Upgrad LLM

legal notice for not serviing notice period


Dear Team,

 

I have signed an appointment letter with 3 months notice or pay back 3 month salary. Due to some unviodable situations I have resigned and could not serve complete notice period. But I have kept infomred all the managment and have been supporting in all issues , and also helped them in appointing other person in my place and give shared him all the details and all critical information to the new joiner as said by my managment. Now after 2 month I get a legal notice from that compnay that I need to serve the notice period or payback the 3 months salary. So please give me advice how to apporach this. I have mail proofs where I have been supproting them after my exit also. when ever they wanted me to support. So let me know till what extented the compnay go legaly and what should be my approach.

 

thanks and regards

NK.

 
Reply   
 
FIN

 

 

Did you tender notice of resignation::::if yes what was the notice tendered by you:90 days or 30 days?

Did the employer  accept notice of resignation with 30 days of notice period, in writing and ask you in writing to handover the charge, arrange replacement/KT/handover within  30 days?

 

Has the employer issued acknowledgment of handover/KT,service certificate,relieving letter (with good comments),FnF statement (showing adjustment of notice pay/leave encashment/bonus/OT/earned wages),salary slip of all months and last month,NOC/NDC etc….,PF number with a/c slips,ESIC card,Form16 as per correct FnF statement?

 

1.     Did you resign with immediate effect or tender notice of resignation? Do you have copy of resignation?

 

2.    Are you a member of Employee’s/Trade Unions

Does your company have any GRC (grievance redressal committee) and ‘Works committee’?

 

3. What is your designation and nature of duties? How many people were reporting to you? Did you have any power to employ,terminate,sanction leave (or recommend ……but clarify) ,grant increment etc?


4. What is your salary: Basic,DA.

5. Was salary slip of each month, PF number and a/c slip of each year, ESIC card,Form16 issued to you?


 

 

6.  Your reporting office was located  in which state?

 

 Regd. Office of the company is located in which state?

How many people are employed in the company?


Does the company have its CSO (certified Standing Orders) and does it cover your designation or do Model Standing orders apply to it?

 

 

The company is registered as: Commercial or Industrial establishment?

 

 7. Was there any promise of waiver of notice period/pay by any official of the company? 

You may reply pointwise to each point!

 

 

It may be possible to revert to your query.

 
Reply   
 



1)      I Resigned with immdieate effect but assured them would support them till new person has been appointed and also assisted them in shortlisting the   candidate.

 

 

2)      I am not a member of any Employees/Trade unions , The company did not have any GRC.

 

3)      Sr.Manager. 8 people were reporting me, Had power to sactnion leave and recommend for increment .

 

4)      Salary was 70K,

 

5)       Salary slip is issues and form 16 is issued.

 

6)      Mumbai, around 400-500 people are employed in the company.

 

7)      There was no promise made but just asked to handover the things to new joinee .

 

 

I have enough proof where I have supported them after my resignation also. And has been supporting them till the new person has joined and also given him all information of the critical details.

 
Reply   
 
FIN

IN many companies the leave is submitted online and is managed by a software tool> You had discretion to recommend leave for approval or sanction? Or could the leave recommended by you /sanctioned by you, be denied by anyone else;;;;say your boss/HR-Head/appointing authority etc?

 

You have posted that you resigned with immediate effect but  could not complete the notice period and supported the company for replacement/induction/handover/KT/sharing critical details etc:::::;;Did you work after date of resignation with immediate effect?

 

For how many months did you work with company?

 

 

The company may claim that handover/KT etc was your responsibility even if you resign with notice, and there is clause of notice pay in lieu of notice period hence you have to tender notice pay!

 

The good offices of appointing authority,MD,Chairman can waive off the notice pay in lieu of notice looking into your conduct,character! You could have  applied in writing under proepr acknowledgment.

 

You may revert to above points.

 
Reply   
 
FIN

Consult an able Labor Law Consultant/service Matters Lawyer and your lawyer may advise that you are covered by the def. of 'Employee' as in Bombay Shops and commercial Establishments Act and 'Workman' as in ID Act.

 

You may go thru Bombay Shops and commercial Establishments Act :Sec 38-B,66

Model Standing Orders;Sec13

and notice period applicable to you might be NIL or 14 days or max.30 days.

 

If you are not covered then service conditions applicable to you shall decide.

The employer can waive of the notice period.

Don't remain eatangled with HR and  escalate to MD,Chairman. etc.

 
Reply   
 

In the present senario, if the reliever has already joined and there is an acknowledgement of the reliever by the organization, technically the position no more exists and the old employee ceases to exist. This is a very viable stand.
 
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