Dear Seniors
I wouldlike to know whether notice period is 1 monthor 3 months. As company wherei work has laid down notice period of 3 months. Is it correct as as far as myknowledge is concerned itshould be one month...
pls advise.
if any body do not follow this what will be the action taken agains that employee??....
Awaiting your suggestions.
Regards
Rajendra
From India, Indore
2I wouldlike to know whether notice period is 1 monthor 3 months. As company wherei work has laid down notice period of 3 months. Is it correct as as far as myknowledge is concerned itshould be one month...
pls advise.
if any body do not follow this what will be the action taken agains that employee??....
Awaiting your suggestions.
Regards
Rajendra
From India, Indore
though there is no hard and fast rule to determine the periodicity of notice, it should be reasonable and not unduly long and depends up on the fact whether an employee is under probation or under confirmed service. For example, a notice period cannot be six months when probation itself is for six months.Thus it normally it ranges betwen 15 days(during probation) to two or three months for a confirmed employee.
B.Saikumar
HR & Labour Law advisor
Mumbai
From India, Mumbai
B.Saikumar
HR & Labour Law advisor
Mumbai
From India, Mumbai
In respect of an employee coming under the definition of workman, notice which the employer should serve on the employee to terminate his service has been fixed under the Industrial Disputes Act. Accordingly it is one month for an establishment employing less than 100 employees and three months for an establishment employing more than 100 employees. At the same time, if the company has its certified Standing Orders and provision has been included in the Standing Orders about notice period that will be applicable.
Now, since the ID Act has not made any obligation on the part of employee to give notice or pay salary in lieu of notice period in case he leaves, any dispute regarding non payment of notice pay by an employee will be a matter of dispute. Even a provision in this regard in the certified Standing Orders will be void as it circumvents the ID Act, the matter will have to be looked into with reference to court orders in this regard. As of now, we don't have a judgement which directs the workman to pay compensation or notice pay except on the issues specifically linked to training costs.
However, nothing above mentioned will be applicable to one who is employed in a managerial capacity. Therefore, for an employee having supervisory or managerial powers, the contract of employment will decide whether he has to pay notice pay or not.
Regards,
Madhu.T.K
From India, Kannur
Now, since the ID Act has not made any obligation on the part of employee to give notice or pay salary in lieu of notice period in case he leaves, any dispute regarding non payment of notice pay by an employee will be a matter of dispute. Even a provision in this regard in the certified Standing Orders will be void as it circumvents the ID Act, the matter will have to be looked into with reference to court orders in this regard. As of now, we don't have a judgement which directs the workman to pay compensation or notice pay except on the issues specifically linked to training costs.
However, nothing above mentioned will be applicable to one who is employed in a managerial capacity. Therefore, for an employee having supervisory or managerial powers, the contract of employment will decide whether he has to pay notice pay or not.
Regards,
Madhu.T.K
From India, Kannur
Dear Madhuji
Thanks foryour quick reply.
since our probation is for six months is it justifiable to have threemonths notice period as generally eny prospective employer do not wait for 90 days?
in that case what to do then...
what are the implication if w edont follow this three monthys notice period...
Pls advise
regards
Rajendra
From India, Indore
Thanks foryour quick reply.
since our probation is for six months is it justifiable to have threemonths notice period as generally eny prospective employer do not wait for 90 days?
in that case what to do then...
what are the implication if w edont follow this three monthys notice period...
Pls advise
regards
Rajendra
From India, Indore
Hi!
Notice period is normally defined in the appointment letter and it the co-related with the model standing order or certified standing order.
The notice period may differ during the probation period and after confirmation as per the rules specified in the model standing order or certified standing order
Sharad Choudhary
Viraj Management Consultant
From India, Bhopal
Notice period is normally defined in the appointment letter and it the co-related with the model standing order or certified standing order.
The notice period may differ during the probation period and after confirmation as per the rules specified in the model standing order or certified standing order
Sharad Choudhary
Viraj Management Consultant
From India, Bhopal
Dear Madhu,
If the employments contract is of three months, is it reasonable? and hence taking advantages of employees seeking employment.
If any one wants to leave before three months, it will not be a easy task. It is just a exploitation of employee who wants to join other organisation for better prospectus. And no employer pays notice period of three months.
Jimmii
From India, Delhi
If the employments contract is of three months, is it reasonable? and hence taking advantages of employees seeking employment.
If any one wants to leave before three months, it will not be a easy task. It is just a exploitation of employee who wants to join other organisation for better prospectus. And no employer pays notice period of three months.
Jimmii
From India, Delhi
I think I have already pointed out that the matter of notice depends upon the category of employees and in case of an employee in the managerial capacity, it will be regulated purely on the basis of the terms of appointment order. If the appointment order states that your notice period is three months, you have the option of not accepting it. Then the question will not arise as to its legality. Of course, it depends on the HR policy of the company also. No company, I believe,will be able to retain good manpower unless it has a good HR policy and good HR persons to enforce it. In my opinion, if every thing is transparent and is made clear to the candidate before he accepts the offer, no confusion would come at the time or after joining. It will be highly disappointing for an employee to come to know at a later stage of his joining or on the date of his joining that there exists such conditions and in such cases it will be HR who will be blamed for not communicating or disclosing the details before his joining or before his putting his papers in the previous company!
Regards,
Madhu.T.K
From India, Kannur
Regards,
Madhu.T.K
From India, Kannur
Dear Rajendra,
Asper Industrial Employment (Standing Order) Rules, 1959 Notice period should be” One Month” but if it shall be mentioned on Appointment letter “Three Month” Notice period, than you should either serve three month notice period or pay basic salary for three months
With Thanks & Regards
Jignesh Sisodiya
From India, Ahmadabad
Asper Industrial Employment (Standing Order) Rules, 1959 Notice period should be” One Month” but if it shall be mentioned on Appointment letter “Three Month” Notice period, than you should either serve three month notice period or pay basic salary for three months
With Thanks & Regards
Jignesh Sisodiya
From India, Ahmadabad
Dear member
I have gone through various responses to the query raised by Mr.Rajendra.The issue needs to be understood in proper perspective.
I observe that a distinction has been drawn between the termination of a workman and that of a manager by stating that an employer is required to give one month notice or three months notice for terminating the services of a workman depending on whether the employer is employing 100 workmen or less than that. I would like to state that this kind of obligation with regard to the notice period is imposed on the employer when the termination amounts to retrenchment within the meaning of sec.2(oo) read with sec.25-F and sec. 25-N of the Industrial disputes Act .Howevr even this does not reflect true legal position.It is not necessary that in every case of retrenchment, an employer is required to give one month notice or three months notice as the case may be. An employer has to give such notice only where a workman has put in one year of continuous service but he can terminate the service of a workman even without notice, if he did not put in one year of service or 240 days of service in the 12 months preceding his termination.
Besides an employer cannot pick and choose a workman to retrench him from service. He has to follow the principle of "last come -first go" under Sec.25-G. It means if a particular workaman is not contributing to the organisation, he cannot terminate him if he is a senior to others. This apart, he has to re-employ him under sec.25-H after retrenchment whenever there ia vacancy in future. Thus termination by way of retrenchment is a package deal. Does it mean that the employer's hands are tied by Sec.2(oo), Sec.25-H, 25-N, 25-G and 25-H so that he cannot terminate a workman except as provided under the above sections.It is a settled position in law that every termination is not retrenchment, if effected for bonafide reasons like lack of performance during probation etc. In that event how the employer can terminate his services? since the rights and obligations of the employer and the employee, in order to be enforceable, cannot operate in vacume, there should be some law or some provison that governs this relationship.So far as law is concerned, it governs terminations that amount to retrenchment. What about terminations that do not fall within the ambit of retrenchment? Therefore such terminations fall under the realm of contract of service enforceable under the Contract Act 1872, either in the form of letter of appointment or standing orders or service rules, where both the employer and the employee including a workaman can agree as to how to terminate their contract of service.
Thus For example Model Standing Order No. 13 under Schedule I appended to Centarl rules 1946 framed under the Industrial Employment (Standing orders) Act 1946 states that the service of a monthly rated workman can be terminated by giving one month notice nad that of any other workman can be terminated by giving two weeks notice. The notice period stipulated under the said standing order is not opposed to the law of retrenchment under the Industrial Disputes Act since it does not envisage any termination by way of retrenchment.
Therefore terminations in accordance with standing orders or letters of appointment do not amount to retrenchment, if effected for bonafide reasons but not as camouflage for punishing an employee for a bad conduct.This is the thin line of distinction which an employer is cautious about.
Thus the employer and the employee even if he is a workman can agree up on the duration of notice period for terminating the contract of service by each of them.
It is in this context, in my view, the query of Mr.rajendra needs to be answered.
B.Saikumar
Hr & Labour Law Advisor
Mumbai
From India, Mumbai
I have gone through various responses to the query raised by Mr.Rajendra.The issue needs to be understood in proper perspective.
I observe that a distinction has been drawn between the termination of a workman and that of a manager by stating that an employer is required to give one month notice or three months notice for terminating the services of a workman depending on whether the employer is employing 100 workmen or less than that. I would like to state that this kind of obligation with regard to the notice period is imposed on the employer when the termination amounts to retrenchment within the meaning of sec.2(oo) read with sec.25-F and sec. 25-N of the Industrial disputes Act .Howevr even this does not reflect true legal position.It is not necessary that in every case of retrenchment, an employer is required to give one month notice or three months notice as the case may be. An employer has to give such notice only where a workman has put in one year of continuous service but he can terminate the service of a workman even without notice, if he did not put in one year of service or 240 days of service in the 12 months preceding his termination.
Besides an employer cannot pick and choose a workman to retrench him from service. He has to follow the principle of "last come -first go" under Sec.25-G. It means if a particular workaman is not contributing to the organisation, he cannot terminate him if he is a senior to others. This apart, he has to re-employ him under sec.25-H after retrenchment whenever there ia vacancy in future. Thus termination by way of retrenchment is a package deal. Does it mean that the employer's hands are tied by Sec.2(oo), Sec.25-H, 25-N, 25-G and 25-H so that he cannot terminate a workman except as provided under the above sections.It is a settled position in law that every termination is not retrenchment, if effected for bonafide reasons like lack of performance during probation etc. In that event how the employer can terminate his services? since the rights and obligations of the employer and the employee, in order to be enforceable, cannot operate in vacume, there should be some law or some provison that governs this relationship.So far as law is concerned, it governs terminations that amount to retrenchment. What about terminations that do not fall within the ambit of retrenchment? Therefore such terminations fall under the realm of contract of service enforceable under the Contract Act 1872, either in the form of letter of appointment or standing orders or service rules, where both the employer and the employee including a workaman can agree as to how to terminate their contract of service.
Thus For example Model Standing Order No. 13 under Schedule I appended to Centarl rules 1946 framed under the Industrial Employment (Standing orders) Act 1946 states that the service of a monthly rated workman can be terminated by giving one month notice nad that of any other workman can be terminated by giving two weeks notice. The notice period stipulated under the said standing order is not opposed to the law of retrenchment under the Industrial Disputes Act since it does not envisage any termination by way of retrenchment.
Therefore terminations in accordance with standing orders or letters of appointment do not amount to retrenchment, if effected for bonafide reasons but not as camouflage for punishing an employee for a bad conduct.This is the thin line of distinction which an employer is cautious about.
Thus the employer and the employee even if he is a workman can agree up on the duration of notice period for terminating the contract of service by each of them.
It is in this context, in my view, the query of Mr.rajendra needs to be answered.
B.Saikumar
Hr & Labour Law Advisor
Mumbai
From India, Mumbai
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