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 a very long time 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
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13Can 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 a very long time 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
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"A week after I resigned (giving 45 days' notice as we agreed), the company told me to stop working and ended our work relationship. They paid for the days I worked.
From the above, it is clear that the querent worked for one week and tendered resignation, giving a notice period of 45 days as agreed. The company stopped the work relationship, but nowhere was the querent terminated. Early relieving, i.e., before the expiry of the notice period, cannot be termed as termination. The employer has the right to waive off the notice from either side.
Let's consider the matter from the management's perspective as well. Within a week, what status could the querent create for themselves? What fruitful work could they do for the company during the notice period after resigning within a week? Sometimes, management may not have sufficient work to assign to a person who has resigned. Management generally believes that after resignation, a person's output may not be as high as before. It is within management's prerogative not to share their trade/business secrets with the resigned person any further.
A substantial amount is spent by the company on engaging a person. In a scenario where an individual resigns just after a week, and the management simply relieves them while waiving off the notice period and paying all dues for the worked days, I believe the management has acted appropriately. As mentioned earlier, management has the right to waive off the notice period, even from the employee's side. Without full work commitment, no management would be willing to pay a salary. Management is always cautious, prioritizing their interests/profits first and then those of the employees.
My frankness may not be taken otherwise.
Thanks,
V K Gupta"
From India, Panipat
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From the above, it is clear that the querent worked for one week and tendered resignation, giving a notice period of 45 days as agreed. The company stopped the work relationship, but nowhere was the querent terminated. Early relieving, i.e., before the expiry of the notice period, cannot be termed as termination. The employer has the right to waive off the notice from either side.
Let's consider the matter from the management's perspective as well. Within a week, what status could the querent create for themselves? What fruitful work could they do for the company during the notice period after resigning within a week? Sometimes, management may not have sufficient work to assign to a person who has resigned. Management generally believes that after resignation, a person's output may not be as high as before. It is within management's prerogative not to share their trade/business secrets with the resigned person any further.
A substantial amount is spent by the company on engaging a person. In a scenario where an individual resigns just after a week, and the management simply relieves them while waiving off the notice period and paying all dues for the worked days, I believe the management has acted appropriately. As mentioned earlier, management has the right to waive off the notice period, even from the employee's side. Without full work commitment, no management would be willing to pay a salary. Management is always cautious, prioritizing their interests/profits first and then those of the employees.
My frankness may not be taken otherwise.
Thanks,
V K Gupta"
From India, Panipat
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The divergent views offered by all the learned friends have indeed 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 favor of the poster, the strong view of Mr. Rajans68 in favor of the poster based on the terms of the 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) compelled 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 fulfillment 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 a 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
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"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 fulfillment 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 a 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
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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
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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
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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
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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
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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
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When they stopped you from working, they have to provide a letter showing the period of service and when you resigned.
From India, Ahmedabad
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Learned HR experts and members have greatly contributed to discussing the prevailing practice followed by some companies.
The normal rule/practice followed by some companies is a one-month notice period for officers and a two-month notice period for managers and above. However, some companies with Certified Standing Orders (SO) unexpectedly relieve the resigning employee before the due date of relief. This action occurs when the company perceives that the employee has resigned and will no longer show interest in work, leading to problems for the affected employees. This practice is more common in situations where there is a strained relationship with the particular employee.
Interestingly, some companies include a clause in their SO stating that the company reserves the right to terminate employment before the due date, which may be due to the lack of clear rules on the matter according to the Labor Commissioner.
The arbitrariness in the relieving process puts the employee under strain, affecting the good relationship built over time, especially on the verge of departure. Instead of ending the employment relationship on a positive note with a farewell, many relieving cases now conclude with arbitrariness.
I hope and request that more knowledgeable members shed light on this matter.
Email: c.neyimkhan@gmail.com
HR Consultant
Hospet-Bengaluru
1.10.16
From India, Mumbai
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The normal rule/practice followed by some companies is a one-month notice period for officers and a two-month notice period for managers and above. However, some companies with Certified Standing Orders (SO) unexpectedly relieve the resigning employee before the due date of relief. This action occurs when the company perceives that the employee has resigned and will no longer show interest in work, leading to problems for the affected employees. This practice is more common in situations where there is a strained relationship with the particular employee.
Interestingly, some companies include a clause in their SO stating that the company reserves the right to terminate employment before the due date, which may be due to the lack of clear rules on the matter according to the Labor Commissioner.
The arbitrariness in the relieving process puts the employee under strain, affecting the good relationship built over time, especially on the verge of departure. Instead of ending the employment relationship on a positive note with a farewell, many relieving cases now conclude with arbitrariness.
I hope and request that more knowledgeable members shed light on this matter.
Email: c.neyimkhan@gmail.com
HR Consultant
Hospet-Bengaluru
1.10.16
From India, Mumbai
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Using management jargon with negative connotations amidst a situation wherein one is reluctant to admit their mistake has become a fashion nowadays in the higher echelons of management. Softer aspects of employment include the contract of service as well as total compliance on the part of both the employer and the employee.
In the case of the questioner, the contract of employment comes to an end through their prospective resignation only, not due to discharge or dismissal by the employer on grounds of laxity or other softer aspects such as unbecoming conduct or violation of the code of conduct by the questioner. If the employer had found any such negativity in the employee's performance, what prevented them from rejecting the letter of prospective resignation and initiating disciplinary action instead of accepting it immediately?
It is, therefore, left to the discretion of the questioner whether to legally challenge their employer or to simply leave based on the principle of "enough is enough."
From India, Salem
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In the case of the questioner, the contract of employment comes to an end through their prospective resignation only, not due to discharge or dismissal by the employer on grounds of laxity or other softer aspects such as unbecoming conduct or violation of the code of conduct by the questioner. If the employer had found any such negativity in the employee's performance, what prevented them from rejecting the letter of prospective resignation and initiating disciplinary action instead of accepting it immediately?
It is, therefore, left to the discretion of the questioner whether to legally challenge their employer or to simply leave based on the principle of "enough is enough."
From India, Salem
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Learned HR experts/members have greatly contributed to this prevailing practice followed by some companies.
The normal rule/practice followed by some companies: one month notice period for officers and 2 months for managers and above. Even then, some companies with certified standing orders may suddenly relieve the resigning employee before the due date of relief when the company feels that, as the individual has already resigned, they may not take interest in work and thus decide to remove them before the due date arbitrarily, leading to problems for the affected employees. This practice is more common in situations where there is a strained relationship with the particular employee.
Strangely, some companies include a clause in the standing orders that reserves the right for the company to terminate the employment of a particular person before the due date, and the Labour Commissioner certifies it, possibly due to a lack of clear rules on the matter.
In any case, there is arbitrariness in relieving the employee, putting strain on the good relationship built over a period, just on the eve of departure.
"All is well that ends well;" this is now missing in many relieving cases. Instead of concluding the relationship with a happy note and a farewell, it now ends with arbitrariness.
I hope and request that more knowledgeable members will shed light on this matter.
HR Consultant
Hospet-Bengaluru, 1.10.16
From India, Mumbai
Acknowledge(0)Amend(0)
The normal rule/practice followed by some companies: one month notice period for officers and 2 months for managers and above. Even then, some companies with certified standing orders may suddenly relieve the resigning employee before the due date of relief when the company feels that, as the individual has already resigned, they may not take interest in work and thus decide to remove them before the due date arbitrarily, leading to problems for the affected employees. This practice is more common in situations where there is a strained relationship with the particular employee.
Strangely, some companies include a clause in the standing orders that reserves the right for the company to terminate the employment of a particular person before the due date, and the Labour Commissioner certifies it, possibly due to a lack of clear rules on the matter.
In any case, there is arbitrariness in relieving the employee, putting strain on the good relationship built over a period, just on the eve of departure.
"All is well that ends well;" this is now missing in many relieving cases. Instead of concluding the relationship with a happy note and a farewell, it now ends with arbitrariness.
I hope and request that more knowledgeable members will shed light on this matter.
HR Consultant
Hospet-Bengaluru, 1.10.16
From India, Mumbai
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