>> Employee should always inquire about the establishment, ranking, market standing, work culture before joining.
Employee should always tender reasonable notice of resignation, then final resignation and handover charge/company property if any and separate properly.
Employee(s) should always from unions IC’s, works committees, and affiliate with trade unions and negotiate service conditions.
Employee should never sign acceptance of any document be it appointment letter blindly without consulting lawyer/law firm, trade union leaders and must understand the implications of each T&C stated in it.
A properly informed employee can defend his interest and negotiate service conditions.
It is not mandatory to sign on any document drafted by employer. Employee can decline to accept the T&C that are detrimental to his interest.
The employer have been and are uniting hence the set ups like NASSCOM, NSR and so called mandatory registration with NASSCOM, NSR blacklisting in NSR etc....................................
There are IT employee’s unions also and they seem to have done a good job.
Trade unions like CITU are more than willing to embrace IT employees.
Employees in your trade should unite to counter the intimidating, arm twisting, practices of employers in your trade.
>>Did this company provide any appointment letter stating T&C of appointment including notice period/notice pay in lieu of notice period? If NO appointment letter was supplied or signed as accepted by you then you may reply that NO Notice Period/pay is applicable as it was not accepted.
Non issuance of appointment letter may also be a lapse, default, violation by employer.
If NO duty was ever assigned then it is a valid reason to contemplate separation as NO One would join an establishment to rust.
Does this company do it with other employees also and later demand Notice Pay.
A doubt comes to mind that this employer doesn’t pay for days worked and demand huge amounts from employees and extorts amounts by dangling threats of blacklisting with NASSCOM etc as cited by other members.
Were you appointed as Trainee or on Probation?
You and redg. office of the company is located in which state?
How many employees are employed in this establishment?
>> IT/ITeS/BPO/KPO etc are covered by Shops and Commercial Establishments Act.
The Standing Order Act is applicable to all establishments to which the Payment of Wages Act, 1936 applies. Section 2 (e) (iv).....................
It is not necessary that for being an Industrial Establishment a company should be factory alone.
It is further immaterial whether the industrial establishment engages in manufacturing, IT, or has shops selling grocery etc.
It is mandatory to adhere to provisions of Industrial Employment(standing orders)Act and non compliance may invite punishment.
The notice period/pay is not guided by appointment letter alone.
Ideally during probation period ‘Notice Period’ is NIL as employee would not have lien on employment.
Notice period as a part of service conditions is also stated in standing orders (Certified/Model) applicable to the establishment.
Even if the appointment letter drafted by employer has been signed by employee the standing orders, statues, enactments shall prevail upon any private agreement that employer might have signed with employee e.g; appointment letter, contract of employment, bond, service agreement etc.................................................
If notice period in standing orders is NIL it can’t be even one day in appointment letter.
The employer (owner/MD etc) is personally held responsible for faithful observance of standing orders.
Notice period is also stated in (Name of the state) Shops and Commercial Establishments Act.
It should be NIL for service period of 20 days.
Model Standing Orders:
13. Termination of employment:
(2) No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated
16. Certificate on termination of service.--Every permanent workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.
NOTE. - There is a provision under this Act for issuing a service certificate at the time of dismissal, discharge or retirement and every person is entitled to take such certificate.
17. Liability of 17[employer].--The [1][employer] of the establishment shall personally be held responsible for the proper and faithful observance of the standing orders.
>>There are many threads on similar queries which you may find relevant e.g:
https://www.lawyersclubindia.com/experts/Employees-under-bombay-shops-and-establishemnet-act-443611.asp#.Ur1SGNIW1MA
https://www.lawyersclubindia.com/forum/Resignation-without-serving-notice-period-94178.asp
https://www.lawyersclubindia.com/experts/Standing-orders-442266.asp#.Ur1TmtIW1MA
https://www.lawyersclubindia.com/experts/Standing-Orders-426366.asp#.UrKmL9IW1MA
>> The resignation is a personal matter and employee can submit it by post.
You may produce the copy sent by post.
The company is under legal obligation to supply you the wages for the days you have been on its rolls.
Contest the allegation if any successfully and do not hesitate to approach your labor consultant/service lawyer, President/Sec of the Trade Union or approach a lawful authority and you must obtain acknowledgment of having received resignation, acceptance of resignation, the original and correct FNF statement as hard copy under seal and signature by hand of the competent employee for verification and acceptance by you, Form 16 as per correct FNF statement, payment of earned wages and FNF dues by bank DD only, service certificate, relieving letter ( with good comments. Avoid without comments and with adverse comments) , NOC/NDC, PF number/account slips of entire period of service, ESIC card, Insurance card, salary slip of last month and all month’s of service, etc...
If company has not disbursed the payment of dues then it must have defaulted on submission of PF,ESIC, TDS etc...........
>> Hope this shall suffice.
In case of dispute employee can approach:
-Lawyer/law firm: A legal notice can help to drill sense into the heads. You may request your lawyer to include the HR personnel, this Head, appointing authority, CEO, Chairman, MD in list of noticees............
Designation alone does not decide employee is covered as ‘Employee’ as in Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act....................
Your lawyer may ask you a set of structured questions and may opine that you are covered.
If you are not covered then your lawyer may like to examine job advertisement, appointment letter, service codes and regulation applicable in the establishment.
Your lawyer may advice in such a case to send cheque for payment of notice pay ( ideally @ Basic+DA) and demand that a proper receipt be issued and notice pay be adjusted in FNF statement and FNF amounts be reduced and form 16 be issued as per net amounts after adjustment of notice pay.
Courts do not restrict themselves to appointment letter alone.
-Trade Unions/ Employees Unions: They know precise ways to handle such issues
-Inspector under Shops and Commercial Establishments Act;
-o/o Labor commissioner
-RPFC
-Inspector ESIC
-ITO-TDS (local at your location) and jurisdictional CIT-TDS where employer files its ITR.
-Civil Court.
