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(Guest)

Inability to serve notice period

Hello. This is Aadi. I have been working for an MNC in Bangalore in the IT Sector for the past almost 2 years. I have recently been selected for a prestigious fellowship in a Government Aided University in Mumbai where i will be receiving my training for a period of two months, post which I will posted in a district in any part of the country for a period of three years. The Fellowship clearly states that I will not be treated as an employee of the Government but merely as a Fellow who will be receiving stipend. The original date of reporting was June 4 but was suddenly changed to May 5 around a month ago.

The terms of my employment are as follows:

Resignation:

You may at any time terminate your employment by giving the Company ninety (90) calendar days prior written notice. Upon you providing such notice,approval of any request for early release and/or any kind of waiver will be granted at the sole discretion of the Company and will be subject to terms and conditions of the Company, including and not limiting to the recovery in lieu of notice period not served.

 

Termination:

Upon Company giving you ninety (90) calendar days notice of termination for any reason, with or without cause; Company may, in its sole discretion, terminate your employment immediately by paying your monthly gross salary in lieu of giving you such notice;

Company may terminate your employment immediately,with or without notice, on the occurrence of:

(a) unauthorized absence in excess of the Company leave policy, unauthorized disclosure or misuse or attempted unauthorized disclosure or misuse of the Company’s Confidential Information, gross insubordination,

 

I had submitted my resignation to my current company on Feb 28 which was approved immediately. So, taking into consideration the 90 day notice period, my Last Working Date is May 29. As I have to report on May 5, this causes a shortfall of around 25 days.

Along with this, my grandparents who were staying with us in Bangalore till recently have now been moved to Mumbai for treatment. My grandmother, aged 75 years suffered a stroke in 2009 causing brain haemorraghe and is in a very delicate condition. My grandfather, aged 83 years, underwent a cataract surgery and is blind in one eye and has very little vision left in the other. It is necessary that I take care of them.

I have cited the medical condition of my grandparents as the grounds on which I am resigning as there was little hope that they would consider the opportunity of fellowship. I have submitted medical documents in support of this but my HR has just dimissed them as general conditions which is due to old age. I have 21 days of leave that can easily cover the number of working days in the remaining notice period of 25 days. But they are not agreeable to this adjustment. I have offered the option of buy-out for the remaining time period but was told that they cannot provide approval in my case as senior management has come up with strict directives in January that every employee has to mandatorily serve the notice period. I asked them to give me this reason in writing which they have not done. Another HR told me that if the manager can explicitly state to let me go early and that there is no dependency or work on me, then HR cannot stop me. But as letting me go would impact my Manager's performance rating, he has refrained from doing so but he has never objected when i stated in my multiple letters to the HR and Manager that there is no dependency on me.

 

I have to leave on April 30 as there is a scheduled appointment with the doctor in Mumbai on May 2, the documents of which i will be able to submit to the company after the appointment. I have already informed my HR and Manager that April 30 would be my last day. My further course of action is to make a final appeal to the HR, Manager and MD of the company and ask them where I should submit my ID card and also submit a cheque with the buy out payment amount.

I have been warned by my HR that not fulfilling the notice period would lead to absconding notice and finally termination with no relieving letter and F and F settlement. I do not want to separate on such bad terms with a company I have served with utmost dedication for 2 years nor do I want to let go of a wondeful opportunity of the Fellowship nor a situation where my grandparents' condition aggravates.

The Fellowship Institute has not demanded a relieving letter but not reporting to the training on the said date would lead to termination of the Fellowhip. But I want to apply for UPSC exams later and I do not want an absconding notice or termination or abscence of relieving letter to hamper that.

I am at a very delicate situation in my personal and professional life. I humbly request your advice.

 

 

 

 



Learning

 2 Replies

Sanjay Malik (Manager- Legal & Compliance )     24 April 2014

No need to be panic, about such thing, speak to senior person in HR department or your manager about the same, as you are already willing to pay the amount of short fall of notice period.

if they accept your request than well and good otherwise write a simple letter and attached cheque of amount of short fall of notice period, with request to clear your full and final payment and relieving letter. Keep copy of the cheque and letter along with you.

the terms and condition of your appointment letter in respect of termination seems to be arbitrary as the employee can terminate by its will and wish, but employees termination and relieving shall subject to satisfaction of employer. anyway, there is nothing going to happen.

Kumar Doab (FIN)     24 April 2014

Let us once again try to give a complete solution for employees of your trade in thread initiated by you.

Has your service been confirmed in writing?

What is your designation and nature of duties?

You are unnecessarily being dribbled between HR and Line Management to serve their self single minded interest and suffering harassment. The threats of HR, Line Manager can have highly damaging, long lasting effects on your employability, career, ability to earn your livelihood.

 

Frankly speaking such HR personnel, Line Managers are not fit to bee left to loose around in a civilized society.

Surprisingly in your case also ‘Employee’ is walking out of employment with stigmatic effects!

The question once again arises why ‘Employee’ suffer and why ‘Employers succeed to continue to litter nuisance?

The answer is as simple as that ‘Employee’ and especially in your trade are ill informed, fearsome, and not united!

While the trade unions have been more than willing to embrace employees in IT/ITeS sector!

Had the employees been united you would have formed IC’s, ‘Works Committees’…………………..

Are you aware that  ‘Works Committee’ is an authority as in ID Act and President of the Committee is on rotation from Employees and Employer and it has equal number of members from employees!

The Industrial Disputes Act, 1947: INDUSTRIAL DISPUTES ACT, 1947

Indus

CHAPTER II: AUTHORITIES UNDER THIS ACT

3. Works Committee

 

Such matters including service conditions e.g notice period/pay, standing orders are to be negotiated between employer and employees!

Unite and this shall be the only and only recourse in the long run.

The employer sin your trade are united. If employees do not unite they shall remain enslaved, although the bonded labor has been abolished. However due to lack luster attitude of employees   they shall remain enslaved, facing harassment, exploitation, suppression  although there are enough laws on their side.

Employees especially in your trade should retain access to Labor Consultants/Service lawyers.

 

The employees in your trade had initiated drives to unite and succeeded in ending the blanket exemption granted to IT sector from the provisions of Industrial Employment Standing orders Act.

All employers were directed to submit draft standing orders foe certification and till then Model Standing Orders shall apply. As per Model Standing Orders; Sec13-18……………………..notice period during probation is NIL and after confirmation 1month only and service certificate is to be supplied to all employees on last day in office.

 

Community of Employees is huge vote bank that no Govt. can ignore. Trade Unions are willing to embrace you. You can achieve anything.

 

 

The IT/ITeS companies are covered by Shops and Commercial Establishments Act and standing orders are applicable.

Designation alone does not decide worker shall be covered as ‘Workman’ as in ID Act, ‘Employee’ as in Shops and Commercial Establishments Act or not!

 

The service condition on notice period/pay is not equitable for employer and employee. It hampers your interest to source any other employment if next employer grants 1 month joining time.

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

Contract of employment should promote equitable discretion or it can be easily termed ‘Arbitrary’.

Since employer can terminate without notice, employee can also do so!

The clauses posted by you violate Karnataka Shops and Commercial Establishments Act; Sec39

Sub section:(1) As notice period is 1 month however notice period inserted by employer is 90 days.

Sub section:(7) As the conditions of notice period are less favorable to you and are highly favorable to employer and are not certainly equitable.

In another thread the employee has posted that the Chief Inspector under …………… Shops and Commercial Establishments Act ONLY shall be applicable e.g;

 

https://www.lawyersclubindia.com/forum/Employer-not-relieving-employee-contt-89308.asp#.UkP5C9KAqWM

 

 

Moreover the employer can not terminate the employment before the expiry of notice period tendered by employee and there are many Supreme Court of India judgments supporting it e.g.

Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers ...

11………………

https://www.indiankanoon.org/doc/1452145/?type=print

 

 

Once employee has resigned he has ended the employer-employee relationship.

Resignation can be without permission or notice.

In service conditions it has been inserted by employer that “including and not limiting to the recovery in lieu of notice period not served.” This may give you recourse that liquidated damages are limited to notice pay only.

 

You should take care to write that NO tasks/assignments are pending at your end as on date and  notice period tendered by you is ………………days hence last date in office is dated……………………….and from this date…………………routine duties be assigned that can be completed on day to day basis within and up to dated……………………..(your last date in office) and to whom you should handover the charge within and up to dated………………………..(your last date in office).

Employee does not need any leave after expiry of notice period hence there won’t be any absence/abstainment/abscondment!

Absconder is a derogatory word………………………..and employee should strongly protest/agitate.

The company can deny to adjust leave days in notice period but shall have to encash leave in FNF statement/settlement.

All statements of HR and your’s posted by you are verbal or in writing including;

“that condition of your Grandparent is general due to old age”.

HR is no one and any one to pass such a comment. Why HR alone even employer himself is no one and any one to pass such a comment. HR is not your employer and is just another employee in the company.

 

Even if it is a general condition it is pious and moral and social and even legal responsibility of the wards to take care of their elders!

 

You may now submit all representations to good offices of appointing authority, MD, Chairman, narrating all representations made so far (mention dates, names,  brief minutes…………………….including acceptance of HR that there is no dependence of work on you, effect on performance rating of manager as per conditions set by employer for manager and HR and hence the haraasment to you……………………………..condition of Grandparent is general condition, threat of coercion and charge of abscondment, denial of FNF settlement and relieving letter, ……………...etc) and build favorable record in writing with a copy to you. You can even address separate communication to these HR personnel, Manager……………………….Try and record such statements (audio/visual) for use at appropriate time in appropriate forum. IN this mean and selfish world the HR, Line Managers peruse their self centered interest then why any employee should also not defend his/her interest.

Request the good offices to ensure that all formalities are completed and you are relieved without any false allegation on you and in your personnel file, and acceptance of resignation, service certificate, relieving letter with good comments highlighting your achievements and contributions (mention these),correct FNF statement for verification and acceptance, FNF dues by bank DD only, Form 16 as per correct FNF statement, PF number-a/c slips of each year of service, salary slips of each month of service, ESIC card, NOC/NDC, etc is supplied to within and upto close of office hours on your last date in office by redg. Post/by hand!

You may also request you to allow to examine your service card and your personnel file maintained by the company on dated………………………(before last date in office).

 

You are very well within your rights to include the joining fellowship too!

Resignation is a personal matter and should preferably be submitted by letter thru redg. Post and can be followed up by emails from personal email.

What was the notice period tendered by you vide your notice of resignation dated Feb,28th? If it is April 30th then it is fine as you have communicated the last day in office! Otherwise you should have amended your notice of resignation! If you have stated it in office quote the representations!

The employer, Line Manager, HR is no one to set any date for you! Employee shall choose the date of retirement.

Have you chosen to submit resignation via some ’Resignation software tool’ of the company?

If yes you have given freedom of intervention to your line manager, HR via this software otherwise these personnel are usually not empowered by Board of the company to accept/reject the resignation!

Do you have the copies of resignation and its immediate acceptance?

You should have submitted resignation by letter!

You must get all documents without any adverse effect on you!

 

Your lawyer can structure your representations to cover the loopholes and shortcomings in your communications on record!

       


You may also approach local Labor Consultant/service lawyer along with copies of job advt., job application, interview call letter, selection letter, offer letter, appointment letter, salary slips of all months, Form16A, all communications exchanged by you in writing, list of all calls made by you and received by you (with dates, phone numbers, names and designation of company’s employees contacted, brief minutes of discussion), notice of  resignation, acceptance of resignation,…………………………………..provide inputs in person and elaborate on nature of duties, issues, spend quality time with your lawyer, understand the merits and proceed under expert advise of your lawyer/law firm.

Lawyers are skilled in arbitration, mediation, conciliation and your lawyer may succeed to resolve the matter in your favor without the need of litigation.

 

 


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