Withdrawl of resignation
Querist :
Anonymous
(Querist) 14 May 2020
This query is : Resolved
Employer asked me to resign thrugh mail on 20th march 20 and i resigned (Account head) thrugh mail, till date neither HR sent acceptance of resignation nor made F&F Payment so i sent mail to withdrawl of resignation on 6th of May 20.
HR replied As follows :
"We are in regular touch and have explained you the situation clearly. You are very well aware that lockdown started on 21st March and we couldn't visit to office and have very limited access to the data based on which we have to prepare your FNF.
Management has never stated that FNF will not be given, this situation is not in anyone's control and you are also well aware of the same.
Your payments will be cleared after lockdown till then don't write such mails and refrain yourself to write any statements. "
Still I came to know that director of company not willing to make payment as per terms and conditions of appointment letter.
Please suggest how should I proceed.
Raj Kumar Makkad
(Expert) 14 May 2020
Your facts constitute two contradictory stands.
One is related with the continuation to the present job whereas the another is clearance of your full and final dues.
You have not clearly stated in your facts which one stand you want to insist.
If you go for first then you shall have to prepare for a long legal battle as company is adamant to accept your resignation and thus wants to shunt you out and if you go for second option then you need to wait for the opening of the office of the company and need not worry.
The company is bound to clear your all dues which also stands confirmed with their latest mail. You should wait for some more time for getting full and final dues.
Guest
(Expert) 15 May 2020
6 th May 2020 the reply from HR would suffice. You just have to wait instead of sending repeated mails regarding this to your Office. Please wait till your Office gets in to normal functioning.
P. Venu
(Expert) 15 May 2020
Do you wish to withdraw you resignation and continue with the employer? If so, you may request so; however, the matter is at the discretion of the employer.
If not, you may inform the the employer that you will wait till the situation is over, but inform that there cannot be a case of retrospective acceptance of resignation.
The tone and tenor of the communication suggests he/she is a misfit for the carrying out the responsibilities of HR functions.
Rajendra K Goyal
(Expert) 15 May 2020
Supreme Court of India in Union of India (UOI) and Ors. v Gopal Chandra Misra and Ors. In that case, a constitutional bench of the Supreme Court had observed that,
“in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office-tenure of the resignor.”
The above ruling is not effective if
a) there are provision to the contrary in the contract of employment / service rules applicable to the employee or a legal bar on withdrawal; and
b) arrangements already made by an employer to find a job replacement, acting on the concerned employee’s resignation.
Rajendra K Goyal
(Expert) 15 May 2020
The acceptance of resignation was not conveyed to you till the date of withdrawal of the resignation.
F & F payments were not released and paid to you till date of withdrawal.
As there was no provision in service rules / appointment letter for preventing you to withdraw your resignation (please confirm).
Legally you have right to withdraw your resignation.
KISHAN DUTT KALASKAR
(Expert) 15 May 2020
Dear Sir,
First decide whether you wish to have salary or withdraw the resignation.
Rajendra K Goyal
(Expert) 15 May 2020
Since you have opted for withdrawal of resignation, do not follow up for payment of F & F settlement. Inform your company that you have withdrawn your resignation before its acceptance was conveyed , your salary need to be paid.
Raj Kumar Makkad
(Expert) 15 May 2020
You resigned on the asking of the company which means that you have accepted what ever dictated to you and in nutshell of your query, you are concerned more with the receipt of your dues hence better to wait for the outcome of the mail dated 06 May received from the company admitting your entitlment for the grant of said dues.
Dr J C Vashista
(Expert) 15 May 2020
You have not received any communication regarding acceptance of your resignation hence you may revoke/ withdraw it if you are willing to continue in service of the same company/ employer.
However, reply of HR is absolutely clear that your F&F is being calculated and will be sent to you, implies that the employer has accepted your resignation.
Search for some other suitable job.
Querist :
Anonymous
(Querist) 17 May 2020
Dear Sir
I am very grateful to you for your valuable advice .
somebody was telling me that one need to send Notice of 10(2)(A) within 15 days of withdrawal of Resignation so is it correct ? and what is the use /benefit of sending such Notice ? Is it advisable to send notice at this juncture ?
Secondly if organisation does not pay full & Final as per terms and conditions of Appointment letter should i accept it ? if i do not accept it what is legal course ?
Regards
Raj Kumar Makkad
(Expert) 17 May 2020
Unless you withdraw your resignation and get the responce of the company, how and why should you think over imaginary questions? Why are you preparing a case when you have no facts to proceed?
Assumptions and presumptions do not lead a person to a correct place.
Querist :
Anonymous
(Querist) 17 May 2020
Dear sir , I have already sent following mail to them on 6th May 20 :
Dear Sir/Madam
It is in reference to your mail dated 20th March 20, I have been told that you would pay my entire full and final settlement including Notice pay, Pending Annual pay and other Pending dues and salary within 15 days , as per this assurance I had tendered my resignation dated 20th March 20. But till date neither you had accepted my resignation nor paid my dues . You had taken my resignation fraudulently , so I withdraw back my resignation . I may kindly allowed to join Services.
Regards
Guest
(Expert) 17 May 2020
Sorry to Repeat.-- Please wait till your Office gets back to Normal Functioning
P. Venu
(Expert) 17 May 2020
"Fraudulently" has been inappropriate expression. It would have been better if your had informed the employer that you had not submitted the resignation willingly, but only because you were told/instructed to submit your resignation.
Rajendra K Goyal
(Expert) 17 May 2020
You said:
Is it advisable to send notice at this juncture ? Secondly if organisation does not pay full & Final as per terms and conditions of Appointment letter should i accept it ? if i do not accept it what is legal course ?
Reply:
You have submitted your resignation and claim that you withdraw your resignation before acceptance,
You have right to withdraw resignation before it is accepted and conveyed to you.
In the given circumstances, a practical advice is that company may not allow you to continue till senior management oblige / is convinced due to your track record / services / high reputation. You can through away your ego and request senior management to allow you to continue, as the job position in the market is not favorable.
Alternately You may search and join new job first and after that may proceed legally against the company. You would be having source of income in such circumstances.
Rajendra K Goyal
(Expert) 17 May 2020
You send the mail:
Dear Sir/Madam It is in reference to your mail dated 20th March 20, I have been told that you would pay my entire full and final settlement including Notice pay, Pending Annual pay and other Pending dues and salary within 15 days , as per this assurance I had tendered my resignation dated 20th March 20. But till date neither you had accepted my resignation nor paid my dues . You had taken my resignation fraudulently , so I withdraw back my resignation . I may kindly allowed to join Services.
Reply:
It seems you have sent above mail after receiving the information that F & F are being released in short time. It shows the company has accepted your resignation. Clearly withdrawal of resignation would be difficult after receiving this mail.
If F & F are not in accordance to terms and conditions of employment, you can accept under protest and take up with the company afterwards.
Raj Kumar Makkad
(Expert) 17 May 2020
There is no use to remain in the private sector company wherein you have been advised to tender resignation. You shall not find healthy atmospherre and ultimately shall have to go out so better not to tease the bosses and wait for the due payments, you mentioned in the mail. The company has rightly advised you to wait for some more days.
Rajendra K Goyal
(Expert) 18 May 2020
As advised earlier, either use any link with high ups of the company to give you a chance or search another job.
90% chances are there that second option would be available in such cases, first option is hard to avail / get.
Querist :
Anonymous
(Querist) 22 May 2020
Dear Sir
after continuously follow up , i got following revert from said company today ,Meanwhile as per appointment letter there are two month notice pay out of that they are paying just for one month only and even for one month they are paying just 30% of salary for 22 days being lock down and neither they mentioned for annual pay for last two year pending nor mentioned for earned leave of three years , May i request you to please suggest on this :
Regards
Quote open
"Dear Sir,
Please find enclosed the calculation of your FNF. Please note the calculation is being done in two ways, due to Lockdown the payable amount is being calculated separately, this calculation is being followed across the company.
Employee Name : Virendra C
Gross Salary : 85973 Amount
1 - 13th March - 13 Days Present 36,053.19
14 - 22nd March - 9 Days Before Lockdown (Notice Period Calculation) 24,959.90
23rd - 31st March - 9 days (Remaining Notice Period Calculation) 7,036.60
1st April - 13 April - 13 Days After Lockdown (Remaining Notice Period Calculation) 10,502.27
Total Payable (Without Tax Deduction) 78,551.97
Note: 1. Sanjeev ji will let us know in case any tax to be deducted. Kept him also in the loop to revert.
2. Based on the final calculation, I will be sharing a FNF statement sheet, which you need to sign and revert to process your final payment. " Quote closed
Rajendra K Goyal
(Expert) 23 May 2020
You may accept the payment under protest (without prejudice, under protest, without affecting right to claim actual entitlement, without right to proceed legally in case of need for resolving pending issues). Send e-mail followed by the hardcopy regarding your actual entitlement after receiving the proceeds.
If no reply of your e-mail received, contact your lawyer and send legal notice.
Simply, if you accept the F & F under protest, you have right to approach law.
Raj Kumar Makkad
(Expert) 23 May 2020
The contents of the mail especially the calculation of your full and final dues is totally against the settled procedure of law. You have every right to challenge the same before proper court of law. You should reply the mail accordingly and even if the ompany insists for the said erroneous payment then accept the same under protest mentioning specifically in the communication of the company.
Querist :
Anonymous
(Querist) 29 May 2020
Dear Sir
Actually this organisation ask to sign F&F In following format before release the amount and if write word as told as aforementioned (like without prejudice , under protest , without affecting claim to right entitlement etc) it get extra alert .
While sending the signed copy of following F&F letter , IF I just write in mail body that though i am accepting it but it is injustice to me that you are making payment of x amt instead of this amount ,like that , will it work ?
Quote Open "
Full and Final Settlement format This organisation ask to sign
IN CONSIDERATION of the payment to me of the sum of Rs 18581/- (Eighteen Thousand Five Hundred Eighty One Only) , receipt of which is hereby acknowledged, I, Shamikant on behalf of myself, my heirs, administrators and assigns (hereinafter collectively referred to as the “Releasor”) hereby release and forever discharge Skddd xxxxx Pvt. Ltd. and each of its respective officers, directors, employees, servants and agents, and their successors and assigns (hereinafter collectively referred to as the “Releasee”) jointly and severally from any and all actions, causes of action, contracts and covenants, whether express or implied, claims and demands for damages, indemnity, costs, interest, loss or injury of every nature and kind whatsoever arising, which I may heretofore have had, may now have or may hereinafter have and without limiting the generality of the foregoing, all claims in any way relating to the hiring of, the employment by or the termination of employment of the Releasor by the Releasee and I hereby specifically covenant, represent and warrant to the Releasee that I have no further claim against the Releasee for or arising out of my employment or cessation of employment which specifically includes but is not limited to any claims for notice, pay in lieu of notice, wrongful dismissal, severance pay, bonus, overtime pay, incentive compensation, interest, vacation pay or any claims under any employment or human rights legislation.
AND FOR THE SAID CONSIDERATION I further covenant and agree to save harmless and indemnify the Releasee from and against all claims, charges, taxes or penalties and demands which may be made by any governmental authority.
IT IS UNDERSTOOD AND AGREED that the giving of the aforementioned consideration is deemed to be no admission of liability on the part of the said Release, said liability in fact being denied.
IN WITNESS WHEREOF I have hereunto executed this Release by affixing my hand and seal on June, 19/10/2015 in the presence of the witness whose signature is subscribed below.
Date: 19/10/2015 __________________________________
…………………………………………..
………………………………………….
Name & Signature of Witness [NAME OF EMPLOYEE SIGNING RELEASE]
Quote Closed"
Raj Kumar Makkad
(Expert) 29 May 2020
You should mention that I am signing here under threat and undue influence and do not accept the calculation made herein and reserve my right to take appropriate action, if the company allows otherwise a separate mail on the same day and time may be sent to the company so that it may not be inferred that you have accepted the full and final payments and accordingly may not lose your right to agitate.
Rajendra K Goyal
(Expert) 30 May 2020
By signing said certificate, it may be possible that your claim for balance may be rejected.
Before accepting you can represent to your company regarding your claim calculated by you. Let the company decide.
Or you can write the said suggestions with words you reserve your right to claim if any mistake in calculation if revealed or any statutory payment not included. Company may withheld your F & F in such situation.
Raj Kumar Makkad
(Expert) 30 May 2020
The discent note should be give simultaneously so that you may get the payment to some extent which is being offered to you and rest shall come under litigation.
Rajendra K Goyal
(Expert) 31 May 2020
Your priority should be to get what is being offered, you must mention that you reserve your right to approach law regarding deficiency in calculated amount.
In some cases, court has rejected claim filed after submitting such certificate.
