Dear Seniors,
I would like to seek your expert opinion on the following:
a) Are appointment letter clauses enforceable in a court of law?
b) Can termination based solely on the employer's discretion be justified? If not, what recourse does an employee have?
c) If an employee does not join after accepting an offer letter or even an appointment letter, what actions can be taken?
Regards,
Parminder
From India, Chandigarh
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2I would like to seek your expert opinion on the following:
a) Are appointment letter clauses enforceable in a court of law?
b) Can termination based solely on the employer's discretion be justified? If not, what recourse does an employee have?
c) If an employee does not join after accepting an offer letter or even an appointment letter, what actions can be taken?
Regards,
Parminder
From India, Chandigarh
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Hi,
I am not an expert, but I will try to answer your questions. Termination on the mere ground of employer discretion cannot be justified. The termination can be challenged in the labor court. If the employer does not have evidence to prove or justify the termination, the termination will be considered illegal.
If the appointment letter/agreement is duly signed by the employer and accepted by the employee, it is enforceable in the court of law. An offer is given before joining the duty. In the offer letter, mostly the valid date of the offer is mentioned. If the employee does not join, it is his wish, and nothing needs to be done.
Regards,
Rajeev Dixit
From India, Bangalore
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I am not an expert, but I will try to answer your questions. Termination on the mere ground of employer discretion cannot be justified. The termination can be challenged in the labor court. If the employer does not have evidence to prove or justify the termination, the termination will be considered illegal.
If the appointment letter/agreement is duly signed by the employer and accepted by the employee, it is enforceable in the court of law. An offer is given before joining the duty. In the offer letter, mostly the valid date of the offer is mentioned. If the employee does not join, it is his wish, and nothing needs to be done.
Regards,
Rajeev Dixit
From India, Bangalore
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An appointment letter, the clauses and conditions of which, if accepted by a candidate, is legally tenable. The moment you sign and hand over the duplicate copy of the letter, mentioning that you agree to the terms and conditions, you are a party to the bilateral agreement! Whether the clauses are in accordance with the law or not has to be debated, depending upon the clause itself. Without knowing the conditions, we cannot comment on it here and now.
From India, Bengaluru
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From India, Bengaluru
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Hi,
An appointment letter will not hold any legal value; it is just a mutual understanding between the employee and the company. No agreements are allowed between the employee and the company in terms of employment, as per the abolition on the bond/contract employee. The employer has to treat and work with their employees in accordance with the law of the nation.
Regards.
From India, Bangalore
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An appointment letter will not hold any legal value; it is just a mutual understanding between the employee and the company. No agreements are allowed between the employee and the company in terms of employment, as per the abolition on the bond/contract employee. The employer has to treat and work with their employees in accordance with the law of the nation.
Regards.
From India, Bangalore
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Appointment letter accepted by you is a contract between you and your employer. If it contravenes any law, it is superseded by the legal provisions to that effect.
There are legal provisions protecting the category of employees who fall under the category of workmen. This clause is superseded by those provisions in their case.
In the case of employees outside the purview of the definition of workmen, the contract prevails. Generally, the appointment letter has a provision of notice period. The employer can terminate the services without assigning any reason by giving notice as per the appointment letter, much the same way as you can resign by giving one month's notice without assigning any reason. In the case of non-workmen, parties are treated equally as per contract.
B R Grover
From India, Delhi
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There are legal provisions protecting the category of employees who fall under the category of workmen. This clause is superseded by those provisions in their case.
In the case of employees outside the purview of the definition of workmen, the contract prevails. Generally, the appointment letter has a provision of notice period. The employer can terminate the services without assigning any reason by giving notice as per the appointment letter, much the same way as you can resign by giving one month's notice without assigning any reason. In the case of non-workmen, parties are treated equally as per contract.
B R Grover
From India, Delhi
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Dear Sir,
Thank you. Please advise if an employee coming in or out of the preview of workmen does not give one month notice before leaving the company, can we legally hold his salary as he has signed an appointment letter which includes a clause of a one-month notice period.
Regards,
Parminder Singh
From India, Chandigarh
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Thank you. Please advise if an employee coming in or out of the preview of workmen does not give one month notice before leaving the company, can we legally hold his salary as he has signed an appointment letter which includes a clause of a one-month notice period.
Regards,
Parminder Singh
From India, Chandigarh
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Hi,
An appointment letter is the terms and conditions agreed upon by and between the employer and employee, referred to as the employment contract. The basic two elements involved are offer and acceptance; where offer and acceptance together form the contract. However, if any clause(s) are contrary to provisions made under the law, the contract will be void.
In simpler terms:
Reply to your query:
(a) Yes, subject to clauses within the framework of applicable laws.
Query (b): Normally, equal opportunity is given to the employee, meaning the employee can also give notice of termination as per the notice period mentioned in the Appointment letter.
Query (c): If an employee does not join even after accepting the offer letter or appointment letter, you cannot take any legal action since he is not in effective employment.
Attribution: https://www.citehr.com/453318-appoin...#ixzz2Mfyy8UJ4
Attribution: https://www.citehr.com/453318-appoin...#ixzz2MfyBjirH
Attribution: https://www.citehr.com/453318-appoin...#ixzz2MfxhWMgq
From India, Pune
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An appointment letter is the terms and conditions agreed upon by and between the employer and employee, referred to as the employment contract. The basic two elements involved are offer and acceptance; where offer and acceptance together form the contract. However, if any clause(s) are contrary to provisions made under the law, the contract will be void.
In simpler terms:
Reply to your query:
(a) Yes, subject to clauses within the framework of applicable laws.
Query (b): Normally, equal opportunity is given to the employee, meaning the employee can also give notice of termination as per the notice period mentioned in the Appointment letter.
Query (c): If an employee does not join even after accepting the offer letter or appointment letter, you cannot take any legal action since he is not in effective employment.
Attribution: https://www.citehr.com/453318-appoin...#ixzz2Mfyy8UJ4
Attribution: https://www.citehr.com/453318-appoin...#ixzz2MfyBjirH
Attribution: https://www.citehr.com/453318-appoin...#ixzz2MfxhWMgq
From India, Pune
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There are three questions asked, and Mr. Grover has answered most of them well. For more clarity, I am elaborating here.
There are two categories of employees in any establishment in India:
1. Workmen as defined under the Industrial Disputes Act.
2. Other employees who are not covered under this definition (generally termed as management staff/supervisory staff, etc.).
1. Workmen as defined under the ID Act are covered by the ID Act, Standing Orders Act, and the appointment letter.
2. Other employees will be covered by the terms of appointment and other circulars issued in the organization and are guided by the Indian Contract Act.
Now let us examine all these three questions.
A) Are appointment letter clauses enforceable in a court of law?
As explained by Mr. Grover, appointment letter clauses are enforceable in a court of law. In the case of workmen, it will be examined by a Labor Court, and the process to approach the Labor Court is through conciliation. In the case of other employees, the remedy has to be obtained through civil suits under the Contract Act.
B) Termination on the mere ground of employer discretion can be justified, and if not, what can an employee do?
Termination at the discretion is not legally correct. Termination on grounds of misconduct must be preceded by an enquiry, and principles of natural justice must have been complied with. Termination at the end of probation is legally correct both in respect of workmen and management staff. If a workman is not satisfied with termination, they can approach the conciliation officer under Sec 2(A) of the ID Act and through this process can approach the Labor Court. Other employees not covered under the ID Act can file a suit in the concerned Civil Court. Civil suits take a longer duration, but there is no other option available. Employees of Public Sector undertakings can approach High Courts by a writ, but this recourse is not available for other employees working in the private sector.
C) When an employee does not join after accepting an offer letter or even an appointment letter, can we do anything?
An offer letter and acceptance of an offer technically complete a contract. Unfortunately, most companies mention, "If you do not join on or before (date), this offer stands withdrawn." If this is the clause, then management cannot have any recourse through legal means as the clause clearly states that non-compliance will only end in management withdrawing the offer. Alternatively, if management introduces a new clause specifying certain reasonable financial losses, then approaching the court is possible. However, no management generally would like to resort to such clauses as it will not attract new talents even to appear for an interview. Legal clauses do not always help.
The original poster has also raised another question:
Please advise if an employee coming under the purview of workmen does not give one month's notice before leaving the company, can we legally hold his salary as he has signed an appointment letter which has a clause of one month's notice period.
Holding notice period salary is legally correct for all employees. In respect of workmen covered under the ID Act, companies' certified standing orders will be applicable more than the offer letter/appointment letter. If there are certified Standing Orders, then Model Standing Orders will be applicable, and most of the model standing orders provide for a 15-day notice period. However, kindly check the model standing orders in your State. For other employees, whatever is specified in the offer letter/appointment letter/or any subsequent circular which has been duly acknowledged by the employees will be applicable, and it is legal to hold/deduct notice period salary from final dues payable.
From India, Chennai
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There are two categories of employees in any establishment in India:
1. Workmen as defined under the Industrial Disputes Act.
2. Other employees who are not covered under this definition (generally termed as management staff/supervisory staff, etc.).
1. Workmen as defined under the ID Act are covered by the ID Act, Standing Orders Act, and the appointment letter.
2. Other employees will be covered by the terms of appointment and other circulars issued in the organization and are guided by the Indian Contract Act.
Now let us examine all these three questions.
A) Are appointment letter clauses enforceable in a court of law?
As explained by Mr. Grover, appointment letter clauses are enforceable in a court of law. In the case of workmen, it will be examined by a Labor Court, and the process to approach the Labor Court is through conciliation. In the case of other employees, the remedy has to be obtained through civil suits under the Contract Act.
B) Termination on the mere ground of employer discretion can be justified, and if not, what can an employee do?
Termination at the discretion is not legally correct. Termination on grounds of misconduct must be preceded by an enquiry, and principles of natural justice must have been complied with. Termination at the end of probation is legally correct both in respect of workmen and management staff. If a workman is not satisfied with termination, they can approach the conciliation officer under Sec 2(A) of the ID Act and through this process can approach the Labor Court. Other employees not covered under the ID Act can file a suit in the concerned Civil Court. Civil suits take a longer duration, but there is no other option available. Employees of Public Sector undertakings can approach High Courts by a writ, but this recourse is not available for other employees working in the private sector.
C) When an employee does not join after accepting an offer letter or even an appointment letter, can we do anything?
An offer letter and acceptance of an offer technically complete a contract. Unfortunately, most companies mention, "If you do not join on or before (date), this offer stands withdrawn." If this is the clause, then management cannot have any recourse through legal means as the clause clearly states that non-compliance will only end in management withdrawing the offer. Alternatively, if management introduces a new clause specifying certain reasonable financial losses, then approaching the court is possible. However, no management generally would like to resort to such clauses as it will not attract new talents even to appear for an interview. Legal clauses do not always help.
The original poster has also raised another question:
Please advise if an employee coming under the purview of workmen does not give one month's notice before leaving the company, can we legally hold his salary as he has signed an appointment letter which has a clause of one month's notice period.
Holding notice period salary is legally correct for all employees. In respect of workmen covered under the ID Act, companies' certified standing orders will be applicable more than the offer letter/appointment letter. If there are certified Standing Orders, then Model Standing Orders will be applicable, and most of the model standing orders provide for a 15-day notice period. However, kindly check the model standing orders in your State. For other employees, whatever is specified in the offer letter/appointment letter/or any subsequent circular which has been duly acknowledged by the employees will be applicable, and it is legal to hold/deduct notice period salary from final dues payable.
From India, Chennai
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Dear Parminder
Yes, clauses mentioned on the company’s letter head -appointment letter can be enforceable in court of Law?
Secondly: - Termination clauses are mentioned in the appointment letter any employee should aware of these clauses. Clauses are applicable on both employee and employer.
Thirdly:- If any employee do not join the job after the acceptance of offer letter then there is not punishment for him/ her.
With regards,
Meenu Singh
From India, New Delhi
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Yes, clauses mentioned on the company’s letter head -appointment letter can be enforceable in court of Law?
Secondly: - Termination clauses are mentioned in the appointment letter any employee should aware of these clauses. Clauses are applicable on both employee and employer.
Thirdly:- If any employee do not join the job after the acceptance of offer letter then there is not punishment for him/ her.
With regards,
Meenu Singh
From India, New Delhi
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