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candy (adkljksjlk)     27 March 2012

Resignation without notice period

Dear Sir/Madam

 

When I joined my company in 2004 the rule was that at the time of resignation I would have to give one months notice or one months salary. In 2008 my company made me sign a letter stating that i would have to give two months notice or two months salary(I was forced to sign the letter or else I would have resign).

In Jan 2012 due to personal problems I resigned by giving 2 days notice.

Now my company is asking me to pay two months Gross Salary,due to financial problems I am able to pay two months Basic Salary and not Gross Salary.

Since the company is not willing to accept Basic Salary from me and I cannot afford to pay them the Gross Salary can the company take any Legal action against me.

Kindly Advise,

Elcid



Learning

 3 Replies

kameswarao S (Head HR)     27 March 2012

Dear Candy,

The company has communicated to you about the change in service conditions whether you have signed willingly or under pressure, once you signed means to accepted and you have to abide by the rules of the company.  As far as the notice pay is concerned the basic pay is a right option hence better to approach a service lawyer submit all the related documents, your request for paying the basic pay and their refusal etc and clear the matter.

Regards - kamesh

MADHUSUDAN G R (Advocate)     27 March 2012

Dear Candy,

Pls go thro' yr ltr of appointment as well as the revised ltr of service conditions and/or Service Rules of yr company, - if it says only baic(or even DA?), it is basic (+ DA).  If it says Gross salary, it is gross salary only.

If u hv signed as two months notice period subsequently, it is two months only, as it is does not matter whether u hv signed on yr own will or out of coercion.

You hv said that u joined the company in 2004.  It means, you must be having enough leave in yr credit of which u would be getting encashment of yr balance leave, as on the last day of yr service.  See whether u can adjust yr leave against the notice period.  Or else pay cash as anyway yr leave would be automatically getting encashed at the end of yr service.

One more suggestion, see whether new company is prepared to buy yr notice period.  If so, they will either pay u in advance or else they will ask u to pay and  will reimburse u, once u join them.

 

 

 

Kumar Doab (FIN)     27 March 2012

Kindly follow the advice of Mr. Kameswarao, Mr. Madhusudan.

Pay means basic pay, personal pay if any, officiating pay, if any and DA. Therefore notice pay as mentioned in offer is calculated on Basic + DA.

Is your designation/position covered under ID Act.

Same is taken for Gratuity calculation, Retrenchment pay, compensation, PF, Leave encashment etc. Therefore, the notice pay on the part of employees shall also mean the same, i.e.  Basic + DA..  Does your company provide leave encashment on basic+ HRA+ Spl. All. If yes what is wrong in applying the same for notice pay?
However to be specific it is advisable to refer to the Standing Orders of the company.

You may also read 13. Termination of Employment in Industrial Employment (Standing Orders) Central Rules, 1946.  

In private sectors definition of pay may be different. So recovery in lieu of notice pay may be different. In some case it is the fixed part of the salary Basic +HRA.

Dearness allowance (D.A.) is part of a person's salary. D.A. is calculated as a percent of the basic salary.You can also refer to the concerned personnel in HR who shall guide you to company policy on DA and DA component in your salary. O/o Labor Commissioner can guide you to applicability of DA as per your designation/class of employee and class of industry you are employed in.

First  company decides particular employee's basic pay then refers to Minimum Wages Act and  find percentage of DA for particular category of employee's & then  calculate Basic + DA. To find the DA for companies that are covered in Shops and Establishment Act one may refer to notification of Minimum Wages Act applicable to the state.

You may go thru the letter amending the notice period signed and accepted by you. It might be mentioned that notice of resignation or notice pay @ ............basic or gross pay. Or it may be mentioned other terms and conditions as mentioned in appointment letter shall remain the same.

Was it mentioned that if change is not accepted, employee may tender resignation? In all probabilities company shall not mention it in this letter. Company may send email/circular and use language which may be a concealed threat to accept or leave. Do you have any such email/circular? If such transactions are verbal by line management/HR employee should be smart enough to record (audio/visual) and use it at appropriate time in appropriate forum. Although employee would like attain stability during employment in a company, however employee should always be exploring better options. If during tenure employee has been a performer a company would like to rehire such employee.

Even under situation as mentioned by you employee should remain amiable and keep the rapport and goodwill and apply persuasion, persistence, negotiation, reasoning skills. Good offices of appointing authority, MD can waive off the notice pay and your line management/HR can help you by recommendation and follow up. There is nothing wrong in attempting. If persuasion does not work, you have the option of adopting legal approach.

Vlauable advice of learned experts/members is sought.


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