Employee should tender some reasonable notice of resignation and submit company property under proper acknowledgment, perform handover of charge under proper acknowledgment, and must mention in notice of resignation/subsequent communications that no task/assignment is pending at his end.
The notice of resignation and subsequent communications should be carefully structured so as to build favorable written record to suit long term interest of employee, and be sent by letter addressed to good offices of appointing authority, MD etc, thru redg. post.
If the tasks of the employee that has resigned are unfinished due to which employer may suffer some financial or other kind of loss and employee is unwilling to indemnify the employer then employer may emphasize to serve the notice period.
This is a point employee should always handle successfully.
You have posted that:
----“ I have resigned from my previous organization .................... because of unavoidable personal and family issues,”
It is a valid reason for separation.
-----“ Now they are asking me to serve notice period of two months, which I can not,”
Resignation can be without permission or notice.
If it is stated in appointment letter that notice pay in lieu of notice period can be tendered then this is the max. amount employee has to tender.
Is it stated in appointment letter that if employer initiates separation ( by termination) then employer can tender notice period or notice pay in lieu of it.
IN employment contract the service conditions should be equitable.
If these are not contract of employment can easily be termed arbitrary, unfair and void to that extent.
------“ can they take some legal action against me’
Citing clauses of the employment letter they may demand payment of notice pay, proceed to initiate recovery.
However a court case in majority of the cases seems unlikely as it may open Pandora’s box and skeletons may roll out as employee and his lawyer may also open fronts.
Trade unions are also unforgiving in such cases.
It is yet to be seen the notice period of 2 months is infact applicable in your case or not.
The notice period is part of service conditions and is stated in standing orders (Certified/Model) applicable to the company and extended to the designation of employee, which have statutory force and being instrument of law shall always prevail upon any private agreement that employer might have signed with employee e.g......................................appointment letter/contract of appointment/service agreement/bond etc........................
The employer (owner/MD etc) is personally held responsible for faithful observance of standing orders.
The notice period/pay is also stated in Shops and Commercial Establishments Act of the state and applicable to the establishment.
It is not more than 1 month in these enactments.
Submit final resignation and do not let the company claim that you are abstaining/absenting/absconding.
Instead of remaining entangled in conversations with Heads and others approach in writing under proper acknowledgment by redg. post preferably, the good offices of appointing authority, MD, Chairman, and citing performance, contribution demand waiver of notice period.
The good offices can waive off.
Contest the allegation if any successfully and do not hesitate to approach your labor consultant/service lawyer and must obtain acknowledgment of having received resignation, acceptance of resignation, the original and correct FNF statement as hard copy under seal and signature by hand of the competent employee for verification and acceptance by you, Form 16 as per correct FNF statement, payment of earned wages and FNF dues by bank DD only, service certificate, relieving letter ( with good comments. Avoid without comments and with adverse comments) , NOC/NDC, PF number/account slips of entire period of service, ESIC card, Insurance card, salary slip of last month and all month’s of service, etc...
In case of dispute employee can approach:
-Lawyer/law firm: A legal notice can help to drill sense into the heads. You may request your lawyer to include the HR personnel, this Head, appointing authority, CEO, Chairman, MD in list of noticees............
Designation alone does not decide employee is covered as ‘Employee’ as in Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act....................
Your lawyer may ask you a set of structured questions and may opine that you are covered.
If you are not covered then your lawyer may like to examine job advertisement, appointment letter, service codes and regulation applicable in the establishment.
Your lawyer may advice in such a case to send cheque for payment of notice pay ( ideally @ Basic+DA) and demand that a proper receipt be issued and notice pay be adjusted in FNF statement and FNF amounts be reduced and form 16 be issued as per net amounts after adjustment of notice pay.
Courts do not restrict themselves to appointment letter alone.
-Trade Unions/ Employees Unions: They know precise ways to handle such issues
-Inspector under Shops and Commercial Establishments Act;
-o/o Labor commissioner
-Civil Court.
