Is Notice recovery legally accepted
5 years ago
Dear sir,
As my family is in Mumbai n I have many financial problem I have to shift to Mumbai. On this way I got one offer in Mumbai and they wanted me to join with in 10 days time. In my current company I have 3 months notice period. I could able to convince my future company for one month notice period. My current company last day of my reliving they accepted my resignation and informed me that if I need reliving letter I need to pay two months full salary as recovery. As I have already existing financial stress I m really frustrated to pay this. N m wife also pregnant n need to look after everything. Kindly help me on this. What I can do at this moment.
Thanks and regards
Guruprasad
Deepak Yashwantrao Bade
Responded 5 years ago
Is notice period (3 months) legal in India?
It can be easily understood that the ambit and scope of section 23 of the Indian contract act 1872, is vast and therefore the applicability of its provisions is subject to scrutiny by the court of the consideration and object of an agreement and the agreement itself.
Therefore, in order to bring a case within the purview of section 23, it is necessary to show that the object of the agreement or consideration of the agreement or the agreement itself is unlawful.
I'll keep it short and simple:
Either party - employer or employee can terminate the contract by giving sufficient notice or compensating accordingly. In such a case, employer is bound to release the employee without any fuss, assuming that either of the above two conditions are met.
So, if your organization doesn't allow you to buyout the notice period, please feel free to knock on the doors of the Indian judiciary.
The following key issues should be highlighted:
• A 30 to 90-day notice period applies in order to terminate ‘workmen’ (as defined in the Industrial Disputes Act, 1947) – that is, employees whose role is not primarily supervisory, administrative or managerial) for convenience, with 15 days’ pay due for every year worked. In the case of manufacturing units, plantations and mines with 100 or more workmen, termination for convenience requires prior government approval; in other sectors, it requires only government notification.
• Termination for cause does not include non-performance – it includes only behaviour which qualifies as misconduct.
• The ‘last in, first out’ principle requires that the employer first terminate for convenience the last people to join the organisation in the same role. However, this requirement can be contracted out of. When hiring for the same role, workmen who were terminated for convenience should be given the opportunity to re-join the company.
Ambrose Leo
Responded 5 years ago
ROBERT D ROZARIO
Responded 5 years ago
(i) Negotiate with HR(present employer) and try to get the notice period reduced in lieu of payment for the days not served.
(ii) Negotiate with HR of the next company to delay the joining as present employer is not willing to reduce the notice period.
Put in your resignation serving 45 days notice and be prepared to return all the company properties or assets that are in your custody at the end of this period. If the company refuses to accept your resignation in person/writing send it to the company via email at the same time. The company should be ready to adjust the leave against the notice period if you have earned leaves accumulated.
If the new employer has no problems with your not getting a relieving letter or experience letter you can do the absconding. The best however is to serve notice to the number of days you can and advise the company the leaves accrued.
Note: There are no specific Labour Law as such on whether an Employee is supposed to give a notice period after resignation. It is an agreement entered by and between both Employee & Employer that each of them would give sufficient notice period after resignation or firing an employee subject to the conditions as written in the Employment offer.
Rajeev RJ
Responded 5 years ago
Regards
Rajeev
RJ Associates.