Hi friends, I need your suggestion. I joined as a software engineer in a company on 1st March 2014. After the completion of training, they provided me with an offer letter which mentioned a notice period of 6 months. I submitted my resignation on 5th September 2014, and I have served 4 months of notice. I am now seeking my relieving, but the company is not willing to provide it. Is there any way to resolve this situation? Additionally, are there any legal limitations on the duration of the notice period?
Thank you for your assistance.
From India, Bangalore
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Thank you for your assistance.
From India, Bangalore
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I'm surprised to learn that companies have a 6-month notice period! Did you accept the offer in writing (sign the Offer Letter)? If so, the company has the right to hold you back for 6 months. Try to see if the company is ready to accept pay in lieu of notice (you'll have to pay them 4 months' salary as a penalty). This is usually the Basic Pay and not the CTC, so it wouldn't pinch you much, provided the company gives you that option.
From United States, Chicago
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1From United States, Chicago
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Sorry, you’ll have to pay them only the remaining 2 months' salary in lieu of notice. The previous one was a typo.
From United States, Chicago
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From United States, Chicago
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Software Engineers and Legal Definitions
A software engineer, by all means, should be covered by the definition of 'Workman' as in the ID Act or 'Employee' as in the Shops and Commercial Establishments Act. You may avoid seeking confirmation on it from personnel in Line Management or HR of your company and approach an able Labor Law Consultant or Service Matters Lawyer only. Your counsel may ask you a set of structured questions and may opine that you shall be covered.
Coverage by Shops and Commercial Establishments Act
Software companies are covered by the (name of the state) Shops and Commercial Establishments Act, which was enacted to govern the service conditions of employees working in establishments covered by this Act. Notice Period or pay is part of service conditions and is very well stated in this Act, with the notice period being as per the length of service and up to a maximum of 30 days. No Inspector appointed under this Act, Labor Inspector, or Labor Authority can or shall accept a notice period and rate of notice pay beyond the provisions of this Act.
Standing Orders and Their Applicability
Standing Orders are also applicable. If Standing Orders are not certified, Model Standing Orders shall apply. Some states like Kerala have issued notifications covering all commercial establishments (including software companies) by standing orders. States like Maharashtra have laid down provisions of the Bombay Shops and Commercial Establishments Act stating that any establishment having 50 or more employees shall be covered by standing orders.
As per Model Standing Orders: Sec13,16: Notice Period during the probation period is NIL, and after confirmation, it is a maximum of 30 days, and a service certificate has to be issued to all employees on the last day in the office. The employer personally is held responsible for the faithful observance of standing orders.
No Inspector appointed under this Act, Labor Inspector, or Labor Authority can or shall accept a notice period and rate of notice pay beyond the provisions of the standing orders (Certified or Model) and the (name of the state) Shops and Commercial Establishments Act. These instruments of law, statute, or Act shall prevail upon any private policy or rule that the employer has drafted for employees, such as the offer letter, appointment letter, service agreement, contract of employment, HR policy, Service Rules and regulations, FnF policy, etc.
Hence, any clause or service condition that is a violation of these enactments shall not survive.
Implications of a Six-Month Notice Period
Thus, the offer letter issued to you laying a notice period of 6 months may not be even worth the piece of paper on which it is written.
Assuming that you are under some compulsion, being coerced, forced, pressurized, or exploited, or you are fearful to the extent that you will do anything, then you may point out whether the employer has stated that:
- Termination notice by it shall also be (equitable), i.e., 6 months: If NO, the employment contract can easily be termed arbitrary.
- Employee and employer both can tender notice pay in lieu of the notice period? Or employer can tender notice pay in lieu of the notice period? Or employee cannot tender notice pay in lieu of the notice period?
Steps to Take with Your Current and Future Employers
First thing first: You should firm up, preferably in writing with the next employer, that your notice period in the current employment is 6 months and the joining time required is 6 months (and thus don't benefit the employer at your cost), and your current employer is unwilling to accept notice pay in lieu of the notice period and issue acceptance of resignation, service certificate, relieving letter, and you should be absorbed on the strength of the copy of resignation only, and the company should buy your notice period unconditionally and pay it on the 1st day of joining.
You should also write to the appointing authority in the current employment that NO TASKS ARE PENDING at your end and routine duties be assigned to you that can be completed on a daily basis within and up to the expiry of the notice period tendered by you, dated, and to whom you should hand over the charge.
It shall certainly be useful if your communications are now drafted by your lawyer.
Regards
From India, Chandigarh
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A software engineer, by all means, should be covered by the definition of 'Workman' as in the ID Act or 'Employee' as in the Shops and Commercial Establishments Act. You may avoid seeking confirmation on it from personnel in Line Management or HR of your company and approach an able Labor Law Consultant or Service Matters Lawyer only. Your counsel may ask you a set of structured questions and may opine that you shall be covered.
Coverage by Shops and Commercial Establishments Act
Software companies are covered by the (name of the state) Shops and Commercial Establishments Act, which was enacted to govern the service conditions of employees working in establishments covered by this Act. Notice Period or pay is part of service conditions and is very well stated in this Act, with the notice period being as per the length of service and up to a maximum of 30 days. No Inspector appointed under this Act, Labor Inspector, or Labor Authority can or shall accept a notice period and rate of notice pay beyond the provisions of this Act.
Standing Orders and Their Applicability
Standing Orders are also applicable. If Standing Orders are not certified, Model Standing Orders shall apply. Some states like Kerala have issued notifications covering all commercial establishments (including software companies) by standing orders. States like Maharashtra have laid down provisions of the Bombay Shops and Commercial Establishments Act stating that any establishment having 50 or more employees shall be covered by standing orders.
As per Model Standing Orders: Sec13,16: Notice Period during the probation period is NIL, and after confirmation, it is a maximum of 30 days, and a service certificate has to be issued to all employees on the last day in the office. The employer personally is held responsible for the faithful observance of standing orders.
No Inspector appointed under this Act, Labor Inspector, or Labor Authority can or shall accept a notice period and rate of notice pay beyond the provisions of the standing orders (Certified or Model) and the (name of the state) Shops and Commercial Establishments Act. These instruments of law, statute, or Act shall prevail upon any private policy or rule that the employer has drafted for employees, such as the offer letter, appointment letter, service agreement, contract of employment, HR policy, Service Rules and regulations, FnF policy, etc.
Hence, any clause or service condition that is a violation of these enactments shall not survive.
Implications of a Six-Month Notice Period
Thus, the offer letter issued to you laying a notice period of 6 months may not be even worth the piece of paper on which it is written.
Assuming that you are under some compulsion, being coerced, forced, pressurized, or exploited, or you are fearful to the extent that you will do anything, then you may point out whether the employer has stated that:
- Termination notice by it shall also be (equitable), i.e., 6 months: If NO, the employment contract can easily be termed arbitrary.
- Employee and employer both can tender notice pay in lieu of the notice period? Or employer can tender notice pay in lieu of the notice period? Or employee cannot tender notice pay in lieu of the notice period?
Steps to Take with Your Current and Future Employers
First thing first: You should firm up, preferably in writing with the next employer, that your notice period in the current employment is 6 months and the joining time required is 6 months (and thus don't benefit the employer at your cost), and your current employer is unwilling to accept notice pay in lieu of the notice period and issue acceptance of resignation, service certificate, relieving letter, and you should be absorbed on the strength of the copy of resignation only, and the company should buy your notice period unconditionally and pay it on the 1st day of joining.
You should also write to the appointing authority in the current employment that NO TASKS ARE PENDING at your end and routine duties be assigned to you that can be completed on a daily basis within and up to the expiry of the notice period tendered by you, dated, and to whom you should hand over the charge.
It shall certainly be useful if your communications are now drafted by your lawyer.
Regards
From India, Chandigarh
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Madras High Court Decision on Notice Period
As per the decision of the Madras High Court in the case of Hari Raj H v Shah Wallace Ltd, decided on 13.1.99, the notice period cannot exceed what is prescribed under the Shops and Establishment Act, even if an agreement states otherwise. Under the Act, it is generally 30 days.
Furthermore, it is the duty of the Inspector under the Act to ensure that the employee receives their relieving documents and dues. You can make a complaint to the Inspector and ask for information on the steps taken to ensure compliance. Additionally, request a copy of the relieving letter because the Inspector is a public authority under the Act, and this information falls within his purview.
If an employer violates these provisions, they are required to take appropriate action. If no action is taken, further remedies are available.
From India, New Delhi
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As per the decision of the Madras High Court in the case of Hari Raj H v Shah Wallace Ltd, decided on 13.1.99, the notice period cannot exceed what is prescribed under the Shops and Establishment Act, even if an agreement states otherwise. Under the Act, it is generally 30 days.
Furthermore, it is the duty of the Inspector under the Act to ensure that the employee receives their relieving documents and dues. You can make a complaint to the Inspector and ask for information on the steps taken to ensure compliance. Additionally, request a copy of the relieving letter because the Inspector is a public authority under the Act, and this information falls within his purview.
If an employer violates these provisions, they are required to take appropriate action. If no action is taken, further remedies are available.
From India, New Delhi
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The notice period of 6 months is not in line with the Shops and Commercial Establishment Act. You are required to serve a 30-day notice period as per statutory norms. Please obtain the relieving letter indicating your last working day and submit the No-Dues form to the HR Department. Having the relieving letter should suffice to secure another employment opportunity.
Regards,
Deepak Vasudevan
From India, Ernakulam
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Regards,
Deepak Vasudevan
From India, Ernakulam
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Since Mr. Vivek has already given notice, there is no need to give notice again and since employer is not responding on that, the legal recourse is only available as suggested earlier.
From India, New Delhi
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From India, New Delhi
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Experts have provided their expert opinions on your query. Also, be clear with your new employer about this incident to avoid being counted in a red case.
Observations on Your Employment Situation
Apart from this, I have observed a few points:
1. As you mentioned, you "joined" as a software engineer in a company, and after completing the training, they provided you with an "Offer Letter" - this seems somewhat unusual. Mistakes were made by both the employer and the employee:
- Did you join the organization without reviewing the offer letter?
- Typically, employers send their employees after completing all the joining formalities, etc. In this case, it seems the employer skipped this step.
2. You might be on a probation period. Have you received a separate confirmation letter from your employer?
I also believe that you should not be required to serve more than a 30-day notice period. Simply discuss this with the HR department, and I am confident they will agree.
Furthermore, I would appreciate it if you could respond to my queries.
Regards,
Anurag
From India, Indore
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Observations on Your Employment Situation
Apart from this, I have observed a few points:
1. As you mentioned, you "joined" as a software engineer in a company, and after completing the training, they provided you with an "Offer Letter" - this seems somewhat unusual. Mistakes were made by both the employer and the employee:
- Did you join the organization without reviewing the offer letter?
- Typically, employers send their employees after completing all the joining formalities, etc. In this case, it seems the employer skipped this step.
2. You might be on a probation period. Have you received a separate confirmation letter from your employer?
I also believe that you should not be required to serve more than a 30-day notice period. Simply discuss this with the HR department, and I am confident they will agree.
Furthermore, I would appreciate it if you could respond to my queries.
Regards,
Anurag
From India, Indore
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When I joined the company, they didn't give any confirmation letter. They also didn't send any mail regarding my joining. After 3 months, they gave me an offer letter and the designation of Junior Engineer. I was the first trainee of my batch to receive an offer letter. When my manager called me and handed me that offer letter, I was happy. I didn't read it and accepted the offer. Later, I realized my mistake. They clearly mentioned in the offer letter...
5th June 2014
Dear Vivek,
After the successful completion of your training/internship, we are pleased to offer you a position in Girmiti Software Pvt Ltd as Jr. Engineer under the following terms:
1. Date of Joining:
We would like you to join no later than 1st June 2014 and confirm your acceptance by returning a signed copy of this offer letter. Your joining is subject to the provision of all the necessary documents.
9. Notice Period:
As per the company norms, a minimum of six months' notice period is required to be given by the employee. This is based on the importance of the ongoing projects, client interactions, working at client premises on deliveries, and implementations.
From India, Bangalore
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5th June 2014
Dear Vivek,
After the successful completion of your training/internship, we are pleased to offer you a position in Girmiti Software Pvt Ltd as Jr. Engineer under the following terms:
1. Date of Joining:
We would like you to join no later than 1st June 2014 and confirm your acceptance by returning a signed copy of this offer letter. Your joining is subject to the provision of all the necessary documents.
9. Notice Period:
As per the company norms, a minimum of six months' notice period is required to be given by the employee. This is based on the importance of the ongoing projects, client interactions, working at client premises on deliveries, and implementations.
From India, Bangalore
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Notice Period and Legal Implications
It has already been pointed out that the notice period of 6 months seems to be unreasonable, unfair, and void. The rules have been quoted.
Difference Between Offer Letter and Appointment Letter
The offer letter and appointment letter are two different documents.
Review of State Regulations
You may once again go through the (name of the state) Shops and Commercial Establishments Act and also the (name of the state) Shops and Commercial Establishments Rules, focusing on the clause regarding the issuance of the appointment letter.
Nowhere is it stated that the appointment letter has to be issued or can be issued after 3 months.
From India, Chandigarh
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It has already been pointed out that the notice period of 6 months seems to be unreasonable, unfair, and void. The rules have been quoted.
Difference Between Offer Letter and Appointment Letter
The offer letter and appointment letter are two different documents.
Review of State Regulations
You may once again go through the (name of the state) Shops and Commercial Establishments Act and also the (name of the state) Shops and Commercial Establishments Rules, focusing on the clause regarding the issuance of the appointment letter.
Nowhere is it stated that the appointment letter has to be issued or can be issued after 3 months.
From India, Chandigarh
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Notice Period Extension Letter Format.doc