[email protected]
Finance Manager
[email protected]
Consultant In Legal Matters
+1 Other

Cite.Co is a repository of information and resources created by industry seniors and experts sharing their real world insights. Join Network
Dear Seniors,

I am working in a pharma organization in HR department. One of our senior chemist put her resignation but his HOD has not accepted it. According to him she has to serve at least one month notice period instead of three months but she discontinued her duties from next day. We sent her first absenteeism letter, she responded by mailing one more resignation through mail without referring the absenteeism letter. We have sent her IInd reminder also. Now what should be the next procedure.

Now we have received one more resignation from another Sr. Chemist and her notice period is also of three months. In second case employee applied leave for three days and after five days we have received resignation through mail mentioning the reason for leaving some unavoidable circumstances.

These chemist join us as trainee chemist for one year after completing their training successfully they put on six months probation and at the time of probation if they decide to leave they have to serve one month notice period. After completing probation period they get their confirmation and notice period increased from one month to three months. (This is just for reference).

Now we are facing the issue that on seventh they get their salaries in their accounts and put their papers through mails between 9-10 of the month. Now from where we can recover notice period. Should we accept resignation through mails. Please help me.

Shailza

From India, Mumbai
The employee seems to work in UP.As per sectipn 20(2) of the UP shops and establishment Act, 1962, even if the Notice period is one month or more and the employee fails to comply with the said term, the employer shall be entitled to forfeit not exceeding 15 days salary of such employee from his unpaid salary. Thus having worked for 10 days or more, that unpaid salary can be forfeited.
Thanks
Sushil

From India, New Delhi
Dear Shailza
Please consult the employees in a friendly manner what tempts them to leave the company and if any remedy to overcome such situation. Please also let us know that the increase in Notice Period from 1 month to 3 months either side has been consented by all employees.
Last but not the least most of the company switch over to 3 months notice period from 1 month, but practically the new employer never waits for 3 months for employment for any candidate.

From India, Ahmadabad
Dear,
If you do not have his dues then only remedy is of filing civil suit for recovery of dues. The other psychological remedy is mention in experience certificate which you may send by registered post that the employee has failed to pay the dues of amount of rs. in respect of notice period in respect of WHICH civil suit is contemplated.
Thanks
Sushil

From India, New Delhi
You can not file a legal suit for recovery of Short/Full Notice Period. There may be several reasons to quit the job after taking the Salary and one of the reason as I mentioned in my earlier post is 3 months Notice Period which is practically unfair to the employees.
From India, Ahmadabad
It is recognised by Karnataka HC in Sri Anand v BEML that shortfall notice period can be adjusted against the dues of employee. It is thus evident that it is a debt of the employee which can be recovered by employer filing civil suit if it cannot be adjusted against dues of employee. Even under the UP Shops and establishment as stated earlier, the forfeiture of 15 days salary does not mean the balance notice period salary is forgone. It can be recovered.
Thanks
Sushil

From India, New Delhi
Most of companies face these issues. The best remedy is not to issue Relieving or Experience letter to employees who do not serve the notice period. So when they move to another company there would Background check conducted.

At this stage the previous employer can always state the reason that the employee conduct was not right and did not serve the notice period. This would create awareness for the hiring manager and the job offer may be revoked as well.

This create loss for employee with the following reasons:

1. He could either state he never worked for your company and join with lesser experience and pay

2. His/Her job offer could be revoked and as employees they would learn to complete the notice period in future companies

3. Word of mouth to ex employee - That a bad review of notice period was provided by HR and they are still unable to find the job.

4. Credibility and Stability issues for future hiring

If the salary paid date is 7th of every month do you have loss of revenue? I am sure the Payroll department would have a certain cut off date for salary period. If there is none then probably a timesheet ATS could be purchased or tracked and salary could be paid accordingly.

From India, Bangalore
The main issue by the queriest is how to recover the notice period salary from those who abscond or send by email their intimation about inability to continue. The queriest doest not want to initiate disciplinary proceedings against such employees but is interested in recovering the notice period salary.

One cannot control attrition of employees if the working environment, wages etc are not conducive. Besides the courses of action suggested by me in above thread, let us see whether recourse of not providing experience certificate to such employee can be a safe measure against an employer.

Under section 32 of the UP Shops and Establishment Act and rule 18 of the rules, the employer is required to maintain register, record etc. Section 12 prescribes that no deduction shall be made by an employer from the wages of an employee except on account of the specified heads. Section 33 deals with contravention of provisions and states that any person, who contravenes, or fails to comply with any of the provisions of this Act, or of the rules made thereunder, other than those of sub-section (1) of Section 20, shall be guilty of an offence under this Act.

Under Rule 18(1)(b) and (c) of the Utter Pradesh Dookan Aur Vanijya Adhishthan Niyamavali, 1963 Form G is maintained regarding attendance register of employee.

One thing is clear that the employer cannot contract out contrary to the Shops and Establishment Act unless the terms are more beneficial to employee. Thus deduction of notice period pay beyond the limit what is permissible under the Act, is barred and will be an offence.

As per decision of the Madras HC in Hari Raj H v Shah Wallace Ltd, decided on 13.1.99, notice period cannot be more than what is prescribed under the Shops and Establishment Act despite agreement being contrary to it. Further it is the duty of Inspector under the Act to ensure that the employer is complying with the provisions of the Act.

It is pointed out that under section 2(f) of the RTI Act, 2005 information from a private body can be obtained if it can be accessed by a public authority. As stated above, the attendance register and wages register can be accessed by the PIO under the RTI Act, 2005.

Thus under the RTI Act, an employee also seek information from inspector under the Act as regards his attendance in the establishment from date of his appointment till his last date in the establishment. Failure to give information is punishable.

By making a complaint to inspector and asking for information as to what steps he has taken to ensure compliance of the provisions of Act and rules and further asking for copy of relieving letter because he is a public authority under the Act and these information are within his purview, the employer cannot withhold the experience and relieving certificate. If an employer violates the provisions, the inspector is required to take appropriate action. And if he does not do anything then even further remedies are there.

Even under Model Standing Orders, every permanent workman is entitled for experience certificate, on his dismissal, discharge or superannuation.

As regards the concept that the job offer may be revoked as well by the future employer, then that employer will be endangering himself for liable to pay damages. And in the suit for damages, if that employer discloses information imparted by the past employer pursuance to which he revoked the job offer, and that information happens to be contrary to the statutory provisions stated above, then past employer can also be sued for damages. So every step has to be cautiously taken within the limits of law and without motive of victimization.

Thanks

Sushil

From India, New Delhi
What if the employer makes the Salary payment on the first date of every month and there is no balance amount to be recovered from the employee against Notice Period ???
From India, Ahmadabad
No deduction of any kind other than authorized as per Shops and Establishment Act or under Payment of Wages Act is permissible otherwise the employer renders himself liable for prosecution or fines under respective Acts. Any contract to this effect allowing employer to deduct will be null and void. Hypothetically, if deduction in respect of notice pay has been done every month, what if an employee is to be terminated when no notice pay is payable by employee. Will employer not be estopped from proceeding any disciplinary proceedings due to misconduct in the wake of notice pay already recovered from him.
An employer cannot also be allowed to earn unjust enrichment due to interest on such recoveries. Suppose the salary runs into lakhs!
Thanks
Sushil

From India, New Delhi

This discussion thread is closed. If you want to continue this discussion or have a follow up question, please post it on the network.
Add the url of this thread if you want to cite this discussion.






About Us Advertise Contact Us
Privacy Policy Disclaimer Terms Of Service



All rights reserved @ 2020 Cite.Co™