One option is that you may serve full 90 days notice.
Other option is to come out of situation and for that you stand pitched against line manager.
you may submit your notice of resignation by letter thru redg. post
(Avoid speed post/courier) addressed to appointing authority and enclose cheque for notice pay towards shortfall in notice period and demand acknowledgment of notice and receipt for notice pay by redg. post.
---------abandonment n. the act of intentionally and permanently giving up, surrendering, deserting or relinquishing…………………………..contract rights…………..
Voluntary relinquishment of all right, title, claim, and possession, with the intention of not reclaiming it..
You may obtain copies of standing orders of the company, HR policy applicable to employees, service rules, exit policy, severance policy and go thru the statements in case of abandonment.
Is abandonment governed by standing orders of the company?
Standing orders are to be displayed near entrance/on notice board and should be supplied to employee against a nominal payment say Rs.10/-
{Anyone and employee can obtain copy of standing orders from certifying Officer (DLC at location of redg. office of the company).
E.g. As per dept. of Labor Delhi:
“22. A copy of thestanding orders shall be supplied to a workman on application, onpayment of a reasonable price. A trade union in the establishment will,however, be entitled to the free supply of a copy of the standingorders, provided the union is one which is recognised by the employer. “ “8. Theregister required to be maintained by section 8 of the Act shall be inForm III and shall be properly bound and the Certifying Officer shall furnish a copy of standing orders approved for an industrialestablishment to any person applying therefor on payment of a fee 3 calculated at the following rates per copy: (i) for the first two hundred words or less seventy-five paise; (ii) for every additional one hundred words or fraction thereof thirty-seven paise: “
https://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/Home/Acts+Implemented/Details+of+the+Acts+Implemented/The+Industrial+Employment++Act,+1946/The+Industrial+Employment+%28Standing+Orders%29+Central+Rules,+1946 }
You are not abandoning service; you are resigning by proper resignation. However your resignation is not being accepted citing some HR policy of the company which does not define if employee is unwilling to serve full notice period what penalty shall be levied on employee.
You should represent to good offices and seek relief.
--------Abandonment is question of Intention.
In the incidences narrated by you, on your part there is no intention of abandonment.
The principle of natural justice if applied does not hint any intention of abandonment.
However you need to build written record and thus surrounding circumstances to your case so that no inference can be drawn that you had abandoned the service.
Supreme Court of India has observed:
“When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement,…………………….. “
In your case you have sent proper notice of resignation, hence there is no intention of abondonment. The company has declined to accept the resignation, {without citing some internal (stupid) policy, and with only some comment from Circle Head (Boss, and not appointing authority or equivalent/competent authority duly empowered by board of management)}.
There are many judgments by courts of law. You may go thru. However if the need be let your layer choose the right judgment, to be quoted in your case.
On the other hand company would scream that you were on unauthorized absence and as per standing orders/contract of employment absence beyond……………….days is deemed to have voluntarily abandoned the service.
The companies level such kind of fancy charges to avoid termination and be susceptible to charge of termination and its legal implications.
Pls share some more information.
You are in which state? The o/o reporting authority, Circle Head, HO, Redg. Office of the bank is in which state?
What is stated in clause on termination and notice period/ notice pay in case termination is initiated by employee and also by employer?
It shall be good if you can attach copy of the appointment letter. You may erase the names etc to maintain the confidentiality, or show it to your lawyer.
To resolve such matters one should give try best by applying goodwill, rapport, and exceptional levels of persuasion, persistence, negotiation, reasoning skills, which you have done as posted by you.
At the same time employee should build favorable written record and collect copies at keep in personal file at home.
Do you have the copies of first resignation and comments etc posted in resignation tool by you?
You have posted that:
--------“He agreed and said ok so ur releiving date woul be 21st april 2013.”
Do you have the copy of this approval, and was it updated in resignation tool software?
Did you minute this discussion in writing? You should have done this.
You should have submitted minutes of all episodes in writing with a copy to you, in a gentle language.
--------“ On 4th April 2013, a circular came from Hr that all theresigned employees has to serve a mandatory notice period of 90 days and reporting authority can do the waiver of notice period on his/her discretion.”
Did you accept or reject this new condition in writing? You could have submitted a gentle declinature to this condition.
As per contract of appoint signed by you with company is HR empowered to add or delete service conditions? `
The company might have inserted statements in your appointment letter like: all T&C as communicated from time to time shall be applicable and acceptable to employee.
-------“After so many requests my brachhead told me to put the resign and put it from 15th april 2013 to 14 may 2013, i did the same. Branchhead & Hr Person had approved the same , now my resignation has been forwarded to circle head for approval. ‘
Do you have the copy of acknowledgment of this resignation, approval by branch Head/HR and declinature by Circle Head?
--------“because i would not come after 14 may 2013, they would treat it as voluntary abandonment of serviecs and not the resigned and will not give me the releiving letter.”
Who can stop an adamant and recalcitrant line management to do so, however it shall be unfair, bad………………..and if you have acknowledgment of resignation then your lawyer may opine that it can be termed as unlawful………
-----------“what would be the consequences in case of voluntary abandonment of services “
You are not abandoning service.
Company applies abandonment to deny notice pay for termination /lay off/retrenchment compensation/ legal implications in case of termination.
“and what would be effect on my salary till last day work, gratuity, Pf and PL leave encashment. what are my rights in case of voluntary abandonment of services.“
Salary till last day shall have to be paid.
PF can not be attached.
Gratuity can be forfeited only in case and as per Section: 4: Payment of gratuity : 6 (a), (b) (i) (ii). You may go thru it.
PL: it shall be encashed in FNF statement/settlement.
Notice of resignation should be addressed to good offices of appointing authority, MD, Chairman, Company Secretary and mentioning effective date of resignation affirming to tender notice pay…………as per clause number………..in appointment letter dated…………issued to employee……….towards shortfall in notice period may be adjusted in FNF statement/settlement or confirming notice pay is tendered and enclosed herewith by cheque number ………..dated………..drawn on ………..for Rs……… and supply the notice and cheque by redg. post. Avoid speed post/courier.
If the good offices insist in writing employee may fill the format in resignation software tool and mention the date and redg. post receipt number of resignation already submitted by employee.
Employee should state in writing that he has completed all tasks on hand and nothing is pending and now onwards routine work may be allotted, which can be completed within and up to last day in office/effective date of resignation i.e. dated………………and all concerned personnel may be advised to ensure smooth handover of charge and company property within and up to last day in office.
Employee should continue to issue reminders periodically to good offices and thus remind them to ensure smooth handover of charge. On the last day employee may submit final resignation quoting reference of notice of resignation and subsequent reminders.
If next employer is buying out the notice period and you tender notice pay to current employer by cheque and the notice pay is not adjusted in FNF statement you may be subjected to double taxation. Therefore you may mention that the FNF should reflect adjustment of notice pay recovered from you and Form 16 may be issued as per FNF statement showing adjustment of notice pay.
---------- Resignation can be without permission or notice.
“Does the clause on termination by company specify it shall be the choice of the employee to accept notice pay in lieu of notice period, if employer initiates termination of employment?”
If NOT, it implies employer has the right to decline acceptance of notice pay in lieu of notice period while the employee does not have this right.
Any policy in the larger interest and beneficial to both employer and the employee has the sanction of law as otherwise it will be easily termed as arbitrary.
This arbitrary clause hampers your interest in securing another better opportunity when it arises. The next employer may not wait for long period of 90 days……….
The 90 days notice period is obviously for the benefit of employer.
{{{{{ e.g. Shops and establishments Act of Delhi; in short SE Act which is applicable to all employees and does not indiscriminate between workman and non workman.
2. Definitions. (5) “commercial establishment” means …………… in which
business of banking,……….
(7) “employee” means …………
(8) “employer” means……….
30. NOTICE OF DISMISSAL.:… (2) No employee who has put in three months’ continuous service shall terminate his employment unless he has given to his employer a notice of at least one month, in writing. In case he fails to give one month’s notice he will be released from his employment on payment of an amount equal to one month’s pay.
(Implies notice period is max. 1 month)
COMMENTS
(a) Applicability of section 30 :In the absence of any standing orders or any contract between the employer and the contesting respondent containing any particular terms or conditions, the conditions of service of the employee relating to his employment in an establishment at Delhi are covered by section 30(1) of Delhi Shops and Establishments Act, 1954
(b) Notice or wages in lieu thereof under section 30—When to be given?
A plain reading of section 30 of the Act would make it clear that whereas the notice of one
month under sub-section (1) is for the benefit of the employee, the notice under sub- section (2) is for the benefit of the employer.}}}}}}
Does the T&C quoted in appointment letter imply that the company has option to refuse notice pay? It is felt that rather as per T&C inserted in appointment letter, on notice period/pay Company can not refuse to accept notice pay.
If it explicitly specifies that it is either notice or notice pay then it doesn’t give the company the discretion to accept notice pay or decline it!!!!!!!!!
Look at other perspective:::::
Termination/separation is initiated either by employee or employer.
The party to the contract of employment initiating termination of the contract has to tender notice and choose period of notice. If it is lesser than the notice period inserted in the contract the party has to compensate the other party. Here the compensation is already inserted in the contract as “notice pay”. This is the maximum amount of compensation. Thus there is no ambiguity or confusion.
If the task of the Employee initiating resignation (separation/termination) are not properly handed over due to which the Employer is going to have some loss Financial or any other Loss, in that case if the employee who has initiated Resignation is not interested/agreeable/inclined to indemnify/compensate the employer then the Employer may ask Resigned Employee to Serve Notice Period.
The one month long period of notice is sufficient for the employer to designate replacement and put his house in order. The tasks assigned to resigned employee can be handed over to designated replacement, colleagues, HOD and others……….
Notice pay should be ideally @ Basic pay + DA as employer would disburse Bonus, OT, encashment of paid leave, Gratuity etc at this rate.
In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Standard Standing Orders Act………….thus the employee covered under these enactments would be protected up to that extent……..
Notice period is part of service conditions. Service conditions are stated in certified standing orders of the company, appointment letter, and also in shops and establishments act of the state. The service conditions stated in standing orders can not be negated to employee in appointment letter.
Banks are covered under shops and establishments act of the state.
In all the enactments the notice period is max. 1 month.
The companies are known to adopt tactics, allurements (as in your case of 1st resignation), coercion, force, pressure, e.g.; tasks have been left incomplete by employee, employee has absconded, relieving letter shall not be issued..............etc.
Hence employee should remain careful and amiable too.
To structure and draft notice of resignation, subsequent representations you may seek help from elders in the family, competent and experienced well wishers, lawyer/law firm………..
----------You have the option of explaining the conduct of circle head for interrupting the separation by resignation by one way or the other and narrate the incidence concluding that you are being kept in employment against your free will, and circumstances are being created which will have detrimental effect on your career, employ ability, future prospects.
It shall be appropriate if such representation is drafted by your lawyer.
You may approach a competent and experienced labor consultant/service lawyer as ap, with copies of all docs and give inputs in person.
If the company does not yield to your representations it may yield to legal notice by your lawyer or yum may have to agitate in appropriate forum.
