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Krishna (Self)     06 March 2013

Resignation of an employee

My Propritorship Concern is registered under S&E Act, Service Tac Act and Professional Tax Act - Karnataka State.

Employee who was an Academic Counsellor by designation,  reigned by sending a resignation letter through email. I asked the employee to serve notice period or pay two months salary (Rs.15,000/-pm salary) as per the employment letter given. Employee disagreed to serve notice period. Howevere, on humanatarian grounds, I signed on the resignation letter as " relieved with immediate effect" (hard copy) and gave it to her. Later, I also responded to her resignation letter on email with the point of contention and finally mentioned that as part of relieving, we wish her all the best. For this, she also responded back with her point of contention & mentioned thanks for opportunity given etc., With this, the topic got closed (document attached)

After 10 days, she came back and told me she will complete the Notice period. Once again, on humanatarian grounds, I agreed. But, she worked for around 40/42 days and again disappeared. She neither completed her notice period nor did she pay per employment letter, nor did she informed me.

After 5 months, now she has gone to police station filing a case on me/my propriator concern, saying that I have not given her the relieving letter and am harrazing her. Later, I have produced both the email, on police advice, I have put the stamp & signature on the emails. This was handed over to that lady through police.

Now she says that, since proper letter on Letter Head of the Company stating all the details like date of joining, date of resignatio etc., she is filing a case on me, saying that, I am harazing her by not giving the relieving letter.

Can any one guide me properly on this topic. I need advice & tips to handle this case.



Learning

 5 Replies

Advocate Rohit (Advocate)     06 March 2013

this is a civil matter. how come the police is involved in it?????

 

you may call on the below number for legal assistance.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

Kumar Doab (FIN)     10 March 2013

You have posted that:

“But, she worked for around 40/42 days and again disappeared. She neither completed her notice period nor did she pay per employment letter,”

You may issue FNF statement and compute the salary for days worked, and adjust the notice pay for shortfall in notice period, encash paid leave as applicable, add any other pending disbursement and supply it to her and request to send accepted copy back for disbursement of payment,  and disburse the final payout, along with acceptance of final resignation, work experience/service certificate, reliving letter, attested copy of PF transfer forms, Form 16 as per correct FNF statement, last salary slip, previous salary slips…….and close the matter.

Police might have accepted complaint under 420, 406……etc

There is no point in debating and lingering the matter. Therefore close the pending issue and focus on your business.

Apparently your company is under SE Act of the state and payment of wages Act shall be applicable, thus standing borders may also be applicable. Paid leave may be calculated as per SE Act.

Notice pay may be adjusted @ Basic + DA, and paid leave be also adjusted at this rate..

Notice period is max.1 month as per SE Act, Standing Orders…..

Hence you may look into her total length of service, status as probationer/confirmed/permanent employee…. And compute notice period accordingly…

She seems to be aware and informed women employee.

After police she may even agitate thru Inspector under SE Act, Wages Inspector, O/o Labor commissioner….

e.g; SE Act Delhi:

30. Notice of Dismissal.— (2) No employee who has put in three months’ continuous service shall terminate his employment unless he has given to his employer a notice of at least one month,

COMMENTS

(a) Applicability of section 30

In the absence of any standing orders or any contract between the employer and the contesting respondent containing any particular terms or conditions, the conditions of service of the employee relating to his employment in an establishment at Delhi are covered by section 30(1) of Delhi Shops and Establishments Act, 1954

(b) Notice or wages in lieu thereof under section 30—When to be given?

A plain reading of section 30 of the Act would make it clear that whereas the notice of one month under sub-section (1) is for the benefit of the employee, the notice under sub- section (2) is for the benefit of the employer.

37. Powers and duties of the Inspector.

(b) Duties of the Inspector

(i)  that in dispensing with the services of an employee the provision of the Act and Rules have been complied with and no  dues payable under the Act or Rules have been withheld;

 

Payment of Wages Act:

3*[(vi) "wages" means all…..

(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;

13A. Maintenance of registers and records.

5*[13A. Maintenance of registers and records.-

(1)   Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed.

 

Model Standing Orders;

13.    Termination of employment.--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated

14.  (2)           No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer or badli shall be entitled  to any notice or  pay in lieu

Valuable advice of learned experts/members is sought.


Attached File : 502379796 delhi shops & establishments act, 1954.pdf downloaded: 140 times

Sudhir Kumar, Advocate (Advocate)     11 March 2013

You have not kept copy of the relieving letter so issue the same now mentioning all past facts and get her receipt.

Krishna (Self)     11 March 2013

Yes. I have provided the emails that I had written to her upon her resignation to Police officials. On there advice, I have also put the seal & signature on that email. And I have also provided a relieving cum service certificate mentioning all the facts per my records.

now she has raised an objection for mentionng the facts i.e. - " she was once again formally relieved as she made a false complaint before the Sub-Inspector of Police of the local police station even though misconduct sufficient to initiate a disciplinary action was pending against her"

Your thoughts & advice please on this point..!

Kumar Doab (FIN)     11 March 2013

The posts in this thread are for discussion only.

Kindly proceed as deemed fit and suitable at your end.

You have posted adverse comments in “relieving cum service certificate” issued after coming back from police station, hence there is another bone of contention.

You have not posted any comments on same document on which you have affixed your seal and signature in police station.

This action may be termed counterblast, vindictive, zealous…….

Did you ever charge her by official communication in writing, issue any show cause notice and conduct any inquiry…to substantiate your statement posted in “relieving cum service certificate”????

Kindly check that if the Service Certificate as described in Standing orders has a column on conduct.

On the contrary there may be a provision for issuing Certificate of Commendation.

The service conditions stated in standing orders will prevail and can not be negated in appointment letter, e.g. notice period.

SE Act has a clause on issuance of appointment letter to all employees.

34.  EMPLOYER TO FURNISH LETTERS OF APPOINTMENT TO EMPLOYEES.

If notice period mentioned in appointment letter is not in line with SE Act it may be termed void to that extent.

Then the SE Act guides that:” Delhi Shops and Establishments Act, 1954

(b) Notice or wages in lieu thereof under section 30—When to be given?

“the notice under sub- section (2) is for the benefit of the employer.”

Model standing orders;

13.  Termination of employment: (3)               Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.

 

It shall be better to close the matter.

 Finally: Rest is up to you.


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