I am working in an automotive company where the appointment notice period terms are written as "As per prevailing company policy." When I joined, it was 60 days. Now, the company sent out an email on the 30th of November '23, revising the notice period to 90 days. However, I resigned on the 21st of December '23. I have a concern about whether this change is in accordance with the law or if there should be a timeline for its effectiveness. Any changes in such terms should not be immediate, as HR has done here. Can you please help, as I can only serve 60 days?
From India, Ahmedabad
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From India, Ahmedabad
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Notice period and legal implications
Notice period is a condition of employment that cannot be changed without giving notice, as per section 9A of the Industrial Disputes Act. Since you have a 60-day notice period, that will be applicable to you. I would suggest that all employees should jointly protest the management's decision to increase the notice period from 60 to 90 days.
From India, Kannur
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4526Notice period is a condition of employment that cannot be changed without giving notice, as per section 9A of the Industrial Disputes Act. Since you have a 60-day notice period, that will be applicable to you. I would suggest that all employees should jointly protest the management's decision to increase the notice period from 60 to 90 days.
From India, Kannur
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Thanks for the prompt response! Additionally, can you please help out with the queries below?
Notice Period Query
As per section 9A, a 21-day notice is mandatory. I hope I am correct. If this is the condition, I received the mail on 1st Dec '23 and submitted my resignation on 22nd Dec '23. In this case, can I contest it as there is one extra day?
Leave Payment and Deductions
Also, the employer is paying leaves based on basic pay and deducting notice from the gross pay. Is this legal, or is there any rule regarding this?
Requesting your support! Thanks a lot.
From India, Ahmedabad
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Notice Period Query
As per section 9A, a 21-day notice is mandatory. I hope I am correct. If this is the condition, I received the mail on 1st Dec '23 and submitted my resignation on 22nd Dec '23. In this case, can I contest it as there is one extra day?
Leave Payment and Deductions
Also, the employer is paying leaves based on basic pay and deducting notice from the gross pay. Is this legal, or is there any rule regarding this?
Requesting your support! Thanks a lot.
From India, Ahmedabad
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Legality of Changing Notice Period from 60 to 90 Days
Changing the notice period from 60 days to 90 days is not legally enforceable, not only because no notice is given or the change is made effective within 21 days of the notice, but also because the provision that workers should give notice to resign is illegal. Where is it mentioned in the Industrial Disputes Act that a worker should give notice to leave the company? An employer should give notice to terminate an employee, but an employee need not give any notice. Suppose that the Certified Standing Orders of your company provide for a notice, and the same is 60 days. Then, just by giving a notice under section 9A, the employer cannot change the notice period from 60 to 90 days; it would require amending the standing orders. A standing order can be amended only by following the same procedures as required to get it certified. The employees can very well defend the employer's decision to change the notice period.
Challenging the Employer's Decision
When an employer has given a notice to change a service condition, i.e., changing the notice period from 60 to 90 days, you are expected to decline it by challenging the decision. If the workers have not challenged it, it would be construed that the workers agree to the decision. Now, the question is not the date on which the change would come into force but whether there can be a service condition like a notice period for a worker. There is no such condition of service like a notice period for the workers, and that is why you cannot find a service condition in the Fourth Schedule of the ID Act. Nowhere in the ID Act is it mentioned that a worker should give notice to leave an employer.
From India, Kannur
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Changing the notice period from 60 days to 90 days is not legally enforceable, not only because no notice is given or the change is made effective within 21 days of the notice, but also because the provision that workers should give notice to resign is illegal. Where is it mentioned in the Industrial Disputes Act that a worker should give notice to leave the company? An employer should give notice to terminate an employee, but an employee need not give any notice. Suppose that the Certified Standing Orders of your company provide for a notice, and the same is 60 days. Then, just by giving a notice under section 9A, the employer cannot change the notice period from 60 to 90 days; it would require amending the standing orders. A standing order can be amended only by following the same procedures as required to get it certified. The employees can very well defend the employer's decision to change the notice period.
Challenging the Employer's Decision
When an employer has given a notice to change a service condition, i.e., changing the notice period from 60 to 90 days, you are expected to decline it by challenging the decision. If the workers have not challenged it, it would be construed that the workers agree to the decision. Now, the question is not the date on which the change would come into force but whether there can be a service condition like a notice period for a worker. There is no such condition of service like a notice period for the workers, and that is why you cannot find a service condition in the Fourth Schedule of the ID Act. Nowhere in the ID Act is it mentioned that a worker should give notice to leave an employer.
From India, Kannur
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Understood your point—now, what can I do as I have not replied to the change in notice mail received from HR? It's been one and a half months. The mail was received on 1st December '23, and I resigned on 22nd December '23. I'm serving a 60-day notice period as per the earlier policy, but I haven't responded to the mail.
Could you help me draft a response so that I could avoid this conflict?
From India, Ahmedabad
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Could you help me draft a response so that I could avoid this conflict?
From India, Ahmedabad
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Dear Experts,
In this case, we are presuming that the query raiser is a workman attracting Section 9A. Generally, for workman cadre, companies do not change the notice period. Also, wages are clearly defined without ambiguity related to a deduction on basic or gross.
Now the question comes, if the person is not a workman, and the company changed its policy, which is common to everyone, can he challenge its applicability citing any reason after his resignation?
Regards,
From India, Delhi
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In this case, we are presuming that the query raiser is a workman attracting Section 9A. Generally, for workman cadre, companies do not change the notice period. Also, wages are clearly defined without ambiguity related to a deduction on basic or gross.
Now the question comes, if the person is not a workman, and the company changed its policy, which is common to everyone, can he challenge its applicability citing any reason after his resignation?
Regards,
From India, Delhi
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Change of Notice Period: Legal Implications
Change of notice period from 60 days to 90 days is a change in the service condition. There is no doubt. However, Sec 9A of the ID Act is applicable only to the workman. Is Mr. Raghav working as a workman? As per Sec. 2 (s) of the ID Act, it defines the term "workman" as any person, including an apprentice, employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, whether the terms of employment be express or implied. However, it does not include any such person who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per month or exercises, either by the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
In this definition, other than a workman, the mandate as per Sec. 9A does not apply. Hence, if the management changes the notice period from 60 days to 90 days, in my opinion, I don't think anything can be done. The best way is to request the Management/HR to consider some leniency and get relieved a bit earlier by stating some genuine reasons.
Regards,
From India, Madras
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Change of notice period from 60 days to 90 days is a change in the service condition. There is no doubt. However, Sec 9A of the ID Act is applicable only to the workman. Is Mr. Raghav working as a workman? As per Sec. 2 (s) of the ID Act, it defines the term "workman" as any person, including an apprentice, employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, whether the terms of employment be express or implied. However, it does not include any such person who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per month or exercises, either by the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
In this definition, other than a workman, the mandate as per Sec. 9A does not apply. Hence, if the management changes the notice period from 60 days to 90 days, in my opinion, I don't think anything can be done. The best way is to request the Management/HR to consider some leniency and get relieved a bit earlier by stating some genuine reasons.
Regards,
From India, Madras
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Industrial Disputes Amendment Act 2010.doc
INDUSTRIAL DISPUTES ACT.pdf