certified/Model?

What is its line of business e.g. banking, IT, Grocery etc...................

The Redg. office and HO, your reporting office is located in which state?

What was your designation and nature of duties?

Was your service confirmed in writing or you were under probation?

Do you have evidence and details of OT/extra hours?

Have you posted some representations even if by ordinary/normal post............................and can you produce copies?

Were you or are you member of some employee's/trade unions?

Did the company issue any FnF statement and did you accept it?

14. For better understanding of the matter you may post your reply to each point……………………….pointwise. If you do so some resolution might be possible. Please do not leave any point unanswered and do not conceal anything.

Sajal Ghosh (Querist) 07 September 2014
Thank you for your concern about me.
My leave was approved for 3-4 days,which was a verbal communication with my Manager.My last day was 22nd Aug,in my company.I have told my manager that if I am well I will join on Mon or Tuesday.Sat and Sun is declared off except last Saturday of the month.I got a call on 28th August from my reporting Manager.The discussion is recorded as every calls through company's number is recorded by default.I verbally agreed to resign as I feared that taking calls is the main reason of my headache,but my manager never told me about serving the notice period at that time.
I was always forced to do 11-12 hours Job by my manager which is recorded by the company in my In-Out Time.The company is an advisory Company in stock market where we are trained to play tricks with the customers and get payment whether they are bankrupted or do suicide, after getting heavy losses.The company justifies that if we do not take money someone else will definitely take money from the customer,then why we must not?

The agreement is termed as "Employment Commitment Agreement" in my appointment letter and six month bond is signed by me as under clause 6 of the agreement.

The name of the Company is Capital Via Global Research Company Limited with around 700 Employees.I was working there as a Senior Business Analyst.

I have all the email conversations with the HR,Legals and the reporting manager which was made on 2nd September, which comprises of about 12 emails from both the sides,where I have demanded my clearance and proper communication before absconding me.Then they have sent me a legal Notice through an Advocate in his letter head demanding 50,000 Rs on 6th September,dated 4th Sept,where 15 days ultimatum is mentioned maximum otherwise they will take legal action,therefore please help.

Kumar Doab (Expert) 07 September 2014
You have not replied to all points, and pointwise, while you should have…………………..

The learning from your own experience should be that employee should submit all communications in writing, consult elders in the family, competent and experienced well wishers, lawyer/law firm before signing on the dotted line and retain access to Labor Law Consultant/Service Lawyer……………….

The ‘Employment Committement Agreement’ was created and inserted in lieu of which extra ordinary favor by company………………….some training certified by an Instt……………………some extra ordinary skill……………………some extra ordinary favor?

Your lawyer may opine that the so called ‘Employment Committement Agreement’ is not even worth the piece of paper on which it is written, unconscionable, arbitrary, unreasonable, unlawful, illegal, void………………….and can explain the merits and remedies that you can have.
If it is unreasonable there is no question of payment of liquidated damages by you.
In court of law’ Reasonable of the matter’ and reasonable amounts shall work………………………………your employer, is lawyer, your lawyer………………….. are all aware of it.

Since legal notice has been issued and you have signed so called ‘Employment Committement Agreement’ by your free will and probably agreed to pay Rs.50000/ as liquidated damages hence you should approach a Labor Law Consultant/Service Lawyer along with copies of job advt., job application, interview call letter, selection letter, offer letter, appointment letter, HR policy/Service Rules and Regulations/Conduct and discipline Rules/leave policy (which are referred to/mentioned in appointment letter),employment committement agreement, letter declaring you absconding, all emails referred by you, legal notice,etc………………………………………and let your lawyer examine all docs on record, explain the merits and submit a fitting reply to the legal notice.
Abscondment is ‘Misconduct’ and employment can be terminated. This can remain in your personnel file and there is a possibility of adverse comments in reference check/BGV……………………….hence you should put in efforts so the notice of ‘Abscondment’, legal notice, termination order is called back in writing.

Such companies are covered by ( name of the state) Shops and Commercial Establishments Act( that was enacted to govern service conditions of employees working in establishments covered by this ACT) , standing orders………………………………and by your designation/nature of duties your lawyer may opine that you shall be covered as ‘Employee’ as in ( name of the state) Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act……………..

If standing orders are not certified; Model Standing Orders shall apply………………

Sick leave/leave: You have verbal approval by your manager and calls are recorded.
You were in office till 22nd August, 23rd/24th was off day…………………………you were on leave for 3-4 days……………..on 28th again your manger inquired and you were not well, and asked for extension of leave and were asked to submit in writing and you offered to appear in office and could have submitted written format in person…………………..and rather your manager demanded resignation………………..
You were not absent for 8 days after expiry of approved leave…………………hence did not abscond/loose lien on employment.
You were not given any opportunity to explain……………
You may go thru Model Standing Orders; Sec9-18……………………
And also
( name of the state) Shops and Commercial Establishments Act, ( name of the state) Shops and Commercial Establishments rules and its sections…………………

Notice period: is part of service conditions and is well defined in enactments applicable to establishment/employee……………..and any T&C in any private agreement drafted by employer and signed with employee e.g. appointment letter/contract of employment and even so called ‘Employment Committement Agreement’……………………………..that is inconsistent with such enactments/statue/instrument of law……………….shall not survive.

Hence you may go thru Model Standing Orders (Sec;13) or Certified Standing Orders whichever is applicable, ( name of the state) Shops and Commercial Establishments Act and clause on notice period in it………………………….and notice period applicable to you may be NIL.

You may go thru:
http://www.lawyersclubindia.com/experts/Regarding-notice-period-494396.asp#.VAxs-cKSwb8
and each of other threads mentioned in it and pick up relevant points from attachments and judgments too.
Since you did not resign there is no question of service of notice period by you.

Since company has terminated (if termination order has been issued and supplied) there is no question of service of notice period by you.

Since you have not absconded there is no question of ‘Misconduct’…………………………hence termination order is bad………………………… there is no question of service of notice period by you.

On its part your employer its line manager/HR personnel/legal cell personnel/lawyer ………………………..shall all attempt to subdue you and succumb to pressure and its tantrums…………………………………….and may even approach court of law.
If you show signs of weakness they may extract letter of apology from you……………………………and still the adverse comments and record may not be erased from your personnel file………………………………………….if you pay the amounts demanded from you……. still the adverse comments and record may not be erased from your personnel file.

You can approach Employee’s unions, trade unions, Inspector under ( name of the state) Shops and Commercial Establishments Act, O/o Labor Commissioner (Central; as central may be the appropriate govt. in your case), Inspector under Payment of Wages Act………………………civil court…………………………..preferably under the expert guidance of your lawyer.

You may note that you would require exceptional skill to handle the matter on your own………………………..however lawyer’s are skilled in mediation/conciliation/arbitration and can get you rid of the situation without litigation and if matter lands up in court of law…………………..thru court of law.