Umakanthan53
Labour Law & Hr Consultant
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
Pratheekshaa
Human Resource Professional
Rajans68
Consultant
User1122
Digital Analyst
+3 Others

Hello,

I worked for Kolkata based IT company. The offer letter clearly states:
++++++++++++++++
Notice of Termination Notice of termination of employment by the employee shall be 45 days notice in writing or payment in lieu of notice. Such notice may not be offset by unused leave. The same shall be applicable when the employment is terminated by the company.
++++++++++++++++

A week after I resigned (giving 45 days notice as we agreed), the company told me to stop working and ended work relation. They paid for the days I worked (of-course after too much delays, follow-ups & arguments!) but refusing to make payment in lieu for remaining notice period they din’t let me serve fully.

Company’s argument is:

1) because an employee resigned (while still under 6 months probation), company is not obliged to respect notice period.

2) They also quote: Section 15 of the WBSCE Act,
++++++++++++++
"The services of a person employed in any shop or establishment, who has been in continuous service for not less than one year in such shop or establishment, shall not be terminated without giving him one month's notice, in writing, showing the reasons of such termination and until the period of notice has expired or until he has been paid, in lieu of such notice, wages for the period of such notice." 

to which I wonder:
- aren’t they obliged to follow what was put in an offer letter?
- and if not, it was bogus claims they make in in offer letter?

Please let me know my options further - are they obliged to respect the notice period or not?
[of-course few people advised - "just forget it and move on", but if we all have such attitude why do we sign contracts in the first place and have Laws in place?!]

Thanks a lot for your guidance in this matter.
27th August 2016 From India, Kolkata
Dear User1122,

Your post seems to me a bit confusing. You submitted your resignation with 45 days of notice and continued in service in anticipation of acceptance of your resignation, okay? A week after that the company asked you to stop working or refrain from coming to work , of course, without any specific intimation as to the acceptance of your resignation or your relief, is it also okay? So it is implied otherwise that your resignation was accepted on the date of communication and the same day you were relieved in waiver of the notice period. Irrespective of the delay and your pressure, you were paid for the days you worked from the date of submission of your resignation till the date of such communication from the management. When the company has not terminated your services but relieved you from service before the expiry of the notice period offered by yourself and paid for the worked part of the notice period, how do you allege that the offer conditions stand violated by the management in this issue?
27th August 2016 From India, Salem
Thanks for your response.
And sorry for the confusion.
Let me clarify further - I never asked for premature relieving and willing to work to serve full notice period. Hence, if they ask me to stop working while serving notice period is considered as 'termination' [at-least that's what happens internationaly and correct me pls. If I mis-interpret anything here]
Isn't it (to be fair on both sides) just as employee is made to serve full notice or pay in lieu of notice period... an employer also must let employee serve full notice period or pay in lieu of notice....
I've spoken with few friends and got conflicting response. That's why posted here to take expert opinion - what the normal practice (or what the law says) in such situation.
27th August 2016 From India, Kolkata
P.S: Or, put it this way
In my opinion:
- If an employee resigns (irrespective under probation period or not), the employment relation still continues until the last date of notice period. With all due responsibilities / liabilities on both sides and all the terms that had been agreed upon.
- Under such circumstances, and if no conversation on premature relieving has occurred, if an employer asks employee to stop working, it is classified as "termination" and thus liable for payment in lieu of notice to an employee.
But again, this is my opinion (which of-course may be biased). That's why seeking expert people's opinion in this forum, based on their understanding / experience / expertise in these matters.
Thanks for you kind attention.
27th August 2016 From India, Kolkata
Dear friend,

I can very well understand your feelings. From the perspective of sanctity of the terms and conditions forming part of the contract of employment, your views are correct. When an employee conveys his intention of resignation together with his unqualified willingness to serve the notice period already agreed mutually, reciprocal courtesy demands that the employer should formally inform the employee his acceptance of the same with certain modifications if any, within the scope of the agreed terms. Your management could have very decently informed you that the notice period is waived and therefore you are relieved forthwith. But, it is the mind set of the IT and ITES industry that they are above the laws of the land and their general HR practice is based on free hire and fire and therefore it is not prudent to engage in an one-to-one fight with them. Their watchful eyes on quarterly financial performance are totally blind to the socio-economic back ground of an Indian Knowledge Worker and their HR people are there only to implement their policies and not to bring the questions of legality or otherwise of the policies. That's why, at times, a Higher Judicial Forum like that of a High Court has to remind them of the basics of Indian Labour Laws.In such a state of affairs, one has to be more rational than emotional.
28th August 2016 From India, Salem
Dear friend,

Let me share some more inputs from out of my search on the legality of relieving a resigning employee before the expiry of the period of notice mentioned in his resignation. The ratio decidendi of the judgment of the Delhi High Court in this regard can be found in its verdict in DASS STUDIOS v. R.K.BAWEJA, LABOUR COURT, DELHI [ 1972(1)ILR 856 ]. While explaining Sec.30 of the Delhi Shops and Establishments Act,1954 which deals with the termination of employment of an employee who has rendered a minimum service of three months, the honourable High Court observed as follows:

" A plain reading of Sec.30 of the Act would make it clear that whereas the notice of one month under subsection(i), it is for the benefit of the employee, the notice under subsection(2) is for the benefit of the employer. If an employer gives notice u/ss(1), it is open to the employee to quit the service even before the expiry of the period of one month. Similarly, when the notice is given u/ss(2), it is open to the employer to dispense with the services of the employee even before the expiry of the period of one month.It is not necessary for the employer to wait for the full period of one month before dispensing with services, just as it is not necessary for an employee who has received notice u/ss(1) to wait for the full period of one month before quitting the services of the employer.

For example, when the employee served a notice of one month on 17-07-1968 tendering his resignation to be effective from 16-08-1968 and the employer accepted the same on 23-07-1968 with immediate effect, then the employee CAN NOT INSIST on continuing in service till the expiry of the notice period of one month on 16-08-1968."

I do hope that the legal position in this regard is clear to you now! The only mistake made by your employer is that they took a hasty decision in excess of enthusism and acted unconventionally. So better leave it as it is and cocentrate on your career.
29th August 2016 From India, Salem
Dear Shri. Umakanthanji,

Thanks for inviting me to offer my views on this subject.

The posts by queriest are bit confusing to me too. Under this circumstance I avoid giving any view / opinion.

The queriest is governed by WBS&E Act 1963, Service Contract document and Standing Orders if his company has or had 100 employees.

WBS&E Act section 15 says only about termination of services by employer. The queriest has given the said section in his post #1. According to it, a person with more than one year of service cannot be terminated without giving one month notice in writing showing reason of such termination or salary in lieu thereof.

As per the offer letter (Service Contract document) there is a requirement of 45 days notice from either side to terminate the employment or payment in lieu thereof, to my understanding as stated by the queriest.

As per SO Act, notice of 30 days is required from either side or payment lieu of notice in case of termination of permanent employee.

Unless the Standing Orders are certified with 45 days notice, the company cannot go for 45 days notice.

Company cannot supersede any law in force by signing any Service Contract document.

You have rightly said in your post no. 5 that "IT and ITES" industry is above the law of the land and their general HR practice is based on free hire and fire.

In my view, query in this thread is about, can employer terminate services of an employee who is on notice pay. Answer to it - No. And if terminates, he has to be given salary in lieu of remaining working days.

The legal position given by you in your post # 6 is not applicable to the queriest since he is not governed by DS&E Act 1954.

Hope you will agree with my contention.
30th August 2016 From India, Mumbai
Thank you very much @Umakanthan53 for taking your time to do more research on this and share with wider community.
and appreciate your further clarification @Korgaonkar on this as well.
honestly, I need to carefully read these sections / acts few times before I can fully understand them and arrive at the conclusion. From @Korgaonkar last response it doe look to me
- company *is* liable to pay salary in lieu of remaining working days
- irrespective, employee resigned and serving a notice period (provided employee hasn't requested early relieving)
Let me know if I mis-understood anything.
31st August 2016 From India, Kolkata
Please let me know if you are stopped to work in writing. Umakant has explained everything in writing. Evenif there is 6 month rule in West Bengal, it should have formed a part of your appointment letter.
Since you are stopped working you consider that your notice period is waived. just ask them a letter of acceptance. Termination should have reason.Hence seek a letter of acceptance.
1st September 2016 From India, Ahmedabad
The employer has all rights to relieve you from the services before the expiry of notice period against your resignation.
It is the discretion of an employer to keep one till expiry of notice period.
You can sue him only if he has terminated you without notice period or notice pay.
2nd September 2016 From India, Bangalore
Dear Shri Korgaonkar K A,
Can a person who is working under "Probation" be regarded as an employee under any Act ?
If not, the question of compensation does not arise under the Act .
However as per the terms of the offer letter , the concerned person has given 45 days notice of resignation (as stated by him) .
Hence as the company has relieved his services within a week of the resignation , he is entitled to compensation for the remaining days of the notice period ( as per the offer letter) .
So if he approaches the courts he is most likely to get compensation .
However Courts in India take very long to give judgments which will result in mental tension and excess legal fees .
Hence if he takes a rational view he can just forget it or give a legal notice or two to the Company just to harass them
2nd September 2016 From India, Hyderabad
"A week after I resigned (giving 45 days notice as we agreed), the company told me to stop working and ended work relation. They paid for the days I worked "

From the above, it is clear that queriest worked for one week and tendered resignation giving notice for 45 days and and company stop working and ended work relation i.e. nowhere he was terminated. Early relieving i.e. before the expiry of notice period cannot be termed as termination. Employer has right to waive off the notice from either side.

Look the matter from the management side also. Within week what status he could create for himself? What fruitful work he could do for the company after resignation during notice period who resigned within week? Sometimes management, do not have sufficient work which could be assigned to a person who could complete during notice period. Management generally think that after resignation, person's output is not as much as before. It is open to the management not to share their trade/business secrets with the resigned person further.

A good amount is spent by the company on engagement of a person. A person who is resigning just after a week and management has simply relieved him while waiving off his notice period and while paying him all his dues for the days he worked, I think management has done nothing wrong. As pointed out above, management has right to waive off the notice period, even from the employee side. Without full work, no management would like to pay salary. Management is always careful and they first watch their interest/profit and thereafter of the employees.

My frankness may not be taken otherwise.

Thanks

V K Gupta
2nd September 2016 From India, Panipat
The divergent views offered by all the learned friends have in deed added piquancy to the debate. The firm conviction of the poster that the hasty act of the Management in relieving him before the expiry of the notice period mentioned in his resignation letter is illegal, the hesitation of Mr.Korgaonkar in giving a conclusive answer though he rightly touched certain points in favour of the poster, the strong view of Mr.Rajans68 in favour of the poster based on the terms of offer of employment, the strong argument of Mr V.K.Gupta advanced for the Management based on the balance of convenience ( not in its legal sense but only in its literal sense ) compeled me to rethink and go in for a deeper search by reframing the central issue of the debate as follows:

" Whether a prospective resignation given by an employee can be given effect to by the employer on an earlier date? "

Resignation is the voluntary act of the employee to terminate his contract of employment with the employer. However, in a contract of employment, resignation is not unilateral but bilateral in character requiring the acceptance of the employer. As such, the employee's right to exit on his voluntary act of resignation becomes subjective to the fulfilment of notice obligations, if any and the failure to do so can entail summary rejection of the resignation.. In other words, he has to serve the entire notice period or pay notice salary in lieu of notice as stipulated in the contract of employment and the choice is his. When he offers to serve the notice period stipulated in the contract of employment, in terms of its effect, it becomes a "prospective resignation". It can be effective only from the date mentioned therein and not earlier though it is accepted by the employer. In this connection, the Andhra Pradesh High Court has held in Coromandal Fertilizers Ltd., v. P.Venugopal [1986(1)LLJ 417 ] that the letter of resignation is a "form of offer" by the employee and hence it is open to the management to accept or reject the same but it is not open to the management to accept the resignation from a different date other than what was offered because such an acceptance would amount to counter-offer which again requires acceptance from the employee.

Therefore, the contention of the poster is correct and he can successfully stake a claim for wages till the expiry date of the notice period offered by him since he was relieved earlier by the management without his consent.
3rd September 2016 From India, Salem
Thank you everyone for taking your times, energy & efforts and dig deeper into this issue.

To clarify further:

- the debate isnt about, whether employer has right to relieve (or waive off notice period, whatever phrase we wanna use for that!) an employee prematurely during notice period. Of-course they do!

- Were debating: Can they do so without payment in lieu of remaining notice period, considering a) 45days notice period as agreed on both sides a) employee is willing to work right until the last date of notice period and never requested notice period waiver!

@RAJANS68

Thanks for being supportive to my point of view here. yeah its unfortunate courts in India take long to give judgements (although not entirely their fault I believe, we all know how understaffed, stretched our judiciary is). I could let it go - but if these people are let go so easily with no opposition, itll only encourage such employers to find their next victim

@GUPTA VK

As Mr. UMAKANTHAN53, were not debating whats in employer favour or not (from convenience, financial point of view etc.) Were debating are they legally / morally correct to not follow-up on what was agreed in the offer in light of the circumstances of what happened?

@PRATHEEKSHAA

Appreciate your opinions. But i'd appreciate it more if you can please share any past judgement or any logical rational why employer is right to not following-up on what was agreed?

Thanks all! I'll speak with my employer with all these inputs and see if they revisit their point of view. Will keep you all update!
3rd September 2016 From India, Kolkata
Hello,

Since lot of people spend their time / efforts / energy addressing to this thread, I thought i'd update you.

So I spoke with my employer for the notice pay (as per our agreement), and they responded. Basically they wont address it because of so called "softer elements" (un-satisfactory performance, duration of employment)

- "So from a softer aspect of you bring entitled to the benefits - my short answer is a no. If you think you are, like we mentioned before, hire a lawyer and do it with paperwork."

I'm a bit confused - these so called "softer elements"

- can be reasons to discontinue employees service

- or inputs to employee's performance appraisal

but, how can it be a void justification to not fulfil their obligation under what was agreed upon? and, of-course such elements ware never communicated while I was employed, making me believe it's just a cooked up pretext to get away from their obligation...

Any suggestions how I may proceed further. Thanks in advance!
12th September 2016 From India, Kolkata
I have advised you earlier. Now check if there is any clause regarding tendering resignation within 6 months probation.

When they stopped you from working , they have to provide a letter showing the period of service and when you resigned.
13th September 2016 From India, Ahmedabad
RELIEVING EMPLOYEE BEFORE DUE DATE OF RELIEF AFTER ACCEPTANCE OF RESIGNATION BY EMPLOYER:

================================================== =======

Learned HR Expert/Members have contributed greatly on this prevailing practice followed by some Cos.

The normal Rule/practice followed by some Cos: one month Notice period upto Officers & 2 Months for Managers & above. Even then; some Cos. having Certified SO; suddenly Reliev the quitter before due date of relief when Co. feels that; anyway; he has resigned & will not take interest in work; will remove before due date arbitrarily; leading to problem for the affected employees. This practice is more; where there is strained relation with the particular employee.

Strangely, some Cos. put the clause in SO that Co.Reserve the right to stop the particular person before due date & the Labr.Commr. Certifies it; may be for want of clear Rule on the matter.

Anyway; there is arbitrariness in Relieving; putting the employee to strain the good relation built over a period; on the eve of leaving.

ALL IS WELL THAT ENDS WELL; THIS IS NOW MISSING IN MANY OF THE RELIEVING CASES; INSTEAD OF ENDING THE RELATION WITH A HAPPY NOTE & FAREWELL; IT NOW ENDS WITH ARBITRARINESS;

I HOPE/ REQUEST ; MORE LEARNT MEMBERS WILL THROW LIGHT ON THIS MATTER.

HR Consultant

HOSPET-BENGALURU. 1.10.16
1st October 2016 From India, Mumbai
Using management jargons with negative connotations amidst a situation wherein one is reluctant to admit his mistake has become a fashion now a days in the higher echelons of management. Softer aspects of employment include the contract of service too as well its total compliance on the part of both the employer and the employee. Here in the case of the questioner, the contract of employment comes to an end by his prospective resignation only and not because of discharge or dismissal by the employer on the grounds of laxity or other softer aspects like unbecoming conduct, violation of the code of conduct on the part of the questioner. Had the employer found any such negativities in the performance of the employee, what prevented him from rejecting the letter of his prospective resignation and initiate disciplinary action instead of accepting it forthwith? It is therefore, left to the discretion of the questioner now whether to fight it out legally as challenged by his employer or to leave it altogether on the priciple of enough is enough.
1st October 2016 From India, Salem
RELIEVING EMPLOYEE BEFORE DUE DATE OF RELIEF AFTER ACCEPTANCE OF RESIGNATION BY EMPLOYER:

================================================== =======

Learned HR Expert/Members have contributed greatly on this prevailing practice followed by some Cos.

The normal Rule/practice followed by some Cos: one month Notice period upto Officers & 2 Months for Managers & above. Even then; some Cos. having Certified SO; suddenly Reliev the quitter before due date of relief when Co. feels that; anyway; he has resigned & will not take interest in work; will remove before due date arbitrarily; leading to problem for the affected employees. This practice is more; where there is strained relation with the particular employee.

Strangely, some Cos. put the clause in SO that Co.Reserve the right to stop the particular person before due date & the Labr.Commr. Certifies it; may be for want of clear Rule on the matter.

Anyway; there is arbitrariness in Relieving; putting the employee to strain the good relation built over a period; on the eve of leaving.

ALL IS WELL THAT ENDS WELL; THIS IS NOW MISSING IN MANY OF THE RELIEVING CASES; INSTEAD OF ENDING THE RELATION WITH A HAPPY NOTE & FAREWELL; IT NOW ENDS WITH ARBITRARINESS;

I HOPE/ REQUEST ; MORE LEARNT MEMBERS WILL THROW LIGHT ON THIS MATTER.

HR Consultant

HOSPET-BENGALURU. 1.10.16
2nd October 2016 From India, Mumbai
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