Sub- Notice period
Mr.kamesh rightly said that the salary cannot be withheld by the employer. The reason is more legal. Salary is not a bounty to be given to the employee at the mercy of the employer nor employment is a voluntary service. Employment is a contract between the employer and the employee under the Contract Act 1872. A contract as per Sec.2(h) of the said Act, in order to be valid and enforceable, should have three main ingredients.There should be an offer by one party and it should be accepted by the other party and there should be consideration for such acceptance.
In the case of contarct of employment, the employee accepts the offer of the employer to work for him under certain terms in consideartion of the employer paying him salary or wages. Such contract of employment is enforceable under law.If you withhold his salary for two months in lieu of the notice period, it implies that you require him to work freely for the employer for two months without any consideartion which may offend the very basis of the contarct and may vitiate the validity of the contract.
Furher, one can not loose sight of the existence of certain labour Acts like the Payment of Wages Act 1936 though with selective application, they nevertheless prohibit an employer from withholding wages of an employee for any reason that is not permissible under law and the wages Act even renders any agreement to enable an employer to deduct or witthold wages on any ground that was not authorised under it, as null and void.This ground under discussion is not certainly an authorised ground for deduction.
Therefore the proposal is fraught with leagl implications.
B.Saikumar
HR & labour Law Consultant
Chipinbiz Consultancy Pvt.ltd
Mumbai
022-28324234