notice period
Sujoy choudhury
(Querist) 27 September 2016
This query is : Resolved
Hi..in my present job as per my app letter I am to be confirmed in writing on successful completion of probation.probation period was 1 yr or extendable.however it is now 1.5 yr and I have not received any letter or mail.I raised a query for confirmation letter and was replied that I need to complete online learning modules before I get it.as per app letter on resignation notice period was 45 days if not confirmed and 90 days if confirmed. I had submitted resignation with 45 days notice since I have not received confirmation intimation.but hr is telling me that I have to serve 90 days as it is my fault that I have not completed online learning modules. But on mail they r only asking me to serve 90 days without taking up my confirmation status..what should I do? Pls suggest
Kumar Doab
(Expert) 27 September 2016
Don't remain entangled with HR.
The emails are sent to your official email id personal email id?
Download copies as anytime it may be blocked.
It si personal matter and can be transacted from personal email id.
On the same email trail clarify your stand and cite clause number from appointment letter.
Kumar Doab
(Expert) 27 September 2016
While posting such queries, employee should always confirm the basic information e.g:
Whats is this establishment; Commercial,Industrial?
What is its line of business?
What is your designation and nature of duties?
Since how long you have been working and located in which state?
Do standing orders apply and are certified and applicable to your designation?
You are confirmed or under probation, as on date , as communicated in writing by the employer?
Has the notice period been inserted in appointment letter or corrigendum or subsequent communications and accepted by you?
Did the establishment supply salary slips?
Are you a member of employee's/trade unions?
Ms.Usha Kapoor
(Expert) 28 September 2016
Well put queries by Kumar Doab.
Rajendra K Goyal
(Expert) 28 September 2016
Send email through personal id. Send hard copy through registered Ad / speed post.
Agree with the advice from expert Kumar Doab.
Raj Kumar Makkad
(Expert) 28 September 2016
This is your repeated query and your similar query has already been replied by me. Refer to that reply.
Rajendra K Goyal
(Expert) 29 September 2016
Sir,
Repetition of query by author could not be traced.
Raj Kumar Makkad
(Expert) 29 September 2016
@Goyal Sir! I had attended such or similar query during last 2-3 days and only due to that I had mentioned it as repeated. Generally I don't trace out and give links.
Kumar Doab
(Expert) 29 September 2016
Not a repeated query by the author.
Kumar Doab
(Expert) 29 September 2016
@ Author,
Similar queries have been discussed in detail in Forum section and also in Experts section.
You may search in 'Search' option on bottom/middle of right hand side of this web page.
Raj Kumar Makkad
(Expert) 29 September 2016
If this is not repeated then it shall be better to either refer any earlier link of the discussed issue or to reply afresh.
Rajendra K Goyal
(Expert) 29 September 2016
Yes he can refer, if further guidance needed.
Sujoy choudhury
(Querist) 29 September 2016
Its a pvt sector bank and am working as Bm..as per app letter am supposed to b confirmed in writing but not received even after request saying that online learning modules has to b completed..as per app letter notice for probationer is 45 days and for confirmed employee is 90 days..my dispute with hr is regarding my status as by app letter since I am not confirmed in writing I am still a probationer..but hr verbally telling me that I am confirmed and have to serve notice of 90 days..in mail they don't reply to my query of confirmation status and only write "as discussed pls serve 90 days notice"
Guest
(Expert) 29 September 2016
Mr. Sujoy,
So, if they have clarified in writing, what is the hitch in submitting your resignation notice for 90 days, instead of wasting time in getting clarifications?
However, if you want to adopt legal recourse for stressing on your point of 45 days, you can do so, but should also be ready to wait for years together to resign in order to get court's decision.
Rajendra K Goyal
(Expert) 30 September 2016
Agree with the expert P.S. Dhingra ji.
Kumar Doab
(Expert) 30 September 2016
You have posted that:
---"but not received even after request saying that online learning modules has to b completed'
Here you have used the word: 'saying'!
It is verbal or in writing?
Otherwise also if the conditions attached with confirmation of service are not fulfilled then employer has rightly not confirmed the service.
There seems to be NO dispute on it.
Your employment was not confirmed hence you may cite the said clause...........
---"in mail they don't reply to my query of confirmation status and only write "as discussed pls serve 90 days notice"'
Ask them in writing under proper acknowledgment to state in writing what was discussed by them and what was replied by them and what was inserted by them in their internal records.............(if any : notes/notings/minutes.......in say personnel file) and why it can be written to you and shown to you!
Apply your own skills and try to resolve with HR.
Or exhaust the escalation matrix upto good offices of appointing authority/MD/Chairman, grievance redressal mechanism.
Download the evidence of appreciations/rewards/awards/NO stinkers-SCN etc etc............and copy of all communications......
Is their option of notice period in lieu of notice pay for both employer/employee?
Is it equitable?
Is this bank member of IBA?
Have you tried with members/office bearers of AIBOA ( that has members from Pvt. banks also).
Kumar Doab
(Expert) 30 September 2016
PRIVATE SECTOR BANK OFFICERS’ –FORUM
http://www.aiboa.org/circulars.htm
The office bearers can support and help.
Raj Kumar Makkad
(Expert) 30 September 2016
If you have decided to resign then better to obey the verdict of management to provide notice period of 90 days even though I am of the view that this is injustice on the part of management. This is your legal right to get your current status either of a confirmed or a probationer officer to which management is deliberately avoiding.
As litigation takes years and years and also creates bitterness at the place of posting with the management so better to follow whatever direction in the name of 'as discussed' is given to you.
Sujoy choudhury
(Querist) 01 October 2016
What can my employer do if I don't attend my duties after 45 day notice period?? I mean from the legal viewpoint
Guest
(Expert) 01 October 2016
Mr. Sujoy Choudhury,
Your latest query is quite a vague query. When no problem has yet arisen, where is the justification of your question for asking what your employer would do after 45 days, if you don't attend.
A pertinent question arises, do you believe that your employer would take the advice from the experts over this site to ask them what action should he take or the experts are astrologers to predict, what would be in the mind of your employer.
Any ation can be possible from your employer, which depends upon what type of offence on your part does he take after 45 days. You should better read the conduct & discipline rules of your organisation to find answer to your vague query.
By the way, I ask you one question, have you decided to join a new job after expiry of the period of 45 days without handing over of proper charge in the absence of formal relieving order?
Rajendra K Goyal
(Expert) 01 October 2016
Author should reply the question from expert P.S. Dhingra ji.
Kumar Doab
(Expert) 01 October 2016
The communique supplied by employee say vide; notice of resignation, subsequent communications, final resignation........does matter.
You may mention to whom you should handover the charge, assets etc within and upto LWD i.e dated.............as tendered by you, vide notice of resignation dated;..........and as per clause number...in appointment letter dated......issued to you......
It is time to place on record in writing that NO tasks are pending at your end as on date (if true) and routine duties be assigned on daily basis and/or that can be completed within upto LWD i.e. dated....................
In your own words you may place on record that NO stinker/SCN etc etc has ever been issued to you (if true) and you have never caused any loss to establishment and have fetched revenue/profits.
Download every relevant document.
you should be able to thwart/check/contest......successfully any attempt by employer or its attorney's that you have caused any loss or have not ended employer-employee relationship.
If you have properly narrated the clauses in appointment letter, and docs e.g; all rules and policies mentioned in it, employee handbook, exit policy, Conduct and Discipline Rules etc etc, then probably, you have build some written and irrefutable evidence in your favor.
What shall and can be done by employer and what is tenable etc etc.............is guess work.
You are closest to the employer, situation, and have all rules/policies/docs with you, and are best placed to ascertain, yourself.
Certainly;
You must show all docs on record to a very able counsel specializing in service matters, understand all options/merits/remedies and let your able counsel draft all representations.
and you must firm up preferably in writing with next employer that it shall absorb you (only) on the strength of copy of resignation and its dispatch/delivery (alone).
It is your life, career and you should take well informed and well calculated decisions.......
Guest
(Expert) 01 October 2016
Dear Kumar,
Regarding your suggestion, "You may mention to whom you should handover the charge, assets etc within and upto LWD i.e dated.............as tendered by you, vide notice of resignation dated;.........." it may be pointed out to you that the employee does not enjoy any option to maake or right to exercise for handover charge to the person of his choice. Only employer has to specify in formal relieving order to whome he should handover.
Kumar Doab
(Expert) 01 October 2016
Author @ Sujoy choudhury,
While in employment, the employee should endeavor to build favorable, irrefutable written record, for use at appropriate time in appropriate forum, if the need be.
Depending upon what is your view point; it is an option with you to choose what suits you.
It is your life, career and you should take well informed and well calculated decisions.......
Raj Kumar Makkad
(Expert) 01 October 2016
The author has not replied the valid question raised by expert Dhingra Sir without which he cannot be advised further.
Sujoy choudhury
(Querist) 03 October 2016
@Mr Dhingra..yes I have an offer from another company which is not a bank and will not give me time more than 45 days to join them..its an insurance company..
Kumar Doab
(Expert) 03 October 2016
Dear Dhingra ji,
Not necessarily.
It might have already been narrated in various documents issued by company e.g; appointment letter, rules and policies, exit policy,employee handbook etc etc..........
Or might be already known to employee e.g; His/her HOD...............
It is certainly better to write to employer as suggested above and throw the ball in employer's court. That is why it was suggested.
In case it is not known/made known employee may write his address in last communique and announce that he be informed and he shall handover without any cost to him.
In case it is not known/made known employee may even Handover to nearest person and send the acknowledgment......
Certainly the competent authority can ask to handover to say; employee that shall replace the exiting employee (that resigned) or even a colleague at same/junior/senior position.............
I have seen employers asking to handover to the clerk/PA/local staff at any level and obtain acknowledgment and send the copy.
I have also seen employees putting everything in jute bag (Bora) and booking it thru Transport and obtaining seal on list of items booked from transporter, and sending the LR ( FOR basis) and sending the LR with list to employer.
I have attended and resolved a matter where a Manager ( Middle Management) informed employer that he has not been replied till LWD and he shall be at address.................and either the items be collected from him at that address within dated..............(7days) with prior information and appointment or he shall charge for handover outside his location( as per his last entitlement/current entitlement in next employer + leave loss+ TA/DA ( AC taxi) + packing + food bill etc etc............
In any case his FnF settlement can not be delayed due to lapse at the end of employer.
This Manager ( Middle Management) was reportee to one part of HR in company ( Not Corporate HR for senior Managers).
Eventually his Manager ( Senior Management) that was reportee to Corporate HR traveled to new location of this Manager ( Middle Management) and collected and issued proper acknowledgment on the spot and handed over FnF cheque then and there.
The corporate HR had requested to have a mutually convenient date and it was 15 day from LWD.
Unofficial sources hinted that the cost was recovered from Senior Manager.
Kumar Doab
(Expert) 03 October 2016
Author @ Sujoy choudhury,
Banking to Insurance is a transition.
You will loose your banking experience.
As a practice insurers are known to prefer persons from banking.
If banking is target oriented, so is insurance.................driven by achievement of targets thru agents.
It is your call.
Your next employer may agree to absorb you on the strength of copy of notice/final resignation and its proof of dispatch and delivery.
It may insert a clause that:::
--you will sign affidavit that within.......... days/dated.............you will submit acceptance of resignation/reliving letter
or your employment can be terminated......or it may not.
---or you shall have to be cleared in BGV, or your employment can be terminated......or it may not.
---on arbitration and that all sole arbitrator shall be appointed by it.........or it may not.
It is better if you declare that your current employer shall not accept resignation and issue acceptance of resignation/reliving letter etc etc ..........and it may declare you absconding in its intranet records and post negative feedback in BGV.
And you shall not be terminated due to these reasons.
It shall be hard but it is negotiable.
Try if you can.
Or you may be in a situation that is termed as;
From the Frying pan into the Fire.
Employee should always build irrefutable written record, while in employment and defend his interest and employment and employ-ability.
Guest
(Expert) 03 October 2016
Mr. Sujoy,
It is your pleasure to join the new company before your resignation is accepted or after that. Since you have sought advice, at least I cannot advise you to join new employer without getting acceptance of your resignation by the present employer.
You may use your own wisdom.
Kumar Doab
(Expert) 04 October 2016
Another Perspective:
If employee has tendered notice of resignation, then as per private and internal SOP the HR might have attached suitable Flags to employee's ID.........
The employee has already expressed his wishes to separate.
The employee may not be a desirable entity now.
Employee should always remain extra vigilant during notice period and avoid stinkers and build irrefutable written record for use if the need be, at appropriate time in appropriate forum.
In case of having built irrefutable written record and in case the employee has own skills or is duly supported by unions or by a very able counsel specializing in labor/service matters, the employee can succeed without litigation or thru litigation.
Resignation is personal matter and communications may preferably be made by letters thru redg. Post or at-least thru personal email id or the emails from official email id be downloaded.
Resignation can be without permission, notice.
The moment employee has resigned, employee has severed the employer-employee relationship.
Although employers and its attorney's in Line Management/HR/Legal cells would want to preach::: words like acceptance.
Does you employer seek acceptance of employee if it initiates separation by termination and has it inserted any such clause in appointment letter!
The employee should build irrefutable written record and establish NO LOSS was caused by employee to establishment.
In any case you have initiated notice of resignation and have accepted offer from future employer and are closest to the facts......
You may choose as per your own judgment and aptitude.
Choose wisely.
Kumar Doab
(Expert) 04 October 2016
Another Perspective:
Dear Sujoy,
Assuming that the next employer does not agree to extend offer to 91 days:
You may want withdraw notice of resignation.
In that case your priority shall be to get a written communication from Pvt. Bank ( current employer) to extend the notice period to 90days!
If it has already been issued then you can cite it and extend it; either is software tool (if it provides such option) or by letter thru Redg. post and/or at counter where all mail/dak is received under seal with date.
You may examine your own service conditions and check if these clearly describe that notice of resignation can be withdrawn before expiry of notice period.
The employers are HR are known to ask to withdraw notice and submit afresh.
In that case you shall be again/afresh at the notice period of 90days.
Kumar Doab
(Expert) 05 October 2016
Bombay high court: An employer cannot compel an employee, who has resigned, to serve the entire notice period when he is willing to compensate the company.
The court directed the Rashtriya Chemicals and Fertilisers (RCF) to accept the buying out amount paid by the two and let them to take up their new jobs.
Rashtriya Chemicals and Fertilisers (RCF)had taken a stand that being a government undertaking it was in public interest that Phadnis serves his entire notice period allowing the company the time to find a replacement.
However, even at a prior hearing, the court had observed that the RCF, a government undertaking, was “doing something very wrong”.
Advocates for the employees, contended that denying their client the opportunity for a better job amounted to violation of his fundamental right.
Kumar Doab
(Expert) 05 October 2016
"Its a pvt sector bank and am working as Bm"
The person that is not covered by Labor Law enactments e.g; 'Workman' s in ID Act,'Employee' as in Shops & Estbs Act is usually confronted with;
Jurisdiction of Courts; say the office/official that is appointing authority and issued the appointment letter and is at say Mumbai and employee is at say Delhi and jurisdictional courts as inserted in appointment letter is Mumbai.
Relieving Letter; Will it be refused?
Exit Policy; Will it be exploited?
FnF statement/settlement:Will it be refused?
Pending tasks; More so in case of bankers that handle lending and pending or un-recovered loans passed by them.
etc etc
and even probation Period: as in instant case.
The courts of law have decided in favor of person in such matters and agreed that, jurisdiction of courts is location of employee.........relieving letter to be issued in language and sentences that shall not become hindrance in finding next employment.................... and even that clauses in appointment letter are harsh and opposed to public policy.
It has already been discussed that the employment was not confirmed in writing.
It has also been deliberated that HR has already taken a negative stance.
Kumar Doab
(Expert) 05 October 2016
You have posted that;
"What can my employer do if I don't attend my duties after 45 day notice period?? I mean from the legal viewpoint"
The elderly advise is usually sought.
The elderly advise should be appreciated and considered.
Your own need , career, life, future is ahead of you.
So consider elderly advise and weigh all pros and cons and relate with employee' srights, legal perspective and your own priorities.
You have sought advise from perspective of rights of employee and your rights in the instant case.
I have attempted to post as much as possible, to address your query.
Choose wisely.
I have gone thru some strikingly similar cases decided by courts of law and may post these, in days to come, for you and visitors and readers of LCI.
Expert Mr. Rajendra K Goyal is seasoned counsel and has been with banks.
Expert Dr. J C Vashista is senior counsel.
You can benefit from their counsel.
Spend quality time with your able counsels.
Your matter can be resolved.
Kumar Doab
(Expert) 06 October 2016
---"but not received even after request saying that online learning modules has to b completed'”
Is it published that: if so called ‘online learning modules’ are completed; the employee shall be confirmed in writing? Usually employers’ reserve the right to extend probation period even in such cases!
If NO; then it is a hollow argument, and is advanced just for the heck of it.
---"in mail they don't reply to my query of confirmation status and only write "as discussed pls serve 90 days notice".
It is loudly visible that HR personnel and might be other managers as well, have taken it as a case, of course at your cost and loss, AS AN OPPORTUNITY TO MAKE SOME REPUTATION FOR THEMSELVES.
Therefore they won’t give up such opportunity of clean kill, easily.
Such cases are considered as ‘Sure to Win’ by employers and their attorney’s inline Management/HR/Legal cells…………………………….since a visibly perturbed employee may:
And/Or HR personnel are under stiff pressure from private and internal; published/unpublished/spoken/verbal commands of their masters for HR.
And to survive they have be just; Executioner.
So they may use tactical approach; termination, abcondment/absenting, non-performer, rebellious, behavioral issues, BGC/reference check etc etc ………………………………..believing that majority of the employees shall bite the bait.
After all; ‘AN OPPORTUNITY TO MAKE SOME REPUTATION’.
SOME ENTERPRISES MAY FLAG SUCH CASE AS;’BENEFICIAL TERMINATION’.
-Consult elders, well wishers…………………………..
Employee may get elderly advice and may remain ill informed as usual.
Employee may succumb to employer and its attorney’s and the attorney’s of employer get opportunity to claim promotion/rewards/award etc in their appraisals…………………while employee suffer loss of a career opportunity.
Chances are that employee may still suffer harassment e.g; adverse comments in BGV anytime in future, delayed settlement etc etc….
- consult Unions, counsels/lawyers/law firms………………for elderly/legal advice.
A properly informed employ may choose to consult counsels/lawyers/law firms specializing in Labor/service matters.
Once again employee may instead get elderly advice or get carried away by elderly advise despite having proper and legal advice and may remain ill informed as usual.
Again employee offers on platter to attorneys of employer and employer: AN OPPORTUNITY TO MAKE SOME REPUTATION FOR THEMSELVES, AND CAREER AND MONETARY GAINS……………………….of course at the cost of employee and his/her career.
Employee should remain amiable and gentle.
In any case; employee is already a marked person, undesirable……………………
It has been posted in some threads at LCI also; that while the
-Employee’s either resolved the matter in their favor by their own skills.
- Employee’s either resolved the matter in their favor by support of their own skills, supplemented by unions.
- Employee’s either resolved the matter in their favor by the skills of their counsel, without litigation.
Their counsels spoke to HR personnel and matter got resolved, as sense prevailed.
The counsel of employees specializing in Labor/service matters , can cite decisions that have become law in service jurisprudence.
Kumar Doab
(Expert) 06 October 2016
1. The service has not been confirmed n writing, in concurrence with service conditions. So the notice period is as applicable in Probation Period.
In any case the Bombay HC decision is clear; Notice pay in lieu of notice period is to be accepted by employer.
Dispute on Notice pay @ Basic/Gross/CTC if arises; can be decided.
2. The employer thru its attorney’s in HR has become biased and has already advanced explained, fixtures, in rigid, arbitrary dictates’ i.e. ‘As discussed’ that has flavors of ;’malice’, ‘malafide’………………….
3. In such cases the ground for simplicitor separation, seems to have lost and stigmatic, set in, say of employer resorts to…………………….separation by termination.
4. Usually employed PERSON is wary of: (More so WHEN employed PERSON IS TOLD THAT HE/SHE IS NOT COVERED BY LABOR LAWS/BY THE DEF. OF ‘WORKMAN’ AS IN;; ID ACT, SHOPS & ESBTS ACT;;;;ALTHOUGH IT BE OPINED BY A VERY ABLE COUNSEL SPECIALIZING IN LABOR/SERVICE MATTERS IF THE BM IN INSTANT CASE IS COVERED OR NOT)
(i) Jurisdictional Courts; Are as inserted in appointment letter and other courts e.g; at location of employee may not have jurisdiction. It may not be necessarily true.
(ii) Arbitration Clause; If any, shall prevail and matter shall be subjected to Arbitration.
It may not be necessarily true……………………..including seat and venue of arbitration.
Arbitration clauses in appointment letter on particular matters may not be necessarily applicable.
(iii) Acceptance of resignation; may be declined. Employee may be termed; ‘Absenting/absconding/abandoning; in internal record.
It may not be necessarily true.
(iv) Reliving letter; may not be issued or it may be issued with adverse comments.
Courts cannot order the employer to issue; Relieving Letter and more so in style and manner that shall not make employee;;;;unfit for future employment.
It may not be necessarily true.
(v) Unfinished tasks: Employee even after having resigned may be asked to first complete Tasks.
It may not be necessarily true.
(vi) Collections from Market/Customers: Employee even after having resigned may be asked to first, Collections from Market/Customers.
It may not be necessarily true.
(vii) Recovery of Unpaid bills/Loans etc from employee’s FnF settlement: Employer may make recoveries. It may not be necessarily true.
(viii) Injunction to join next employer; Current employer may prevent from joining in next employment. It may not be necessarily true.
(ix) Joining back may not be allowed, if resignation is not accepted; . It may not be necessarily true.
Etc etc …………………..
And if employee approaches court of law it may not provide relief.
It may not be necessarily true.
Right to earn livelihood is constitutional right.
Court may agree that JOB/EMPLOYMENT to employee is; Property and the Institution/employer (BANK) may protect the interest of employee.
Kumar Doab
(Expert) 10 October 2016
In the following case the court of law has defended employee from adversities and has provided full relief and retained the employee as: ‘Employable’. The employee had resigned at a notice of 2 days, and was denied relieving letter:
The employee like in query is an Employee that is with a lender ( Like Bank) and is not covered by umbrella of Labor laws....
1. By this order, the preliminary issue in the suit concerning the territorial jurisdiction of this Court to try the suit as well as the question of grant of an ad interim injunction are being dealt with.
2. The Plaintiff was appointed by the Defendant L & T Finance Limited by a letter dated 19th June 2006 as an Assistant Manager in their Corporate Product Financing Division at New Delhi. Significant among the terms and conditions of employment were following:
"Place of Work:
You will be assigned to work at our office in New Delhi at present. However, you will be liable to be transferred to any of the company‟s establishment in India or outside, as and when required by the management.
Termination of Employment:
The above offer of employment is for continuous employment. However it may be terminated at any point of time by either party giving two month‟s notice in writing. The company has right to pay two month‟s salary in lieu of such notice to you. The company shall also have the right to adjust any leave due to you and/or recover from you such amounts towards notice pay for the shortfall in the period of notice.
Dispute Any dispute between yourself and the company concerning with or relating to or arising out of this employment, shall be subject to the jurisdiction in Greater Mumbai only."
3. The said letter was issued from the Corporate Product Financing Division of the Defendant at Bandra (East), Mumbai. At the foot of the first page of the appointment letter, the address of the registered office of the Defendant at Ballard Estate, Mumbai was indicated.
4. On 12th February 2007, the Plaintiff was informed of the confirmation of his appointment with the Defendant with effect from 3 rd January 2007. The updated Human Resource Manual & Procedure of the Defendant as on 13th October 2008 has been filed by learned counsel for the Defendant. The two clauses relevant for the purpose of present case are follows:
"Abandonment If unauthorized absence exceeds eight working days (consecutive), the management at its sole discretion, strike off the name of the employee from the rolls of the company on ground of abandonment of employment and advise him/her accordingly. If within 15 days from receipt of such advise, the employee presents himself/herself and offers an explanation/reasons of absence, the management has an option to review the matter and confirm or otherwise stand by its earlier decisions.
Exit Policy An employee who wishes to resign from the services of the company will be required to give the notice of resignation as per terms of appointment or subsequent amendments thereof. An employee will have to serve a minimum period of 2 month as notice period or agreed as per the term of employment.
If the employee desires to be relieved earlier than the notice period, management at its sole discretion may decide to waive the notice period or otherwise the employee is required to surrender the equivalent salary (Basic Salary) applicable for the notice period waived. If the company asks the concerned individual to leave before the notice period, then the company will pay the equivalent salary (Basic salary) for the remaining notice period.
Management at its sole discretion may sanction leave to the employee during his/her notice period provided such leave exists to the credit of the individual.
In case an employee leaves within 1 year of service, no unclaimed leave will be either encashed or compensated against the settlement of notice period. However, in case of an employee leaving after completion of 1 year of service, the unclaimed leave may be either encashed or compensated or settled against notice period at the discretion of the arrangement. The encashment would be as per leave Rules (i.e. only Basic salary).
The company may at its sole discretion terminate the employment without notice and/or salary in lieu of notice, if in the opinion of the company, the continuance of his/her employment is detrimental to the interest of the company. In the event of such termination, all benefits/perquisites/ allowances shall stand forfeited.
All the loans availed by the employee are to be settled before the date of resignation takes effect. Necessary clearances on handing over the company assets should be obtained from the respective authorities."
5. On 4th August 2008, the Plaintiff resigned from the services of the Defendant by sending an e-mail……
"From: Gupta Vishal Sent: Monday, August 04, 2008 11:27 AM To: Ahluwalia Jaspal Singh CC: Kalra Anil; Ramesh V; Samant Biswajit D.; Singh Niraj Kumar Subject: Letter of Resignation Dear Sir, This is to formally inform that I will not be able to continue my service for L & T Finance Limited as Assistant Manager - TEG, for Delhi - NCR region. For personal reasons I would like to resign from the aforesaid post. I wish to be relieved by closing hours of 5/8/2008.
….. I would request you to please relieve me of my official duties on 5/8/2008. I am willing to compensate the organisation as per policy in lieu of my notice period….
6. In response to the above e-mail ……………replied by e-mail ….. to the following effect:
"RE: Letter of Resignation ….. August 04, 2008 at 11.42 AM To: Gupta Vishal CC……
you are required to resolve the Non Starter Cases done by you after which only you will be relieved from the services of the Organisation.
7. On 5th August 2008, the Plaintiff received an e-mail at 5.59 pm ………….. attaching an Exit Interview Form, Clearance Form and the details of the amount to be recovered from the Plaintiff……………………………… the recovery of the amount due for two months‟ salary in lieu of notice, the LTA Recovery and the General Purpose Loan Recovery, a total sum of Rs.2,20,318/- was indicated.
8. It requires to be noticed that in response to the e-mail dated 4th August 2008………….. stating that "as per the report from the system, two cases are been shown as non starter cases in which legal action has been already initiated." On 6th August 2008 …………………. sent an e-mail to him that "Vishal, you are required to resolve these cases and ensure No Loss is incurred, till that time your release from the organisation is withheld." The Plaintiff has placed on record the report of non starter cases as on 15th October 2008 which shows that there were two cases of commercial vehicles financing pertaining to one Birender Singh and the other Sanjay Singh. Birender Singh had given some post- dated cheques, some of which had been encashed and some dishonoured. It is stated that legal action has been initiated as regards the dishonoured cheques.
9. It is not in dispute that on 14st August 2008 the Plaintiff issued to the Defendant a cheque in the sum of Rs.2,20,318/- and this was encashed by the Defendant on 21st August 2008. It is, however, contended by the Defendant that this amount has been placed in a sundry account.
10. The controversy in the present case is that the Plaintiff has not been issued a relieving letter by the Defendant as a result of which he is unable to take up employment with any other organization. According to the Plaintiff, he received an offer for appointment from Axis Bank but was unable to join as he could not produce the relieving letter from the Defendant.
11. Faced with a difficult situation where the Defendant refused to issue a letter relieving him from its service, despite his clearing the dues, the Plaintiff wrote to ….. Head (HR) of the Defendant on 2nd September 2008 an e-mail as follows:
"From; Gupta Vishal Sent : 02 September 2008 11:27 To: Kalra Anil CC: vishal_gupta1978@rediffmaill.com Sub: Re: Letter of resignation_Vishal Gupta Dear Sir, This is in reference to my mail sent to you on 25/8/2008 in which I intimated that the cheque of Rs.2,20,318/- in the name of L&T FINANCE LTD as my settlement amount is cleared from my bank account, but till date I have not been relieved from the organisation. If organisation is not relieving me, I am ready to join the services of the organisation (L&T Finance Ltd) and also I request you to kindly refund the settlement amount recovered from me through cheque no. 233075 of UTI Bank LTD.Waiting for your reply at the earliest.
12. In response to the above e-mail, …… wrote to the Plaintiff on 18th September 2008 as follows:
"To Vishal Gupta Asst Manager-EPG-TEG P.S. No. 735310 Location: New Delhi Dear Vishal, Refers to your request of 2nd September 2008 for resignation, we would like to put the following on record:
1. You have already been informed that you have done irregular lending in 2 cases where no repayment has come so far and customers and assets are not traceable.
2. We hereby give you a months time i.e. upto 30 th October 2008 to find out the customers to whom you have done the lending and also the assets for which you have done the lending.
Please note that if the above is not organized by 30 th October 2008 the company will initiate the appropriate civil/criminal action against you.
13. The Plaintiff then sent an e-mail on 15th October 2008 to ……………………….pointed out that his requiring to resolve the non starter cases was not a condition mentioned in the offer letter. He maintained that his employment stood terminated when he paid two months‟ salary in lieu of notice which was accepted by the Defendant. As regards the documents collected by him from the borrowers in the two „non-starter‟ cases, he mentioned that the current address proof and photo proof in both cases were duly forwarded to the Defendant. He further informed that Birender Singh was still available at the same place mentioned in his loan application. In the same e-mail, the Plaintiff informed the Defendant of the other address of Sanjay Singh He called upon the Defendant to immediately issue him a relieving letter.
14. Thereafter, on 4th November 2008, the present suit was filed. The prayers, inter alia, are for a declaration that the Plaintiff is entitled to a letter relieving him from the Defendant with effect from 4th August 2008; for a permanent mandatory injunction directing the Company to issue a relieving letter and other reliefs including refund of an amount of Rs.32,890/ paid by the Plaintiff to the Defendant as salary in lieu of notice; reimburse his out of pocket expenses and compensation for the loss of job with Axis bank. He also sought damages for the loss of mental peace and for the mala fide actions of the Defendant…..
15. …………….. On 28th April 2009, the following order was passed by this Court:
…………. there appear to be some element of settlement and it is deemed expedient to give the parties an opportunity for the same.
The plaintiff seeks interim order directing the defendant to issue the employment relieving certificate to the plaintiff. It is stated that the said certificate is necessary for the plaintiff to take employment elsewhere. The counsel for the defendant has stated that the plaintiff had, in fact, abandoned the employment of the defendant and contrary to the agreement with the defendant and has otherwise not given all the information required to be submitted as to the business transacted by the plaintiff on behalf of the defendant and owing to which the defendant is suffering losses. The counsel for the defendant has stated that if the plaintiff were to cooperate with the defendant and give the requisite information to the defendant, the defendant would consider issuing the relieving certificate without prejudice to its rights and contentions.
The counsel for the defendant has also contended that this court does not have the territorial jurisdiction to entertain the suit.
To explore the possibility of the settlement it has been agreed that the plaintiff shall visit the office of the defendant at Moti Nagar, …………….. and give all the information which is in his power and possession ……………… If the plaintiff is required to go to the office of the defendant on subsequent dates also, the plaintiff shall do so.
List on 15th May, 2009 for further consideration. If no settlement is arrived at, the arguments on the application shall be heard on that date."
16. Pursuant to the said order, the Plaintiff went over to the Defendant‟s office on two …………………. What happened during those meetings is differently described by the Defendant and the Plaintiff.
According to the Plaintiff, instead of asking him about the two non-starter cases, the Defendant asked him about various other cases and therefore, they were not acting fairly. According to the Defendant, the Plaintiff was not cooperating with them and declined to give them the details regarding the nine loan defaulters whom he had introduced.
The Defendant has placed on record the copy of a letter dated 11th May 2009 addressed by it to the Plaintiff listing out the 15 cases of defaulting parties to whom loans were advanced by the Defendant on the recommendation of the Plaintiff.
17. Despite learned counsel for the parties taking adjournments for exploring the possibility of a settlement, it was reported finally that no settlement was possible. The Defendant was prepared to give a letter stating that the Plaintiff had ceased to be an employee of the Defendant on account of abandonment of services; that his name stood struck off from the rolls and that the certificate was being issued without prejudice to the rights and contentions of the Defendant in the present suit. This kind of a qualified relieving letter was of course not acceptable to the Plaintiff.
The parties were therefore heard at length on the application for ad interim injunction as well as the question of territorial jurisdiction of this Court to try the suit.
18. As regards the preliminary issue of territorial jurisdiction, it is submitted on behalf of the Defendant that if the suit itself was not maintainable then the question of grant of an ad interim injunction would not arise…………………. in view of the specific clause in the appointment letter that any dispute between the Plaintiff and the Defendant "concerning with or relating to or arising out of" the employment was "subject to the jurisdiction in Greater Mumbai only", the suit filed by the Plaintiff in this court was not maintainable. ………….. even for the purpose of Section 20 (a) and (c) CPC, the corporate office of the Defendant which issued the appointment letter was in Mumbai, the refusal of the acceptance of the resignation letter was also at Mumbai and therefore, the cause of action arose only within the jurisdiction of the Court in Mumbai.
It is further submitted that the granting of any relief of mandatory injunction directing the Defendant to issue a relieving letter to the Plaintiff would tantamount to granting the final relief itself and this was impermissible in law.
19. It is then submitted on behalf of the Defendant that when the employee had a poor track record and had abandoned its services, the Court could not compel it to issue a relieving letter simpliciter. It is repeatedly pointed out that at least 15 of the borrowers whom the Plaintiff had recommended for loan had defaulted. The full details of the borrowers were not available with the Defendant. Considerable losses were suffered by it on account of the conduct of the Plaintiff. There was no question, therefore, of the Defendant being asked to issue a relieving letter to the Plaintiff unconditionally. It is submitted that in any event a decision on this aspect would require the case to go for trial. At the same time, it was contended by the Defendant that there was no question of the Plaintiff being taken back in its service particularly when the Defendant had lost confidence in the Plaintiff. Therefore, this was a case where no relief could be granted at this stage even by asking the Defendant to take the Plaintiff back in service.
20. On the other hand, it is contended by the Plaintiff that the observations made in A.B.C. Laminart Pvt. Ltd v. A.P. Agencies (supra) do not categorically hold that the ouster clause would also apply in the contracts of employment and that the said judgment was given in the context of a commercial contract.
21. As regards the submission regarding the territorial jurisdiction of this Court, there is an ouster clause in the contract in terms of which only the courts in Greater Mumbai would have jurisdiction……………….. the Court in Delhi has no jurisdiction.
22. The decisions of the Supreme Court in regard to „ouster clause‟ have invariably been in the context of commercial contracts. ………………………
However, the following observations in the said judgment appear to indicate that the convenience of the parties is also a factor that would have to be borne in mind, and that the jurisdiction of the court cannot be said to be completely excluded:
23………………… Again following the list of judgments from ABC Laminart Pvt. Ltd v. A.P. Agencies, it was held ………………….could be distinguished on the basis that they were delivered at a time when the decision in ABC Laminart Pvt. Ltd v. A.P. Agencies
24. In the considered view of this Court the decisions on the „ouster clause‟ in the context of a commercial contract have to be held to be distinguishable in their application to a case of a contract of employment. In the employment contract, an employee would not be able to insist that the disputes, if any, are to be referred only to one court and not the other. The employee usually accepts the employment with all the attendant terms and conditions or not at all. In the present case, the letter of employment no doubt states that it is a transferable job. Still, the Plaintiff was to work primarily for the Delhi office of the Defendant. He, in fact, rendered services only in Delhi office. He submitted his resignation at Delhi. For an employee no longer in service to be asked to go to Mumbai for instituting and pursuing litigation would render the remedy expensive and inefficacious for such employee. It would work harshly against him. Moreover, in a situation like the present one where the prayer is essentially for a direction to the Defendant to issue a relieving letter, to direct the employee to go to a different city only because of the ouster clause seems to be unfair and unjust…………………. As regards the comparative hardship, the Defendant has an office in Delhi and there will be no difficulty for it to appear before this Court and defend itself
25. As far as Section 20 CPC is concerned, in terms of clause (b) thereof, the Defendant has an office in Delhi. The letter of appointment was received in Delhi. The email correspondence referred to hereinbefore shows that the Plaintiff‟s resignation letter was sent from Delhi and the refusal of the relieving letter was communicated to the Plaintiff in Delhi. The result is that the Courts in Mumbai (because of the clause in the appointment letter) and this court, on account of the substantial part of the cause of action having arisen here, have jurisdiction to try the case. The observation in ABC Laminart in para 21 that the intention of the parties to completely oust the jurisdiction of the court in Delhi will have to be tested in the above background. The use of the word "only" in the instant case to qualify the ouster clause cannot be read as conferring exclusive jurisdiction on the court in Mumbai.
26. For the above reasons, it is held that the ouster clause in the letter of appointment of the Plaintiff cannot preclude this Court from entertaining the present suit. The preliminary objection of the Defendant to the maintainability of this suit on the said ground is hereby overruled.
27……………………. the conduct of the Defendant in refusing to take the Plaintiff back into service becomes relevant……………………….. During the course of arguments, the learned Senior Advocate for the Defendant repeatedly stated that since it had lost confidence in the Plaintiff it would not permit him to join duties. As far as the Defendant was concerned, the Plaintiff was no longer in their service and yet, they would not issue him a relieving letter simpliciter. To this Court, it appears that the point of refusal of the Defendant to take back the Plaintiff into service while at the same time refusing to grant him a relieving letter is not legally tenable.
28…………..Even as regards the non-starter cases, the Plaintiff appears to have given the information to the Defendant. ……
29. The stand of the Defendant is not consistent with the terms of the contract of employment. It accepted the payment made by the Plaintiff for two months‟ notice period as well as the outstanding loan amount which was a condition of the Plaintiff being relieved from service. It is not in dispute that this cheque, which includes the loan amount, was encashed. Therefore, there are no monetary dues as far as the Plaintiff is concerned. There being no other term of service that requires to be fulfilled for issuing a relieving letter, the refusal by the Defendant to do so seems unjustified. The stand of the Defendant that the Plaintiff has „abandoned‟ his service is also not borne out by the correspondence. In fact, the Plaintiff‟s offer to join back service has been refused by the Defendant.
30. The only question that remains is whether a mandatory interim injunction by this Court can be issued at this stage to the Defendant. The rule that a Court cannot grant an interim relief that would amount to grant of the final relief at the interlocutory stage is not an inflexible one. It would depend on the facts of every case…………………………. It cannot ipso facto be applied to the instant case where the dispute arises out of a contract of employment, and where the dispute is limited to the employer refusing to issue to the employee, who has resigned, a relieving letter/certificate. If, for the relieving letter, the Plaintiff has to wait for the conclusion of the trial, the whole purpose of the Plaintiff coming to the court would be defeated. The denial of a relieving letter by the Defendant in the instant case has already prevented the Plaintiff from accepting any other offer of employment.
33. In the instant case, a direction to the Defendant to issue a relieving letter is not the only relief being sought by the Plaintiff in the suit. Therefore, in issuing such a direction, the suit itself does not become infructuous. All that the Defendant is required to do is to issue the Plaintiff a letter stating that he is no longer in their service. Any other qualification to such statement might render the cessation of the services of the Plaintiff stigmatic. In such an event, the resort to a clause of termination simpliciter by the Defendant would be futile and the Defendant will have to acknowledge that the Plaintiff is still in their service and proceed against him disciplinarily. This it refuses to do. Viewed from any angle, therefore, a case is made out for issuing an interim mandatory injunction to the Defendant to issue to the Plaintiff a simple relieving letter stating that he is no longer in their service. The balance of convenience in issuing such an interim injunction is clearly in favour of the Plaintiff.
34. Accordingly, an interim mandatory injunction is issued directing the Defendant to issue to the Plaintiff a relieving letter within a period of seven days stating that he is no longer in their service. The said letter will not state that the Plaintiff has abandoned the service or any other qualification that prevents the Plaintiff from taking any other employment.
Delhi High Court
Vishal Gupta vs L & T Finance Limited on 9 September, 2009
https://indiankanoon.org/doc/10794351/
P. Venu
(Expert) 11 October 2016
It appears that query is based on surmises; the author is relying too much on personal discussions with HR. Please note that HR is not omnipotent or omniscient as to the rights of the employees; it is a mere staff function.
Proceed in your best judgment taking into consideration written communication, if any, from the management. Let them take the onus of correcting you, if they have a different understanding of the issues involved.
Kumar Doab
(Expert) 11 October 2016
Expert Mr.P. Venu,
You are precise and right.
The persons be it:
---covered by umbrella of Labor laws ( at least 'Workman' as in ID Act, 'Employee' as in Shops & Estbs Act)
---Not covered by by umbrella of Labor laws ( at least 'Workman' as in ID Act, 'Employee' as in Shops & Estbs Act)
visit forums like LCI to seek legal advise, on such issues that bother and affect them in their careers.Elderly advise or friendly advise is not, what they are looking for.
Majority of the employees out of sheer ignorance, do not become member of various forums that exist to help employee's; Unions.They remain ill informed.
They do not visit counsels specializing in labor/service matters.Once again, they remain ill informed.
They talk to known persons.They like them might be ill informed.So once again, they remain ill informed.
In today's scenario, majority of the persons are working outside their hometowns and may not be having their own circle of support. They are fearsome. They remain ill informed.
Then comes the role of online portals like;LCI.
The person feel comfortable to post their queries by internet, for legal advise.
Here they expect from us and we ought to discuss in detail, legalities and legal advise.
Even if they do not muster gust and resolve immediately at least they gain to know what exactly is the position of law and their lawful rights.
They can apply their own skills or lean on their able counsels specializing in Labor/service matters.
Kumar Doab
(Expert) 11 October 2016
HR personnel, ideally speaking, are bridge between management and employees.
However if HR personnel step on the toes of employee's and become mere executioners, then employee should learn to handle such entities.
HR personnel are just another employee and have to perform their duty.
Employee should mind his/her interest and learn to defend it.
Kumar Doab
(Expert) 11 October 2016
Many employees resolve their issues with information and knowledge that they gather and by applying some skills.
Many employees share that they have been able to resolve their issues.
One such employee has resolved his issue and posted at:
http://www.lawyersclubindia.com/experts/Employer-Harassment-on-Early-Relieving-618481.asp
