Hello,
I worked for Kolkata based IT company. The offer letter clearly states:
++++++++++++++++
Notice of Termination Notice of termination of employment by the employee shall be 45 days notice in writing or payment in lieu of notice. Such notice may not be offset by unused leave. The same shall be applicable when the employment is terminated by the company.
++++++++++++++++
A week after I resigned (giving 45 days notice as we agreed), the company told me to stop working and ended work relation. They paid for the days I worked (of-course after too much delays, follow-ups & arguments!) but refusing to make payment in lieu for remaining notice period they din’t let me serve fully.
Company’s argument is:
1) because an employee resigned (while still under 6 months probation), company is not obliged to respect notice period.
2) They also quote: Section 15 of the WBSCE Act,
++++++++++++++
"The services of a person employed in any shop or establishment, who has been in continuous service for not less than one year in such shop or establishment, shall not be terminated without giving him one month's notice, in writing, showing the reasons of such termination and until the period of notice has expired or until he has been paid, in lieu of such notice, wages for the period of such notice."Â
to which I wonder:
- aren’t they obliged to follow what was put in an offer letter?
- and if not, it was bogus claims they make in in offer letter?
Please let me know my options further - are they obliged to respect the notice period or not?
[of-course few people advised - "just forget it and move on", but if we all have such attitude why do we sign contracts in the first place and have Laws in place?!]
Thanks a lot for your guidance in this matter.
From India, Kolkata
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1I worked for Kolkata based IT company. The offer letter clearly states:
++++++++++++++++
Notice of Termination Notice of termination of employment by the employee shall be 45 days notice in writing or payment in lieu of notice. Such notice may not be offset by unused leave. The same shall be applicable when the employment is terminated by the company.
++++++++++++++++
A week after I resigned (giving 45 days notice as we agreed), the company told me to stop working and ended work relation. They paid for the days I worked (of-course after too much delays, follow-ups & arguments!) but refusing to make payment in lieu for remaining notice period they din’t let me serve fully.
Company’s argument is:
1) because an employee resigned (while still under 6 months probation), company is not obliged to respect notice period.
2) They also quote: Section 15 of the WBSCE Act,
++++++++++++++
"The services of a person employed in any shop or establishment, who has been in continuous service for not less than one year in such shop or establishment, shall not be terminated without giving him one month's notice, in writing, showing the reasons of such termination and until the period of notice has expired or until he has been paid, in lieu of such notice, wages for the period of such notice."Â
to which I wonder:
- aren’t they obliged to follow what was put in an offer letter?
- and if not, it was bogus claims they make in in offer letter?
Please let me know my options further - are they obliged to respect the notice period or not?
[of-course few people advised - "just forget it and move on", but if we all have such attitude why do we sign contracts in the first place and have Laws in place?!]
Thanks a lot for your guidance in this matter.
From India, Kolkata
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Dear User1122,
Your post seems a bit confusing to me. You submitted your resignation with 45 days' notice and continued in service, anticipating the acceptance of your resignation, right? A week later, the company asked you to stop working or refrain from coming to work without any specific intimation regarding the acceptance of your resignation or your relief. Does this imply that your resignation was accepted on the date of communication, and on the same day, you were relieved in waiver of the notice period? Despite the delay and pressure you faced, you were paid for the days you worked from the date of submitting your resignation until the date of communication from the management.
The company did not terminate your services but relieved you from service before the notice period you offered expired. You were paid for the days worked during the notice period. In this situation, how can you claim that the management violated the offer conditions?
Please let me know if you need any further assistance.
Best regards,
[Your Name]
From India, Salem
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Your post seems a bit confusing to me. You submitted your resignation with 45 days' notice and continued in service, anticipating the acceptance of your resignation, right? A week later, the company asked you to stop working or refrain from coming to work without any specific intimation regarding the acceptance of your resignation or your relief. Does this imply that your resignation was accepted on the date of communication, and on the same day, you were relieved in waiver of the notice period? Despite the delay and pressure you faced, you were paid for the days you worked from the date of submitting your resignation until the date of communication from the management.
The company did not terminate your services but relieved you from service before the notice period you offered expired. You were paid for the days worked during the notice period. In this situation, how can you claim that the management violated the offer conditions?
Please let me know if you need any further assistance.
Best regards,
[Your Name]
From India, Salem
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Thanks for your response. And sorry for the confusion.
Let me clarify further - I never asked for premature relieving and willing to work to serve the full notice period. Hence, if they ask me to stop working while serving the notice period, it is considered as 'termination' (at least that's what happens internationally, and correct me please if I misinterpret anything here).
Isn't it (to be fair on both sides) just as the employee is made to serve the full notice or pay in lieu of the notice period, an employer also must let the employee serve the full notice period or pay in lieu of notice?
I've spoken with a few friends and got conflicting responses. That's why I posted here to seek expert opinion - what is the normal practice (or what does the law say) in such a situation.
From India, Kolkata
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Let me clarify further - I never asked for premature relieving and willing to work to serve the full notice period. Hence, if they ask me to stop working while serving the notice period, it is considered as 'termination' (at least that's what happens internationally, and correct me please if I misinterpret anything here).
Isn't it (to be fair on both sides) just as the employee is made to serve the full notice or pay in lieu of the notice period, an employer also must let the employee serve the full notice period or pay in lieu of notice?
I've spoken with a few friends and got conflicting responses. That's why I posted here to seek expert opinion - what is the normal practice (or what does the law say) in such a situation.
From India, Kolkata
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P.S: Or, put it this way.
In my opinion:
- If an employee resigns (irrespective of the probation period or not), the employment relationship still continues until the last date of the notice period. With all due responsibilities/liabilities on both sides and all the terms that had been agreed upon.
- Under such circumstances, and if no conversation on premature relieving has occurred, if an employer asks the employee to stop working, it is classified as "termination" and thus, liable for payment in lieu of notice to an employee.
But again, this is my opinion (which of course may be biased). That's why seeking expert people's opinion in this forum, based on their understanding/experience/expertise in these matters.
Thanks for your kind attention.
From India, Kolkata
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In my opinion:
- If an employee resigns (irrespective of the probation period or not), the employment relationship still continues until the last date of the notice period. With all due responsibilities/liabilities on both sides and all the terms that had been agreed upon.
- Under such circumstances, and if no conversation on premature relieving has occurred, if an employer asks the employee to stop working, it is classified as "termination" and thus, liable for payment in lieu of notice to an employee.
But again, this is my opinion (which of course may be biased). That's why seeking expert people's opinion in this forum, based on their understanding/experience/expertise in these matters.
Thanks for your kind attention.
From India, Kolkata
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Dear friend,
I can very well understand your feelings. From the perspective of sanctity of the terms and conditions forming part of the contract of employment, your views are correct. When an employee conveys his intention of resignation together with his unqualified willingness to serve the notice period already agreed mutually, reciprocal courtesy demands that the employer should formally inform the employee of his acceptance of the same with certain modifications, if any, within the scope of the agreed terms. Your management could have very decently informed you that the notice period is waived and therefore you are relieved forthwith. However, it is the mindset of the IT and ITES industry that they are above the laws of the land, and their general HR practice is based on free hire and fire, therefore, it is not prudent to engage in a one-to-one fight with them. Their watchful eyes on quarterly financial performance are totally blind to the socio-economic background of an Indian Knowledge Worker, and their HR people are there only to implement their policies and not to bring up questions of legality or otherwise of the policies. That's why, at times, a Higher Judicial Forum like that of a High Court has to remind them of the basics of Indian Labour Laws. In such a state of affairs, one has to be more rational than emotional.
From India, Salem
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I can very well understand your feelings. From the perspective of sanctity of the terms and conditions forming part of the contract of employment, your views are correct. When an employee conveys his intention of resignation together with his unqualified willingness to serve the notice period already agreed mutually, reciprocal courtesy demands that the employer should formally inform the employee of his acceptance of the same with certain modifications, if any, within the scope of the agreed terms. Your management could have very decently informed you that the notice period is waived and therefore you are relieved forthwith. However, it is the mindset of the IT and ITES industry that they are above the laws of the land, and their general HR practice is based on free hire and fire, therefore, it is not prudent to engage in a one-to-one fight with them. Their watchful eyes on quarterly financial performance are totally blind to the socio-economic background of an Indian Knowledge Worker, and their HR people are there only to implement their policies and not to bring up questions of legality or otherwise of the policies. That's why, at times, a Higher Judicial Forum like that of a High Court has to remind them of the basics of Indian Labour Laws. In such a state of affairs, one has to be more rational than emotional.
From India, Salem
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Dear friend,
Let me share some more insights from my research on the legality of relieving a resigning employee before the expiration of the notice period mentioned in their resignation. The ratio decidendi of the Delhi High Court's judgment on this matter can be found in its ruling in DASS STUDIOS v. R.K.BAWEJA, LABOUR COURT, DELHI [1972(1) ILR 856]. When explaining Sec.30 of the Delhi Shops and Establishments Act, 1954, which addresses the termination of employment for an employee with a minimum service of three months, the honorable High Court made the following observations:
"A plain reading of Sec.30 of the Act clarifies that while the notice of one month under subsection (1) is for the employee's benefit, the notice under subsection (2) is for the employer's benefit. If an employer issues a notice under subsection (1), the employee can leave the service even before the one-month period expires. Similarly, when the notice is issued under subsection (2), the employer can terminate the employee's services even before the one-month period ends. The employer is not required to wait for the full one-month period before terminating the services, just as the employee who receives notice under subsection (1) is not obligated to wait the full month before quitting the employer's services.
For instance, if an employee serves a one-month notice on 17-07-1968, resigning effective from 16-08-1968, and the employer accepts it on 23-07-1968 with immediate effect, then the employee CANNOT INSIST on continuing in service until the notice period's end on 16-08-1968."
I hope the legal standpoint on this matter is now clear to you. The only mistake your employer made was acting hastily out of enthusiasm and deviating from conventional practices. It's best to leave it as is and focus on your career.
From India, Salem
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Let me share some more insights from my research on the legality of relieving a resigning employee before the expiration of the notice period mentioned in their resignation. The ratio decidendi of the Delhi High Court's judgment on this matter can be found in its ruling in DASS STUDIOS v. R.K.BAWEJA, LABOUR COURT, DELHI [1972(1) ILR 856]. When explaining Sec.30 of the Delhi Shops and Establishments Act, 1954, which addresses the termination of employment for an employee with a minimum service of three months, the honorable High Court made the following observations:
"A plain reading of Sec.30 of the Act clarifies that while the notice of one month under subsection (1) is for the employee's benefit, the notice under subsection (2) is for the employer's benefit. If an employer issues a notice under subsection (1), the employee can leave the service even before the one-month period expires. Similarly, when the notice is issued under subsection (2), the employer can terminate the employee's services even before the one-month period ends. The employer is not required to wait for the full one-month period before terminating the services, just as the employee who receives notice under subsection (1) is not obligated to wait the full month before quitting the employer's services.
For instance, if an employee serves a one-month notice on 17-07-1968, resigning effective from 16-08-1968, and the employer accepts it on 23-07-1968 with immediate effect, then the employee CANNOT INSIST on continuing in service until the notice period's end on 16-08-1968."
I hope the legal standpoint on this matter is now clear to you. The only mistake your employer made was acting hastily out of enthusiasm and deviating from conventional practices. It's best to leave it as is and focus on your career.
From India, Salem
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Dear Shri. Umakanthanji,
Thank you for inviting me to offer my views on this subject.
The posts by queriest are a bit confusing to me as well. Under these circumstances, I avoid giving any views or opinions.
The queriest is governed by WBS&E Act 1963, Service Contract document, and Standing Orders if his company has or had 100 employees.
WBS&E Act section 15 only addresses the termination of services by the employer. The queriest has referenced the said section in his post #1. According to it, a person with more than one year of service cannot be terminated without giving one month's notice in writing showing the reason for such termination or salary in lieu thereof.
As per the offer letter (Service Contract document), there is a requirement of 45 days' notice from either side to terminate the employment or payment in lieu thereof, to my understanding as stated by the queriest.
According to the SO Act, a notice of 30 days is required from either side or payment in lieu of notice in the case of the termination of a permanent employee.
Unless the Standing Orders are certified with a 45-day notice, the company cannot enforce a 45-day notice.
A company cannot supersede any law in force by signing any Service Contract document.
You have rightly said in your post no. 5 that the "IT and ITES" industry is above the law of the land and their general HR practice is based on free hire and fire.
In my view, the query in this thread is about whether an employer can terminate the services of an employee who is on notice pay. The answer to it is No. And if terminated, the employee has to be given a salary in lieu of the remaining working days.
The legal position given by you in your post #6 is not applicable to the queriest since he is not governed by the DS&E Act 1954.
I hope you will agree with my contention.
From India, Mumbai
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Thank you for inviting me to offer my views on this subject.
The posts by queriest are a bit confusing to me as well. Under these circumstances, I avoid giving any views or opinions.
The queriest is governed by WBS&E Act 1963, Service Contract document, and Standing Orders if his company has or had 100 employees.
WBS&E Act section 15 only addresses the termination of services by the employer. The queriest has referenced the said section in his post #1. According to it, a person with more than one year of service cannot be terminated without giving one month's notice in writing showing the reason for such termination or salary in lieu thereof.
As per the offer letter (Service Contract document), there is a requirement of 45 days' notice from either side to terminate the employment or payment in lieu thereof, to my understanding as stated by the queriest.
According to the SO Act, a notice of 30 days is required from either side or payment in lieu of notice in the case of the termination of a permanent employee.
Unless the Standing Orders are certified with a 45-day notice, the company cannot enforce a 45-day notice.
A company cannot supersede any law in force by signing any Service Contract document.
You have rightly said in your post no. 5 that the "IT and ITES" industry is above the law of the land and their general HR practice is based on free hire and fire.
In my view, the query in this thread is about whether an employer can terminate the services of an employee who is on notice pay. The answer to it is No. And if terminated, the employee has to be given a salary in lieu of the remaining working days.
The legal position given by you in your post #6 is not applicable to the queriest since he is not governed by the DS&E Act 1954.
I hope you will agree with my contention.
From India, Mumbai
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Thank you very much @Umakanthan53 for taking the time to do more research on this and share with the wider community. I appreciate your further clarification @Korgaonkar on this as well. Honestly, I need to carefully read these sections/acts a few times before I can fully understand them and arrive at a conclusion. From @Korgaonkar's last response, it does look to me like the company is liable to pay salary in lieu of remaining working days, irrespective of whether the employee resigned and is serving a notice period (provided the employee hasn't requested early relieving). Let me know if I misunderstood anything.
From India, Kolkata
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From India, Kolkata
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Please let me know if you are stopped from working in writing. Umakant has explained everything in writing. Even if there is a 6-month rule in West Bengal, it should have formed a part of your appointment letter.
Since you are stopped working, you consider that your notice period is waived. Just ask them for a letter of acceptance. Termination should have a reason. Hence, seek a letter of acceptance.
From India, Ahmedabad
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Since you are stopped working, you consider that your notice period is waived. Just ask them for a letter of acceptance. Termination should have a reason. Hence, seek a letter of acceptance.
From India, Ahmedabad
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The employer has all rights to relieve you from the services before the expiry of the notice period against your resignation.
It is at the discretion of an employer to keep you till the expiry of the notice period. You can sue him only if he has terminated you without notice period or notice pay.
From India, Bangalore
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It is at the discretion of an employer to keep you till the expiry of the notice period. You can sue him only if he has terminated you without notice period or notice pay.
From India, Bangalore
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