Company not willing to accept my resignation

Instead of remaining entangled in conversations with HR, superior and others employee must approach in writing under proper acknowledgment by redg. post preferably, the good offices of appointing authority, MD, Chairman, and citing performance, contribution demand waiver of notice period. The good offices can waive off the notice period and notice pay too.

Neither HR nor your superior is your employer.

Neither of them would have signed your appointment letter and neither of them might be authorized by board of the company to sign the acceptance of your resignation.

You may submit the copy of notice of resignation and subsequent representation to good offices of your appointing authority, MD, Chairman citing reference of clause number......................in appointment letter dated ...................... issued to you and affirm that notice pay for shortfall in notice period e adjusted against leave payables by company to you, in FNF statement and

Correct FNF statement be supplied to you for verification and acceptance along with acknowledgment of notice of resignation, acceptance of resignation, the original and correct FNF statement as hard copy under seal and signature by hand of the competent employee for verification and acceptance by you, Form 16 as per correct FNF statement, payment of earned wages and FNF dues by bank DD only, service certificate, relieving letter ( with good comments. Avoid without comments and with adverse comments) , NOC/NDC, PF number/account slips of entire period of service, ESIC card, Insurance card, salary slip of last month and all month’s of service, etc...  .

If the tasks of the employee that has resigned are unfinished due to which employer may suffer some financial or other kind of loss and employee is unwilling to indemnify the employer then employer may emphasize to serve the notice period.

This is a point employee should always handle successfully.

You must mention in notice of resignation/subsequent communications that no task/assignment is pending at your end.

1 month by all counts is sufficient for the employer to put his house in order.

Resignation can be without permission or notice.

The conduct of HR, superior  can easily be termed arbitrary, unfair, high headed and contrary to the T&C signed and accepted  by employer in bilateral agreement (appointment letter)  with employee.

It is yet to be seen the notice period of 2 months is infact applicable in your case or not.

The notice period is part of service conditions and is stated in standing orders (Certified/Model) applicable to the company and extended to the designation of employee, which have statutory force and being instrument of law shall always prevail upon any private agreement that employer might have signed with employee e.g......................................appointment letter/contract of appointment/service agreement/bond etc........................

The employer (owner/MD etc) is personally held responsible for faithful observance of standing orders.

The notice period/pay is also stated in Shops and Commercial Establishments Act of the state and applicable to the establishment.

It is not more than 1 month in these enactments.

Submit final resignation and do not let the company claim that you are abstaining/absenting/absconding.

In case of dispute employee can approach:

-Lawyer/law firm: A legal notice can help to drill sense into the heads. You may request your lawyer to include the HR personnel, this Head, appointing authority, CEO, Chairman, MD in list of noticees............

Designation alone does not decide employee is covered as ‘Employee’ as in Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act....................

Your lawyer may ask you a set of structured questions and may opine that you are covered.

If you are not covered then your lawyer may like to examine job advertisement, appointment letter, service codes and regulation applicable in the establishment.

Your lawyer may advice in such a case to send cheque for payment of notice pay ( ideally @ Basic+DA) and demand that a proper receipt be issued and notice pay be adjusted in FNF statement and FNF amounts be reduced and form 16 be issued as per net amounts after adjustment of notice pay.

Courts do not restrict themselves to appointment letter alone and examine the service codes and regulations, standing orders too.

-Trade Unions/ Employees Unions: They know precise ways to handle such issues

-Inspector under Shops and Commercial Establishments Act; 

-o/o Labor commissioner

-Civil Court.

Dear Sir,

Kindly suggest me what can be done for the two senarios below.

1. My company has stated in my offer letter that i cannot join the competitor company for two years after getting relieved from my company. If in case i join the competitor company as soon as i got relieved, can they take any legal action against me. 

2. If in case they come to know that i am joining the competitor company and they don't relieve me, can i take any action against them.

You have posted that:

“1. My company has stated in my offer letter that i cannot join the competitor company for two years after getting relieved from my company. If in case i join the competitor company as soon as i got relieved, can they take any legal action against me. “

Non Compete clause and agreements may very well be in force during the tenure of employment with employer that has drafted and signed such clause or agreement.

Indian courts have consistently been declining to enforce Non Compete clause and agreements post termination of employment as it hits Indian Contract Act and right to earn and livelihood.

Employers and their counsels are also aware of it. Still such clauses and agreements are drafted believing that it shall exert some psychological pressure.

“2. If in case they come to know that i am joining the competitor company and they don't relieve me, can i take any action against them.“

Since you have signed such agreement by your free will the vindictive and zealous HR, Line Managers, employer himself or his legal counsel on whose advice and payment of fees such clauses and agreements are drafted may suggest the employer to issue notice, legal notice or even file a case however it may not stand the test of law.

Being aware that such contentions of legal injury may not stand test of law employer may resort to tactics like the one pointed by you.

However it may become an act that can be contested claming it as ‘Discriminatory Retaliation’, to vindicate and cause harm.

It shall be appropriate to insert in notice of resignation, subsequent communications, final resignation that you have affirmed to handover charge/company property (if any), no task is pending at your end and also to prepare a list of payables by you to company and by company to you (ask to confirm it) and thus build a favorable record in writing that nothing is due at your end but is due at the end of employee.

The very purpose of notice of resignation is to grant time to employer to put his house in order, arrange to complete exit formalities, handover of charge, NOC/NDC, and prepare FNF statement and to supply within last day in office acceptance of resignation, service certificate, relieving letter, correct FNF statement for verification and acceptance by employee, payment of FNF dues, Form 16 as per correct statement, attestation of PF forms, insurance/ESIC card etc.....................    

If all of this is not possible by your own efforts then at least obtain acceptance of resignation, and NOC/NDC even if from your reporting authority.

You must possess such skills to ensure it.

Reliving letter signifies that employee has been relieved since nothing is due against employee.

You must firm up preferably in writing with next employer that you have shown the appointment letter, non compete agreement etc of current employer an due to reasons......................................e.g. non compete agreement the current employer may not issue and supply reliving letter and....................................etc and you can supply it till it is issued and supplied by current employer, therefore the next employer should absorb you on the strength of  copy of resignation and its POD alone. And that your employment shall not be terminated for the want of reliving letter.

If you are not able to handle it on your own you may seek help of employee’s union, trade union leaders, lawyer/law firm.

You must not that you have cited Non Compete clause/agreement only while the document containing clauses is not shown.

Such document may contain clauses on Non Solicitation, Data Protection etc........................which may remain in force.......................................for a reasonable time.............................The statements and language of the statements shall matter a lot.

Reasonableness of matter and amounts if any is disputed and not agreeable by employer/employee then is to be decided by court of law.

It shall be appropriate to show all docs and records to a competent and experienced labor consultant/service lawyer having expertise in such matters and give inputs in person.

The lawyer that has seen and analyzed the inputs can advice you the best.

You may proceed under the expert advice of your lawyer.

Hi kishore, do u taken any steps, i would like to talk to u on this issue, bcoz evn am facing same problem, could u send me personnel msg mentioning ur no, i can reach u. or can u call me at my mo which i sent to u.