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Sumeet (Sales and Marketing)     18 January 2014

Notice pay deduction

Dear Sir/Madam,

I had resigned from my last company as i was transferred.

I had not received any reply of my mail requesting acceptance of resignation, but they provided the relieving letter.

I was working in Mumbai and was asked to report to Delhi within two days.

 

I could not serve notice period in Mumbai office  since i was relieved from that office. 

I had also submitted a request for withdrawal of my resignation after 2 day of my resignation to which i did not get any reply.


How is the deduction of my notice pay justified, when i don't have an option to serve any notice period ?

What can i do to get back my salary as notice pay deducted. 

I have already approached the management but to no avail.

NOTE -[They did not provide met the original copy of transfer letter. I had me a printed copy of the letter of transfer from an email address .]

 

 

 

Thank You for your suggestions





Learning

 6 Replies

Kumar Doab (FIN)     19 January 2014

 

 

>>> Acceptance of Resignation: If you have tendered notice of resignation then company can not accept resignation before expiry of notice period..........................

 

 

Employee can withdraw resignation before end of notice period.

Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers............

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

 

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.

 

Until or unless there is Supreme Court judgment contrary to above this judgement should hold.

If you had withdrawn resignation and company accepted the resignation then it has caused violation.............

If you had withdrawn resignation and company relieved you then your lawyer may opine that it amounts to Termination.................................................In such a case company may offer notice pay if that is acceptable to you then you have the option...................

 

>>> Notice Period:

If you have resigned without tendering notice of resignation/servicing notice period and if notice period is applicable in your case then notice pay in lieu of notice period can be recovered from employee if notice period is applicable to employee and notice pat in lieu of notice period is part of service conditions.

Notice Period is stated in Standing Orders applicable to the establishment (Certified/Model) and extended to the designation of employee. Model Standing Orders being statue have statutory force and standing orders once certified become instrument of law and shall prevail upon any private agreement signed by employer with employee e.g. appointment letter, contract of employment..............

If notice period stated in standing orders is NIL it can not be even 1 day in appointment letter.

Employer has to display standing orders at a conspicuous place/Notice board and has to supply certified copy to employee.

You may go thru Model Standing Orders: Sec13, 16, 17, 18

Notice period applicable to Probationer is NIL and to confirmed employee is 1 month.

Your lawyer may opine that standing orders are applicable to you.

Notice period is also stated in Shops and Commercial establishments Act of the state.

You may go thru  The Bombay Shops and Establishments Act, 1948:

 Sec 38: 3B-B: Application  of  Industrial  Employment  (Standing  Orders)  Act  to  establishments: If your establishment is commercial and 50 people have been employed standing orders shall apply.

66.Notice  of  termination  of  service:

Notice period for service =< 3 months= NIL

for service > 3 months <1year = 14 days

for service =1year = 30 days

 

Designation alone dos not decide employee is covered as ‘Workman’ as in ID Act and as ’Employee’ as in

Shops and Commercial establishments Act.

Your lawyer may opine that you are covered and standing orders are applicable to you.

If you are not covered then the service conditions as in appointment letter, service cods and regulations of the establishment may be looked into.

 


 

There are many threads on similar queries that you may find relevant e.g;

https://www.lawyersclubindia.com/experts/Resignation--446881.asp#.UtrCUNK6aXY

 

https://www.lawyersclubindia.com/experts/Left-job-without-serving-notice-period-any-legal-action--447186.asp#.Utq6_tK6aXY

https://www.lawyersclubindia.com/experts/Harassment-by-employer-447551.asp#.UtrBBdK6aXY

https://www.lawyersclubindia.com/forum/Need-to-understand-the-notice-period-law-95837.asp#.UtrBXtK6aXY

 

https://www.lawyersclubindia.com/experts/not-serving-notice-period--447391.asp#.UtrBg9K6aXY

 

>>> Transfer:

Is it stated in standing orders applicable to the establishment and extended to your designation that you can be transferred to other depts./div. of the company and anywhere in India? Or is the word transfer stated in standing orders?

If NO you can not be transferred.

If standing orders are not applicable to the establishment and/or are not extended to your designation then company’s service codes and regulation (service rules/conditions) should be looked into?

Is it stated appointment letter issued to you that you can be transferred to other depts./div. of the company and anywhere in India?

If yes in appointment letter but if NO in standing orders, you can not be transferred.

If yes in appointment letter but if NO service codes and regulations applicable to you, your lawyer may opine that you can not be transferred.

IN case of disputes the courts do not restrict t examination of appointment letter alone but the standing orders and service codes and regulation (service rules/conditions) are also examined and these can prevail upon appointment letter. Although the facts matter however the decision of the court of law is pleasure of the court of law. If the petitioner is not satisfied he can move to appellate/superior court.

Was this Transfer malafide?

Did you mention that the transfer is not acceptable to you?

 

>>> The relieving letter issued to you relieves you from Mumbai to join at

Delhi or from employment?

Otherwise the relieving letter implies that you have been relieved from the employment of the company and nothing is due against you.

Usually it is stated in service certificate, relieving letter employee separated by.................. (Resignation) and tenure of service DOJ-DOL, designation.........................

You can demand to supply you by redg. post:

-- Original transfer letter,

--original acceptance of resignation...........................this should allay your apprehension that separation is recorded as resignation or termination........................ You can also request to allow you to examine your personnel file maintained by company.

--original FNF statement {that may show location of the employee (Mumbai or Delhi)}, adjustment/recovery of notice pay for verification and acceptance.

 

>>> What was the matter written in the resignation submitted by you in the email and in the communications prior to transfer and subsequent to transfer?

Did you tender notice of resignation or resignation with immediate effect by citing some reason of resignation or without mentioning any reason?

Did you request to allow you to serve notice period at Mumbai citing reasons...............................e.g education/exam of children, job of spouse etc? However after transfer you were expected to join at Delhi and serve at Delhi even if notice period.

Did you express inability to reach Delhi in two days time? Did the company extend joining time or did the company decline? Did the company ask you to handover the charge at Mumbai? If yes were you relieved before handover?

What is your entitlement to Travel: By Air, BY train (2nd AC, 3 rdAC, 2nd sleeper and were the confirmed tickets available)? Did you apply for advance or was any advance paid to you or was the advance declined?

Did company relieve you before the expiry of notice period tendered by you? If yes why?

In such a case how come company is claiming payment of 2 months of notice period?

It would be appropriate show all docs to your labor consultant/service lawyer for an opinion and evaluation of merits and remedies and your lawyer may find some faults in approach of the company that may be in your favor. You may proceed further after understanding the merits of your case under the expert advice of your lawyer.

 

 


Attached File : 280417494 nand keshwar prasad vs indian farmers fertilizers.doc, 280417494 the bombay shops establishments act.pdf, 280417494 model standing orders industrial employment standing orders rules.pdf downloaded: 162 times
1 Like

Sumeet (Sales and Marketing)     19 January 2014

 

Dear Kumar,


Thank you for your reply.

I had sent an e mail stating my resignation from the company email a copy of which I have in my personal email.

The request for withdrawal of resignation was also sent from the companies e mail id, but I do not have any proof of that (i.e. I do not have any copy of that in my personal email id).

I never received a resignation acceptance letter or mail

I got the relieving letter after the expiry of notice period.

It was stated in my appointment letter that I can be transferred anywhere in India

I did not mention that the transfer is not acceptable to you.

The transfer letter stated that I am relieved from the services of Mumbai Branch.

They had got a document signed by me that I have nothing is due against me at the time of issuing of relieving letter.

I have not been issued any service certificate.

I had no email communication regarding Transfer.

The resignation email sent by me did not mention any reason for resignation.

 

 

It read as follows:

 

 

 

 

“I am resigning from the position of ________ with _______ today on the _ of ___.

I would request you settle my dues.”

 

 

 

 

 

 

·         Did you tender notice of resignation or resignation with immediate effect by citing some reason of resignation or without mentioning any reason?

 

 

                                                ---    Without mentioning any reason.

 

 

·         Did you request to allow you to serve notice period at Mumbai citing reasons...............................e.g education/exam of children, job of spouse etc?

 

 

 

 

                                                                        ----No

·         Did you express inability to reach Delhi in two days time?    ----No

·         Did the company ask you to handover the charge at Mumbai? ----YES

·         If yes were you relieved before handover? ---Yes (I was relieved from the Branch before handover) No ( the relieving letter was issued later.)

The company had paid me advance for travel

 

 

 

 

 

 

Kumar Doab (FIN)     20 January 2014

You may refer to your last post in this thread.

 

>> First of all Let us try and understand from you ‘What merit do you see in your case as per your own analysis?

>> Have you consulted a Lawyer? If yes what is the opinion of your lawyer?

 

>> Even if you have submitted withdrawal of resignation from official email id it is on record.

You can quote it.

Masking false entries is offence/violation for employer too.

 You can demand a copy of this email.

>> Even if relieving letter is issue what is the reason of separation recorded in your personnel file: resignation/termination/absconding/absenting/abstaining....?

This is imp. for you to find out.

>> The company had relieved you from Mumbai office after transfer and provided advance to travel.

>> You did not join at Delhi. Did the company issue communications to you for not reporting at Delhi?

>> After withdrawing resignation you did not report at Delhi.

Did you resign again?

Apparently company has effected the first notice of resignation submitted by you and since you did not serve notice period it has adjusted notice pay and given financial blow and it has not caused termination.

The company could have waived off the notice period since you were willing to join at Delhi.

You have signed FNF statement towards its acceptance.

Online discussions have its own limitations.

It is suggested that you may sit with a local lawyer at your location, show all doc, communications before and after transfer/resignation. Your lawyer may still be able to find some faults and suggest some remedy to you. Accordingly you may proceed further if it is worth of it.

 

 

 

 

1 Like

Kumar Doab (FIN)     22 January 2014

 

 

You had withdrawn resignation.

 

Since you were relieved from Mumbai and you did not join at Delhi.

 

As stated in standing orders after 10 days of absence employment can be terminated and this is usually stated in appointment letter, HR policy, service rules too...................................therefore the company could terminate the employment.

 

Model Standing Orders:

 

14.                                              Disciplinary action for misconduct

 

(3) : (e)   habitual absence without leave or absence without leave for more than 10 days,

 

 

Thus there was no need for adjustment of notice pay for 2 months.

 

This may help to establish that FNF was wrong and employee had to sign under some duress.

 

However let your lawyer evaluate the merits after examining all of your documents.

 

The standing orders are statue and no private agreement signed by employer with employee can supersede the standing orders.

 

You can also discuss with President/Secretary of a Trade Union at Mumbai e.g. AITUC, INTUC, CITU or affiliated unions in your Trade. They may help you.

 

 

 

Sumeet (Sales and Marketing)     23 January 2014

But i had received no communication regarding acceptance of withdrawal of resignation.

Neither had i received any communication regarding acceptance of resignation.

Kumar Doab (FIN)     23 January 2014

 

You have posted that “the relieving letter was issued later

 

 

The question arises that if no communication for withdrawal of resignation or acceptance of resignation was issued or rather supplied..........................................then against ‘What” of employee the relieving letter was issued : absconding, abstaining, absenting, resigned, terminated..........................................etc??????????????? The company has to and should clarify.

 

 

 

Another point to ponder is” If employee did not receive any communication confirming for withdrawal of resignation or acceptance of resignation’ then does it mean that it was not issued??

 

Not necessarily, as the employer may claim that employee was informed verbally in office or thru Manager or by normal post.......................................Employers are known to do so.

 

Although the employer is expected to dispatch such communication by effective mode of commu nication e.g. redg. post , speed post , email.....!!

Did your employer have your email id? Did it supply reliving letter by email or say by redg post or say by courier?

 

If yes it should have dispatched communication confirming for withdrawal of resignation or acceptance of resignation’too by such mode.................!!!  

 

 

Another point is that have you ever in writing under acknowledgment demanded to supply you the communication confirming for withdrawal of resignation or acceptance of resignation??? Did you demand to allow you to examine your personnel file that would show all documents inserted in your personnel file?

 

 

 

Once the employee has withdrawn the resignation before acceptance it becomes effective, as already posted and illustrated in Supreme Court Judgment.

 

 

It is also not clear what was your designation and nature of duties and whether you would be covered by ID Act, Shops and Commercial establishments Act.

 

 

 

 

   If employer has defaulted o payment of wages then it would have defaulted on PF, TDS, ESIC, Group Insurance.............

 

 
- Inspector under Payment of Wages Act (applicable to all employees drawing wages as per def. of wages in the Act up to Rs.18000/pm )


-Inspector under ( Name of your state) Shops and Commercial Establishments Act; If the establishment is commercial 

-o/o Labor commissioner

- RPFC for PF

-ITO-TDS where employee files ITR and jurisdictional CIT-TDS where employer files ITR.


-ESIC  Inspector

--Controilling Authority of Gratuity ( if eligible and has served for 4years 190/240 days as per Sec 2A

Of payment of Gratuity Act)

 
-Civil Court.


-Lawyer/law firm: A legal notice can help to drill sense into the heads. You may request your lawyer to include the HR personnel, , CEO, Chairman, MD in list of noticees............

Designation alone does not decide employee is covered as ‘Employee’ as in Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act....................

Your lawyer may ask you a set of structured questions and may opine that you are covered.


-Trade Unions/ Employees Unions: They know precise ways to handle such issues

>> There are threads to indicate that employees contemplate to file criminal complaints u/s 406,420.............................and approach employers as creditors treating unpaid wages as debt on employer..................

https://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.UNRXofLZ1JI

Approach a competent and experienced labor consultant, show all docs on record and proceed under expert advice of your lawyer.

 

 

It would be appropriate show all docs to your labor consultant/service lawyer for an opinion and evaluation of merits and remedies and your lawyer may find some faults in approach of the company that may be in your favor. You may proceed further after understanding the merits of your case under the expert advice of your lawyer.

 

 You and your lawyer can put the pieces together and can resolve your matter.

 

 

 

 


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