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Discussion > Labour & Service Law > Service > Not serving the notice period
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Not serving the notice period http://www.lawyersclubindia.com/forum/Not-serving-the-notice-period-...
1 of 5 6/4/2014 2:05 AM
Posted about a year ago
0 2
Posted about a year ago
Posted about a year ago
Posted about a year ago
Hemkumar
Software
[ Scorecard : 26] Thank
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Dear guru's,
I joined a company in the month of jan2013, and i resigned the same on 31st jan
2013, since i didnt like the work environment and the job did not match upto my
skill and by the way i got a good offer with better postion so i joined there and
work is going smooth. Actually i have to serve a 2months notice period in this
company but i couldnt serve this since i had to join the new company immedietly,
Now the previous company sent me a letter asking me to pay Rs.67,400 and i
have not taken any salary from this company for the month of Jan2013, and have
also not taken any reliving letter from this company since its not going to be
helpful for me also the company has not given me any tasks during the month of
jan2013. Now the company has sent me a letter that if am not paying the amount
they will take a legal action on me. Now this is tourchering my mind what should i
do now, am not in a position to pay the money, will this legal action would affect
me?
Regards,
Hemkumar R

Hemkumar
Software
[ Scorecard : 26] Thank
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Further i am not subjected to any bond and the offer letter tells that, if notice
period is not served then the company will not give any relieving letter and the
settlement would be the sole discretion of the management.
Regards,
Hemkumar R
Crusader
freelancer
[ Scorecard : 32] Thank
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To my understading, if the offer letter or job contract doesn't explicitly states that
if two months notice period is not served then you'll be subject to salary sacrifice
for that period then you aren't oblized to pay them. Also, you are requried to be
paid for the work you have done in that compay - what about that, did you ask
them to pay what you have worked for? I think you should CC every higher
management - CEO/MD in India and abroad (if it's MNC) about this callous
approach. This has helped some cases in the past.
Kumar Doab
FIN
[ Scorecard : 16906] Thank
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The letter given to you is offer letter or appointment letter?
If appointment letter is not issued even after a month it amounts to unfair labor
practices.
You have not drawn any salary also..


------Were your services under probation while you resigned? If yes 2 months
notice period under probation is highly unreasonable.


IT/ITES companies are under the purview of Shops and Commercial
Establishments Act of the state. This Act is applicable to all employees and does
not indiscriminate between workman and non workman. The Act and contact
details of the Inspector/Chief Inspector may be available at the Dept. of labor
website of the state.
e.g.;
SE Act Delhi:
30. Notice of Dismissal:
(2) No employee who has put in three months continuous service shall
terminate his employment unless he has given to his employer a notice of at least
one month, in writing.
{This implies for service below 3 months no Notice period/pay is applicable.}

COMMENTS
(a) Applicability of section 30:

In the absence of any standing orders or any contract between the employer
and the contesting respondent containing any particular terms or
conditions, the conditions of service of the employee relating to his
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Not serving the notice period http://www.lawyersclubindia.com/forum/Not-serving-the-notice-period-...
2 of 5 6/4/2014 2:05 AM
employment in an establishment at Delhi are covered by section 30(1) of Delhi
Shops and Establishments Act, 1954

(b) Notice or wages in lieu thereof under section 30When to be given?
A plain reading of section 30 of the Act would make it clear that the
notice under sub- section (2) is for the benefit of the employer.
{Obviously the 2 months notice period is for the benefit of employer.}


Did the company mention any performance pay, incentives, commission in offer
letter, CTC sheet?
The company was not able to provide any tasks and hence work to employee, thus
it was not bale to live up to its contractual obligations. Hence it became unworthy
of being employed with. In such a case out of shame, company should on its own
waive off notice period be it probationer or any other employee.


34. Employer to furnish letters of appointment to employees:
Failure to issue appointment letters under section 34 of the Act to the
employee amounts to unfair labour practice resorted to deprive them of the
benefits which accrue to them due to the length of their service;


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;

{You may approach the Inspector for payment of wages of the period you have
worked}


-----The designation alone does not decide employee is a workman or not.
Your lawyer may ask you a set of structured questions and may opine that you fall
within the category of workman.

You may go thru the standing orders of the company/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

{Implies notice period is not applicable to probationer}
11. Payment of wages.,
15. Complaints.--All complaints arising out of employment including
those relating to unfair treatment or wrongful exaction on the part of the
employer or his agent, shall be submitted to the manager or other person
specified in this behalf with the right of appeal to the employer.
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 [employer].-, 18. Exhibition of standing
orders.


------THE PAYMENT OF WAGES ACT, 1936
{Applicable to all employees drawing wages up to Rs.18000/pm
as per def. of wages in the Act}

2. Definitions:
3*[(vi) "wages" means..
(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;
17
Not serving the notice period http://www.lawyersclubindia.com/forum/Not-serving-the-notice-period-...
3 of 5 6/4/2014 2:05 AM

5. Time of payment of wages.
6. Wages to be paid in current coin or currency notes.
5*[Provided that the employer may, after obtaining the written
authorisation of the employed person, pay him the wages either
by cheque or by crediting the wages in his bank account.]

You may approach a competent and experienced labor
consultant/service lawyer and lodge a compliant under SE Act, ID Act,
Payment of Wages Act/or as deemed fit at your end and proceed under expert
advice of your lawyer.

Attached File (downloaded 54 times) :
519774302_delhi shops & establishments act
1954.pdf
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Not serving the notice period http://www.lawyersclubindia.com/forum/Not-serving-the-notice-period-...
5 of 5 6/4/2014 2:05 AM