Notice Period And The Issues Around It In India

Generally, the employer and employee relationship is based on the terms of contract, which they make at the time of joining. All the terms and conditions shall be applied to both such parties and any person who breaches such contract shall be liable to pay for damages. Whenever a person gets out from an employment, the term notice period comes to play an role. The notice period is a period of time between the receipt of notice of resignation and the relieving day of the employee. In general, the notice period can be applicable to two persons either to the employer by an employee, in case an employee wants to get relieve from his work Or to an employee by the employer, if he wants to terminate employee’s employment at the time of winding up of his company. In this article, I would like to discuss about the employee’s notice period, issues faced by them and the relevant context to this.

NEED AND MINIMAL REQUIREMENT OF NOTICE PERIOD: 

The purpose of notice period is to help out an employee to find an alternative job within such period and also helps the employer to appoint a new employee in such place and to avoid loss of business. The same was held in A.P. Flying Club V. S.C. Saxena. During such period, the employee has to complete all his pending works. Also, the employee has to provide knowledge transfer to their junior workers. Incase if the notice period was not served, it would cause inconvenience to both the employer as well as employee. Keeping these consequences in mind, the notice period clause was added to the contract agreement. There is no specific period of notice is mentioned in law. However, the notice period can be fixed by an employer and the same can be mentioned as a clause in their contract agreement . In Chairman and Managing Director, India Airlines Vs. Binod Kumar Sinha and Ors. It was held that the duration of such period will be based upon exigencies, necessities and essentiality of the service concerned. Generally, a 30- 90 days notice period can be issued. But it cannot be same for all employment. It varies from industries to industries and companies to companies. For example, workmen (persons who are defined under the Industrial Disputes Act,1947) thirty days notice period will be provided. In case of a manufacturing unit, plantation or mine with 100 or more workmen, three months notice will be provided. The employee has to comply with such notice period which is mentioned in their contract agreement. However, he is entitled to minimum period of notice according to Section 86 of Employment Rights Act,1996

. The minimum period of notice is explained as follows:

3. If an employee worked between one month and two years, he is entitled to get one week’s notice;
4. If an employee worked between two years and twelve years, he is entitled to get one week’s notice period for each year he worked;
5. If an employee works for more than twelve years, he must be provided with minimum twelve week’s notice period.

ISSUES FACED AN BY EMPLOYEE:

The employee has to work for the company/industry during his notice period and he will be paid as normal. Eventhough, he is provided with the pay, there are some issues faced by an employee during such period.

1. NO RIGHT TO MAKE THE EMPLOYEE TO STAY: The first issue faced by an IT employee is, they need to work for the company even though they want to resign from their There is a mandate to serve 90 days notice period to an employee in almost all IT companies in India. Thus, an employee needs to work for three months even after he send his resignation. When an employee sends his resignation, the company has no right to make him stay for a long period, unless if there is any disciplinary action pending against such employee. In Sanjay Jain Vs. National aviation co. of India Ltd, the Supreme Court gave a verdict that acceptance of resignation is not required incase 30 days notice period is provided by an employee. Also, held that Resignation is a right of employee.
2. OVER-BURDENED WORK: Every employee will be assigned to do certain tasks in companies. They ought to complete within the time given by the employer. It is seen that the employee were supposed to work for more hours and subjected to more work during the notice period. There is no personal motive behind this in general, but still the employer wants to get all his work done by time before the employee leaves from the It is obvious that the new employee will come to such position, but still it takes some time for the new employee to get settled and practiced in such work. So that some work may get delay. However, an employee should not provide with over burdened work.
3. NON-PAYMENT OF WAGES AND ALLOWANCES: The employee should be provided with full wages as well as allowances during the notice period. But some employee’s were not provided with full wages and were not entitled to certain allowances during such period or they will hold the employee’s salary. One of the necessity for serving notice period is to provide a particular time to an employee to find an alternative job. Till he finds an another job, he needs salary to run his life. So, if he is not provided with the proper pay, it would be prejudice to the emplo yee. Also Delhi High Court held that the employee can take leave during notice period unless there is a specific clause which bars him from taking leave. The employee must be provided with wages along with leave. Even at present, the Government has ordered to provide salary to all employees, who were terminated by the employer due to covid- 19 crisis.
4. NON-SUFFICIENT NOTICE PERIOD: Three month notice period is not provided in all sectors. In some companies, they only provide one week notice period. One week is not a proper time to get resigned from a job. There are some process and works need to get complete by the employee before he leaves from his To complete such process, this one week cannot be sufficient and the company will not allow him to stay for extra days. This is an another problem, where the employee was subjected to depression and workload. Thus, minimum one month notice period must be provided to all employees.

REMEDIES: 

There is no explicit provision which talk about these aspects. However, this can be dealt by mixed of laws, that includes: Labor law- Industrial Disputes Act, 1947 and Industrial Employment(Standing Orders) act,1946, Contract Law, Employment Rights Act,1996, The Minimum Notice and Terms of Employment Act,1973 etc. Whenever an issue arises, the affected party can go and rise a petition against such illegality. Similarly, an employee can go and approach the court, for non-payment of salary, over burden of work, or any kind of misbehavior towards such employee. These remedies will be applicable even to employer, if the employee was not working during such notice period and for any kind of disciplinary action. Compensation will be provided for any such breach. Also, if an employee fails to serve the notice period, it amounts to breach of contract. The employee’s who are all come under the Industrial Disputes act can go before labor court for seeking remedy. In case of employee’s, working under companies shall file a case before the civil court. Appeals shall lie before the High Court of respective states and then before the Supreme Court.

Thus, I want to conclude by saying that Termination of employment is an important process, without which an employee cannot leave from his job and move to another job. No such employee shall be subjected to any kind of issues at the time of relieving from his job. Thus, it is very much important to serve the notice to an outgoing employee. So every employers should include a clause for notice period in the contract agreement. The notice period must be clearly mentioned and the same must be communicated to employee also. However, the employer is not obliged to serve notice to his employee, in case of misconduct. The employee must be treated in good manner and shall not suffer from any inequalities as RIGHT TO WORK is a fundamental right to all citizens.