Notice period waiver and el balance issues

You have posted that:

-----“I claimed for a notice period waiver after my resignation.”

Did you claim in writing under POD and do you have the copy?

------“ Which was done as per my manager. “

Do you or your manager have it in writing?

However you may claim that on dated……………….Mr/Ms……..designation…………….address appraised you in office for waiver.

Although the manager may decline.

-------“As I resigned during that 30 day time when I was in the re-deployement pool, “

Have you been attending office and been paid usual wages for this period?

Usually the employer shall encash the EL in FNF settlement, adjust the notice pay in FNF settlement and disburse the net/effective amounts.

Usually Paid Leave is disbursed by many of the employer @ Basic + DA……………..

Notice pay should also be ideally adjusted at this rate.

EL/PL is as per enactments applicable to the establishment e.g. Shops and Commercial establishments Act of the state, Factory Act………………..etc

Or

Bilateral negotiated Agreement, standing orders offering better, over and above, superior  benefits as stated in the enactments applicable to the establishment………………

Employer can waive off the notice period on its own or on recommendation by line managers/HR etc………….Employee may approach good offices of appointing authority, MD….etc.

Notice period is stated in service conditions as in standing orders, appointment letter, statue………………….and can not be more than as stated in standing orders……………..

Notice period during probation period may be termed unreasonable and may be NIL.

There are many threads on Notice Period etc e.g;

https://www.lawyersclubindia.com/forum/Absconding-from-bpo-89455.asp

https://www.lawyersclubindia.com/experts/Notice-period-not-served-in-full-425096.asp#.UkaBCdKAqWM

https://www.lawyersclubindia.com/forum/Empolyer-forcing-for-notice-period-89058.asp#.UkaBQtKAqWN

Notice period waiver that I claimed was via the email to the FNF department...Hence I can get a copy of the same.

For my manager agreeing to the notice period waiver, I have another mail wherein he has asked the FNF people to clarify. But has not mentioned anything about the total number of days that were waived.

Verbally he agrees that he waived off my full notice period. And HR partner says that when the notice period of 30 days is waived, the EL balance(in my case 20 days) is adjusted and the remaining days are waived.  This he says he can not give me in writing or forward that mail as its an internal communication.( As per him had I been left with just 10 days of EL, then 18 days of notice period would have been waived and 10 days of my EL would have been adjusted. So, that means that notice period is waived for me but cause I had my EL balance with me,  my Company is parting that from me saying that EL does not get credited even after waiver of notice period.)

For the redeployment pool period of 30 days. My redeployment period starts from 1st July 2013, and I attended office till 8th of July 2013. My resignation was filed on 7th of July 2013(serving 2 days of notice period as per my company) . I was paid regular wages for this period. 

Later in the FNF statement...

Notice period served = 2 days

EL bal= 20 days (Claimed against the notice period)

Recovery days for the notice period = 8 days.

I paid the 8 days of claim against me as the recovery for notice period as I required my relieving letter. And claimed to get my notice period waived as I was in the redeployment period. My manager verbally confirmed that its done and full period has been waived. But when confirmed from FNF, they said they got input for any 8 days of waiver. Wherein I asked my manager and FNF to recheck with HR.

This is where the disconnects arise.  I now want to confirm if I can approach them legally on this matter. Cause my EL are earned by me, and I should be credited for them on my resignation.

You have posted that;

“My resignation was filed on 7th of July 2013(serving 2 days of notice period as per my company.”

This seems to be the problem and answer to your questions too…………………

Did you tender notice of resignation with notice period/effective date of resignation/last day in office stated in it?

Or did you request in writing to accept your resignation within 2 days in writing?

If you resigned on 2 days notice then you need to tender notice pay towards shortfall in notice period.

 In such case companies should pay for 2 days you have served, encash the EL and pay to you, and adjust/recover the notice pay from you and show everything separately in FNF statement.

Did the company accept resignation before expiry of notice period?

In such case company should pay for 2 days you have served,  tender notice pay to you for balance 28 days, encash the EL and pay to you  and show everything separately in FNF statement.

The net amount as payable to you as per correct FNF statement should be paid to you.

If FNF statement is not correct you may decline to accept it in writing and mention the payment made by company is received under protest.

Apparently your establishment is commercial and for eligibility of EL notice period also you may look into Shops and Commercial establishments Act of your state and leave policy of the company. If you were under probation period/were not confirmed in writing the notice period applicable to you may be NIL.

The leave policy of the company should not be inferior to the enactment applicable to the company.

In case of any doubts discuss with elders and local labor consultant/service lawyer and proceed under expert advice of your lawyer.

Thanx Mr Doab,

We submit our resignations via a portal in my company. So at the time of filing my resignation it automatically calculated my day of resignation and last working day as being served as notice period..ie of 2 days. And gave a shortfall of 28 days.  My resignation was accepted before the expiry of my notice period by my company.

I shall try to communicate with my company and the FNF department once again and see how I can work this out. However the points that you have mentioned are they just a common practice of stated in some clause under law. If possibe can u give me the act name and clause under which this is stated.

"Did the company accept resignation before expiry of notice period?

In such case company should pay for 2 days you have served,  tender notice pay to you for balance 28 days, encash the EL and pay to you  and show everything separately in FNF statement."

You have posted that:

------“ My resignation was accepted before the expiry of my notice period by my company.’

Did you tender notice of resignation with notice period/effective date of resignation/last day in office stated in it and do you have the copy?

Employee should submit resignation by letter thru redg. post.

Even if the company has its software for submission resignation, employee may mention hard copy dated……………..submitted by redg. post on dated and that should be referred.

If you have tendered notice and company has accepted before expiry of notice period then company should pay for shortfall in notice period.

You could have also asked to allow to serve the full notice period.

Hope you have not stated in writing to accept your resignation before expiry of notice period.

>> Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers ... on 1 April, 1998

https://www.indiankanoon.org/

doc/1452145/

“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…….”

Supreme Court of India

Srikantha S.M vs Bharath Earth Movers Ltd on 7 October, 2005

https://www.indiankanoon.org/doc/1097853/

We, therefore, agree with the High Court that in the present case the resignation of the employee could have become effective only on or about April 21, 1986 or on June 30, 1986 and that the bank could not have ``accepted'' that resignation on any earlier date. 

>> Notice period is max. 1 month as per Model Standing Orders, Shops and Commercial Establishments Act.

Model Standing Orders:

13.          Termination of employment

You may approach a local labor consultant/service lawyer. The lawyer that has seen all of your docs can advise you the best.