Asking for resignation.
ASRUJ@aratrika
(Querist) 02 May 2015
This query is : Resolved
Dear Seniors,
I have received a letter on today from my management which is self explanatory.
Dear Sir,
It is with deep regret to inform you that effective June 1, 2015, you shall be relieved from your present position with the company.
As you know our business has been reduced significantly over the last 6 months and as a cost control measure we are forced to reduce our workforce although your work was satisfactory.
Therefore we advise you to submit your resignation letter with effect from the close of business hour on May 31, 2015 in order to settle your account.
Wish you all the best in your future.
Thanking you.
Authorised signatory
I would like to inform that I have been working with this Co, about 10 years but I never received any appointment letter.I have payslips and salary paid by cheque. This is a proprietorship Co and my wife is also working in the same co. Management do not pay gratuity nor they know about retrenchment benefit. PF has been deducted regularly. I do not have any designation nor I am a management cadre. This sort of letter have been issued in last 2-3 months to other staffs also.
Based on the facts as above please suggest what should be my approach. Should I resign as asked without claiming retrenchment benefit and gratuity to protect my wife's job (that may not last long even if i forego my legitimate dues) or should I refuse to resign and insist management to retrench with retrenchment & gratuity benefit. What are the other options I can explore.
Kindly suggest since you can understand the situation.
Thanks & regards
Kumar Doab
(Expert) 02 May 2015
You have been posting the query(ies) for quite some time, as HR person and have been advised in detail.
1. Obtain detail of the assets of Prop.(s)/Establishment.
In case the legitimate dues are not paid the Lawful Authority can proceed to recover from assets................e.g. Gratuity.
How to claim Gratuity has been explained in your other post(s).
2. The employee can not be asked to resign, however the employer can proceed to terminate/retrench/lay off.
3. You and your wife both are employed thus you have double amounts at stake.
You should certainly visit an able labor Law Consultant/Service matters lawyer/Law firm in person with whatsoever documents you possess and proceed further under expert advise of your lawyer.
Dr J C Vashista
(Expert) 03 May 2015
1. Well advised by expert Mr. Kumar Doab, I agree.
2. However, there is difference between proprietorship and a company and the law applicable on the subject matter, be clear.
3. As stated by you the company has issued statutory notice for termination of your service and not vice-versa that you may be asked to submit your resignation. You should not submit your resignation.
4. For arrears of legitimate dues issue legal notice through a local prudent professional lawyer.
5. For payment of gratuity/PF the company cannot withhold, ask them to pay, if eligible, through your lawyer.
Sudhir Kumar, Advocate
(Expert) 03 May 2015
you never received appointment letter. Fine. No problem.
But you have PF account and present letter in hand. SO you have a proof that :-
(i) you were employed
(ii) you are retrenched due to fall in business.
In retrenchment cases your eligibility is much more than gratuity (which even otherwise will not be paid without litigation) which you do not enjoy in case of resignation you lose the same.
Let the employer be not aware of any provision of law. It is the job of court to execute the law.
Rajendra K Goyal
(Expert) 03 May 2015
Consult a labor law consultant and claim your dues. Meanwhile search for another job for both
Kumar Doab
(Expert) 03 May 2015
In other threads you have mentioned that you are HR person:::::::!
Are you a HR Manager or HR executive?
What was your designation and nature of duties:::how many persons were reporting to you:::Did you have power to sanction ( or recommend……clarify) leave/increment/appoint/terminate?
Did you ever sign such documents?
Your able labor Law Consultant/Service matters lawyer/Law firm can help you to understand that you are eligible for retrenchment compensation or not!
You should certainly visit an able labor Law Consultant/Service matters lawyer/Law firm in person with whatsoever documents you possess and proceed further under expert advise of your lawyer.
ASRUJ@aratrika
(Querist) 04 May 2015
Dear Sir/S,
I take this opportunity to express my gratitude to all of you for all the invaluable posts.Based on all the opinions I have few query as below:-
1. Should I reply to the letter or simply ignore and stay quite.
2. If I reply what should be the content of the letter. Should I point out that asking for resignation is not legal and wait for the management to react.
3. Should I reply this letter through a Law consultant or myself can write.
Kumar Doab Sir- FYI. Yes I am a Hr person with Generalist profile but in my present Co. I am not designated for any thing as any other employee. I used to do the jobs as required in my position but no signing authority. No body is reporting to me since only person is authorised for all the acts is the Authorised signatory.
Look forward to your valuable inputs as always.
Thanks & regards
Kumar Doab
(Expert) 05 May 2015
You may preferably proceed under the expert advise of your able Labor Law Consultant/Service matters lawyer/Law firm.
Labor/Service matters is altogether filed of law and a few counsels in each city specialize in it and usually such matters are referred to them.
Your counsel after examining all docs on record can advise you further and structure your representations to suit your long term interest.
The establishment has not indicated that it is closing down. It has to submit notice to o/o Labor Commissioner before closing down.
It has only indicated that it is resorting to cost Control.
Since no appointment letter is issued to you (with designation,KRA's,Profile) the only evidence about nature of your duties would be office record.................that is why you were asked to reply to certain points.
If your counsel opines that you would be covered by definition of 'Employee' as in West Bengal Shops and Estb. Act, and as 'Workman' as in ID Act then he/she may also opine that you can seek retrenchment compensation, too......
Seek counsel of an able Labor Law Consultant and spend quality time on it.
Sufficient has been discussed in all threads initiated by you. Now it is your turn to act in time.
T. Kalaiselvan, Advocate
(Expert) 05 May 2015
You have been properly advised about the issue in details by experts above. For all further issues you may take the help of a local advocate and proceed.
ASRUJ@aratrika
(Querist) 16 May 2015
Dear Sir/S,
I would like to thank you all for the invaluable advise you all have put in. Since I am not afford to hire an able legal practitioner at this point of time, I have decided to reply personally to the letter given by the management. I have drafted a letter which I enclose herewith for all the kind hearted experts for your view and if possible rectify where ever needed.
Draft of the letter
Dear Sir,
"This has reference to your letter dated May 2, 2015 demanding my resignation from service with M/s.-------- Company with effect from June 1, 2015.
I decline to submit my resignation as you have demanded since demanding resignation from any employee is not only unethical but not permissible under the prevailing laws of the land.
Therefore I request you to withdraw your letter dated May 2, 2015 and if I do not receive any communication from your end within May 31, 2015 it shall be deemed that your letter dated May 2, 2015 stands null and void and my service with the Company shall continue undisturbed as I have been continuing for last 10 years.
Look forward to your affirmative action in this regard and help me to discharge my spirited service to the company as always."
End of the draft
I have planned to submit this letter on May 28, 2015 giving as less as possible time to react/reply. On 1st of June if I am not permitted to enter I planned to go for a FIR with a plea of forceful restrain to my place of work and thus affecting my livelihood which is a fundamental right.
I look forward to your suggestion and guidance as well from all the experts.I am sure experts will not deprive me at this crucial juncture and I thank you all once again anticipating your valuable inputs.
Regards
Kumar Doab
(Expert) 16 May 2015
You alone are closest to the facts and the lawyer that has examined and analyzed your inputs and documents can advise you the best and draft your representations.
Online discussions have its own limitations.
Visit the Labor Court yourself in person and find out about the lawyers, trade unions leaders practicing there...............and discuss with them in person.
Firm up your next venture also ASAP.
T. Kalaiselvan, Advocate
(Expert) 16 May 2015
Instead of asking for help in prosecuting or initiating legal process this way in an open forum like this, better send PM to experienced and talented experts here of the like Mr. Kumar Doab, take their time and consultations as per their terms and proceed with your proposed case accordingly.
