Query
Dear Sir,
I resigned from company after completion of 2 years service. I never received my confirmation in writing or otherwise. In the mean time I received another job offer and I resigned with 10 days notice period. As per appointment letter I need to serve 30 days notice period before confirmation & 90 days after confirmation. I was willing to adjust my earned leave (i.e. 54 days) against my balance notice period of 20 days. But to my surprise the company issued me recovery letter on the plea that I was confirmed employee with them (never informed me before).
The company is not responding to my repeated queries and not sending my reliving letter and my balance full & final amount.
Kindly suggest what should I do.
Thanks & regards

20th October 2015 From India, Shimla

PARTICIPATING IN DISCUSSION:
Madhu.T.K
Industrial Relations And Labour Laws
Psdhingra
Legal Analyst, Hrm, Domestic/ Departmental
+1 Other

At the end of the probation period, if the employer feels to extend the probation for further period they have to intimate you before the initial probation period ends. If no probation extension letter is issued, it is deemed that you are confirmed employee. Confirmation letter is not mandatory or a statutory requirement.
To the best of my knowledge you have to serve 90 days Notice or adjust Notice Pay accordingly. The best way is to approach the HR/HOD/Senior management team and request for waiver of the Notice, and clear the balance FnF/Relieving. Wish you all the Best.
20th October 2015 From India, Ahmadabad
But as per appointment letter ibid ' The company will confirm to me in writing my appointment with the company upon satisfactory completion of my probationary period, or any extension of it.'
20th October 2015 From India, Shimla
Dear Vishal,
Uncommunicated order about confirmation before submission of your resignation letter has no relevance. The company's action is wrong if your appointment order clearly specifies that confirmation will be made by issue of order. In that case the confirmation cannot be deemed to have been made before you submitted your resignation.
20th October 2015 From India, Delhi
Dear Sir,
In that case:
1) should I proceed to serve legal notice to the company?
2) if yes, Under which act should I proceed.( My basic salary was 11400 & total net salary was 29828.)
Thanks & Regards
22nd October 2015 From India, Shimla
Mr. Vishal,

Your latest post, asking about legal notice and under which act you should proceed, suggests as if you are a law student, not a sufferer having any such problem in reality. Otherwise, you would have asked how to proceed further when the company has served you with a recovery letter. When you have been provided with appropriate suggestion, your first action is to get your problem sorted out administratively by replying to the recovery letter, not to think about issue of notice or to ask for the act under which you can proceed in the court of law. It is not the time for repeated queries, but to reply befittingly to the company, as against their recovery letter, when they have not communicated you with any confirmation order.

.

You could have thought about legal; notice only when they would have persisted with their assumption about your confirmation. Moreover had your problem been real one, what would you have done by knowing the act under which you should proceed, when the case is supposed to be fought by your lawyer? Still further, would you prefer to spend more on the lawyer's fee and other incidentals than your dues of basic salary for 34 days [54 (-) 20 days] from the company?
22nd October 2015 From India, Delhi
There is no deemed confirmation. Though there is no law in support other than an official document like certified Standing Orders of the company, many court rulings support that unless intimated in writing of his confirmation, an employee will continue to be under probation. If you are sure that you were not intimated of the confirmation and you have not been in receipt of any benefits or facilities from the company which are available only to confirmed employees, then only you can start legal proceedings against the company. My doubt comes from the fact that you have been with the company for the last 2 years and you have not taken any initiative to from your side to enquire about your status, whether confirmed or still under probation. It may also happen that due to oversight the HR would have missed to communicate the your confirmation but at the same time would have put you under confirmed employee status whereby enabling you to avail benefits or facilities available to confirmed employees. If so, it should only be considered as a minor clerical error on the part of company.

Though all statutory contributions and payments like ESI,PF, Bonus, leave with pay etc are available to probationers there are some benefits like advance from the company, leave travel concession, medical facilities to family members (other than that provided by ESIC) and other non statutory welfare measures, which are available only to confirmed employees. Please check.

Before filing a case against your (past)employer please understand that you will be wasting your time; obviously will have to tale leaves very frequently and you will have to reveal to your present employer that you are fighting a case against your previous employer and the reason is so and so. This information may be irritating for your present employer and may even lead to think that your probation need not be extended but put an end by giving you a termination letter before you become a confirmed employee!

As already stated, there is no written law on probation and confirmation and everything depends on the contract of employment or the company's policy. Even the period of probation may be different for two companies. Therefore, take it in good spirit and negotiate with the employer and get relieved. From the information about the salary it also happens to know that you will not get protection of Labour Laws.

Madhu.T.K
22nd October 2015 From India, Kannur
Dear Sir, The company is not responding to my repeated request sent to them through registered mail/courier/email and request on phone. Instead they sent me reminder to pay recovery amount.
22nd October 2015 From India, Shimla
OK, you may go ahead with issue of legal notice through a local lawyer, rest of the matter can be expected to be taken care of your hired lawyer.
24th October 2015 From India, Delhi
Vishalpunj is seemed yo have not noticed the post by me in which I had raised a few questions. I expected answers to at least a few of my apprehensions before he could decide on when to proceed with legal action but he is just saying that the company is not responding to his calls and mails. Please ensure that you were on probation all these period and you were not communicated of your confirmation despite your requests. This is to bridge some gap in theory and practice.
Madhu.T.K
24th October 2015 From India, Kannur
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