Notice period
Saravanan Kumar
(Querist) 18 July 2015
This query is : Resolved
I've resigned from my current employer, my notice period is 3 months. Either I can serve or buy out notice period as per appointment letter. I'm completing my one month notice period in next week. HR is non committal on my relieving date and not receiving reply also.
What shall I do now, the below is the point regarding my resignation.
"10. In the event of employee's deciding to resign from his services with the company at any time after joining, he has to give 3 months' advance notice to
the company in writing or pay equal amount of 3 months' salary in lieu of 3 months' advance notice. During the notice period, he shall complete all the
pending satisfactorily tasks assigned to him earlier without causing interruptions/disruptions to company's business activities failing which all his
arrears, if any, will be forfeited by the company & no documents pertaining to his relieving from the company will be given. He would also not be eligible for
any leave during the notice period.
However, the company shall have the right to treat his notice of resignation as resignation itself & revive him from service immediately without insisting upon 3 months' advance notice."
Kumar Doab
(Expert) 19 July 2015
A dispute seems to be glaring and staring at you.
Probably whole episode is as per script that has been decided in your case and execution is usually by HR and Line Management. If it is so, then they are no more your mentors, bosses, superiors and are opponents now.
However remain gentle, amiable, alert and BE SMART.
If you handle it properly you can resolve the matter in your favor.
Notice period,Notice Pay,Rate of Notice Pay……etc are all part of service conditions that are governed by various enactments applicable to employee/employer/establishment and these enactments shall prevail upon any private agreement that employer has drafted and signed with employee e.g. appointment letter/contract of employment/HR Policy-Service Rules and Regulations etc mentioned in appointment letter/Exit Policy/FnF Policy……………………..OR any Rule any Policy.
Leave is governed by various enactments applicable to employee/employer/establishment……………………..and employer can not draft a leave policy that offers inferior leave benefits as provided for in these enactments, but of course can offer superior benefits by negotiated settlement, standing orders………………..
At least I am not aware of any law that prohibits leave during notice period.
Notice period is counted in service period.
Any applied for leave for which employee is entitled is counted in service period.
If you have carefully gone thru section of Leave in applicable enactments in your case then you might have noted that the language states ‘entitled to’ and if the language is such, the employer can not deny leave/leave benefits.
You have posted that:
“I'm completing my one month notice period in next week. HR is non committal on my relieving date and not receiving reply also.
What shall I do now, the below is the point regarding my resignation.
"10. In the event of employee's deciding to resign from his services with the company at any time after joining, he has to give 3 months' advance notice to
the company in writing or pay equal amount of 3 months' salary in lieu of 3 months' advance notice. During the notice period, he shall complete all the
pending satisfactorily tasks assigned to him earlier without causing interruptions/disruptions to company's business activities failing which all his
arrears, if any, will be forfeited by the company & no documents pertaining to his relieving from the company will be given. He would also not be eligible for
any leave during the notice period.
However, the company shall have the right to treat his notice of resignation as resignation itself & revive him from service immediately without insisting upon 3 months' advance notice."”
The language inserted by employer is transgression. It speaks of and stinks with feudal, high headed, habitual offender, rotten, wicked mindset.
The company or its owners or employer or cronies of employer in HR/Legal cell can not forfeit a single penny from wages/promised payouts. The earned wages/promised payouts are debt on employer and employee can approach the employer as creditor and file for winding up, file complaint u/s406,420…………………….etc
The employer has to not only issue but supply by effective mode of communication the relieving documents to employee.
The employer or its cronies no one can treat notice of resignation as resignation and can not accept resignation before the expiry of notice period tendered by employee.
What exactly is tendered by you; Notice of resignation or resignation with immediate effect?
Have you mentioned clear notice period/effective date of resignation in notice of resignation/resignation?
To whom you have addressed the notice of resignation/resignation: appointing authority, MD or some Line Manager/HR personnel?
What is the mode of submission: some software resignation tool, email (from personal or official email), letter by Redg. Post?
Do you have the copy/screenshots of notice of resignation/resignation, and acknowledgment of having submitted it?
The language does not in explicit manner states that notice pay for shortfall in notice period is to be deposited in advance.
Did you mention in notice of resignation/resignation or subsequent communications that NO Tasks are pending at your end and routine duties be assigned that can completed on daily basis within and upto expiry of notice period tendered by you i.e.dated……………….. and to whom you should handover the charge within dated……………………against proper acknowledgment on the spot………………………..and notice pay for correct notice period and rate be adjusted in FnF statement/settlement, ……………………and the acknowledgment of notice of resignation/resignation, acceptance of resignation, service certificate, relieving letter, FnF statement showing adjustment of notice pay for correct notice period and rate/leave encashment/bonus/reimbursements/incentives/earned wages,salary slip of all months, PF number with a/c slips of each year,ESIC card,NOC/NDC,Form16 as per correct FnF statement, Payment of FnF payouts, be supplied to you within and upto expiry of notice period tendered by you i.e.dated………………..?
Record all transactions now.
You may need these recordings and can use, if the need be, at appropriate time in appropriate forum.
Saravanan Kumar
(Querist) 19 July 2015
Hi,
In my initial mail, I didn't mentioned my last working date,
And they issued my appointment letter after I announced about my leaving.
Below are the subsequent emails I sent,
Further to my earlier email, I have a suggestion.
If you would consider allowing me to leave by 22-July-2015,
I'll firstly ensure all transition documents are ready and proper.
I'll do the knowledge transfer if you have identified a replacement.
If there is a delay, I will come later and provide Knowledge Transfer as it would not take more than 2 days.
I'll also promise not to tell anyone that I'm leaving.
And I'll leave it to you to announce my departure at a time and in the manner of your choosing."
Their reply is,
"There is not much change in the status since Sid spoke to you and explained the situation.
We have just started the recruitment process and few interviews have been lined up.
So we can’t discuss the relieving date until we have a solid insight into the new joiner.
I will keep you posted as we have an update for you.
Till then, please continue with your responsibilities as mentioned in my earlier email."
My next mail is,
"I request you to refer the point 10 in appointment letter.
I’m going for the buyout option, I’m serving 1 month notice from 23rd June to 22nd July, giving my June & July salary.
Though I’ve worked for a short span, I’ve made the products into better shape and better standard.
I do not expect anything else for my services.
I hope this is workable to both of us.
I would like to go on a happy note and professional manner.
It would be increasingly difficult for me to work in mental agony."
They replied,
"Thanks for the note.
I will pick it up with the management team and revert back to you next week.
In the mean time I have asked the accounts team to hold back your Salary payments tomorrow in light of your email below."
Almost 11 days since this mail, no updates from them despite repeated reminders.
Rajendra K Goyal
(Expert) 19 July 2015
You should keep the print of all the correspondence and emails exchanged. Send reminder to know the person to whom charge is to be given.
Kumar Doab
(Expert) 19 July 2015
You have posted that:
“And they issued my appointment letter after I announced about my leaving”
What was the date of issuance printed on appointment letter: actual date on which it was handed over to you or backdated to your DOJ?
Which date you affixed under your signature: actual date on which it was handed over to you or backdated to your DOJ?
To whom you have addressed your resignation emails: both without mentioning LWD and mentioning LWD?
Cover all previous communications and submit notice on paper (dated………………resignation by 1st email addressed to appointing authority, by redg. Post). Take help of elders in family/employee’s-trade union leaders/Lawyer to draft.
If employee has initiated retirement (separation) by resignation then employee shall choose the date of retirement.
Employee can not be held beyond date of expiry of notice period even if replacement is not recruited.
The reporting authority/HOD/employer himself may take the charge.
The salary can not be with held even if employee has resigned.
Moreover in your case the Bosses are unwilling to accept resignation hence can’t block salary.
Employee can lodge complaint the moment payment of salary is delayed even if by a day, and employer can be penalized by Inspector appointed under ( Name of the state) Shops and Commercial Establishments Act, Payment of Wages Act, O/O labor Commissioner
The notice period of 90days may necessarily not be applicable to you.
You can pick up relevant points from many similar queries at LCI e.g;
http://www.lawyersclubindia.com/forum/Salary-and-allaowance-not-paid-by-company-on-time-123797.asp
http://www.lawyersclubindia.com/forum/Notice-period-124032.asp#.VavW0bV-jMo
http://www.lawyersclubindia.com/forum/Notice-period-policy-124002.asp#.VavXDbV-jMo
http://www.lawyersclubindia.com/experts/Regarding-not-serving-notice-period--546791.asp#.VavX27V-jMo
Saravanan Kumar
(Querist) 20 July 2015
Sir,
My resignation is accepted, they want me to wait till they get replacement.
I'm working in their branch in Bangalore, the head office is in Ahmedabad, they sent me my appointment letter with current date by email. I've received original 3 days latter by post.
I didn't sign it as I already resigned.
I sent my resignation by email to HR copying my line manager(CEO).
Kumar Doab
(Expert) 20 July 2015
If you have carefully gone thru the threads mentioned above then your Labor Law Consultant may ask you a set of structured questions and may opine that you will be covered by the def. of 'Employee' as in Karnataka Shop and Commercial Establishments Act, 'Workman' as in ID Act......................and that as per the Act.................as per length of service the notice period can be say 15/30 days only..................and/or notice period during Probation Period is NIL...............and after confirmation 30days.........................and that if you have not accepted the T&C in appointment letter (not the appointment) that is supplied to you after you have resigned/your resignation has been accepted.................then NO notice period/pay is applicable to you.
Karnataka Shop and Commercial Establishments Act; Sec6A; The appointment letter has to be supplied to all employees in time. Your employer seems to have violated the Act.
You have not signed the acceptance of the appointment letter, however you have made a reference to appointment letter and affirmed to tender notice pay...............................as per your post that:
""I request you to refer the point 10 in appointment letter.
I’m going for the buyout option, I’m serving 1 month notice from 23rd June to 22nd July, giving my June & July salary.
"
Your employer may claim it as a deemed acceptance?
However you have tendered the notice period as in this Post and let the company install your replacement within 22nd July or let HOD take charge from you.
You have affirmed to do the KT even if you have separated.
In consultation with your lawyer/counsels draft final communications and build favorable written record.
