Notice period waive off
Sonu Kumar
(Querist) 08 September 2014
This query is : Resolved
Hello Expert
I am getting a better carrier opportunity somewhere else and I have served I notice period of one month which is ending on 8th Sep’14.
I tried to negotiate and request a lot with management to relive me as this opportunity is crucial for my carrier but no one ready to listen here and also they have hold my salary and I am struggling to fulfil my daily needs.
My employee contract document says that there is provision to serve a notice period of three months but nothing have mentioned in reference to hold the salary.
Kindly help me so that I can found a humble solution.
Thanks in Advance.
Kumar Doab
(Expert) 08 September 2014
1. The employer (appointing authority, MD, Chairman) can waive off the notice period and notice pay.
Have you made any representation in writing under proper acknowledgment?
2. Is there option of notice pay in lieu of notice period also stated in employment contract?
If yes and even if NO:
---You have tendered notice period of 30 days against 90 days as inserted in employment contract drafted by employer and signed with you. Thus probably you would be liable to tender some payouts to employer as per FnF statement that should be supplied to you in original for verification and acceptance by you.
In FnF statement employer shall compute all earned wages to be paid to you, Bonus/ Gratuity/Leave encashment/incentives etc (if eligible), and notice pay recoverable from you................
---Payment of earned wages can not be blocked and employee can lodge a complaint the moment his wages are delayed even if by a day (after fixed/usual pay day) and employer can be penalized by the authority e.g. Inspector under Payment of Wages Act/Shops and Commercial Establishments Act..................
---FnF wages have to be paid n last day in office or say...................within next 3 days.................max. within usual pay day.
---NO deduction from earned wages can be made except those that are defined in enactments applicable to the establishment e.g. Payment of Wages Act/Shops and Commercial Establishments Act……………………………………or if applicable some private agreement between employer and employee…………..
You may check if there is any T&C in HR policy/exist policy/service rules and regulations etc (stated and referred to in appointment letter issued to you) that FnF payouts shall be made after…………………………….days. Even if such clause is inserted it may not survive.
3. Is notice period of 90 days really applicable in your case?
Notice period/pay does not necessarily depend upon T&C inserted in any private agreement drafted by employer and signed with employee e.g. employment contract/appointment letter……………………..and service conditions are governed by various enactments/statue/instrument of law applicable to the establishment………………………………..and any T&C inconsistent with such enactments shall not survive.
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.
If your lawyer opines that notice period/pay of 90 days is not applicable in your case then you may refrain from signing acceptance of FnF statement issued to you and may rather decline to accept it in writing.
4. Some employer may agree to provide say 80% of the FNF dues if FnF dues are blocked.
You may prepare your own FnF statement and submit in writing under proper acknowledgment for verification/acceptance by employer and ask for ……….amount of …………..
5. If next employer has offered 30 days of joining time then you have erred by accepting to join in 30 days and should have negotiated to buy your notice period and pay it unconditionally immediately upon joining. If next employer agrees for notice period buy out then you may ask current employer to adjust notice pay in FnF statement and issue Form16 or you may be subjected to double taxation.
6. Avoid cut and paste option and approach an able Labor Consultant/service lawyer with all docs on record and proceed under his exert advice and let him structure all of your representations so to build favorable written record to suit you in future.
Rajendra K Goyal
(Expert) 08 September 2014
Well advised, agree with the advise of expert.
Raj Kumar Makkad
(Expert) 09 September 2014
If there is no specific mention of purchasing of the notice period, the prerogative rests with the management to relieve the employee prior to the completion of notice period or not. You can request the management in this regard but there is no legal remedy.
