Dispute over NP and alleged Damages After Resignation

Dear Client,
The relationship between an employer and employee is governed and regulated by the terms of offer/appointment letter and the prevailing HR policies of the company and it is the duty/responsibility of an employee to abide by the same which got overriding effect than one's personal issues. A trainee or probationer is not classified as "worker/employee" if the engagement is primarily for learning rather than performing core operational duties and the standing rules or regulations of the establishment do not apply to the trainee/probationer unless it is specifically mentioned in the offer/appointment letter specifying that even on resignation during the probation/training period, he or she has to serve a notice period or pay in lieu of notice period and for non-compliance of such terms of contract of employment, the employer/MNC can take legal action for breach of contract even against a tramee. However, such an action can be challanged invoking Section 27 of the Indian Contract Act,1872, that states that any terms and conditions of an agreement/contract that directly or indirectly compel the employee to serve the employer or restrict them from joining a competitor or other employer are not legally valid. Regardless of character of employment, either permanent or temporary or probationer/trainee has the right to resign from employment, even if he/she has agreed to serve the employer for a specific period. If the employer can prove that the employee is joining the competitor to disclose the trade secret, then the court may issue an injunction order restricting the employee from joining the competitor. Further, Section 73 of the Act makes provision for un-liquidated damages (not stipulated in a contract), Section 74 deals with liquidated damages (stipulated in a contract), and no compensation is attracted for mere breach of contract u/s.73 and Section 74 of the Act unless such breach resulted in an actual loss or damage to the opposite party employer. So, in the prevailing situation, on receipt of illegal and unethical demand from the company for payment in lieu of notice period, serving a legal notice, you can approach the concerned Labour Commissioner or the Inspector, Shops and Establishments, at the case may be, seeking their intervention in to the unfair labour practice adopted by the employer to resolve the matter. Further, SAMADHAN Portal was launched by the Ministry of Labour and Employment to facilitate the filing of industrial disputes by the workmen, employers and trade unions under the Industrial Disputes Act, 1947. The online portal has a user-friendly interface and has enhanced transparency and efficiency of grievance resolution for all stakeholders. The workmen/trade unions/management can file their disputes and claims by logging into the portal through the UMANG app and also by visiting the nearest Common Services Centres. If required, consult or hire an Advocate specializing in service or labour laws to navigate the issue in the right way.