Resignation
Dillibabu
(Querist) 12 January 2014
This query is : Resolved
Sir,
I am worked in MNC and resigned now. I give the resignation date for within 30 days working and balance pay money for company (As per company policy 90 days working or pay money for 90 days). But they denied and resignation date is changed more than 90 days. I need to join the new company within 35 days. Kindly give the advice for the issue.
Anirudh
(Expert) 12 January 2014
Dear Dillibabu,
When you are aware that your company policy is that you should give 90 days notice period, you should have asked for atleast 90 days time, if not more, to join the new company.
Since you will not be properly relieved by your old company, the new company will not take you without proper relief letter.
Therefore, you have to request your old company to some how relieve you. I hope you are ready to pay the 90 days money to the old company.
There is no other legal remedy available to you. Even if you go for any legal course, it will not be over within 35 days (the period within which you have to join the new company).
All you youngsters have to think several times, before taking action. First you take things for granted, land up in problem and then seek solution - which is called putting the cart before the horse!
malipeddi jaggarao
(Expert) 12 January 2014
Settle the matter with the present employer. Then only they will give you relieving letter.
Advocate. Arunagiri
(Expert) 12 January 2014
Normally every company will a clause regarding the notice of termination of service
"30/60/ 90 days notice or in lieu there of".
The word in lieu there of means, you have to buy the notice period.
Without knowing the exact clause mentioned in your appointment order, I can not give more suggestions.
ajay sethi
(Expert) 12 January 2014
it appears you have given 30 days notice period and paid the company for balance 60 days . however company is insistent on you serving 80 days notice period and declined to accept payment . it is generally at the discretion of company . better serve for balance period . inform your new employer your inability to join after 35 days .
Adv. Chandrasekhar
(Expert) 12 January 2014
1. Talk with the new employer and tell your difficulties. If he does not want to extend the period, ask him whether he would allow you without clean releaving letter from the present employer. If he says O.K., then-
2. Cajole the present employer to relieve you by accepting 90 days notice. Immediately complete all the tasks lyinng with you in respect of present employment within 30 days available period. If he does not relieve you after 30 days, just pay the remaining 60 days salaray and leave the job and join the new job, as he does not demand clean releaving letter. If the present employer initiates any legal action, challenge it as you will definitely succeed on the ground that he is ingringing your fundamental right by imposing unreasonable contractual provision.
R.K Nanda
(Expert) 12 January 2014
agree with experts.
Rajendra K Goyal
(Expert) 12 January 2014
Have amicable solution before saying good bye to your old company. Also take up with your new company about the condition.
Kumar Doab
(Expert) 12 January 2014
>> The new employer wants you onboard within 30 days. To serve the self centered, selfish, single minded interest of this employer you should negotiate properly so that your interest is also not compromised and employee does not suffer any legal injury.
This is the 1st thing you should do.
This employer that has kept joining period of 30 days for incoming employees might have kept 90 days notice period for outgoing employees. Thus this employer is protecting his interest.
Therefore you should also defend interest in the best possible manner.
During interview the sensible recruiters do ask the candidate ‘What is the notice period of resignation?’ and usually it is also a question asked and also ‘Within how much time you can join’ in................... ‘Employment Application’.
In a hurry to get job the candidates usually write 30 days even if the notice period of resignation is 90 days.
The candidate must inform during interview 90 days and write 90 days only..............................and negotiate with employer that next employer should tender payment of notice buy out to candidate and confirm in writing that candidate shall be absorbed without relieving letter, and relieving letter /service certificate shall be removed from check list of documents to be produced by new joinee.........................
>> The candidate that is joining a new company must negotiate service conditions like notice period/pay in lieu of notice period properly and must demand that it should be say 30 days for the employee..................................
Service conditions that are negotiable should be negotiated during interview and before joining so that offer letter and thereafter appointment order are drafted accordingly.
If it is stated in offer/appointment letter that service shall be governed by HR policy/service codes and regulations as applicable from time to time, employee should demand certified copy of the same before signing the offer/appointment letter.....................................and should have the nerve to write that the same has not been supplied despite demands, before signing the appointment letter.
Once the appointment letter is accepted it shall supersede offer letter.
30 days notice period by all counts is enough for the employer to put his house in order.
>> Before you separate ensure that all tasks/assignments on hand are all completed and a written record with a copy to you as evidence is with you.
You may affirm in notice of resignation/subsequent communications addressed to good offices of appointing authority, MD (preferably by redg. post) that no task is pending at your end to whom you should handover the charge (under proper acknowledgment on the spot) and routine duties should be assigned that can be completed on daily basis within and up to last day/date in office i.e. dated............................................and exit formalities if any be completed by employer.
Demand acknowledgment of notice of resignation in writing along with COPY OF STANDING ORDERS APPLICABLE TO THE ESTABLISHMENT AND YOU, service codes and regulations of the establishment........................ at once by redg. post and acceptance of resignation and that within and up to close of office hours of last day in office acceptance of resignation, service certificate, relieving letter, Correct FNF statement for verification and acceptance by you, payment of FNF dues by bank DD only, Form 16 as per correct FNF statement, PF number-account slips for whole tenure of service, ESIC card, NOC/NDC etc be supplied by redg. post only.
>> If employer feels that the due to non service of notice period it may suffer financial or some other loss and employee is unwilling to indemnify the employer than it can emphasize that employee should serve the full notice period.
In such a case employer should in explicit language specify the reason and imminent loss and can also cite liquidated damages...........................
Liquidated damages are not to paid on just demand and need to be established.
>> For applicability of Notice period and service conditions appointment letter alone should not be looked into.
Standing Orders applicable to the establishment (Model/Certified) and extended to the designation of the employee, service codes and regulations should also be looked into.
Standing Orders shall prevail upon any private agreement that employer has signed with employee e.g; appointment letter, contract of employment etc...............................If notice period in standing orders in NIL it can’t be even 1 day in appointment letter. Employer PERSONALLY is held responsible for faithful observance of standing orders.
Standing Orders are to be necessarily:
- displayed at a conspicuous place/near entrance/on notice board.............
- are to be supplied in the form certified copy to employee on demand may be against a nominal charge sayRs.10.
Employee or any one can obtain certified copy from CO (Certifying Officer) that me be DLC in O/O Labor Commissioner at location of redg office of the compnay.
Therefore before believing that notice period of 90 days is applicable in your case ..........................you must examine these and seek help from a competent and experienced labor consultant/service lawyer and show all such rules and conditions.
The MNC shall on its part scream that standing orders are not applicable to you, you are not covered as ‘Workman’ as in ID Act, ‘Employee’ as in Shops and Commercials Establishments Act, and the relations ship is that of ‘Master and Servant’ and ‘Specific Relief Act’ shall apply and contract of personal service can’t be enforced in court of law.
However your lawyer may ask you as set of structured questions and may opine that you are covered.
Designation alone does not decide employee shall not be covered or not.
If standing orders are not applicable the service conditions including notice period, notice pay may be as per job advt., offer letter, appointment letter, service rules......................
You may go thru:
http://www.lawyersclubindia.com/experts/Standing-orders-442266.asp#.UtKr1dIW1MA
>> Date of resignation, notice period, last day in office can not be changed by any other than you..............................!!
Do you mean to say that date of resignation has been overwritten, erased by unfair means by some one in office...............................????
>> Did you submit notice by some internal ‘Resignation Tool/Software’ of the company?
Even if yes is it the date of resignation that is changed or date of relieving is mentioned as 90 days+ from date of resignation?
Even if you have submitted notice by some internal ‘Resignation Tool/Software’ of the company the date of resignation, notice period tendered by you can not be changed........................................Since employee has decided to retire by resignation, the employee alone shall decide his date of retirement from establishment.
Even if establishment has introduced some internal ‘Resignation Tool/Software’ of the company, the employee should still prefer to tender notice/resignation by redg. post and if required may enter the resignation dated....................submitted by resg. post in resignation tool.......................................
>> If it stated in appointment letter that it is Notice period or notice pay in lieu of it then it is the max. liquidated damages that employee may have to pay.
Employee can and should request good offices to waive off the period/pay.
Employer can waive off.
Employer can deny waiving off notice period and may demand notice pay.
Employer can deny waiving off notice period and may remain silent on demand of notice pay.
Employee can write to adjust notice pay if applicable in FNF statement and send it for verification and acceptance and issue Form 16 as per correct FNF statement only.
Employee can tender notice pay by cheque and demand receipt of the same and its computation and adjustment in FNF statement and issuance of Form 16 as per correct FNF statement only.
If next employer is buying out notice period and current employer does not reduce FNF amounts by notice pay the employee may suffer double I.Tax.....................
>> Handle the matter with cool mind. Remain amiable and gentle.
But Firm.
Employee should always apply rapport, goodwill, and exceptional levels of persuasion, persistence, negotiation, reasoning skills. All skills can be acquired.
T. Kalaiselvan, Advocate
(Expert) 13 January 2014
