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Sanjay   14 June 2018

Notice from employer for non service of notice period

Hello,

I had joined a company in June 2016 and quit after 2 months. I quit because i was not assigned any work in spite of repeated assurances by the management. When i found a new job, i asked to be relieved in a week because i did not have any  handover to do at all. But the management declined and said i will have to serve 2 months notice period. I declined because i knew they just wanted the new opportunity to slip away. I sent an email to them and left after a day. Now after 2 years they have approached me and asking me to pay 2 months salary for non service of notice period. Could you please let me know-

  1. Is the company right in approaching me after 2 years, is there no time constraint by when they should have approached me or if they intend to send a legal notice?
  2. My Offer letter says that each party has to give 2 months notice in writing, nothing about compensating for breach of notice period clause. Moreover i was not having any work for 2 months or the company did not suffer any loss because of my quick exit.

What should be my stand if they send a legal notice to me? Please help.



Learning

 7 Replies

Adv Deepak Joshi +917017821512 (Advocate)     14 June 2018

Share legal notice at my email id deepakworkjoshi@gmail.com will revert suitably .

Siddharth Jain   14 June 2018

Deepak,
Please give advice here, rather than straight solocitation. the querist has given enough details which can enable you to render suitable advice to him.

Siddharth Jain   14 June 2018

Generally in suits for recovery of limitation period is 3 years but it can be enlarged by the court under section 5 of Limitation  act.

you are liable to serve the notice period as per agreement and you should duly reply to the legal notice requesting the company to waive it for you.
if they go to court you will be more likely to pay them 2 month salary in lieu of the notice period that you didn't serve.

Sanjay   15 June 2018

Thanks for your response Mr.Jain. Does this mean there will be no consideration of the fact that they did not allot any work to me and kept me idle for 2 months and that there was no loss as such to the company because i quit. In fact, they did not miss me for almost 2 years. As of now they are just asking me to pay the notice period dues and only told me verbally that they will send me a legal notice in case i dont pay up within a month. I know they will not waive the notice period and that is why they asked me to pay. Is there a possibility that i ask them to negotiate on the amount or tell them that i will serve the notice period now?

Kumar Doab (FIN)     15 June 2018

While posting such queries employee should post basic information!

What is this establishment; Govt, private, 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?

 

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

What is issued to you; offer letter or appointment letter or both?

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

Can employer terminate without any notice period or notice pay in lieu of notice period as per narration in said offer letter issued to you?

Has employer mentioned about any service rules/polcies/conditions etc and even notice period/pay, exit policy etc in said offer letter and provide you the published version or access to the portal where such policies are placed for shared access..by employee!

Did employer pay you the salary as per offer letter on fixed day/date for whole period that you worked?

IT does not matter if you were assigned any work or not if you were paid till LWD.

Although if employer asks employee just to come in office and sit idle for 2 months and do nothing and does not assign any work  ( as per job advt/interview for which employee was allured/attracted/appointed) then IT is employees call to refuse to get his/her skills rusted and not to work anymore!

Did establishment issue you acknowledgment of notice/resignation, acceptance, declinature of acceptance?

Did IT ask you in writing to attend office and serve notice period?

Who is this person that called you by phone call and demanded notice pay say; HR personnel, employer, legal cell personnel? Is IT same person that was in establishment while you were employed?

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, service certificate, relieving letter……………?

 

You may revert to relevant points.

Name of company etc is not required so don’t post names etc .

Kumar Doab (FIN)     15 June 2018

 

Notice period/pay, rate of notice pay, is part of service conditions that may be governed by various enactments applicable to employee, establishment/employer.

The provisions of applicable enactments shall prevail upon any private agreement/contract signed by employer with employee e.g; offer letter/appointment letter/contract of employment/HR policy etc etc

The establishment can provide superior benefits than enactments but not inferior!

The mere insertion of a clause on notice period/pay or not posting anything on notice pay in lieu of notice period may not necessarily mean that notice period of 2 months shall apply in your case or notice pay in lieu of notice period shall not apply in your case…

The notice period of 2 months may not necessarily apply in your case!

Your contention as posted by you is that the notice pay in lieu of notice period and rate of notice pay are not inserted in offer letter issued to you and hence IT cannot be demanded from you and you have not caused any loss and hence NO liquidated damages can be claimed from you!

In case assuming that IT does apply (after opinion by your own LOCAL counsels on both notice period and notice pay and as well as rate of notice pay) then as per correct FnF statement showing computation of earned wages/leave encashment/bonus/OT and adjustment of notice period at correct rate of notice pay you may pay the final amount and close the mater…..

 

 

 In case assuming that IT does not apply (after opinion by your own LOCAL counsels) then the clause inserted in said offer letter issued to you shall be void per provisions of applicable enactments……

You may reply pointwise to all points.

Kumar Doab (FIN)     15 June 2018

 

There are many threads on similar query at LCI that you can search thru SEARCH option in threads, Articles etc ….and even download the enactments, judgments…

Your elders in the family, well wishers, competent and experienced colleagues, seasoned employee’s/trade union leaders, and a very able senior LOCAL counsels of unshakable repute and integrity specializing in Labor/service  matters  and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..can also help and guide you.

Check at LOCAL Labor courts/CGIT/CAT/School-Educational tribunal/Civil courts/HC/SC for such counsels…..and show the matter related docs etc etc for a considered opinion..


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