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RAJESH SHAH (ANALYST)     17 November 2013

Notice period nad absconding employee

Hi,


I am a chartered accountant currently working in one of the Investment banks. From October 01 my company increased the notice period from 30 days to 60 days.

I want to move out of industry. i got the job in one of the company. But they require an employee in 30 days.

I asked my current company to relieve me in 30 days and also offered them one months salary for the remaining notice period. But they are not agreeing to 30 days notice period. I have 15 pending leaves as well.
 I have already resigned from the company.

Please advise me on the options i have. And if they can declare me absconding if i will not serve entire 60 days notice period.



Learning

 5 Replies

Kumar Doab (FIN)     17 November 2013

Such matters are best resolved while in employment by applying goodwill, rapport and exceptional levels of persuasion, persistence, reasoning, negotiation skills.

 

You must structure and draft your notice of resignation and subsequent communication carefully.

 

In such situations it is in interest of employee to request in writing the future employer to extend the offer period for joining to 2 months and point out that it has already been informed during the interview that notice period in current employment is 2 months and the current employer is unwilling to relieve until 2 month’s notice period is served fully and I case of variance relieving letter, last salary slip, FNF statement/settlement, service certificate, NOC/NDC may not e issued and employee can supply only the copy of notice of resignation/resignation. The offer is made by next employer who may also be in the practice of making offer of joining period of 1 month for incoming employees but may be making a condition of 2 months notice period must for outgoing employees. The employee is taking a risk for next offer made by next employer and employee must take next employer in confidence so that next employer stands by him.

Employee should safeguard his interest in the best possible manner.

 

>> Did you accept the increase in notice period in writing?

Did you the reject to accept the increase in notice period in writing?

If you had decided to separate then you should have declined in writing under proper acknowledgment to accept the change in notice period initiated by employer.

In such a case the old service condition of notice period should persist. The unwilling employee and unwilling employer have the discretion of separating on the basis of service conditions stated in old bilateral agreement.

If the employee has not declined to accept in writing the employer who has decided to dispute may become vindictive.

Employer may claim that no communication from employee is deemed acceptance.

However the language in notice of change of notice period should be studied.

 

>> Verbatim: Absconding or Abscondment would mean…………….

verb: absconding

1.                              1.

leave hurriedly and secretly, typically to escape from custody or avoid arrest.

 

"the barman absconded with a week's takings"

 

synonyms:

run away, escape, bolt, clear out, flee, make off, take flight, take off,fly, decamp; More

ABSCOND<===> फरार होना 

ABSCOND<===> चम्पत होना

 

Thus it can be claimed that term “Abscondment”/ “Absconding”……………….. is Derogatory.

>> You have informed the company in writing about your intention to separate by exercising your option/discretion of resignation by way of notice of resignation.

Resignation can be without permission or notice.

You are not causing abrupt termination. Thus you have displayed character and sincerity.

One month should be sufficient for the employer to put his house in order. If you have not accepted the change then you should have stated so in writing and could have referred to clause in appointment letter and your letter for non acceptance of change.

The clauses on Termination of employment by employer and employee should be studies.

Is it stated that notice pay is payable for the shortfall in notice period by both employer and employee?

If yes liquidated damages are already inserted in appointment letter and this shall be the maximum amount that can be charged in lieu of notice period.

 

>> Notice period or Notice pay in lieu of Notice period is part of service conditions.

Service conditions are stated in standing orders applicable to the company and extended to the designation of the employee, statue, appointment letter, contract of employment, service rules………. It is also inserted in Shops and Commercial Establishments Act of the state.

If the company has its Certified Standing Orders (CSO) and these are extended to your designation then the CSO shall prevail upon appointment letter.

If the employee is not covered by standing orders, statue, def. of employee as in Shops and Commercial Establishments Act, the job advertisement calling for job applications appointment letter, contract of employment, service rules, exit policy/severance policy etc may be looked into.

The service conditions should be equitable or these can easily be termed as arbitrary.

Is it stated in appointment letter issued to you that employer can terminate by notice of termination or notice pay in lieu of it? If yes equitable discretion should apply to employee also if employee initiates termination by resignation.

Is it stated that employee can not tender notice pay in lieu of notice period (unlike Employer)?

Is it stated that employee has to tender some liquidated damages too in addition to notice pay?

In case the option of notice pay in lieu of notice period is not available and tasks/assignments are pending at the end of employee and employee is unwilling to indemnify the employer against some financial or some other kind of loss that employer may suffer the employer may impress upon to serve the full notice period.

The notice of resignation and subsequent communications should be carefully structured to safeguard the interest of employee and also to not to leave any room for the employer to level any charge of having caused loss etc…………

>> You may affirm that notice pay towards shortfall in notice period is adjusted in FNF statement and correct FNF statement be supplied to you for verification and acceptance.

You may specifically point out to good offices of appointing authority, MD, thru Redg. post.that that all assignments/tasks as on date have been completed and nothing is pending and routine duties be assigned now that can be completed on day to day basis within and up to last day in office i.e dated………………………as stated in notice of resignation dated……………….

may request the good offices to supply the acknowledgment of notice immediately by resg. Post and also to supply by the close of office hours of our last day in office/expiry of notice period the acceptance of resignation, service certificate, relieving letter (with good comments on conduct and performance), correct FNF statement, payment of FNF dues by bank DD only, receipt of handover of charge/company property (if any), Form 16 as per correct FNF statement, NOC/NDC, PF number, PF account slips of total tenure of service, attested copies of PF withdrawal or transfer forms, last salary slip and salary slips of all months of service etc by redg. post only.

 

{ The employer is under obligation to supply all these documents and payment to employee}

 

 

 

Employee must request the good offices to inform immediately in writing to whom to handover the charge and designated person should be informed in writing with a copy to you to take charge under proper acknowledgment on the spot.

 

 

Depending upon the reply of the good offices you may proceed further.

It is time to download all policies and record that would eventually be required and helpful for you.

The company can block access at any time and it may not produce any record although it is keeper and custodian of records.

Employee should submit periodic reminders and submit final resignation too.

It shall be appropriate to show all docs including notice of change in notice period to a competent and experienced labor consultant/service lawyer and proceed under expert advice. The lawyer that has seen all of your docs can advice you the best.

https://www.lawyersclubindia.com/forum/Mnc-issuance-of-experience-certificate-re-leaving-letter-92229.asp#.UoiogdKAqWM

https://www.lawyersclubindia.com/forum/One-sided-notice-period-92171.asp#.UoiondKAqWM

https://www.lawyersclubindia.com/forum/Query-regarding-relieving-letter-and-continuity-bonus-92151.asp#.Uoio6NKAqWM

 

https://www.lawyersclubindia.com/forum/Whether-notice-period-has-to-be-given-during-probation-91808.asp#.UoSg3nCAqWM

 

 https://www.lawyersclubindia.com/forum/Notice-period-92146.asp#.UoTD33CAqWM

 

https://www.lawyersclubindia.com/experts/Different-notice-period-for-employee-and-employer-during-probation-432151.asp#.UoTGvHCAqWM

 

 

1 Like

RAJESH SHAH (ANALYST)     19 November 2013

Hi,

Thanks a lot for such helping answer.

1) I did sign the notice increase letter, as we were made sign it with one day notice.

2) The terms of agreement are silent on Notice period buyout by an employee.

             "Your employment may be terminated by you or the firm for any reason with 30 day's prior notice. The firm reserves the right to provide payment in lieu of notice period. The firm reserves the right to require you,for part or all of the notice of termination period for which you remain an employee, not to perform any duties and remain away from Morgan Stanley premises, although the firm will continue to maintain your salary and other contractual benefits for this period. You may not commence employment or take any action in preparation to commence employment with any company or other business during this period"

3) The new company is okay to hire without reliving letter or experience certificate. However, the word "Absconding" is difficult for them to cope up with.

4) Other terms of agreement are silent on any damages to be paid by an employee for shortfall in notice period.

5) I already resigned and got the acceptance of it. However i wrote only the effective date of resignation.

Please advise in what scenarios they can declare me an Absconding employee and How i should go ahead to avoid such scenario.

Kumar Doab (FIN)     19 November 2013

You have posted that:

 

-----“5) I already resigned and got the acceptance of it. However i wrote only the effective date of resignation.

After accepting the resignation how can company declare you absconding?

You have stated the date of retirement chosen by you i.e. effective date of resignation and you have concurred to seve the company up to this date.

You should submit periodic reminder(s) for handover of charge and submit final resignation under proper acknowledgment.

 

----“1) I did sign the notice increase letter, as we were made sign it with one day notice.

No body can make you sign any document.

Never succumb to such tactics, pressure. If you are being made to sign on the spot without being allowing studying and consulting record (audio/Visual). This shall help to establish coercion, intermediation.

----“2) The terms of agreement are silent on Notice period buyout by an employee.

Even if it is, the equitable discretion can be found in contract of employment/appointment letter.

e.g;

‘Your employment may be terminated by you or the firm for any reason with 30 day's prior notice.

‘the firm will continue to maintain your salary and other contractual benefits for this period.

The payouts by employee if employee has initiated termination must not be claimed higher than this by firm.

Otherwise the employee may also proceed to claim that detrimental effect suffered by him are higher than firm.

In case of any dispute the court of law can decide depending upon reasonableness of the matter and reasonable amounts, if any.

-----“The firm reserves the right to provide payment in lieu of notice period. “

If the termination is initiated by employer then employer may prefer to tender notice pay in lieu of notice.

However it is discretion of employee to accept notice pay ion lieu of notice period or employee may opt to serve the notice period.

Employee can decline to accept notice pay in lieu of notice and agitate for it too.

----The firm reserves the right to provide payment in lieu of notice period. “

If employee has initiated notice of termination then employer can not accept resignation before expiry of notice period.

Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers .

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.

 

You must update preferably in writing the next employer that your current employer may resort of non acceptance of shortfall in notice period and may resort to terming absconding. The next employer may ask you to sign an affidavit that you are not employed elsewhere, and absorb you. 

You may  fine tune  your representations as suitable to you and must approach your lawyer with copies of all docs and communications.

The lawyer that has seen all of your docs and has analyzed your inputs in person can advice you the best.

 

 

1 Like

RAJESH SHAH (ANALYST)     20 November 2013

Hi,

I am thankful to you again for the help you are providing me.

1) I would like to clarify that in resignation i have written the effective date of resignation and not the last day of service. For Eg: I am resigning with effect from   November 5th, 2013. I refrained from mentioning last day of service as it would have lead to non acceptance of resignation.

2) If employer hold the right to pay salary in lieu of notice, why an employee is not allowed. Can this clause be unilateral?

3) The new employer is not guaranteeing employment in case of the prior company declares me an absconding employee.

4) In my scenario, can they declare me an absconding employee if i don't serve entire 60 days notice period? Even though i have already resigned.

5) How should i go ahead from here regarding communications with both the companies.

Thanks for the help.

Sudhir Kumar, Advocate (Advocate)     20 November 2013

Mr Kumar Doab has given very detailed analysis.  Now I think it is time for you to meet a lawyer with papers.


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