Legal action against absconding employee in probation period

You have posted that:

 

"I decided to join other company after serving 10 days notice."

You should have supplied final resignation, subsequent to your notice of resignation and you should have narrated the incidences e.g. no project i.e. work was assigned to you as no project i.e. work was available with company to be assigned to you, and since you were almost idle your experience and education was getting wasted. While you pointed out you were abruptly transferred to other location. You had opted to resign and your resignation was duly accepted by company ( hope you have the acknowledgment and acceptance). Since there was no assignment assigned you had requested to relieve you and waive off the notice period. However you are being forced to come serve the notice period although there is no work and your requests for waiver of notice period/pay are dumped. You had pointed out to buy the shortfall in notice period and tender notice pay in FNF statement.

If you have not supplied any such letter you may structure the letter as per facts and submit a copy by email mentioning that original has been sent by post.

--If you do not resign company can initiate the process of declaring you absconding. Although company should supply warning by letter/email and notice by redg. post, however companies are known to become vindictive. Company may approach your next employer and may give negative feedback. You must take your next employer into confidence and may submit even if by email that your company may not issue acceptance of resignation, work experience/service certificate, relieving letter and you can provide only acknowledgment of resignation, POD and you should be allowed to join on the strength of these documents only. You may update that your company has threatened to give negative feedback.

--You are liable to tender at the most notice pay for the shortfall in notice period. 3 months notice period in probation period seems to be unreasonable.

 

--If you do not fall within the category of workman, terms as agreed in appointment letter shall apply.

In addition to ID Act compliances have to ensure under various other acts. The employee as defined in these enactments would be protected.

Notice period is described in Labor Laws e.g.:

-- INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES, 1946

 

13. Termination of employment.--(1) For terminating employment of a permanent workmen, notice in writing
shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen and
two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in
lieu of notice.

 

--SE ACt 

e.g. As per  SE Act applicable to Delhi:

Sec.34

30.	Notice of dismissal

 

(2)

No employee who has put in 3 months' continuous service shall terminate his employment unless he has given to his employer a notice, of at least one month, in writing. In case he fails to give one month's notice he will be released from his employment on payment of an amount equal to one month's pay.

 

Then notice period is mentioned in advertisement for the post, letter of appointment, employment agreement, standing orders/service rules of the company as agreed upon between employer and employee's union.

Dear Querist, 

 

1) Company can seek to get damages for breach of contract and if they are too aggrieved they make seek enforcement of negative stipulation - i.e stay - restraining you from working in other company during the notice period. The Second is unlikely to happen for the simple reason that judicial proceedings are expensive and take a lot of time and the notice period may run off even before order rendering their proceeding infructous. 

 

2)  It can't force you to serve the notice period, you have the option of pay out and you can exercise the same. 

 

 

3) It would be better if you first serve a legal notice to the company from your end - accusing them of breaching contract - by not giving you an assigment, if they serve you first answer appropriately. 

 

Feel free to talk !

Notice period of 3 months during probation is unreasonable and untenable by law - specifically under the Shops and Establishments Act and even if by the Model Standing Orders, if applicable to the MNC. Please give the numbers of employees and the location of the establishment. 

vasudevan

Its of more than 20000 employees worldwide and its Indian headquarters is in Bangalore.

Need More clarification: It would be highly appreciable for your concern revert back.

I got one offer from one company in 2014 and I signed the offer letter given to them & joined the company after my one month.

After joining the company & taking salary for 2 months, I personally experienced the situation, where the company CTO harrasing the people with unwanted questions on projects and unwanted processed worked.

Due to that I decide to get Abscond from the company, without serving the notice period. (Since I was in Probation period).

In offer letter, there is a point mentioned as follows:
"During the period of your probation, your employement can be terminated by either side at any time by giving 2 months notice in writing or payment of salary in lieu thereof, without assiging any reason thereof."

Apart from offer letter, I have not signed any agreement letter nor any letter of appointment neither any code of conduct.

there was another point in offer letter as follows:
"You will be bound by the code of conduct which you are required to adhere to"

But I have not given any code of conduct process book etc etc.

Now I received letter from company after 18 months (Registered AD), saying that you need to pay the 2 months notice period amount.

Need your valuable feedback:

1. What process should I follow? Am I really fit in any law that I need to pay the 2 months notice period without signing the any agreement letter & taking salary for 2 months.

2. Should I fight in labout court against the company?

Regards,
Vicky Samshri

 

Your urgent reply, will be very much helpful for me.

@ Vicky Samshri,

 

The answer to your query is same.

Look into the Shops and Estbs Act of the state where you employed and Standing orders (Model/Certified) if applicable to our company. Then check if you are covered by the def. of 'Employee' as in Shops and Estbs Act, 'Workman' as In ID Act/Model Standing Orders, and if your designation is covered by the Certified Standing Orders.

 

You may also check if as per Shops and Estbs Act/standing orders appointment letter/I >card was mandatory to be issued..................................and also the notice period/rate of notice pay as per length of your service/status of employment as probationary or confirmed employee.

 

In any case if you are covered it is not more than 30days if yourservice was confirmed and say NIL/ 7/14..................... days, as per length of service.

All of the above mentioned enactments shall prevail upon any private agreement/rules/policies drafted by employer and signed with employee e.g. offer letter/appointment letter/Code of Conduct etc..................

You may attach copy of resignation if sent by ordinary post with yourreply and also narrate breaches if any committed by employer or any other reason thqat renders employer as unworthy of being employed with or any situation leaves no sanctity for  notice period .......................and conclude that no notice period was applicable.....................

 

It shall be appropriate to consult an able counsel specializing in labor laws and let your counsel draft your reply that you may supply by Redg. Post and close the matter.

 

 

 

 

Hello Kumar Doab Sir,

Many Thanks for your reply and will do the same according to yor suggestion.

Thanks a ton :)

Regards,
Vicky Samshri

You are welcome!

@Vicky Samshri @Kumar Doab I have received the same letter from Capgemini for absconding it within 3 days of joining. I joined Capgemini on 7th May 16 and quit that organisation on 10th May 16. I explained all the situations to my reporting manager at that time for leaving the organisation. Now on 15th Dec 17, I received a letter from Capgemini stating that I owe them notice period amount. But neither they pay me a single amount of money of salary nor PF. Kindly let me know what can be done on this when I haven�t drawn a single salary even from the organisation. Kindly replay asap, that will be a great help.

 

While posting such queries employee should post basic information!

What is this establishment; Commercial, Industrial?

What is its nature of business say; IT, ITeS?

How many persons are employed in it?

What is your designation and nature of duties?

How many persons report to you?

Do you have any power to sanction leave/increment/appoint/terminate/appraise etc etc ?

You are in which state? Since how many months you are working? Are you under probation period or your service is confirmed in writing?

Does offer/appointment letter/contract of employment state that notice pay in lieu of notice period is not accepted?

Do standing orders (model/certified) apply to establishment and your designation?

What is notice period as per appointment letter/offer letter and what was notice period tendered by you?

Was ever any stinker, memo, show cause notice on any misconduct issued to you?

Does the establishment have its appraisal system? Do you have copy of signed appraisal forms, matrix, KRA’s, performance date? How was your performance?

Are you a member of employee’s/trade unions?

Has the establishment issued/supplied, offer letter, appointment letter, salary slips of all months, PF number and a/c slips of all years, ESIC card, correct FnF statement, Form 16 as per correct FnF statement, acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC……………?