Umakanthan53
Labour Law & Hr Consultant
Saswatabanerjee
Partner - Risk Management
Kritarth Consulting
Spl Educators Posh Programs
+1 Other

Thread Started by #Singh_AR

Dear HR,
Am Working As HR Executive, Can You Please Clarify My Below Doubt.
If An Employee Have Been Terminated By the Company,
Can Company has right to ask employee to pay for notice period amount(3 month notice period amount) after employee termination.
Appreciate any kind of help.
Thanks,
1st November 2016 From India, Bengaluru
No if they terminated an employee they cannot ask for notice pay
1st November 2016 From India, Kolkata
#Anonymous
No. They cannot ask. Instead, the company has to pay the notice period salary to employee, if the termination is instant.
1st November 2016 From Indonesia, Jakarta
Thanks for your response.
Actually company has send email to employee to serve notice period and asking for report in office with in 10 days,
company didn't get any response from employee after 4 month company has terminated.
So based this reason can company ask for notice period amount.
Thanks,
1st November 2016 From India, Bengaluru
Dear Mr A R Singh,
The Facts of the Case as of now. Please furnish relevant facts namely:
Did the concerned Employee tender his/ her Resignation requesting for release with immediate effect i.e. Date of Application Tendering Resignation? r Was s/he absenting from his/her duty without information and or proper permission?
If the Employment of the concerned Employee has been Terminated by the Employer / Management for acts of Misconduct, where is the question for effecting Termination/Discharge Order from a prospective Date that too on completion of Notice Period as envisaged. Notice Period Clause apply only when the Employed Person seeks Severance not when Management initiates Disciplinary Action and end Employment Contract
Kritarth Team
Bengaluru Service Centre
Home | Kritarth Consulting Private Limited
1st November 2016 From India, Delhi
Thanks @Kritarth Team for your response.
Employee has informed to manger through phone ,some family problem and he has taken permission for 20 days.
after 20 days when employees is not reported in the office ,then company contacted and ask for report in the office.
After that below step has been followed by Employee and company .
1)Employee has sent email Saying he is not able to continue jobs because of some family problem and unable to serve notice period.
2)After that company has sent email saying that they should report office with in some time frame and initiate the exist process through company portal ,if they do not want to serve the NP ,then they should buyout NP.
3)After no response from employee,company has terminated from the jobs after 4 month and send termination letter to employee through email.
4) Employee has came office only one month.
Thanks,
1st November 2016 From India, Bengaluru
In this particular case, the company has grounds for demanding the notice period buyout from the employee and can actually take legal action against the employee.
Next time, please give the full information at the start instead of making vague statements that confuses the members of the forum and gives you wrong suggestions
6th November 2016 From India, Mumbai
Thanks for reply. I want to know 3 month notice period notice period is legally valid for who work for 1 month. Thanks in advance.
7th November 2016 From India, Bengaluru
There is no specific law on this that explicitly states that above.
However, considering employment as a contract under the Indian contract act, yes, them employee signed an agreement (or agreed to the terms of the contract of employment), and need to honour them. It then does not matter whether the employee worked for a day or a month or a year.
From ethical point of view, the employer spent money in recruiting a person and based part of his business on the person working (he having accepted the employment agreed to work there). His just walking off, giving an excuse that is most probably not true, disrupts the business. A 3 month period meant to provide the employer time to find a replacement makes sense
8th November 2016 From India, Mumbai
Services of an Employee in any organisation is normally guided by the Industrial Employment (Standing Orders) Act or by the "Staff Service Rules" of the Organisation. For some employees taken as "Special Category", Rules in addition to those put in the "Staff Service Rules" of the Organisation are put specifically in the "Letter of Appointment". And, since an Appointment Order is a "Contract" between the Employer and the "Employee", the staff need to sign and return a Duplicate copy of the Letter of Appointment as a token of acceptance of the Terms and Conditions of employment.

Letter off Appointments do always contain a "Contract Termination" clause that surely contain a line on "Serving of Notice of termination of Contract" by either of the parties (the Employer or the Employee). While the Employee serves a notice on quitting the job, the "notice clause" allows enough time to the Employer to find out a suitable alternative and handover/takeover functions. Thus, while the Employer wants to terminate an Employee for whatever reason (excepting for any "major misconduct" committed), the should also serve a notice on the employee (... a Social Security feature) for him to find out an alternative.

I the given case it seems that the Employee is found ineffective and thus terminated by the Employer. Here for sure the Employee is entitled to receive a "notice" or "salary in lieu thereof" and not otherwise (the employer recovering Notice Pay from Final Settlement Dues.

Regards,

Soumitra Sengupta
8th November 2016 From India, Pune
Normally, termination of employment can take place under three circumstances - (1) At the option of the employee like resignation (2) By the employer exercising the options of discharge simpliciter or retrenchment or dismissal on charges of miscondut and (3)By the operation of the provisions relating to the termination of the contract of employment like attainment of the age of superannuation by the employee or the expiry of the predetermined period of contract. However, the necessity of giving notice of termination or payment of notice salary in lieu thereof as stipulated in the contract of employment arises only in the case of resignation and discharge simpliciter and retrenchment. Resignation by the employee will take effect only when it is accepted by the employer subject to fulfillment of notice conditions. Discharge and retrenchment would be legal only with the compliance of the precidental conditions of notice and compensation.

Coming to the facts of the original post in the thread, the resignation of the employee was not accepted by the Management and in stead he was asked to report for duty. On his failure, the Management terminated his services on the presumption of abandonment of services. Therefore it is a punitive termination or dismissal at the option of the employer and as such, in my opinion, the notice period obligation of the delinquent employee pales into insignificance in the light of the punitive termination effected by the employer at his option and his demand for payment of notice salary is unsustainable.
8th November 2016 From India, Salem
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