Notice period clause advise
Tushar Bose
(Querist) 02 December 2014
This query is : Resolved
Dear Sir,
I have currently resigned from my current org on 25th Nov 14 and have asked for relieving on 7th Jan 15. So i am serving 43 days out of my notice period of 90 days.There are adjustable leaves of 17 days also. But my HOD is compelling me to serve complete 90 days and HR is nt giving me relieving too asking me to get my reporting boss approval for an earlier relieving date of 7th Jan 15. Below is the extract of my appointment letter signed and agreed by me at the time of joining: "In the event of your resigning from the services of the Company, you will be liable to serve " notice period" of 3 months (90days) or pay a sum equivalent to the basic salary for the number of days un served, which will be calculated from the date of resignation letter to the date of relieving. Relieving letter will not be issued unless the amount, based on the above is settled by you, along with any other dues payable to the Company." Pls can you provide me advise on the legal impact of the same...Even I am ready to pay as mentioned in my terms of appointment for the residual 37 days. But they are not giving me option to pay and go and HR is writing on mail that I have to take approval of my HOD for early relieving date. Pls advise should I drop mail to HR offering in writing to pay and relieve me considering the legal impact.
Tushar Bose
ajay sethi
(Expert) 02 December 2014
1) you should write to HR dept offering to pay the shortfall of 37 days
2) it is at the discretion of the company whether to accept sum equivalent to basic salary for number of unserved days .
3) take relieving letter and leave company on amicable note
Tushar Bose
(Querist) 02 December 2014
bt on the appointment letter notice period clause as no subject to approval of company.. Shall leave co only on amicable note bt jst wanted to know the legal impact strictly as per the appointment letter clause agreed and signed.
ajay sethi
(Expert) 02 December 2014
the clause as reproduced by you gives you an option either to serve 90 days notice period or make payment for shortfall . under said clause company cannot direct you to serve the notice period
Rajendra K Goyal
(Expert) 02 December 2014
You have to serve or pay as per appointment letter. Try to have amicable solution while leaving your company.
Dr J C Vashista
(Expert) 02 December 2014
I agree with experts, either you serve for 90 days or pay for remaining period of notice.
Kumar Doab
(Expert) 02 December 2014
remain amiable and gentle.
You must not remain entangled with HR personnel/HOD that to in verbal mode....
Submit notice of resignation addressed to appointing authority, MD preferably by letter thru redg. post an cite the clause number...........in appointment letter dated..............issued to you............claim that NO TASKS ARE PENDING AT YOUR END...........and routine duties be assigned to you that can be completed on day to day basis within and upto your last date in office/expiry of notice period tendered by your i.e dated...............to whom you should handover the charge/company property against acknowledgment on the spot..........and that CORRECT notice pay as per correct notice period applicable to you be adjusted in FnF statement and original be supplied to you for verification and acceptance............and neccessery arrangements be made for smooth handover/exit within and upto expiry of notice period i.e. dated.............and acknowledgment of notice and acceptance of resignation,service certificate,relieving letter, FnF statement,payment of FnF dues,salary slips of all months,PF number and a/c slips,ESIC card, Form16 as per correct FnF statement, NOC/NDC etc be supplied to you within and upto close of last date in office...........
Narrate all representations in minutes in a gentle manner and build suitable and favorable written record..
You may refer to the HR policy/Service Rules and Regulations too,mention of which is made in appointment letter..........and check of any approval etc is mentioned...and counter it properly...
Since option of notice pay in lieu of notice period can be excercised the HOD should grant approval.....
The extract from appointment letter reproduced by you states in explicit language the option notice pay in lieu of notice period.
43 days of notice is sufficient for the employer to put his house in order,arrange for replacement/handover or the HOD must conduct handover..........otherwise too handover of charge can be given to HOD...
Notice period of 90 days may not be neccessarily applicable in your case.
Notice period/pay is part of service conditions that are governed by various enactments applicable to the establishment ::::::and IT companies are governed by it................e.g.standing orders (certified/model........................if standing orders are not certified then model standing orders shall apply) , Shops and commercial Establishments Act that was enacted to govern the service conditions of employees working in such establishments..............
Model Standing Orders::The notice period/pay in probation period is NIL and after confirmation period 30 days......and service certificate has to be issued to all employees....
Shops and Commercial Establishments Act ::: It is as per length of service period and max.30 days as per length of service...
These being instrument of law/statue/enactment shall prevail upon any private agreement that employer has signed with employee e.g. appointment letter/contract of employment.....
While your company would love to claim that you are not covered by any of the enactments your lawyer may ask you a set of structured questions and opine that you are covered......
Such incidences are just situations and majority of the times situational management can address the problem.......
However if becomes test of nerves and you re unable to handle entrust ther matter to your Labor law consultant/Service matter lawyer.......and proceed under his expert advise.
T. Kalaiselvan, Advocate
(Expert) 06 December 2014
Well advised by experts, better leave the company amicably lest you may have to approach a new company with a dent in your career.
Tushar Bose
(Querist) 16 December 2014
Thanks for the expert opinion. As of now I am trying my level best to leave the Co on amicable terms. But there is a probability that might end up into a deadlock with my HOD as he is not giving me an early relieving date approval. As per HR they cannot process my relieving till early relieving date concurrence is given by HOD. Under the circumstances referring to the buy out policy explicitly mentioned in my appointment letter in case my new co does not defer the joining date till the completion of 90 days in my current co then if I leave after giving all proper correspondence but without early relieving date concurrence I shall be issued a show cause notice from the HR and referring to my appointment letter will I be able to get my relieving letter. Pls advise.
I know scenario shall be my least most option and I am still trying my best to get the relieving letter on amicable terms but if I land up into the above deadlock my future shall be at stake. SO kindly advise wot measure should I take then. Thanks in advance. Tushar Mob: 9956589787.
