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Kumar Doab (FIN)     28 November 2012

It is felt that company should pay. However you may go thru appointment letter carefully and preplan your line of argument/defense. Company might have mentioned in appointment letter some other clauses e.g. “it shall issue date of relieving as deemed fit at its end”

 

The very purpose of notice period is that employer is able to do orderly transition, install replacement, complete exit formalities, and employee is able to firm up his future venture and help the employer to complete the exit formalities.

You have tendered full notice the employer wants you to give and the notice employer would give to employee to look for other employment  in case employer want employee to separate.

If you have tendered full notice {as mentioned by you} you have done well to your employer and have displayed character by not causing abrupt termination.

The acceptance of resignation is issued by whom: by appointing authority or any other executive official of the company empowered by the board to accept your resignation and has the company issued a letter or some HR executive has sent an email to you?

You may submit a gentle representation to good offices of your appointing authority, MD, Chairman, Company Secretary and submit that you have tendered notice of resignation dated……as per clause number…….in appointment letter dated…….issued to you and you want to serve full notice period and draw wages and do not want to be without any employment /source of livelihood till your effective date of resignation dated………and you expect that by the effective date of your resignation you shall have another employment at your hands. You may mention that the communication by letter/email dated……….sent by Mr/Ms……….designation, dept, address shall render you jobless/without any source of livelihood and it also violates the letter of appointment and hence the communication be withdrawn in writing thru a letter by redg. post by the competent official of the company so as to reach you in next ….say 7 days and company may allow you to remain in employment till end of your notice period.

You may fine tune your representation as suitable to you.

 

 

 

An employee has the right to withdraw his resignation before it becomes effective.

Nand Keshwar Prasad vs Indian Farmers Fertilizers ... on 1 April, 1998

 

Supreme Court of India

 

11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.”

You shall find reference of many other pertinent and useful judgments cited in this decision by honorable SC.

Remain gentle amiable but alert and do not compromise and avoid emotional outburst.

In case of separation company should supply you acceptance of resignation, FNF statement/settlement, work experience/service certificate, Form 16, relieving letter, PF number, PF account slip, attested copies of PF withdrawal/transfer forms for submission to PF office by you { you may submit the forms}, NOC/NDC etc

The bone of contention seems to be FNF settlement. If this is the only leftover part of the incidence you may apply your reasoning/persuasion/persistence/negotiation skills with HR and obtain FNF settlement and documents and close the matter here for the time being. Litigation can be stressful for some employees. Litigation takes time.

However you should not accept the FNF statement/settlement and find your ways and means to get the FNF amount transferred in your bank a/c. Thereafter you may reject the FNF statement in writing and mention that the amounts are transferred in you’re a/c and you have received under protest.

Kindly note that HR may not provide any relief to you until you have a handle on company, as HR has to serve its masters, who might have issued verbal or written instructions. So you may escalate to good offices under acknowledgment and try and meet them and convince them.

If good offices also do not provide any relief you may proceed as deemed fit at your end.

You may consult elders in the family, competent and experienced well wishers, lawyer law firm and fine tune your representations as suitable to you.

 

In a given situation employee can approach trade union, and/or invoke the provisions of ID Act, IESO Act, Payment of Wages Act, SE Act as per explanation of employee under the provisions of these enactments or approach civil court. Designation alone does not decide that employee is a workman or not.

It shall be appropriate to approach a competent and experienced service lawyer/labor consultant with copies of all of your documents and give inputs in person and proceed under expert advice of your lawyer. Your lawyer shall evaluate the merits and may opine that you fall within the category of workman.

Company may yield to legal notice of your lawyer or you may have to agitate in the appropriate forum. Company may yield to your demands during conciliation proceedings in o/o ALC or the ALC shall issue reference to Labor Court.

 

 

 

You may request good offices to allow you to examine your personnel file being maintained in HO.

 

Valuable advice of learned experts/members is sought.

 

 

 

 


Attached File : 803640433 resignation can not be accepted before end of notice period nand keshwar prasad vs indian farmers fertilizers ... on 1 april, 1998.pdf downloaded: 338 times
1 Like

M.S.R.Murty ( Manager (Admn))     29 November 2012

Dear Mr. Gupta,

After your resignation the Company releaved you.  Hence your claim may not allowable 

jagadish paranjape (Advocate)     29 November 2012

In your case there was bilateral contract to give 3 months notice by eitherside in case of  resignation/ termination.Since you had resigned giving 3 months notice and also specifying date of resignation,you had performed your part of service contract.You had every right to continue in employment till your effective date of resignation.Since the company accepted your resignation after only 15 days and relieved you,you are entitled to receive/claim 2.5 months salary.This is only if the resignation was accepted against your wish and you wanted to continue till the effective date of resignation.

Generally employees give due notice to avoid payment to company and if the resignation is accepted earlier, they are happy.

2 Like

Kumar Doab (FIN)     29 November 2012

Learned Mr. Paranjape has given valuable advice.Kindly follow it.

Apply yur goodwill, rapport, resources,and persuasion, persistence, reasoning, negotiation skills and obtain FNF statement/settlement, work experience/service certificate, Form 16, relieving letter, PF number, PF account slip, attested copies of PF withdrawal/transfer forms for submission to PF office by you { you may submit the forms for attestation by employer}, NOC/NDC etc

Do not sign acceptance of the FNF statement if it is not correct.

Sougata Dasgupta (Administration Executive)     04 December 2012

Thank you all for your valuable advice. Seek some more advice.

My company also asked me to change my job role from Administration executive to Front office,which is much lower position than my current position, during my notice period.I did not accept it. 

Can a company do so? I mean during notice period can the company change my job role to a lower position?

Please help.

Kumar Doab (FIN)     04 December 2012

You have posted that:

--“ My company also asked me to change my job role from Administration executive to Front office,which is much lower position than my current position, during my notice period.I did not accept it. “

 

If you feel that you have been demoted then you are within your rights to ask and know why you have been demoted, without giving you any opportunity to hear you.

Have you been asked to work at lower position verbally and did you decline verbally? If you feel that company has inserted any note, comment or document in your personnel file which may affect you, you may request the good offices in writing under acknowledgment to allow you to examine your personnel file maintained by company.

You may remain firm on getting your designation written and confirmed as “Administration executive“ in last salary slip, acceptance of resignation, FNF statement, work experience/service certificate, Form 16, relieving letter and any other document issued to you.

If the company has asked you to man the front desk {lower position} to downgrade your image or to inflict some insult {may be due to the altercation company has with you and therefore do not want you to be in your parent dept} you may protest. However remain amiable, gentle and cool.

Companies usually mention in appointment letter that “employee is appointed at the position of ……..and he shall perform following duties…….and any other duty assigned to him” and might have asked you to be a front desk executive.

However if you feel that and you are sure that front desk executive is lower in rank, cadre, grade, pay etc you may decline.

If you are sure that you have checked a verbal communication with a verbal response without ant adverse affect on you on record you may leave the matter.

Valuable advice of learned experts/members is sought.

 

Sougata Dasgupta (Administration Executive)     06 December 2012

The Asst. Labour commissioner of Durgapur as adviced me to submit Form N (Recovery of wage) to the recovery inspector for court hearings.

Am I on the right track?

Kumar Doab (FIN)     06 December 2012

It is felt that the form N is recovery of wages as posted by you. However you may confirm from yourresources or a labor consultant at your location.

Valuable advice of learned experts/emembers is sought.

You may go thru Payment of Wages Act;

What is the procedure an employed person has to follow for claiming deducted or delayed wages?:

a.                   If contrary to the provisions of the Act any deduction has been made from the wages of an employed person or any payment of wages has been delayed, he has to make an application for claiming the same to the Authority appointed under the Act.

b.                  Such application can be made by the employed person himself or a legal practitioner or an official of a registered trade union.

c.                   Such application has to be made within a period of 12 months from the date on which the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made.

d.                  When any application under Subsection (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under Section 3, or give them an opportunity of being heard, and, after such further enquiry, if any, as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding three thousand rupees but not less than one thousand five hundred rupees in the latter, and even if the amount deducted or delayed wages are paid before the disposal of the application, direct the payment of such compensation, as the authority may think fit, not exceeding two thousand rupees.

e.                   The amount directed to be paid by the Authority ca be recovered as if it were a fine.

f.                    If the employed person is not satisfied with the order of the Authority, he himself or a legal practitioner or an official of a registered trade union, if the amount claimed by him is more than Rs. 25.00, can, within 30 days from the date of the order prefer an appeal to the Appellate court. {Subsection 15 & 17}

 

If any employee is prevented from making an application for payment of deducted or delayed wages within the prescribed period of limitation of twelve months, can the Authority admit his application after the expiry of the said period?: Under the second proviso to Section 15(2) of the Act the Authority is given power to condone the delay in making the application within the said period if sufficient cause is shown by the applicant for not making the application within the said period.

 

14. Inspectors

15.

Claims arising out of deductions from wages or delay in payment ofwages and

penalty for malicious or vexatious claims.

17A.

Conditional attachment of property of employer or other

personresponsible for payment of wages.

18.

Powers of authorities appointed under section 15.

19. [Power to recover from employer in certain cases.]- Rep. by

the Payment of Wages (Amendment) Act, 1964 (53 of 1964), s. 17 (w.e.f.

1-2-1965).

Please keep updating the status in this thread.It shall help many who visit the forum.

1 Like

Sougata Dasgupta (Administration Executive)     27 December 2012

I have already submitted the form for "recovery of wages" at Kolkata. They have intimated the date of hearing, which will be on 6th Feb 2013.

Before submitting the recovery form, I sent a letter for withdrawal of resignation through registered post to my company. This I did, owing to the fact that my clrearance is due and in am not being able to join anywhere because I dont have my release letter due to the dispute.

They received the letter but did not accept it and they did not even allow me to enter the premises. 

As per the verdict by the Honourable Supreme court, I can withdraw my resignation anytime within the notice period, even if my resignation is accepted.

I want to recover my wages and also to want my company to accept my withdrawal of resignation, as I am not being able to join in any other company and my career is in jeopardise.

How can I do that? Can you help me?

Kumar Doab (FIN)     27 December 2012

You have to write to good offices of your company and narrate your requests and demands.

If your company has grievance Redressal committee you can approach it.

If the good offices accept your demands and relief and resolution is granted you don’t have to litigate or you may to approach O/o Labor Commissioner or civil court.

You have posted that:

--“ I dont have my release letter”

You may check if your establishment is covered by Industrial Employment Standing Orders Act { IESO}? If covered has it framed its certified standing orders?

The employer should put its standing orders on notice board and provide copy to employees at a nominal cost say Rs.10/.

If company is covered but has not framed its standing orders model standing orders shall apply.

The IESO Act and model standing orders may be available at dept. of Labor website of your state or you can buy it from market.

If notice period in standing orders is say 15 days and notice period in appointment letter is say 3 months the notice period in standing orders should apply. Therefore confirm if your establishment is covered. As per standing orders employee should be provided with payment of wages and certificate of service on last day in office.

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 workmen and two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in lieu of notice.

(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.

 

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.

 

NOTE. - There is a provision under  this  Act for issuing a service certificate at the time of  dismissal, discharge or retirement and every person is entitled to take such certificate.

--“They received the letter but did not accept it and they did not even allow me to enter the premises.”

If the company has declined to accept the letter, keep the cover with remarks of Postman “ Refused to accept” in your file. Submit minutes of the day you were not allowed to enter the premises, by email to company followed by redg. post with a copy to Labor Commissioner. In the minutes mention that company has declined to accept your letter by redg. post.

Apparently company has decided not to budge from its stand till a court of law orders it and thus has shifted the burden of litigation to you.

On line discussion have its own limitations. It shall be approrpiate to shwo all docs to your lawyer.

Please proceed as per expert advice of your lawyer, and keep this thread updated..

Kumar Doab (FIN)     27 December 2012

Attached: model standing orders


Attached File : 599913251 model%20standing%20orders.doc downloaded: 95 times

Kumar Doab (FIN)     27 December 2012

CONFLICT BETWEEN THE STANDING ORDERS AND APPOINTMENT LETTER Will an appointment letter issued to an employee providing probation period more that what is specified in the certified standing orders have the binding effect ? The terms and conditions of employment in the certified standing orders cannot be negatived to a workman by conditions contained in his letter of appointment. For instance if the certified standing orders provide that the services of an employee cannot be retained on probation for more than six months and the appointment letter provides probation period nine months and if the probationary services of an employee are terminated after six months the termination will be illegal. References I. Printers House (P) Ltd., Ballabgarh vs. State of Haryana and others, I982•Il LLN 327. 2. The V.P. Cooperative Spinning Mills Ltd. Etawaha VS. State of V.P. & others, 1978 Lab.IC 1137 (All. HC). 3. Indian Institute of Technology, New Delhi vs.jawahar Lal Momtani, 1985 Lab.IC 3 (Delhi HC) . 4. PonnuswatI1y (R) vs. Labour Court, Coimbatore and others, 1989 LLR 280

Adv k . mahesh (advocate)     28 December 2012

"after confirmation of your appointment, the company may terminate your services by giving you 3 months notice in writing, or payment of 3 month's salary in lieu of such notice. In the event you desire to leave the services of the company, you will be required to give the company 3 month's notice in writing or your total remuneration for 3 months".

 

friends i am confused from the above paragraph 

1.  if the company is terminating his services by giving 3 months notice or payments of 3 months 

means if company terminates the employee services say for any reasons mentioned in their termination letter they are liable to pay the 3 months salary 

2.  if he desire to leave the services of the company, you will be required to give the company 3 month's notice in writing or your total remuneration for 3 months

means if he resigned the job then he is liable to serve notice period of 3 months or he is liable to pay 3 months salary 

now where is the question of compnay paying him the remaining salary 

company can relieve him on the day one of his resignation letter because they can say that you have resigned and we are reliveing you from the job employer had not terminated 

please let me know friends 

Kumar Doab (FIN)     28 December 2012

The employee has posted in his query “I resigned from my company giving 3 months notice period(as per appointment letter)” and “My company decided to release within 15 days of my resignation, though I mentioned my last day of work in my resignation. Is the company now, liable to pay for the payment in lieu of my balance period? 

If the employee has tendered notice of resignation/has mentioned period of notice in notice of resignation or effective date of resignation or last day in office and employer accepts the resignation before expiry of notice period/effective date of resignation or last day in office, employee can decline to accept this decision of the company and agitate.

It is discretion of employee to accept notice pay in lieu of balance period of notice.

The judgment of Supreme Court of India in case of

“Nand Keshwar Prasad vs Indian Farmers Fertilizers ... on 1 April, 1998

the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date.”

posted in this thread and illustration by senior LCI experts posted in this thread is self explanatory.

If the company terminates the employee charging Misconduct Company may not tender notice pay citing service conditions mentioned in appointment letter/standing orders of the company. The misconduct has to be proved. Employer has to grant opportunity and natural justice to employee.

Usually employers terminate and shift the burden of litigation to employees.

The properly informed employee catch take the employer by nose.

The employee in this thread has merit in his case. The employer is counting and banking on the data that majority of the employees relents and accepts notice pay and do not press for criminal and penultimate clauses of the enactments.

The matter in this thread is as simple as that employer should call the employee and settle the matter by offering to compensate for the rest of the notice period {employer may press for notice pay @ Basic + DA. It is the discretion of the employee to accept or to press or not for @gross/CTC as per employment contract} to supply correct FNF statement, payment of dues as per correct FNF statement, Form 16, attestation of PF withdrawal/transfer forms, issuance of service certificate/reliving letter etc….on the spot and closes the matter. It shall be a win-win situation for both the employer and employee.

The notice period expressed in standing orders of the company shall supersede the notice period expressed in appointment letter.

Employees should always obtain copy of the standing orders, HR policy, service rule book, form union/guild/association and keep them informed of their rights, to check the tantrums and feudal mindset of the employers and personnel in line management/HR.

Employees should work sincerely and justify each penny of the salary earned.

We have seen many unionized employees, leaders who are productive, disciplined, result oriented and deliver results and profits to the employers. They set examples for the rest of the employees. Such employees are in demand.

Companies avoid touching such employees.

We have seen enough cases where companies indulge in bad practices, and later loose cases and loose face/credibility, and clamor for settlement with employees.

HR and legal has to play an important role in properly guiding the employer and peruse the just, unbiased and balanced approach and settle the matter amicably.

Valuable advice of learned experts/members is sought.

 

 

 

 

 


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