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Praveen   25 August 2015

Notice period/absconding rules

Hello All,

I am workin in an organization in NOIDA for over 18 months and have recently resigned to explore a better opportunity. The term of separation on my appointment letter is as follows:

15 A. Resignation/Termination after Confirmation: Resignation/Termination will be considered on either party giving 3 months notice.

Notice Period waiver can only be given for exceptonal  and genuine reasons by skip/business head and HR. 

However, I have expressed my desire to leave my company at the end of the month and am ready to pay for the shortfall of notice period which my HR has blatanty declined. They have also informed me that they will make sure that I am considered as an ABSCONDING case and would not be sending any FnF , relieving letter , experiene letter , salary for this month would be upheld and would also make sure if there is a track record check that takes place, I would be considered as an ABSCONDING case.

Now, my new employer is ready to accept my joining without any relieving or experience letter. But, I have worked dilligently for over 18 months and want to get what should be rightfully mine. 

Also, we do not have any portals to complete the NO DUES option, and the HR Leader and HEAD has refused to hand me the form as they insists on completing the 3 months notice and ADMIN does not function without their approval. I do not want to keep any of the company's assets and would like to know what are the recommended steps in such a scenario? I would also like to know whether a case of ABSCONDING is legally viable in my scenario? Is it possible to get my letters and the FnF statement?

I have come across a lot of threads on this forum regarding similar issues, but they are not exactly the same as I have a company asset situation as well. 

I would really appreciate all your help. Let me know if  anything else is required.

 



Learning

 17 Replies

Kumar Doab (FIN)     25 August 2015

It is good that you have gone thru various threads at LCI.

It is wrong that there is no thread on similar situation as yours.

 

Notice period/pay is part of service conditions that shall be governed by various enactments applicable to establishment/employer/employee...................and these shall prevail upon any private agreement drafted by employer and signed with employee e.g. appointment letter/corrigendum/HR policy/Employee handbook/Service Rules and regulations/contract of employment etc...................

 

  1. Has the next employer agreed to absorb you without service certificate, acceptance of resignation, relieving letter in WRING? If you have not established in writing then you have erred. Atleast write to (under proper acknowledgment) the HR/appointing authority that on dated in interview you have narrated to Mr/Ms……………..designation……………..name of company…………..at address……………..that the conditions levied by current employer M/s……………………..are………………….and it may not issue service certificate, acceptance of resignation, relieving letter and Mr/Ms……………..stated to you that company M/s………………shall take you in employment without asking for …………………….these documents.
  2. The HR leader and Head are not your employer and have to implement the T&C that they/employer have formed for employees and it is their job and they won’t compromise their job. First of all narrate in writing minutes of all discussion (mention names/dates etc ) and cite that you have already tendered notice of resignation (mention clear date of expiry of notice period) and are not absconding and that no such false charge  may be leveled on you and to whom you should handover the charge/assets (mention details) within and upto expiry of notice period i.e.dated……………………And that NO tasks are pending at your ending and you should be assigned routine duties that can be completed on daily basis within and upto expiry of notice period i.e.dated……………………and acknowledgment of notice/and its acceptance, service certificate, relieving letter, correct FnF statement, payment of FnF dues in cash as per correct FnF statement, NOC/NDC, Form16, PF a/c number with a/c slips of each year,ESIC card, salary slip of each month etc be supplied to you within and upto cloase of office hours of expiry of notice period i.e.dated……………………

Download salary slips of all months, and all policies/rules mentioned in appointment letter and any other relevant document immediately.

  1. If these personnel do not respond escalate to the god offices of appointing authority, MD, Chairman.
  2.  If you are unable to handle on your own entrust to your able Labor Law Consultant/Service Matters lawyer/Law Firm.

 

 

A.Radha Sampath (Advocate)     25 August 2015

To start with you say that you have expressed your desire to leave the company by the month end, There starts the trouble. You have not given in writing your resignation letter and that for not complying with the three month notice you are ready to forego your 3 month salary-

So the company might have told you that with out presenting a formal resignation letter you will be deemed as ABSCONDING.

Had you submitted your resignation letter along with demand for settlement of your accounts with copies forwarded to all your higher officials even along with your immediate official you can demand settlement as well as experience certificate and all other necessary documents along with your academic credentials. Mention of returning your academic certificates is a must in your resignation letter.

Thus you can avoid all your litigation and worries.

 

brijendrasingh   25 August 2015

Dear Kumar Doab Sir, please explain the following as there is a confusion with regard to the query and the reply posted:-

1. Questioning the rules of 03 months 'Notice Period' of the employer here,  where the draft standing orders were submitted or not??  and certification of the standing orders  as prescribed in Industrial employment (Standing Orders) act, 1946 has been done ??

2.   Overlooking the termination of employment clause for terminating employment of permanent workmen,,..... wherein its clearly mentioned that  notice in wriing shall be given either by the employer or the workmen,- one months notice in case of monthly rated workmen................ There's also a mentiion of one months pay in lieu of notice as prescribed in Industrial employment standing orders Central Rules 1946.

Three months notice period is unjustified and there is no mention of buy back notice period of the employee in the querry (and also to the suggestions made in the forum).

Request clear my doubts

Thanks

 

 

Praveen   25 August 2015

Hello Kumar Doab,

Thank you very much for your response and I did  go through a lot of thread and I found you answering most of them and had hoped I would hear from you here as well... :)

I was worried about the asset part (which I could not find on the threads) as the company is not ready to submit the same and it can cause issues for me.

However, I have to get in touch with my new employer first with the written acceptance and thank you again for pointing me to the right direction.

I will post the results on this thread.

Kumar Doab (FIN)     25 August 2015

 

@ Brinjedra Singh,

  1. The querist has to clarify on ::: Does standing orders apply to establishment or not?

Draft standing orders were submitted by her establishment/employer or not? If yes, these were certified or not? If certified is his designation covered by certified standing orders or not? If standing orders apply but are not certified then Model Standing orders shall apply and in such case if he is covered by definition of ‘Workman’ then he shall be covered by clauses of Model Standing orders ( in specific Clause:13) and employer is personally held responsible for faithful observance of standing orders or else it can be penalized ( in specific Clause:13).

 

Here it is imp. for the querist to not to believe his employer or HR personnel or Line Managers if they say he is not covered as ‘Workman’ and he should prefer to seek opinion from an able Labor Law Consultant/Service Matters Lawyer/Law Firm.

 

2.  If he is covered by definition of ‘Workman’ and is permanent and confirmed then he shall be covered by clauses of Model Standing orders ( in specific Clause:13) and notice period is 30days and notice pay is of 30 days.

 

3. If standing orders and other enactments that govern service conditions (in specific notice period/pay) apply to both employer/establishment/employee then certainly notice pay in lieu of notice period shall apply and shall be equitable. The T&C in contract of employment should be equitable or it can easily be termed arbitrary.

 

4. I will prefer not to use words like ‘Buy Back’ for the moment.

5. The querist has to clarify if employee can also decline to accept notice pay if employer has initiated the termination.

Kumar Doab (FIN)     25 August 2015

 

You have posted that:

 

---“They have also informed me that they will make sure that I am considered as an ABSCONDING case and would not be sending any FnF , relieving letter , experiene letter , salary for this month would be upheld and would also make sure if there is a track record check that takes place, I would be considered as an ABSCONDING case.”

 

This is a blunt and naked threat. Record it (audio/visual/witnessed/minuted). And include it in your escalation to good offices.

 

---“and the HR Leader and HEAD has refused to hand me the form”

Minute it in writing and include it in your escalation to good offices.

You can include that you will submit on plain paper in that case but the receipt of it shall have to be issued to you on letterhead/prescribed stationary with logo and under original seal and signature of the competent employee.

 

---“I was worried about the asset part (which I could not find on the threads) as the company is not ready to submit the same and it can cause issues for me.”

 

Once you have affirmed to handover it is employer’s responsibility to  make arrangements within notice period tendered by employee.

Praveen   25 August 2015

Kumar, Thanks for your valuable inputs.As suggested, I sent an email to the HR HEAD, CC'd to some of the GLOBAL Managers and this is what I received from her:

"Dear praveen,

As communicated previously you notice period is for 90 days which will complete on Nov 3, which will be your last working day.

You need to serve the notice period,  

Thank you
XXXX

Sent from my BlackBerry 10 smartphone."

What do yo think should I do next?

Kumar Doab (FIN)     25 August 2015

The game has started.

Approach your able Labor Law Consultant/Service Matters lawyer/Law Firm.

Praveen   25 August 2015

Kumar, 

Can you recommend someone in the NOIDA region who has the expertise?

Praveen   26 August 2015

can you also update me under what sections is my case covered?

Kumar Doab (FIN)     26 August 2015

 

You have posted that;



>>> “I am workin in an organization in NOIDA for over 18 months..... .”



It is not sufficient information. Whenever you initiate a query you should post:



What is this establishment registered as: Commercial, Industrial?

The office /Div. where you are posted are registered as: Commercial, Industrial?

How many maximum persons are employed in it at any point of time, before and after you joined?


The Redg Office, Corporate Office of the company, and your reporting office was located in which state?

What was your designation and nature of duties?

Do you have leave policy, HR policy, Service Rules and Regulations, Conduct and Discipline Rules, Exit Policy, FnF policy that are mentioned in appointment letter and any document/webpage/portal that employee has kept in knowledge domain of employee?


What was your monthly salary?

Was any offer letter (after selection in interview), appointment letter, salary slip of each month, PF number with a/c slips, ESIC card,Form16, I.Card given to you?



What is the notice period inserted in appointment letter or any other policy ?

What is the notice period tendered by you?



What is your designation and nature of duties? Did you have power (not just recommend) to sanction leave/increment/appoint/terminate? Can anyone cancel your recommendations?






Do you have record of attendance? Did you ever work for more than 8hrs /day and 48 hrs/week and was any OT paid? Did you claim OT?





Are you a member of any employees/trade unions?

 

Praveen   26 August 2015

Hello Kumar,

Please find the responses below:


What is this establishment registered as: Commercial, Industrial?  -- Industrial

The office /Div. where you are posted are registered as: Commercial, Industrial? -- Industrial

How many maximum persons are employed in it at any point of time, before and after you joined? -- around 200 at my NOIDA office


The Redg Office, Corporate Office of the company, and your reporting office was located in which state? -- It is a global French company with HO at Paris, France. My reporting office was at NOIDA, UP.  I am not sure of the registred office as the company has offices at multiple locations.

What was your designation and nature of duties? -- L2, responsible for daily operational activities for VoIP in the different zones of the world.

Do you have leave policy, HR policy, Service Rules and Regulations, Conduct and Discipline Rules, Exit Policy, FnF policy that are mentioned in appointment letter and any document/webpage/portal that employee has kept in knowledge domain of employee? -- I have leave policies, but there aren't any other specific policies, other than the ones mentioned in the appointment letter.


What was your monthly salary? -- around 68k

Was any offer letter (after selection in interview), appointment letter, salary slip of each month, PF number with a/c slips, ESIC card,Form16, I.Card given to you?
Yes, but offer letter did not contain the notice period conditions.


What is the notice period inserted in appointment letter or any other policy ? -- In the appointment letter - 3 months for confirmed employee

What is the notice period tendered by you? - 1 month


What is your designation and nature of duties? Did you have power (not just recommend) to sanction leave/increment/appoint/terminate? Can anyone cancel your recommendations?
No power to sanction leave/increment/appoint/terminate? Can anyone cancel your recommendations.


Do you have record of attendance? Did you ever work for more than 8hrs /day and 48 hrs/week and was any OT paid? Did you claim OT? -- I have the record of attendance for the month of August. Yes, I did work for more than 8hrs /day, but never claimed OT.

Are you a member of any employees/trade unions? -- I am not aware if the IT industry has any employees/trade unions.


Just an UPDATE: I was asked to submit the company's assets after a meeting with the Director and HR, so at the end I wrote the following email:
" Thank you for your time today. As discussed in the meeting, you have decided to relieve me off from my duties starting today(26th August 2015) and not wait till 1st September 2015. 
As asked, I will submit the following assets that were assigned to me: 
Laptop 
Data Card 
Blackberry 
Headset 
Airtel No. 
Monitor 
Access Card 
ID card 
Door Keys"

and I got the following response post the submission from HR:
 Dear Praveen, 

" We are not reliving you, you have decided not to serve your 3 months notice period "

Kumar Doab (FIN)     26 August 2015

You have posted that it is IT company and is Industrial Establishment!

There seems to be some mismatch as it might be Commercial Establishment!

Your service conditions need to be examined. Generically speaking you can not be released before expiry of notice period tendered by you.

 

Has the establishment asked you in writing to remain at home for rest of the notice period and affirmed to pay wages?

 

Find out the location of Redg. Office!

 

Does company have an office at the location of your home town or at  location where you shall be placed by next employer?

 

All of the documents mentioned in above posts need to be examined.

Praveen   27 August 2015

Kumar,

It is actually a global commodities, audit comapny and I am a part of it's IT branch that is setup in India.

They have not confirmed me in writing, but verbally asked me to submit the asetts as "leaving on completion of my tendered notice and today would mean the same" in both cases for them.

My new employer is setup in Haryana and this one is in NOIDA, UP. I have spoken to some of the legal advisors but most of associates support employers only. I did get in touch with one , but was asked to wait till Monday as he was out of station. The situation has become sticky and it seems that I am at loss with each passing day!


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