Re-leaving & full n final
vikaschauhan
(Querist) 11 June 2015
This query is : Resolved
Hi Sir/Mam,
I resigned my organization on 23rd April’15 after receiving a verbal confirmation from my manager & intimidated 5th June’15 as my last working day. I also agreed to pay off all my dues. I have a notice period of 2 months mentioned in my offer letter but my manager assured me that I can get a buyout for 15 days & I can serve a notice period of 45 days only.
On the basis of the verbal confirmation form my manager I committed my future employer that I can join them on 8th June’15. But at the time of my releasing me the management & the HR said that I have to serve full 2 months’ notice period.
I mailed the management & the HR on 5th June’15 that I would not be continue my tenure with the company & consider the day as my last working day. I also stated that I have given the complete handover of my responsibilities & created my backup.
I stated that I would be happy to settle my account in the full & final statement in lue with the buyout deductions. The company has my 35 days salary pending with them & I had 9.5 days leaves in my account (privileged & sick cum casual).
On 9th June’15 I received a mail from the HR manager say that I have not been released from my duties from the company as the exit checklist was not signed from any of the department & I have to serve my full notice period. He asked me to turn up for the employment.
As I have already joined my new company on 8th June’15 as I have committed them so. I asked them to consider 5th June’15 as my last working day & settle my account as per the company norms in the full & final settlement.
On 10th June’15 I received the mail form the HR manager that as per my offer letter I need to serve 2 months’ notice period I have failed to do so. Hence the company would not be relieving me & my case would be considered as a “Absconding” case.
Have I really Absconded? What can I do to get my full & final settlement & my relieving letter & experience letter?
Kumar Doab
(Expert) 11 June 2015
Moral of the story once again is: Verbal Transactions are not on record!
It is suggested that you must consult an able Labor Law Consultant/Service Matters Lawyer/Law Firm dealing in Labor law matters with all docs/communications including SMS/Emails/phone calls on record ASAP, spend quality time with your counsel, understand the merits and remedies and preferably proceed under expert advice of your counsel..............and let your counsel draft your communications now.
You could have atleast obtained the comments of reporting authority on your copy of notice of resignation/narrated the verbal approval in notice or subsequent communication!
You may post the extract of clauses in your appointment letter ( even HR policy/service rules and regulations/conduct and discipline rules etc mentioned in appointment letter) on separation/termination/exit policy etc.................verbatim.
You may reply to the HR Manager that you have properly resigned and have not absconded and the charge should be withdrawn in writing.
What is this establishment registered as: Commercial,Industrial?
What is its line of business:IT,ITeS,banking etc?
How many maxmimum persons are employed in it at any point of time?
The Redg Office,Corporate Office of the company, and your reporting office was located in which state?
What was your designation and nature of duties?
Do you have leave policy, HR policy,Service Rules and Regulations,Conduct and Discipline Rules, Exit policy that are mentioned in the appointment letter?
Did you sign any BOND? If yes The BOND was created in lieu of what: some certified training paid by employer from some certified Intt. That added to your qualification or some extra ordinary favor and expenses from employer?
Was any appointment letter,salary slip of each month,PF number with a/c slips,ESIC card,Form16 given to you?
Did you resign in writing under proper acknowledgment (followed by letter under acknowledgment or by Redg. Post) , and mention NO tasks are pending at your end and to whom you should handover the charge? Do you have acknowledgment of having handed over the charge/assets or created the back up as mentioned by you?
Did you fill, sign the so called exit checklist and submit it? If yes do you have the copy and acknowledgment?
Has acknowledgment of notice of resignation, supplied to you?
Are you a member of any employee’s/Trade Unions?
What was your monthly salary?
You may reply to all points , pointwise!
vikaschauhan
(Querist) 12 June 2015
What is this establishment registered as:
Ans: Commercial / Corporate
What is its line of business:
Ans: Real Estate
How many maximum persons are employed in it at any point of time?
Ans: 50k+ Globally & 250+ in Gurgaon office
The Redg Office / Corporate Office of the company:
Ans: Mumbai
My reporting office was located in which state?
Ans: Gurgaon, Haryana
What was your designation and nature of duties?
Ans: Analyst - Operations & I was into accounts payable
Do you have leave policy, HR policy,Service Rules and Regulations,Conduct and Discipline Rules:
Ans: Yes, the company have all these policies
Exit policy that are mentioned in the appointment letter?
Ans: I'll provide this later as I dont have my offer letter with me right now
Did you sign any BOND? If yes The BOND was created in lieu of what: some certified training paid by employer from some certified Intt. That added to your qualification or some extra ordinary favor and expenses from employer?
Ans: No I have not signed any BOND
Was any appointment letter,salary slip of each month,PF number with a/c slips,ESIC card,Form16 given to you?
Ans: Yes I have the offer letter, salary slips & the PF number
Did you resign in writing under proper acknowledgment (followed by letter under acknowledgment or by Redg. Post)
Ans: Yes I resigned in written after receiving verbal confirmation from my manager.
mention NO tasks are pending at your end and to whom you should handover the charge? Do you have acknowledgment of having handed over the charge/assets or created the back up as mentioned by you?
Ans: No I dont have the acknowledgement of the hand over but I have mentioned this this thin I the mail to the HR
Did you fill, sign the so called exit checklist and submit it? If yes do you have the copy and acknowledgment?
Ans: No I did not completed the exit formalities
Has acknowledgment of notice of resignation, supplied to you?
Ans: NO there was no written communication form the management or HR on my resignation mail. neither the acceptance nor the rejection
Are you a member of any employee’s/Trade Unions?
Ans: I believe NO
What was your monthly salary?
Ans: It was around 22k
Kumar Doab
(Expert) 12 June 2015
If you are not a member of any Employee’s/Trade Unions and do not have access to an able Labor Law Consultant/Service maters lawyer/law firm, then it is your fault/discretion/choice.
Employee should be a member so as to be properly informed and supported.
Like one has a family doctor employee should have counsel of a trusted lawyer too.
In certain and such situations support of unions and lawyer is warranted.
It is upto you to agree/disagree to sign any so called Exit Form that is quoted to you after expiry of 45 days long notice period tendered by you, final resignation, and after you have separated by resignation………………..However since a dispute has precipitated it is your call to take your employee’s union/Trade Unions leaders/lawyer with you when you visit the company (after taking leave from current employer) and record the meeting (audio/visual/minuted/witnessed).
If you can resolve amicably, nothing like it. However build favorable written record.................as it is almost certain that you will suffer damages from HR/company.
The charge of ‘Absconder’ is leveled by past employer, so as to allege misconduct, issue some 2-3 communications and then terminate in internal records, deny termination-notice pay, and relieving letter as per some internal policy of the company, post adverse comments in BGV etc.
‘Absconder’ is a derogatory word. You can sue the person stating such word.
First of all forge strong bonds with current employer, so that it stands by you.
You should have posted full notice period of 60 days in employment forms and demanded in writing ::::notice pay refund from current employer unconditionally and at once upon joining, and that since past employer is unwilling to supply experience certificate-service certificate-relieving letter, you can’t supply it and you should be absorbed on the basis of copy of notice of resignation and final resignation, and communication by you affirming that correct notice pay @correct notice pay be adjusted in FnF statement, only……………….and at the most the proof of its dispatch and delivery.
The copies of salary slips of each month, PF a/c statement,Form16, copy of notice of resignation and final resignation,………..etc can very well be as good as experience certificate………………… and copy of communication that correct notice pay @correct notice pay be adjusted in FnF statement and copy of FnF statement prepared by you showing all payables by you/all payables by company/finally net amounts payable……………… can very well be construed as relieving letter.
The exit form is no statutory obligation. It is internal and private policy of the company. If anything is due on your side including: company assets/property then company can demand it from you by attaching the receipt signed by you vide which it was allotted.
If there is nothing such dues then company has no claim and must issue salary slip of last month, leave balance sheet, FnF statement in original at once and NOC/NDC along with acceptance of resignation submitted by you, service certificate, relieving letter, Form16, PF a/c statements, ESIC card etc……………….and you may demand these in original under original seal and signature of the company and by Redg. Post only.
The charge of abscondment is leveled by HR personnel that is not your employer and just another employee in the company…………………and you may remind him that you have resigned by tendering notice of resignation in line with minutes of proper meting with your reporting authority, followed by resignation, submission of assets/tasks/creating proper back up etc……………and ask him in writing with a copy to good offices of appointing authority,MD,Chairman,Head-HR , reporting authority, etc to withdraw the false allegation and charge of abscondment, in writing to you, and do not falsify the record. You may submit the reminders to good offices with a copy to this HR personnel, under proper acknowledgment with a copy to you.
You may add that 45 days period was sufficient to arrange for the HR/company to arrange for supplying any form/format to you and to complete the formalities if any and handover issue salary slip of last month, leave balance sheet, FnF statement in original at once and NOC/NDC along with acceptance of resignation submitted by you, service certificate, relieving letter, Form16, PF a/c statements, ESIC card etc within and upto close of office hours of expiry of notice period tendered by you…………………………..and conclude that nothing is pending at your end………………………and pending dues and documents be supplied to you by Redg. Post so as to reach you in say next 3 days………………… You may demand that you be allowed to examine your personnel file/service card………… maintained at company’s office.
You may check with Inspector appointed under Punjab Shops and Commercial Establishments Act/ Punjab Shops and Commercial Establishments Rules (Haryana Follow it) and confirm that the company is covered by the Act and that Standing Orders shall apply (certified/model). The Inspector can check the records/registers in company’s office and call these in his/her office and you can obtain all forms/registers/service card………… related to your employment as described in Punjab Shops and Commercial Establishments Rules from Inspector/Chief Inspector or thru RTI. The Inspector is under sworn duty to assist to get you all dues/documents.
Punjab Shops and Commercial Establishments Act, Model Standing Orders are available on the website of Dept. of Labor of Haryana.
You may go thru these and your counsel may opine that you are covered by the def. of ‘Employee’ and ‘Workman’ as in these and notice period applicable to you is max.30 days only.
Rajendra K Goyal
(Expert) 12 June 2015
Well advised and guided by the expert Kumar doab.
vikaschauhan
(Querist) 19 June 2015
Hi Experts,
I asked the HR how can this be a case of absconding when I have properly resigned from the company & served 45 days of my notice period out of 60 days.
I received this revert
"Hi Vikas –
Let me provide the explanation in simple words, you did not serve the proper notice period as per the offer letter clause which was signed by you at the time of joining and you left the organisation without completing the exit formalities that’s called Absconding.
This is a clear cut case of Absconding due to various reasons like lack of approval from business on notice, Incomplete exit formalities, did not serve the required notice period which is 2 months as per the clause.
Let me know if any confusion on this regard, happy to provide the further explanation. Thanks
Regards……….Ashwani"
Kindly give me your expert advice & tell me what should I revert them.
vikaschauhan
(Querist) 20 June 2015
Hi Experts,
Iam seeking your help
Thanks
Kumar Doab
(Expert) 20 June 2015
You have not absconded.
Resignation can be without permission and notice. The company has not claimed at damages/loss from you and you have already handover the assets/charge.
The email from this HR person is nothing but adamancy, nuisance. He might have with him his masters and employer’s private policy (written or unwritten) or inner wishes of his masters (written or unwritten). However it is reiterated that any private policy/rule of the employer may not be even worth the paper on which it is written.
The notice period applicable to you as per the Act/instrument of law/statue already quoted should not be more than 30 days. NO labor Official and even courts would agree to enforce notice period that is more than applicable to you, as per the enactments applicable to establishment/employer/employee.
You have posted that:
“mention NO tasks are pending at your end and to whom you should handover the charge? Do you have acknowledgment of having handed over the charge/assets or created the back up as mentioned by you?
Ans: No I dont have the acknowledgement of the hand over but I have mentioned this this thin I the mail to the HR
Did you fill, sign the so called exit checklist and submit it? If yes do you have the copy and acknowledgment?
Ans: No I did not completed the exit formalities
Has acknowledgment of notice of resignation, supplied to you?
Ans: NO there was no written communication form the management or HR on my resignation mail. neither the acceptance nor the rejection
Are you a member of any employee’s/Trade Unions?
Ans: I believe NO”
It has already been posted that:
“It is upto you to agree/disagree to sign any so called Exit Form that is quoted to you after expiry of 45 days long notice period tendered by you, final resignation, and after you have separated by resignation”…………………………………” ………….”You may add that 45 days period was sufficient to arrange for the HR/company to arrange for supplying any form/format to you and to complete the formalities if any”.
Further it has been explained in detail.
The employee’s/Trade unions leaders, your able Labor Law Consultant/Service Matters Lawyer/Law Firm dealing in Labor law matters can help you to draft and structure your communications. Your counsel(s) can resolve the matter without litigation, too.
Lawyers are skilled in arbitration/counseling/negotiation.
Expert Mr. Rajinder K Goyal is from Gurgaon and you can seek his help. It shall be Mr.Goyal’s prerogative to counsel you.
