ASRUJ@aratrika (SR. EXECUTIVE-HR) 24 March 2015

Forced resignation

Respected Seniors /Experts,

I seek valued opinion for the following scenario as happend with me. I am working with a proprietorship Co. for last 10 years in Hr & Admn. department Kolkata. Oflate the sales of the Co. has come down in compare to previous years and as a result of that Co is forcing general staffs to resign. Now it's my turn and I have been verbaly told to do so specifying one month as notice period. Now in this circumstances I would like to have practical suggestion /opinions from the seniors /experts on this issue. Company do not pay gratuity with a plea that it is not registered under gratuity Act. I know it's not a valid reason to decline a gratuity claim and how should I proceed to get my legitimate dues like gratuity. One important thing I should mention that my wife is continuing with the same company till now and I suspect she is in the queue to be axed may be in the next lot. I look forward to have legal at the same which is practical and pragmatic suggestions /advice about the course of action I can follow considering all the factors as mentioned.

I wellcome with gratitude an early and fruitful response from the experts.

Thanks & regards

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3 Replies

Kumar Doab (FIN) 24 March 2015

Both you and your wife should record evidence of ‘Forced to resign’ (audio/video/witnessed/minuted) for use at appropriate time in appropriate forum!

The burden of proof of ‘Forced Resignation’ may fall upon you.

Forced resignation can be termed offence and deemed termination.

In case of resignation if it is proved that it was a forced resignation obtained by the employer under threat of coercion, it would be taken as a case of termination. But on appreciation of pleadings and evidence if it is found to be free and voluntary, then it would not amount to termination………..

OR you should be able to establish that such intolerable conditions were created that you had no option but to separate by resignation…………………………..culminating into Wrongful Termination.

Both you and your wife should firm up your next venture ASAP.

Since you are verbally asked to resign and given one month……………………it being verbal communication…………..is not on record…………….and if you have not submitted notice of resignation and submit resignation with immediate effect after expiry of 30 days…………………..it is upto employer to waive off the notice period/pay or adjust it in FnF statement.

Don’t worry about Gratuity. If Payment o Gratuity Act is applicable to the establishment and you are eligible then it has to be paid to you. There is no wage ceiling and limitation in case of Gratuity. The employer has to supply notice of determination of Gratuity and payment within 30 days and tender interest @10%pa for delayed period……………………or you can submit FormI and demand notice of determination of Gratuity and payment with interest.

If it is suitable to you and your aptitude then you may think upon submitting minutes of discussion during which you were asked to resign and give up your employment in a language as deemed suitable to you……………….and build favorable written record under proper acknowledgment.

Ensure to obtain proper acknowledgment of proper handover of charge/NO Tasks pending at your end.

You cam demand acknowledgment/acceptance of notice/resignation,service certificate,relieving letter,FnF statement (showing computation of earned wages/earned leave/bonus/reimbursements/incentives etc), NOC/NDC,Form16, salary slips of all months,PF a/c slips of all years,ESIC card etc…

Remain gentle and amiable.

You are HR Person and should be able to handle the matter.

If you are unable approach an able Labor Law Consultant/Service Matters Lawyer.

ASRUJ@aratrika (SR. EXECUTIVE-HR) 25 March 2015

Dear Kumar Doab Sir,

Thank yiu for your prompt and resourceful reply. Management is just keep on telling verbally to submit my resignation and trying to make me nervous. If i ask for a written communication to submit my resignation whatever they say verbaly and in turn if I submit my resignation refering that communication then will it be beneficial to me in future. I am worried that if I take any stringent action that might effect my wife's employment and at the same time i want my legitimate dues as well.. What do you suggest. Thanking you in anticipation.

regards

Kumar Doab (FIN) 28 March 2015

Your 1st and last post are in conflict with each other. The Query on Gratuity has been explained. If you have been asked to separate by employer ......it is termination .........and if 30 days are notified ......it is 30 says notice if termination........and if you work during this period......you will get salary. If you are terminated verbally but asked to submit resignation with immediate effect,after 30 days.......then either you obtain in writing that notice period/pay is waived off........Or you may submit notice of resignation and let employer accept it on the same day or after expiry of notice period. Your lawyer must have appraised you that resignation can not be accepted before expiry of notice period. The other points that you have narrated are not for legal advise and you must discuss with your family/elders...........You can also discuss with your lawyer in person. The written record can support you in the form of evidence. Being a HR person having long experience you should be able to handle it. All the Best.