Learned Mr. Hemang, Mr Vasudevan have given valuable advice and have enriched the forum. Kindly follow it.
> The querist has expressed his desire to resign (while under suspension) and obtain service certificate/relieving letter……………………….and join next employer by 2nd Sept which is not far off………………
The querist probably does not want to submit any reply other than what has already been submitted by him.
> It is in the interest of all employees facing the situation to keep HR/Line Managers in next company on their side and firm up the matter with future employer (preferably in writing) so that the future employer supports and stands by the new joinees………………….in case of a situation………
Apparently many employees are leaving and joining new employer.
It shall be good if the next employer treat it as his gain and provides some relaxation to employees e.g. from BGV……………………either it does not go for BGV or retains the new joinees even if past employer gives adverse feedback……………………………….and share the BGV report (majority of the employer do not share the copy) with employees…………….
The next employer can absorb the new employee on the strength of copy of resignation, proof of its dispatch, POD…………………….and may ask to submit an affidavit that new employee is not employed elsewhere.
The last salary slip, Copy of resignation may suffice.
If the new employer levies a condition that new employee has to submit acceptance of resignation, service certificate, relieving letter from past employer in …………….days it may result into a situation.
> In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Standing Orders Act, the employee that falls within the definition which has been provided under these enactments, would be protected up to that extent.
In absence of coverage under the said workman related enactments, letter of appointment, employment agreement and service rules need to be referred to.
If the service rules have not been circulated/supplied/communicated/kept in knowledge domain of the employee: which will prevail, the contract of service or service rules?
> To resign employee has to submit resignation letter.
Generally: ‘Resignation can be without notice or permission’.
The employer may claim that there are unfinished tasks, handover is pending and may insist that employee should serve the notice period. If the employee does not employer may allege loss and claim compensation………………………
Employee should always draft and structure the notice of resignation carefully to suit his interest in the long run and build favorable written record, and address it to the good offices of appointing authority, MD…………………….(with a copy to self) and submit preferably by redg. post under acknowledgment.
Employee should mention notice period/effective date of resignation/last day in office and that no task is pending as on date and now onwards routine work may be allotted which can be completed within and up to last day in office i.e dated……………….and good offices should ensure that exit formalities if any be completed within and up to last day in office, and employee should be informed to whom company property(if any) and charge should be handed over within and up to last day in office, and designated official be instructed to provide proper acknowledgment on the spot.
Employee should demand that acknowledgment and acceptance of notice/resignation be supplied immediately and correct FNF statement, payment of FNF dues by bank DD only, work experience/service certificate, relieving letter, Form 16 as per correct FNF statement, PF number, PF account slips of entire period of service, attested copies of PF transfer/withdrawal forms (submit forms), NOC/NDC etc be supplied by redg. post only within and up to last day in office.
--Here the employer has prohibited the employee from attending usual business at office with immediate effect………………………………….
This should imply replacement has already been installed by employer, thus no tasks should be claimed as pending……………………………………….The employee should affirm in notice/resignation that ‘to whom he should handover the charge (and company property if any)’. If the employer does not reply it should imply that there is no charge to be handed over as per the assessment of the employer………………………and charge (and company property if any)’ has already been taken over by employer before the employer prohibited the employee from attending office………………………………
Has the company appointed an ‘Inquiry Officer”? Has any employee deposed before him?
‘Does the employer have the power to "accept or reject" a resignation? In case of BPO it seems the answer can be ‘NO’ as it is not a defense organization guarding the borders of the nation and there is no imminent danger to the ‘Motherland’…………..
--Once the resignation is given the employee has terminated the contract from his side……………….. and to do this is within the rights of the employee.
But here the issue bothering is “what happens if an employee has transgressed rules and realizing that he may be dismissed/terminated, he decides to hand over resignation with immediate effect?”
A somewhat similar case was decided in case of:
Mettur Spinning Mills, Mettur Dam vs Dy. Commissioner Of Labour, (https://indiankanoon.org/doc/756681/?type=print)
The learned Judge in the Honorable court decided that:
“in Gisdrosiva case the Supreme court dealt with a rule which in tenor is similar to clause 13(iv) of the present Standing Ordered and the Supreme Court pointed out that the servant by giving notice in accordance with the rule, has unequivocally informed the Government that he has terminated the services with the Government and that put an end to the services and therefore, it was not open to the Government to take any disciplinary proceedings against him thereafter.
“would state that the resignation of the 3rd respondent had not been accepted and the 3rd respondent must be deemed to have continued in service and hence the prosecution of the disciplinary action, conduct of the enquiry proceedings on 24th March, 1976 and the culmination of the same in the order of……………”
“by the resignation, the 3rd respondent went out of service even before the order of dismissal passed in disciplinary action and hence the letter has no efficiency at all in the eye of law “
“Supreme Court pointed out that the servant by giving notice in accordance with the rule, has unequivocally informed the Government that he has terminated the services with the Government and that put an end to the services and therefore, it was not open to the Government to take any disciplinary proceedings against him thereafter.”
“I could arrive at is that earlier to the purported termination of services of the 3rd respondent by the petitioner on 8th May, 1976, the 3rd respondent had gone out of the employment of the petitioner on resignation”
--The point to ponder might be ‘Employee should resign with immediate effect or tender notice of resignation…………………………….?????
The employee(s) may feel that they should remain on board till they join next employer………………………and tender notice, so that there is no break………………….
During the notice period employee is on board and employer may speed up the inquiry and complete it quickly before expiry of the notice period…………………in the manner as suitable to employer…………………..
Theoretically: An employee would be required to hand over resignation with a notice period as per his contract of employment………………………..
Situations like these usually places management also in a conundrum that if they just accept the resignation, then the chances of litigation would be little and constructive dismissal/termination arguments would be futile.
This would then be an easy way out for both parties.
Some employers may not bother with completing an investigation once the employee has left, especially if the most severe sanction would be to terminate, and the Board may think: why waste the effort when employee has saved them the trouble by tendering resignation…………………………!!!!!
The employer may even drop the inquiry……………..
If this is the view taken by employer or its advisors in HR it may accept notice of resignation, with immediate effect and let the peace prevail upon all……………………
{Here the employee(s) have to apply their judgment.}
However, any employer is certainly entitled to conclude any disciplinary investigations, to find what exactly what went on, within their systems and under their very nose and eyes…………………...so that their systems and procedures should not allow this again, and that nobody else (who still remained in the system ::::::::::::IN YOUR CASE YOUR MANAGERS) was involved………………………………..
It shall be good for all the suspended employees if inquiry reveals that Supervisor issued instructions at he work floor on the manner of survey………………….
(Since it is a private establishment the RTI won’t be applicable and if the management des not share the inquiry report then how to get it?
The Labor Officials like Inspector Under Shops and Establishments Act can check the records and files and can ask for these in his office………………..The employees may succeed to ask for the copies thru Inspector………………. )
--The decision of employer to continue with inquiry even if suspended employee has resigned, may exonerate the employee in future by insertion of favorable inquiry report in personnel file or may result in insertion of adverse comments………………….which shall have long lasting detrimental effect on employee…………………………..during BGV for next employment(s)……………….Work VISA etc………………..
-- In many cases the employee may give immediate notice of resignation or do not return to work. The matter may become a complete different process as it may be seen abscondment or breach of contract.
Both may lead to termination……………………………….
Therefore the employee should submit resignation by redg. post also and obtain POD, and reply to all communications/notice/legal notice and establishment that he has not absconded and has tendered a resignation……………….
{{{ Your lawyer can opine on choice of adding in your resignation letter words like: "Due to the Irrevocable breach of mutual trust and confidence between employer (mention name of company) and myself I am resigning with immediate affect."
This should imply you won’t serve your notice period and they may not terminate you because you have decided that the employment contract between you is damaged beyond repair and therefore you are leaving……………………………
Employee may feel that he is not under obligation to cooperate with any further investigations, but this does not imply that the employer can not continue and reach their own conclusions, so it may be in best interests of employee to attend any hearings or submit a written statement if employee want to put his side……………………..before the inquiry officer…………}}}}}}}}}
> Another Issue is like this company (refer to clause 2.4) your next employer may also like to conduct BGV and may impose condition on termination of employment in case BGV is negative.
The current employer may post: ‘RESIGNED WHILE SUSPENDED’ or may refer to the personnel file maintained by it and whatsoever comments inserted in it and may make a statement ……………………………….favorable or adverse.
If the next employer also resorts to termination the situation would be ‘from the frying pan into the fire’………………………
The onus is on HR of future employer(s) is to ensure that all references are checked …………….
If the employee(s) disclose that they were suspended the future employer may insert a
Clause that the contract could be terminated/reviewed depending on the outcome of the previous employer’s investigation!
This is the raw nerve and employees need to handle it effectively…………………..
All employers are aware of the trends in the industry and new and some employer may be willing to adjust……………………..
>The company must have displayed its registration certificate issued under Shops and Establishments Act near entrance at its Gurgaon Office and
Delhi office.
If the company has not registered and claims that it is not required for it you may refer to the attached decision of HC Delhi…………………..
Company should have displayed standing borders (Certified or model) on Notice Board………………………………….. If the Standing Orders are not circulated to employees you can ask concerned HR person/appointing authority/MD to provide you a certified copy. While you ask for the copy mention that if the company has its certified standing orders it should state so and if model standing orders shall apply it should state so and supply you the copy of standing orders applicable to the company (certified or model) and that you are willing to pay the reasonable cost for the certified copy by redg. post only and company may inform you the amount if any to be deposited by you. You may add that if no standing orders are applicable to the company it should state so in writing…………………………..
You can also get in touch with The Certifying Officer at Delhi to obtain a copy, of the standing orders if any applicable to the company.
https://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/Home/Acts+Implemented/Details+of+the+Acts+Implemented/The+Industrial+Employment++Act,+1946/The+Industrial+Employment+%28Standing+Orders%29+Central+Rules,+1946
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THE INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES 19461
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3: (1) (2); Model Standing Orders…
8: Certifying Officer shall furnish a copy of standing orders ……………to any person applying therefor on payment of a fee 3 calculated at the following rates per copy
16: Certificate on termination of service: Every permanent workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service
18: Exhibition of standing orders: A copy of these orders in English and in local language, shall be posted 3[* * *] and on a notice board maintained at or near the main entrance to the establishment and shall be kept in a legible condition…..
{ 15[(b-a) In the enquiry, the workman shall be entitled to appear in person or to be represented by an office-bearer of a trade union of which he is a member.}
> Company has stated that “you are allegedly involved in acts involving survey avoidance activities which is a violation of BCG (Business Continuty Guidelines) clause 1.1 - Commitment to integrity and Business Ethics.”
Has the company ever communicated about this or circulated/supplied this ‘BCG (Business Continuty Guidelines)’ at the time of joining company or later when this guideline/service condition/service rule/policy/HR policy was framed by the company?
Or has the company placed this ‘BCG’ in knowledge domain of the employee e.g; Intranet access, employee portal, HR portal……………………………….Is it employer’s policy for HR or employer’s policy for employees?
Employer should not behave like a street magician and produce things from thin air.
Gossip and rumor can not be rules and policies.
It shall be appropriate for the employees to download/attempt to download all policies and rules and if these are not made available at any portal accessible to employees, the employee should make an explicit statement that this policy quoted was never circulated and never existed for them.
> It this company located in SEZ/ Has the SEZ and this company also, been exempted from provisions of Standing Orders?
Which shall prevail standing orders or service rules……………………………
Company may claim that standing orders are not applicable to it.
Employee may claim that service rules were never supplied/made accessible…………..they were not aware of the trick and/or Supervisor asked them to punch the entries in the manner ordered by Supervisor……………
It is almost sure that company shall scream for ‘Specific Relief Act’ ‘Master-Servant relationship’ and contract of personal service can not be enforced in a court of law and deny to accept that employee is a workman or employee………………………………...and service rules were kept in knowledge domain of the employee.
Although the company has loved to call the charges ’Grave and Serious’ it is yet to confirm the act was at all a misconduct or not and if yes major or minor…………
Does the service rules provide for provision of acceptance of resignation while under suspension…………………!!!
{ There may be some guidelines in service conditions/service rules of this company as in case of :
https://www.indiapost.gov.in/Pdf/Manuals/POSTAL_MANUAL_VOL_III.pdf
Postal Manual: Volume III: CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1965 AND SCHEDULE OF ADMINISTRATIVE POWERS OF OFFICERS
Acceptance of resignation during suspension
38. If a Government servant who is under suspension, submits his resignation the competent authority should examine with reference to the merits of the disciplinary case pending against him whether it would be in the pubic interest to accept the resignation. Normally, an officer is placed under suspension only in cases of grave delinquency and it would not be correct to accept the resignation of an officer under suspension. Exception, may however, be made only in cases in which :-
(i) the alleged evidence does not involve moral turpitude; or
(ii)the quantum of evidence against the accused officer is not strong enough to justify the assumption that if the departmental proceedings are continued, the officer would be removed or dismissed from service; or
(iii) the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept resignation.}
> Supreme Court of
India
Glaxo Laboratories vs The Presiding Officer, Labour ...
could not be attached due to some technical glitch.
It is attached again and it is also available at:
https://www.indiankanoon.org/doc/1513240/
>It shall be pertinent to refer to clause 2.14 vide which company has made the employee/worker liable to carry out…………………………………….vide instructions (from the language it can be implied whatsoever instructions) given by ‘Supervisor’………………………………thus employee has to implement instructions (whatsoever)………………..given to him by supervisor/managers.
It shall also be pertinent to make a mention of clause 2.7 vide which appointing authority has stated that communication shall be thru normal and accepted modes of communication within the company…………………………
Many of such companies claim to be paperless and even a paper, pen, pencil is not allowed.
The communications are voice based. Every word uttered is picked up and recorded.
The audio/visual recordings become files on record.
The instructions given by supervisor verbally should have been recorded within the systems of the company. The instructions given verbally shall be valid and to treated by valid mode.
Had the workers made a mention of verbal instructions (regarding survey) given by superiors, company might have had to suspend the superiors also.
{It is feeling that the higher management and HR had already decided and they are acting as per the scripttttt……………….all employees were instructed to give a scripttttted statement and the ill informed employees have complied………………………………..It seems that higher management and HR want to keep mangers clean or it would fetch bad name in the market. However the workers have become sacrificial goat.}
Is it not possible that the instructions to maintain a good score percolated down from the top?
And now (as it happens in many of such cases) the person at the lowest level of the hierarchy is pinned down………………………………….
The querist alone would know the facts……………………………….and can comment best on it.
If the company tempers with the recordings it becomes a party.
If it declines to provide the evidence for scrutiny it becomes a party.
It is to be decided by the employee(s), the lawyer of the employees that has seen all docs on record, has gone thru the inputs of employee(s), on how to drive the case…………………
You can access lawyer par excellence at Delhi, Gurgaon……………..
Your lawyer may ask you a set of structured questions and may opine on whether you are covered as ‘workman’ as in ID Act and ‘employee’ as in shops and establishments act………….
>
Delhi Shops and Establishments Act;
2. Definitions.
Sub-section (5)—“Commercial Establishment”
3. Rights and privileges under other law, etc., not affected.
30. Notice of Dismissal:………………………………… where the services of such employee are
dispensed with for misconduct, after giving him an opportunity to explain the charge or charges
alleged against him in writing.
(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……………
(b) Notice or wages in lieu thereof under section 30—When to be given?
…………… it is not necessary for an employee who has received notice under sub-section (1) to wait for the full period of one month before quitting the services of the employer.
(c) Acts and omissions constituting misconduct
For the purpose of section 30, for the term, “misconduct” reference be made to Rule 13 of the
Delhi Shops and Establishments Rules but the list is not exhaustive in view of the word ‘includes’.
(d) Section 30 of the Delhi Shops and Establishments Act, 1954 does not exclude the
application of the Industrial Disputes Act, 1947
33. Records.
35. Inspection of Registers and calling for information.
37. Powers and duties of the Inspector:
41. Wilfully making false entries.
> Haryana Shops and Establishments Act: The state of Haryana follows
The Punjab Shops and Commercial Establishments Act,1958: Act No. 15 of 1958
2. DEFINITIONS.- (iv)“commercial establishment” means
20. RECORDS.-
21. INSPECTION OF REGISTERS AND CALLING FOR INFORMATION:-
22. NOTICE OF REMOVAL.-
23. NOTICE BY EMPLOYEE.-(1) No employee, who has been in the service of the employer continuously for a period of three months, shall terminate his employment unless he has given to his employer 53 [thirty] days’ previous notice or pay in lieu thereof.
(2) Where an employee contravenes the provisions of sub-section (1), his employer may forfeit his unpaid wages for a period not exceeding 1[ thirty ], days.
28. POWER TO GRANT EXEMPTIONS.
32. BAR OF LEGAL PRACTITIONERS IN CERTAIN PROCEEDINGS.-
THE
PUNJAB SHOPS AND COMMERCIAL ESTABLISHMENTS RULES,1958
6. LANGUAGE ETC. IN WHICH RECORDS AND REGISTERS ARE TO
BE KEPT.- (2) Every such register shall be duly bound and page-marked in serial
number.63[(3) Every such register shall be signed by the employer and the Inspector concerned.]
22. PERIOD FOR SUPPLYING INFORMATION REQUIRED BY
INSPECTOR.-
Any information or document required by the Inspector for carrying out the purposes of the Act and these rules shall be furnished to him by the employer of every establishment within one week from the date on which such requisition is received by the employer.
> You may find the attachments on ‘Why should employees in BPO unite’, interesting.
The employees in BPO had formed CBOP.
All workers may join hands, unite and approach trade unions and a labor consultant/service lawyer. Now employees should not act on their own and must proceed under expert advice of their lawyer. The lawyer and trade union know how to drive such case. Let the notice/resignation also be drafted and structured by your able lawyer.
