Dear Shri Korgaonkar K A,
Can a person who is working under "Probation" be regarded as an employee under any Act ?
If not, the question of compensation does not arise under the Act .
However as per the terms of the offer letter , the concerned person has given 45 days notice of resignation (as stated by him) .
Hence as the company has relieved his services within a week of the resignation , he is entitled to compensation for the remaining days of the notice period ( as per the offer letter) .
So if he approaches the courts he is most likely to get compensation .
However Courts in India take very long to give judgments which will result in mental tension and excess legal fees .
Hence if he takes a rational view he can just forget it or give a legal notice or two to the Company just to harass them
From India, Hyderabad
12Can a person who is working under "Probation" be regarded as an employee under any Act ?
If not, the question of compensation does not arise under the Act .
However as per the terms of the offer letter , the concerned person has given 45 days notice of resignation (as stated by him) .
Hence as the company has relieved his services within a week of the resignation , he is entitled to compensation for the remaining days of the notice period ( as per the offer letter) .
So if he approaches the courts he is most likely to get compensation .
However Courts in India take very long to give judgments which will result in mental tension and excess legal fees .
Hence if he takes a rational view he can just forget it or give a legal notice or two to the Company just to harass them
From India, Hyderabad
"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 "
From the above, it is clear that queriest worked for one week and tendered resignation giving notice for 45 days and and company stop working and ended work relation i.e. nowhere he was terminated. Early relieving i.e. before the expiry of notice period cannot be termed as termination. Employer has right to waive off the notice from either side.
Look the matter from the management side also. Within week what status he could create for himself? What fruitful work he could do for the company after resignation during notice period who resigned within week? Sometimes management, do not have sufficient work which could be assigned to a person who could complete during notice period. Management generally think that after resignation, person's output is not as much as before. It is open to the management not to share their trade/business secrets with the resigned person further.
A good amount is spent by the company on engagement of a person. A person who is resigning just after a week and management has simply relieved him while waiving off his notice period and while paying him all his dues for the days he worked, I think management has done nothing wrong. As pointed out above, management has right to waive off the notice period, even from the employee side. Without full work, no management would like to pay salary. Management is always careful and they first watch their interest/profit and thereafter of the employees.
My frankness may not be taken otherwise.
Thanks
V K Gupta
From India, Panipat
From the above, it is clear that queriest worked for one week and tendered resignation giving notice for 45 days and and company stop working and ended work relation i.e. nowhere he was terminated. Early relieving i.e. before the expiry of notice period cannot be termed as termination. Employer has right to waive off the notice from either side.
Look the matter from the management side also. Within week what status he could create for himself? What fruitful work he could do for the company after resignation during notice period who resigned within week? Sometimes management, do not have sufficient work which could be assigned to a person who could complete during notice period. Management generally think that after resignation, person's output is not as much as before. It is open to the management not to share their trade/business secrets with the resigned person further.
A good amount is spent by the company on engagement of a person. A person who is resigning just after a week and management has simply relieved him while waiving off his notice period and while paying him all his dues for the days he worked, I think management has done nothing wrong. As pointed out above, management has right to waive off the notice period, even from the employee side. Without full work, no management would like to pay salary. Management is always careful and they first watch their interest/profit and thereafter of the employees.
My frankness may not be taken otherwise.
Thanks
V K Gupta
From India, Panipat
The divergent views offered by all the learned friends have in deed added piquancy to the debate. The firm conviction of the poster that the hasty act of the Management in relieving him before the expiry of the notice period mentioned in his resignation letter is illegal, the hesitation of Mr.Korgaonkar in giving a conclusive answer though he rightly touched certain points in favour of the poster, the strong view of Mr.Rajans68 in favour of the poster based on the terms of offer of employment, the strong argument of Mr V.K.Gupta advanced for the Management based on the balance of convenience ( not in its legal sense but only in its literal sense ) compeled me to rethink and go in for a deeper search by reframing the central issue of the debate as follows:
" Whether a prospective resignation given by an employee can be given effect to by the employer on an earlier date? "
Resignation is the voluntary act of the employee to terminate his contract of employment with the employer. However, in a contract of employment, resignation is not unilateral but bilateral in character requiring the acceptance of the employer. As such, the employee's right to exit on his voluntary act of resignation becomes subjective to the fulfilment of notice obligations, if any and the failure to do so can entail summary rejection of the resignation.. In other words, he has to serve the entire notice period or pay notice salary in lieu of notice as stipulated in the contract of employment and the choice is his. When he offers to serve the notice period stipulated in the contract of employment, in terms of its effect, it becomes a "prospective resignation". It can be effective only from the date mentioned therein and not earlier though it is accepted by the employer. In this connection, the Andhra Pradesh High Court has held in Coromandal Fertilizers Ltd., v. P.Venugopal [1986(1)LLJ 417 ] that the letter of resignation is a "form of offer" by the employee and hence it is open to the management to accept or reject the same but it is not open to the management to accept the resignation from a different date other than what was offered because such an acceptance would amount to counter-offer which again requires acceptance from the employee.
Therefore, the contention of the poster is correct and he can successfully stake a claim for wages till the expiry date of the notice period offered by him since he was relieved earlier by the management without his consent.
From India, Salem
" Whether a prospective resignation given by an employee can be given effect to by the employer on an earlier date? "
Resignation is the voluntary act of the employee to terminate his contract of employment with the employer. However, in a contract of employment, resignation is not unilateral but bilateral in character requiring the acceptance of the employer. As such, the employee's right to exit on his voluntary act of resignation becomes subjective to the fulfilment of notice obligations, if any and the failure to do so can entail summary rejection of the resignation.. In other words, he has to serve the entire notice period or pay notice salary in lieu of notice as stipulated in the contract of employment and the choice is his. When he offers to serve the notice period stipulated in the contract of employment, in terms of its effect, it becomes a "prospective resignation". It can be effective only from the date mentioned therein and not earlier though it is accepted by the employer. In this connection, the Andhra Pradesh High Court has held in Coromandal Fertilizers Ltd., v. P.Venugopal [1986(1)LLJ 417 ] that the letter of resignation is a "form of offer" by the employee and hence it is open to the management to accept or reject the same but it is not open to the management to accept the resignation from a different date other than what was offered because such an acceptance would amount to counter-offer which again requires acceptance from the employee.
Therefore, the contention of the poster is correct and he can successfully stake a claim for wages till the expiry date of the notice period offered by him since he was relieved earlier by the management without his consent.
From India, Salem
Thank you everyone for taking your times, energy & efforts and dig deeper into this issue.
To clarify further:
- the debate isn’t about, whether employer has right to relieve (or waive off notice period, whatever phrase we wanna use for that!) an employee prematurely during notice period. Of-course they do!
- We’re debating: Can they do so without payment in lieu of remaining notice period, considering a) 45days notice period as agreed on both sides a) employee is willing to work right until the last date of notice period and never requested notice period waiver!
@RAJANS68
Thanks for being supportive to my point of view here. yeah it’s unfortunate courts in India take long to give judgements (although not entirely their fault I believe, we all know how understaffed, stretched our judiciary is). I could let it go - but if these people are let go so easily with no opposition, it’ll only encourage such employers to find their next victim…
@GUPTA VK
As Mr. UMAKANTHAN53, we’re not debating what’s in employer favour or not (from convenience, financial point of view etc.) We’re debating are they legally / morally correct to not follow-up on what was agreed in the offer in light of the circumstances of what happened?
@PRATHEEKSHAA
Appreciate your opinions. But i'd appreciate it more if you can please share any past judgement or any logical rational why employer is right to not following-up on what was agreed?
Thanks all! I'll speak with my employer with all these inputs and see if they revisit their point of view. Will keep you all update!
From India, Kolkata
To clarify further:
- the debate isn’t about, whether employer has right to relieve (or waive off notice period, whatever phrase we wanna use for that!) an employee prematurely during notice period. Of-course they do!
- We’re debating: Can they do so without payment in lieu of remaining notice period, considering a) 45days notice period as agreed on both sides a) employee is willing to work right until the last date of notice period and never requested notice period waiver!
@RAJANS68
Thanks for being supportive to my point of view here. yeah it’s unfortunate courts in India take long to give judgements (although not entirely their fault I believe, we all know how understaffed, stretched our judiciary is). I could let it go - but if these people are let go so easily with no opposition, it’ll only encourage such employers to find their next victim…
@GUPTA VK
As Mr. UMAKANTHAN53, we’re not debating what’s in employer favour or not (from convenience, financial point of view etc.) We’re debating are they legally / morally correct to not follow-up on what was agreed in the offer in light of the circumstances of what happened?
@PRATHEEKSHAA
Appreciate your opinions. But i'd appreciate it more if you can please share any past judgement or any logical rational why employer is right to not following-up on what was agreed?
Thanks all! I'll speak with my employer with all these inputs and see if they revisit their point of view. Will keep you all update!
From India, Kolkata
Hello,
Since lot of people spend their time / efforts / energy addressing to this thread, I thought i'd update you.
So I spoke with my employer for the notice pay (as per our agreement), and they responded. Basically they wont address it because of so called "softer elements" (un-satisfactory performance, duration of employment)
- "So from a softer aspect of you bring entitled to the benefits - my short answer is a no. If you think you are, like we mentioned before, hire a lawyer and do it with paperwork."
I'm a bit confused - these so called "softer elements"
- can be reasons to discontinue employees service
- or inputs to employee's performance appraisal
but, how can it be a void justification to not fulfil their obligation under what was agreed upon? and, of-course such elements ware never communicated while I was employed, making me believe it's just a cooked up pretext to get away from their obligation...
Any suggestions how I may proceed further. Thanks in advance!
From India, Kolkata
Since lot of people spend their time / efforts / energy addressing to this thread, I thought i'd update you.
So I spoke with my employer for the notice pay (as per our agreement), and they responded. Basically they wont address it because of so called "softer elements" (un-satisfactory performance, duration of employment)
- "So from a softer aspect of you bring entitled to the benefits - my short answer is a no. If you think you are, like we mentioned before, hire a lawyer and do it with paperwork."
I'm a bit confused - these so called "softer elements"
- can be reasons to discontinue employees service
- or inputs to employee's performance appraisal
but, how can it be a void justification to not fulfil their obligation under what was agreed upon? and, of-course such elements ware never communicated while I was employed, making me believe it's just a cooked up pretext to get away from their obligation...
Any suggestions how I may proceed further. Thanks in advance!
From India, Kolkata
I have advised you earlier. Now check if there is any clause regarding tendering resignation within 6 months probation.
When they stopped you from working , they have to provide a letter showing the period of service and when you resigned.
From India, Ahmedabad
When they stopped you from working , they have to provide a letter showing the period of service and when you resigned.
From India, Ahmedabad
RELIEVING EMPLOYEE BEFORE DUE DATE OF RELIEF AFTER ACCEPTANCE OF RESIGNATION BY EMPLOYER:
================================================== =======
Learned HR Expert/Members have contributed greatly on this prevailing practice followed by some Cos.
The normal Rule/practice followed by some Cos: one month Notice period upto Officers & 2 Months for Managers & above. Even then; some Cos. having Certified SO; suddenly Reliev the quitter before due date of relief when Co. feels that; anyway; he has resigned & will not take interest in work; will remove before due date arbitrarily; leading to problem for the affected employees. This practice is more; where there is strained relation with the particular employee.
Strangely, some Cos. put the clause in SO that Co.Reserve the right to stop the particular person before due date & the Labr.Commr. Certifies it; may be for want of clear Rule on the matter.
Anyway; there is arbitrariness in Relieving; putting the employee to strain the good relation built over a period; on the eve of leaving.
ALL IS WELL THAT ENDS WELL; THIS IS NOW MISSING IN MANY OF THE RELIEVING CASES; INSTEAD OF ENDING THE RELATION WITH A HAPPY NOTE & FAREWELL; IT NOW ENDS WITH ARBITRARINESS;
I HOPE/ REQUEST ; MORE LEARNT MEMBERS WILL THROW LIGHT ON THIS MATTER.
HR Consultant
HOSPET-BENGALURU. 1.10.16
From India, Mumbai
================================================== =======
Learned HR Expert/Members have contributed greatly on this prevailing practice followed by some Cos.
The normal Rule/practice followed by some Cos: one month Notice period upto Officers & 2 Months for Managers & above. Even then; some Cos. having Certified SO; suddenly Reliev the quitter before due date of relief when Co. feels that; anyway; he has resigned & will not take interest in work; will remove before due date arbitrarily; leading to problem for the affected employees. This practice is more; where there is strained relation with the particular employee.
Strangely, some Cos. put the clause in SO that Co.Reserve the right to stop the particular person before due date & the Labr.Commr. Certifies it; may be for want of clear Rule on the matter.
Anyway; there is arbitrariness in Relieving; putting the employee to strain the good relation built over a period; on the eve of leaving.
ALL IS WELL THAT ENDS WELL; THIS IS NOW MISSING IN MANY OF THE RELIEVING CASES; INSTEAD OF ENDING THE RELATION WITH A HAPPY NOTE & FAREWELL; IT NOW ENDS WITH ARBITRARINESS;
I HOPE/ REQUEST ; MORE LEARNT MEMBERS WILL THROW LIGHT ON THIS MATTER.
HOSPET-BENGALURU. 1.10.16
From India, Mumbai
Using management jargons with negative connotations amidst a situation wherein one is reluctant to admit his mistake has become a fashion now a days in the higher echelons of management. Softer aspects of employment include the contract of service too as well its total compliance on the part of both the employer and the employee. Here in the case of the questioner, the contract of employment comes to an end by his prospective resignation only and not because of discharge or dismissal by the employer on the grounds of laxity or other softer aspects like unbecoming conduct, violation of the code of conduct on the part of the questioner. Had the employer found any such negativities in the performance of the employee, what prevented him from rejecting the letter of his prospective resignation and initiate disciplinary action instead of accepting it forthwith? It is therefore, left to the discretion of the questioner now whether to fight it out legally as challenged by his employer or to leave it altogether on the priciple of enough is enough.
From India, Salem
From India, Salem
RELIEVING EMPLOYEE BEFORE DUE DATE OF RELIEF AFTER ACCEPTANCE OF RESIGNATION BY EMPLOYER:
================================================== =======
Learned HR Expert/Members have contributed greatly on this prevailing practice followed by some Cos.
The normal Rule/practice followed by some Cos: one month Notice period upto Officers & 2 Months for Managers & above. Even then; some Cos. having Certified SO; suddenly Reliev the quitter before due date of relief when Co. feels that; anyway; he has resigned & will not take interest in work; will remove before due date arbitrarily; leading to problem for the affected employees. This practice is more; where there is strained relation with the particular employee.
Strangely, some Cos. put the clause in SO that Co.Reserve the right to stop the particular person before due date & the Labr.Commr. Certifies it; may be for want of clear Rule on the matter.
Anyway; there is arbitrariness in Relieving; putting the employee to strain the good relation built over a period; on the eve of leaving.
ALL IS WELL THAT ENDS WELL; THIS IS NOW MISSING IN MANY OF THE RELIEVING CASES; INSTEAD OF ENDING THE RELATION WITH A HAPPY NOTE & FAREWELL; IT NOW ENDS WITH ARBITRARINESS;
I HOPE/ REQUEST ; MORE LEARNT MEMBERS WILL THROW LIGHT ON THIS MATTER.
HR Consultant
HOSPET-BENGALURU. 1.10.16
From India, Mumbai
================================================== =======
Learned HR Expert/Members have contributed greatly on this prevailing practice followed by some Cos.
The normal Rule/practice followed by some Cos: one month Notice period upto Officers & 2 Months for Managers & above. Even then; some Cos. having Certified SO; suddenly Reliev the quitter before due date of relief when Co. feels that; anyway; he has resigned & will not take interest in work; will remove before due date arbitrarily; leading to problem for the affected employees. This practice is more; where there is strained relation with the particular employee.
Strangely, some Cos. put the clause in SO that Co.Reserve the right to stop the particular person before due date & the Labr.Commr. Certifies it; may be for want of clear Rule on the matter.
Anyway; there is arbitrariness in Relieving; putting the employee to strain the good relation built over a period; on the eve of leaving.
ALL IS WELL THAT ENDS WELL; THIS IS NOW MISSING IN MANY OF THE RELIEVING CASES; INSTEAD OF ENDING THE RELATION WITH A HAPPY NOTE & FAREWELL; IT NOW ENDS WITH ARBITRARINESS;
I HOPE/ REQUEST ; MORE LEARNT MEMBERS WILL THROW LIGHT ON THIS MATTER.
HR Consultant
HOSPET-BENGALURU. 1.10.16
From India, Mumbai
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