Notice period queries

What is this establishment: Industrial or Commercial? Company must have displayed the registration certificate near entrance on notice board.

What is the nature of business of this company?

You are in which state and HO/Redg. Office of the company is in which state?

Does the payment of Wages Act, Industrial Establishment Standing Orders Act/Model Standing Orders apply to it? The DLC in O/o Labor Commissioner can confirm it.

Standing orders are applicable to commercial establishments to which Payment of Wages Act applies.

Your state might have issued the notification to this effect.

e.g; Kerala

You may go thru:

https://www.lawyersclubindia.com/forum/Standing-order-mandatory-for-kerala-comm-establishments-85438.asp#.UgIP99KAqWM

If standing orders are not certified Model Standing Orders shall apply.

Employer is duty bound to display the standing orders and employee can ask for a copy.

You may go thru clause: 13, 15,16,17,18...............................

Employer should supply certified copy against nominal charges say Rs.10/.

Employer or anyone can obtain certified copy from certifying officer which may be Dy. Labor Commissioner………………………

If standing orders are applicable then the act of employer can be violative of standing orders.

You may show the standing orders/Model standing orders, appointment letter, notice of resignation/resignation, acceptance of resignation, FNF statement etc to a competent and experienced service lawyer/labor consultant and let your lawyer go thru these: Verbatim and  opine on the merits in your case.

Resignation can not be accepted before expiry of notice i.e date of retirement chosen by employee.

Supreme Court of India
Nand Keshwar Prasad vs Indian Farmers Fertilizers ...

“11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced b y accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.”

Do not remain entangled with line managers and HR. They are not your employer.
They are just another employee in the company.

However if you end up issuing Notice, legal notice, request your lawyers to include their names in the list of noticees…………….

You may escalate the matter ‘Finally’ to good offices of appointing authority, MD, Chairman, Company Secretary……………………..narrate all representation made so far mentioning dates, names of company personnel…………………………….designation……………..dept………………..name of company……..address………………...with brief minutes of discussion and explain your grievance, raise your demands……………….and conclude that you have been approaching office of the company ( Narrate Dates) to complete serving the full notice period and you should have been allowed to serve and collect your pay………………………….. demand a reply so as to reach you in next 7 days by redg. post only……………………………….say in next…………………………7 as or deemed suitable by you.

Submit follow up reminder(s) and raise your demands for the documents (e.g. acknowledgment of notice/resignation, acceptance, work experience/service certificate, relieving letter, NOC/NDC, FNF statement for its checking and acceptance by you, Form 16 as per correct FNF statement….etc) and payments up to effective date of resignation (provide detail) by bank DD only should be supplied to you by redg. post only……………………………….so as to reach you in next 7 days along with PF account slips of all years of service, salary slip of all months.  If FNF statement is not correct decline to accept it in writing under acknowledgment.

If Gratuity is included in CTC sheet stake a claim for it and submit FormI……………………..

You may add that a postage prepaid self addressed envelope (as purchased from PO) is attached herewith……………………………..

Based on the reply of the employer you may proceed further under expert advice of your lawyer.

-------If despite the best and sincere efforts good office does not resolve and provide relief, the employee can approach:
Lawyer/Law Firm: A legal notice by lawyer can drill sense into the heads.

Employee should retain access to a competent and experienced labor consultant/service lawyer and proceed under expert advice of his lawyer.

Almost all employer are crafting contracts with T&C inserted into these which are beneficial for the employer but restraining and damaging for the employee………………….

- trade union leaders

Majority of the employees refrain from becoming member of trade unions which is their loss.

Trade unions can negotiate service conditions for the benefit and advantage of employee.

Employers should have ‘Works Committee’ in which representative(s) of the employee are made member and even Chairman……………….

There should be Grievance Redressal Committee in company………………..

Be a member and educate others to form IC, trade union in company and trade……………

-Inspector under Shops and Establishments Act: one of the duties of Inspector is to ensure settlement of dues etc………………

e.g. Delhi Shops and Establishments Act : 37. Powers and duties of the Inspector: (b) Duties of the Inspector

(i)  that in dispensing with the services of an employee the provision of the Act and Rules

have  been  complied  with  and  no  dues  payable  under  the  Act  or  Rules  have  been

withheld

- Inspector under Payment of Wages Act (applicable to all employees drawing wages as per def. of wages in the Act up to Rs.18000/pm),

2. Definitions.

3*[(vi) "wages" means all remuneration………………………..

(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;

-O/o Labor Commissioner:

Time for Payment of FNF dues is max. usual pay day………………

-Civil Court

There are threads to suggest that employee can approach police and lodge criminal complaint under sec 406, 420……………………………….

And to treat the unpaid wages as debt on employer and approach the employer as creditor …………..

e.g;

https://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.Uf-LaNKAqWN

This is  Multinational IT company employing more than 20,000 people.Head  Office in Mumbai.

I was based in Pune office.

If you feel there is a scope apply goodwill, rapport, exceptional levels of negotiation, persuasion, reasoning, persistence skills and resolve the matter in your favor.

Raise a demand to allow to serve you full notice period and payment in lieu of notice.

Let your representations be structured and drafted by your lawyer.

If the good offices too don’t provide relief issue legal notice from your lawyer and include line managers, HR in list of notices.

Your company would be covered under Bombay Shops and Establishments Act and as per provisions of this enactment I should be covered under standing orders, and other enactments as well…………………………

---------Bombay Shops and Establishments Act (in short SE Act Bombay) is so employee friendly:

38. Application and amendment of the Payment of Wages Act. (l)Notwithstanding anything contained in the Payment of Wages

Act,  1936, (V  ?f

1936)………. the Inspector appointed under this Act shall be deemed to be the Inspector…herein referred to as "the said Act",…….for the purpose of the enforcement of hei provisions of the said Act within the local limits of his jurisdiction.

( Implies that the Inspector under SE Act shall be the Wages Inspector )

38 A: Application of Act VIII of 1923 to employees of establishment.-The provisions of the Workmen's Compensation Act,  1923  (VIII  of  1923),  and the rules  made from time to time thereunder, shall,  mutatis mutandis,  apply to employees  of  an establishment to  which this Act applies, as if they were workmen within the meaning of the Workmen's Compensation Act, 1923.

( Implies any employee under SE Act shall be eligible as if he is a workman and can invoke WC Act)

38B : Application of Industrial Employment (Standing Orders) Act to establishments.-The  provisions of the Industrial Employment (Standing Orders) Act,  1946,  in its application to the State of Maharashtra [(hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall,  mutatis rnuimdis,  apply to  all establishments wherein fifty or more employees are employed and to which this Act applies, as if they were industrial establishment within the meaning of the said Act.

(Implies if company is under SE Act and if it has not framed its standing orders the model standing orders shall apply to all employees. If standing orders are not certified, Model Standing Orders should apply and are attached. You can also download from Dept. of Labor Maharashtra/Bombay website also. Thus while you can approach Inspector under SE Act you should also be eligible to approach Labor Inspector/ALC.)

{ Model Standing Orders: 3.               Tickets,  11.         Payment of wages,  

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.

15.      Complaints,

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].--, 18.          Exhibition of standing orders.-)

51.    Employer [and manager  to produce registers, records etc.  for inspection.

( Implies that if you lodge a complaint the Inspector can not check all records, your personnel file but can take these to his office. You may obtain certified copies and even peruse RTI route.)

Moreover the Inspector is under obligation report every two months as given in Sec.66

55.    False entries by employer and manager.

58.    Determination of employer for the purpose of this  Act.

66.Notice of termination of service

----------Duties of Inspector under SE Act Bombay can be seen at Maharashtra Govt. website and also at :

https://www.mcgm.gov.in/irj/go/km/docs/documents/MCGM%20Department%20List/Chief%20Inspector%20Shop%20%26%20Establishment/RTI%20Manuals/ChiefInspectorShopEstablishment_RTI_E03.pdf

---------You may also go thru the questions the employer has to answer under the :

These  rules  may  be  called  the  Maharashtra  Shops  and Establishments (Amendment) Rules, 2011.

Industrial Relations:

56.Does  the  establishment  have  a

collective bargaining agreement?

57.Does  the  establishment  have  a  written

grievance procedure

58.Does  the  enterprise  have  a  works

committee or similar body?

 There are many trade unions in Maharashtra and these are very active and very effective.

The unions have been trying to organize employees of IT/ITeS sector.

The state of West Bengal formed a union:

Join any trade union of your choice and the employees shall be supported for entering into negotiated settlement of service conditions including notice period etc, to have ‘Works Committee’ in which employees are on board, Grievance Redressal Mechanism………………. Etc……………

The awareness shall make the employees well and properly informed.

The employee should justify every penny of salary paid by employer, work and contribute to generate revenues and profits for the employer………………………….and defend his rights too.

In today’s scenario when employers are crafting with single minded, ruthless approach: contracts, agreements, appointment letters to suit their interest alone and create legal traps the employee should be vigilant and alert to avoid legal injury.

It means that company also is bound by contract has to compensate the employee for tendering notice pay in lieu of notice period.

It may claim Basic pay is applicable.

 As per Supreme Court of India judgment already posted company can not accept resignation before the expiry of notice period.

You may represent to serve full notice period tendered by you and earn full salary as you were earning before tendering notice period.

If you are not able to handle the line managers/HR/good offices entrust the matter to your lawyer and approach lawful authority.

Hi Experts,

I am working with pvt. ltd. company. I am working with organisation last 1 year and 5 months. Company is not provided me my apointment letter when i am joined. I am working as a temporary employee. Now i am not resigned from job but company is denied to provide me appointment and reveling letter. Even after providing thye 15 days notice period.

Kindly provide your guidence.

Thanks & Regards,

Ajay Kulkarni

9821748558

@ Ajay 

Always a start a new thread.

You may refer to the Shops and Establishments Act  of your state and approach your lawyer, trade unions, lawful authorities as already explained above, court of law....................

Hi Experts,

Thanks a lot for your input..

I want to file a complaint against my ex employer on these grounds:

After I resigned from the organization, the employer started forcing me verbally to leave the conpany by paying the money for the notice period.. When I refused for that and said that I wanted to serve the notice period, they threatened me that they will terminate me on grounds of indiscipline ( I have the 2 sms where the HR has threatened me that I will be terminated)..

Then the HR called me to his office, forced me to accept that I had lied and the  disciplinary action taken by the organisation is correct .. They said that if I dont accept it, they will terminate me..

They forced me to pay good Rs.2 lakhs as the loss to the organisation. Then they released me.

I want to file the case of:

1 employee harrassment and threatening to be terminated after the employee has filed resignation.

2. no committee was formed where they had any search on the indisciplinary action.

3. Relieving me within 25 days of resignation and not paying me for the 2 months and 5 days of basic salary ( notice period 3 months).

I even approached my ex managers and took in writing (emails)  where they  have supported me, but the HR refused to accept it.

I want:

1. My Rs. 2 lakhs back

2. file for mental harrassment and torture and forcing me to accept things that I did not do.

3. Not paying my notice period salary.

Please could you advice the process for the same? I will approach the lawyer verysoon.. But want to have my homework first.

Thanks a lot

You have posted that:

“Then the HR called me to his office, forced me to accept that I had lied and the  disciplinary action taken by the organisation is correct .. They said that if I dont accept it, they will terminate me..

They forced me to pay good Rs.2 lakhs as the loss to the organisation. Then they released me.”

Why were you so terrified that you signed on a declaration that you claim is false and then paid a huge amount of Rs. TWO LACS.

If you have the indisputable evidence you may approach your lawyer along with elders in the family, trade unions, show all documents …………………………………and give inputs in person.

You may proceed under expert advice of your lawyer.

I was terrified  because:

1. They told me that they will terminate me.. Wchich would  have meant that I would not have been able to join my next job.

2. They told me that they will blacklist me in the entire IT industry by NASSCOM and make sure that no body hires me.

3. They told me that they will give negative feedback of fraud by me..

4. They told me that they will blacklist me in a list by NASSCOM  and then no body will hire me..

5. They will not give me any experience letter or anything..

Infact when i started showing them  the mails form my managers, The HR walked out on me and told me that I am terminated..

It was either "accept and sign and pay" or "termination" for me saying that they will not give me anything, no experirnce letter, service letter or relieving letter...

what option did I  have?

I just did not know what to do.. I was on gun point.. so I signed.. I  just got a very good job in my dream organisation and did not want to loose it at any cost...

I just did not know what to do at that time.. i knew every well what they are doing is wrong, hence i contacted all my previous managers and they all supported me, but the HR refused to accept their approvals as well.. ( I have all approvals in emails)..

You could have recorded (audio/visual) transactions with HR and thus could have kept and evidence and witness.

If still you can, make an attempt.

Have you registered in NSR of NASSCHOM?

If you have not how can the HR or employer blacklist you moreover how can any one post adverse comments on false pretexts? Such a statement itself is a threat, intimidation.

The loss claimed by the HR needs to have been inquired, informed in writing and claimed in writing and now they may need to prove.

You may approach your lawyer along with elders in the family, trade unions, show all documents …………………………………and give inputs in person, and proceed under expert advice of your lawyer.

Pune is a good city and you can access lawyers par excellence at Pune.

Your lawyer may opine that one notice to good offices of appointing authority, MD, CEO, Chairman, Company Secretary be given seeking amicable resolution with punishment to HR, and that the HR personnel can be charged by name.

If the good offices also do not provide any relief or maintain studied silence, you may firm up next step in consultation with your elders and your lawyer.

We are not aware of the Ombudsman for IT Companies.

If the detail of such Ombudsman for IT Companies is posted in this thread it shall help many.

Bumping up!! Any non legal ways to resolve this issue?

Thanks!!