Notice period, if specifically mentioned, becomes an integral part of the contract of employment as it is a restrictive covenant in the matter of unilateral termination of employment either by the employee or by the employer.
Even in the absence of such a notice period clause in the contract of employment relating to the "workman" cadre of employees so defined u/s 2(s) of the Industrial Disputes Act,1947, there is a statutory notice period of one month prescribed u/s 25-F(a) of the Act in the case of unilateral termination by the employer which falls within the ambit of definition of the term "retrenchment" u/s 2(oo) of the Act. [ in the case of industrial establishments to which chapter V-B applies it is 3 months notice u/s 25-N(1)(a)] However, the Act is silent about the unilateral termination of the contract of employment by way of resignation by the workman. The reason I could presume is that basically an employment contract is in the nature of a personal contract devoid of specific performance that can be legally enforced. However, item no.13 relating to termination of employment of the Model Standing Orders framed under the Industrial Employment(Standing Orders) Act,1946 specifically provides for mutual notice of one month and two weeks in respect of monthly rated workmen and other workmen respectively. It would, therefore, automatically imply that the notice period of the same length or more than the one specified u/s 25-F(a) or at serial no.13 in the Model Standing Orders can be fixed in the contract of employment by consensus based on justifiable grounds and it would equally bind both the employer and the employees. Change in the notice period at the behest of the employer in respect of workman cadre employees in either case would attract a notice u/s 9-A of the ID Act,1947 or amendment of the certified Standing Orders in force respectively.
In the case of other employees above the cadre of workman, the employer can change the notice period after giving due notice to the employees.
You have to bear in mind that the notice period can be position-specific too. Regarding this, the High Court of Delhi observed in Indian Commercial Pilots Association v Union of India [2006(4)MLJ289] that there is no universal formula for fixing notice period and its duration may vary depending upon the exigencies, needs or necessities and the essentiality of the service concerned and what is required is a reasonable notice period.
20th March 2019 From India, Salem